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Parliament, as well as the loud remonstrances of the people. Nor is it in monarchies alone that the power inherent in society to punish treason has been abused. In the words of “ The Federalist,” “New-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually worked their alternate malignity on each other."1 To guard against such evils, the Convention inserted a definition of treason in the Constitution, and defined the mode of its proof, leaving nothing on either point to the discretion of either Congress or the Courts.
Section 3, Clause 1.–Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
561. Levying War.--To levy war is to make war, an overt act. C.-J. Marshall has said: “War must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses.
If a body of men be actually assembled for the purpose of affecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war." 2
562. Giving an Enemy Aid and comfort.-The second form of treason is not so easily defined. Aid and comfort may be given to an enemy in many different ways. However, for a citizen to sell the enemy of his country provisions, cannon, horses, ships, etc., to be used in the
1 No. 43.
2 Ex parte Bollman, 4 Cranch 126.
prosecution of war against it, or to render such enemy personal assistance, would be treason.
563. Modes of Conviction.—Here fear of the abuse of power is seen again. In the first mode of conviction two witresses to the same overt act are essential. The clause also guards the accused against the consequences of his own confession, real or alleged; only confession in open court, that is, public confession when he is on trial, will be accepted as a basis of conviction.
On the last point Justice Story may be quoted : “It has been well remarked that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. To which it may be added, that it is easy to be forged, and the most difficult to guard against."l
Section 3, Clause 2.—The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.
564. The Punishment Declared.-In 1790 Congress enacted that treason should be punished with death by hanging. In 1862 it enacted two modes of punishment, at the discretion of the court: the traitor should suffer death and his slaves be made free; or he should be imprisoned not less than five years, be fined not less than $10,000, and his slaves be made free, the fine to be levied on any property, real or personal, except slaves, that he might possess. In the second case the criminal should also be forever incapable of holding office urder the United States. At present the punishment is death, or, at the discretion of the court, imprisonment at hard labor for five years and a fine of not less than $10,000, with the same disqualification as to holding office. Without this clause, Congress would have a perfect right to define the punishment of treason; and it was introduced, no doubt, to furnish an opportunity to limit the effects of attainder.
1 Commentaries, ; 1802.
565. The Common Law Punishment. According to the common law, a person adjudged guilty of high treason was drawn to the gallows, at first on the ground or pavement, afterwards on a sledge or hurdle; he was hanged by the neck and cut down alive ; his entrails were taken out and burned before his face; his head was cut off ; his body was divided into four parts, and his head and quarters were then placed at the king's disposal, -the whole proceeding being summed up in the phrase, “ drawn and quartered.”
566. Attainder of Treason.-According to the common law, a man found guilty of treason was said, by a figure of speech, to be attinctus, attainted, tainted, stained, soiled, and disgraced. The attainder of treason attached to the offender the moment that the judge delivered sentence of judgment upon him. By an extension of the figure, the attainder worked corruption of the blood of the person attainted, and also forfeiture of his estate.
The far-reaching significance of the old rules of law in relation to attainder, is well explained by Mr. Justice Story : “By corruption of blood all inheritable qualities are destroyed ; so that an attainted person can neither inherit lands nor other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them to any other beir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remoter ancestor. So that if a father commits treason, and is attainted and suffers death, and then the grandfather dies, his grandson cannot inherit any estate from his grandfather; for he must claim through his father, who would convey to him no inheritable blood. . . In addition to this most grievous disability, the person attainted forfeits, by the common law, all his lands, and tenements, and rights of entry, and rights of profits in the lands or tenements, which he possesses. And this forfeiture relates back to the time of the treason committed, so as to avoid all intermediate sales and incumbrances; and he also forfeits all his goods and chattels from the time of his conviction.” 1
567. Power of Congress Over Attainder.-- The common law connected attainder with judgment of treason, and declared its consequences to be corruption of blood and forfeiture of estates. The Constitution leaves it to Congress to say whether attainder shall follow conviction or not, and if so what the consequences shall be ; only the attainder shall not work corruption of blood or forfeiture except during the life of the person attainted. Congress has never included attainder in the punishment of treason, and the word is not found in our laws. An act to suppress insurrection, approved July 17, 1862, sometimes called the Confiscation Act, provided that the property of six classes of persons named, engaged in the Rebellion or giving it aid and comfort, should be seized and confiscated and the proceeds applied to the support of the army of the United States. But the operation of this act was limited, as will appear in the next paragraph. The present law expressly declares: “No conviction or judgment shall work corruption of blood or forfeiture."
1 Commentaries, $ 1299.
568. Meaning of the Limitation.-A question has arisen as to the phrase, “except during the life of the person attainted." This question is whether the phrase limits the time within which the corruption shall be worked, or the time that the forfeiture shall run in case there be one, Must the forfeiture be worked in the life of the traitor? 01 shall the property of a traitor that has been confiscated, be restored to his heirs on his death? If the first be the meaning, then the dam imposed by conviction of treason would be removed by the death of the offender, and property could pass by, as from grandfather to grandson. The question has not been judicially determined, and is an open
In the case of real estate, President Lincoln understood the language in the second of the two senses. To meet his view, Congress adopted a joint resolution construing the act of June 17, 1862, as follows: “Nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.” The Supreme Court has sustained the act.
569. Treason Against a State.—The Articles of Confederation did not recognize treason against the United States; all treason in that
period was treason against a State. A motion to give Congress the sole power to declare its punishmeut was lost in the Convention, so that the powers of the States to punish treason remained unchanged. Practically these powers have amounted to little; but Mr. Johnston well remarks that "they fasten the idea of allegiance to a State, and that carried into secession the multitude wbo disliked secession but dreaded to commit treason against the State.”
Other provisions of the Constitution in relation to treason are discussed in connection with other subjects, as the subjeci of impeachment.