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 treason clause is a product of the awareness of the Framers of the “numerous and dangerous excrescences” which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to “extend the crime and punishment of treason.”1331 The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed and that ordinary partisan divisions within political society were not to be escalated by the stronger into capital charges of treason, as so often had happened in England.1332

Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350,1333 but they conspicuously omitted the phrase defining as treason the “compass[ing] or imagin[ing] the death of our lord the King,”1334 under which most of the English law of “constructive treason” had been developed.1335 Beyond limiting the power of Congress to define treason,1336 the clause also prescribes limitations upon Congress’ ability to make proof of the offense easy to establish1337 and its ability to define punishment.1338

1330 See the Sixth Amendment.

1331 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 469 (1836) (James Wilson). Wilson was apparently the author of the clause in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. HURST, THE LAW OF TREASON IN THE UNITED STATES— SELECTED ESSAYS 90-91, 129-136 (1971).

1332 2 M. Farrand, supra at 345-50; 2 J. Elliot, supra at 469, 487 (James Wilson); 3 id. at 102-103, 447, 451, 466; 4 id. at 209, 219, 220; THE FEDERALIST No. 43 (J. Cooke ed. 1961), 290 (Madison); id. at No. 84, 576-577 (Hamilton); THE WORKS OF JAMES WILSON 663-69 (R. McCloskey ed. 1967). The matter is comprehensively studied in J. Hurst, supra at chs. 3, 4.

1333 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.

1334 Id. at 15, 31-37, 41-49, 51-55.

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Last modified: September 5, 2012