Constructive treason
Encyclopedia
Constructive treason refers to the judicial extension
of the statutory
definition of the crime of treason
. For example, the English Treason Act 1351
declares it to be treason "When a Man doth compass or imagine the Death of our Lord the King." This was subsequently interpreted by the courts to include imprisoning the king, on the ground that history had shown that when a king is held captive by a usurper, he often dies in captivity. Despite legislative efforts to restrict the scope of treason, judges and prosecutors in common law
jurisdictions still succeeded in broadening the reach of the offence by "constructing" new treasons.
itself. Its preamble states that Parliament
had decided to define treason by statute for the first time because the common law definition had expanded so widely (however this had not been constructive treason, since until 1351 treason had always been defined by judges, not by legislation). The Act ended with a clause which prohibited further judicial development of the offence:
As noted above, this was not entirely successful. From the seventeenth century, English courts refined and extended the law of treason, tolerated by Parliament, which sometimes even enshrined these new constructive treasons in new statutes — imprisoning the king became written into the Treason Acts of 1661 and 1795. By the nineteenth century, however, Parliament had established itself as the main source of new crimes, as the volume of legislation increased, and the ancient common law tradition of judges creating new crimes fell into disuse.
recognised the danger of what James Madison
called "new-fangled and artificial treasons." Therefore they intentionally drafted the treason clause of the US Constitution narrowly:
This avoided vague words like "compassing or imagining" which had given British judges and lawyers such latitude. The words "giving them aid and comfort" were added by the Committee of Detail
to further narrow the definition of treason. This was done not only to prevent judges from constructing new treasons, but also to prevent Congress from enacting new ones.
The constitutional definition did not immediately deter prosecutors from attempting to prosecute for levying war people who had not directly done so. However the Supreme Court resisted efforts to construe the definition more widely than its text appeared to allow. In Ex parte Bollman
(1807) the Supreme Court rejected arguments by prosecutors to the effect that enlisting an army of men against the United States could amount to levying war before they actually assembled. Chief Justice Marshall held: "The mere enlisting of men, without assembling them, is not levying war." In United States v. Burr the Court held that mere intent to commit treason was not sufficient either. Subsequent cases have concentrated on evidential requirements for proving treason, rather than definitions of substantive crimes.
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
of the statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
definition of the crime of treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
. For example, the English Treason Act 1351
Treason Act 1351
The Treason Act 1351 is an Act of the Parliament of England which codified and curtailed the common law offence of treason. No new offences were created by the statute. It is one of the earliest English statutes still in force, although it has been very significantly amended. It was extended to...
declares it to be treason "When a Man doth compass or imagine the Death of our Lord the King." This was subsequently interpreted by the courts to include imprisoning the king, on the ground that history had shown that when a king is held captive by a usurper, he often dies in captivity. Despite legislative efforts to restrict the scope of treason, judges and prosecutors in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions still succeeded in broadening the reach of the offence by "constructing" new treasons.
England and Great Britain
Ironically, the first attempt to constrain the development of constructive treasons in England was the 1351 ActTreason Act 1351
The Treason Act 1351 is an Act of the Parliament of England which codified and curtailed the common law offence of treason. No new offences were created by the statute. It is one of the earliest English statutes still in force, although it has been very significantly amended. It was extended to...
itself. Its preamble states that Parliament
Parliament of England
The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...
had decided to define treason by statute for the first time because the common law definition had expanded so widely (however this had not been constructive treason, since until 1351 treason had always been defined by judges, not by legislation). The Act ended with a clause which prohibited further judicial development of the offence:
As noted above, this was not entirely successful. From the seventeenth century, English courts refined and extended the law of treason, tolerated by Parliament, which sometimes even enshrined these new constructive treasons in new statutes — imprisoning the king became written into the Treason Acts of 1661 and 1795. By the nineteenth century, however, Parliament had established itself as the main source of new crimes, as the volume of legislation increased, and the ancient common law tradition of judges creating new crimes fell into disuse.
United States
The United States inherited the English common law from the British Empire, and the Founding FathersFounding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
recognised the danger of what James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
called "new-fangled and artificial treasons." Therefore they intentionally drafted the treason clause of the US Constitution narrowly:
This avoided vague words like "compassing or imagining" which had given British judges and lawyers such latitude. The words "giving them aid and comfort" were added by the Committee of Detail
Committee of Detail
The Committee of Detail was a committee established by the Philadelphia Convention on June 23, 1787 to put down a draft text reflecting the agreements made by the Convention up to that point, including the Virginia Plan's 15 resolutions. It was chaired by John Rutledge, and other members included...
to further narrow the definition of treason. This was done not only to prevent judges from constructing new treasons, but also to prevent Congress from enacting new ones.
The constitutional definition did not immediately deter prosecutors from attempting to prosecute for levying war people who had not directly done so. However the Supreme Court resisted efforts to construe the definition more widely than its text appeared to allow. In Ex parte Bollman
Ex parte Bollman
Ex parte Bollman, , was a case brought before the United States Supreme Court. Three main points were established in this early and formative civil liberties case:...
(1807) the Supreme Court rejected arguments by prosecutors to the effect that enlisting an army of men against the United States could amount to levying war before they actually assembled. Chief Justice Marshall held: "The mere enlisting of men, without assembling them, is not levying war." In United States v. Burr the Court held that mere intent to commit treason was not sufficient either. Subsequent cases have concentrated on evidential requirements for proving treason, rather than definitions of substantive crimes.