Anthony Cramer, the petitioner, stands convicted of violating Section 1 of the Criminal Code, which provides: "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason."
Cramer owed allegiance to the United States. A German by birth, he had been a resident of the United States since 1925 and was naturalized in 1936. Prosecution resulted from his association with two of the German saboteurs who in June 1942 landed on our shores from enemy submarines to disrupt industry in the United States and whose cases was considered in Ex parte Quirin, 317 U.S. 1. One of those, spared from execution, appeared as a government witness on the trial of Cramer. He testified that Werner Thiel and Edward Kerling were members of that sabotage crew, detailed their plot, and described their preparations for its consummation.
Cramer was conscripted into and served in the German Army against the United States in 1918. After the war he came to this country, intending to remain permanently. So far as appears, he has been of good behavior, never before in trouble with the law. He was studious and intelligent, earning $45 a week for work in a boiler room and living accordingly.
There was no evidence, and the Government makes no claim, that he had foreknowledge that the saboteurs were coming to this country or that he came into association with them by prearrangement. Cramer, however, had known intimately the saboteur Werner Thiel while the latter lived in this country. They had worked together,
Cramer retained a strong affection for his fatherland. He corresponded in German with his family and friends there. Before the United States entered the war he expressed strong sympathy with Germany in its conflict with other European powers. Before the attack upon Pearl Harbor, Cramer openly opposed participation by this country in the war against Germany. He refused to work on war materials. He expressed concern about being drafted into our army and "misused" for purposes of "world conquest." There is no proof, however, except for the matter charged in the indictment, of any act or utterance disloyal to this country after we entered the war.
After the second of these meetings Thiel and Kerling, who was present briefly at one meeting, were arrested. Cramer's expectation of meeting Thiel later and of bringing him and his fiancee together was foiled. Shortly thereafter Cramer was arrested, tried, and found guilty. The trial judge at the time of sentencing said:
"I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware
"From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew or believed what they really were, I should not hesitate to impose the death penalty."
Cramer's case raises questions as to application of the constitutional provision that "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson:
"Nevertheless a question may indeed be raised whether the prosecution may lay as an overt act a step taken in execution of the traitorous design, innocent in itself, and getting its treasonable character only from some covert and undeclared intent. It is true that in prosecutions for conspiracy under our federal statute it is well settled that any step in performance of the conspiracy is enough, though it is innocent except for its relation to the agreement. I doubt very much whether that rule has any application to the case of treason, where the requirement affected the character of the pleading and proof, rather than accorded a season of repentance before the crime should be complete. Lord Reading in his charge in
"`Overt acts are such acts as manifest a criminal intention and tend towards the accomplishment of the criminal object. They are acts by which the purpose is manifested and the means by which it is intended to be fulfilled.'"
The Government, however, contends for, and the court below has affirmed, this conviction upon a contrary principle.
As lower courts thus have taken conflicting positions, or, where the issue was less clearly drawn, have dealt with the problem ambiguously,
When our forefathers took up the task of forming an independent political organization for New World society, no one of them appears to have doubted that to bring into being a new government would originate a new allegiance for its citizens and inhabitants. Nor were they reluctant to punish as treason any genuine breach of allegiance, as every government time out of mind had done. The betrayal of Washington by Arnold was fresh in mind. They were far more awake to powerful enemies with designs on this continent than some of the intervening generations have been. England was entrenched in Canada to the north and Spain had repossessed Florida to the south, and each had been the scene of invasion of the Colonies; the King of France had but lately been dispossessed in the Ohio Valley; Spain claimed the Mississippi Valley; and, except for the seaboard, the settlements were surrounded by Indians — not negligible as enemies themselves, and especially threatening when allied to European foes. The proposed national government could not for some years become firmly seated in the tradition or in the habits of
The forefathers also had suffered from disloyalty. Success of the Revolution had been threatened by the adherence of a considerable part of the population to the king. The Continental Congress adopted a resolution after a report by its "Committee on Spies"
Before this revolutionary experience there were scattered treason prosecutions in the colonies,
However, their experience with treason accusations had been many-sided. More than a few of them were descendants
The Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge.
Historical materials are, therefore, of little help; necessity as well as desire taught a concept that differed from all historical models in the drafting of our treason clause. Treason statutes theretofore had been adapted to a society in which the state was personified by a king, on whose person were focused the allegiances and loyalties of the subject. When government was made representative of the whole body of the governed, there was none to say "I
We turn then to the proceedings of the Constitutional Convention of 1787 so far as we have record of them. The plan presented by Pinckney evidently proposed only that Congress should have exclusive power to declare what should be treason and misprision of treason against the United States.
This clause was discussed on August 20, 1787. Mr. Madison, who opened the discussion, "thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd. III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe in the hands of State legislatures; and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused."
Mr. Dickenson "wished to know what was meant by the `testimony of two witnesses', whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt act ought to be expressed as essential to the case." Doctor Johnson also "considered . . . that something should be inserted in the definition concerning overt acts."
When it was moved to insert "to the same overt act" after the two-witnesses requirement, Madison notes that "Doc'r Franklin wished this amendment to take place — prosecutions for treason were generally virulent; and perjury too easily made use of against innocence." James Wilson observed that "Much may be said on both sides. Treason may sometimes be practiced in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy."
By this sequence of proposals the treason clause of the Constitution took its present form. The temper and attitude of the Convention toward treason prosecutions is unmistakable. It adopted every limitation that the practice of governments had evolved or that politico-legal philosophy
Distrust of treason prosecutions was not just a transient mood of the Revolutionists. In the century and a half of our national existence not one execution on a federal treason conviction has taken place. Never before has this Court had occasion to review a conviction. In the few cases that have been prosecuted the treason clause has had its only judicial construction by individual Justices of this Court presiding at trials on circuit or by district
Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence. The first danger could be diminished by closely circumscribing the kind of conduct which should be treason — making the constitutional definition exclusive, making it clear, and making the offense one not susceptible of being inferred from all sorts of insubordinations. The second danger lay in the manner of trial and was one which would be diminished
"Compassing" and like loose concepts of the substance of the offense had been useful tools for tyranny. So one of the obvious things to be put into the definition of treason not consisting of actual levying of war was that it must consist of doing something. This the draft Constitution failed to provide, for, as we have pointed out, it defined treason
Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own king by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was "giving them aid and comfort."
