U.S. Supreme Court

Cramer v. United States

No. 13

Argued March 9, 1944

Reargued November 6, 1944

Decided April 23, 1945

325 U.S. 1

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, the overt act relied on, of which the Constitution requires proof by two witnesses, must be at least an act of the accused sufficient, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. P. 325 U. S. 34.

2. The protection of the two-witness rule of the Constitution in such case extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given. P. 325 U. S. 33.

3. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, two of the overt acts alleged and relied on were:

"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 New York, and did confer, treat, and counsel with said Werner Thiel

Page 325 U. S. 2

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 within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel."

By direct testimony of two or more witnesses, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged; that they drank together, and that they engaged long and earnestly in conversation. There was no proof by two witnesses of what they said, or in what language they conversed; no showing that Cramer gave them any information whatever of value to their mission, or that he had any to give; no showing of any effort at secrecy, they having met in public places, and no evidence that Cramer furnished them shelter, sustenance, or supplies, or that he gave them encouragement or counsel, or even paid for their drinks.

Held: that overt acts 1 and 2 as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy, and therefore insufficient to support a judgment of conviction. Pp. 325 U. S. 36-37, 325 U. S. 48.

137 F.2d 888 reversed.

Certiorari, 320 U.S. 730, to review the affirmance of a judgment of conviction of treason.

Page 325 U. S. 3

MR. JUSTICE JACKSON delivered the opinion of the Court.

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. [Footnote 1]"

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 we 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,

Page 325 U. S. 4

roomed together, and jointly had ventured in a small and luckless delicatessen enterprise. Thiel early and frankly avowed adherence to the National Socialist movement in Germany; he foresaw the war, and returned in 1941 for the purpose of helping Germany. Cramer did not do so. How much he sympathized with the doctrines of the Nazi Party is not clear. He became at one time, in Indiana, a member and officer of the Friends of New Germany, which was a predecessor of the Bund. However, he withdrew in 1935, before it became the Bund. He says there was some swindle about it that he did not like, and also that he did not like their drilling and "radical activities." In 1936, he made a trip to Germany, attended the Olympic Games, and saw some of the Bundsmen from this country who went there at that time for conferences with Nazi Party officials. There is no suggestion that Cramer, while there, had any such associations. He does not appear to have been regarded as a person of that consequence. His friends and associates in this country were largely German. His social life in New York City, where he recently had lived, seems to have been centered around Kolping House, a German-Catholic recreational center.

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.

Page 325 U. S. 5

Coming down to the time of the alleged treason, the main facts, as related on the witness stand by Cramer, are not seriously in dispute. He was living in New York, and, in response to a cryptic note left under his door, which did not mention Thiel, he went to the Grand Central Station. There, Thiel appeared. Cramer had supposed that Thiel was in Germany, knowing that he had left the United States shortly before the war to go there. Together, they went to public places and had some drinks. Cramer denies that Thiel revealed his mission of sabotage. Cramer said to Thiel that he must have come to America by submarine, but Thiel refused to confirm it, although his attitude increased Cramer's suspicion. Thiel promised to tell later how he came to this country. Thiel asked about a girl who was a mutual acquaintance and whom Thiel had engaged to marry previous to his going to Germany. Cramer knew where she was, and offered to and did write to her to come to New York, without disclosing in the letter that Thiel had arrived. Thiel said that he had in his possession about $3,600, but did not disclose that it was provided by the German Government, saying only that one could get money in Germany if he had the right connections. Thiel owed Cramer an old debt of $200. He gave Cramer his money belt containing some $3,600, from which Cramer was to be paid. Cramer agreed to and did place the rest in his own safe deposit box, except a sum which he kept in his room in case Thiel should want it quickly.

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 fiancée 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

Page 325 U. S. 6

that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States, or planned to do that."

"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. [Footnote 2]"

Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson: [Footnote 3]

"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 relations 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

Page 325 U. S. 7

Casement's Case, uses language which accords with my understanding:"

" 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. [Footnote 4]"

The Government, however, contends for, and the court below has affirmed, this conviction upon a contrary principle. [Footnote 5] It said:

"We believe, in short, that no more need be laid for an overt act of treason than for an overt act of conspiracy. . . . Hence, we hold the overt acts relied on were sufficient to be submitted to the jury, even though they perhaps may have appeared as innocent on their face."

A similar conclusion was reached in United States v. Fricke; [Footnote 6] it is: "An overt act, in itself, may be a perfectly innocent act standing by itself; it must be in some manner in furtherance of the crime."

As lower courts thus have taken conflicting positions, or, where the issue was less clearly drawn, have dealt with the problem ambiguously, [Footnote 7] we granted certiorari, [Footnote 8] and, after argument at the October 1943 Term, we invited

Page 325 U. S. 8

reargument addressed to specific questions. [Footnote 9] Since our primary question here is the meaning of the Constitutional provision, we turn to its solution before considering its application to the facts of this case.

I

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

Page 325 U. S. 9

the people. There is no evidence that the forefathers intended to withdraw the treason offense from use as an effective instrument of the new nation's security against treachery that would aid external enemies.

