The doctrinal development of the law of "treason" after the adoption of
the Constitution is contributed primarily by the judges; treatise discussions
are scissors and paste-pot affairs, or horn-book recitations of
question-begging generalities. The judges, however, shine mainly by comparison.
In view of the potentialities for good and evil in the instrument of treason
prosecutions, it is surprising how little judicial imagination has been stirred
to clarifying analysis in such cases as have presented themselves. Indeed the
American cases have on the whole served little more than to annotate the
doctrine which was, explicitly or implicitly, in the seventeenth and
eighteenth-century English treatises. When the Supreme Court at the present
Term reviewed for the first time a conviction of treason in Cramer v. United
States,1 it divided five to four on the law of the case. The
majority opinion, moreover, in its efforts to develop the implications of the
constitutional definition of the crime, either invented some bad law or added
confusion to an already muddled subject. Perhaps this continuing lack of
helpful judicial exploration in the field may be explained by the fact that
after the nineteenth century the executive and legislative branches no longer
considered the treason charge as the principal bulwark of state security. There
have been less than two score treason prosecutions pressed to trial by the
Federal government; there has been no execution on a federal treason
conviction; and the Executive has commonly intervened to pardon, or at least
mitigate the sentence of those convicted. In the states this trend is even more
marked. The trials of Thomas Dorr, and of John Brown, for treason by levying
war against the states of Rhode Island and Virginia, respectively, are the only
completed treason prosecutions by state authorities. As the Supreme Court
observed in the Cramer case, "We have managed to do without treason
prosecutions to a degree that probably would be impossible except while a
people was singularly confident of external security and internal
The policy most frequently expressed in judicial opinions, and one
consistent with the history of treason prosecutions, has been, pursuant to the
wisdom of the framers, one of careful restriction of the scope of the crime. It
is now made clear, in Cramer v. United States, that this historic policy
should be viewed as taking two forms: it both bans the addition of new
categories of subversive conduct to the two branches of "treason" stated in the
Constitution, and limits the kinds of conduct which may be charged under either
of those two branches.3
Some opinions have simply praised the constitutional provision for
giving "definite" meaning to the offense.4 Other opinions, by
undertaking to explain the reasons behind the restrictive policy, furnish a
little more light, even if they remain vague as to the tangible forms of the
application of that policy. Three explanations are advanced. The one nearest to
the familiar English doctrine justifies a restrictive policy by the inherent
danger, if the contours of the crime are vague and ill-defined, of abuse of
treason prosecutions by the authorities and the resulting intimidation of
citizens. This is a broader ground of policy than the more specific fear that
"treason" prosecutions may be used in the rough and tumble of domestic faction;
and suggests a general public interest in a reasonable certainty as to the
extent of political crimes, so that men may speak and act their political roles
with proper freedom and live with a decent sense of security. Speaking for the
Court in Ex parte Bollman, Mr. Chief Justice Marshall declared that
to prevent the possibility of those calamities which result from the
extension of treason to offences of minor importance, that great fundamental
law which defines and limits the various departments of our government, has
given a rule on the subject both to the legislature and the courts of America,
which neither can be permitted to transcend.5
Other, and more specific explanations consider two other "kinds of
dangers against which the framers were concerned to guard the treason offense,"
which the Court in the Cramer case describes as "(1) perversion by
established authority to repress peaceful political opposition; and (2)
conviction of the innocent as a result of perjury, passion, or inadequate
A calculating use of the convenient vagueness of "treason" charges
against foes in domestic factionalism seems the characteristic abuse of the
charge of levying war. In this aspect, a restrictive definition serves the
policy of preserving the free, nonviolent competition of interests in
political, social, and economic life. With his usual capacity for casting out
varied, suggestive lines for doctrinal development, Mr. Chief Justice Marshall,
in ruling on the motion for commitment of Burr, indicated that the dangers of
political factions underlay the constitutional limits set to the crime of
As this is the most atrocious offence which can be committed against
the political body, so is it the charge which is most capable of being employed
as the instrument of those malignant and vindictive passions which may rage in
the bosoms of contending parties struggling for power. It is that of which the
people of America have been most jealous, and therefore, while other crimes are
unnoticed, they have refused to trust the national legislature with the
definition of this....7
And in Ex parte Bollman, the Chief Justice gave a warning of the
dangers of perjury and passion, repetition of which, Mr. Justice Jackson
declares in the Cramer case, "can never be untimely":
As there is no crime which can more excite and agitate the passions of
men than treason, no charge demands more from the tribunal before which it is
made, a deliberate and temperate inquiry. Whether this inquiry be directed to
the fact or to the law, none can be more solemn, none more important to the
citizen or to the government; none can more affect the safety of
In the light of the experience of World War I, the greatest danger of
unjust accusations born and prosecuted out of the heat of public passion would
seem to be that of an expansion of "treason" to cover unpopular opinions or
attitudes.9 For, in the nature of the case, there will normally be
very few occasions on which public prejudice can satisfy itself by accusing the
wrong man of an undoubted act of treason. There may be some reason to fear that
public prejudice will particularly influence prosecutions for adherence to the
enemy, since the elements of that offense ensure that such prosecutions will
spring out of wartime events, when general feeling is high.10
Of the three policies advanced in various American opinions to explain
the restrictive character of the constitutional treason clause, only the second
has a clearcut counterpart in the English authorities. The general policy
against vagueness in so important a crime, and in favor of free speech and free
pursuit of interests generally in the community, was not articulated in the
English materials. And the policy of protection of the accused individual
against the waves of public passion is an aspect of the treason clause policy
which seems to have been brought to the fore by the special rigor of the
two-witness requirement in the United States Constitution. Of these three
policies, moreover, only the second, which is designed to curb the abuses of
political faction, finds clear expression in the discussions attendant upon the
framing and ratification of the Constitution. Even the brief comments in the
Convention regarding insertion of the two-witness requirement, notably Dr.
Franklin's warning of the peculiar "virulence" of treason prosecutions, imply
more the peril of political abuse of the offense than the danger of public
As was indicated in dealing with the materials pertinent to the framing
and ratification of the Constitution, the question of the relevance of English
authorities to the construction of the terms borrowed from the Statute of
Edward III blurs the lines of the constitutional provision's restrictive
policy.11 The words of the treason clause are obviously broad, and
the need for interpretation inescapable in the face of the refusal of facts to
fit into neat moulds.12 But the constitutional prohibition on
creation of new "treasons" limits the courts as well as the
Congress.13 And, as the Burr and Cramer cases demonstrate,
this requires restraint not only in the adoption of offenses outside the
constitutional definition, but also in the determination of what evidence will
suffice to make out the elements of the offenses of adherence to enemies or
levying of war.14 In both situations the limits set by the
Constitution might be evaded if the courts imported the full scope of English
decisions interpreting and applying the Statute of Edward III.
Counsel have sometimes argued, and judges have sometimes spoken, as if
the policy of the Constitution required a wholesale refusal of any guidance
from English authorities.15 This extreme position is not, however,
the law of the American opinions, which overwhelmingly assert the relevance of
English constructions of the Statute of Edward III.16 But it is
significant that in early opinions, close to the times and ideas of the
framers, two limitations were suggested on the use of English materials. In the
first place, it was suggested that English doctrine developed under charges of
compassing the death of the king had no proper relation to cases arising under
the constitutional provision which pointedly omitted any analogue of that
branch of the Statute of Edward III. Thus, in charging the jury in the first
trial of Fries, Judge Peters found the greater part of the objection to the
doctrine of "constructive treason" to be "totally irrelevant here. — The
subject of them is unknown, and may it ever remain so, in this country. I mean
the compassing the death of the king."17 Secondly, it was declared
that a broad discretion was properly to be exercised in rejecting English
precedents, from the days of great political turmoil or arbitrary power in that
country, which expanded the scope of "treason." So, in the first Fries trial,
Mr. Justice Iredell distinguished the products of "the bad times of English
history" from "the better and more modern decisions," and added that he did not
believe "that any judge since the revolution in England has ever considered
that he was bound to follow every arbitrary example of the English courts, or
the crown laws which had taken place in dark ages."18 Later courts
have not had occasion to develop or deny these suggested doctrinal limitations
on the adoption of English treason authorities. The limitations, however, seem
consistent with the restrictive policy evidence in the terms and history of the
constitutional provision, and with the generally conservative approach taken in
expounding the law by almost all of the American opinions. Nor does the
impeachment of one of their chief exponents, Mr. Justice Chase, cast doubt on
their validity, for the impeachment charge was not that Chase's distinction of
the early English cases was inherently arbitrary or unreasonable, but that he
denied counsel opportunity to make their own statement of that law to the jury.
The impeachment of Chase was, moreover, too clearly partisan to carry weight on
a professional matter.19
This persistence of the general, stated policy of strict construction of
the scope of "treason" is an element of continuity between the materials seen
in the period of the framing and adoption of the Constitution and the
subsequent decisions. And, though it appears less in opinions and charges of
more recent years, it has been strongly reaffirmed by the Supreme Court in
Cramer v. United States.20 Moreover, though the reported
decisions in treason trials are not numerous, when they are examined with a
view to checking the practical reality of the restrictive policy the
preponderance of acquittals and of specific rules laid down with careful regard
to the protection of the accused indicates that the restrictive policy has
expressed an operative attitude and not merely a pious hope.21 Nor
does there seem to be any basis, either in the doctrine or in the results of
the cases, for applying the restrictive policy in a different degree to the two
branches of treason under the constitutional definition, although experience
suggests that each bears its peculiar dangers.22
(b) The Intent: Limitation of "Levying War"
Perhaps because it is at the heart of the definition of the crime, the
intent element in the concept of treason is apt to be discussed, as the most
obvious ingredient of the positive case for the prosecution, in rather summary
fashion. In fact, however, the expression of the restrictive policy governing
the scope of the offense has turned as much on a carefully restrictive
definition of the intent as upon the overt act element.
"To make treason the defendant not only must intend the act, but he must
intend to betray his country by means of the act."23 Thus, the
Supreme Court, in Cramer v. United States, stressed the critical
importance of a defined purpose in the defendant's mind one step beyond the
immediate intention to do the overt act, and seems to indicate that "treason"
is a crime of specific intent. However, doubt is cast on this interpretation by
the further, unqualified assertion of the Cramer opinion that the law of
treason, like the law of lesser crimes, assumes every man to intend the natural
consequences which one standing in his circumstances and possessing his
knowledge would reasonably expect to result from his acts.24
This latter statement may be taken to lend support to those texts which
have declared that a specific intent is not necessary to make out
The definition of intent in the court's latter statement would seem to
run counter to the logic of the offense and the history behind the restrictive
policy which has controlled the evolution of that policy in English and
American law. The idea of betrayal of allegiance connotes a specific intent.
And, historically, most of the excesses of the English law of treason, prior to
the eighteenth century, can be described in terms of a treasonable intent found
by inference under the head of compassing the death of the king; men were
convicted not on evidence fairly showing that they had planned the king's death
and the overthrow of the government, but on the basis of the expression or
advocacy of ideas or measures whose "natural" consequences, as deduced by their
political foes, might involve harm to the king or the state.26 The
evidence is overwhelming that the treason clause of the United States
Constitution was intended to limit the scope to be given to the offense of
treason; and it is upon that admonition of policy that the courts' opinions
have since centered. Moreover, as the treason clause is the product not of
theory, but of history, the practical meaning of its restrictive policy should
be drawn from history. The most obvious manner in which the Constitution
narrows the scope of treason is by omitting any analogue to the crime of
compassing the king's death. Since most of the reprobated doctrines of the
English law had developed under that head, it makes historical sense to look
there for the kinds of doctrine which the framers wished to bar from the
American law of treason. There is of course some truth in the observation that
the crime of compassing the king's death has no ready analogy in a republic;
but, unless a bloodless logic is substituted for living policy, it is clear
that the framers rejected the doctrine for other reasons of
substance.27 In this light, one historic target of the framers'
restrictive policy was the raising of a treasonable intent from inferences
drawn at second or third hand under the convenient vagueness of a test of
responsibility for the "natural consequences" of actions.