"Aid and comfort" was defined by Lord Reading in the Casement trial comprehensively, as it should be, and yet probably with as much precision as the nature of the matter will permit: ". . . an act which strengthens or tends to strengthen the enemies of the King in the conduct of a
Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. 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.
Having thus by definition made treason consist of something outward and visible and capable of direct proof, the framers turned to safeguarding procedures of trial and ordained that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." This repeats in procedural terms the concept that thoughts and attitudes alone cannot make a treason. It need not trouble us that we find so dominant a purpose emphasized in two different ways. But does the procedural requirement add some limitation not already present in the definition of the crime, and if so, what?
Our problem begins where the Constitution ends. That instrument omits to specify what relation the indispensable overt act must sustain to the two elements of the offense as defined: viz., adherence and giving aid and comfort. It requires that two witnesses testify to the same overt act, and clearly enough the act must show something toward treason, but what? Must the act be one of giving aid and comfort? If so, how must adherence to the enemy, the disloyal state of mind, be shown?
The defendant especially challenges the sufficiency of
Bearing in mind that the constitutional requirement in effect is one of direct rather than circumstantial evidence, we must give it a reasonable effect in the light of its purpose both to preserve the offense and to protect citizens from its abuse. 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.
Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from the overt acts. 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. Proof that a citizen did give aid and comfort to an enemy may well be in the circumstances sufficient evidence that he adhered to that enemy and intended and purposed to strike at his
While of course it must be proved that the accused acted with an intention and purpose to betray or there is no treason, we think that in some circumstances at least the overt act itself will be evidence of the treasonable purpose and intent. But that still leaves us with exceedingly difficult problems. How decisively must treacherous intention be made manifest in the act itself? Will a scintilla of evidence of traitorous intent suffice? Or must it be sufficient to convince beyond reasonable doubt? Or need it show only that treasonable intent was more probable than not? Must the overt act be appraised for legal sufficiency only as supported by the testimony of two witnesses, or may other evidence be thrown into the scales to create inferences not otherwise reasonably to be drawn or to reinforce those which might be drawn from the act itself?
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
It would be no contribution to certainty of judgment, which is the object of the provision, to construe it to deprive a trial court of the aid of testimony under the ordinary sanctions of verity, provided, of course, resort is not had to evidence of less than the constitutional standard to supply deficiencies in the constitutional measure of proof of overt acts. For it must be remembered that the constitutional provision establishes a minimum of proof of incriminating acts, without which there can be no conviction, but it is not otherwise a limitation on the evidence with which a jury may be persuaded that it ought to convict. The Constitution does not exclude or set up standards to test evidence which will show the relevant acts of persons other than the accused or their identity or enemy character or other surrounding circumstances. Nor does it preclude any proper evidence of non-incriminating facts about a defendant, such for example as his nationality, naturalization, and residence.
From duly proven overt acts of aid and comfort to the enemy in their setting, it may well be that the natural and reasonable inference of intention to betray will be warranted. The two-witness evidence of the acts accused, together with common-law evidence of acts of others and of facts which are not acts, will help to determine which among possible inferences as to the actor's knowledge, motivation, or intent are the true ones. But 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.
The very minimum function that an overt act
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. But in this and some cases we have cited 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. When we deal with acts that are trivial and commonplace and hence are doubtful as to whether they gave aid and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent.
We proceed to consider the application of these principles to Cramer's case.
The indictment charged Cramer with adhering to the enemies of the United States, giving them aid and comfort,
"1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and State of New York, and did confer, treat, and counsel with said Werner Thiel and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling.
"2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and
At the present stage of the case we need not weigh their sufficiency as a matter of pleading. Whatever the averments might have permitted the Government to prove, we now consider their adequacy on the proof as made.
It appeared upon the trial that at all times involved in these acts Kerling and Thiel were under surveillance of the Federal Bureau of Investigation. By direct testimony of two or more agents it was established that Cramer met Thiel and Kerling on the occasions and at the places charged and that they drank together and engaged long and earnestly in conversation. This is the sum of the overt acts as established by the testimony of two witnesses. There is no two-witness proof of what they said nor in what language they conversed. There is no showing that Cramer gave them any information whatever of value to their mission or indeed that he had any to give. No effort at secrecy is shown, for they met in public places. 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.
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. Even apart from the psychological comfort which the meetings furnished Thiel and Kerling by way of social intercourse with
The shortcomings of the overt act submitted are emphasized by contrast with others which the indictment charged but which the prosecution withdrew for admitted insufficiency of proof. It appears that Cramer took from Thiel for safekeeping a money belt containing about $3,600, some $160 of which he held in his room concealed in books for Thiel's use as needed. An old indebtedness of Thiel to Cramer of $200 was paid from the fund, and the rest Cramer put in his safe-deposit box in a bank for safekeeping. All of this was at Thiel's request. That Thiel
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
It is outside of the commonplace overt acts as proved that we must find all that convicts or convinces either that Cramer gave aid and comfort or that he had a traitorous intention. The prosecution relied chiefly upon the testimony of Norma Kopp, the fiancee of Thiel, as to incriminating statements made by Cramer to her,
Most damaging is the testimony of Norma Kopp, a friend of Cramer's and one with whom, if she is to be believed, he had been most indiscreetly confidential. Her testimony went considerably beyond that of the agents of the Federal Bureau of Investigation as to admissions of guilty knowledge of Thiel's hostile mission and of Cramer's sympathy with it. To the extent that his conviction rests upon such evidence, and it does to an unknown but considerable extent, it rests upon the uncorroborated testimony of one witness not without strong emotional interest in the drama of which Cramer's trial was a part. Other evidence relates statements by Cramer before the United States was at war with Germany. At the time they were uttered, however, they were not treasonable. To use pre-war expressions of opposition to entering a war to convict of treason during the war is a dangerous procedure at best. The same may be said about the inference of disloyal attitude created by showing that he refused to buy bonds and closed the door in the salesman's face. Another class of evidence consists of admissions to agents of the Federal Bureau of Investigation. They are, of course, not "confessions in open court." The Government does not contend and could not well contend
The Government has urged that our initial interpretation of the treason clause should be less exacting, lest treason be too hard to prove and the Government disabled from adequately combating the techniques of modern warfare. But the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security. In debating this provision, Rufus King observed to the Convention that the "controversy relating to Treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than Treason."