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" [Footnote 10] which, in effect, declared that all persons residing within any colony owed allegiance to it, and that, if any such persons adhered to the King of Great Britain, giving him aid and comfort, they were guilty of treason, and which urged the colonies to pass laws for punishment of such offenders "as shall be provably attainted of open deed." [Footnote 11] Many of the colonies complied, and a variety of laws, mostly modeled

Page 325 U. S. 10

on English law, resulted. [Footnote 12] Some of the legislation in later years became so broad and loose as to make treason of

Page 325 U. S. 11

mere utterance of opinion. [Footnote 13] Many a citizen, in a time of unsettled and shifting loyalties, was thus threatened under

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English law, which made him guilty of treason if he adhered to the government of his colony, and also under colonial law, which made him guilty of treason if he adhered to his King. [Footnote 14] Not a few of these persons were subjected to confiscation of property or other harsh treatment by the Revolutionists under local laws -- none, however, so far as appears, to capital punishment. [Footnote 15]

Before this revolutionary experience, there were scattered treason prosecutions in the colonies, [Footnote 16] usually not well reported. Some colonies had adopted treason statutes modeled on English legislation. [Footnote 17] But the earlier colonial experience seems to have been regarded as of

Page 325 U. S. 13

a piece with that of England, and appears not to have much influenced the framers in their dealings with the subject.

However, their experience with treason accusations had been many-sided. More than a few of them were descendants

Page 325 U. S. 14

of those who had fled from measures against sedition and its ecclesiastic counterpart, heresy. Now the treason offense was under revision by a Convention whose members almost to a man had themselves been guilty of treason under any interpretation of British law. [Footnote 18] They not only had levied war against their King themselves, but they had conducted a lively exchange of aid and comfort with France, then England's ancient enemy. Every step in the great work of their lives, from the first mild protests against kingly misrule to the final act of separation, had been taken under the threat of treason charges. [Footnote 19] The Declaration of Independence may seem cryptic in denouncing George III "for transporting us beyond Seas to be tried for pretended offenses," but the specific grievance was recited by the Continental Congress nearly two years before in saying that

". . . it has lately been resolved in Parliament, that, by force of a statute, made in the thirty-fifth year of the reign of King Henry the eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments

Page 325 U. S. 15

of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned. [Footnote 20]"

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. [Footnote 21] The English stream of thought concerning

Page 325 U. S. 16

treasons began to flow in fairly definable channels in 1351 with the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2. [Footnote 22] That was a monumental piece

Page 325 U. S. 17

of legislation several times referred to in the deliberations of the Convention. It cut a benchmark by which the English-speaking world tested the level of its thought on the subject [Footnote 23] until our own abrupt departure from it in

Page 325 U. S. 18

1789, and after 600 years, it still is the living law of treason in England. Roger Casement in 1917 forfeited his life for violating it. [Footnote 24] We, of course, can make no independent judgment as to the inward meanings of the terms used in a six-century-old statute, written in a form of Norman French that had become obsolete long before our Revolution. We can read this statute only as our forebears read it -- through the eyes of succeeding generations of English judges, to whom it has been the core of all decision, and of common law commentators, to whom it has been the text. [Footnote 25]

Page 325 U. S. 19

Adjudicated cases in English history generally have dealt with the offense of compassing the monarch's death;

Page 325 U. S. 20

only eleven reported English cases antedating the Constitution are cited as involving distinct charges of adherence to the King's enemies. [Footnote 26] When constructive treasons were not joined on the face of the indictment, it is not possible to say how far they were joined in the minds of the judges. No decision appears to have been a factor in the deliberations of our own Constitutional Convention. Nor does any squarely meet our issue here, and for good reason -- the Act of Edward III did not contain the "two witnesses to the same overt act" requirement which precipitates the issue here.

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

Page 325 U. S. 21

am the State," and a concept of treason as compassing or imagining a ruler's death was no longer fitting. Nor can it be gainsaid that the revolutionary doctrine that the people have the right to alter or abolish their government relaxed the loyalty which governments theretofore had demanded -- dangerously diluted it, as the ruling classes of Europe thought, for, in their eyes, the colonists not only committed treason, they exalted it. [Footnote 27] The idea that loyalty will ultimately be given to a government only so long as it deserves loyalty, and that opposition to its abuses is not treason, [Footnote 28] has made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy. But the basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself. The interplay in

Page 325 U. S. 22

the Convention of their two fears accounts for the problem which faces us today.

II

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. [Footnote 29] The Committee on Detail, apparently not specifically instructed on the subject, reported a draft Constitution which left no such latitude to create new treasons. It provided that:

"Treason against the United States shall consist only in levying war against the United States, or any of them, and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason unless on the testimony of two witnesses. No attainder of treason shall work corruption of bloods, nor forfeiture, except during the life of the person attained. [Footnote 30]"

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. [Footnote 31]"

Mr. Mason was in favor of following the language of the Statute of Edward III. The discussion shows some confusion as to the effect of adding the words "giving them aid and comfort," some thinking their effect restrictive

Page 325 U. S. 23

and others that they gave a more extensive meaning. However,

"Col. Mason moved to insert the words 'giving [them] aid comfort,' as restrictive of 'adhering to their Enemies, &c' -- the latter, he thought, would be otherwise too indefinite."

The motion prevailed.

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. [Footnote 32]"

But the motion carried.

