Article III, 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.

After authoring the Supreme Court’s decision in Ex Parte Bollman,1 in which the Court ordered the discharge of two of Aaron Burr’s associates, Chief Justice John Marshall presided over the treason trial of Burr. His ruling2 denying a motion to introduce certain collateral evidence bearing on Burr’s activities is significant both for rendering the latter’s acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief, Chief Justice Marshall’s ruling held that Burr, who had not been present at the assemblage on Blennerhassett’s Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage. Because the operation had been covert, such testimony was naturally unobtainable. The net effect of Marshall’s pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.3

) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later, a court held that participating in forcible resistance to the Fugitive Slave Law was not a constructive levying of war. United States v. Hanway, 26 F. Cas. 105 ( No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the Southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 ( 12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). While Sprott, Hanauer, Thorington, and Young discussed concepts concerning adhering to the United States’ enemies and giving enemies of the United States Aid and Comfort, these are not criminal cases. Instead, they dealt with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases did not, therefore, interpret the Constitution.

Footnotes

1

8 U.S. (4 Cr.) 75 (1807).

2

United States v. Burr, 8 U.S. (4 Cr.) 469, Appx. (1807).

3

There have been lower court cases in which the Government obtained convictions of treason. Following the Whiskey Rebellion, the Government obtained convictions of treason based on a ruling that forcible resistance to the Government enforcing revenue laws was a constructive levying of war. United States v. Vigol, 29 F. Cas. 376 ( No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 F. Cas. 1277 ( No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 F. Cas. 826, 924 ( Nos.

5126, 5127

) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later, a court held that participating in forcible resistance to the Fugitive Slave Law was not a constructive levying of war. United States v. Hanway, 26 F. Cas. 105 ( No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the Southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 ( 12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). While Sprott, Hanauer, Thorington, and Young discussed concepts concerning adhering to the United States’ enemies and giving enemies of the United States Aid and Comfort, these are not criminal cases. Instead, they dealt with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases did not, therefore, interpret the Constitution.