The framers' effort to compress into two sentences the law of one of the most intricate of crimes gives a superficial appearance of clarity and simplicity which proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract
"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 both.
". . . It is, therefore, more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide." Ex parte Bollman, 4 Cranch 75, 125, 127.
It is not difficult to find grounds upon which to quarrel with this constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such
We hold that overt acts 1 and 2 are insufficient as proved to support the judgment of conviction, which accordingly is
MR. JUSTICE DOUGLAS, with whom the CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE REED concur, dissenting.
The opinion of the Court is written on a hypothetical state of facts, not on the facts presented by the record.
Cramer is a naturalized citizen of the United States, born in Germany. He served in the German army in the last war, coming to this country in 1925. In 1929 he met Thiel who had come to this country in 1927 from a place in Germany not far from petitioner's birthplace. The two became close friends; they were intimate associates during a twelve-year period. In 1933 Cramer found work in Indiana. Thiel joined him there. Both became members of the Friends of New Germany, predecessor of the German-American Bund. Cramer was an officer of the Indiana local. He resigned in 1935 but Thiel remained a member and was known as a zealous Nazi. In 1936 Cramer visited Germany. On his return he received his final citizenship papers. He and Thiel returned to New York in 1937 and lived either together or in close proximity for about four years. Thiel left for Germany in the spring of 1941, feeling that war between the United States and Germany was imminent. According to Cramer, Thiel was "up to his ears" in Nazi ideology. Cramer corresponded with Thiel in Germany. Prior to our declaration of war, he was sympathetic with the German cause and critical of our attitude. Thus in November, 1941, he wrote Thiel saying he had declined a job in Detroit, "as I don't want to dirty my fingers with war material"; that "We sit here in pitiable comfort, when we should be in the
So much for the background. What followed is a sequel to Ex parte Quirin, 317 U.S. 1.
Thiel entered the German army and in 1942 volunteered with seven other German soldiers who had lived in the United States for a special mission to destroy the American aluminum industry. They were brought here by German submarines in two groups. Kerling was the leader and Thiel a member of one group which landed by rubber boat near Jacksonville, Florida on June 17, 1942. They buried their explosives and proceeded to New York City, where on June 21st they registered at the Hotel Commodore under the assumed names of Edward Kelly and William Thomas.
The next morning a strange voice called Cramer's name from the hall of the rooming house where he lived. On his failure to reply an unsigned note was slipped under his door. It read, "Be at the Grand Central station tonight at 8 o'clock, the upper platform near the information booth, Franz from Chicago has come into town and wants to see you; don't fail to be there." Cramer said he knew no Franz from Chicago. But nevertheless he was on hand at the appointed hour and place. Thiel shortly appeared. They went to the Twin Oaks Inn where they talked for two hours. Cramer admitted that he knew Thiel had come from Germany; and of course, he knew that at that time men were not freely entering this country from Germany.
So they agreed to meet at the Twin Oaks Inn at 8 P.M. on the following evening, June 23, 1942. At this meeting Kerling joined them. Cramer had met Kerling in this country and knew he had returned to Germany. Kerling
Cramer returned home. He put Thiel's money belt in a shoe box. He put some of the money between the pages of a book. Later he put the balance in his bank, some in a savings account, most of it in his safe deposit box. He and Thiel had talked of Thiel's fiancee, Norma Kopp. At the first meeting Cramer had offered to write her on Thiel's behalf. He did so. He did not mention Thiel's name but asked her to come to his room, saying he had "sensational" news for her. Cramer appeared at Thompson's Cafeteria at 8 P.M. June 25th to keep his appointment with Thiel. He waited about an hour and a half. He returned the next night, June 26th, and definitely suspected Thiel had been arrested. Though he knew Thiel was registered at the Hotel Commodore, he made no attempt to get in touch with him there. When he returned to his room that night, Norma Kopp was waiting for him. She testified that he told her that Thiel was here; that "they came about six men with a U-boat, in a rubber boat, and landed in Florida"; that they "brought so
The Court holds that this evidence is insufficient to sustain the conviction of Cramer under the requirements of the Constitution. We disagree.
Article III, § 3 of the Constitution defines treason as follows: "Treason against the United States, shall consist only in levying War against them, or in adhering to
The charge against Cramer was that of adhering. The essential elements of the crime are that Cramer (1) with treasonable intent (2) gave aid and comfort to the enemy.
There was ample evidence for the jury that Cramer had a treasonable intent. The trial court charged the jury that "criminal intent and knowledge, being a mental state, are not susceptible of being proved by direct evidence, and therefore you must infer the nature of the defendant's intent and knowledge from all the circumstances." It charged that proof of criminal intent and knowledge is sufficient if proved beyond a reasonable doubt, and that the two witnesses are not necessary for any of the facts other than the overt acts. On that there apparently is no disagreement. It also charged: "Now, gentlemen, motive should not be confused with intent. If the defendant knowingly gives aid and comfort to one who he knows or believes is an enemy, then he must be taken to intend the consequences of his own voluntary act, and the fact that his motive might not have been to aid the enemy is no
The trial judge stated when he sentenced Cramer that it did not appear that Cramer knew that Thiel and Kerling were in possession of explosives or other means for destroying factories in this country or that they planned to do that. He stated that if there had been direct proof of such knowledge he would have sentenced Cramer to death rather than to forty-five years in prison. But however relevant such particular knowledge may have been to fixing the punishment for Cramer's acts of treason, it surely was not essential to proof of his traitorous intent. A defendant who has aided an enemy agent in this country may not escape conviction for treason on the ground that he was not aware of the enemy's precise objectives. Knowing or believing that the agent was here on a mission
The Court does not purport to set aside the conviction for lack of sufficient evidence of traitorous intent. It frees Cramer from this treason charge solely on the ground that the overt acts charged are insufficient under the constitutional requirement.
The overt acts alleged were (1) that Cramer met with Thiel and Kerling on June 23rd, 1942, at the Twin Oaks Inn and "did confer, treat, and counsel" with them "for the purpose of giving and with the intent to give aid and comfort" to the enemy; (2) that Cramer "did accompany,
The Court concedes that an overt act need not manifest on its face a traitorous intention. By that concession it rejects the defense based on the treason clause which Cramer has made here. The Court says an overt act must "show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy." It says, however, that 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." It adds, "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses. 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. The prosecution cannot rely on evidence which does not meet the constitutional test for overt acts to create any inference that the accused did other acts or did something more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy." And when it comes to the overt acts of meeting and conferring with Thiel and Kerling the Court holds that they are inadequate since there was "no two-witness proof of what they said nor in what language they conversed." That is to say, reversible error is found because the two witnesses who testified to the fact that Cramer met twice with the saboteurs did not testify that Cramer
That conclusion, we submit, leads to ludicrous results. The present case is an excellent example.