There is loose language in the opinions, it is true, to the effect that
one accused of treason may not disavow the "natural consequences" of his act by
pleading that he sought merely a commercial profit by selling supplies to an
enemy or rebel, or that he helped an enemy or rebel agent merely out of
friendship or compassion.28 The crucial fact in the court's mind in
these situations seems always to be, however, the defendant's knowledge that he
is dealing with the enemy or rebel. If, having such knowledge, the defendant
then sells supplies or gives money or concealment, he in fact specifically
intends the ultimate, prohibited effect, to aid the enemy, or to contribute to
the levy of war. In this state of proof, the plea of profit or friendship seeks
to raise not the issue of his intention, but the more remote question of his
motive; and it is merely applying elementary doctrine to hold that if defendant
had the specific intention to bring about a result which the law seeks to
prevent, his motive is irrelevant.29 Of course the mercy of juries
is always an incalculable factor here, and one deliberately preserved in our
The prosecution is not limited to the accused's direct statements of
intention to prove specific intent, however; and obviously a practical
compromise must be struck in dealing with a crime which threatens the life of
the community. Thus the man who is apprehended as he rows out to sell his
foodstuffs to a known hostile frigate is held to have had a treasonable intent,
though he pleads that his purpose was merely to make a dollar.31 But
the man who joins a "wildcat" strike in a munitions plant in time of war, and
then pleads that his purpose was merely to get a raise, will not be held to
possess a treasonable intent, though the "natural consequence" of the strike is
the interruption of production needed to save the country.32 It is
hard to reconcile these positions by any more precise test than one of the
proximity of defendant's immediate intention to the forbidden ultimate result
of aid and comfort to the enemy.
The way in which the scope of treason by levying war was narrowed
demonstrates the manner in which the historic policy restrictive of "treason"
may be effectuated through a strict definition of the intent element. The
problem first arose where forcible opposition to the execution of a single
statute or other act of authority was charged to be a levying of war. The
English decisions prior to the middle of the eighteenth century went far in
finding that riotous assemblies for any non-private ("public") purpose amounted
to constructive levying of war; and it was so held a fortiori if the
object of the mob could be said to be to prevent by force the execution or
procure the repeal of some official act.33 It was established, in
the cases arising out of the Whiskey Rebellion in 1794 and the Pennsylvania
resistance to the federal property excise in 1799. that this latter is likewise
treason under the Constitution. But even Federalist-minded judges laid down the
law with significant and reiterated emphasis on the need for finding that the
force was exerted for a general and public purpose and not merely to stop the
collection of particular levies, or collection from particular persons, or by a
In 1808, in United States v. Hoxie,35 Livingston,
Circuit Justice, in effect directed a verdict on the basis that the conveying
of a raft of logs to Canada, in violation of the Embargo and with armed
opposition to the troops seeking to enforce it, was not shown to be more than a
particular violation of law for profit, and hence was, for lack of the
requisite intent, not treason. Emphasizing the agreement of men learned in the
law upon "the exceptions, which have been so cautiously interwoven into" the
doctrines regarding levying of war, "for the very purpose of preventing their
extension to cases of this kind," he noted that it may sometimes be hard to
distinguish between treason and some other offenses involving opposition to
But, difficult as this may be, every one will at once perceive a very
wide separation, between regular and numerous assemblages of men, scattered
over a large portion of country, under known officers, and in every respect
armed and marshalled in military and hostile array, for the avowed purpose, not
only of disturbing and arresting the course of public law, in a whole district,
by forcibly compelling the officers of government to resign, but by
intimidation and violence, of coercing its repeal, and a sudden, transient,
weak, unmilitary, and unsystematized resistance, and that in a solitary
instance, and for the single object of personal emolument.36
Livingston concentrated here entirely on the intent element as the
safeguard against extension of the crime by inference:
In what can we discover the treasonable mind, which common sense, as
well as all the authorities tell us, is of the very essence of this offence?
... These learned judges also consider the intention as the only true guide in
ascertaining whether certain acts amount to treason, or a less offence, and
regard the universality, or generality of the design, as forming an essential
ingredient in the composition of this crime.37
Mr. Justice Livingston thus carefully insisted on the specific intent,
to ensure that mere resistance to lawful authority, or ordinary crime, would
not be treated as a levying of war. In United States v.
Hanway,38 Mr. Justice Grier, on circuit, by emphasizing that
treason was inherently a crime of deliberate, preconceived intention, developed
another facet of a cautiously defined specific intent: mere presence in a
riotous assembly or sudden, impulsive joining in damage wrought, would not
raise an adequate inference of participation in a design to levy war. Under
what amounted to a direction by the court, the jury acquitted of "treason" a
defendant, who had participated in a forcible effort to prevent the taking of
escaped slaves under the Fugitive Slave Law. Mr. Justice Grier raised a doubt
whether, under the English authorities of the generation preceding adoption of
the Constitution, a rising against the execution of a particular law was enough
to show treasonable intent, or whether the design must not be entirely to
subvert the government.39 But, at any rate, a calculated and general
intention, directed to a public and not merely a particular or private object,
must be shown, and not a mere "sudden 'conclamatio' or running
together."40 Since Grier noted that the defendant was "confessedly
present" at the disturbance, and that being present and aiding overtly or by
approval makes one a principal in treason (as, indeed, in other felonies), it
seems clear that he does not question the sufficiency of presence as an overt
act, but focuses instead on the intent.41 Grier also charged, as had
Livingston, that mere breach of the law, as, for example, by smugglers
resisting the revenue officers, though necessarily involving forcible
opposition to authority, is not treason. His evident distaste for the doctrine
of constructive levying of war led him practically to read it out of the scope
of treason, as that offense had been defined in the early English cases:
A whole neighbourhood of debtors may conspire together to resist the
sheriff and his officers, in executing process on their property — they
may perpetrate their resistance by force of arms — may kill the officer
and his assistants — and yet they will be liable only as felons, and not
as traitors. Their insurrection is of a private, not of a public nature; their
object is to hinder or remedy a private, not a public
The new climate of policy reflected in the Hoxie and
Hanway cases is the more striking because both prosecutions were brought
as test cases by administrations eager to obtain the support of favorable
decisions for hotly controverted public policies. In this light, it is
significant that the grounds on which President Adams decided to pardon those
convicted in the earlier "state trial" of Fries and his companions, arising out
of the excise riots of 1799, amount to an insistence that a levying of war can
be established only on a showing of specific intent to overthrow the
Reported decisions indicate but one attempt since the Civil War to use
the charge of treason by levying war. This has not been for lack of occasions
on which, at least under the seventeenth and eighteenth-century English
authorities, sufficient overt acts might have been shown. Consider the railroad
strike riots of 1877, the Haymarket affair of 1886, Coxey's Army, and the
Pullman strike in 1894.44 But, as a matter of practical
construction, the crime of treason by levying war has been restricted here, and
perhaps in England, to the offense described by the literal meaning of the
words: a direct effort to overthrow the government, or wholly to supplant its
authority in some part or all of its territory.45 In terms of
doctrine, this amounts to limiting the scope of the crime by insistence upon
the showing of a carefully defined intention.
That it is the intent and not the act element which limits the scope of
the crime is plain from the notable instances where the most flagrant overt
acts in defiance of law were not charged as treason. The same emphasis upon
intention is also seen on the one occasion in which a broader use of the charge
of levying war was attempted. Following the Homestead Riot of 1892, several of
the strike leaders were indicted for levying war against the state of
Pennsylvania, after the grand jury had been charged by the Chief Justice of the
state, that a mere mob, collected upon the impulse of the moment, without any
definite object beyond the gratification of its sudden passions, does not
commit treason, although it destroys property and takes human life.
But when a large number of men arm and organize themselves by divisions
and companies, appoint officers and engage in a common purpose to defy the law,
to resist its officers, and to deprive any portion of the fellow-citizens of
the rights to which they are entitled under the Constitution and laws, it is a
levying of war against the state, and the offense is treason.46
These, as well as other charges, were quietly dropped after the
acquittal of three of the men, in prosecutions for murder growing out of the
encounter with the Pinkerton men.47 Significantly, the resort to the
treason charge met with prompt and unanimous criticism from conservative
professional sources. Criticism ranged from the polite doubts of the Albany
Law Journal to the biting commentary of the American Law Review,
which found the indictment "a mass of stale, medieval verbiage, drawn
seemingly from some old precedent, not dating later than the reign of William
and Mary," and which declared that the charge of Mr. Justice Grier, in the
Hanway case, disposes of any attempt to raise to the grade of treason
the act of a lot of half-starved mechanics or their governing committee, where
they are organized into a society, in taking unlawful measures to coerce their
employer into compliance with their demands. The object is not to bring about
any political change whatever, but to subject a party to an intended
contract to a species of duress, such as will compel him to enter into a
contract determined upon by the members of the unlawful combination. It is
undoubtedly an unlawful conspiracy, provided it has in contemplation the
attainment of its object by unlawful means.... But it is the wildest dream to
dignify such a conspiracy with the name of treason.48
The character of the intention, therefore, rather than any difference in
the overt acts, marks the line between riot and treason by levying
war.49 Even in the lesser of these offenses, moreover, hardly a
score of the approximately 250 cases on riot or unlawful assembly listed in the
American Digest System since 1787 involve prosecutions for disturbances arising
out of issues of a public, rather than a private character. This distribution
may be a concrete manifestation of a legal theory favoring the free competition
of interests in the forum of public opinion. However, it is more directly
significant for our central inquiry that most of these "public issue" riots
could probably have been fitted within the crime of levying war, as that crime
had been developed by construction before 1787.50 The relation
between the history of the riot cases and the treason cases is implicit in the
recent ruling of the Supreme Court of Utah in State v.
Solomon.51 That case reversed the conviction of participants in
a riot over "relief" administration on the ground that the district attorney's
address to the jury had introduced an irrelevant and highly prejudicial element
by implying, without support in the evidence, that the rioters had a subversive
intent directed against our form of government. There are some indications in
other cases of a similar resort to a careful definition of specific intent in
order to limit the dangerous potentialities inherent in the charge of
conspiracy to obstruct the execution of the laws.52
Decisions concerning adherence to the enemy are as few as those
regarding the levying of war, but there also an effort has been made to define
the requisite intention in such a way as to protect the innocent. The most
illuminating treatment is in United States v. Pryor.53There Washington, Circuit Justice, at least in part because the evidence
did not show specific treasonable intent, in effect directed a verdict. The
defendant, who had been taken prisoner by the British squadron blockading the
Delaware in 1814, sought to ransom himself and his fellows by going ashore with
a British party under a flag of truce to help them purchase provisions. The
court instructed the jury that the act of going ashore under a flag of truce
was not a sufficient overt act, because, though it evidenced intent, it was not
sufficiently far advanced in the execution of that intent. But Mr. Justice
Washington also indicated that the existence of a specific intent to betray
would affect the determination of what was a sufficiently advanced act to be an
"overt act," for some intents are more dangerous than others and hence the law
should take earlier preventive steps against those holding the former type of
intent. Here, however, there was a flag of truce and "no act of hostility was
attempted, nor is there the slightest reason to believe that any was meditated
by the prisoner, or by any of the party." In these circumstances,
All rests in intention merely, which our law of treason in no instance
professes to punish. Carrying provisions towards the enemy, with intent to
supply them, though this intention should be defeated on the way, would be very
different from the act of going in search of provisions for such a purpose, and
stopping short before any thing was effected, and whilst all rested in
intention.... But, if the intention of the prisoner was to procure provisions
for the enemy, by uniting with him in acts of hostility against the United
States or its citizens, which is chiefly pressed against him by the district
attorney; then, indeed, it must be admitted, that his progressing towards the
shore, was an overt act of adhering to the enemy, although no act of hostility
was in fact committed....54
Charges to the jury in cases of adhering, as well as in those of levying
war, have carefully instructed that, though the mere fact of mixed motives will
not negative guilt, the defendant must have in mind more than the purpose of
aiding the individual with whom he deals, as an individual; he must know, or
have reason to know, that he is dealing with an agent of the
enemy.55 Though the Supreme Court in the Cramer case declared
that treasonable intent may be established by the familiar formula of assuming
that the "natural consequences" of action were intended,56 the
Court's failure to link this vague test with the implications of the historic
policy restrictive of the scope of "treason," elsewhere so strongly recognized
in its opinion, creates some ambiguity. However, the "natural consequences"
from which intent is inferred are those foreseeable by "one standing in his
circumstances and possessing his knowledge,"57 and this
qualification is flexible enough to permit reconciliation of the "natural
consequences" formula with the requirement, implicit in previous cases, that a
specific intent must be shown.