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

Page 325 U. S. 24

to that time had advanced. [Footnote 33] Limitation of the treason of adherence to the enemy to cases where aid and comfort were given and the requirement of an overt act were both found in the Statute of Edward III praised in the writings of Coke and Blackstone, and advocated in Montesquieu's Spirit of Laws. Likewise, the two witness requirement had been used in other statutes, [Footnote 34] was advocated by Montesquieu in all capital cases, [Footnote 35] and was a familiar precept of the New Testament, [Footnote 36] and of Mosaic law. [Footnote 37] The framers combined all of these known protections and added two of their own which had no precedent. They wrote into the organic act of the new government a prohibition of legislative or judicial creation of new treasons. And a venerable safeguard against false testimony was given a novel application by requiring two witnesses to the same overt act.

District 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

Page 325 U. S. 25

or circuit judges. [Footnote 38] After constitutional requirements have been satisfied, and after juries have convicted

Page 325 U. S. 26

and courts have sentenced, Presidents again and again have intervened to mitigate judicial severity or to pardon entirely. 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 stability. [Footnote 39]

Page 325 U. S. 27

III

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

Page 325 U. S. 28

mainly by procedural requirements -- mainly, but not wholly, for the hazards of trial also would be diminished by confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern uppermost in the framers' minds, that mere mental attitudes or expressions should not be treason, influenced both definition of the crime and procedure for its trial. In the proposed Constitution, the first sentence of the treason article undertook to define the offense; the second, to surround its trial with procedural safeguards.

"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 [Footnote 40] as merely 'adhering to the enemies of the United States, or any of them."

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

Page 325 U. S. 29

war against the King, that is in law the giving of aid and comfort"

and

"an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country . . . is . . . giving of aid and comfort."

Lord Reading explained it, as we think one must, in terms of an "act." It is not easy, if indeed possible, to think of a way in which "aid and comfort" and be "given" to an enemy except by some kind of action. Its very nature partakes of a deed or physical activity, as opposed to a mental operation.

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?

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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. [Footnote 41] 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 definition.

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

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the overt acts to prove treasonable intention. Questions of intent in a treason case are even more complicated than in most criminal cases because of the peculiarity of the two different elements which together make the offense. Of course, the overt acts of aid and comfort must be intentional, as distinguished from merely negligent or undesigned, ones. Intent in that limited sense is not in issue here. But to make treason, the defendant not only must intend the act, but he must intend to betray his country by means of the act. It is here that Cramer defends. The issue is joined between conflicting theories as to how this treacherous intention and treasonable purpose must be made to appear.

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

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own country. [Footnote 42] It may be doubted whether it would be what the founders intended, or whether it would well serve any of the ends they cherished, to hold the treason offense available to punish only those who make their treacherous intentions more evident than may be done by rendering aid and comfort to an enemy. Treason -- insidious and dangerous treason -- is the work of the shrewd and crafty more often than of the simple and impulsive.

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

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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 situation.

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 nonincriminating 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.

Page 325 U. S. 34

The controversy before us has been waged in terms of intentions, but this, we think, is the reflection of a more fundamental issue as to what is the real function of the overt act in convicting of treason. The prisoner's contention that it, alone and on its face, must manifest a traitorous intention, apart from an intention to do the act itself, would place on the overt act the whole burden of establishing a complete treason. 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 zero. It is obvious that the function we ascribe to the overt act is significant chiefly because it measures the two witness rule protection to the accused and its handicap to the prosecution. If the over act or acts must go all the way to make out the complete treason, the defendant is protected at all points by the two witness requirement. If the act may be an insignificant one, then the constitutional safeguards are shrunken so as to be applicable only at a point where they are least needed.

The very minimum function that an overt act [Footnote 43] 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 [Footnote 44] aid and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute treason must be supported

Page 325 U. S. 35

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. 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. When the prosecution's case is thus established, the Constitution does not prevent presentation of corroborative or cumulative evidence of any admissible character, either to strengthen a direct case or to rebut the testimony or inferences on behalf of defendant. The Government is not prevented from making a strong case; it is denied a conviction on a weak one.

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.

IV

The indictment charged Cramer with adhering to the enemies of the United States, giving them aid and comfort,

Page 325 U. S. 36

and set forth ten overt acts. The prosecution withdrew seven, and three were submitted to the jury. The overt acts which present the principal issue [Footnote 45] are alleged in the following language:

"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 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

Page 325 U. S. 37

within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel."

At the present stage of the case, we need not weight 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 scope, 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

Page 325 U. S. 38

one who they were confident would not report them to the authorities, as a loyal citizen should, the meetings gave them a source of information and an avenue for contact. It enabled them to be seen in public with a citizen above suspicion, and thereby to be mingling normally with the citizens of the country with which they were at war."

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 and Kerling as enemies, or how it strengthened Germany or weakened the United States in any way whatever. It may be true that the saboteurs were cultivating Cramer as a potential "source of information and an avenue for contact." But 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. Meeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs' mission, and did not advance it. It may well have been a digression which jeopardized its success.