It is conceded that if the two witnesses had testified not only that they saw Cramer conferring with Thiel and Kerling but also heard him agree to keep Thiel's money and saw him take it, the result would be different. But the assumption is that since the two witnesses could not testify as to what happened at the meetings, we must appraise the meetings in isolation from the other facts of the record. Therein lies the fallacy of the argument.
In the first place, we fully agree that under the constitutional provision there can be no conviction of treason without proof of two witnesses of an overt act of treason. We also agree that the act so proved need not itself manifest on its face the treasonable intent. And as the Court states, such intent need not be proved by two witnesses. It may even be established by circumstantial evidence. For it is well established that the overt act and the intent are separate and distinct elements of the crime.
We have developed in the Appendix to this opinion the historic function of the overt act in treason cases. It is plain from those materials that the requirement of an overt act is designed to preclude punishment for treasonable plans or schemes or hopes which have never moved out of the realm of thought or speech. It is made a necessary ingredient of the crime to foreclose prosecutions for constructive treason. The treasonable project is complete as a crime only when the traitorous intent has ripened into a physical and observable act. The act standing alone may appear to be innocent or indifferent, such as joining a person at a table, stepping into a boat, or carrying a parcel of food. That alone is insufficient. It must be established beyond a reasonable doubt that the act was part of the treasonable project and done in furtherance of it. Its character and significance are to be judged by its place in the effectuation of the project. That does not mean that where the treasonable scheme involves several treasonable acts, and the overt act which is charged has been proved by two witnesses, that all the other acts which tend to show the treasonable character of the overt act and the treasonable purpose with which it was committed must be proved by two witnesses. The Constitution does not so declare. There is no historical support for saying that the phrase "two witnesses to the same overt act" may be or can be read as meaning two witnesses to all the acts involved in the treasonable scheme of the accused. Obviously one overt act proved by two witnesses is enough to sustain a conviction even though the accused has committed many other acts which can be proved by only one
When we apply that test to the facts of this case it is clear to us that the judgment of conviction against Cramer should not be set aside. The historical materials which we have set forth in the Appendix to this opinion establish that a meeting with the enemy may be adequate as an overt act of treason. Hale, Kelyng and Foster establish that beyond peradventure of doubt. Such a meeting might be innocent on its face. It might also be innocent in its setting, as Hale, Kelyng and Foster point out, where, for example, it was accidental. We would have such a case here if Cramer's first meeting with Thiel was charged as an overt act. For, as we have seen, Cramer went to the meeting without knowledge that he would meet and confer with Thiel. But the subsequent meetings were arranged between them. They were arranged in furtherance of Thiel's designs. Cramer was not only on notice that Thiel was here on a mission inimical to the interests of this nation. He had agreed at the first meeting to hide Thiel's money. He had agreed to contact Norma Kopp. He knew that Thiel wanted his identity and presence in New York concealed. This was the setting in which the later meetings were held. The meetings take on their true character and significance from that setting. They constitute acts. They demonstrate that Cramer had a liking for Thiel's design to the extent of aiding him in it. They show beyond doubt that Cramer had more than a treasonable intent; that that intent had moved from the realm of
In the second place, this judgment of conviction should be sustained even though we assume, arguendo, that Cramer's motion to dismiss at the end of the government's case should have been granted. The concern of the Court is that acts innocent on their face may be transformed into sinister or guilty acts by circumstantial evidence, by inference, by speculation. The rule announced by the Court is based on a desire for trustworthy evidence in determining the character and significance of the overt acts. But this is not a case where an act innocent on its face is given a sinister aspect and made a part of a treasonous design by circumstantial evidence, by inference, or by the testimony of a single witness for the prosecution. We know from Cramer's own testimony — from his admissions at the trial — exactly what happened.
We know the character of the meetings from Cramer's own admissions. We know from his own lips that they were not accidental or casual conferences, or innocent, social meetings. He arranged them with Thiel. When he did so he believed that Thiel was here on a secret mission for the German Reich with the object of injuring this nation. He also knew that Thiel was looking for a place to hide his money. Cramer had offered to keep it for Thiel and Thiel had accepted the offer. Cramer had also offered to write Norma Kopp, Thiel's fiancee, without mentioning Thiel's name. Cramer also knew that Thiel wanted his identity and his presence in New York concealed. Cramer's admissions at the trial gave character and significance to those meetings. Those admissions plus the finding of treasonable intent place beyond a reasonable doubt the conclusion that those meetings were steps in and part and parcel of the treasonable project.
Nor need we guess or speculate for knowledge of what happened at the meetings. We need not rely on circumstantial
Cramer told the whole story in open court. He admitted he agreed to act and did act as custodian of the saboteur Thiel's money. He agreed to hold it available for Thiel's use whenever Thiel might need it. It is difficult to imagine what greater aid one could give a saboteur unless he participated in the sabotage himself. Funds were as essential to Thiel's plans as the explosives he buried in the sands of Florida. Without funds the mission of all the saboteurs would have soon ended or been seriously crippled. Cramer did not stop here. Preservation of secrecy was essential to this invasion of the enemy. It was vital if the project was to be successful. In this respect Cramer also assisted Thiel. He cooperated with Thiel in the concealment of Thiel's identity and presence in New York City. He did his best to throw federal officers off the trail and to mislead them. He made false statements to them, saying that Thiel's true name was "Thomas" and that Thiel had not been out of the country since the war began.
If Cramer had not testified, we would then be confronted with the questions discussed in the opinion of the Court. But he took the stand and told the whole story. It is true that at the end of the government's case Cramer moved to dismiss on the ground that the crime charged had not been made out. That motion was denied and an exception taken. If Cramer had rested there, the case submitted to the jury and a judgment of conviction rendered, we would have before us the problem presented in the opinion of the Court. But Cramer did not rest on that motion. He took the stand and told the whole story. Any defect in the proof was cured by that procedure. As stated in Bogk v. Gassert, 149 U.S. 17, 23, "A defendant
Why then must we disregard Cramer's admissions at the trial? Why must we assume, as does this Court, that those admissions are out of the case and that our decision must depend solely on the evidence presented by the government?
