Treason Under the Constitution
(a) General Policy
The doctrinal development of the law of "treason" after the adoption of the Constitution is contributed primarily by the judges; treatise discussions are scissors and paste-pot affairs, or horn-book recitations of question-begging generalities. The judges, however, shine mainly by comparison. In view of the potentialities for good and evil in the instrument of treason prosecutions, it is surprising how little judicial imagination has been stirred to clarifying analysis in such cases as have presented themselves. Indeed the American cases have on the whole served little more than to annotate the doctrine which was, explicitly or implicitly, in the seventeenth and eighteenth-century English treatises. When the Supreme Court at the present Term reviewed for the first time a conviction of treason in Cramer v. United States,1 it divided five to four on the law of the case. The majority opinion, moreover, in its efforts to develop the implications of the constitutional definition of the crime, either invented some bad law or added confusion to an already muddled subject. Perhaps this continuing lack of helpful judicial exploration in the field may be explained by the fact that after the nineteenth century the executive and legislative branches no longer considered the treason charge as the principal bulwark of state security. There have been less than two score treason prosecutions pressed to trial by the Federal government; there has been no execution on a federal treason conviction; and the Executive has commonly intervened to pardon, or at least mitigate the sentence of those convicted. In the states this trend is even more marked. The trials of Thomas Dorr, and of John Brown, for treason by levying war against the states of Rhode Island and Virginia, respectively, are the only completed treason prosecutions by state authorities. As the Supreme Court observed in the Cramer case, "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."2
The policy most frequently expressed in judicial opinions, and one consistent with the history of treason prosecutions, has been, pursuant to the wisdom of the framers, one of careful restriction of the scope of the crime. It is now made clear, in Cramer v. United States, that this historic policy should be viewed as taking two forms: it both bans the addition of new categories of subversive conduct to the two branches of "treason" stated in the Constitution, and limits the kinds of conduct which may be charged under either of those two branches.3
Some opinions have simply praised the constitutional provision for giving "definite" meaning to the offense.4 Other opinions, by undertaking to explain the reasons behind the restrictive policy, furnish a little more light, even if they remain vague as to the tangible forms of the application of that policy. Three explanations are advanced. The one nearest to the familiar English doctrine justifies a restrictive policy by the inherent danger, if the contours of the crime are vague and ill-defined, of abuse of treason prosecutions by the authorities and the resulting intimidation of citizens. This is a broader ground of policy than the more specific fear that "treason" prosecutions may be used in the rough and tumble of domestic faction; and suggests a general public interest in a reasonable certainty as to the extent of political crimes, so that men may speak and act their political roles with proper freedom and live with a decent sense of security. Speaking for the Court in Ex parte Bollman, Mr. Chief Justice Marshall declared that
to prevent the possibility of those calamities which result from the extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our government, has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend.5
Other, and more specific explanations consider two other "kinds of dangers against which the framers were concerned to guard the treason offense," which the Court in the Cramer case describes as "(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."6
A calculating use of the convenient vagueness of "treason" charges against foes in domestic factionalism seems the characteristic abuse of the charge of levying war. In this aspect, a restrictive definition serves the policy of preserving the free, nonviolent competition of interests in political, social, and economic life. With his usual capacity for casting out varied, suggestive lines for doctrinal development, Mr. Chief Justice Marshall, in ruling on the motion for commitment of Burr, indicated that the dangers of political factions underlay the constitutional limits set to the crime of treason:
As this is the most atrocious offence which can be committed against the political body, so is it the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power. It is that of which the people of America have been most jealous, and therefore, while other crimes are unnoticed, they have refused to trust the national legislature with the definition of this....7
And in Ex parte Bollman, the Chief Justice gave a warning of the dangers of perjury and passion, repetition of which, Mr. Justice Jackson declares in the Cramer case, "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.8
In the light of the experience of World War I, the greatest danger of unjust accusations born and prosecuted out of the heat of public passion would seem to be that of an expansion of "treason" to cover unpopular opinions or attitudes.9 For, in the nature of the case, there will normally be very few occasions on which public prejudice can satisfy itself by accusing the wrong man of an undoubted act of treason. There may be some reason to fear that public prejudice will particularly influence prosecutions for adherence to the enemy, since the elements of that offense ensure that such prosecutions will spring out of wartime events, when general feeling is high.10
Of the three policies advanced in various American opinions to explain the restrictive character of the constitutional treason clause, only the second has a clearcut counterpart in the English authorities. The general policy against vagueness in so important a crime, and in favor of free speech and free pursuit of interests generally in the community, was not articulated in the English materials. And the policy of protection of the accused individual against the waves of public passion is an aspect of the treason clause policy which seems to have been brought to the fore by the special rigor of the two-witness requirement in the United States Constitution. Of these three policies, moreover, only the second, which is designed to curb the abuses of political faction, finds clear expression in the discussions attendant upon the framing and ratification of the Constitution. Even the brief comments in the Convention regarding insertion of the two-witness requirement, notably Dr. Franklin's warning of the peculiar "virulence" of treason prosecutions, imply more the peril of political abuse of the offense than the danger of public prejudice.