(c) The Act: Limitation of "Adhering to the Enemy"
Anthony Cramer, German by birth, became a resident of the United States
in 1925, and was naturalized in 1936. Since 1929 he had been an intimate friend
of Werner Thiel, whom he knew to be a frankly avowed adherent of the German
Nazi movement. Cramer, like Thiel, was a member, and for a time an officer, of
the organization which preceded the Bund. Before Pearl Harbor, Cramer openly
opposed the entry of this country into the war and expressed strong sympathy
with Germany in its fight with other European powers. After Pearl Harbor he
refused to work on war materials and expressed concern about being drafted into
the Army of the United States and "misused" for purposes of "world
Thiel had returned to Germany in 1941, as Cramer knew, to help that
country. In June, 1942, Thiel and seven other German soldiers, armed with
explosives with which to destroy the American aluminum industry, were landed on
the eastern coast of the United States by submarine. Cramer had not anticipated
Thiel's return as a saboteur; but in response to a cryptic message, he met
Thiel. The two had a meal in a public restaurant, and on the following evening
met again at the same place, together with Kerling, leader of Thiel's saboteur
unit. Both meetings were observed by two or more agents of the FBI, who were
trailing the saboteurs; but the agents overheard none of the conversations, nor
did they observe any actions except Cramer's dining and talking earnestly with
the others. From statements later made by Cramer to Thiel's fiancee, his
admissions to FBI agents after his arrest, and especially from his admissions
on the witness stand, it appeared that as a result of the first meeting, Cramer
had reason to, and did, believe that Thiel was in the United States on a
mission for the German government. Cramer, however, denied any belief that
Thiel's mission was sabotage, but admitted to a belief that Thiel was here to
spread rumors and incite unrest. Cramer also had agreed to, and did, write
Thiel's fiancee to come to New York for the purpose of meeting Thiel. At the
first meeting there had been talk that Cramer should take Thiel's money belt,
containing, according to Cramer, about $3600. Cramer was to put the bulk of
this money in his safe deposit box, keeping some handy for Thiel's convenience
and taking $200 of the money in payment of an old debt owed him by Thiel. By
Cramer's own admission the money belt was transferred at the second meeting,
and Cramer put in his safe deposit box all the money, except some which he kept
in his room to meet Thiel's requests.
Cramer, after indictment for treason by adhering to the enemy and giving
him aid and comfort, was tried, found guilty, and sentenced to 45 years
imprisonment and a $10,000 fine. The overt acts submitted to the jury, and
considered subsequently by the Supreme Court, were that Cramer "did meet with"
Thiel, and with Thiel and Kerling, "enemies of the United States," and "did
confer, treat, and counsel with" Thiel and Kerling "for a period of time for
the purpose of giving and with intent to give aid and comfort to said
enemies...."58 The conviction was affirmed by the Circuit Court of
Appeals for the Second Circuit. Certiorari was granted, and after argument at
the October Term, 1943, the Supreme Court invited reargument addressed both to
the meaning of "treason" under the Constitutional definition, and the
sufficiency thereunder of the proof in Cramer's case. The case was reargued
November 6, 1944, and on April 23, 1945, the conviction was reversed in a five
to four decision. Mr. Justice Jackson spoke for a majority including Justices
Roberts, Frankfurter, Murphy, and Rutledge. The dissenting opinion of Mr.
Justice Douglas was concurred in by the Chief Justice, and Justices Black and
The majority apparently found the Government's case deficient both as to
the nature of the overt act laid, and as to the proof thereof. The heart, as
well as some of the ambiguities, of the ruling are contained in the following
The Government contends that outside of the overt acts, and by lesser
degree of proof, it has shown a treasonable intent on Cramer's part in meeting
and talking with Thiel and Kerling. But if it showed him disposed to betray,
and showed that he had opportunity to do so, it still has not proved in the
manner required that he did any acts submitted to the jury as a basis for
conviction which had the effect of betraying by giving aid and comfort. To take
the intent for the deed would carry us back to constructive
The Cramer case thus reaffirms the doctrine, familiar in English
law, and established both by the history of the Convention of 1787 and in the
almost unbroken line of prior American decisions, that an overt act is a
separate and distinct element of the crime of treason.60 In other
words, the prosecutor must produce adequate evidence to establish two
propositions: one concerning a state of mind; the other concerning
conduct.61 And the distinct character of the intent and act elements
of the crime is further reflected in rulings that, since each must equally be
established, the order of proof is in the discretion of the
The function of the intent element of the crime, as indicated by those
authorities which would require a showing of specific intent, is to identify
the special gravity of the offense, and to define permissible objects of
private action in the field of public policy.63 The function of the
overt act element, "the concern uppermost in the framers' minds," says the
Cramer opinion, is to ensure "that mere mental attitudes or expressions
should not be treason."64 Here, the opinion accords with previous
American authority, in which with remarkable unanimity the judges have stated
that the function of the overt act element of the crime consists in the
demonstration that the defendant has moved from the realm of thought, plan,
ideas, or opinions into the world of action. The overt act is to show that the
defendant has done something about what was in his mind, something, as is
typically said, "in furtherance" of his intention.65 This function
of the act element in treason seems in part to express a policy familiar in the
general law of crimes, which commonly insists on the showing of an act as well
as an intent, as a curb on arbitrary wielding of official power.66
The Cramer opinion, however, apparently regards the act element as
designed more particularly to curb the two dangers which it notes as peculiar
to the offense: the use of the treason charge to suppress peaceful political
opposition; and conviction of the innocent on perjured evidence or under the
spur of passion.67 In some previous opinions there is like emphasis
upon the significance of the overt act requirement as a curb on abusive use of
treason prosecutions in political faction.68
However, in implementing the function of the overt act, Cramer v.
United States goes far beyond the current of previous American authority by
apparently insisting that the act of adherence to the enemy must be one which
successfully confers tangible benefit upon the enemy; an act which is merely a
step in furtherance of a design to confer such benefit is not enough, however
substantially it may advance that purpose. "The very minimum function that an
overt act must perform in a treason prosecution is that it show sufficient
action by the accused, in its setting, to sustain a finding that the accused
actually gave aid and comfort to the enemy."69 The literal meaning
of the court's words is underlined by the comment footnoted to the word "gave,"
that "We are not concerned here with any question as to whether there may be an
offense of attempted treason."70 Evidently the majority felt that
its concept of "treason" contained nothing which might smack of an
attempt.71 In the instant case,
There is no showing that Cramer gave [Thiel and Kerling] ... any
information whatever of value to their mission or indeed that he had any to
give.... Cramer furnished them no shelter, nothing that can be called
sustenance or supplies, and there is no evidence that he gave them
encouragement or counsel, or even paid for their drinks.... without the use of
some imagination it is difficult to perceive any advantage which this meeting
afforded to Thiel and Kerling as enemies....72
The case would have been "quite different," however, if the transfer of
the saboteur's money had been proved as the overt act:
That Thiel would be aided by having the security of a safe-deposit box
for his funds, plus availability of smaller amounts, and by being relieved of
the risks of carrying large sums on his person — without disclosing his
presence or identity to a bank — seems
But the Court rejected, as a sufficient overt act, the prearranged
meeting with a known enemy agent for the purpose of arranging this transfer of
funds.74 The further implication that a fait accompli is also
the requisite overt act in the other branch of treason is conveyed by the
opinion's emphasis that the latter consists in the "actual" levying of
Even assuming that a benefit must be shown to have been actually
conferred on the enemy, the Court's application of its rule seems unreasonably
narrow. Cramer's second meeting with Thiel afforded the essential opportunity
to transfer Thiel's money. In the "setting" of Thiel's mission and
circumstances this was obviously in itself an aid to him, if, as the Court
found, the safekeeping of his money was an aid.76 If this is
insufficient, why should the mere act of receipt of the money by Cramer be
enough? Why should it not be necessary to present as the overt act Cramer's
deposit of the funds in his safe-deposit box, or his first subsequent
disbursement to Thiel? To make sense in its own terms the majority opinion
requires some further rationalization in terms of proximate cause, which,
however, it does not offer.
The requirement that the overt act constitute "actual" aid is within the
scope of the words of the constitutional definition, and might be deemed
supported by the early English legislation and judicial constructions which
were felt necessary in turbulent times to strike preventively at conspiracies
not covered by the Statute of Edward III.77 But "giving" aid and
comfort might also mean simply that the accused have done something in tender
of aid, whether or not benefit accrued to the enemy. The Statute of Edward III,
from whose terms the definition in the United States Constitution is borrowed,
has, like a constitutional provision, had the scope of its meaning unfolded
only by experience. By 1787 English doctrine had long treated the overt act
element in treason so as to make the crime itself of the nature of an
attempt.78 Thus it was settled that, even if the defendant's "aid"
were intercepted before reaching the enemy, treason was made out.79
There is nothing in the discussions surrounding the framing and ratification of
the Constitution, moreover, to suggest that in this respect the familiar terms
of the English definition were intended to be taken in their unglossed rigor.
The American decisions under the Constitution, with one exception, were in
accord before the Cramer case.80 Cases involving adherence to
the enemy were markedly liberal in applying what seems the familiar technique
of the law of attempts. Such ordinary commercial transactions as purchasing
goods, holding money on deposit, provisioning a ship, and borrowing from a bank
have been held sufficient overt acts, where they were linked with an intention
thereby to give aid and comfort to the enemy.81 And there seems no
logical reason why a meeting might not be a sufficient overt act, without
regard to whether its purpose was simply to plan future activity, or to serve
as a means to effectuate plans. On the authorities it is clear, however, that a
meeting to plan to subvert the government is not an overt act of treason; it is
rather "conspiracy to levy war," and ever since Lord Coke pronounced it such,
his dictum, given without satisfactory explanation save such as may be inherent
in the phrase "levying war," has been religiously followed.82 But
there is no comparable line of historical authority against holding a meeting
to plan the giving of aid and comfort to an enemy a sufficient overt act. And
it seems taken for granted that harboring an enemy agent is a sufficient overt
act of adherence, though the line between this and a meeting to plan the giving
of aid might become quite shadowy.83 If, as in the Cramer
case, the meeting is not to plan, but instead to effectuate a plan; or even if
the meeting is both to plan and to gather in a state of readiness to execute
such plans as may be made at the meeting, there is a sufficient overt act under
previous authorities even for the charge of levying war.84
In United States v. Greathouse, the assembling of a ship's
company aboard a vessel intended as a privateer, but not yet so equipped, seems
to be treated as a sufficient overt act.85 The intent, of course,
will always determine the criminality of a meeting, and thus if the sole
evidence of intent is a meeting with a known rebel or enemy, with no evidence
of an intention that the meeting serve any purpose of the rebel or enemy, the
most that could be made out would be misprision of treason. Moreover, "war" is
in its nature a collective activity, and this serves to explain in part at
least Marshall's well-known remarks on the necessity of an assemblage to
constitute a levying of war: individual action may amount to levying war when
men are already waging war, but in no fair sense of the term could the isolated
acts of an individual be said to constitute war against a state.86
But Marshall was also unwilling to overrule ancient authority rejecting
conspiracy to levy war as a sufficient overt act, and so he insisted that the
assemblage be present in force. In their total context his remarks, despite
some ambiguous references to this force as evidencing the intention behind the
assembly, simply insist, as would the law of attempts, that defendants be shown
to have had some minimum capacity-in-fact, sufficient at least to make them
dangerous, to do harm.87
The majority opinion in Cramer v. United States advances no
justification in history or authority for its apparent insistence that, to make
out an overt act, "actual" aid be given. As a matter of policy such a ruling
does not necessarily follow, as the Court seems to believe, from the announced
function of the overt act: to ensure "that mere mental attitudes or expressions
should not be treason."88 The law of attempts is nothing more or
less than a standard to achieve this same objective in the general criminal
law, and it has there proved a workable device.89 As soon as one
requires the showing of some act reasonably advanced in execution of the
criminal intention the danger of prosecuting men for their thoughts alone has
been met. It might, of course, be a defensible position to decide that
"treason" is a crime so intrinsically open to abuse that it should be
abolished. But, if the crime of treason is to be retained, it should be
recognized that its value is at least as much in prevention as in punishment.
To wait for aid to be "actually" given the enemy risks stultification: the
treason may be successful to the point at which there will no longer be a
sovereign to punish it.
