PART I

Definition of Treason

U.S. history owns claim to one of the most notorious traitors in modern society. His name is forever linked with treason and his story is well known.

Benedict Arnold, a trusted friend of George Washington, became disgruntled at lack of credit for his brilliance, bravery, and successes in battle and decided to sell out his soldiers and command post, West Point, New York, during the Revolutionary War, to the British for British gold, along with other benefits. (Sources differ as to the monetary amount.) His punishment? Although he escaped capture, Arnold died persona non grata in London, scorned even by the British.

Today, in the 21st century, when one thinks of treason, what is the first situation that comes to mind? Your mind? An American-born young person fighting with the Taliban against American soldiers in a Middle Eastern country? An American-born terrorist plotting on American soil? A multinational company, that began as a small American grown company, siding with a foreign government on some issue? A protester burning the American flag? An American political figure or political body yielding some of the nation's sovereign authority to an international governing body?

That situation or action, when it occurs, may shock you down to your red, white, and blue blood and bones, but is it really treason, a hanging offense unless pardoned by the President himself? Or is it a lesser felony that should be prosecuted as such? Or is it prosecutable at all?

Origin of Definition in Founding Documents

The obvious place to pinpoint the original American definition of treason and the intent of this country's Founding Fathers is in our founding documents: the Declaration of Independence, the Articles of Confederation, the U.S. Constitution, and, while not a document, but considered by historians to be one of the most important political works in our nation's history, the Federalist Papers. The Federalist Papers, authored by the Framers of the Constitution, James Madison and Alexander Hamilton, along with John Jay, argued the inadequacies of the Articles of the Confederation and the need for the U.S. Constitution.

The word "treason" is not found in the Declaration of Independence. However, to preclude and to defend against the accusation of treason, committed by the colonists against the British king, the authors of the Declaration announced to King George III and the rest of the world in 1776, that the colonies considered themselves absolved of allegiance to the British crown:

"That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do."

This concept of allegiance that the colonists absolved themselves of has played throughout history and still plays today a major role in determining whether treason has been committed.

Between the 1776 Declaration of Independence and the 1787 ratification of the U.S. Constitution, there were the Articles of Confederation, the short official title being the "Articles of Confederation and Perpetual Union".

Drawn up in 1777-78 by the delegates of the first 13 states, consisting of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland (Maryland was the last state to sign in 1781.), Virginia, North Carolina, South Carolina, and Georgia, the Articles of Confederation were thirteen articles that as a whole formed a "friendship" pact between these states.

All discussion of the legislative and political actions of the individual states regarding treason aside (This can be found elsewhere, one source in particular being Hurst's Chapter 3), the Articles of Confederation, like the Declaration of Independence, also do not contain a definition of treason. The actual definition does not appear until written later into the 1787 U. S. Constitution Article III. However, the Confederation Articles do bring up the issue of states' rights and their jurisdiction over treason in the Confederation's Article IV, which states:

"If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fl ed, be delivered up and removed to the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."

The only other mention of treason in the Articles of Confederation is in Article V, referring to the exclusion of treason from the protective privileges of members of Congress:

"Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on (sic) Congress, except for treason, felony, or breach of the peace."

The inadequacies of the Articles of Confederation led to work on the U.S. Constitution in 1787 by the Federalists, who were those in favor of a stronger central government.

The Framers (or authors/architects) of the Constitution were expressly authorized by the Confederation Congress to revise the Articles of Confederation with "alterations and provisions therein" that would render the new federal constitution "adequate to the exigencies of government and the preservation of the Union." (See the Federalist Papers essay Number 40.) Thus, the wording in the above Articles of Confederation regarding states' rights of jurisdiction over treason and exclusion of treason from congressional privileges is also used in the U.S. Constitution Article No. IV, Section 2 and Article No. I, Section 6.

And, in keeping with the 1776 quest for...