Post by The Horny GoatTo which I add while I am not a lawyer I would make the assumption
that jurisprudence in Canada on this issue is somewhat in the
mainstream of most English-speaking jurisdictions worldwide. (E.g. USA
/ UK / Oz / NZ etc.)
You are simply wrong on that point with regard to the United States where
the *definition* of treason is fixed in the Constitution, and only the
power "to declare the *Punishment* [emphasis added] of Treason" (provided
it does not work "Corruption of Blood or Forfeiture except during the Life
of the Person attainted") is left to Congress. Hence, the fact that
something could be defined as treason by statute in Canada does not mean
that it could be so defined in the United States. (And as Hurst notes,
"the constitutional prohibition on creation of new 'treasons' limits the
courts as well as the Congress."
http://www.constitution.org/cmt/jwh/jwh_treason_5.htm)
Of course, as I said, the narrow definition of treason is not particularly
helpful to people convicted and sentenced to death for espionage or some
other offense. See *United States v. Rosenberg*, 195 F.2d 583 (2nd Cir.
1952) where the convictions and death sentences of the Rosenbergs were
upheld in an opinion written by the famous liberal Jerome Frank:
"In their petition for rehearing, the defendants, for the first time, urge
as pertinent that portion of Article III, Section 3 of the Constitution,
which provides: '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 Rosenbergs, as we understand them, rest two arguments on this
provision.
"(1) The first runs thus: (a) Had the defendants been indicted and tried
for giving aid to an 'enemy,' the crime charged would have been treason,
and they could not have been convicted unless the trial judge instructed
the jury as to the two-witness rule and told the jury specifically the
overt act or acts which a jury must find in order to justify a verdict of
guilty. n43 (b) Here the defendants were indicted and tried for giving aid
to a country which was not an 'enemy.' (c) Consequently, the crime of
which they were accused was of the same kind as treason- but of a lesser
degree. (d) The constitutional safeguards applicable to a trial of the
greater crime of this kind must be applied to the lesser. (e) But here
there were no such safeguards, since the trial judge did not give the
instructions constitutionally required in a treason trial.
"The Supreme Court's decision in Ex parte Quirin, 317 U.S. 1, 38, 63 S.Ct.
2, 16, 87 L.Ed. 3, disposes of this contention. There the defendants,
including Haupt and Burger, United States citizens, were held guilty of
violating the article of War which make it a crime, punishable by death,
for an enemy belligerent to pass our boundaries without uniform or other
insignia signifying belligerent status. 10 U.S.C.A. @@ 1471-1593.
Admittedly, the conduct constituting this crime would also, in the case of
Haupt and Burger, have constituted treason, but this crime of which the
defendants were accused was more specific than treason. The Supreme Court
(of its own motion) raised, and then rejected, the argument that, on this
account, the procedural requirements of a treason trial must be, and had
not been satisfied. The Court said: 'The argument leaves out of account
the nature of the offense which the Government charges and which the Act
of Congress, by incorporating the law of war, punishes. It is that each
petitioner, in circumstances which gave him the status of an enemy
belligerent, passed our military and naval lines and defenses or went
behind those lines, in civilian dress and with hostile purpose. The
offense was complete when with that purpose they entered- or, having so
entered, they remained upon- our territory in time of war without uniform
or other appropriate means of identification. For that reason, even when
committed by a citizen, the offense is distinct from the crime of treason
defined in Article III, @ 3 of the Constitution, since the absence of
uniform essential to one is irrelevant to the other. Cf. Morgan v. Devine,
237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht v. United States, 273
U.S. 1, 11, 12, 47 S.Ct. 250, 253, 254, 71 L.Ed. 505.' This ruling has
been criticized. See e.g., Hurst, Treason in the United States, 58 Harvard
Law Rev. (1945) 395, 421. n44 But this ruling binds inferior courts such
as ours. n45 In the Quirin case, the absence of uniform was an additional
element, essential to Haupt's non-treason offense although irrelevant to
his treason; *in the Rosenbergs' case, an essential element of treason,
giving aid to an 'enemy,' is irrelevant to the espionage offense.*
[emphasis added]
"(2) The Rosenbergs present a second argument, which is a variant of the
first and is as follows: (a) Traditionally, and in this country by
statute, the courts have been authorized to impose the death penalty for
treason. (b) To authorize such a sentence for a similar but less grave
offense, in the trial of which there are omitted the guaranteed safeguards
of a treason trial, is to permit 'cruel and unusual' punishment in
violation of the Constitution. (c) That part of the Espionage Act which
authorizes the death sentence is therefore unconstitutional. (d)
Accordingly, the trial judge should be directed to reduce the sentence.
n46
"This argument, we think, involves an unfounded assumption, e.e., that
Congress will always authorize the death sentence for treason. Without
that assumption the argument would compel the strange conclusion that, if
Congress, in its discretion, authorized a maximum twenty-year penalty for
treason, no greater punishment could be given for espionage, sedition or a
similar crime without its becoming 'cruel and unusual.' Moreover, as the
Quirin case had the unavoidable consequence of permitting death sentences
to be imposed upon the citizen-saboteurs for crimes other than treason,
the Supreme Court must there have implicitly rejected the 'cruel and
unusual' argument. As, however, the Supreme Court did not specifically
discuss it, that Court may well think it desirable to review that aspect
of our decision in this case.
"Petition for rehearing denied.
http://www.law.umkc.edu/faculty/projects/ftrials/rosenb/ROS_CT1.HTM
--
David Tenner
***@ameritech.net