The Constitution says that a "confession in open court" is sufficient to sustain a conviction of treason. It was held in United States v. Magtibay, 2 Philippine Rep. 703, that a confession in open court to the overt acts charged in the indictment was not an adequate substitute for the testimony of two witnesses where the accused denied treasonable purpose. We need not go so far as to say that if the whole crime may be proved by an admission by the accused in open court, one of the ingredients of the offense may be established in like manner. See Respublica v. Roberts, supra. We do not say that if the government completely fails to prove an overt act or proves it by one witness only, the defect can be cured by the testimony of other witnesses or by the admissions of the accused. We do say that a meeting with the enemy is an act and
Cramer's counsel could not defend on the grounds advanced by the Court for the simple reason that the government having proved by two witnesses that Cramer met and conferred with the saboteurs, any possible insufficiency in the evidence which it adduced to show the character and significance of the meetings was cured by Cramer's own testimony. Cramer can defend only on the ground that the overt act must manifest treason, which the Court rejects, or on the ground that he had no treasonable intent, which the jury found against him on an abundance of evidence. Those are the only alternatives because concededly conferences with saboteurs here on a mission for the enemy may be wholly adequate as overt acts under the treason clause. They were proved by two witnesses as required by the Constitution. Any possible doubt as to their character and significance as parts of a treasonable project were removed by the defendant's own admissions in open court. To say that we are precluded from considering those admissions in weighing the sufficiency of the evidence of the true character and significance of the overt acts is neither good sense nor good law. Such a result makes the way easy for the traitor, does violence to the Constitution and makes justice truly blind.
The most relevant source of materials for interpretation of the treason clause of the Constitution is the statute of 25 Edw. III, Stat. 5, ch. 2 (1351) and the construction which was given it. It was with that body of law and the English and colonial experience under it that the Framers were acquainted. That statute specified seven offenses as
Coke makes clear that the requirement of an overt act under the statute applies to all of the offenses included in the category of treason. See Coke, Institutes of the Laws of England, Third Part (5th ed., London, 1671), p. 5. There are indications by Coke that the overt act was a separate element of the offense and that its function was to show that the treasonable design had moved from thought to action. Id., pp. 5, 12, 14, 38. Hale is somewhat more explicit. In discussing the offense of compassing the king's death he indicates that the overt act may be "indifferent" in character. He says, "That words may expound an overt-act to make good an indictment of treason of compassing the king's death, which overt-act possibly of itself may be indifferent and unapplicable to such an intent." 1 Hale, History of the Pleas of the Crown (Emlyn ed., London, 1736), p. 115. And he noted that "If there be an assembling together to consider how they may kill the king, this assembling is an overt-act to make good an indictment of compassing the king's death." Id., p. 119. Kelyng states the same view. He cites Sir Everard Digby's Case, 1 St. Tr. 234, for the proposition that the meeting of persons and their consulting to destroy the king was itself an overt act. "It was resolved that where a Person knowing of the Design does meet with them, and hear them discourse of their traitorous Designs, and say or act nothing; This is High-Treason in that Party, for it is more than a bare Concealment, which is Misprision, because it sheweth his liking and approving of their Design."
Foster is even more explicit. Like Coke he asserts that an overt act is required for each branch of treason covered by the Statute of Edward III. Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases (2d ed., London, 1791), pp. 207, 237. He makes clear that an overt act is required not to corroborate the proof of a traitorous intent but to show that the treasonable project has left the realm of thought and moved into the realm of action. As respects the offense of compassing the death of the king, he says that the indictment "must charge, that the defendant did traitorously compass and imagine &c, and then go on and charge the several overt-acts as the means employed by the defendant for executing his traitorous purposes. For the compassing is considered as the treason, the overt-acts as the means made use of to effectuate the intentions and imaginations of the heart." Id., p. 194. He refers to Crohagan's Case (Cro. Car. 332) where the defendant said "I will kill the King of England, if I can come at him" and the indictment added that he came to England for that purpose. "The traitorous intention, proved by his words, converted an action, innocent in itself, into an overt-act of treason." Id., p. 202. And he also points out that "Overt-acts undoubtedly do discover the man's intentions; but, I conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart." Id., p. 203. And he adds, "Upon this
It is true that these observations related to the offense of compassing or imagining the death of the king. But Foster indicates that the same test applies to make out the offense of adherence to the king's enemies. He says, "The offense of inciting foreigners to invade the kingdom is a treason of signal enormity. In the lowest estimation of things and in all possible events, it is an attempt, on the part of the offender, to render his country the seat of blood and desolation." Id., pp. 196-197. This was said in connection with his discussion of Lord Preston's case, 12 How. St. Tr. 645, a landmark in the law of treason. Lord Preston was indicted both for compassing the death of the king and for adherence to his enemies. England was at war with France. The indictment alleged as an overt act of treason that on December 30, 1690, Lord Preston and others hired a small boat in the County of Middlesex to take them to another vessel which would carry them to France. The indictment alleged that the defendants were en route to France to communicate military information to the enemy. After the vessel set sail for France and when the vessel was in the County of Kent, the defendants were arrested. Papers containing information of value to the enemy were found on the person of Lord Preston's servant. Lord Preston contended that since the indictment laid the
Foster in his analysis of that case makes clear that taking the boat was an overt act sufficient not only to the crime of compassing the death of the king but also adherence to the enemies of the king. Foster, op. cit., pp. 197-198. Yet on its face and standing alone the overt act of taking the boat was completely innocent and harmless. Only when it was related to other activities and events did it acquire a treasonable significance. Foster gives other indications that in case of adherence to the enemy the function of the overt act is no different than when the offense of compassing is charged. The crime of adherence is made out where the defendant attempts to send money, provisions, or information to the enemy "though the money or intelligence should happen to be intercepted. For the party in sending did all he could: the treason was complete on his part, though it had not the effect he intended." Id., p. 217.