(d) The Evidence of the Overt Act
It is constitutionally required that at least part of the evidence to
establish the crime of treason be of a defined type: "the Testimony of two
Witnesses to the same overt Act."90 The elementary meaning of this
is plainly stated by the Cramer opinion:
While to prove giving of aid and comfort would require the prosecution
to show actions and deeds, if the Constitution stopped there, such acts could
be inferred from circumstantial evidence. This the framers thought would not
do. So they added what in effect is a command that the overt acts must be
established by direct evidence, and the direct testimony must be that of two
witnesses instead of one. In this sense the overt act procedural provision adds
something and something important, to the
Cramer v. United States, however, raises the further question,
whether the overt act testified to by the two witnesses must, in itself, either
(1) provide at least some evidence (if not evidence beyond a reasonable doubt)
of treasonable intention, or (2) demonstrate that aid and comfort were given to
the enemy. Neither proposition follows necessarily from the elementary meaning
of the two witness provision. An act which merely serves to show that the
defendant has moved from the realm of thought into that of execution can as
well be shown, and required to be shown, by direct evidence as an act having
either of the other suggested evidentiary values. Nothing in the Cramer
opinion seems to claim the contrary.92
It was clear on previous authority that the treasonable intention need
not be proved by inference from an overt act testified to by two witnesses,
and, therefore, it was not necessary to prove by two witnesses conduct offered
as evidence of intention which could suffice as an overt act.93
The majority opinion in Cramer's case seems to agree with this, and is
expressly so construed by the dissent. According to the majority,
What is designed in the mind of an accused never is susceptible of
proof by direct testimony. If we were to hold that the disloyal and treacherous
intention must be proved by the direct testimony of two witnesses, it would be
to hold that it is never provable. It seems obvious that adherence to the
enemy, in the sense of a disloyal state of mind, cannot be, and is not required
to be, proved by deposition of two witnesses.94
However, it is, of course, "permissible" to draw inferences as to intent
from the overt acts as well as from other conduct of the
Actually, the majority opinion has only conceded a truism. Consistent
with all this it might still be held that, insofar as acts of the defendant are
relied on as the basis for inferring intent, any and all such acts must be
proved by the testimony of two witnesses. This would not be to require proof of
intent by "direct" testimony of two witnesses.
The majority, it is true, purported to reject the more extreme argument
of the defendant, that the overt act must in itself "manifest" the treasonable
intention. This contention is contrary to the long settled doctrine that the
intent and the act are distinct elements of the crime, and "would place on the
overt act the whole burden of establishing a complete treason."96
Moreover, the demand that an act, in itself and apart from extrinsic evidence,
evidence the intention with which it is done, or the effect which it may or
does produce, rests on an unsound conception of the meaning, for these
purposes, of the term "act." The law treats a physical movement as an act only
if it is willed. Thus behind every jural act there is, ex hypothesi,
some purpose, for it would seem psychologically impossible to will a
movement without some purpose. Some acts, as, for example, the tying of a
shoelace, may conceivably have a purpose (as distinguished, perhaps, from the
more remote question of motive), which in all normal cases may be inferred from
observation of the acts alone. This is not a theoretical matter, but is true
simply because some acts are capable of serving a narrower range of human
satisfactions or designs than others. But, when one is dealing with ends as
broad as the subverting of a government by domestic disturbance or by aid to
its enemies, the range of acts which may fit such purposes is as broad as the
possible economic, political, social, racial, sectional, or class factors which
affect the health or existence of a community. The acts which can serve to
advance purposes of such range may, conversely, be acts which might in another
context serve innocent purposes in economic, political, social, racial,
sectional, or class dealings. Indeed, so varied is the character of the conduct
which may serve the broad purposes penalized by the treason clause, that even
the man whose purpose seems to be merely the obvious and undivided one of tying
a shoelace may be conveying military intelligence to an observer according to a
prearranged code. If thus in theory no act has a meaning in itself, in the
sense of a significance which can be grasped by observation of the act alone,
so in practice one understands the meaning of acts only insofar as he knows
other facts in context with the acts.97 This is particularly likely
to be true in dealing with the kind of purposes penalized by the treason
clause, since they may be served by manifold acts which can also serve many
other purposes. Thus, in prior cases, acts have been found treasonable which on
their face were "innocent"98 and acts appearing on their face to be
treasonable have been found innocent99 Indeed, if acts could have
meaning in themselves, it is difficult to see why, after the centuries of
experience represented by the criminal law, it was found necessary or desirable
to develop the concept of intent as a separate element of crimes.
This seems partially recognized by the majority opinion in the
Cramer case, which notes that
it is only overt acts by the accused which the Constitution explicitly
requires to be proved by the testimony of two witnesses. It does not make other
common-law evidence inadmissible nor deny its inherent powers of persuasion. It
does not forbid judging by the usual process by which the significance of
conduct often will be determined by facts which are not acts. Actions of the
accused are set in time and place in many relationships. Environment
illuminates the meaning of acts, as context does that of words. What a man is
up to may be clear from considering his bare acts by themselves; often it is
made clear when we know the reciprocity and sequence of his acts with those of
others, the interchange between him and another, the give and take of the
But, if the majority thus rejects the extreme argument of the defense,
it also observes disapprovingly that
on the other hand, the Government's contention that it may prove by
two witnesses an apparently commonplace and insignificant act and from other
circumstances create an inference that the act was a step in treason and was
done with treasonable intent really is a contention that the function of the
overt act in a treason prosecution is almost
The majority described the "minimum function" of the overt act as being
to show the giving of aid and comfort, and purported to decide the case on the
insufficiency of the act to show this, rather than on its insufficiency to show
intention. 102 But the last-quoted statement ambiguously condemns
reliance on an "apparently commonplace and insignificant act" both because it
fails to evidence intent and because it does not show that aid was given. And,
when the Court concedes that
it may be that in some cases the overt acts, sufficient to prove
giving of aid and comfort, will fall short of showing intent to betray and that
questions will then be raised as to permissible methods of proof that we do not
reach in this case....103
it raises at least a doubt whether intent can be established at all,
outside the scope of the two-witness testimony. Cramer's act of taking the
saboteur's funds for safekeeping, which the majority indicates would be a
sufficient overt act if properly proved, is apparently given no weight by the
Court on the issue of intent, though the transaction was admitted by Cramer,
because it was not submitted as an overt act proved by two
The Court's remarks on the admissibility of evidence extrinsic to that
of the overt act testified to by two witnesses, but tending to prove the
"environment" of the act, seem equally applicable to the proof that aid was
given as to the issue of intent, though made with particular reference to the
latter issue.105 But the Court introduced doubt by its declaration
... the protection of the two-witness rule extends at least to
all acts of the defendant which are used to draw incriminating inferences that
aid and comfort have been given.106
Analyzing the evidence of Cramer's meetings with the saboteur, the Court
further observed that
the Government recognizes the weakness of its proof of aid and
comfort, but on this score it urges: "Little imagination is required to
perceive the advantage such meeting would afford to enemy spies not yet
detected...." The difficulty with this argument is that the whole purpose of
the constitutional provision is to make sure that treason conviction shall rest
on direct proof of two witnesses and not on even a little imagination. And
without the use of some imagination, it is difficult to perceive any
advantage which this meeting afforded to Thiel or Kerling as enemies ... there
is no proof either by two witnesses or by even one witness or by any
circumstance that Cramer gave them information or established any "contact" for
them with any person other than an attempt to bring about a rendezvous between
Thiel and a girl, or that being "seen in public with a citizen above suspicion"
was of any assistance to the enemy....107
Thus, though the Court made passing comment on the insufficiency of the
extrinsic evidence offered, the stress is on the weakness of the overt act. The
Court kept this same emphasis when, though conceding that Cramer's receipt of
the saboteur's money for safekeeping would be a sufficient overt act if
submitted as such, it refused to consider this transaction, though admitted by
Cramer, as evidence that the meeting afforded aid to the saboteur, because, "We
cannot sustain a conviction for the acts submitted on the theory that, even if
insufficient, some unsubmitted ones may be resorted to as proof of
treason."108 It is difficult to see why the second meeting between
Cramer and the saboteur does not satisfy the two-witness requirement, unless,
despite its theoretical concession of the admissibility of extrinsic evidence
of the "setting" of the act, the majority opinion practically ruled, as indeed
the dissent understood it to do, "that the related acts and events which show
the true character of the overt act charged must be proved by two
witnesses."109 On no other theory does it seem possible to describe
as an "apparently commonplace and insignificant act" a prearranged meeting with
a known enemy agent for the probable purpose of undertaking the safekeeping of
The only historic evidence we have of the intended function of the
two-witness requirement is Madison's note that "Docr Franklin wished this
amendment to take place — prosecutions for treason were generally
virulent; and perjury too easily made use of against innocence."111
Judge Learned Hand has argued that it is necessary to insist that the overt act
be such an act as evidences the treasonable intent because the safeguard
against perjury would be easily evaded if it were only necessary to obtain a
corroborating witness for some innocent detail of a single witness's
story.112 Apparently, Judge Hand's reasoning on this point was
wholly a priori. Dean Wigmore, however, did not see the special virtue
of the two-witness requirement in any implication that the overt act must
evidence the intent or anything else, but in a consideration which might apply
to any conduct sufficient to constitute an attempt according to familiar
criminal law standards; namely, that "the opportunity of detecting the falsity
of the testimony, by sequestering the two witnesses ... and exposing their
variance in details, is wholly destroyed by permitting them to speak to
Whatever the rule which the majority intended by its vacillating
language in the Cramer case, its opinion developed neither arguments of
policy nor evidence from history to support any of the functions which it may
be construed to have assigned to the two-witness requirement. Certainly there
is no sound basis in English or American history to require that the overt act
be such as to evidence the intent.114 And, since it was apparent in
the English authorities even before Lord Preston's Case115
that actual conferring of aid upon the enemy was not necessary to make out a
case of treason, no support can be found in that quarter, even by analogy, for
a requirement that the overt act demonstrate the giving of aid. Moreover, even
if the current of previous American doctrine is departed from, and it is
assumed that accomplished aid and comfort must be shown, the Court advances no
evidence that the framers intended the two-witness requirement to apply here.
The Constitution in its terms requires only the testimony of two witnesses to
an "act," not to the effect of that act.
Therefore, except for some references to the proof of the required
intent which, curiously, suggest a broadening of the scope of the offense, the
majority opinion in Cramer v. United States has cast such a net of
ambiguous limitations about the crime of "treason" that it is doubtful whether
a careful prosecutor will ever again chance an indictment under that head. The
uncertain meaning of the decision will alone be as strong a deterrent as any
doctrine elicited from it. Perhaps this is what the majority desire. The
opinion concludes with what amounts to an invitation to Congress "to enact
prohibitions of specified acts thought detrimental to our wartime safety," if
the limits set to "treason" are deemed too stringent:
The loyal and the disloyal alike may be forbidden to do acts which
place our security in peril, and the trial thereof may be focussed upon
defendant's specific intent to do these particular acts thus eliminating the
accusation of treachery and of general intent to betray which have such
As the law of "treason" is founded directly upon the Constitution, the
majority's self-denying policy amounts to a shift of power from the executive
and judicial branches to the legislative branch of the Federal government. The
consequences of this are obviously unpredictable; but the destruction of a
protective instrument which the Constitution placed in the hands of the
Executive, and thus beyond the authority of the Congress to expand or impair,
may come to have significance if crisis ever brings sharp division between the
branches of the government.117
1. 325 U.S. 1.
2. Id. at 26; cf. 2 Stephen, A History of the Criminal Law
of England (1883) 251, 283.
3. 325 U. S. 1, 27 (1945). No previous opinion had spelled out precisely
what form the general restrictive policy should take.
4. See Chase, C. J., in Case of Fries, 9 Fed. Cas. No. 5127, at 930 (C.
C. D. Pa. 1800) (second trial); Nelson, C. J., Charge to Grand Jury, 30 Fed.
Cas. No. 18,271, at 1035 (C. C. S. D. N. Y. 1861); Stephan v. United States,
133 F. (2d) 87, 90 (C. C. A. 6th, 1943), cert. denied, 318 U. S. 781
See also the argument of Sitgreaves, for the prosecution, and Ewing and
Lewis for the defense, in the first trial of Fries, 9 Fed. Cas. No. 5126, at
847-48, 887, 895-96 (C. C. D. Pa. 1799); argument of William Pinkney, for the
defense, in United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C. C. D. Md.
5. 4 Cranch 75, 125-26 (U. S. 1807). Cf. Livingston, C. J., in
charge to the jury in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398,
402, 403 (C. C. D. Vt. 1808). See also Cramer v. United States, 325 U. S. 1, 27
Mr. Justice Curtis, in charging the grand jury, found the Statute of
Edward III to have been "enacted ... mainly for the purpose of restraining the
power of the crown to oppress the subject by arbitrary constructions of the law
of treason." 30 Fed. Cas. No. 18,269, at 1025 (C. C. D. Mass. 1851). Cf.
Field, C. J., in charge to jury in United States v. Greathouse, 26 Fed.
Cas. No. 15,254, at 21 (C. C. N. D. Cal. 1863); Nelson, C. J., Charge to Grand
Jury, 30 Fed. Cas. No. 18,271, at 1035 (C. C. S. D. N. Y. 1861); Leavitt, D.
