Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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TREASON (IN U. S. HISTORY). Under the confederation there was no such legal offense as treason against the United States, since there was no such thing as allegiance to the United States. (See ALLEGIANCE, I.) Treason and allegiance had reference only to the state. A remnant of this feeling made the definition of treason, when it was first introduced into the convention of 1787, Aug. 6, consist in "levying war against the United States, or any of them, and in adhering to the enemies of the United States, or any of them." The clause was fully debated, Aug. 20, and changed to its present form. (See CONSTITUTION, Art. III., § 3.) But all the debaters professed themselves dissatisfied with it. Gouverneur Morris acutely pointed out the fact, that "in case of a contest between the United States and a particular state, the people of the latter must be traitors to one or the other authority." But a motion to give congress the "sole" power to define the punishment of treason was lost, five states voting for it, and six against it. Seldom has the omission of a single word had more momentous effects. In this case it left to congress and the states, as almost all the speakers acknowledged, a concurrent power to punish for treason; and so it enabled a seceding state to offer to its minority a choice between treason against the state and treason against the United States. Had the vote been six states to five for the insertion of the word, the state sovereignty and secession arguments would hardly have been worth the trouble of refuting.


—Had the constitution given to congress the "sole" power to define the punishment of treason, the states would have been remitted, for protection against such domestic disturbances as Dorr's rebellion (see that title), to a simple law against seditious assemblages; and the protection would have been efficient. As it is, most of the states have inserted in their constitutions a provision that "treason against the state of—shall consist only in levying war, etc.," following the constitution of the United States. These provisions have always been practically in nubibus: there has hardly been a case of indictment for treason against a state, excepting the action of Rhode Island in the Dorr case, and that came to nothing. But they fostered the idea of allegiance to a state, and thus carried into secession the multitude who disliked secession, but dreaded to commit treason against the state.


—At the end of the rebellion there were no prosecutions for treason. It has been roundly asserted that the reason for this was the consciousness of the government of the United States that it had been illegally suppressing a misnamed rebellion, that treason could only hold against a state, and that Jefferson Davis and his associates had committed no crime and engaged in no treason, in any sense known to the constitution or its framers. Those who so argue forget that Mr. Lavis, at least, was no prisoner of war; that his surrender was unconditional and in a territory under military occupation; and that, if there had been any such impotent spite against him as this theory assigns to the government, a drum head court martial and a file of men would quickly have made it patent, treason or no treason. The fact seems to be that his escape was due entirely to lack of spite. The collapse of the rebellion had been too complete to allow of spite. The nation stood aghast as it realized the thoroughness of its work; and its controlling impulse was to efface as rapidly as possible all evidences of the conflict. Treason trials would have been a festering sore in the body politic, and they were avoided.


—There can be no doubt that this policy was just, as well as wise. For seventy years before 1860, men who did not realize the full force of what they said had been boasting of the "voluntary" nature of the union, in contrast with the effete despotisms of Europe. (See NATION.) The nation's long laches in asserting its paramount authority in the last resort gave Jefferson Davis and his associates an exemption from the animus of treason which can never be claimed again. All men have now had fair warning, as Jefferson Davis had not in 1860, that the Union is not "voluntary," so long as the nation is determined to maintain it; and that any attempt to break it up is treason to the United States, even if it is obedience to a state. It might be that a future rebellion would be suppressed with a similar generous forbearance from ultimate vengeance; but the chance is an uncommonly small one.


—The act of April 30, 1790, made death the penalty for treason, as defined in the constitution, on conviction by "confession in open court, or on the testimony of two witnesses to the same overt act." It also made fine and imprisonment the punishment of misprision of treason, the concealment of it. For seventy years this act was sufficient. There were few trials under it, the principal one being that of Burr (see his name); and these were practically failures. In 1861 an act was passed making conspiracy to oppose the laws or seize the property of the United States a high crime, but this was punishable only by fine and imprisonment. The act of July 17, 1862, provided, that, if any person should thereafter commit the crime of treason against the United States, his slaves, if any, should be declared free, and he himself should suffer death, or fine and imprisonment, at the discretion of the court; that any one convicted should forever be incapable of holding office under the United States; and that it should be the duty of the president to seize and apply to the use of the army the property of six classes of leaders of the rebellion, who seem to have been considered prima facie guilty of treason. There were, finally, no southern prosecutions under it. Davis and others were indicted, but never brought to trial. The few prosecutions were in northern states.


—See Story's Commentaries, §§ 1290, 1790; ib., § 1795 (for law cases); Whiting's War Powers (10th ed.), 95; the state sovereignty view of treason is in Bledsoe's Is Jefferson Davis a Traitor? and "Centz"'s Republic of Republics, 413 foll., (see also index under Treason); Indianapolis Treason Trials; for the indictment against Davis see Schuckers' Life of Chase, 534; the act of April 30, 1790, is in 1 Stat. at Large, 112; the act of July 17, 1862, is in 12 Stat. at Large, 589.


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