Blackstone emphasizes the desirability of a restrictive interpretation of the offense of treason, condemning "constructive" treason and "newfangled treasons" which imperil the liberty of the people. 4 Blackstone, Commentaries (6th ed. Dublin 1775), pp. 75, 83, 85, 86. Blackstone recognizes the distinction between evidence of intent and the overt act: "But, as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by
The English cases prior to 1790 support this thesis. We have mentioned Lord Preston's case. In the case of Captain Vaughan, 13 How. St. Tr. 485, the principal charge against the defendant was adhering to the enemy, though levying war was also alleged. The substance of the overt act of adherence was that when France and England were at war the defendant cruised in a small ship of war, in English waters, in the service of France with intent to take the king's ships. It was objected that the overt act alleged was insufficient "for it is said only he went a-cruising; whereas they ought to have alledged that he did commit some acts of hostility, and attempted to take some of the king's ships; for cruising alone cannot be an overt-act; for he might be cruising to secure the French merchant-ships from being taken, or for many other purposes, which will not be an overt-act of treason." p. 531. But Lord Chief Justice Holt ruled: "I beg your pardon. Suppose the French king, with forces, should
These materials indicate that the function of the overt act was to make certain that before a conviction for the high crime of treason may be had more than a treasonable design must be established; it must be shown that action pursuant to that design has been taken. The treason of adherence was defined essentially in terms of conduct for it involved giving aid and comfort. Yet the attempt alone was sufficient; the aid and comfort need not have been received by the enemy. Conduct amounting to aid and comfort might be innocent by itself — such as collecting information or stepping into a boat. It was sufficient if in its setting it reflected a treasonable project. It need not entail material aid; comfort or encouragement was sufficient. The only requirement was that it definitely translate treasonable thought into action which plainly tended to give aid and comfort to the enemy.
These materials likewise support the contention of the government that the overt act need not manifest treason on its face.
The history of treason in this country down to the Constitution has been recently developed in Hurst, Treason in the United States, (1944) 58 Harv. L. Rev. 226. We
The proceedings of the Constitutional Convention of 1787 have been related in the opinion of the Court. And see Hurst, Treason in the United States, 58 Harv. L. Rev. 395. As the Court points out the Framers were anxious to guard against convictions of the innocent by perjury and to remove treason from the realm of domestic, political disputes. Franklin expressed concern on the first in his statement that "prosecutions for treason were generally virulent; and perjury too easily made use of against innocence." 2 Farrand, Records of the Federal Convention, p. 348. Madison and Jefferson
The requirement of two witnesses was not novel. England had long had that rule. 9 Holdsworth, A History of English Law (2d ed. 1938) p. 207. The novelty was in the requirement that there be two witnesses to the "same" overt act. Moreover, there was no novelty in the offenses which were included in the definition of treason. Adhering to the enemy, giving him aid and comfort, like levying war, had long been embraced in the English crime of treason, as we have seen. But there was novelty in the narrow definition of treason which was adopted — a restrictive definition born of the fear of constructive treason and distrust of treason as a political instrument.
There is, however, no evidence whatever that the offense of adhering to the enemy giving him aid and comfort was designed to encompass a narrower field than that indicated by its accepted and settled meaning. Nor is there the slightest indication that the kind or character of overt acts required were any different than those which had long been recognized or accepted as adequate. The overt act was of course "intended as a distinct element of proof of the offense in addition to intent." Hurst, op. cit., pp. 415-416. But any suggested difference from the body of law which preceded vanishes when two witnesses to the same overt act are produced. As respects the point vital
"The overt act is the doing of some actual act, looking towards the accomplishment of the crime." United States v. Stephan, 50 F.Supp. 738, 742-43 n. (E.D. Mich. 1943).
"That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony:
"That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described, as shall be provably attainted of open deed, by people of their condition, of any of the treasons before described." 5 Journals of the Continental Congress (1906) 475.
The Maryland act declared that "the several crimes aforesaid shall receive the same constructions that have been given to such of the said crimes as are enumerated in the statute of Edward the third, commonly called the statute of treasons." None of the statutes contained negative language, limiting the definition of treason expressly to that set forth in the statute. In general, too, they added to the definition of the model recommended by Congress other specific kinds of treason. Thus a number defined treason as including conspiracy to levy war. Conspiracy to adhere to the enemy and give aid and comfort was also included in several, or incorporated by separate acts. Much explicit attention was given to the problem of contact with the enemy. Conveying of intelligence or carrying on of correspondence with the enemy were expressly mentioned. One typical provision declared guilty of treason those persons who were "adherent to .. . the enemies of this State within the same, or to the Enemies of the United States . . . giving to . . . them Aid or Comfort, or by giving to . . . them Advice or Intelligence either by Letters, Messages, Words, Signs or Tokens, or in any way whatsoever, or by procuring for, or furnishing to . . . them any Kind of Provisions or Warlike Stores . . ." Other provisions referred to "joining their Armies," "inlisting or persuading others to inlist for that Purpose," "furnishing Enemies with Arms or Ammunition, provision or any other Articles for such their Aid or Comfort," "wilfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United States to the Enemies of the United States of America"; and to persons who "have joined, or shall hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein," or who should maliciously and with an intent to obstruct the service dissuade others from enlisting, or maliciously spread false rumors concerning the forces of either side such as to alienate the affections of the people from the Government "or to terrify or discourage the good Subjects of this State, or to dispose them to favor the Pretensions of the Enemy," or who "shall take a Commission or Commissions from the King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States of America."
A number of the statutes required "the testimony of two lawful and credible witnesses." But the requirement was not linked to the proof of overt acts, and there was no suggestion of the type of provision later embodied in the Constitution. Supplementary acts creating special treasonable offenses tended to omit any requirement as to quantum of proof.
See Hurst, op. cit. supra, 58 Harv. L. Rev. at 248 et seq.
"3. Treason against the Person of our Soveraign Lord the King, the State and Common-wealth of England, shall be punished by death.
"4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or Publick Rebellion against this Jurisdiction, or the Surprizal of any Town, Plantation, Fortification or Ammunition, therein provided for the safety thereof, or shall Treacherously and Perfidiously Attempt and Endeavor the Alteration and Subversion of the Fundamental Frame and Constitutions of this Government; every such Person shall be put to Death."
