Article 3, Section 3, Clauses 1 and 2

[Volume 4, Page 436]

Document 19

James Wilson, Of Crimes Immediately against the Community, Lectures on Law

1791Works 2:663--69

I have hitherto considered crimes, which wound the community through the sides of individuals: I now come to consider one which directly and immediately aims a stab at the vitals of the community herself. I mean treason against the United States, and against the state of Pennsylvania.

Treason is unquestionably a crime most dangerous to the society, and most repugnant to the first principles of the social compact. It must, however, be observed, that as the crime itself is dangerous and hostile to the state, so the imputation of it has been and may be dangerous and oppressive to the citizens. To the freest governments this observation is by no means inapplicable; as might be shown at large by a deduction, historical and political, which would be both interesting and instructive. But, at present, we have not time for it.

To secure the state, and at the same time to secure the citizens--and, according to our principles, the last is the end, and the first is the means--the law of treason should possess the two following qualities. 1. It should be determinate. 2. It should be stable.

It is the observation of the celebrated Montesquieu, that if the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary power. In monarchies, and in republicks, it furnishes an opportunity to unprincipled courtiers, and to demagogues equally unprincipled, to harass the independent citizen, and the faithful subject, by treasons, and by prosecutions for treasons, constructive, capricious, and oppressive.

In point of precision and accuracy with regard to this crime, the common law, it must be owned, was grossly deficient. Its description was uncertain and ambiguous; and its denomination and penalties were wastefully communicated to offences of a different and inferiour kind. To lop off these numerous and dangerous excrescences, and to reduce the law on this important subject to a designated and convenient form, the famous statute of treasons was made in the reign of Edward the third, on the application of the lords and commons. This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature, and fortified, as successive occasions required, by the able and the honest assistance of art, it has been impregnable by all the rude and boistrous assaults, which have been made upon it, at different quarters, by ministers and by judges; and as an object of national security, as well as of national pride, it may well be styled the legal Gibraltar of England.

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Little of this statute, however, demands our minute attention now; as the great changes in our constitutions have superceded all its monarchical parts. One clause of it, indeed, merits our strictest investigation; because it is transcribed into the constitution of the United States. Another clause in it merits our strongest regard; because it contains and holds forth a principle and an example, worthy of our observance and imitation.

After having enumerated and declared all the different species of treason, which it was thought proper to establish, the statute proceeds in this manner: "and because many other cases of like treason may happen in time to come, which, at present, a man cannot think or declare; it is assented, that if any other case, supposed treason, which is not specified above, happen before any judges, they shall not go to judgment in such case; but shall tarry, till it be shown and declared before the king and his parliament, whether it ought to be judged treason or other felony."

The great and the good Lord Hale observes upon this clause, "the great wisdom and care of the parliament, to keep judges within the bounds and express limits of this statute, and not to suffer them to run out, upon their own opinions, into constructive treasons, though in cases which seem to have a parity of reason"--cases of like treason--"but reserves them to the decision of parliament. This," he justly says, "is a great security as well as direction to judges; and a great safeguard even to this sacred act itself."

It is so. And it was all the safeguard which the parliament, by the constitution, as it is called, of England, could give. It was a safeguard from the arbitrary constructions of courts: it was a shelter from judicial storms: but it was no security against legislative tempests. No parliament, however omnipotent, could bind its successours, possessed of equal omnipotence; and no power, higher than the power of parliament, was then or is yet recognised in the juridical system of England. What was the consequence? In the very next reign, the fluctuating and capricious one of Richard the second, the parliaments were profuse, even to ridicule--if, in such a serious subject, ridicule could find a place--in enacting new, tyrannical, and even contradictory treasons. This they did to such an abominable degree, that, as we are told by the first parliament which met under his successour, "there was no man who knew how he ought to behave himself, to do, speak, or say, for doubt of the pains of such treasons."

In the furious and sanguinary reign of Henry the eighth, the malignant spirit of inventing treasons revived, and was carried to such a height of mad extravagance, that, as we have seen on another occasion, the learned as well as the unlearned, the cautious as well as the unwary, the honest as well as the vicious, were entrapped in the snares. How impotent, as well as cruel and inconsistent, is tyranny in the extreme! His savage rage recoiled, at some times, upon those who were most near to him; at other times, with more justice, upon himself. The beautiful and amiable Boleyn became the victim of that very law, which her husband, in his fit of lustful passion--for the monster was callous to love--made for her security. When the enormities of his life and reign were drawing towards their end, his physicians saw their tyrant in their patient; and they refused to apprize him of his situation, because he had made it treason to predict his death.