J., Charge to Grand Jury, 30 Fed. Cas. No. 18,272, at 1036 (C. C. S. D. Ohio,
The line between desirable freedom of discussion and political action
and "treason" is put at the point where men "pass from words to ... criminal
acts of resistance to law" by Sprague, D. J., Charge to Grand Jury Regarding
Mob Resistance to Execution of the Fugitive Slave Law, 30 Fed. Cas. No. 18,263,
at 1016 (D. Mass. 1851); cf. Leavitt, D. J., Charge to the Grand Jury,
loc. cit. supra at 1037. Compare also the decision of the Attorney
General not to prosecute the leaders of the Pittsburgh meeting of September 7,
1791, though the resolutions there adopted criticizing government policy and
petitioning Congress and the state legislature were a significant step in the
unrest which culminated in the "Whiskey Rebellion." (Note) 26 Fed. Cas. 499,
501, 503 (1795). See also Brandeis, J., dissenting in Schaefer v. United
States, 251 U. S. 466, 482, at 493 (1920); Mayer, D. J., in charge to jury in
United States v. Fricke, 259 Fed. 673, 677 (S. D. N. Y. 1919); cf.
Haywood v. United States, 268 Fed. 795, 799-800 (C. C. A. 7th, 1920),
cert. denied, 256 U. S. 689 (1921) (conspiracy).
The thread of insistence on a policy, in the interest of individual
security and free give-and-take in community life, against vagueness in the
definition of the crime, comes up to the present in the charge to the jury in
United States v. Stephan, 50 F. Supp. 738, 740, n. 1 (E. D. Mich. 1943). See
Stephan v. United States, 133 F. (2d) 87, 99 (C. C.A. 6th, 1943), cert.
denied, 318 U. S. 781 (1943).
6. 325 U. S. 1, 27 (1945).
7. United States v. Burr, 25 Fed. Cas. No. 14,692a, at 13 (C. C. D. Va.
1807). See also Livingston, C. J., in charge to the jury in the United States
v. Hoxie, 26 Fed. Cas. No. 15,407, at 397-98 (C.C.D. Vt. 1808). This comment
takes on particular emphasis because the charge as a whole so clearly reflects
Livmgston's sensitivity to the impeachment proceedings against Chase, J., for
his "strong ' expositions of the law of levying of war in the trial of Fries
and his ardent expositions of the Alien and Sedition Laws to juries Indeed,
after discounting the fervor of advocacy, it is still significant of a
prevailing attitude toward the policy of the treason clause that, in his answer
to the impeachment charges brought against him, Mr Justice Chase reasoned from
the historic danger of abuse of treason prosecutions in political faction to
justify his refusal to permit defense counsel in the trial of Fries to parade
before the jury the excesses of the earlier English treason cases See answer of
Chase, J., to impeachment charges, (Note) 9 Fed. Cas. 934, at 938 (1800),
cf. argument of defense counsel in United States v. Hanway, 26 Fed. Cas.
No. 15,299, at 117 (C.C. E.D. Pa. 1851) In his charge to the jury in the Fries
case, 9 Fed. Cas. No. 5,127, at 930 (C.C.D.Pa. 1800), Chase had, however,
confined himself to brief, opening praise for the constitutional definition and
proof requirements The argument based on the excesses of English treason
trials, which he prevented Lewis and Dallas from making to the jury, seems to
have been directed essentially to enlisting the jury's sympathies for the
policy of curbing factional use of "treason" prosecutions See, e.g.,
argument of Dallas on the first trial of Fries, 9 Fed. Cas. No. 5,126, at 878,
883, 879-81 (C.C.D. Pa. 1800), and the argument of Lewis, id. at
8 4 Cranch 75, 125 (U.S. 1807), cf. Leavitt, D. J., Charge to
Grand Jury, 30 Fed. Cas. No. 18,272, at 1038 (C.C. S.D. Ohio 1861) See Cramer
v. United States, 325 U. S. 1, 47 (1945).
The suggestion made in Ex Parte Bollman has been adopted in
several cases which, however, create some ambiguity by linking the protection
against public passion primarily to the two-witness provision See Sprague, D.
J., Charges to Grand Jury, 30 Fed. Cas. Nos. 18,273, at 1039, 18,274, at 1042
(D Mass 1861, 1863) Mingling, as it does, a substantive (overt act) and an
evidentiary (two witnesses) safeguard, the objects of this provision are
themselves somewhat ambiguous, but the cases stress more the danger of
convicting the "wrong man" than of expanding unduly the concept of "treason '
Thus in United States v. Haupt, 136 F. (2d) 661, 671 (C.C.A. 7th, 1943),
rev'g, 47 F. Supp. 832 (N D Ill. 1942), 47 F. Supp. 836 (N D Ill. 1942),
the court declared that the charge of treason presents special dangers of
unfair trials in a time of national crisis, and it linked this warning with a
ruling that the trial court had abused its discretion in denying motions for
severance of the trials of the several defendants after the admission of much
highly prejudicial evidence which did not relate to all of the defendants
Significantly, the Circuit Court of Appeals cited the Bollman case in
connection with its warning See also Chambers v. Florida, 309 U.S. 227, 236-37
(1940), where the Court lists the two-witness requirement of the treason clause
among the constitutional provisions inserted "as assurance against ancient
evils." On the other hand, the charge to the jury in United States v. Fricke,
259 Fed. 673, 677 (S.D.N.Y. 1919), relates the danger of injustice through
public passion both to the hazards of undue expansion of the scope of "treason"
and of conviction of the wrong man.
9 Cf. Chafee, Free Speech in the United States (1942) 51-60.
10 See United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y. 1919),
United States v. Haupt, 136 F. (2d) 661, 671 (C.C.A. 7th, 1943).
11 See p. 140 supra.
12 See Peters, D.J., in charge to jury in Case of Fries, 9 Fed. Cas. No.
5,126, at 909 (C.C.D.Pa. 1799) (first trial), Livmgston, C.J., in charge to
jury in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt.
13 See Cramer v. United States, 325 U.S. 1, 24 (1945), Ex parte
Bollman, 4 Cranch 75, 127 (U.S. 1807), United States v. Burr, 25 Fed. Cas. No.
14,692a, at 13 (C.C. D. Va. 1807).
14 See Cramer v. United States 325 U.S. 1, 35 (1945) (majority opinion),
59 (dissenting opinion), United States v. Burr, 25 Fed. Cas. Nos 14,692a, at
13, 14,693, at 159 (C.C. D. Va. 1807).
15 See Nelson, D.J., Charge to Grand Jury, 30 Fed. Cas. No.
18,271, at 1035 (C.C.S.D.N.Y. 1861), argument of Lewis, for the defense, in
Case of Fries, 9 Fed. Cas. No. 5,126, at 897 (C.C.D.Pa. 1799) (first trial)
Chase, C.J., refused, in the second trial of Fries, to permit defense counsel
to present to the jury a picture of the extreme constructions given to the
Statute of Edward III by English judges Defense counsel then withdrew from the
case Subsequently, in response to a request by President Adams, Dallas and
Lewis sent to the President a memorandum of the argument which they had
proposed to make at the second trial. This included the statement that "as the
spirit of the constitution is opposed to implied powers, and constructive
expositions, we are bound to take the plain manifest meaning of the words of
the definition, independent of any glossary which the English courts, or
writers, may have affixed to the words of the English statute." Id at
Probably mindful of the fact that the impeachment of Chase rested in
part on his refusal to let counsel argue this point, Livingston, C. J., noted
the issue, in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D.
Vt. 1808), but cautiously avoided it Because he found that no treason had been
committed in that case, even within the definitions of the English authorities,
he found it unnecessary to decide whether they had any binding effect, or to
"discuss a question which has been much agitated — whether, by the use of
these terms, it was intended to adopt the technical meaning which they had
already received in England, or whether, considering treason as a new offence
against a newly created government, the constitution on this point was to be
interpreted by itself, without reference to, or with the aid of any common law
16 See e.g., Cramer v. United States, 325 U.S. 1, 18 (1945),
Iredell, C.J., and Peters, D. J., in charges to the jury in Case of Fries, 9
Fed. Cas. No. 5,126, at 909, 912 (C.C.D.Pa. 1799), Marshall, C.J., in direction
to the jury in United States v. Burr, 25 Fed. Cas. No. 14,693, at 159-60 (C.C.
D. Va. 1807), Kane, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at
1048 (C.C. E. D.Pa. 1851), Curtis, C.J., Charge to Grand Jury, 30 Fed. Cas. No.
18,269, at 1025 (C.C. D Mass 1851), Cadwalader, D.J., in United States v.
Greiner, 26 Fed. Cas. No. 15,262 at 38 (E.D.Pa. 1861), Field, C.J., in charge
to jury in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 21
(C.C.N.D. Cal. 1863), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No.
18,273, at 1039 (D. Mass. 1861), United States v. Cramer, 137 F. (2d) 888, 894
(C.C.A. 2d, 1943) cf. Druecker v. Salomon, 21 Wis. 621, 626 (1867).
17 9 Fed. Cas. No. 5,126, at 909 (C.C.D.Pa. 1799), cf. the
exchange between the prosecutor and Chase, J., in the second trial of Fries, 9
Fed. Cas. No. 5,127, at 927 (C.C.D.Pa. 1800) See also the answer filed by
Chase, J., to his impeachment, (Note) 9 Fed. Cas. 934, at 938 (1800).
18 9 Fed. Cas. No. 5,126, at 912 (C.C.D.Pa. 1799), see, also, Peters,
D.J., id. at 909, Grier, J., in United States v. Hanway, 26 Fed. Cas.
No. 15,299, at 127 (C.C. E.D.Pa. 1851) Though he does not make clear how far he
would carry his strong condemnation of the incorporation of English judicial
constructions of the words of Edward III's Statute into the constitutional
definition, Tucker would probably agree substantially with the soundness of
thus distinguishing the earlier and later English decisions as guides to policy
See 5 Blackstone's Commentaries with Notes of Reference, to the Constitution
and Laws of the Federal Government of the United States and of the Commonwealth
of Virginia (Ed Tucker 1803) 85, n. 18, App Note "B," pp. 13, 40-41, 46.
19 See notes 7, 15, 17 supra. The views of Chase, J., on the
exclusion of English precedents antedating 1688 are set forth in great detail
in his answer to the impeachment charges filed against him The impeachment did
not rest on objections to these doctrines, but on the Justice's action in
preventing counsel from arguing them to the jury See 11 American State Trials
(Lawson ed. 1919) 197, 241, 242, 316, 345, 351.
20 325 U.S. 1, 47 (1945).
21 See Appendix, I, pp. 260-265 infra.
22 However, the materials surrounding the framing and ratification of
the Constitution tend to center the emphasis on the dangers of abuse of treason
prosecutions in political strife See p. 141 supra.
23 325 U.S. 1, 31 (1945).
24 Ibid. This statement comes after, but does not necessarily
follow from, the obvious point made by the opinion that intention can generally
be proved only by inference from conduct This is true, but does not rule out
the proof of specific intent by such inference, the standard of proof is simply
more precise and exacting Note also, as bearing out the implication of the
quotation above, the assertion in the majority opinion that statutory crimes
forbidding specific acts are safer than reliance on "treason," because "the
trial thereof may be focused upon defendant's specific intent to do those
particular acts thus eliminating the accusation of treachery and of general
intent to betray which have such passion-rousing potentialities." Id at
25 See, eg, Miller, Criminal Law (1934) 502 Even apart from its
inconsistency with the history of the American law of treason, this proposition
seems contrary to the familiar doctrine that a specific intent is necessary in
crimes of the nature of an attempt See Keedy, Ignorance and Mistake in the
Criminal Law (1908) 22 Harv. L. Rev. 75, 89, Sayre, Criminal
Attempts (1928) 41 Harv. L. Rev. 821, 822, 841, Skilton, The Mental
Element in A Criminal Attempt (1937) 3 Univ. of Pitt. L. Rev. 181, 182,
Turner, Attempts to Commit Crimes (1934) 5 Camb. L. J. 230, 235,
cf. Harno, Intent in Criminal Conspiracy (1941) 89 U. of Pa. L.
Rev. 624, 636, 637.
26 See 8 Holdsworth, History of English Law (1937) 327 ff.
27 But see Cramer v. United States, 325 U.S. 1, 20 (1945) Cf.
p. 87 supra.
28 See, e.g., United States v. Hoxie, 26 Fed. Cas. No. 15,407, at
398 (C.C. D. Vt. 1808), United States v. Stephan, 50 F. Supp. 738, 744 (E.D.
