The Historic Background
of the Treason Clause
in the Constitution
IN ITS MOST original aspects, as in the commerce clause, the Constitution of the United States expresses policies the strength of which lies in their capacity to embrace and take new vigor from changed circumstances since 1787. But there are other aspects in which the strength of constitutional policy lies in the definiteness and the distillation of experience given by the invoking of historic concepts. This has been most marked, perhaps, in regard to institutions recognized by the Constitution, or some of the procedural decencies guaranteed to the individual facing the power of the state.
Article III, Section 3, bears the mark of a provision the primary reference of which is to history:
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.
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.
The framers did not choose to contrive their own definition of the crime of attempting the subversion of the government. "Treason" is itself a term which — to speak only of the Anglo-American background — was familiar to the common law before it was used in the Statute of 25 Edward III, from which the Constitution derives its language concerning the levying of war, and adhering to enemies, giving them aid and comfort.1 The record makes it clear that terms thus weighted with historic significance were deliberately chosen, in order better to deal with a problem the practical dangers of which history was believed to teach.2
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