Most crimes eventually became understood as collective problems to be solved by the state acting on society's behalf.

But one offense— treason—definitionally concerned the state from the very start. Early on, even murder was left to the implicated parties to sort. Yet from the very onset, the state penalized treachery against itself in the severest manner.

Treason has always stood apart from other crimes. It is founded in scripture, where humans are warned against cursing their rulers.¹ Romulus himself, Romans believed, had protected their city against subversion, presiding over the trials in person.² It is the only crime explicitly defined in the US Constitution. Traitors have often been punished by special tribunals, outside normal courts.³ Dante con­signed them to the lowest circle of hell, two notches below mur­derers. In ancient China, treason was the only crime exempt from the stricture that relatives not turn each other in. For all other crimes, family ties trumped obligations to the state: you were pun­ished even for accurately reporting an errant family member to the authorities. For treason, in contrast, the state wreaked its vengeance not only on offenders but also on all their family.⁴ Where faiths backed rulers, attacks on them threatened the divine, too. In medi­eval England, killing the king was compared to blasphemy against the Holy Ghost.⁵

Until recently, traitors died gruesome deaths. In ancient Egypt, treason was the only crime punishable by death.

For treason to be a crime, a state was needed to offend against. As its primary victim, the state defined treason and did so accord­ing to its own nature. It classified certain acts as treasonous—ones that others might see differently, even as virtuous. A vicious spiral of self-referential criminality ensued. Almost any action, however innocent it seemed, has at some time been deemed treasonous. But one person's regicide was another's tyrannicide. Treason has always been an unstable concept. As the state consolidated its position, it abandoned its once-heavy reliance on the concept of treason for protection.

As long as the state and its ruler melded, treason was an offense against the person more than against the institution. Whatever the attendant pleasures of being a ruler, it was also very dangerous. In the first millennium CE, European monarchs were ten times as likely to be violently killed as the most endangered citizens of the developed world, young Black American men in blighted neighborhoods of the 1990s.¹4 In the early Middle Ages, with the sixth-century Salic code, for example, attacks on kings were punished especially severely. Ming regulations singled out acts that endangered the emperor: incorrectly mixing his medicines, violating dietary prescriptions, poorly training his carriage horses, building his ships shoddily, and so on.¹⁵ By the sixteenth century, regicide—the most obvious form of treason—had declined to largely modern levels.¹⁶

In sixteenth-century England, Henry VIII used treason shame­lessly to hound his enemies—whether to attack his theologi­cal opponents as he broke with the papacy or against those who rejected his six marriages. Between 1532 and 1540, Henry's courts charged 883 people with treason. Of this total, 308 (38 percent) were executed, 287 of whom had openly rebelled, raising war against the king; 34 were victims of court politics, caught up in the destruction of the Boleyn, Pole, and Courtenay dynasties; and 394 were tried for treason in relation to the Reformation—Catholic martyrs and others denying the king's preeminence.¹⁷ With each new wife from Anne Boleyn forward, Henry made it treasonable to question the validity of his latest wedding or to accept his earlier marriages.¹⁸ In 1541, as he planned to divorce Katherine Howard, his fifth wife, he made it treasonous for a woman he intended to marry to con­ceal an unchaste sexual past, for his queen to cuckold him, and for

anyone who knew of such transgressions to not warn him.¹⁹ He also expanded treason beyond his person to include attacks on his poli­cies as well.

In stark contrast, modern America has made little use of treason. Had the Founding Fathers' rebellion failed, they would have been hanged as traitors themselves.²¹ Unsurprisingly, they were as alert to tyrants' abuse of treason charges as to treason itself.²² They knew how rival aspirant families had misused treason to settle scores in England and were aghast at the hideous punishments inflicted there, so they defined treason as a limited and abstract offense on par with other felonies.²³ Even with the specter before them of Shays' Rebel­lion (a tax revolt in western Massachusetts in 1786) and other insur­rections, even with England in Canada, with Spain in Florida and claiming the Mississippi Valley, with France only recently relieved of the Ohio Valley—despite enemies seemingly all around—the Con­stitution's drafters formulated treason precisely and narrowly. They dealt with it in the Constitution to prevent the legislature or judi­ciary from expanding it at will.²⁴ Though they followed the model of the English treason act of 1351, in their definition they eliminated compassing (or imagining) the king's death not only to acknowledge the absence of a monarch but also to ensure that constructive defini­tions of treachery, extending from actions to mere thoughts, could not be used to settle scores between political factions. Simply holding beliefs or harboring intent, as was actionable in England, was ruled out. Overt acts were required as evidence of guilt.²⁵

The fledgling nation did not define treason as harm to a non­existent monarch but restricted it to “consist only” of levying war against the United States or adhering to its enemies.²⁶ As in English law, a confession or two eyewitnesses was required as proof.²⁷ Trea­son was not to be used to punish political opponents or in domestic infighting, and the sovereign ruler's person no longer played a role.