Mich. 1943) (trial court charge) John Brown's defense to the charge of treason
by levying war against the state of Virginia was, in part, that he had no
intent further than "to free slaves." See The Trial of John Brown, 6
American State Trials (Lawson ed. 1916) 700, 801, 802. There was evidence,
however, that Brown had envisioned his effort to help the slaves as possibly
involving the creation of a separate commonwealth, and, although he seems to
have raided Harper's Ferry with no well thought-out plan for the steps to
follow, his intent seems plainly to have embraced such overturning of existing
institutions as might be necessary "to free slaves." See Warren, John Brown
(1929) 350, 384, Villard, John Brown (Rev. ed. 1943) 427.
29 Thus the profit motive does not excuse the selling of provisions to
the enemy Hanauer v. Doane, 12 Wall 342 (U.S. 1871), Carlisle v. United States,
16 Wall 147 (U.S. 1873), Sprott v. United States, 20 Wall 459 (U.S. 1874),
United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C. D.C. 1814) And the
mingling of friendship or sympathy for the known enemy with the intent to aid
him, knowing him an enemy, does not negative the treasonable intent United
States v. Stephan, 50 F. Supp. 738, 740, n. 1, at 744 (E. D. Mich. 1943), 133
F. (2d) 87, 99 (C.C.A. 6th, 1943), United States v. Cramer, 137 F. (2d) 888,
893 (C.C.A. 2d, 1943) Nor does hostile duress acting on persons other than the
defendant, or directed at property, justify giving aid United States v. Hodges,
26 Fed. Cas. 332, No. 15,374 (C.C. D Md. 1815), United States v. Pryor, 27 Fed.
Cas. 628, No. 16,096 (C.C.D.Pa. 1814) Cf. United States v. Hughes, 26
Fed. Cas. 420, No. 15,418 (S.D. Ohio, 1864), Thompson, A Treason Trial in
Ohio (1883) 4 Ohio Bar Assn. Appendix II, 54.
A contrary doctrine concerning sale of supplies to the enemy might seem
to have evolved in the Confederate States of America Though originally regarded
as clearly involving treason, there trade with the enemy "came to be more
generally regarded as an offense against the revenue laws than as an act of
treason." Robinson, Justice in Grey (1941) 177. The circumstances strongly
suggest, however, that this course of opinion reflected a practical compromise
with facts, such trade as was going on seemed probably of greater benefit to
the South than to the North.
30 Thus, despite the confused argument of Pinckney for the defense, and
the unsatisfactory charge of Duval, C.J., the issue of motive seems the real
defense attempted in United States v. Hodges, cited in note 29 supra,
and the jury's verdict of acquittal may amount to interposition of mercy.
31 Cf. United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C.
32 Cf. Cramer v. United States, 325 U.S. 1, 29 (1945). "On the
other hand, a citizen may take actions which do aid and comfort the enemy
— making a speech critical of the government or opposing its measures,
profiteering, striking in defense plants or essential work, and the hundred
other things which impair our cohesion and diminish our strength — but if
there is no adherence to the enemy in this, if there is no intent to betray,
there is no treason. Note that the implication of the Court's observation
rejects the broad possibilities seen for the treason clause in McKinney,
Treason under the Constitution of the United States (1918) 12 Ill. L.
Rev. 381 and Warren, What is Giving Aid and Comfort to the Enemy? (1918)
27 Yale L.J. 331.
33 See 8 Holdsworth, History of English Law (1937) 335 ff.
34 See Paterson, C.J., in United States v. Vigol, 28 Fed. Cas. 376, No.
16,621 (C.C.D.Pa. 1795), Iredell, C.J., and Peters, D.J., in Case of Fries, 9
Fed. Cas. No. 5,126, at 840, 909, 912, Chase, C.J., in the second trial of
Fries, 9 Fed. Cas. No. 5,127, at 930 Needless to say, the Jeffersonian Congress
impeachment of Mr Justice Chase was not based on any objection to such parts of
his charge to the jury in the Fries trial as confined the definition of
treasonable intention, and, significantly, Chase's answer to his impeachment
boldly makes capital out of the fact that his refusal to allow defense counsel
to describe early English treason law to the jury was based on its excessive
scope, both in intent and in act See (Note) 9 Fed. Cas. 934, 938 ff.
36 Id at 400, 402 Livingston's ruling is the more striking
because, though the particular enterprise was only a somewhat unusually open
and brash smuggling attempt, it probably represented a type of conduct which
then met with the approval of that substantial part of the community which was
violently opposed to the Embargo A different temper of mind towards the scope
of "treason" might have led the court to find that a case existed Cf.
Moulton, A Vermont Treason Trial (1935) 29 Vt. Bar Assn. 121,
37 26 Fed. Cas. No. 15,407, at 399, 401-402 (C.C. D. Vt. 1808).
40 See 26 Fed. Cas. No. 15,299, at 128 (C.C. E.D.Pa. 1851). "Not because
the numbers of [or?] force was insufficient But (1) for want of any proof of
previous conspiracy to make a general and public resistance to any law of the
United States, (2) because there is no evidence that any person concerned in
the transaction knew there were such acts of congress, as those with which they
are charged with conspiring to resist by force and arms, or had any other
intention than to protect one another from what they termed 'kidnappers' (by
which slang term they probably included not only actual kidnappers, but all
masters and owners seeking to recapture their slaves, and the officers and
agents assisting therein).
"The testimony of the prosecution shows that notice had been given that
certain fugitives were pursued the not, insurrection, tumult, or whatever you
may call it, was but a sudden conclamatio or running together, to prevent the
capture of certain of their friends or companions, or to rescue them if
arrested Previous to this transaction, so far as we are informed, no attempt
had been made to arrest fugitives in the neighbourhood under the new act of
congress by a public officer.
Insistence on specific intent underlies Grier's admission of defense
evidence that in the previous nine months there had been rough seizure of
Negroes in the neighbourhood by men of dubious character, who acted without
show of official authority. This was recognized as a critical point, and was
hard fought, on both sides See Hensel, The Christiana Riot and the Treason
Trials of 1851 (1911) 78 The prosecution objected that the evidence was
irrelevant Grier answered. "The objection of the prosecution would be
irresistible if Hanway was indicted simply for resisting an officer of
government But in treason there must be some previous agreement." Id at
So also Grier and Kane, D.J., agreed that the prosecution, not having
previously supplied the defense with a list of the witnesses on the point as
the statute required, could not now introduce "rebuttal" evidence that for the
year previous armed bands of Negroes had ranged the neighbourhood seeking out
whites trying to reclaim slaves Judge Kane declared that "the two elements of
the crime are the act and the preconcert The evidence which is now offered is
merely to prove that preconcert It was an indispensable element of the original
case." Id. at 114.
41 See id. at 126.
42 Id at 128 Grier's observations are the more striking in view
of the clarity with which District Judge Kane, who sat with Grier in the
Hanway trial, had charged the grand jury on the theory that an attempt
by force generally to prevent the enforcement of a single law was treason by
levying war See Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at 1048 (C.C.
E.D.Pa. 1851) Judge Kane, a former district attorney and Attorney-General of
Pennsylvania, was herein merely reflecting his "well known views" on the need
for strict enforcement of the constitutional right of slave owners to the
return of their property See Hensel, op. cit. supra note 40, at
57-58 Justice Grier's evident distaste for the doctrine of constructive levying
of war is further pointed by the contrast of his remarks with the clear
presentation of the broader doctrine by the district attorney in his address to
the jury See Robbins, Report of the Trial of Castner Hanway (1852) 45, 53.
Mr. Justice Grier's sweeping exclusion of the mortgage debtor's case can
also be contrasted with the resort to force to stop the general operation of
the mortgage foreclosure system in farm states at the depth of the depression
of the 1930's See Skilton, Government and the Mortgage Debtor (1944) 74 So far
as appears, no effort was ever made to charge these disturbances as
constructive levying of war, though they seem within the scope of the older
43 See Appendix, III, pp. 268-269 infra.
44 There seems to be no evidence that any stronger measures than the use
of Federal troops were considered in connection with the 1877 riots. In view of
the broad construction of "conspiracy" used to convict the leaders in the
Haymarket meeting, it is notable that no charge of treason was attempted
Cf. Spies v. People, 122 Ill. 1, 12 N E 865 (1887), The Trial of the
Chicago Anarchists, 12 American State Trials (Lawson ed. 1919) 1, David,
History of the Haymarket Affair (1936) c. XIV.
The Spies decision was declared by (1887) 18 Weekly L. Bull 326,
327 to be "the most portentous and dangerous ... ever pronounced by a court of
justice in the United States," because "the theories laid down in the Chicago
case are essentially the exploded idea of constructive treason revived and
applied to the crime of murder."
Whatever the pacific protestations of its organizers, Coxey's "petition
in boots" was the sort of mass movement on the legislature which earlier
English doctrine would almost certainly have regarded as within the scope of
constructive levying of war, but, despite real official concern for the
dangerous potentialities of the movement, the only prosecutions which
eventuated were for the misdemeanors of unlawful parading on the Capitol
grounds and trampling the grass See McMurry, Coxey's Army (1929) 104-106, 116,
The value of fastening a serious criminal charge on the leadership of
the Pullman strike both as a matter of influencing public opinion and breaking
the morale of the strikers was fully appreciated by the government, which, yet,
relied on a conspiracy charge rather than the more intimidating accusation of
treason, and there seems to be no evidence that the possibility of the latter
was considered See Lindsey, The Pullman Strike (1942) c. XII, 276, 278, 279,
280, cf. Consolidated Coal & Coke Co v. Beale, 282 Fed. 934, 936
(S.D. Ohio 1922) Any theory of constructive levying of war was conspicuously
absent in strong charges delivered to grand juries in connection with the
strike See In re Charge to Grand Jury, 62 Fed. 828 (N D Ill. 1894),
In re Grand Jury, id., at 834 (S.D. Cal. 1894), In re
Grand Jury, id., at 840 (N.D. Cal. 1894).
There are numerous dicta through the Civil War period to the effect that
effort by force to prevent the general execution of a single law is a levying
of war See Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047
(C.C. D R I 1842), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,263
at 1,015 (D Mass 1851), Nelson, C.J., Charge to Grand Jury, 30 Fed. Cas. No.
18,261, at 1,012 (C.C.S.D.N.Y. 1851), Kane, D.J., Charge to Grand Jury, 30 Fed.
Cas. No. 18,276, at 1,048 (C.C. E.D.Pa. 1851), Curtis C.J., Charge to Grand
Jury, 30 Fed. Cas. No. 18,269, at 1,025 (C.C. D Mass 1851), United States v.
Gremer, 26 Fed. Cas. No. 15,262, at 39 (E.D.Pa. 1861), Field, C.J., in charge
to jury in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 22
(C.C.N.D. Cal. 1863), Charge to Grand Jury, In re Riots of 1844, 4 Pa
Law Jour Rep 29, 35 (Phila. Quar. Sess. 1844), also quoted at 26 Fed. Cas. 116,
Druecker v. Salomon, 21 Wis. 621, 626 (1867).
45 Cf. 8 Holdsworth, (2d ed. 1937) 320, 328-29, Kenny, Outlines
of Criminal Law (15th ed. 1936) 315.
46 Paxson, C.J., in Commonwealth v. O'Donnel, 12 Pa Co 97, 104-105 (Oyer
& Tr , Allegheny Cty 1892).
47 See Burgoyne, Homestead (1893) 294, Stowell, "Fort Frick" or the
Siege of Homestead (1893) 291.
48 (1892) 26 Am. L. Rev. 912, 914, cf. (1892) 46 Alb L. Jour 345,
(1892) 31 Am L. Reg. (N.S.) 691, 699, (1893) 15 Grim L. Mag 191, 197 Former
Chief Justice Agnew, of Pennsylvania, is quoted as stating in a letter to the
press that "it is easy to distinguish treason from not It lies in the purpose
or intent of the traitor to overthrow the government or subvert the law or
destroy an institution of the state Riot is a breach or violation of law, but
without a purpose against the state." See Burgoyne, Homestead (1893) 202.
49 See Seagle, Riot in 13 Enc. Soc. Sci. (1934) 388.
52 See Harno, Intent in Criminal Conspiracy (1941) 89 U of Pa L.
Rev. 624, 646 The practical protection against a finding of "guilt by
association" afforded by insistence upon a showing that any given defendant
shared the specific intent to commit the plotted crime is shown in United
States v. Bryant, 245 Fed. 682 (N.D. Tex. 1917), aff'd, 257 Fed. 378
(C.C.A. 5th, 1919) See, especially, 257 Fed. at 384.
