U.S. Supreme Court

CRAMER v. UNITED STATES, 325 U.S. 1 (1945)

325 U.S. 1

CRAMER

v.

UNITED STATES.

No. 13.

Reargued Nov. 6, 1944.

Decided April 23, 1945.

(Provides a short history about legislation concerning Treason in the United States)

Mr. Justice JACKSON delivered the opinion of the Court....

....

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. 1, 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'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. 1, 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. 1, 11] mere utterance of opinion. [Footnote 13] Many a citizen in a time of unsettled and shifting loyalties was thus threatened under [Page 325 U.S. 1, 12] 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. 1, 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 descend- [Page 325 U.S. 1, 14] ants 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. 1, 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 con- [Page 325 U.S. 1, 16] cerning treasons began to flow in fairly definable channels in 1351 with the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2.22 That was a monumental piece [Page 325 U.S. 1, 17] of legislation several times referred to in the deliberations of the Convention. It cut a bench-mark by which the English-speaking world tested the level of its thought on the subject23 until our own abrupt departure from it in [Page 325 U.S. 1, 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. 1, 19]

Adjudicated cases in English history generally have dealt with the offense of compassing the monarch's death; [Page 325 U.S. 1, 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. 1, 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 treason28 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. 1, 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. 1, 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 philos- [Page 325 U.S. 1, 24] ophy 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 dis- [Page 325 U.S. 1, 25] trict or circuit judges. [Footnote 38] After constitutional requirements have been satisfied, and after juries have convicted [Page 325 U.S. 1, 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]

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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 dimin- [Page 325 U.S. 1, 28] ished 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 intellecutal or emotional sympathy with the for, 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. 1, 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?

[Page 325 U.S. 1, 30]

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? ...

[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 treasone 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,' 'wilfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United States to the Enemies of the United States of America'; and to persons who 'have joined, or shall hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein,' or who should maliciously and with an intent to obstruct the service dissuade others from enlisting, or maliciously spread false rumors concerning the forces of either side such as to alienate the affections of the people from the Government 'or to terrify or discourage the good Subjects of this State, or to dispose them to favor the Pretensions of the Enemy,' or who 'shall take a Commission or Commissions from the King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States of America.'

A number of the statutes required 'the testimony of two lawful and credible witnesses.' But the requirement was not linked to the proof of overt acts, and there was no suggestion of the type of provision later embodied in the Constitution. Supplementary acts creating special treasonable offenses tended to omit any requirement as to quantum of proof.

See Hurst, op cit. supra, 58 Harv.L.Rev. at 248 et seq.

[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 State of New-York (Pough-keepsie, 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 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 Soveraign Lord the King, the State and Common-wealth of England, shall be punished by death.

'4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or Publick Rebellion against this Jurisdiction, or the Surprizal of any Town, Plantation, Fortification or Ammunition, therein provided for the safety thereof, or shall Treacherously and Perfidiously Attempt and Endeavor the Alteration and Subversion of the Fundamental Frame and Constitutions of this Government; every such Person shall be put to Death.'

But the bulk of colonial legislation prior to the Revolution drew extensively on English law, especially the statute 25 Edward III. Some of the acts substantially adopted the language of the latter statute, with additions, and some simply declared that the offense of treason should follow the English law. With the exception of Georgia and New Jersey, all the colonies eventually adopted one or the other type statute.

In addition, the English law of treason itself applied, to an undefined extent, and several colonial acts were disallowed on the theory that they covered ground already occupied by the mother country's legislation. The colonies which enacted their own statutes patterned after 25 Edward III did not narrow its terms. Several expressly included the treason of compassing the death of the king, and a couple even made an analogous offense of compassing the death of the proprietor. The offense of levying war against the king was given a broad definition; some of the colonies expressly included various forms of 'constructive' levying of war which had been put into the English statute by judicial construction, in general extending the crime to domestic disturbances; and some of the statutes made conspiracy to levy war sufficient to constitute the crime of levying war. Some specific attention was given in separate legislation at various times to contact with the enemy, legislation comparable to that subsequently enacted during the Revolutionary period.

Most of the colonial treason acts contained two-witness requirements, without the additional qualification later adopted in the Constitution, that they must be witnesses to the same overt act, although it was required that they be witnesses to the same general kind of treason.

See generally Hurst, op. cit. supra, 58 Harv.L.Rev. at 226-245.

[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 Montesquien'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 market-place to incite the subject to revolt, incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished but an action in which the words are employed.' Book 12, Ch. 12, Of Indiscreet Speeches. 'Those laws which condemn a man to death on the deposition of a single witness, are fatal to liberty.' Book 12, Ch. 3, Of The Liberty of the Subject.

Both French and English influences on American thought as shown by Jefferson's writings are tracted by Perry, Puritanism and Democracy (1945) 126, 130, 134, 158, 182, 184, 185.

[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, Pa. O. & T., 1 Dall. 33; 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 inquity, 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, C.C.D.Pa.1795, 28 Fed.Cas. page 376, No. 16,621, United States v. Mitchell, C.C.D.Pa.1795, 26 Fed.Cas. page 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, C.C.D.Pa.1799, 9 Fed.Cas. page 826, No. 5,126; Id., C.C.D.Pa.1800, 9 Fed.Cas. page 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, 1807, 4 Cranch 75; United States v. Burr, C. C.D.Va.1807, 25 Fed.Cas. page 2, No. 14,692a; Id., C.C.D.Va.1807, 25 Fed. Cas. page 55, No. 14,693 (conspiracy to levy war held not an overt art of levying war). United States v. Lee, C.C.D.C.1814, 26 Fed.Cas. page 907, No. 15,584 (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, C.C.D.Md.1815, 26 Fed.Cas. page 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, C.C. D.Vt.1808, 26 Fed.Cas. page 397, No. 15,407 (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, C.C.D.Pa.1814, 27 Fed.Cas. page 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, C.C.E.D.Pa.1851, 26 Fed.Cas. page 105, No. 15,299 (forcible resistance to execution of Fugitive Slave Law, 9 Stat. 462, no levying of war). United States v. Greiner, D.C.E.D.Pa.1861, 26 Fed.Cas. page 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, C.C.N.D.Cal.1863, 26 Fed.Cas. page 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, 1871, 12 Wall. 342; Carlisle v. United States, 1873, 16 Wall. 147; Sprott v. United States, 1874, 20 Wall. 459; United States v. Athens Armory, D.C.N.D.Ga.1868, 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, C.C.S.D.Ohio, 1864, 25 Fed.Cas. page 344, No. 14,756; Chenoweth's Case (unreported: see Ex parte Vallandigham, C.C.S.D.Ohio, 1863, 28 Fed.Cas. pages 874, 888, No. 16,816) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, C.C.D.Va.1867-1871, 7 Fed.Cas. page 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, 1903, 2 Philippine 703; United States v. De Los Rayos, 1904, 3 Philippine 349 (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 1904, 3 Philippine 472 (armed effort to overthrow the government is levying war). United States v. Fricke, D.C.S.D.N.Y.1919, 259 F. 673 (acts 'indifferent' on their face held sufficient overt acts). United States v. Robinson, D.C.S.D.N.Y.1919, 259 F. 685 (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, D.C.E.D.Pa.1918, 247 F. 708, affirmed 1919, 251 U.S. 466, 40 S.Ct. 259 (act indifferent on its face may be sufficient overt act ). United States v. Haupt, 7 Cir., 1943, 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, 6 Cir., 1943, 133 F.2d 87 (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 2 Cir., 1943, 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 genuing 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.