As was indicated in dealing with the materials pertinent to the framing and ratification of the Constitution, the question of the relevance of English authorities to the construction of the terms borrowed from the Statute of Edward III blurs the lines of the constitutional provision's restrictive policy.11 The words of the treason clause are obviously broad, and the need for interpretation inescapable in the face of the refusal of facts to fit into neat moulds.12 But the constitutional prohibition on creation of new "treasons" limits the courts as well as the Congress.13 And, as the Burr and Cramer cases demonstrate, this requires restraint not only in the adoption of offenses outside the constitutional definition, but also in the determination of what evidence will suffice to make out the elements of the offenses of adherence to enemies or levying of war.14 In both situations the limits set by the Constitution might be evaded if the courts imported the full scope of English decisions interpreting and applying the Statute of Edward III.
Counsel have sometimes argued, and judges have sometimes spoken, as if the policy of the Constitution required a wholesale refusal of any guidance from English authorities.15 This extreme position is not, however, the law of the American opinions, which overwhelmingly assert the relevance of English constructions of the Statute of Edward III.16 But it is significant that in early opinions, close to the times and ideas of the framers, two limitations were suggested on the use of English materials. In the first place, it was suggested that English doctrine developed under charges of compassing the death of the king had no proper relation to cases arising under the constitutional provision which pointedly omitted any analogue of that branch of the Statute of Edward III. Thus, in charging the jury in the first trial of Fries, Judge Peters found the greater part of the objection to the doctrine of "constructive treason" to be "totally irrelevant here. — The subject of them is unknown, and may it ever remain so, in this country. I mean the compassing the death of the king."17 Secondly, it was declared that a broad discretion was properly to be exercised in rejecting English precedents, from the days of great political turmoil or arbitrary power in that country, which expanded the scope of "treason." So, in the first Fries trial, Mr. Justice Iredell distinguished the products of "the bad times of English history" from "the better and more modern decisions," and added that he did not believe "that any judge since the revolution in England has ever considered that he was bound to follow every arbitrary example of the English courts, or the crown laws which had taken place in dark ages."18 Later courts have not had occasion to develop or deny these suggested doctrinal limitations on the adoption of English treason authorities. The limitations, however, seem consistent with the restrictive policy evidence in the terms and history of the constitutional provision, and with the generally conservative approach taken in expounding the law by almost all of the American opinions. Nor does the impeachment of one of their chief exponents, Mr. Justice Chase, cast doubt on their validity, for the impeachment charge was not that Chase's distinction of the early English cases was inherently arbitrary or unreasonable, but that he denied counsel opportunity to make their own statement of that law to the jury. The impeachment of Chase was, moreover, too clearly partisan to carry weight on a professional matter.19
This persistence of the general, stated policy of strict construction of the scope of "treason" is an element of continuity between the materials seen in the period of the framing and adoption of the Constitution and the subsequent decisions. And, though it appears less in opinions and charges of more recent years, it has been strongly reaffirmed by the Supreme Court in Cramer v. United States.20 Moreover, though the reported decisions in treason trials are not numerous, when they are examined with a view to checking the practical reality of the restrictive policy the preponderance of acquittals and of specific rules laid down with careful regard to the protection of the accused indicates that the restrictive policy has expressed an operative attitude and not merely a pious hope.21 Nor does there seem to be any basis, either in the doctrine or in the results of the cases, for applying the restrictive policy in a different degree to the two branches of treason under the constitutional definition, although experience suggests that each bears its peculiar dangers.22
(b) The Intent: Limitation of "Levying War"
Perhaps because it is at the heart of the definition of the crime, the intent element in the concept of treason is apt to be discussed, as the most obvious ingredient of the positive case for the prosecution, in rather summary fashion. In fact, however, the expression of the restrictive policy governing the scope of the offense has turned as much on a carefully restrictive definition of the intent as upon the overt act element.
