TREASON. Treason is the highest crime known to society, and traitors by the law of every country are liable to the severest punish ment. It is a crime directed against the very existence of the state itself and is, therefore, regarded as peculiarly odious. The ancient common law of England made a distinction be tween petit treason and high treason; thus it was petit treason for a wife to kill her hus band or a servant his master; it was high treason for a subject to kill or attempt to kill the king or queen or to levy war against the king or adhere to his enemies. But this dis tinction was never introduced into petit law. Here, what was known as petit treason was regarded as nothing more than murder. Iii England in early times judges sometimes declared offenses to be treasonable which were not so in fact. This was known as construc tive treason. To remove this abuse Parlia ment enacted during the reign of Edward III the famous Statute of Treasons, which defined the offense of treason under seven heads, the third of which was levying war against the king and the fourth of which was adhering to his enemies and giving them aid and comfort. The framers of the Constitution of the United States preferring not to leave to Congress or the courts the power to define the offense incorpo rated in the text of the Constitution itself (Art. III, sec. 3) the definition of treason. This section declares that "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.° It will be seen that this definition embodies parts three and four of the Statute of Edward III but does not embrace the other parts of the statute. The word °only° in the definition, said Chief Jus tice Chase, was intended to exclude from the criminal jurisprudence of the new republic the odious doctrine of constructive treason. Under this definition only two classes of acts are trea sonable: levying war against the United States i and adhering to its enemies, giving them aid and comfort. The Supreme Court has interpreted the first part of the definition to mean that in order to constitute treason there must be an actual levying of war, that is, there must be a body of men actually assembled for the purpose of effecting by force a treasonable purpose. When this condition exists all those who per form any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy are to be considered as traitors. But if there is an actual assemblage for this purpose it is not necessary that actual violence should take place in order to make the assemblage treasonable. The Federal courts have even held that an insurrection of armed men, the object of which was to suppress the excise offices and to pre vent by force and intimidation the execution of an act of Congress was levying war and as such was treason. It is more difficult to state the elements of the crime of "adhering to their enemies, giving them aid and comfort.° Mr.
Justice Field of the United States Supreme Court during the American Civil War charged a grand jury that °Whenever overt acts have been committed which, in their natural conse quences, if successful, would encourage and advance the interests of the rebellion, in judg ment of law aid and comfort are given.° In the recent case of Sir Roger Casement in England it was said in the indictment that "if a British subject commits an act which weakens or tends to weaken the power of the king and of the country to resist or to attack the enemies of the king and the country, that is in law the giving of aid to and comfort to the king's enemies?' Among the specific acts which have been held to come within the purview of the phrase quoted above are the selling of goods to and buying goods from the enemy government or its agents or forces; the communication of information to him with the purpose of aiding him; joining or offering to join his forces; delivering up of prisoners tohim; trading with the enemy under certain circumstances; acts which tend and are designed to defeat, ob struct or weaken our own arms; advising, in citing and persuading others to give aid and comfort to the enemy, etc. Under the Constitu tion the testimony of at least two witnesses to the overt act is necessary to convict. An "overt" act is one which is of a character susceptible of clear proof and not one which rests on mere inference or conjecture. But an overt act may consist of words as well as deeds and while the testimony of two witnesses to the act is neces sary to convict, it is not necessary to prove the intention. Nor is it necessary that the treasonable act should have been successfully performed. Thus the purchasing of a vessel, guns and ammunition for the purpose of using them in aid of a rebellion against the United States has been held to be a treasonable act.
Although treason is popularly regarded as a breach of allegiance it is now well settled that an alien as well as a citizen may commit trea son, since if domiciled in the country he owes it a local and temporary allegiance in return for the protection which he receives. Although the Constitution defines treason it does not prescribe the punishment but confers that power on Congress, subject to the condition that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. This limitation as to pun ishment was intended to prohibit the unjust early practice in England of cutting off the right heirs to inherit the property of a traitor. Under the provision of the Constitution the property of the traitor may be confiscated only during his lifetime; upon his death his prop erty reverts to his lawful heirs. In 1790 Con gress provided that any person convicted of treason should suffer death but the statutes as revised in 1909 proyide that the court in its discretion may substitute imprisonment at hard labor for not less than five years and a fine of not less than $10,000.