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

Page 325 U. S. 39

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 obvious. The inference of intent from such act is also very different from the intent manifest by drinking and talking together. Taking what must have seemed a large sum of money for safekeeping is not a usual amenity of social intercourse. That such responsibilities are undertaken and such trust bestowed without the scratch of a pen to show it implies some degree of mutuality and concert from which a jury could say that aid and comfort was given and was intended. If these acts had been submitted as overt acts of treason, and we were now required to decide whether they had been established as required, we would have a quite different case. We would then have to decide whether statements on the witness stand by the defendant are either "confession in open court" or may be counted as the testimony of one of the required two witnesses to make out otherwise insufficiently proved "overt acts." But this transaction was not proven as the Government evidently hoped to do when the indictment was obtained. The overt acts based on it were expressly withdrawn from the jury, and Cramer has not been convicted of treason on account of such acts. 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. Evidence of the money transaction serves only to show how much went out of the case when it was withdrawn.

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

Page 325 U. S. 40

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 treasons.

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 fiancée of Thiel, as to incriminating statements made by Cramer to her, [Footnote 46] upon admissions made by Cramer after his arrest to agents of the Federal Bureau of Investigation, [Footnote 47] upon letters and

Page 325 U. S. 41

documents found on search of his room by permission after his arrest, [Footnote 48] and upon testimony that Cramer had

Page 325 U. S. 42

curtly refused to buy Government bonds. [Footnote 49] After denial of defendant's motion to dismiss at the close of the prosecution's case, defendant became a witness in his own behalf, and the Government obtained on cross-examination some admissions of which it had the benefit on submission. [Footnote 50]

Page 325 U. S. 43

It is not relevant to our issue to appraise weight or credibility of the evidence apart from determining its constitutional sufficiency. Nor is it necessary, in the view we take of the more fundamental issues, to discuss the

Page 325 U. S. 44

reservations which all of us entertain as to the admissibility of some of it or those which some entertain as to other of it. We could conclude in favor of affirmance only if all questions of admissibility were resolved against the prisoner. At all events, much of the evidence is of the general character whose infirmities were feared by the framers, and sought to be safeguarded against.

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 "confession in open court." The Government does not contend, and could not well contend,

Page 325 U. S. 45

that admissions made out of court, if otherwise admissible, can supply a deficiency in proof of the overt act itself.

V

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. [Footnote 51]"

His statement holds good today. Of course, we do not intimate that Congress could dispense with the two witness rule merely by giving the same offense another name. But the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety. 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 those particular acts, [Footnote 52] thus eliminating the accusation of treachery and of general intent to betray which have such passion-rousing potentialities. Congress repeatedly has enacted prohibitions of specific acts thought to endanger our security, [Footnote 53] and the practice of foreign nations with defense

Page 325 U. S. 46

problems more acute than our own affords examples of others. [Footnote 54]

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

Page 325 U. S. 47

interpretative generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty. The offense is one of subtlety, and it is easy to demonstrate lack of logic in almost any interpretation by hypothetical cases, to which real treasons rarely will conform. The protection of the two witness requirement, limited as it is to overt acts, may be wholly unrelated to the real controversial factors in a case. We would be understood as speaking only in the light of the facts and of the issues raised in the case under consideration, although that leaves many undetermined grounds of dispute which, after the method of the common law, we may defer until they are presented by facts which may throw greater light on their significance. Although nothing in the conduct of Cramer's trial evokes it, a repetition of Chief Justice Marshall's warning 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 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, 8 U. S. 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

Page 325 U. S. 48

a mechanical calibration of evidence, is a crude device, at best, or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that

"Treason may sometimes be practiced in such a manner as to render proof extremely difficult -- as in a traitorous correspondence with an Enemy. [Footnote 55]"

The provision was adopted not merely in spite of the difficulties it put in the way of prosecution, but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that "prosecutions for treason were generally virulent." Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that

"He that would make his own liberty secure must guard even his enemy from oppression, for, if he violates this duty, he establishes a precedent that will reach himself. [Footnote 56]"

We still put trust in it.

We hold that overt acts 1 and 2 are insufficient as proved to support the judgment of conviction, which accordingly is

Reversed.

[Footnote 1]

18 U.S.C. § 1, derived from Act of April 30, 1790, c. 9, § 1, 1 Stat. 112.

[Footnote 2]

Article III, Section 3.

[Footnote 3]

259 F. 685, 690.

[Footnote 4]

This view was recently followed by Judge Clancy in District Court, in dismissing an indictment for treason. United States v. Leiner, S.D.N.Y.1943 (unreported).

[Footnote 5]

United States v. Cramer, 137 F.2d 888, 896.

[Footnote 6]

259 F. 673, 677.

[Footnote 7]

"An overt act, in criminal law, is an outward act done in pursuance and in manifestation of an intent or design; an overt act in this case means some physical action done for the purpose of carrying out or affecting [sic] the treason."

United States v. Haupt, 47 F. Supp. 836, 839, rev'd on other grounds, 136 F.2d 661.

"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, 743, note.

[Footnote 8]

320 U.S. 730.

[Footnote 9]

May 22, 1944. Counsel for petitioner, although assigned by the trial court, has responded with extended researches. The Solicitor General engaged scholars not otherwise involved in conduct of the case 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. The part of the study dealing with American materials has been made available through publication in 58 Harv.L.Rev. 226 et seq. Counsel have lightened our burden of examination of the considerable accumulation of historical materials.