Admonished by the history of such times and transactions as these, when legislators are tyrants or tools of tyrants; establishing, under their own control, a power superiour to that of the legislature; and availing themselves of that power, more permanent as well as superiour; the people of the United States have wisely and humanely ordained, 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."

In this manner, the citizens of the Union are secured effectually from even legislative tyranny: and in this instance, as in many others, the happiest and most approved example of other times has not only been imitated, but excelled. This single sentence comprehends our whole [law] of national treason; and, as I mentioned before, is transcribed from a part of the statute of Edward the third. By those who proposed the national constitution, this was done, that, in a subject so essentially interesting to each and to all, not a single expression should be introduced, but such as could show in its favour, that it was recommended by the mature experience, and ascertained by the legal interpretation, of numerous revolving centuries.

To the examination, and construction, and well designated force of those expressions, I now solicit your strict attention.

"Treason consists in levying war against the United States." In order to understand this proposition accurately and in all its parts, it may be necessary to give a full and precise answer to all the following questions. 1. What is meant by the expression "levying war?" 2. By whom may the war be levied? 3. Against whom must it be levied?

To each of these questions I mean to give an answer--if possible, a satisfactory answer; but not in the order, in which they are proposed. I begin with the second--by whom may the war spoken of be levied? It is such a war as constitutes treason. The answer then is this: the war must be levied by those who, while they levy it, are at the same time guilty of treason. This throws us back necessarily upon another question--who may commit treason against the United States? To this the answer is--those who owe obedience to their authority. But still another question rises before us--who are they that owe obedience to that authority? I answer--those who receive protection from it. In the monarchy of Great Britain, protection and allegiance are universally acknowledged to be rights and duties reciprocal. The same principle reigns in governments of every kind. I use here the expression obedience instead of the expression allegiance; because, in England, allegiance is considered as due to the natural, as well as to the moral person of the king; to the man, as well as to the represented authority of the nation. In the United States, the authority of the nation is the sole object on one side. An object strictly corresponding to that, should be the only one required on the other side. The object strictly corresponding to authority is, obedience to that authority. I speak, therefore, with propriety and accuracy unexceptional, when I say, that those who owe obedience to the [Volume 4, Page 438] authority, are such as receive the protection, of the United States.

This close series of investigation has led us to a standard, which is plain and easy, as well as proper and accurate--a standard, which every one can, without the possibility of a mistake, discover by his experience, as well as by his understanding--by what he enjoys, as well as by what he sees. Every one has a monitor within him, which can tell whether he feels protection from the authority of the United States: if he does, to that authority he owes obedience. On the political, as well as on the natural globe, every point must have its antipode. Of obedience the antipode is treason.

I have now shown, by whom the war may be levied. On this subject, a great deal of learning, historical, legal, and political, might be displayed; and changes might easily be rung on the doctrines of natural, and local, and temporary, and perpetual allegiance. I purposely avoid them. The reason is, that so much false is blended with so little genuine intelligence, as to render any discovery you would make an inadequate compensation for your trouble in searching for it. The rights and duties of protection and obedience may, I think, in a much more plain and direct road, be brought home to the bosom and the business of every one.

I now proceed to another question--what is meant by the expression "levying war?" From what has been said in answer to the former question, an answer to this is so far prepared as to inform us, that the term war cannot, in this place, mean such a one as is carried on between independent powers. The parties on one side are those who owe obedience. All the curious and extensive learning, therefore, concerning the laws of war as carried on between separate nations, must be thrown out of this question. This is such a war as is levied by those who owe obedience--by citizens; and therefore must be such a war, as, in the nature of things, citizens can levy.

The indictments for this treason generally describe the persons indicted as "arrayed in a warlike manner." As where people are assembled in great numbers, armed with offensive weapons, or weapons of war, if they march thus armed in a body, if they have chosen commanders or officers, if they march with banners displayed, or with drums or trumpets: whether the greatness of their numbers and their continuance together doing these acts may not amount to being arrayed in a warlike manner, deserves consideration. If they have no military arms, nor march or continue together in the posture of war; they may be great rioters, but their conduct does not always amount to a levying of war.

