By the Treason Felony Act 1848, s. I., it was made a felony punishable by penal servitude for life within or without the United Kingdom to plot (a) to deprive or depose the king from the style, etc., of the imperial crown of the United Kingdom, (b) to levy war against the king in any part of the United Kingdom in order by force or constraint to change his measures or counsels or to put force or constraint on or to intimidate or overawe either or both houses of parliament, (c) to move or stir any foreigner with force to invade the United Kingdom or any of the king's domin ions. The plot to be within the Act must be expressed by publish ing in printing or writing or by an overt act or deed. For other offences more or less nearly connected with treason reference may be made to the articles: LIBEL AND SLANDER ; OATH ; PETITION; RIOT; SEDITION.
The Act of 1848 does not abrogate the Treason Act of 1351, but merely provides an alternative remedy. But with the exception of the case of Lynch in 1903 and of Casement in 1916 all prosecu tions in England for offences of a treasonable character since 1848 have been for the felony created by the Act of 1848. The pro cedure in the case of all the offences under the Act of 1848 is gov erned by the ordinary rules as to the trial of indictable offences, and the accused may be convicted even though the evidence proves acts constituting high treason. Principals in the second degree and accessories before the fact are punishable as principals, and accessories after the fact by two years' hard labour.
The extent to which the crime of treason had been warped in early English history played an important part in restricting the character of the crime in America by constitutional means. The United States Constitution expressly forbids Congress and the States from passing bills of attainder or ex post facto laws. It further defines the crime of treason as follows : "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." This definition embraces only treason against the United States. Treason against a State is also possible and as such is governed by State laws or constitutions. Treason against a State, however, usually involves an attempt to withdraw the State from the Union and thereby prevent the exercise of national sovereignty within the limits of the State, and thus becomes merged in treason against the United States. Consequently the crime of treason against a State is little known in American law.
The constitutional definition of treason is, in part, taken from the old English Statute of 24 Edw. III. Congress in 1790 and 1862 provided for its punishment by prescribing the death penalty as a maximum and a minimum penalty of five years' imprisonment and a $1o,000 fine, provisions which have been carried forward into the existing laws (U.S. Code, Tit. i8, §2). Congress has no power to enlarge the constitutional definition, though it may make other offences which are treasonous in character felonies and punishable as such. Thus misprision of treason, or the failure to disclose knowledge of the commission of acts of treason, is made a felony. (U.S. Code, Tit. r8, §3), trading with the enemy, seditious utter ances, insults to the flag, obstructing recruiting, and like offences have been made Federal crimes. None of these,.however, carries
the death penalty.
The question of what acts constitute treason was brought to the forefront in the heated trial of Aaron Burr for treason in 1807. The opinion of Chief Justice Marshall in this case of U.S. v. Burr, 4 Cranch 470, 25 Fed. Cas. 2, sitting as circuit judge in the circuit court of Virginia, remains the landmark of American law upon the subject of treason. Under the principles there laid down, levying war must comprise more than a conspiracy to make war or an intention to go to war. There must be an actual going to war, proved by open deed. The employment and exhibition of force thus becomes necessary. A secret furtive assembly without the appearance of force nor in a condition to make war, how ever treasonable its purpose, cannot constitute treason. It is not essential that any blow be struck provided that the assemblage be in a condition to use force and have the intention to carry out their purpose by violence. A procurement to commit treason is also treason, for the American law accepts the English principle that what will make a man an accessory in felony makes him a principal in treason. But in such a case it is the act of procure ment of the treasonous assemblage, not the acts of the assemblage, which is the overt act of treason that must be testified to by two witnesses in order to convict him. The difficulty of proving the procurement in this manner, as procurement is generally a secret transaction, has made conviction for procurement of treason a practical impossibility. This ruling of Chief Justice Marshall, severely criticized at the time, was responsible for Burr's acquit tal upon the charge of treason.
The second element in the constitutional definition of treason, adhering to the enemies of the United States and giving them aid and comfort has caused less difficulty. Furnishing the enemy with such facilities as are needed for the prosecution of war, such as ammunition, supplies, and means of transportation, constitutes treason. The acts which constitute treason need not be done by a citizen of the United States, but inasmuch as any alien temporarily resident within the United States and under the protection of the sovereign owes it a duty of allegiance so long as he remains within the United States, his breach of allegiance can constitute treason. Carlisle v. United States, 16 Wall. 147 (1872).
Prosecutions for treason, as any Federal crime, are cognizable solely by the Federal courts. Such prosecutions occurred mainly during three periods in American history. During the American Revolution they were cognizable only by the State courts, no Federal courts for the trial of criminal cases being in existence at the time. The Whiskey Rebellion in Pennsylvania, shortly after the organization of the Federal Government, brought forth a few cases. The opposition of the New England States to the War of 1812 brought to pass additional prosecutions for treason. The Civil War, of course, was most prolific of treason, but the Presi dent's proclamation of 1868 of pardon and amnesty brought all treason prosecutions to an end. The World War developed no treason cases, though numerous prosecutions for seditious utter ances and conduct were initiated under the Espionage and Trad ing with the Enemy Acts. The most famous cases of treason con cerned Aaron Burr, John Brown of Harper's Ferry fame, and Jef ferson Davis, president of the Confederate States. Brown was con victed and hanged; the President's proclamation of pardon re prieved Davis before he came to trial. (J. M LA.)