[Footnote 10]

The Committee included John Adams, Thomas Jefferson, John Rutledge, James Wilson, and Robert Livingston. See C. F. Adams, Life of John Adams in 1 Works of John Adams (1856) 224, 225.

[Footnote 11]

"Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony, and that all persons passing through, visiting, or make [sic] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto:"

"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 proveably attainted of open deed, by people of their condition, of any of the treasons before described."

5 Journals of the Continental Congress (1906) 475.

[Footnote 12]

Nine states substantially adopted the recommendation of the Congress: Delaware, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Virginia. (The Virginia law, though it did not copy in full the recommendation of Congress, was drawn by Jefferson, among others, and hence probably can be regarded as originating in the same source as the others.) Three states had basic treason statutes not patterned on the Congressional model, one antedating the latter: Connecticut, Maryland, South Carolina. Georgia is not found to have enacted any general treason statute, although it passed a number of separate acts of attainder.

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,"

"willfully 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.

[Footnote 13]

For example, the New York Act of March 30, 1781, after reciting that it was necessary to make further provision respecting treason in order to prevent adherence to the king, made it a felony to declare or maintain "that the King of Great Britain hath, or of Right ought to have, any Authority, or Dominion, in or over this State, or the Inhabitants thereof," or to persuade or attempt to persuade any inhabitant to renounce allegiance to the State or acknowledge allegiance to the king, or to affirm one's own allegiance to the king. A person convicted was to "suffer the Pains and Penalties prescribed by Law in Cases of Felony without Benefit of Clergy," except that the court might, instead of prescribing death, sentence to three years' service on an American warship. Laws of the New-York (Poughkeepsie, 1782) 4th Sess., Ch. XLVIII. Virginia imposed a fine not exceeding 20,000 and imprisonment up to five years

"if any person residing or being within this commonwealth shall . . . , by any word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power of the king or parliament of Great Britain, heretofore claimed and exercised within this colony, or shall attribute any such authority, jurisdiction, or power to the king or parliament of Great Britain. . . . ."

Laws, October, 1776, Ch. V, 9 Hening, Statutes at Large (1823) 170. See also Hurst, op. cit. supra, 58 Harv.L.Rev. at 265-267.

[Footnote 14]

A similar situation prevailed during the Civil War, when treason prosecutions were instituted against citizens of some southern states for treason to the state, consisting of adherence to the United States. See Robinson, Justice in Grey, pp. 176, 199, 201, 202, 270, 289, 380, 385, 408.

[Footnote 15]

See Hurst, Treason in the United States (1944) 58 Harv.L.Rev. 226, 268-71. Although these acts, dealing with withdrawal to enemy territory, imposed in general only forfeiture and banishment, some did reinforce these penalties with the threat of death if the person should later be found within the state. Id., 272.

[Footnote 16]

The only pre-Revolutionary treason trial of which there is an extensive record is King v. Bayard (1702), a New York prosecution under an Act of May 6, 1691, which made it treason "by force of arms or otherwise to disturb the peace good and quiet of this their Majestyes Government as it is now Established." (The act was thought by the home authorities to be objectionably broad and vague, and was later repealed.) See The Trial of Nicholas Bayard, 14 Howell's State Trials 471; 10 Lawson, American State Trials 518; Hurst, op. cit. supra, 58 Harv.L.Rev. at 233. For other material on colonial treason prosecutions, see Hurst, op. cit. supra, 58 Harv.L.Rev. at 234, n. 15.

[Footnote 17]

In the early part of the colonial period, charters and grants gave royal governors authority to use martial law for suppression of "rebellion," "sedition," and "mutiny," and references to treason were not in the traditional language. A provision of the General Laws of New Plimouth Colony, 1671, is representative:

"3. Treason against the Person of our Sovereign Lord the King, the State and Commonwealth 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 226-245.

[Footnote 18]

"The men who framed the instruments remembered the crimes that had been perpetrated under the pretense of justice; for the most part, they had been traitors themselves, and, having risked their necks under the law, they feared despotism and arbitrary power more than they feared treason."

3 Adams, History of the United States 468.

"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 convicted as 'traitors' under the British law of constructive treason."

3 Beveridge, Life of John Marshall, 402, 403.

[Footnote 19]

This was doubtless the meaning of Franklin's quip at the signing of the Declaration of Independence that, if the signers did not hang together they should hang separately. It was also the meaning of the cries of "Treason" which interrupted Patrick Henry in the speech in the Virginia House of Burgesses evoking the famous reply "If this be treason, make the most of it."

[Footnote 20]

1 Journals of the Continental Congress, 65. See also 1 Burnett, ed., Letters of Members of the Continental Congress (1921) 43, 44, n. 36.

