What do "adhering" and "aid and comfort" mean in the context of the United States treason?

  • Article Three of the United States Constitution, section 3, defines treason and places restrictions on its punishment:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

    What do "adhering" and "aid and comfort" mean in this context?

    I am not a lawyer, so won't make this a full answer, but in layman's terms, I believe it means 'helping the enemy'.

    Some in depth analysis here: http://www.heritage.org/constitution/#!/articles/3/essays/119/treason (too lazy to cut/paste, but see *Ex parte Bollman* and *Burr* cases for details)

    And for more legacy stuff, see **The Yale Law Journal, Volume 27**.

    @user4012 - I feel like I should give you half the credit for my answer. By searching Google I ended up with many of the same references you provided here.

    @indigochild - if your research was independent, no credit is due. But i'm glad you agree with my train of research :)

  • indigochild

    indigochild Correct answer

    5 years ago

    Legal Construction

    When a phrase is interpreted by the judicial system to have a specific meaning it is called 'legal construction'. Some terms have a very clear construction. For example, there is little ambiguity as to what constitutes a tort. In many other cases terms are far less clear.

    I was not able to find a clear articulation of what 'adhering' or 'aid and comfort' mean. In fact, an online legal dictionary claims that there is no clear construction of these terms. However, you can find a list of notable treason cases over at FindLaw which may provide some insight into related issues.

    A Historical Perspective

    According to an old article in the Yale Law Review (Warren, "What is Giving Aid and Comfort to the Enemy?". 1918.) the Constitution's treatment of treason is taken from 1315 Statute of Treason, an English law. That law had several categories of treason and the Founders selected only one category to be treason in America. It isn't definitive, but their choice may help us exclude some things that treason isn't.

    You can find a copy of the Statute of Treason here.

    So what isn't it?

    The Founders implicitly chose not to include these as treason:

    • Planning to kill a political leader
    • 'Violating' the wife or virgin daughter of the executive
    • Counterfeiting the national seal
    • Counterfeiting coinage
    • Actually killing a political leader

    The actual Act specifically mentioned which leaders may not be assassinated. I took the liberty of generalizing a bit here.

    Conclusion

    The phrases 'adhering' and 'aid and comfort' do not have a specific legal meaning, despite being otherwise uncommon phrases in modern English. We can look to the Founder's choice of definitions for treason for a little guidance, but ultimately the definition is going to come down to legal interpretation in any given case. There just isn't much guidance for you.

    There is case law on this, as well as legal definitions. While they may be terms of art, they are not without meaning.

    Thanks for the comment. I actually noted existing case law in my answer, but I choose not to focus there. None of those cases provided a working definition, so they didn't fit the question (or at least, my approach to answering it).

    I just think that your conclusion "do not have a specific legal meaning" is somewhat overly definitive and broad and doesn't include the case law determinations. The case that I referenced below actually does a pretty good job of describing what adhering means, e.g.

    Would assassinating the U.S. president _under contract to an enemy of the United States_ qualify as "adhering to their enemies, giving them aid and comfort"?

    @Sean I'm wondering if that should be a different question? In any case, the Yale article is pretty explicit that an enemy nation is one in a "state of open hostility". If there is no state of open hostility, then undoubtedly it is not treason. If there is a state of open hostility, it is treason if the assassination would advance the goals of the enemy state (see the quote on page 334 of the Yale article).

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