But the bulk of colonial legislation prior to the Revolution drew extensively on English law, especially the statute 25 Edward III. Some of the acts substantially adopted the language of the latter statute, with additions, and some simply declared that the offense of treason should follow the English law. With the exception of Georgia and New Jersey, all the colonies eventually adopted one or the other type statute. In addition, the English law of treason itself applied, to an undefined extent, and several colonial acts were disallowed on the theory that they covered ground already occupied by the mother country's legislation. The colonies which enacted their own statutes patterned after 25 Edward III did not narrow its terms. Several expressly included the treason of compassing the death of the king, and a couple even made an analogous offense of compassing the death of the proprietor. The offense of levying war against the king was given a broad definition; some of the colonies expressly included various forms of "constructive" levying of war which had been put into the English statute by judicial construction, in general extending the crime to domestic disturbances; and some of the statutes made conspiracy to levy war sufficient to constitute the crime of levying war. Some specific attention was given in separate legislation at various times to contact with the enemy, legislation comparable to that subsequently enacted during the Revolutionary period.
Most of the colonial treason acts contained two-witness requirements, without the additional qualification later adopted in the Constitution, that they must be witnesses to the same overt act, although it was required that they be witnesses to the same general kind of treason.
See generally Hurst, op. cit. supra, 58 Harv. L. Rev. at 226-45.
"Every member of that Convention — every officer and soldier of the Revolution from Washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence . . . could have been prosecuted and might have been convicted as `traitors' under the British law of constructive treason." 3 Beveridge, Life of John Marshall, 402, 403.
Some of his precepts were: "If the crime of high treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power." (Book 12, Ch. 7, Of the Crime of High Treason.) "The laws do not take upon them to punish any other than overt acts." (Book 12, Ch. 11, Of Thoughts.) "Nothing renders the crime of high treason more arbitrary than declaring people guilty of it for indiscreet speeches. . . . Words do not constitute an overt act; they remain only in idea. . . . Overt acts do not happen every day; they are exposed to the eye of the public; and a false charge with regard to matters of fact may be easily detected. Words carried into action assume the nature of that action. Thus a man who goes into a public market-place to incite the subject to revolt, incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished but an action in which the words are employed." (Book 12, Ch. 12, Of indiscreet Speeches.) "Those laws which condemn a man to death on the deposition of a single witness, are fatal to liberty." (Book 12, Ch. 3, Of The Liberty of the Subject.)
Both French and English influences on American thought as shown by Jefferson's writings are traced by Perry, Puritanism and Democracy (1945) 126, 130, 134, 158, 182, 184, 185.
Blackstone says: "But afterwards, between the reign of Henry the fourth and queen Mary, and particularly in the bloody reign of Henry the eighth, the spirit of inventing new and strange treasons was revived; among which we may reckon the offences of clipping money; breaking prison or rescue, when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welshmen; counterfeiting foreign coin; wilful poisoning; execrations against the king; calling him opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to abjure the pope; deflowering, or marrying without the royal licence, any of the king's children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, without previously discovering to him such her unchaste life; judging or believing (manifested by any overt act) the king to have been lawfully married to Anne of Cleve; derogating from the king's royal stile and title; impugning his supremacy; and assembling riotously to the number of twelve, and not dispersing upon proclamation . . ." 4 Blackstone 86-87.
Hale (History of the Pleas of the Crown, Emlyn ed. London, 1736) frequently uses terminology, found in Coke and earlier writers, which might mean that the function of an overt act is to prove intent, saying that the overt act is to "manifest" or "declare" the compassing of the king's death, and so forth. Id., 109. But, as in the other writers, the statements are usually open as well to the interpretation that the act must show translation of thought into action. In the latter sense, the act "declares" intent in that it shows, in the light of other evidence, that the defendant's thoughts were not mere idle desires. This is a different thing from saying that the overt act must of itself display an unambiguously traitorous character. Elsewhere Hale gives some support to the view that the act may itself be of an innocent character. Dealing with the principle that words alone cannot be an overt act, he says that "words may expound an overt-act to make good an indictment of treason of compassing the king's death, which overt-act possibly of itself may be indifferent and unapplicable to such an intent; and therefore in the indictment of treason they may be joined with such an overt-act, to make the same applicable and expositive of such a compassing." Id., 115. He also declares that the mere meeting of persons with the intent of plotting the king's death is a sufficient overt-act for the treason of compassing the king's death. Id., 108, 109. These remarks, however, deal only with compassing the king's death, and little light is given as to the overt act in connection with levying war and adhering to the enemy. With Coke, Hale takes the position that a mere meeting of persons to conspire, though sufficient under the compassing clause, is not sufficient for the levying-of-war clause. Id., 130.
Foster's view of the overt act does not seem materially different from Hale's. (A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry; and of other Crown Cases, 2d ed. 1791.) "Overt acts undoubtedly do discover the man's intentions; but, I conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart . . . though in the case of the King overtacts of less malignity, and having a more remote tendency to his destruction, are, with great propriety, deemed treasonable; yet still they are considered as means to affectuate [sic], not barely as evidence of the treasonable purpose." Foster also repeats the assertion that the mere meeting of persons with intent to plan the king's death is a sufficient overt act. Id., 195. However, his discussion, too, is confined to the treason of compassing, and he says little that is helpful about levying war and adhering.
Later, as Secretary of State, he wrote: "Treason . . . when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government, and acts against the oppressions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; because real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny, have been the chief martyrs of treason laws in all countries." 8 Jefferson's Writings 332. Compare 7th Annual Message, 1807, 3 Jefferson's Writings 451, 452.