[Footnote 21]

The men who were responsible for framing our Constitution were influenced by eighteenth century liberal thought from both French and English sources. French influences, more philosophical than legal in character, were particularly strong with Franklin, who took a significant part in framing the treason clause. Franklin had been a member of the French Academy of Sciences since 1772, and had many friends among French intellectuals. He spent much time in England and in France, to which he was sent by the Continental Congress as Commissioner in 1776. He remained until 1783, when he signed the Treaty of Peace with England, and thereafter until 1785 as Minister to France. Becker, Franklin, 6 Dictionary of American Biography 585; 9 Encyclopedia Britannica (14th ed.) 693. Jefferson, a strong influence with the men of that period, was sent to France by the Continental Congress to assist Franklin, remaining there from 1784 to 1789, succeeding Franklin in 1785 as Minister. Jefferson was so closely in touch with French revolutionary thought that, in July, 1789, he was invited to assist in the deliberations of the Committee of the French National Assembly to draft a Constitution, but declined out of respect for his position. See Malone, Jefferson, 10 Dictionary of American Biography 17; 12 Encyclopedia Britannica (14th ed.) 988. See also generally, Chinard, Thomas Jefferson, the Apostle of Americanism. Best known in America of the French writings was Montesquieu's L'Esprit des Lois, which appeared in French in 1748. (An English edition was published in London in 1750.) Book 12 thereof was devoted to his philosophical reactions to the abuses of treason. It is hardly a coincidence that the treason clause of the Constitution embodies every one of the precepts suggested by Montesquieu in discussing the excesses of ancient and European history.

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 marketplace 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 tracted by Perry, Puritanism and Democracy (1945) 126, 130, 134, 158, 182, 184, 185.

[Footnote 22]

"Declaration what offenses shall be adjudged treason. Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not; the King at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth, that is to say, when a man doth compass or imagine the death of our lord the King, or of our lady his queen or of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife the King's eldest son and heir; or if a man do levy war against our lord the King in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition: And if a man counterfeit the King's great or privy seal, or his money, and if a man bring false money into this realm, counterfeit to the money of England, as the money called lushburgh, or other, like to the said money of England, knowing the money to be false, to merchandise or make payment in deceit of our said lord the King and of his people, and if a man slea the chancellor, treasurer, or the King's justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their places, doing their offices: and it is to be understood that in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and his royal majesty: And of such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well as of the lands and tenements holden of other, as of himself: And moreover there is another manner of treason, that is to say, when a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth faith and obedience, and of such treason the escheats ought to pertain to every lord of his own fee. And because that many other like cases of treason may happen in time to come, which a man cannot think or declare at this present time, it is accorded, that, if any other case, supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony. And if percase any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him, or rob him, or take him, or retain him till he hath made fine or ransom for to have his deliverance, it is not the mind of the King nor his counsel, that in such case it shall be judged treason but shall be judged felony or trespass, according to the laws of the land of old time used, and according as the case requireth."

4 Halsbury's Statutes of England 273.

[Footnote 23]

Stephen said of it:

"In quiet times, it is seldom put in force, and if by any accident it is necessary to apply it, the necessity for doing so is obvious. For revolutionary periods, it is obviously and always insufficient, and at such times, it is usually supplemented by enactments which ought to be regarded in the light of war measures, but which are usually represented by those against whom they are directed as monstrous invasions of liberty. The struggle being over, the statute of 25 Edw. 3 is reinstated as the sole definition of treason, and in this way it has become the subject of a sort of superstitious reverence."

2 Stephen, History of the Criminal Law of England (1883) 250, 251; see also 3 Holdsworth (4th ed.1935) 287.

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; willful 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.

[Footnote 24]

Rex v. Casement. (1917) 1 K.B. 98; Knott, Trial of Roger Casement, 184, 185.

[Footnote 25]

Chief among these were Coke and Blackstone. Coke emphasized the salutary effects of the Statute of Edward III in limiting treason prosecution, and strongly emphasized the overt act requirement, probably quoting Bracton. Institutes of the Laws of England, 5th Ed. (1671) Part III, 14. He used as examples overt acts which of themselves appear to evidence treasonable intent. Id., 2, 3, and 14. See 1 Hale, History of the Pleas of the Crown (1736) 86, 259. But we cannot be sure whether this was intended to imply that acts from which intent would be less evident would suffice. Other authors known on this side of the water leave us with little light on our particular problem.

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 or 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, overt acts 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.

[Footnote 26]

These are: Trial of Sir Nicholas Throckmorton, 1 How.St.Tr. 869 (1 Mary, 1554); Trial of Sir Richard Grahme (Lord Preston's Case), 12 How.St.Tr. 645 (2 William and Mary, 1691); Trial of Sir John Freind, 13 How.St.Tr. 1, 4, 11 (8 William III, 1696); Trial of Sir William Parkyns, 13 How.St.Tr. 63, 67 (8 William III, 1696); Trial of Peter Cook, 13 How.St.Tr. 311, 346 (8 William III, 1696); Trial of Captain Vaughn, 13 How.St.Tr. 485 (8 William III, 1696); Trial of William Gregg, 14 How.St.Tr. 1371 (6 Anne, 1708); Trial of James Bradshaw, 18 How.St.Tr. 415 (20 George II, 1746); Trial of Dr. Hensey, 19 How.St.Tr. 1341 (32 George II, 1758); Trial of Francis De la Motte, 21 How.St.Tr. 687 (21 George III, 1781), and the Trial of David Tyrie, 21 How.St.Tr. 815 (22 George III, 1782).

[Footnote 27]

Philip Guedalla characterizes the figures of the American Revolution as they occur in British legend: "There they are oddly shrunken; they dwindle into a provincial pettiness, and their voices monotonously intone the dreary formulae of sedition." Fathers of the Revolution, p. 8.

