IN 1943 FOR THE first time the United States Supreme Court undertook to
review a conviction for treason. The Court granted a writ of certiorari in
Cramer v. United States, 320 U. S. 730 (1943). After a first
argument at the October Term, 1943, the Court, on May 2, 1944, returned the
case to its docket and invited reargument in an order which said that "Further
briefs and argument are desired as to the questions raised under the treason
clause of the Constitution, particularly as to the meaning of 'treason' and of
'overt act' and as to the requirement that such overt acts be proved by
testimony of two witnesses; also as to whether each overt act submitted to the
jury complied with constitutional requirements." (88 L. Ed. 1598, 64 Sup. Ct.
1149 ) At the request of the Department of Justice, the Navy Department
assigned me to work for some months for the Solicitor General to prepare an
historical appendix for the government's brief on reargument to deal with the
English and American background of the treason offense. Solicitor General
Charles Fahy put no restrictions on the materials or findings which I prepared
for this appendix to the government's brief. The Court's opinion in
Cramer v. United States, 325 U. S. 1, 8, note 9 (1945) took note
of the relation between the work of several scholars in addition to that of
Counsel for petitioner [Mr. Harold R. Medina], although assigned by the
trial court, has responded with extended researches. The Solicitor General
engaged scholars not otherwise involved in conduct of the case [including Dr.
Elio Gianturco, Research Assistant to the Foreign Law Section of the Law
Library of Congress, Dr. V. Gsovski, Chief of the Foreign Law Section of that
Law Library, and Dr. Stephan G. Kuttner, Professor of the History of Canon Law,
The Catholic University of America] to collect and impartially to summarize
statutes, decisions and texts from Roman, Continental, and Canon Law as well as
from English, Colonial, and American law sources.... Counsel have lightened our
burden of examination of the considerable accumulation of historical
These essays owe much to the invaluable assistance given in their
preparation by Professor Eldon James, then Law Librarian of Congress, and
members of his staff. For the opportunity to prepare material on developments
in the law since the Cramer decision, I am indebted to the Trustees of
the William F. Vilas Trust Estate, under whose auspices I hold a chair as Vilas
Professor of Law in the University of Wisconsin. The opinions stated in the
original essays and in the updated material are mine, and do not purport to
reflect the official position either of the Department of Justice or of the
United States Navy, or any position of the Vilas trustees or of the University
A student of the subject may wish to take note in particular of several
other sources of materials and comment published since the Cramer case.
Most general is a legal survey by Arthur M. Stillman and Frederick R.
Arner, of the American Law Division of the Library of Congress, Federal Case
Law Concerning the Security of the United States (83d Congress, 2d Session.
Printed for the use of the Senate Committee on Foreign Relations. Government
Printing Office. Washington. 1954).
Simon, "The Evolution of Treason," 35 Tulane Law Review 667
(1961), and Hill, "The Two-Witness Rule in English Treason Trials," 12
American Journal of Legal History 95 (1968), provide more material on
the political and older legal context of English origins than the essay in this
collection, which focuses on the analysis of the crime in the standard
treatises. Especially useful in adding a different dimension of source
materials to the doctrinal aspects of treason on which these essays center is
the monograph by Bradley Chapin, The American Law of Treason: Revolutionary
and Early National Origins (University of Washington Press. Seattle. 1964).
After sketching colonial developments, this book gives the bulk of its text to
the American Revolution and the remainder to the years from 1789 through the
trial of Burr. The study is especially useful for its attention to executive,
administrative, and trial court documents, and for its focus on action taken
under the law in the Revolution. What it principally shows of this period is a
readiness to confiscate property, but a marked lack of enthusiasm for mass
jailings or executions under charges of treason — a pattern which fits
with the generally restrictive attitude taken in legal doctrine on the offense.
I would raise one substantial caveat as to the Chapin monograph: I doubt its
claim that there is continuing life in the idea of treason by constructive
levying of war, in forcible resistance to enforcement of particular laws. I
find more persuasive the material presented in these essays, indicating that
this branch of the crime has become obsolete by nonuse and by critical reaction
against it at the bar and in the courts.
The development of treason doctrine was not just the product of courts.
As in other fields of law, doctrinal movement was also affected by the strategy
and tactics of contending counsel. A reader interested in the legal process
aspects of the matter should take note of the work and comments of a
distinguished Washington lawyer, Mr. Frederick Bernays Wiener, on the relation
between the history of treason law and the argument and decision of particular
treason cases. Mr. Wiener criticizes the manner in which legal history
materials were used in presenting Cramer to the Supreme Court, in his
paper, "Uses and Abuses of Legal History (A Lecture to the Selden Society)," 59
The Law Society's Gazette 311 (1962). The government was ably
represented in Cramer. But skilled lawyers inevitably differ in the
approaches they take in presenting issues to a court. The observer should find
instruction in comparing the government's briefs in Cramer, and
especially its brief on reargument, with the brief for the United States before
the Supreme Court in Haupt (1947). in which Mr. Wiener had a shaping
hand as special assistant to the Attorney General. These documents will be
found in any of the major law libraries in this country which keep records and
briefs of cases in the United States Supreme Court. Mr. Wiener, it should be
noted, also led for the government in the argument which lies back of the
leading decision of the First Circuit Court of Appeals in Chandler v.
United States (1948).
GRATEFUL acknowledgment is made to the editors of the journals listed in
which these pages first appeared for their kind permission to reprint them.
Chapter 1 was originally entitled "The Historic Background of the
Treason Clause of the United States Constitution" and appeared in 6 The
Federal Bar Journal 305-313 (1945). Chapter 2, originally entitled "English
Sources of the American Law of Treason," first appeared in 1945 Wisconsin
Law Review 315-356. Chapters 3, 4, and 5 were originally published as a
three-part essay, "Treason in the United States," in 58 Harvard Law Review
226-272, 395-444, 806-857 (1944-1945). The notes in chapters 3-5 have been
renumbered, beginning with "1" in each chapter.