Doubtful State of the Law of Treason Today

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.


The vacillation of Chief Justice Marshall between the Bollman1493 and Burr1494 cases and the vacillation of the Court in the Cramer1495 and Haupt1496 cases leave the law of treason in a somewhat doubtful condition. The difficulties created by Burr have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label,1497 within a formula provided by Chief Justice Marshall himself in Bollman. The passage reads: “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . . must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.”1498

1493 Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

1494 United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).

1495 Cramer v. United States, 325 U.S. 1 (1945).

1496 Haupt v. United States, 330 U.S. 631 (1947).

1497 Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir. 1952), cert denied, 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.

1498 Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list taken from the government’s brief of all the cases prior to Cramer in which construction of the Treason Clause was involved. The same list, updated, appears in J. Hurst, supra at 260–67. Professor Hurst was responsible for the historical research underlying the government’s brief in Cramer.