[Footnote 28]

Mr. Jefferson had referred to the Statute of Edward III as

"done to take out of the hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom."

1 Writings of Thomas Jefferson (Library ed.1903) 215.

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 Writing 451, 452.

[Footnote 29]

2 Farrand, Records of the Federal Convention of 1787, 136.

[Footnote 30]

Art. VII, Sec. 2, of draft reported August 6, 1787. 2 Farrand 182.

[Footnote 31]

The debates are at 2 Farrand 345-350.

[Footnote 32]

James Wilson was not unlikely one of the authors of the treason clause, as a member of the Committee on Detail. He had participated in the Pennsylvania treason trials in 1778 as one of the defense counsel (Respublica v. Malin, 1 Dall. 33 (Pa. O. & T.); Respublica v. Carlisle, 1 Dall. 35; Respublica v. Roberts, 1 Dall. 39). In the Pennsylvania ratifying convention, he made detailed statements in praise of the clause without its having been challenged. 2 Elliott, Debates, 469, 487. Later, he devoted a lecture to the clause in his law course delivered at the College of Philadelphia in 1790 and 1791. 3 Works of Hon. James Wilson (Bird Wilson, ed. 1804) 95-107.

[Footnote 33]

The convention did reject proposals that the states be denied authority to define treason against themselves and that participation in a civil war between a state and the United States be excepted. See 2 Farrand 345, 348-49; 3 id. 223.

[Footnote 34]

See note 16 supra; see also 9 Holdsworth (2d ed.1938) 203-211.

[Footnote 35]

L'Esprit des Lois, Book XII, Chap. III.

[Footnote 36]

" . . . take with thee one or two more, that in the mouth of two or three witnesses every word may be established." Matt, xviii, 16.

[Footnote 37]

"One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established."

Deut. xix, 15.

[Footnote 38]

The following is a summary, taken from the Appendix to the Government's brief, of all cases in which construction of the treason clause has been involved, omitting grand jury charges and cases in which interpretation of the clause was incidental:

Whiskey Rebellion cases: United States v. Vigol, 28 Fed.Cas. 376, No. 16,621, United States v. Mitchell, 26 Fed.Cas. 1277, No. 15,788, (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, No. 5, 126; 9 Fed.Cas. 924, No. 5, 127 (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; United States v. Burr, 25 Fed.Cas. 2, No. 14,692a; 25 Fed.Cas. 55, No. 14,693 (conspiracy to levy war held not an overt art of levying war). United States v. Lee, 26 Fed.Cas. 907, No. 15,584 (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed.Cas. 332, No. 15,374 (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 (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 (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 (forcible resistance to execution of Fugitive Slave Law, 9 Stat. 462, no levying of war). United States v. Greiner, 26 Fed.Cas. 36, No. 15,262 (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 (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; Carlisle v. United States, 16 Wall. 147; Sprott v. United States, 20 Wall. 459; United States v. Athens Armory, 24 Fed.Cas. page 878, No. 14,473 (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; Chenoweth's Case (unreported; see Ex parte Vallandingham, 28 Fed.Cas. 874, 888, No. 16,816) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed.Cas. 63, No. 3,621a (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 Philippine 703; United States v. De Los Rayos, 3 Philippine 349 (mere possession of rebel commissions insufficient overt acts; strict enforcement of two witness requirement; convictions reversed); United States v. Lagnason, 3 Philippine 472 (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708, aff'd, 251 U. S. 251 U.S. 466 (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F.2d 661 (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 (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F.2d 888.

[Footnote 39]

In 1942, the Office of War Information suggested to Mr. Stephen Vincent Benet a short interpretative history of the United States for translation into many languages. In it he says:

"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.

[Footnote 40]

Apart, of course, from levying war, which is not charged in this case and is not involved in the controversy.

[Footnote 41]

Hallam, in his Constitutional History of England (1827), said:

"Nothing had brought so much disgrace on the councils of government and on the administration of justice, nothing more forcibly spoken the necessity of a great change, than the prosecutions for treason during the latter years of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroboration of some more explicit law, and some peculiar securities were demanded for innocence against that conspiracy of the court with the prosecutor, which is so much to be dreaded in all trials for political crimes."

V. 2, p. 509.

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.

[Footnote 42]

There are, of course, rare cases where adherence might be proved by an overt act such as subscribing an oath of allegiance or accepting pay from an enemy. These might supplement proof of other acts of aid and comfort, but no such overt acts of adherence are involved in this case.

[Footnote 43]

Of course, the Constitution does not require a treason to be proved by any single overt act. It may be grounded upon any number, each to be supported by the testimony of two witnesses. We speak in the singular, but what we say applies as well to a series of acts or to the sum of many acts.

[Footnote 44]

We are not concerned here with any question as to whether there may be an offense of attempted treason.

