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Preface

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 [1944]) 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:

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 materials.

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 of Wisconsin.

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).

Acknowledgments

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.