Whiskey Rebellion cases: United States v. Vigol, 28 Fed. Cas. 376, No. 16,621 (C.C.D. Pa. 1795), United States v. Mitchell, 26 Fed. Cas. 1277, No. 15,788 (C.C.D. Pa. 1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Case of Fries, 9 Fed. Cas. 826, 924, Nos. 5126, 5127 (C.C.D. Pa. 1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cranch 75 (1807), United States v. Burr, 25 Fed. Cas. 2, 55, Nos. 14,692a, 14,693 (C.C.D. Va. 1807) (conspiracy to levy war held not an overt act of levying war). United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C.D.C. 1814) (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C.C.D. Md. 1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States v. Hoxie, 26 Fed. Cas. 397, No. 15,407 (C.C.D. Vt. 1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D. Pa. 1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). 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 no levying of war). United States v. Greiner, 26 Fed. Cas. 36, No. 15,262 (E.D. Pa. 1861) (participation as member of state militia company in seizure of a federal fort is a levying of war). United States v. Greathouse, 26 Fed. Cas. 18, No. 15,254 (C.C.N.D. Cal. 1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 12 Wall. 342 (1871); Carlisle v. United States, 16 Wall. 147 (1873); Sprott v. United States, 20 Wall. 459 (1874); United States v. Athens Armory, 24 Fed. Cas. 878, No. 14,473 (N.D. Ga. 1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States v. Cathcart and United States v. Parmenter, 25 Fed. Cas. 344, No. 14,756 (C.C.S.D. Ohio, 1864). Chenoweth's Case (unreported: see Ex parte Vallandigham, 28 Fed. Cas. 874, No. 16,816, at 888 (S.D. Ohio, 1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. 63, No. 3621a (C.C.D. Va. 1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-87; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 2 Phil. 703 (1903), United States v. De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (S.D.N.Y. 1919) (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (S.D.N.Y. 1919) (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708 (E.D. Pa. 1918), aff'd, 251 U.S. 466 (1919) (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F.2d 661 (C.C.A. 7th, 1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan v. United States, 133 F.2d 87 (C.C.A. 6th, 1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F.2d 888 (C.C.A.2d, 1943).
"It had been a real revolution — a long and difficult travail, full of hardship, struggle, bitterness, and the overturning of old habits and customs. But it did not eat its children and it had no aftermath of vengeance. The Hessians who stayed in the country were not hunted down and annihilated. Some loyalists who returned were harshly treated — others came back and settled down peacefully as citizens of the new state. There was neither blood bath nor purge. There was bitter political dispute — but no small group of men plotted in secret to overthrow the government by force of arms. There were a couple of minor and local revolts, based on genuine grievances — Shays' Rebellion in 1786 — the Whisky Rebellion in 1794. Both collapsed when the government showed itself able to put down rebellion — and nobody was hanged for either of them. Shays and his temporary rebels received a general amnesty — the leaders of the Whisky Rebellion were convicted of treason and then pardoned by the President." Benet, America, pp. 49-50.
Speaking of the War Between the States he says:
"Again, there was no blood purge. There were no mass executions. No heads rolled.
"The handful of fanatics who had plotted the assassination of Lincoln and other government leaders were executed. His actual murderer was tracked down and shot. The half-crazy officer who commanded a notorious southern prison camp was hanged. The former President of the Confederacy, Jefferson Davis, was kept for a while in prison with certain of his associates and then released. But that was all.
"Not one of the great southern generals or statesmen, Lee, Johnson, Stephens, Hampton, Longstreet — was even tried for treason." Id., 78.
Continuing, after comment on particular cases, he said: "In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern, whether the great principle of our law, requiring two witnesses to overt acts, has been adhered to; for certainly it is not adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is immediately deducible." v. 2, p. 516.
Norma Kopp testified that Cramer told her that the "Minute Man" called at his door "and he got kind of fresh and he closed the door at him." Miss Kopp's testimony was objected to and was offered as "showing the general motive and disposition, in so far as loyalty to the country is concerned, of this defendant," and as probative on the issue of intent. The court received it on the theory that incidents of that sort might corroborate or the jury might find it corroborated certain other testimony offered by the Government indicating a motive or intent.
The Circuit Court of Appeals observed that, "Of course, these expressions of opinion could not properly bind appellant; and the objection might wisely have been sustained." But it concluded that the ruling was not sufficiently prejudicial to call for reversal.
While defendant was under cross-examination, he was asked, "By the way, Mr. Witness, you have testified at length here about your various studies and your various occupations and interests. Were you ever interested in law? A. No, sir; I was not. Q. Isn't it a fact, sir, that at one time you were particularly interested in the law of treason? A. No, sir; I have never been interested in that." The District Attorney then offered a complete text of the Constitution of the United States as printed in the New York Times in 1937. It had been found in Cramer's room and on it were marks which he admitted making. One of the marks was opposite the paragraph which defines treason. The District Attorney offered it for impeachment and also contended it to be of probative force to show "that this witness had in mind at the time these events which are the subject of the indictment here occurred, what the law of treason was." Against objection the court admitted it as material and relevant and declined to limit the grounds on which it was received.
It appears without dispute that the marks on this copy of the Constitution were made at a time not definitely established but clearly before the United States entered the war and when the policy of the Government was declared to be one of neutrality.
The treason paragraph of the Constitution was one of six provisions which he marked. Another was the provision of Article 1 of § 7, that if any bill passed by the Congress shall not be returned by the President within ten days after having been presented to him, the same shall be a law. Another, the provision of Article 1, § 8, that Congress shall have the power to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water. A third was Article 1, § 9, which provides that no bill of attainder or ex post facto law shall be passed. A fourth was that provision of Article 1, § 9, that no title of nobility shall be granted by the United States. Another was the portion of Article 2, § 1, which sets forth the President's oath.
The petitioner was naturalized in 1936 and, so far as appears, came into possession of the Constitution in 1937.
Danish Penal Code. — "Sec. 105. One who commits an act by virtue of which a foreign service of military intelligence is set up, or who assists directly or indirectly in its functioning on the territory of the State of Denmark, shall be punished by imprisonment up to two years and in cases of extenuating circumstances by detention."
Polish Code. — "Art. 100. Sec. 1. Whoever in time of war acts in favor of the enemy or to the damage of the Polish armed forces or allied forces shall be punished by imprisonment not under ten years or for life.
"Art. 100. Sec. 2. If the offender unintentionally acted, he shall be punished by imprisonment not to exceed three years or by detention not to exceed three years."
French Code of 1939. — "Art. 103. Whoever, knowing about the plans of an act of treason or espionage, does not report them to the military, administrative, or judicial authorities as soon as he acquired knowledge shall be punished by penalties provided by Art. 83 for the attack on the exterior safety of the State."
The French Code (Harboring) provides in Article 85 that every Frenchman and every foreigner shall be punished as an accomplice or for harboring:
"(1) Who, knowing the intentions of the perpetrators of major crimes and minor crimes against the exterior safety of the State, furnishes them subsidies, means of existence, lodging, place of asylum or meeting place.
"(2) Who, knowingly carries the correspondence of the perpetrators of a major or minor crime or knowingly facilitates them in any manner whatsoever in finding, harboring, transporting, or transmitting, the objects of a major or minor crime;
"(3) Who harbors knowingly the objects or instruments which served or should serve for the commission of the crime or offense or material objects or documents obtained through a crime or offense."