Between these extremes on treason's historical trajectory— sixteenth-century England and modern America—two points emerge. First, treason reflects the nature of the state it offends. Second, except in the totalitarian dictatorships, treason has faded in importance, not just in the United States but also in all democratic countries. Because democracies are not one person's rule, they are inherently less prone to treason in its classic form—political assassination. The primary parties in modern democracies are broadly similar, and the rules of succession clear, so killing a leader merely means that some­one quite like him or her carries on. In autocracies, by contrast, whether absolutist monarchies or dictatorships, killing the ruler pays off. Protected by a private army of thousands, Adolf Hitler sur­vived some forty attempts, Fidel Castro several hundred.³⁴ Oppres­sive, unrepresentative, and weak leaders have been most likely to die violently in office.

The state eventually no longer needed treason laws to protect itself, instead amassing an arsenal of other weapons against attack.

Treason fell victim to the state's own success. More important, as the modern state became an element of an increasingly represen­tative and eventually democratized political system, it served its citizens, not their rulers. Political change no longer came primar­ily through revolt, rebellion, or insurrection—acts threatening the entire system—but as piecemeal reform, broadly agreed. Seen in a Kantian or Hegelian perspective, treason thus became just another crime. It was self- rebellion, acting against oneself. Attacking a demo­cratically legitimated system differed from transferring power among competing dynasties. Change in democracies came increasingly from within, as everyday “treason” or reform. The domestic aspects of treason—sedition—faded in importance. Treason in democracies instead focused increasingly on collaboration with enemies, or exter­nal treason.³⁶

Over millennia, treason reflected the nature of the government authority it attacked. It spanned a broad array of actions against the people and their community in the Greek city-state, where state and society largely overlapped (as they did again in the totalitar­ian regimes of the twentieth century). It focused on affronts to the person and later the office of the sovereign in imperial Rome and even more so in feudal Europe. In the early modern era, treason was abstracted to cover attacks on the nation, not on its ruler. And mod­ern representative democracies pared treason back largely to aid­ing and abetting enemies. Most recently, as sovereignty has in part transferred to supranational institutions—the United Nations, the North Atlantic Treaty Organization, the Hague, and the European Union—treason's boundaries have grown even hazier.³⁷

Treason was once a much broader concept. A young and weak state was threatened by many acts.³⁸ When treason was the charge invoked between dynastic factions vying for preeminence, little hemmed it in. The ruler of the moment defined all enemies as trai­tors. Since traitors' lands escheated to them, medieval monarchs eagerly expanded the crime's remit.³⁹ In the fifteenth century, French kings used treason charges to redistribute subordinate lords' lands to allies.⁴⁰ The greater the sovereigns' leeway to define treason, the more enemies quavered. Pointing to the Chinese emperor, Montesquieu put it aphoristically: the less precisely high treason was defined, the more despotic government could be.⁴¹ Few actions have not been thought treasonous: consulting soothsayers about the king's death, questioning the royal household expenditures, committing buggery, being a Jesuit priest, manufacturing bad shoes, and clipping coins— alongside, of course, aiding and abetting enemies and assassinating leaders.⁴² In contemporary Thailand, insulting the king—via inter­net postings or bathroom graffiti, say—or even just speaking ill of his dog merits prison. In Myanmar, so does tattooing an image of the president on your penis—or even just claiming to have done so.⁴³ Since treason was definitionally a threat to the state, whatever the state thus defined became ipso facto thus. Traitors have come in all shapes and sizes: Christians under Rome, peasants in the fourteenth century, Jesuits in the fifteenth, both republicans and aristocrats in the eighteenth, Chartists in the nineteenth, Nazis and Communists in the twentieth, Islamists in the twenty-first.⁴⁴

Before religious and secular power began separating in the early modern period, treason and sacrilege or heresy were much the same offense, attacking the highest authority.⁴⁵ The Greeks closely associ­ated impiety (asebeia) with treason (prodosia), and temple robbers were targeted by the same law as traitors. The Romans regarded seri­ous violations of divine law (fas) as a kind of treason against the gods. Criticism of the emperors, regarded as quasi-divine, was con­sidered both impiety and treason.⁴⁶ In the Old Testament, the rebel­lions of Adam, Cain, and Saul were disobedience against God. The Bible instructed Christians to obey the authorities, who held their power from God.⁴⁷ In 1199, Pope Innocent III turned imperial laws on treason against heretics, now seen as traitors to God.⁴⁸ Henry VIII, both king and head of the English Church, distinguished only vaguely between treason and heresy. French kings in the sixteenth century equated heretics and traitors, confiscating the property of both.⁴⁹ In the seventeenth century, James I of England consid­ered resistance to kings blasphemous. The Prussian legal codes of the seventeenth and early eighteenth centuries still defined trea­son as an attack on divine as well as worldly powers.⁵⁰ And French old-regime law recognized lese-majeste divine, thought and speech crimes against God. It was from this that lese-majeste humaine was derived by analogy once the prince and the state were conceived of as being separate.⁵¹

