'The Highest and Most Heinous Treasons of All'
Unwritten crimes of treason must be identified, declared, and punished in order to 'save the state'
The ship “American Commonwealth” sails for ports of the past, where history illuminates the errors and follies of our ways and strategies for recovery
The date is January 20, 1721, and this month Trenchard and Gordon have published numerous essays in the London Journal on the subject of treasons against the constitution—notably, devious attempts by government officials to overturn a free state and establish tyranny on its ruins.
The general thrust of their January releases is that the written laws of a nation will never fully encompass the breadth of stealth crimes government officials may commit against the constitution.
Therefore, “national legislatures,” like the British Parliament, must exercise wide latitude to root out “the publick enemies of our liberty and prosperity” through the power of conviction and removal from office, whether the treason committed be written or unwritten in the constitution or statues of the nation.
“The great principle of self-preservation,” the authors insist, “which is the first and fundamental law of nature, calls for this procedure; the security of commonwealths depends upon it; the very being of government makes it necessary; and whatever is necessary to the publick safety is just.”
Executive-level traitors to the constitution must be removed from government because, if not, they will destroy the state. The self-preservation of a republic requires this procedure.
‘Treasons from the nature of things themselves’
To preserve itself, according to Trenchard and Gordon, a free state must possess a power imbued with “the fury of Hercules” to punish treasons not previously committed or even imagined.
These are “treasons from the nature of things themselves, antecedent to all laws”—treasons that contravene no laws existing in written form in the constitution and statues but treasons that violently violate moral laws, laws of human nature, and laws of free government.
Leaning on ancient Roman precedent, the authors distinguish between criminal acts that are malum prohibitum (prohibited by written law) and malum in se (wrong in themselves).
Crimes of treason that are malum in se (wrong in themselves) must be judged on the basis of “common sense" rather than subsisting “positive laws.”
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The power to punish unwritten crimes of treason, such as attempts by magistrates and ministers to overturn the state itself, are essential to the survival of a republic because often “the crimes committed are so great that no human wisdom could foresee that any man could be wicked and desperate enough to commit them.”
Trenchard and Gordon continue:
There are crimes so monstrous and shocking that wise states would not suffer them to stand in their statute books; because they would not put such an indignity upon human nature as to suppose it capable of committing them. They would not mention what they imagined would never be practised.
‘Cato’s Letters’ is the singular masterwork in the canon of Western history that, standing alone, holds the power to rescue threatened democracies and republics around the world today.
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High treason
The most deserving of punishment for treason, of course, are the highest executives of a commonwealth, because they criminally turn the power entrusted to them on its head, subverting the people and the constitution they are sworn to protect:
They also are doubtless guilty of high treason, who, being entrusted with the wealth, security, and happiness of kingdoms, do yet knowingly pervert that trust, to the undoing of that people whom they are obliged, by undeserved rewards, as well as by all the ties of religion, justice, honour, and gratitude, to defend and protect.
Executive-level traitors to the constitution must be removed from government, they argue, because, if not, they will proceed to destroy the state itself:
Every state has a right to treat those who commit them as traitors and parricides. In truth, there are as many of these kinds of treasons as there are different methods of conspiring against kingdoms; and the criminals, though ever so great, deserve death and confiscation [See ‘Trigger Warning’ at the bottom of the page].
That is, they ought to be destroyed by the people whom they would destroy.
This awesome power to declare treasons, swiftly punish them, and establish precedents, the authors of Cato’s Letters contend, is the “supreme law” of a free state:
Salus populi suprema lex esto: The benefit and safety of the people constitutes the supreme law is an universal and everlasting maxim in government . . . No customs can change, no positive institutions can abrogate, no time can efface, this primary law of nature and nations.
The sole end of men's entering into political societies [is] mutual protection and defense; and whatever power does not contribute to those purposes is not government, but usurpation.
The people, in their representatives in Parliament, must possess “a power, confined by no limitation, but that of publick justice and the publick good; a power, that does not follow precedents, but makes them”
‘To save the state’
The glory of a constitutional system like that of Great Britain in the 1720s is that it comprehends the necessity of punishing unwritten crimes of treason. Such enlightened constitutional action is required to “save the state” from tyranny.
For this reason, the constitution of Britain long since instituted a power of conviction and removal from office for unwritten crimes of treason—followed by punishment in a manner that meets the viciousness of the crime.
All that is needed to save the state is for members of Parliament to show a “noble spirit” in the execution of their duty.
Members must punish public enemies to the constitution “with an exemplary severity,” bringing “terror, trembling, and paleness upon the guilty.”
When this is done, according to our authors, the people of a nation sigh a collective breath of relief, knowing that justice and vigor have been restored to the constitution.
“This revives every drooping heart,” they say, “and kindles joy in every face, in spite of all our miseries.”
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Eli Merritt is a psychiatrist and historian who writes about the origins of our present political discontents and solutions to them. He has written for the New York Times, Washington Post, Los Angeles Times, and Chicago Tribune, among other publications.
He writes American Commonwealth and is the author or editor of the books “Disunion Among Ourselves: The Perilous Politics of the American Revolution,” “Demagogue in the White House: Lessons Learned from the Presidency of Donald J. Trump,” and “How to Save Democracy: Advice and Inspiration from 95 World Leaders”
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Trigger Warning
My essays convey history, not prescriptions for means of punishment in 21st century. While I do heartily endorse the relentless execution of the rule of law, I equally oppose the execution of criminals—by hanging or any other violent means.
Sources
Cato’s Letters, No. 7-12
1688: The First Modern Revolution, by Steve Pincus
The Secret History of the South Sea Bubble: The World's First Great Financial Scandal, by Malcolm Balen
Sadly, it appears the American people have not learned this lesson. Some, it appears, do not even learn from four years of experience. I've been thinking about why that is the case and have come to the conclusion that nearly five decades of increasing capture of the political system by economic elites have made America's government impervious to the will of the people and that the demos have essentially given up on democracy. What is the point of the kind of performative democracy in the US where we have the rituals of democracy: voting, a congress, a president, etc., but not the substance? Year after year, the expressed interests of the people, as measured in polls, never see the light of day in legislation and policy. Moreover, year after year, more and more wealth is transferred from the poor and middle class to the rich. Let's call a spade a spade. At this point, the US is an oligarchy. Yesterday, three of the world's wealthiest people flanked Trump during his inauguration - this was an outward manifestation of something that had been hidden from plain sight in the past.