[Footnote 45]

The verdict in this case was a general one of guilty, without special findings as to the acts on which it rests. Since it is not possible to identify the grounds on which Cramer was convicted, the verdict must be set aside if any of the separable acts submitted was insufficient. Stromberg v. California, 283 U. S. 359, 283 U. S. 368; Williams v. North Carolina, 317 U. S. 287, 317 U. S. 292. The tenth act charged, the third submitted, was based on five falsehoods told by Cramer after his arrest to agents of the Federal Bureau of Investigation, admittedly for the purpose of shielding Werner Thiel. After some time, he recanted the falsehoods and told the truth. Thiel had already been taken into custody when the interviews occurred. The prisoner contends that lying to his jailer does not constitute treason, that, in the whole history of treason, no precedent can be or is cited for holding a false statement while under interrogation after imprisonment is treason, that, in any event, it amounted to no more than an attempt which was not consummated, that there was no right to interrogate Cramer under the circumstances, and that admissions made out of court are rendered inadmissible as proof of overt acts in view of the requirement that the act be proved by two witnesses or by "Confession in Open Court." The use of this evidence as an overt act of treason is complicated, and we intimate no views upon it in view of reversal on other grounds. Were we to affirm, we should have first to resolve these questions against the prisoner.

[Footnote 46]

The testimony of Norma Kopp was probably the most damaging to the prisoner. She was a German alien who had been in the United States since 1928, but had never become a citizen. She had long and intimately known both Cramer and Thiel, and became engaged to marry Thiel four days before he left for Germany. She knew him to be a Nazi. She received at Westport, Conn., where she was working as a laundry and kitchen maid, a note from Cramer, asking her to come to New York for an undisclosed reason. She came, and Cramer then, she says, told her that Thiel was back, that he came with others, that six of them landed from a submarine in a rubber boat in Florida, that they brought much money "from Germany from the German Government," that Cramer was keeping it for Thiel in his safety deposit box, that these men got instructions from a "sitz" in the Bronx as to where to go, but Cramer said he did not know what he meant by "sitz." Cramer said he expected Thiel that evening at his apartment, but Thiel did not come. Cramer failed to bring about her meeting with Thiel, as he had promised her. She was at Kolping House when Cramer was taken into custody. The following day, pictures of the saboteurs and the story of their landing and arrest was in the newspapers. She was taken into custody and questioned by the Federal Bureau of Investigation.

[Footnote 47]

Cramer left a note for "William Thomas," the name under which Thiel was going at the Commodore Hotel, where he was staying, saying that Miss Kopp had come and asking Thiel to meet them at Thompson's Cafeteria at 4:00 that afternoon or call them at 7:00 that evening at Kolping House. Thiel had been arrested, and did not keep the rendezvous nor make the call. About 10:50 p.m., June 27, Cramer was taken into custody at Kolping House and taken to the Bureau's headquarters in New York. He told the agents that the man he had been with at Thompson's Cafeteria was William Thomas, that Thomas had worked in a factory on the West Coast since March of 1941, and had not been out of the United States. When asked if the true name of William Thomas was not Werner Thiel, he replied that it was, and that Thiel was using an assumed name because of difficulties with his draft board. He stated that the money belt which Thiel had given him contained only $200, which Thiel owed him, and that the $3,500 in the safety deposit box belonged to him, and had been obtained from the sale of securities. The gravity of the offense with which he might be confronted was intimated to Cramer, and he asked if he might speak with agent Ostholthoff alone. To him he recanted his previous false statements and admitted that he knew Thiel had come from Germany, probably on a mission for the German Government, which he thought was "to stir up unrest among the people and probably spread propaganda." He repeated this in the presence of other agents and stated that he had lied in order to protect Thiel. Cramer authorized the agents to search his room and to open his safe deposit box at the Corn Exchange Bank and remove the contents thereof.

[Footnote 48]

As summarized in the opinion of the Circuit Court of Appeals, these are:

"Writing Thiel in Germany, November 25, 1941, appellant said that 'defiance, boldness, will and sharp weapons will decided [sic] the war, and the German Army and the German people are not lacking in these,' that he was 'very discontent,' and sat here 'in pitiable comfort,' and that he had refused a job in Detroit at $100 per week because 'I do not want to soil my hands with war work.' To his family in Germany, he wrote December 3, 1941, of 'the gigantic sacrifices which the glorious, disciplined German Army is making from day to day for the Homeland,' that 'every day here I hear the shrieks of hatred and the clamor for annihilation from the hostile foreigners,' and that a lost war 'means today a complete extirpation of the German nation.' To a friend in Chicago he wrote April 21, 1942, objecting to conscription 'after one has spent almost half a lifetime here in the States,' and saying 'personally I should not care at all to be misused by the American army as a world conqueror.' All the letters were written in German."

[Footnote 49]

On the Government's case, a witness testified that he went to Cramer's apartment, told him that he was a representative of the United States Government on a pledge drive, and asked him if he would like to sign a pledge for a bond. Cramer said he was not interested, and, in reply to the question whether he would sign up for a stamp, he said he was not even interested in the purchase of a 10-cent stamp. He then closed the door. The witness rang again and Cramer opened the door again and then closed it.

Normal 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, insofar 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.

[Footnote 50]

The defendant, having testified in his own behalf, was under cross-examination. He was asked:

"Q. Now sir isn't it the fact that you did write to Germany in the year 1941 several letters in which you discussed the United States in an unfriendly manner?"

"A. I do not know unfriendly. I would say that I have criticized a few persons. I have never criticized the United States as such."

He was then asked whether, in 1941, he did not receive letters from his nephew Norbert, and whether it was not the fact that Cramer's brother, Norbert's father,

"through Norbert