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This is a paper I wrote for my Intro to Paralegal class in 1992 and I just found it in a file cabinet. I'm actually quite proud f it. I have other term papers about that I think I'll post as well.

Treason is one of the oldest crimes in history and the most serious crime known to law. It is a breach of loyalty and allegiance. In ancient Rome, treason not only included betrayal to an outside enemy, but also any act that threatened the security of the state. In medieval England, the king forced the common law courts to extend the scope of treasonous offenses in order to consolidate the king’s power. In 1531, Parliament, under Edward III, enacted the Statute of Treason in an attempt to define it. A man was guilty of high treason “…if a man do levy war against our Lord the King in his realm or be adherent to the King’s enemies in his realm, giving them aid or comfort in the realm or elsewhere.” (West p.7)

In America in 1787, the Constitutional Convention took the jurisdiction of treason from the individual states and placed it with the federal government. It is the only crime defined in the U.S. Constitution, Article III §3. “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.” Treason is not limited to acts on American soil. Treason is directed towards a nation and the intent goes with the perpetrator everywhere.

No person shall be convicted of treason unless he operates with treasonable intent in an overt act. Intent is a necessary element to treason for the person must act knowing that the results of such an action will betray his country. One who deals with the enemy in a time of war and intentionally helps them in their mission is guilty of treason. Proof that a citizen gave aid to the enemy may some times be sufficient to establish the intent, but if the act is trivial and commonplace, the treacherous intent must be found in other evidence.

The overt act must be testified to by two witnesses or confessed by the accused before there is a conviction. The act itself need not be a crime. It only needs to show that the accused did actually give aid and comfort. Disloyal words alone do not constitute treason, but can play an integral part if other elements are present. Therefore, the radio broadcasting of demoralizing propaganda by American nationals living in enemy territory during wartime was considered treason and “Paul Revere” and “Tokyo Rose” were convicted of treason.

Part of the constitutional definition is the levying of war and the war must be actually levied although it does not need a formal declaration. It has been interpreted to include not only making war to overturn the government, but also “any combination forcibly to oppose the execution of any public law of the United States if accompanied or followed by an act or forcible opposition to such law in the pursuance of the combination.” (AmJur. 2nd Sedition…§87) No actual army needs to assemble but all those who take a part, no matter how small, are to be considered traitors. In 1807, Aaron Burr, who was Vice President from 1801-5, along with a small group of men, planned to take territory bordering on the Mississippi to set up an independent dominion. They were tried for treason but acquitted on the grounds that there needed to be an overt act of war to constitute treason. Some felt that those who sided with the Confederacy during the Civil War should have been tried for treason since they went against the federal government. Jefferson Davis, the president of the Confederacy, was indicted for treason but he was never tried.

Adherence to the enemy must be proven to have been voluntary and without coercion Aid and comfort are given if the acts would advance the interests of the enemy. The act may be aborted or even a small part of the enemy’s total effort, but if it gives aid and comfort at the time of its performance, it qualifies as an overt act under the constitutional definition. The first case of treason in modern American history took place in Michigan in 1943. A Nazi Luftwaffe pilot escaped from a prisoner-of-war camp in Canada and he was helped by Max Stephan who gave him food, clothing, money and shelter. Since the United States was at war with Germany at the time, this was considered as giving aid and comfort to the enemy. Stephan was convicted and sentenced to hang. (Stephan v. United States, 133 F.2d 87, cert den 318 US 781)

Since treason is a breach of allegiance, it can only be committed by those who owe allegiance to the United States. Just because one is in a foreign country it does not mean that he cannot be convicted of treason. An alien, while living in this country, owes a temporary allegiance in return for the protection he receives and can be convicted of treason if he commits an act that can be interpreted as treasonous while residing here. People who have renounced their citizenship or have been exiled cannot be convicted. There are no accessories in treason. Anyone who participated in, or contributed to, the act are considered principals and are punishable as such.

In a treason case, the prosecution has the burden of proof and must convince the jury beyond a reasonable doubt of the accused’s guilt. There must be a testimony of at least two witnesses to the overt act. The testimony does not have to be the identical as long as the same act is described. This is only for proof of the act, not the intent. The intent may be inferred from the conduct of the accused, the overt acts, or the defendant’s own statements. Conversations that took place before the indictment are admissible as well as sample recordings made for the enemy during the time of war. The accused can use coercion as a defense only if there was a threat of immediate death or immediate serious bodily harm. The accused is also entitled to an appointed defense counsel.

The procedure for treason is generally along the same lines as those of a regular federal criminal case. The federal courts have jurisdiction over any case of treason even if the offense occurred outside the country. The Constitution grants the right of a grand jury indictment in all capital cases. A federal statute states that a person charged with treason has the right to a copy of the indictment at least three days before the trial begins. If the conviction is based on a particular overt act, it must be mentioned in the indictment.

Congress, empowered by the Constitution, can fix the punishment for treason. The penalty is death, or imprisonment for no less than five years and a fine of at least $10,000. If a person is convicted, he can no longer hold any federal office (18 USCS §2381). A reviewing court will not interfere in a death sentence if the defendant repeatedly committed flagrant treasonous acts. Only the President has the power to pardon or grant a reprieve for treason.

Patrick Henry, the famous colonial orator from Virginia, in a speech from 1765 said:

Tarquin and Ceasar had each his Brutus—Charles the First, his Cromwell—and George III—(“Treason!” shouted the Speaker) may profit from their example. If this be treason, make the most of it.

To many Americans, Henry, Washington, Adams, Franklin and others are considered patriots. However, if America had lost the Revolution, those men would have been hunted down and tried for treason for declaring war against England. A quote by one Sir John Harrington sums up this particular aspect quite well. “Treason doth never prosper; what’s the reason? Why, if it prosper, none dare call it treason.”

There will always be the possibility of treason as long as there are governments and those loyal to them, for without loyalty, treason cannot exist. Treason and loyalty are equivalent to dark and light, good and bad; without one, we would have no concept of the other.


BIBLIOGRAPHY

“Sedition, Subversive Activities and Treason”. American Jurisprudence 2d ed., vol. 70, §§80-100. Lawyers’ Co-Operative Publishing. Rochester NY, 1987

West, Rebecca. The New Meaning of Treason. Viking Press New York, NY. 1964

Wickersham, Cornelius W. and Laurence Vogel. “Treason”. Encyclopedia Americana. 1991



“A very nice piece of work! Well-written and informative” A

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