A strict construction of the intent element in the general federal
conspiracy statute was the instrument employed to prevent a dangerously vague
extension of the crime in Haywood v. United States, 268 Fed. 795, 799-800
(C.C.A. 7th, 1920), cert denied, 256 U.S. 689 (1921) Cf. Baldwin
v. Franks, 120 U.S. 678 (1887), for the same rationale of interpretation,
though erroneously applied See Field, J., dissenting in 256 U.S. at 703, 705,
Deady, D.J., in In re Impaneling and Instructing the Grand Jury, 26 Fed.
749, 754 (D Ore 1886).
53 United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D.Pa. 1814)
And compare the acquittal of Joshua Hett Smith, for lack of convincing proof of
intent to join in Arnold's treason See note 97 infra.
54 Id at 630, 631.
55 See, e.g, United States v. Stephan, 50 F. Supp. 738, 740, n.
1, at 744, charge approved, 133 F. (2d) 87, 99 (C.C.A. 6th, 1943),
United States v. Fricke, 259 Fed. 673, 676, 682 (S.D.N.Y. 1919), Douglas, J.,
dissenting in Cramer v. United States, 325 U.S. 1, 49, n. 2 (1945).
56 See p. 193 supra.
58 The remaining overt act submitted to the jury was based on falsehoods
told by Cramer after his arrest to FBI agents, admittedly for the purpose of
shielding the saboteur The Supreme Court does not pass on the "complicated"
problem presented by this phase of the case, since it reverses on the error
found in submitting as overt acts Cramer's meetings with Thiel See 325 US 1,
36,n 45 (1945) The falsehoods would seem clearly to constitute a giving of aid,
although Thiel was already under arrest when Cramer falsified, and the latter
fact would seem irrelevant if prior doctrine were followed, and successful
conferring of a benefit on the enemy did not have to be shown Since the lies
were told to two or more of the Federal agents, they would seem to be
established satisfactorily under the two-witness provision.
59 Cramer v. United States, 325 U.S. 1, 39-40 (1945).
60 See Appendix, V, pp. 273-276 infra.
61 See, e.g., Paterson, C.J., in United States v. Vigol, 28 Fed.
Cas. 376, No. 16, 621 (C.C.D.Pa. 1795) Thus, though it be assumed that there is
incontrovertible evidence of treasonable plotting to subvert the government, a
conspiracy to levy war is not treason within the constitutional definition,
says Mr Chief Justice Marshall, because plotting does not amount to a
sufficient overt act Ex parte Bollman, 4 Cranch 75,126 (U.S. 1807) See
Peters, D.J., in charge to jury in first trial of Fries, 9 Fed. Cas. No. 5,126,
at 909 (C.C.D.Pa. 1799), and charge to Chase, C.J., on second trial, 9 Fed.
Cas. No. 5,127, at 931 (C.C.D.Pa. 1800), Livingston, C.J., in charge to jury in
United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt. 1808),
Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D r
1 1842), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,263, at 1,015
(D Mass 1851), Grier, C.J., in charge to jury in United States v. Hanway, 26
Fed. Cas. No. 15,299, at 127 (C.C. E.D.Pa. 1851), Nelson, C.J., Charge to Grand
Jury, 30 Fed. Cas. No. 18,271, at 1,035 (C.C.S.D.N.Y. 1861), Leavitt, D.J.,
Charge to Grand Jury, 30 Fed. Cas. No. 18,272, at 1,037 (S.D. Ohio 1861),
cf. Wimmer v. United States, 264 Fed. 11, 13 (C.C.A. 6th, 1920),
cert. denied, 253 U.S. 494 (1920).
On the other hand, where there was a clear overt act of armed resistance
to constituted authority — as by an armed clash with troops seeking to
enforce the Jeffersonian Embargo, or a forcible resistance to execution of the
Fugitive Slave Law — verdicts were nevertheless directed when evidence of
treasonable intent was lacking, or the evidence was ambiguous as to whether
force was not applied for particular or private purposes and hence would not
sustain the prosecution's burden of proof See, e.g., United States v.
Hoxie, 26 Fed. Cas. 397, No. 15,407 (C.C. D. Vt. 1808), United States v.
Hanway, 26 Fed. Cas. 105, No. 15,299 (C.C. E.D.Pa. 1851), cf. United States v.
Lemer, S.D. N.Y. 1943 (unreported) (reprinted in Brief for Petitioner, p. 47,
in United States v. Cramer, 325 U.S. 1 (1945)).
62 See, e.g., United States v. Burr, 25 Fed. Cas. No. 14,692a, at
54 (C.C. D. Va. 1807), United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C.
D.C. 1814), The Trial of Thomas Wilson Dorr, 2 American State Trials
(Lawson ed. 1914) 5, 22 (R I Sup. Ct. 1844), Pitman, Report of the Trial of
Thomas Wilson Dorr (1844) 10, cf. United States v. Fricke, 259 Fed. 673,
675 (S.D.N.Y. 1919) See also Douglas, J., dissenting in Cramer v. United
States, 325 U.S. 1, 54, n. 1 (1945) Marshall pointed out in effect that, if one
of the two elements were merely corroborative of the other, it would plainly be
improper and capable of prejudicial effect on defendant's rights to permit the
prosecutor to prove the corroborative fact before establishing the fact
corroborated. See United States v. Burr, 25 Fed. Cas. No. 14,692a, at 54 (C.C.
D. Va. 1807), and 7 Wigmore, Evidence (3d ed. 1940) § 2038 (praising the
"lucid opinion by Marshsll, C J.").
63 See Harno, op. cit. supra note 52, at 646.
64 325 US 1, 28 (1945).
65 See Ex parte Bollman, 4 Cranch 75, 126 (U.S. 1807), United
States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1,280 (C.C.D.Pa. 1795), Csse of
Fries, 9 Fed. Cas. No. 5,126, at 840 (charge to grand jury), 909 (first trial)
(C.C.D.Pa. 1799), Case of Fries, 9 Fed. Cas. No. 5,127, at 924, 931 (C.C.D.Pa.
1800) (second trial), United States v. Burr, 25 Fed. Cas. No. 14,6923, at 13-14
(C.C. D. Va. 1807), United States v. Burr, 25 Fed. Cas. No. 14,693, at 168
(C.C. D. Va. 1807), United St3tes v. Pryor, 27 Fed. Cas. No. 16,096, 3t 630
(C.C. D Pa. 1814), United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y. 1919),
United States v. Robinson, 259 Fed. 685, 690 (S.D.N.Y. 1919), United States v.
Haupt, 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd on other grounds, 136
F(2d) 66 1 (C.C.A. 7th, 1943), United States v. Stephan, 50 F. Supp. 738,
742-43 (E D Mich. 1943), approved, 133 F. (2d) 87, 99 (C.C.A. 6th, 1943)
All of the rulings and dicta refusing to recognize a conspiracy as a
sufficient overt act of levying war contain similar language or implications
See cases cited, note 61 supra. The familiar analysis is in the
background of those contemporary decisions refusing to concede that "mere
words," 3s punished under sedition acts, could constitute treason,
because they do not amount to sufficient execution of such treasonable intent
as they evidence See cases cited in notes 106, 111, 112, and 118, all in
chapter 4 supra To the same effect are numerous charges to grand
and petit juries regarding disturbances against the Fugitive Slave Law
and the outbreak of the Civil War See Charge to Grand Jury, 30 Fed. Cas. 1,015,
No. 18,263 (D Mass 1851), Charge to Grand Jury, 30 Fed. Cas. 1,047, No. 18, 276
(C.C. E. D. Pa 1851), United States v. Hanway, 26 Fed. Cas. 105, No. 15,
299(C.C. E. D. Pa. 1851), Charge to Grand Jury, 30 Fed. Cas. 1,024, No. 18,269
(D. Mass 1851), United States v. Greiner, 26 Fed. Cas. 36, No. 15, 262 (E.D.Pa.
1861), United States v. Greathouse, 26 Fed. 18, No. 15,254 (C.C.N.D. Cal.
1863), Charge to Grand Jury, 30 Fed. Cas. 1,034, No. 18,271
(C.C.S.D.N.Y. 1861), Charge to Grand Jury, 30 Fed. Cas. 1,036, No. 18,272 (C.C.
S.D. Ohio 1861), cf. 10 Ops. Att'y Gen. 513 (1863).
66 The function of the overt act in treason is identified with this
general policy of the criminal law in the charge to the jury in United States
v. Stephan, 50 F. Supp. 738, 740, n. 1, at 742-43 (E D Mich. 1943),
approved, 133 F. (2d) 87, 99 (C C. A 6th, 1943) See Hall, Criminal
Attempt — A Study of Foundations of Criminal Liability (1940) 49 Yale
L.J. 789, 818.
67 325 US 1, 28 (1945).
68 See United States v. Fricke, 259 Fed. 673, 677 (S. D. N.Y. 1919),
Charge to Grand Jury, 30 Fed. Cas. No. 18,272, 3t 1,037 (C.C. S. D. Ohio 1861)
This rationale is implicit in the decisions which sustain criminal syndicalism
legislation against the claim that it trenches on the treason clause, by
pointing out that legislation penalizing "mere words" does not ipso
facto purport to punish treason See cases cited in notes 106, 111, 112, and
118, all in chapter 4 supra.
69 Ibid. 325 U.S. 1, 34 (1945).
71 Id., 38 Compare also the comment that "where the sufficiency
of the overt acts has been challenged because they were colorless as to intent,
we are persuaded the reason intent was left in question was that the acts were
really indecisive as a giving of aid and comfort ' Acts "that are trivial and
commonplace," it continues, "hence are doubtful as to whether they gave aid and
comfort to the enemy." Id., 35. Likewise, in the court's summation,
cited in note 59 supra, its insistence that the act of meeting with the
saboteur is insufficient, because this would be "to take the intent for the
deed," points to a requirement that aid actually be conferred on the enemy The
majority's approving quotation of Lord Reading's formula that "aid" is "an act
which strengthens or tends to strengthen the enemy" (325 U.S. 1, 28) is
somewhat ambiguous and in isolation might suggest that something less than
accomplished aid and comfort would suffice But the formula may also mean simply
that a net accretion to the enemy's strength need not be shown, if it appears
that some effect of defendant's efforts has at least reached the enemy More
ambiguous are the majority's examples (id., 29) of "actions which do aid
and comfort the enemy," such as "making a speech critical of the government ...
profiteering, striking in defense plants ... ," for such acts would probably
require the conjunction of other events to constitute them effective aid to the
72 Id., 37.
74 See Note 59 supra.
75 325 U.S. 1, 28 (1945).
76 See United States v. Fricke, 259 Fed. 673 (S.D.N.Y 1919), cf.
Douglas, J., dissenting in Cramer v. United States, 325 U.S. 1, 55, n. 2
77 See 2 Stephen, History of the Criminal Law of England (1893) 263, 4
Holdsworth, History of English Law (1924) 496-97, Cf. Learned Hand, J.,
in United States v. Robinson, 259 Fed. 685, 689-90 (S.D.N.Y. 1919).
78 See Appendix, VI, pp. 276-279 infra.
79 See cases discussed by Douglas, J., dissenting in Cramer v. United
States, 325 U.S. 1, 64 (App 73-74).
80 Cf. Ex parte Bollman, 4 Cranch 75, 126 (U.S. 1807), United
States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C.D.C. 1814), United States v.
Pryor, 27 Fed. Cas. No. 16,096, at 631 (C.C.D.Pa. 1814), Story, C.J., Charge to
Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D. R.I. 1842), United
States v. Greathouse, 26 Fed. Cas. No. 15,254, at 24 (C.C.N.D. Cal. 1863)
United States v. Fricke, 259 Fed. 673, 678, 679 (S.D.N.Y. 1919), see United
States v. Stephan, 50 F. Supp. 445, 448 (E.D. Mich. 1943) That the law of
treason is probably, in fact, the origin of the general law of attempt, see
Hall, Criminal Attempt (1940) 49 Yale L.J. 789, 794-97, 815. That
treason is of the nature of a "direct attempt," see Strahorn, Effect of
Impossibility of Criminal Attempts (1930) 78 U. of Pa. L. Rev. 962, 964.
This is also the executive construction of the scope of "treason" in the
President's proclamation of April 16, 1917, warning of the nature and penalties
of treasonable activities See 18 U.S. C A § 1, annotation, at 4 (1940)
Contra United States v. Robinson, 259 Fed. 685 (S.D.N.Y. 1919),
Respublica v. Malm, 1 Dall. 33 (U. S. 1778) See Strahorn, op. cit.
supra at 994-95.
