How History Made The Constitution


Plainly, in criminal matters, the convention’s major concern was the oppression latent in the national government and especially the national courts. The ratifying debates and anti-Federalist writings make plain that the Revolutionary experience led Americans to fear that a powerful central government would: (1) establish a variety of new criminal definitions, particularly with respect to treason; (2) haul the accused long distances to trial, perhaps to the far-off seat of the central government; and (3) abolish trial by jury.

These were not frivolous imaginings. In England treason had been historically a plastic crime. During Henry VIII’s reign, for example, a statute of 1534 made it treason not to believe Princess Mary illegitimate and Princess Elizabeth legitimate; an act of 1536 made believing either of them legitimate treason; by an act of 1543 believing either of them illegitimate was treason.

Among the less unusual treasonable offenses, first enumerated in legislation of 1352 (familiarly known as the “Statute of Edward III”), were “compassing or imagining” (i.e., attempting or contriving) the death of the king, queen, or heir apparent; violating the king’s companion, his eldest unmarried daughter, or the wife of his eldest son; levying war against the king, adhering to his enemies, or giving them aid or comfort; and killing one of the high judicial officers.

The chronically unsettled state of the English royal succession fomented frequent accusations, trials, and executions. Occasionally the offense was unquestionably statutory treason; more often, as in the cases of, for example, Anne Boleyn, Archbishop Thomas Cranmer, and Sir Walter Raleigh, the root of the matter was simply royal dissatisfaction.

The cruel saga of English treason law was familiar lore to the delegates. They knew the history, they knew the cases, they knew the statutes, and they knew the great treatises by legal scholars. Treason, in fact, had held a particular personal interest because, as Irving Brant has observed of the delegates to the Constitutional Convention, “virtually every member had been guilty of it less than ten years earlier.”

Against the bloody historical backdrop two Englishmen stood out starkly: Titus Oates and Algernon Sidney. Oates had been the chief informer and master of machinations in the so-called Popish Plot, an orgy of perjury from 1678 to 1682 that fed on England’s anti-Catholicism.

With his confederates Oates manufactured evidence against a score of men—nobles, bourgeois, and commoners—ultimately sending many to the scaffold for plotting the king’s death and for treasonably communicating with Roman Catholics. When during the Philadelphia debates Benjamin Franklin said that “prosecutions for treason were generally virulent; and perjury too easily made use of against innocence,” his unspoken reference was plain.

Sidney, a noble-born apostle of republicanism, had fought with the parliamentary army against Charles I but split with Cromwell over the Protector’s usurpations. After the Restoration he first lived abroad, then contracted an uneasy peace with Charles II and returned to England, where he wrote Discourses Concerning Government, an exposition of Whig philosophy that the American radicals took as a political handbook. Jefferson, indeed, acknowledged it as a philosophical source of the Declaration of Independence.

Indicted for treasonably plotting the king’s death, Sidney had been tried before the malevolent Chief Justice George Jeffreys. Although only one witness (and that a perjurious informer) testified against Sidney, Jeffreys permitted the crown to rely on the unpublished manuscript of the Discourses, seized from Sidney’s desk. The language, abstract and academic, served the prosecutor as evidence of the assassination plot.

Sidney went to the block, but his writing remained, as Jefferson said, “the best elementary book on the principles of government, as founded in natural right, which has ever been published in any language.”

Responding to five centuries of English history and endorsing Madison’s observation that “new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other,” the delegates narrowly defined treason against the United States as “only...levying War against them, or...adhering to their Enemies, giving them Aid and Comfort.”

In silent special tribute to Sidney, the convention excluded conviction of treason “unless on the Testimony [i.e., the oral statement under oath, subject to cross-examination] of two Witnesses to the same overt Act, or on Confession in open Court.” The last clause, mindful of confessions spawned by the rack and the bilbo, guaranteed that to convict himself, the defendant must confess publicly.