"To make treason the defendant not only must intend the act, but he must intend to betray his country by means of the act."23 Thus, the Supreme Court, in Cramer v. United States, stressed the critical importance of a defined purpose in the defendant's mind one step beyond the immediate intention to do the overt act, and seems to indicate that "treason" is a crime of specific intent. However, doubt is cast on this interpretation by the further, unqualified assertion of the Cramer opinion that 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.24
This latter statement may be taken to lend support to those texts which have declared that a specific intent is not necessary to make out "treason."25
The definition of intent in the court's latter statement would seem to run counter to the logic of the offense and the history behind the restrictive policy which has controlled the evolution of that policy in English and American law. The idea of betrayal of allegiance connotes a specific intent. And, historically, most of the excesses of the English law of treason, prior to the eighteenth century, can be described in terms of a treasonable intent found by inference under the head of compassing the death of the king; men were convicted not on evidence fairly showing that they had planned the king's death and the overthrow of the government, but on the basis of the expression or advocacy of ideas or measures whose "natural" consequences, as deduced by their political foes, might involve harm to the king or the state.26 The evidence is overwhelming that the treason clause of the United States Constitution was intended to limit the scope to be given to the offense of treason; and it is upon that admonition of policy that the courts' opinions have since centered. Moreover, as the treason clause is the product not of theory, but of history, the practical meaning of its restrictive policy should be drawn from history. The most obvious manner in which the Constitution narrows the scope of treason is by omitting any analogue to the crime of compassing the king's death. Since most of the reprobated doctrines of the English law had developed under that head, it makes historical sense to look there for the kinds of doctrine which the framers wished to bar from the American law of treason. There is of course some truth in the observation that the crime of compassing the king's death has no ready analogy in a republic; but, unless a bloodless logic is substituted for living policy, it is clear that the framers rejected the doctrine for other reasons of substance.27 In this light, one historic target of the framers' restrictive policy was the raising of a treasonable intent from inferences drawn at second or third hand under the convenient vagueness of a test of responsibility for the "natural consequences" of actions.
There is loose language in the opinions, it is true, to the effect that one accused of treason may not disavow the "natural consequences" of his act by pleading that he sought merely a commercial profit by selling supplies to an enemy or rebel, or that he helped an enemy or rebel agent merely out of friendship or compassion.28 The crucial fact in the court's mind in these situations seems always to be, however, the defendant's knowledge that he is dealing with the enemy or rebel. If, having such knowledge, the defendant then sells supplies or gives money or concealment, he in fact specifically intends the ultimate, prohibited effect, to aid the enemy, or to contribute to the levy of war. In this state of proof, the plea of profit or friendship seeks to raise not the issue of his intention, but the more remote question of his motive; and it is merely applying elementary doctrine to hold that if defendant had the specific intention to bring about a result which the law seeks to prevent, his motive is irrelevant.29 Of course the mercy of juries is always an incalculable factor here, and one deliberately preserved in our system.30
The prosecution is not limited to the accused's direct statements of intention to prove specific intent, however; and obviously a practical compromise must be struck in dealing with a crime which threatens the life of the community. Thus the man who is apprehended as he rows out to sell his foodstuffs to a known hostile frigate is held to have had a treasonable intent, though he pleads that his purpose was merely to make a dollar.31 But the man who joins a "wildcat" strike in a munitions plant in time of war, and then pleads that his purpose was merely to get a raise, will not be held to possess a treasonable intent, though the "natural consequence" of the strike is the interruption of production needed to save the country.32 It is hard to reconcile these positions by any more precise test than one of the proximity of defendant's immediate intention to the forbidden ultimate result of aid and comfort to the enemy.