If one, with force and weapons invasive or defensive, hold and defend a castle or fort against the publick power; this is to levy war. So an actual insurrection or rebellion is a levying of war, and by that name must be expressed in the indictment.

But this question will receive a farther illustration from the answer to the third question; because the fact of levying war is often evinced more clearly from the purpose for which, than from the manner in which, the parties assemble. I therefore proceed to examine the last question--against whom must the war be levied? It must be levied against the United States.

The words of the statute of treasons are, "if any one levy war against the king." I have before observed that, in England, allegiance is considered as due to the natural, as well as to the moral person of the king. This part of the statute of treasons has been always understood as extending to a violation of allegiance in both those points of view--to the levying of war not only against his person, but also against his authority or laws. The levying of war against the United States can, for the reasons already suggested, be considered only in the latter view.

The question now arising is the following--Is such or such a war levied against the United States? This question, as was already intimated, will be best answered by considering the intention with which it was levied. If it is levied on account of some private quarrel, or to take revenge of particular persons, it is not a war levied against the United States. A rising to maintain a private claim of right; to break prisons for the release of particular persons, without any other circumstance of aggravation; or to remove nuisances which affect, or are thought to affect, in point of interest, the parties who assemble--this is not a levying of war against the United States. Insurrections in order to throw down all inclosures, to open all prisons, to enhance the price of all labour, to expel foreigners in general, or those from any single nation living under the protection of government, to alter the established law, or to render it ineffectual--insurrections to accomplish these ends, by numbers and an open and armed force, are a levying of war against the United States.

The line of division between this species of treason and an aggravated riot is sometimes very fine and difficult to be distinguished. In such instances, it is safest and most prudent to consider the case in question as lying on the side of the inferiour crime.

Treason consists in "adhering to the enemies of the United States, giving them aid and comfort." By enemies, are here understood the citizens or subjects of foreign princes or states, with whom the United States are at open war. But the subjects or citizens of such states or princes, in actual hostility, though no war be solemnly declared, are such enemies. The expressions "giving them aid and comfort" are explanatory of what is meant by adherence. To give intelligence to enemies, to send provisions to them, to sell arms to them, treacherously to surrender a fort to them, to cruise in a ship with them against the United States--these are acts of adherence, aid, and comfort.

To join with rebels in a rebellion, or with enemies in acts of hostility, is treason in a citizen, by adhering to those enemies, or levying war with those rebels. But if this be done from apprehension of death, and while the party is under actual force, and he take the first opportunity which offers to make his escape; this fear and compulsion will excuse him.

In England, the punishment of treason is terrible indeed. The criminal is drawn to the gallows, and is not suffered to walk or be carried; though usually a hurdle is allowed to preserve him from the torment of being dragged on the ground. He is hanged by the neck, and is [Volume 4, Page 439] then cut down alive. His entrails are taken out and burned, while he is yet alive. His head is cut off. His body is divided into four parts. His head and quarters are at the disposal of the king.

In the United States and in Pennsylvania, treason is punished in the same manner as other capital crimes.

A traitor is hostile to his country: a pirate is the enemy of mankind--hostis humani generis.

Piracy is robbery and depredation on the high seas; and is a crime against the universal law of society. By declaring war against the whole human race, the pirate has laid the whole human race under the necessity of declaring war against him. He has renounced the benefits of society and government: he has abandoned himself to the most savage state of nature. The consequence is, that, by the laws of self defence, every community has a right to inflict upon him that punishment, which, in a state of nature, every individual would be entitled to inflict for any invasion of his person or his personal property.

"If any person," says a law of the United States, "shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punished with death; every such offender shall be deemed, taken and adjudged to be a pirate and felon, and being thereof convicted shall suffer death."

By the ancient common law, piracy committed by a subject was deemed a species of treason. According to that law, it consists of such acts of robbery and depredation upon the high seas, as, committed on the land, would amount to a felony there. The law of general society, as well as the law of nations, is a part of the common law.

The Founders' Constitution
Volume 4, Article 3, Section 3, Clauses 1 and 2, Document 19
The University of Chicago Press

The Works of James Wilson. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap Press of Harvard University Press, 1967.