exclusive right to declare what should be treason. In case of a contest between the United States and a particular state, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority.
Mr. RANDOLPH thought the clause defective in adopting the words, "in adhering," only. The British statute adds, "giving them aid and comfort," which had a more extensive meaning.
Mr. ELLSWORTH considered the definition as the same in fact with that of the statute.
Mr. GOUVERNEUR MORRIS. "Adhering" does not go so far as "giving aid and comfort," or the latter words may be restrictive of "adhering." In either case the statute is not pursued.
Mr. WILSON held "giving aid and comfort" to be explanatory, not operative words, and that it was better to omit them.
Mr. DICKINSON thought the addition of "giving aid and comfort" unnecessary and improper, being too vague and extending too far. He wished to know what was meant by the "testimony of two witnesses;" whether they were to be witnesses to the same overt act, or to different overt acts. He thought, also, that proof of an overt act ought to be expressed as essential in the case.
Dr. JOHNSON considered "giving aid and comfort" as explanatory of "adhering," and that something should be inserted in the definition concerning overt acts. He contended that treason could not be both against the United States and individual states, being an offence against the sovereignty, which can be but one in the same community.
Mr. MADISON remarked, that "and," before "in adhering," should be changed into "or;" otherwise both offences, viz., of "levying war," and of "adhering to the enemy," might be necessary to constitute treason. He added that, as the definition here was of treason against the United States, it would seem that the individual states would be left in possession of a concurrent power, so far as to define and punish treason particularly against themselves, which might involve double punishment.220
It was moved, that the whole clause be recommitted, which was lost, the votes being equally divided.
New Jersey, Pennsylvania, Maryland, Virginia, Georgia, ay, 5; New Hampshire, Massachusetts, Connecticut, Delaware, South Carolina, no, 5; North Carolina, divided.
Mr. WILSON and Dr. JOHNSON moved, that "or any of them," after "United States," be struck out, in order to remove the embarrassment; which was agreed to, nem. con.
Mr. MADISON. This has not removed the embarrassment. The same act might be treason against the United States, as here defined, and against a particular state, according to its laws.
Mr. ELLSWORTH. There can be no danger to the general authority from this, as the laws of the United States are to be paramount.