The way in which the scope of treason by levying war was narrowed demonstrates the manner in which the historic policy restrictive of "treason" may be effectuated through a strict definition of the intent element. The problem first arose where forcible opposition to the execution of a single statute or other act of authority was charged to be a levying of war. The English decisions prior to the middle of the eighteenth century went far in finding that riotous assemblies for any non-private ("public") purpose amounted to constructive levying of war; and it was so held a fortiori if the object of the mob could be said to be to prevent by force the execution or procure the repeal of some official act.33 It was established, in the cases arising out of the Whiskey Rebellion in 1794 and the Pennsylvania resistance to the federal property excise in 1799. that this latter is likewise treason under the Constitution. But even Federalist-minded judges laid down the law with significant and reiterated emphasis on the need for finding that the force was exerted for a general and public purpose and not merely to stop the collection of particular levies, or collection from particular persons, or by a particular exciseman.34
In 1808, in United States v. Hoxie,35 Livingston, Circuit Justice, in effect directed a verdict on the basis that the conveying of a raft of logs to Canada, in violation of the Embargo and with armed opposition to the troops seeking to enforce it, was not shown to be more than a particular violation of law for profit, and hence was, for lack of the requisite intent, not treason. Emphasizing the agreement of men learned in the law upon "the exceptions, which have been so cautiously interwoven into" the doctrines regarding levying of war, "for the very purpose of preventing their extension to cases of this kind," he noted that it may sometimes be hard to distinguish between treason and some other offenses involving opposition to authority.
But, difficult as this may be, every one will at once perceive a very wide separation, between regular and numerous assemblages of men, scattered over a large portion of country, under known officers, and in every respect armed and marshalled in military and hostile array, for the avowed purpose, not only of disturbing and arresting the course of public law, in a whole district, by forcibly compelling the officers of government to resign, but by intimidation and violence, of coercing its repeal, and a sudden, transient, weak, unmilitary, and unsystematized resistance, and that in a solitary instance, and for the single object of personal emolument.36
Livingston concentrated here entirely on the intent element as the safeguard against extension of the crime by inference:
In what can we discover the treasonable mind, which common sense, as well as all the authorities tell us, is of the very essence of this offence? ... These learned judges also consider the intention as the only true guide in ascertaining whether certain acts amount to treason, or a less offence, and regard the universality, or generality of the design, as forming an essential ingredient in the composition of this crime.37
Mr. Justice Livingston thus carefully insisted on the specific intent, to ensure that mere resistance to lawful authority, or ordinary crime, would not be treated as a levying of war. In United States v. Hanway,38 Mr. Justice Grier, on circuit, by emphasizing that treason was inherently a crime of deliberate, preconceived intention, developed another facet of a cautiously defined specific intent: mere presence in a riotous assembly or sudden, impulsive joining in damage wrought, would not raise an adequate inference of participation in a design to levy war. Under what amounted to a direction by the court, the jury acquitted of "treason" a defendant, who had participated in a forcible effort to prevent the