81 See, e.g., Hanauer v. Doane, 12 Wall 342 (U.S. 1870) (sale of
goods, intended for enemy use), United States v. Lee, 26 Fed. Cas. 907, No.
15,584 (C.C. D.C. 1814) (purchase of provisions, intended for enemy), United
States v. Greathouse, 26 Fed. Cas. 18, No. 15,254 (C.C.N.D. Cal. 1863) (fitting
out a sailing vessel, intended to act as a privateer), United States v. Werner,
247 Fed. 708 (E.D. Pa. 1918) (words), United States v. Fricke, 259 Fed. 673
(S.D. N.Y. 1919) (holding of funds on deposit, or borrowing money, when for
convenience of enemy agent), United States v. Haupt, 136 F(2d) 661 (C.C.A. 7th,
1943) (holding funds, securing lodgings, furnishing mailing address, when for
convenience of enemy agent).
82 See Marshall, C.J., in Ex parte Bollman, 4 Cranch 75, 126
(U.S. 1807), and cases cited in note 61 supra.
83 This was one of the overt acts charged in United States v. Haupt,
in an indictment the substantive validity of which was not involved in the
reversal of the convictions 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd,
136 F. (2d) 661 (C.C.A. 7th, 1943).
84 See United States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1,278
(C.C. D.Pa. 1795), Case of Fries, 9 Fed. Cas. No. 5,126, at 914 (C.C.D.Pa.
1799) (first trial), Case of Fries, 9 Fed. Cas. No. 5,127, at 931 (C.C.D.Pa.
1800) (second trial), Ex parte Bollman, 4 Cranch 75, 134, (U.S. 1807),
United States v. Burr, 25 Fed. Cas. No. 14,692a, at 14 (C.C. D. Va. 1807),
United States v. Burr, 25 Fed. Cas. No. 14,693, at 165, 168 (C.C. D. Va. 1807),
Charge to Grand Jury, 30 Fed. Cas. 1,015, No. 18,263 (D. Mass 1851), United
States v. Haupt, 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd on grounds not
affecting the substance of indictment, 136 F. (2d) 661 (C.C.A. 7th, 1943)
Cf. Stephan v. United States, 133 F. (2d) 87, 93, 94 (C.C.A. 6th, 1943)
But cf. Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at
1,047 (C.C. D R.I. 1842), Grier, C.J., in charge to jury in United States v.
Hanway, 26 Fed. Cas. No. 15,299, at 126 (C.C. E.D. Pa. 1851).
85 See 26 Fed. Cas. No. 15,254, at 24 (C.C. N D Cal. 1863).
86 See United States v. Burr, 25 Fed. Cas. No. 14,693, at 165, 168 (C.C.
D. Va. 1807).
87 Id at 169.
88 See note 71 supra.
89 See note 80 supra.
90 U.S. Const. Art III, § 3 The clause, of course, also recognizes
confession in open court as a basis for conviction.
91 325 U.S. 1, 30 (1945), see Marshall, C.J., in United States v. Burr,
25 Fed. Cas. No. 14,693, at 176 (C.C. D. Va. 1807), Baldwin, C.J., in United
States v. Doebler, 25 Fed. Cas. No. 14,977, at 886 (C.C. E.D. Pa. 1832) The
suggestion of Judge Hand in United States v. Robinson, 259 Fed. 685, 691 (S. D.
N.Y. 1919), that the requirement of direct evidence represents a continuance of
an archaic philosophy of proof by oath bearers seems without conviction in
logic, and is certainly without evidence in history It seems clear that a
rational theory of probative values, whether mistaken or not, underlies the
two-witness requirement. Indeed, it would be difficult to find two members of
the Federal Convention less likely to have been moved by considerations drawn
from a "system of trial not rational in its processes (Id at 691), than
Benjamin Franklin and James Wilson, whose remarks alone are recorded on the
point. See p. 133 supra, 7 Wigmore, Evidence (3d ed. 1940) § 2039,
259 Fed. at 692-93 The cases cited in this note discuss the basis of the
two-witness requirement wholly in terms of probative values, and the same
approach has been taken toward the requirements for proof of overt acts in
English law See 7 Wigmore, Evidence (3d ed. 1940) §§ 2036, 2037.
92 When the Court says (325 U.S. 1, 35) that "The two-witness principle
is to interdict imputation of incriminating acts to the accused by
circumstantial evidence or by the testimony of a single witness," it seems
merely to state its conclusion, not an argument therefor, since the meaning of
the assertion depends on the content of the "incriminating" act. This is true
also of the statement that "The words of the Constitution were chosen, not to
make it hard to prove merely routine and everyday acts, but to make the proof
of acts that convict of treason as sure as trial processes may be."
Ibid. The germ of an argument why aid or intent must be evidenced by the
act seems at first glance implied in the remark that the framers, "having thus
by definition made treason consist of something capable of direct proof," wrote
the two-witness requirement to safeguard the trial procedure Id., 29
But, again, the significance of the statement turns on the meaning of the act,
for obviously an act which merely furthers defendant's plan of aiding the enemy
is, qua act, as much "capable of direct proof" as an act which completes
93 Cf. Case of Fries, 9 Fed. Cas. No. 5,126, at 909, 914
(C.C.D.Pa. 1799) (first trial), see United States v. Doebler, 25 Fed. Cas. ,
No. 14,977, at 885-86 (C.C. E.D. Pa. 1832), 7 Wigmore, Evidence (3d ed. 1940)
94 325 U.S. 1, 31 (1945), cf. Douglas, J., dissenting, at 59.
95 325 U.S. 1, 31 (1945).
96 Id , 34, cf. Douglas, J., dissenting, id., 58
The fact that the intent and the act elements have always been recognized as
distinct, so that the prosecution must equally establish each, and that
distinct functions have been ascribed to them, in itself suggests that the
evidence sufficient to establish one element may not necessarily be required to
be of a character relevant to establishing the other As an a priori
matter, it may of course be argued also that both elements are designed,
ultimately, to prove the intent, which is the basic factor which may make the
accused a dangerous man, and that it would not be irrational, in promotion of
the obvious concern of the framers to safeguard the rights of the accused, if
the overt act were intended to be such as would offer corroborative evidence of
the intent It may fairly be urged that men in all ages would be perfectly
willing to punish one whom they were sure was adhering to the state's enemies
by treacherous thoughts, that the practical problem is one of securing adequate
proof to assure against abusive prosecutions of the innocent, and that, hence,
if the overt act element is construed to require proof which will provide
cumulative evidence of intent, this is not to say that the overt act
requirement is rendered meaningless Whatever the persuasiveness of this latter
analysis, certainly it must carry the burden of proof, for, by familiar
principles of construction, distinct elements in a constitutional, legislative,
or judge made rule of law are to be taken prima facie as intended to
serve distinct purposes See Marshall, C.J., in Marbury v. Madison, 1 Cranch
137, 174 (U.S. 1803) Further, if the evidence to establish the overt act is
required to be such as will corroborate the existence of the intent, it is
difficult to understand the decisions which so rigorously insist on full proof
of each element, acquitting those whose intent is assumed treasonable, but who
have not been shown guilty of an "overt act" Likewise, it is hard to see how it
can be said to be immaterial which element of the crime is proved first (see
note 62 supra), if one is corroborative of the other True, in the cases
of ruling on the order of proof, the issues arose because the prosecution
sought first to introduce its evidence on intent, and it might be argued that
it is hence wholly consistent with a corroborative function of the act element
to introduce the principal evidence on intent first But the rulings make no
such distinction, and Marshall, C.J., plainly says that there is none an answer
which is the more to the present point because it was in response to the
contention that the act must be proved first.
97 Cf. United States v. Schulze, 253 Fed. 377, 379 (S.D. Cal.
1918), aff'd without reference to the point here relevant, 259 Fed. 189
(C.C.A. 9th, 1919), Hall, op. cit. supra note 80, at 794-97,
98 See cases cited in note 81 supra.
99 See, e.g., United States v. Hodges, 26 Fed. Cas. 332, No.
15,374 (C.C. D. Md. 1815) (delivery of prisoners to enemy), United States v.
Hoxie, 26 Fed Cas. 397, No. 15,407 (C.C. D. Vt. 1808) (armed clash with troops
seeking to enforce national embargo), United States v. Hanway, 26 Fed. Cas.
105, No. 15,299, (C.C. E.D. Pa. 1851) (forcible resistance to execution of
Fugitive Slave Law), United States v. Magtibay, 2 Philipp 703 (1903) (duress),
United States v. Leiner, Cr. No. 113-120 (S.D.N.Y. 1943) (unreported, see note
61 supra) (misstatements to authorities regarding identity of spy)
Distinguish cases where the prosecution fails because the acts shown are not
deemed sufficiently advanced in execution of the intent See, e.g.,
United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D.Pa. 1814)
United States v. De Los Reyes, 3 Philipp 349 (1904).
There is no more striking example of conduct on its face clearly
treasonable, but in fact found innocent, than the case of Joshua Hett Smith
Smith, a resident of the West Point area, arranged to have two of his tenants
row him on the night of September 21, 1780, to the British sloop Vulture, lying
in the Hudson. He hailed the vessel as a friend, boarded her and was aboard for
fifteen to twenty minutes, after which he returned to the rowboat accompanied
by Major Andre, whom he then brought ashore for the meeting with Arnold. Smith
took Andre to his house and furnished him with the civilian coat which Andre
wore at the time of his capture. Smith was tried before a court-martial,
convened under a resolution of the Congress authorizing the commander in chief
thus to try any citizen who should harbor or secrete any of the subjects or
soldiers of Great Britain, knowing them to be such, or should be instrumental
in conveying intelligence to the enemy. His defense, apart from a challenge to
the jurisdiction of the court martial, was that Arnold had enlisted his aid on
the pretext that this was a means of obtaining information helpful to the
American cause. The most careful student of the Arnold conspiracy apparently
believes that Smith was telling the truth. Van Doren, Secret History of the
American Revolution (1941) 330, 331, 337. The court-martial acquitted the
defendant, finding that although he had aided Arnold, "yet they are of opinion,
that the evidence is not sufficient to convict the said Joshua H. Smith of his
being privy to, or having a knowledge of the said Benedict Arnold's criminal,
traitorous and base designs." See The Trial of Joshua H. Smith for Assisting
the Enemy, 6 American State Trials (Lawson ed. 1916) 486; 2 Chandler,
American Criminal Trials (1844) 255; Smith, An Authentic Narrative of the
Causes which Lead to the Death of Major Andre (1809) 118.
100. 325 U. S. 1, 32-33 (1945).
101. Id., 34.
102. See notes 59 and 71 supra.
103. 325 U.S. 1, 35 (1945).
104. Id., 38-39.
105. See note 100 supra.
106. 325 U. S. 1, 33 (1945). Emphasis added.
107. Id., 37-38.
108. Id., 39.
109. Douglas, J., dissenting in 325 U. S. 1, 59 (1945).
110. See id., 34.
111. See pp. 133-134 supra.
112. See United States v. Robinson, 259 Fed. 685, 691-91 (S. D. N. Y.
113. 7 Wigmore, Evidence (3d ed. 1940) § 2037.
114. The only effort to defend this position seems to be that of Judge
Hand in United States v. Robinson, 259 Fed. 685, 689-90 (S. D. N. Y. 1919), and
the scant historical evidence which he adduces does not present a convincing
case. His interpretation of the significance of the repeal of 21 Rich. II, c. 3
(1397-98), by 1 Hen. IV, c. 10 (1399), is not unreasonable on the face of the
statutes, considered in isolation. But see 1 Hale, History of the Pleas of the
Crown. (Emlyn ed. 1736-1739) 85, 111, 266, 267; 2 Stephen, History of the
Criminal Law of England (1883) 254. His attempt to derive the principle of the
two-witness rule from the law of "oath bearers" seems to have no plausible
relation to the hard-headed men who framed the treason clause. See note 91
supra. His argument that a heavy burden of proof must be laid on the
prosecution, if the two-witness clause is to mean anything seems wholly a
priori, and ignores the practical, evidentiary value which may be
derived from the simple comparison of the testimony of two separate witnesses
to what is allegedly the same transaction. See note 113 supra. And see,
generally, note 96 supra.
115. The King v. Lord Preston, 1 Salk. 278, 91 Eng. Rep. 243 (1691).
116. 325 U.S. 1, 45 (1945).
117. The constitutional authority of Congress, under Art. III, § 3,
to mitigate the penalty for treason, of course, limits but cannot be said to
destroy the political, as compared to the legal, significance of the
constitutional status of the crime. See pp. 146, 149-150 supra.