As long as rule by one lineage remained the norm, state and gov­erning family overlapped, and treason was committed against the person of the ruler, not against the state in any abstract sense. Killing the leader was the essence of treason. Today, assassination is legally seen as but another murder. Because fathers, like hereditary leaders, were once invested with a quasi-supernatural authority, parricide too was once a worse crime than the simple homicide it is today. The Romans drowned parricides in a leather sack together with a dog, a cock, a viper, and an ape. So did eighteenth-century Germans, who added infanticide to the list of such crimes.⁵² In ancient China, a broad array of kin elders were protected against parricide, and offenders were punished by the severest affliction, death by slic- ing.⁵3 Neither English nor US law singled out parricide⁵⁴ But in France parent killing was still a separate crime in the Napoleonic penal code of 1810. The convicted were executed with special humiliations: barefoot, wearing only a shirt, head covered with black cloth, the right hand amputated.⁵⁵ In Japan, parricide did not become a murder like any other until 1973.⁵6

Similarly, seducing a leader's wife or adult daughter is today at most a private moral transgression with no legal implications. In the past, however, subverting the royal lineage's purity and claim to power by adultery, seduction, or rape was treasonous.⁵⁷ Philippe IV of France executed two minor nobles in 1314 for adultery with his daughters-in-law.⁵⁸ In 1536, Henry VIII prosecuted Lord Thomas

Howard for marrying the daughter of the queen of Scots, Henry's eldest sister. Had Henry died heirless, he feared Howard could bid for the crown. The new act made it treason to defile or deflower the king's sister, niece, or aunt or to marry them without royal permis- sion.⁵9 This still holds. Adultery with the monarch's consort, eldest unmarried daughter, or the wife of the heir to the throne remains treasonous. Princess Diana's affair with James Hewitt, her riding instructor, posed the issue most recently. With treason still a capital crime at the time, both could theoretically have been executed.⁶⁰

When state and society broadly overlapped, as in the Greek polis, more actions were potentially treasonable than later when the state crystallized into more specialized functions and was threat­ened only by specific acts.⁶¹ Among the Romans, too, almost any offense seemingly of peril to the state was treasonous, although the emperor eventually became the focus of concern.⁶² The Romans dis­tinguished two concepts. Perduellio (wicked warfare) covered any action harmful to the people, as though from an armed enemy.⁶³ As Rome enlarged, former external enemies became internal subjects, and so the concept of treachery expanded as well.⁶⁴ About 100 BCE, it included also the crimen maiestatis (combined by Sulla into a sin­gle law in 81 BCE)—behaviors tarnishing the sovereignty or dignity of the Roman state or the emperor. Maiestatis encompassed perduel­lio, and together they included even negligent or merely reckless behavior. Under Augustus, the definition expanded to cover personal damages to the leader, such as slander of the princeps, his family, and other prominent citizens, alive or dead.⁶⁵ Counterfeiting, too, was treason because it desecrated the emperor's image on coins.⁶⁶ Wearing clothing in the imperial purple was a treasonous offense.⁶⁷ Already under the Romans, the concept of majesty thus shifted focus from the community to the person of the ruler, which was to dominate the Middle Ages and absolutism. The Lex Quisquis (397 CE) expanded treason to include almost any political utterance the ruler, his ministers, and favorites objected to.⁶⁸

Treason in Roman law was action against ruler and people. Ger­manic ideas, as they merged with the Roman inheritance in the bar­barian legal codes of the seventh century, instead emphasized the contractual relationship between ruler and follower. Loyalty was pledged, and breaking that pledge (Treubruch) was treason.⁶⁹ Verrat was equally evocative: bad counsel. The vassal owed his lord good advice and aid.⁷⁰ As feudalism spread, kings, solidifying their power as the primary lord, distinguished betrayals against themselves from those against lesser lords. English common law thus separated high from petty treason, reserving special sanctions for crimes against the king.⁷¹ The German term for treason in general, Hochverrat, still retains a memory of high treason.⁷²

As royal power solidified, treason focused on the monarch's person. In the late thirteenth century, the English king Edward II sought to define opposition from his barons, who wished to hold him to his feudal obligations, as treason. The kings slowly suc­ceeded. If the monarch was society's linchpin, his demise was neces­sarily worse than others. A royal death involved the “whole nation in blood and confusion,” in the words of an eighteenth-century English jurist. Every stroke against him is “levelled at the publick tranquility.”⁷³ In the seventh century, Visigoths defined treason as actions against the people and the land as well as against the king. But at the close of the ninth century, King Alfred declared a man's treachery to his lord the one crime that compensation could not expiate.⁷⁴ The English treason act of 1351 (still in effect today and the model for the US Constitution's treatment of the subject) tar­geted violations of the king's person. It began with instructions to punish physical attacks against or plans (i.e., compassing) to kill the king, queen, and eldest son as well as rape of the king's wife, daughter, or daughter-in-law, thus compromising the lineage. Only then did it proceed to war against the king and his realm, adherence to the enemy, and the killing of high ministers.⁷⁵ The feudal king pushed aside lesser lords, concentrating treason law's protection

on himself. His absolutist successors took this approach to its apo­gee. Even the subjects of a king who had become a tyrant, James I lectured them, had no right to resist him. No rebellion was ever justified.⁷⁶