taking of escaped slaves under the Fugitive Slave Law. Mr. Justice Grier raised a doubt whether, under the English authorities of the generation preceding adoption of the Constitution, a rising against the execution of a particular law was enough to show treasonable intent, or whether the design must not be entirely to subvert the government.39 But, at any rate, a calculated and general intention, directed to a public and not merely a particular or private object, must be shown, and not a mere "sudden 'conclamatio' or running together."40 Since Grier noted that the defendant was "confessedly present" at the disturbance, and that being present and aiding overtly or by approval makes one a principal in treason (as, indeed, in other felonies), it seems clear that he does not question the sufficiency of presence as an overt act, but focuses instead on the intent.41 Grier also charged, as had Livingston, that mere breach of the law, as, for example, by smugglers resisting the revenue officers, though necessarily involving forcible opposition to authority, is not treason. His evident distaste for the doctrine of constructive levying of war led him practically to read it out of the scope of treason, as that offense had been defined in the early English cases:
A whole neighbourhood of debtors may conspire together to resist the sheriff and his officers, in executing process on their property — they may perpetrate their resistance by force of arms — may kill the officer and his assistants — and yet they will be liable only as felons, and not as traitors. Their insurrection is of a private, not of a public nature; their object is to hinder or remedy a private, not a public grievance.42
The new climate of policy reflected in the Hoxie and Hanway cases is the more striking because both prosecutions were brought as test cases by administrations eager to obtain the support of favorable decisions for hotly controverted public policies. In this light, it is significant that the grounds on which President Adams decided to pardon those convicted in the earlier "state trial" of Fries and his companions, arising out of the excise riots of 1799, amount to an insistence that a levying of war can be established only on a showing of specific intent to overthrow the government.43
Reported decisions indicate but one attempt since the Civil War to use the charge of treason by levying war. This has not been for lack of occasions on which, at least under the seventeenth and eighteenth-century English authorities, sufficient overt acts might have been shown. Consider the railroad strike riots of 1877, the Haymarket affair of 1886, Coxey's Army, and the Pullman strike in 1894.44 But, as a matter of practical construction, the crime of treason by levying war has been restricted here, and perhaps in England, to the offense described by the literal meaning of the words: a direct effort to overthrow the government, or wholly to supplant its authority in some part or all of its territory.45 In terms of doctrine, this amounts to limiting the scope of the crime by insistence upon the showing of a carefully defined intention.
That it is the intent and not the act element which limits the scope of the crime is plain from the notable instances where the most flagrant overt acts in defiance of law were not charged as treason. The same emphasis upon intention is also seen on the one occasion in which a broader use of the charge of levying war was attempted. Following the Homestead Riot of 1892, several of the strike leaders were indicted for levying war against the state of Pennsylvania, after the grand jury had been charged by the Chief Justice of the state, that a mere mob, collected upon the impulse of the moment, without any definite object beyond the gratification of its sudden passions, does not commit treason, although it destroys property and takes human life.
