The English and Revolutionary Roots that Defined Treason in America (and why we shouldn’t change it)
By: James L. T.
Tags: Politics, History, America, Treason, Trump

In order to understand the present, sometimes it necessitates the reflection of the past. It’s easy to look at the Article 3, Section 3 of the constitution and say “oh, well I think that definition is outdated. Different times called for different measures.” Sure, that’s a good argument — sometimes — but this isn’t one of those times. It should not be silently swept under the worn rugs of history the fact that treason is the only crime clearly defined in the constitution, and it is extremely specific.

Informing the founding fathers in their decision to narrowly craft a definition of treason was the extremely broad definition of treason regularly abused by kings and queens of Britain.

Going all the way back to the middle of the 14th century, The Treason Act of 1351 brought with it two levels of treason, high and petty, and with it an attempt to reign in abuses of the monarchy in the Kingdom of England. Prior to this, with little exception nearly any person, for any reason, could have their head lobbed off for treason.

Among the historical acts of high treason include, but are not limited to are: planning to kill the king, interfering in the line of succession, committing adultery with the queen, her eldest unmarried daughter, or the wife to the heir to the throne. Among other acts included counterfeiting money, and effectively speaking ill against the monarchy, and killing judges and chancellors. Petty treason involved “subordinates” killing “superiors” of which examples included wives killing husbands, servants killing lord, or commoners killing lords and bishops. In effect, high treason was against the throne, and petty treason was against the noble.

The most important element of the Treason Act of 1351 is that it attempted to limit the crown from creating new conceptions of treason and instead legislated that this was an act of parliament. This, however, did little in the grand scheme of things to prevent abuse, or tyranny.

In 1397, near the end of the reign of Richard II, numerous new offenses were borne out that included reversing previous legal judgments against traitors, and creating a prejudicial commission. In what Shakespearean plays are made of, Richard II also made it treason to pursue to repeal these laws, and treason to plan to kill or depose him. Two years later, he was deposed by his first cousin Henry Bolingbroke who would then become King Henry IV who then immediately saw the revocation of said acts and returned the acts of treason those set forth in the 1351 act.

During the reign of King Henry VIII, however, there were significantly more additions to what constituted treason that included things such as refusing to acknowledge or denying the Sovereign as the supreme head of the church, arson, defacing money, marrying into the monarchy’s family without permission, extortion. Among other things, it was treason for Welshmen to steal cattle. More pertinent to this conversation, it was treason for twelve people to riot and not disperse upon being ordered to do so. Henry VIII’s, successor, Edward VI rescinded nearly all of these.

Although a theme emerges among the various rulers of England around deposing the monarch and defacing money, Queen Elizabeth I saw the passage of the Jesuits etc., Act of 1584 that required Roman Catholic priests to swear an oath to the queen or leave the country within forty days or be charged with high treason. During American colonial times, treason was also often used to squash rioters. Prior to the American Revolution, treason was also committed if individuals refused to follow laws set forth by specific colonial charters.

It’s important to remember that although colonial Americans brought with them English common law, they were often times, by and large, making it up as they went along. But it wasn’t this “adapt as we go” that ultimately whittled down the definition of treason — it was the American Revolution. Bradley Chapin (1960) does a remarkable job explaining all of this in his article Colonial and Revolutionary Origins of the American Law of Treason. In it he explains the dearth of substantive law on treason prior to the revolution, followed by significant numbers of arrests, trials, and pardons for treason during the revolution. The most important take away, though, is that…:

“Treason, then, was an incident of battle and an act, not a state of mind. The vast majority of cases came under the head of adhering to the enemy, giving him aid and comfort. The common acts of treason were joining the British army, serving as a recruiting agent, or giving substantial aid to the King’s forces. Trading with the enemy was not generally regarded as treason. Not a disloyal intent, but an overt, substantial adherence amounted to treason.” (Pg. 14–15)

Benedict Arnold ( Credit: National Archives and Records Administration)

One of the most well known examples of treason during the American Revolution is Benedict Arnold. During the revolution, Arnold would distinguish himself as a patriot, a revolutionary, and an intelligent officer in combat assisting in such battles as the capture of Fort Ticonderoga. Later, he would become engaged to Peggy Shippen who was born into a wealthy family who favored the monarchy.

Arnold would later be granted command over West Point at which time Arnold agreed to give over to the British for 20,000 pounds. This plot was foiled by the American’s, and instead Arnold switched sides and fought for the British army. This was treason in its entirety.

Two other points made by Chapin need to be reiterated here. First, the revolutionaries were keenly aware that not everyone was on their side, and were careful not to prescribe citizenship to everyone. As a result, there was a period of time between the ratification of the Declaration of Independence and legal charges of treason. There was effectively a period of time to allow people to elect to be on the American side, or the British. The second, and arguably more important point, is that treason was to some extent a regional affair that took place after the fighting broke out. For example, New Jersey saw the first large scale trials take place after George Washington retreated. Chapin remarks that what ensued was a number of individuals swearing allegiance to General Howe, who was leading the British fight against the colonial insurrection. Most importantly, only those who gave “direct aid to the enemy” were charged with treason. (Pg. 11–12).

Finally, I think it is pertinent to end this section by quoting Federalist Paper #43, written by James Madison. As you’ll recall, Madison was a significant person of interest in the formation of the constitution, and the Federalist Papers serve as sort of an “owners manual” to help shed light on the specific parts of the constitution that may seem vague. So, here’s what Madison had to say about it:

“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 attained. ‘’As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

Relevant to this dialogue is the fact that Article III of the constitution establishes the role of the Judiciary. It should be particularly striking that the only crime enumerated in the constitution is located under the protection of the judiciary. This is important because it fundamentally protects people from being abhorrently charged with treason from the president, and it protects people from the legislature. This is a direct reflection of the belligerent monarchy, and in direct contradiction to the way that the British parliament attempted to handled it, and for good reason.

For example, had the framers of the constitution enumerated treason in Article II, then its enforcement, and therefore interpretation, would have been left up to the President. Having witnessed the atrocious nature of monarchy, the framers knew that this simply would be epitomizing stupidity. Likewise, had treason been defined in Article I, the framers knew that during certain periods in history all it would take is a more vocal and radical Congress to effectively act as British parliament during the previous two centuries — just make up new offences for political expedience whenever someone needs to get hosed, specifically, your vocal political adversaries.