Constitutional Journal

-Monday, Aug. 20, 1787

Last Friday the Convention delegates turned away from European tradition and granted Congress, not a head of state, the exclusive power to declare war.

REACHING back to 14th-century England, the Convention today narrowly defined the crime of treason and gave Congress the power to punish anyone who in open court confesses or, with the testimony of two witnesses, is convicted of treason. The definition is: ``levying war against them [the United States], or in adhering to their enemies giving them aid and comfort.''

The wording of today's treason section is taken in part from the old statute of 1352 by Edward III of England and the statute of 1552 by Edward VI requiring two witnesses to an act of treason. One observer noted that today's session involved semantic hair-splitting and gave lawyer delegates an opportunity to display their legal learning.

Lawyer James Wilson of Pennsylvania summed up the legal and political thicket of the treason issue: ``Much may be said on both sides. Treason may sometimes be practiced in such a manner, as to render proof extremely difficult - as in a traitorous correspondence with an Enemy.''

Dr. Benjamin Franklin noted that, in the past, prosecutions for treason were used for political reasons and often involved perjured testimony against innocent defendants. In England the King's political enemies were charged with treason, and a person's religion was often regarded as treason. In the last 10 years in States such as North Carolina, treason prosecutions have been numerous, for offenses ranging from being an officer under the King to ``petty treason'' offenses of murder and robbery.

Gouverneur Morris of Pennsylvania warned, ``It is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason.''

Col. George Mason of Virginia compounded the complexity of the treason issue when he insisted that an act of treason may be against a single State but not the entire United States. He pointed to the rebellion in Virginia by Nathaniel Bacon in 1676, a century before the American Colonial rebellion against Great Britain. James Madison of Virginia warned that treason against a State and treason against the United States meant ``the same act may be twice tried & punished by the different authorities.''

John Dickinson of Delaware insisted that treasonous war and insurrection against one State must be defined as against the whole nation. ``The Constitution should be made clear on this point,'' he added.

It took seven separate votes to arrive at the precise language for the 54 words of the treason section. One observer later pointed out that, by laboring so long over the precise language, the delegates hope to keep the issue of treason from becoming a weapon in the arsenal of tyranny.

Besides limiting the power of Congress to use the issue of treason as a political weapon, the Convention also limited the new national legislature in six other areas. One of those areas is to forbid the Congress from suspending the writ of habeas corpus except in cases of rebellion or invasion.

The Convention also unanimously agreed to give the new government the power ``to make all laws necessary and proper for carrying into execution the powers vested by this constitution in the government of the United States, or in any department or office thereof.''

These day-by-day reports on the Constitutional Convention will continue tomorrow.