But when a large number of men arm and organize themselves by divisions and companies, appoint officers and engage in a common purpose to defy the law, to resist its officers, and to deprive any portion of the fellow-citizens of the rights to which they are entitled under the Constitution and laws, it is a levying of war against the state, and the offense is treason.46
These, as well as other charges, were quietly dropped after the acquittal of three of the men, in prosecutions for murder growing out of the encounter with the Pinkerton men.47 Significantly, the resort to the treason charge met with prompt and unanimous criticism from conservative professional sources. Criticism ranged from the polite doubts of the Albany Law Journal to the biting commentary of the American Law Review, which found the indictment "a mass of stale, medieval verbiage, drawn seemingly from some old precedent, not dating later than the reign of William and Mary," and which declared that the charge of Mr. Justice Grier, in the Hanway case, disposes of any attempt to raise to the grade of treason the act of a lot of half-starved mechanics or their governing committee, where they are organized into a society, in taking unlawful measures to coerce their employer into compliance with their demands. The object is not to bring about any political change whatever, but to subject a party to an intended contract to a species of duress, such as will compel him to enter into a contract determined upon by the members of the unlawful combination. It is undoubtedly an unlawful conspiracy, provided it has in contemplation the attainment of its object by unlawful means.... But it is the wildest dream to dignify such a conspiracy with the name of treason.48
The character of the intention, therefore, rather than any difference in the overt acts, marks the line between riot and treason by levying war.49 Even in the lesser of these offenses, moreover, hardly a score of the approximately 250 cases on riot or unlawful assembly listed in the American Digest System since 1787 involve prosecutions for disturbances arising out of issues of a public, rather than a private character. This distribution may be a concrete manifestation of a legal theory favoring the free competition of interests in the forum of public opinion. However, it is more directly significant for our central inquiry that most of these "public issue" riots could probably have been fitted within the crime of levying war, as that crime had been developed by construction before 1787.50 The relation between the history of the riot cases and the treason cases is implicit in the recent ruling of the Supreme Court of Utah in State v. Solomon.51 That case reversed the conviction of participants in a riot over "relief" administration on the ground that the district attorney's address to the jury had introduced an irrelevant and highly prejudicial element by implying, without support in the evidence, that the rioters had a subversive intent directed against our form of government. There are some indications in other cases of a similar resort to a careful definition of specific intent in order to limit the dangerous potentialities inherent in the charge of conspiracy to obstruct the execution of the laws.52
Decisions concerning adherence to the enemy are as few as those regarding the levying of war, but there also an effort has been made to define the requisite intention in such a way as to protect the innocent. The most illuminating treatment is in United States v. Pryor.53 There Washington, Circuit Justice, at least in part because the evidence did not show specific treasonable intent, in effect directed a verdict. The defendant, who had been taken prisoner by the British squadron blockading the Delaware in 1814, sought to ransom himself and his fellows by going ashore with a British party under a flag of truce to help them purchase provisions. The court instructed the jury that the act of going ashore under a flag of truce was not a sufficient overt act, because, though it evidenced intent, it was not sufficiently far advanced in the execution of that intent. But Mr. Justice Washington also indicated that the existence of a specific intent to betray would affect the determination of what was a sufficiently advanced act to be an "overt act," for some intents are more dangerous than others and hence the law should take earlier preventive steps against those holding the former type of intent. Here, however, there was a flag of truce and "no act of hostility was attempted, nor is there the slightest reason to believe that any was meditated by the prisoner, or by any of the party." In these circumstances,
All rests in intention merely, which our law of treason in no instance professes to punish. Carrying provisions towards the enemy, with intent to supply them, though this intention should be defeated on the way, would be very different from the act of going in search of provisions for such a purpose, and stopping short before any thing was effected, and whilst all rested in intention.... But, if the intention of the prisoner was to procure provisions for the enemy, by uniting with him in acts of hostility against the United States or its citizens, which is chiefly pressed against him by the district attorney; then, indeed, it must be admitted, that his progressing towards the shore, was an overt act of adhering to the enemy, although no act of hostility was in fact committed....54
Charges to the jury in cases of adhering, as well as in those of levying war, have carefully instructed that, though the mere fact of mixed motives will not negative guilt, the defendant must have in mind more than the purpose of aiding the individual with whom he deals, as an individual; he must know, or have reason to know, that he is dealing with an agent of the enemy.55 Though the Supreme Court in the Cramer case declared that treasonable intent may be established by the familiar formula of assuming that the "natural consequences" of action were intended,56 the Court's failure to link this vague test with the implications of the historic policy restrictive of the scope of "treason," elsewhere so strongly recognized in its opinion, creates some ambiguity. However, the "natural consequences" from which intent is inferred are those foreseeable by "one standing in his circumstances and possessing his knowledge,"57 and this qualification is flexible enough to permit reconciliation of the "natural consequences" formula with the requirement, implicit in previous cases, that a specific intent must be shown.
