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  The Unfinished Revolution  

Treason in the Revolution
By David Maxey

Treason is a political crime committed against a state or government to which the person charged with treason owes a duty of allegiance.  The dictionary defines treason as a “violation of allegiance toward one’s country or sovereign, especially the betrayal of one’s country by waging war against it or by consciously and purposely acting to aid its enemies.”  (American Heritage Dictionary of the English Language) 

The men signing the Declaration of Independence were acutely aware of the risk they ran of committing treason against the British King to whom, but a short time before, they were firmly bound as subjects.  They enumerated in the Declaration a “long train of abuses and usurpations” which they contended dissolved all political connections between the former colonies and Great Britain and absolved them from allegiance to the British Crown. 

The value of that defense remained to be determined in a civil war.  As Thomas McKean, a signer of the Declaration and later Chief Justice of the Pennsylvania Supreme Court, observed in an early case that came before him as a judge, “In civil wars, every man chooses his party; but generally that side which prevails arrogates the right of treating those who are vanquished as rebels.”  Benjamin Franklin made the point more tellingly when, as he was about to sign the Declaration, he remarked, “We must, indeed, all hang together, or most assuredly we shall hang separately.” 

In suggesting that hanging might be the fate of those who signed the Declaration, Franklin was choosing an easier end than the one traditionally meted out in England to traitors.  Traitors were subject to the ferocious and gruesome punishment of being hanged, drawn, and quartered, reflecting the ancient judgment that a single death was an inadequate response to the crime of plotting the king’s death or seeking to overturn the established order.

In the weeks preceding the Declaration of Independence, the Continental Congress became concerned about colonists, often referred to as loyalists or Tories, who continued to side with the Crown.  Congress passed a resolution in June 1776 urging the legislatures of the “several United Colonies” to enact legislation punishing all persons resident within the jurisdiction of each colony who, entitled to the protection of its laws, nevertheless waged war, or adhered to the King of Great Britain, or gave aid and comfort to the British army. 

The states moved haphazardly to adopt and enforce such legislation.  Pennsylvania initially imposed relatively moderate punishment for treason in providing that convicted traitors be imprisoned for a term not exceeding the duration of the war, but a few months later in February 1777, it enacted a comprehensive treason statute that not only spelled out what constituted treason but also prescribed as punishment the death penalty and forfeiture to the Commonwealth of all the property of the convicted traitor.  Among the acts defined as treasonable were accepting a commission from the enemy; joining the enemy’s army, or encouraging others to enlist in that army; and providing the enemy aid or comfort, whether in furnishing ammunition and arms or in delivering valuable intelligence. 

Pennsylvania would be a testing ground for determining who was guilty of treason against the newly formed state and the United States.  For nine months from late September 1777 to mid-June 1778, the city of Philadelphia was occupied by the British; during that period many loyalists openly supported the British cause.  In addition, Quakers, committed as a matter of bedrock religious belief to refrain from armed conflict in any way, appeared in patriot eyes to be Tories in pious disguise, and possibly traitors.

After the British evacuated Philadelphia and the Americans regained control of the city, more than twenty defendants were tried before a court and jury on the charge of treason.  Only two of them were found guilty and hanged in the city commons or Center Square.  Both of these men, Abraham Carlisle and John Roberts, were Quakers who, contrary to the peace testimony of the Society of Friends, had unwisely identified themselves with the British during the occupation of Philadelphia.  Whether either of them merited execution has, however, been debated ever since, especially because a great outpouring of sympathy and petitions for clemency occurred prior to their hanging. 
James Wilson, another signer of the Declaration and a skilled lawyer who would become a member of the first Supreme Court of the United States, defended both Carlisle and Roberts at their trials in Philadelphia.  Wilson would have the opportunity to measure the popular hostility directed toward these and other clients of his charged with treason, as well as toward himself as their counsel.  During the constitutional convention of 1787, Wilson played an influential role in drafting the United States Constitution and the only provision in that document which defines treason in specific terms a crime and provides the requirements of proof for conviction. 

Article III, section 3, of the constitution reads, in part: “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.”

Informed by his own experience as counsel to defendants in the treason trials during the Revolution, Wilson would later write of treason 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.”  James Madison made even clearer the concern of the framers when he wrote in The Federalist No. 43 that the constitutional convention sought to establish a barrier to “new-fangled and artificial treasons” that “violent factions, the natural offspring of free government,” might rely on in times of national turmoil. 

As a consequence, in the history of the United States, few convictions have been sought, and fewer still obtained, for the commission of treason.  Nevertheless, the constitutional provision defining treason and the strict evidence required to prove it in court has not prevented Congress from enacting legislation prohibiting conduct which, while not technically treason, has exposed those found guilty of engaging in it to severe penalties, sometimes including death. 

The Sedition Act of 1798 is one such example of an early attempt to circumvent the limitations in the treason clause of the constitution by prohibiting conspiracies “to impede the operation of any law of the United States” or the publication of “any false, scandalous and malicious writing or writings against the government of the United States.”   Much later, the U.S. government accused Julius and Ethel Rosenberg of passing secret information about the design of the atomic bomb to the Soviet Union, this country’s ally during World War II.   After being tried and found guilty, the Rosenbergs were executed in 1953, not for treason but for spying under the Espionage Act of 1917.

There are other nations which define treason more broadly as including various categories of conduct deemed prejudicial to the maintenance of public order or challenging the government in power.

Questions to consider:
1. Why is treason a capital crime in the United States, punishable by death?  To be guilty of treason should the person charged with committing the crime have been responsible for causing the death of another person or persons? 

2. What concern or concerns did the framers of the U. S. Constitution have about the crime of treason?  Was there anything in their experience to persuade them that a government in power might resort to treason trials as a means of punishing political opponents?  Do you think that such a risk might exist today? 

Did the framers of the constitution succeed in eliminating or controlling that risk?  How specifically did they try to do so?

3.  Does it constitute treason for an American citizen to pass valuable military secrets to another country with which the United States is not at war?

4. Who may be held guilty as a traitor in a civil war?  Were the leaders of the Confederacy in our Civil War guilty of treason against the United States?

5. Can you name a person in American history who was clearly, in your opinion, guilty of treason against the United States, whether convicted or not?  What acts did that person commit that were treasonable?  Could that person’s guilt have been established in conformity with the strict constitutional requirements applicable to treason and its proof?

Further Reading:

Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins (Seattle: University of Washington Press, 1964)

G. S. Rowe, Embattled Bench: The Pennsylvania Supreme Court and the Forging of a Democratic Society, 1684-1809 (Newark, DE: University of Delaware Press, 1994), 237-49.


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