(c) The Act: Limitation of "Adhering to the Enemy"
Anthony Cramer, German by birth, became a resident of the United States in 1925, and was naturalized in 1936. Since 1929 he had been an intimate friend of Werner Thiel, whom he knew to be a frankly avowed adherent of the German Nazi movement. Cramer, like Thiel, was a member, and for a time an officer, of the organization which preceded the Bund. Before Pearl Harbor, Cramer openly opposed the entry of this country into the war and expressed strong sympathy with Germany in its fight with other European powers. After Pearl Harbor he refused to work on war materials and expressed concern about being drafted into the Army of the United States and "misused" for purposes of "world conquest."
Thiel had returned to Germany in 1941, as Cramer knew, to help that country. In June, 1942, Thiel and seven other German soldiers, armed with explosives with which to destroy the American aluminum industry, were landed on the eastern coast of the United States by submarine. Cramer had not anticipated Thiel's return as a saboteur; but in response to a cryptic message, he met Thiel. The two had a meal in a public restaurant, and on the following evening met again at the same place, together with Kerling, leader of Thiel's saboteur unit. Both meetings were observed by two or more agents of the FBI, who were trailing the saboteurs; but the agents overheard none of the conversations, nor did they observe any actions except Cramer's dining and talking earnestly with the others. From statements later made by Cramer to Thiel's fiancee, his admissions to FBI agents after his arrest, and especially from his admissions on the witness stand, it appeared that as a result of the first meeting, Cramer had reason to, and did, believe that Thiel was in the United States on a mission for the German government. Cramer, however, denied any belief that Thiel's mission was sabotage, but admitted to a belief that Thiel was here to spread rumors and incite unrest. Cramer also had agreed to, and did, write Thiel's fiancee to come to New York for the purpose of meeting Thiel. At the first meeting there had been talk that Cramer should take Thiel's money belt, containing, according to Cramer, about $3600. Cramer was to put the bulk of this money in his safe deposit box, keeping some handy for Thiel's convenience and taking $200 of the money in payment of an old debt owed him by Thiel. By Cramer's own admission the money belt was transferred at the second meeting, and Cramer put in his safe deposit box all the money, except some which he kept in his room to meet Thiel's requests.
Cramer, after indictment for treason by adhering to the enemy and giving him aid and comfort, was tried, found guilty, and sentenced to 45 years imprisonment and a $10,000 fine. The overt acts submitted to the jury, and considered subsequently by the Supreme Court, were that Cramer "did meet with" Thiel, and with Thiel and Kerling, "enemies of the United States," and "did confer, treat, and counsel with" Thiel and Kerling "for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies...."58 The conviction was affirmed by the Circuit Court of Appeals for the Second Circuit. Certiorari was granted, and after argument at the October Term, 1943, the Supreme Court invited reargument addressed both to the meaning of "treason" under the Constitutional definition, and the sufficiency thereunder of the proof in Cramer's case. The case was reargued November 6, 1944, and on April 23, 1945, the conviction was reversed in a five to four decision. Mr. Justice Jackson spoke for a majority including Justices Roberts, Frankfurter, Murphy, and Rutledge. The dissenting opinion of Mr. Justice Douglas was concurred in by the Chief Justice, and Justices Black and Reed.
The majority apparently found the Government's case deficient both as to the nature of the overt act laid, and as to the proof thereof. The heart, as well as some of the ambiguities, of the ruling are contained in the following passage:
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 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.59
The Cramer case thus reaffirms the doctrine, familiar in English law, and established both by the history of the Convention of 1787 and in the almost unbroken line of prior American decisions, that an overt act is a separate and distinct element of the crime of treason.60 In other words, the prosecutor must produce adequate evidence to establish two propositions: one concerning a state of mind; the other concerning conduct.61 And the distinct character of the intent and act elements of the crime is further reflected in rulings that, since each must equally be established, the order of proof is in the discretion of the prosecutor.62
The function of the intent element of the crime, as indicated by those authorities which would require a showing of specific intent, is to identify the special gravity of the offense, and to define permissible objects of private action in the field of public policy.63 The function of the overt act element, "the concern uppermost in the framers' minds," says the Cramer opinion, is to ensure "that mere mental attitudes or expressions should not be treason."64 Here, the opinion accords with previous American authority, in which with remarkable unanimity the judges have stated that the function of the overt act element of the crime consists in the demonstration that the defendant has moved from the realm of thought, plan, ideas, or opinions into the world of action. The overt act is to show that the defendant has done something about what was in his mind, something, as is typically said, "in furtherance" of his intention.65 This function of the act element in treason seems in part to express a policy familiar in the general law of crimes, which commonly insists on the showing of an act as well as an intent, as a curb on arbitrary wielding of official power.66 The Cramer opinion, however, apparently regards the act element as designed more particularly to curb the two dangers which it notes as peculiar to the offense: the use of the treason charge to suppress peaceful political opposition; and conviction of the innocent on perjured evidence or under the spur of passion.67 In some previous opinions there is like emphasis upon the significance of the overt act requirement as a curb on abusive use of treason prosecutions in political faction.68
However, in implementing the function of the overt act, Cramer v. United States goes far beyond the current of previous American authority by apparently insisting that the act of adherence to the enemy must be one which successfully confers tangible benefit upon the enemy; an act which is merely a step in furtherance of a design to confer such benefit is not enough, however substantially it may advance that purpose. "The very minimum function that an overt act 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 aid and comfort to the enemy."69 The literal meaning of the court's words is underlined by the comment footnoted to the word "gave," that "We are not concerned here with any question as to whether there may be an offense of attempted treason."70 Evidently the majority felt that its concept of "treason" contained nothing which might smack of an attempt.71 In the instant case,
There is no showing that Cramer gave [Thiel and Kerling] ... any information whatever of value to their mission or indeed that he had any to give.... 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.... without the use of some imagination it is difficult to perceive any advantage which this meeting afforded to Thiel and Kerling as enemies....72
The case would have been "quite different," however, if the transfer of the saboteur's money had been proved as the overt act:
That Thiel 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.73
But the Court rejected, as a sufficient overt act, the prearranged meeting with a known enemy agent for the purpose of arranging this transfer of funds.74 The further implication that a fait accompli is also the requisite overt act in the other branch of treason is conveyed by the opinion's emphasis that the latter consists in the "actual" levying of war.75
Even assuming that a benefit must be shown to have been actually conferred on the enemy, the Court's application of its rule seems unreasonably narrow. Cramer's second meeting with Thiel afforded the essential opportunity to transfer Thiel's money. In the "setting" of Thiel's mission and circumstances this was obviously in itself an aid to him, if, as the Court found, the safekeeping of his money was an aid.76 If this is insufficient, why should the mere act of receipt of the money by Cramer be enough? Why should it not be necessary to present as the overt act Cramer's deposit of the funds in his safe-deposit box, or his first subsequent disbursement to Thiel? To make sense in its own terms the majority opinion requires some further rationalization in terms of proximate cause, which, however, it does not offer.
The requirement that the overt act constitute "actual" aid is within the scope of the words of the constitutional definition, and might be deemed supported by the early English legislation and judicial constructions which were felt necessary in turbulent times to strike preventively at conspiracies not covered by the Statute of Edward III.77 But "giving" aid and comfort might also mean simply that the accused have done something in tender of aid, whether or not benefit accrued to the enemy. The Statute of Edward III, from whose terms the definition in the United States Constitution is borrowed, has, like a constitutional provision, had the scope of its meaning unfolded only by experience. By 1787 English doctrine had long treated the overt act element in treason so as to make the crime itself of the nature of an attempt.78 Thus it was settled that, even if the defendant's "aid" were intercepted before reaching the enemy, treason was made out.79 There is nothing in the discussions surrounding the framing and ratification of the Constitution, moreover, to suggest that in this respect the familiar terms of the English definition were intended to be taken in their unglossed rigor. The American decisions under the Constitution, with one exception, were in accord before the Cramer case.80 Cases involving adherence to the enemy were markedly liberal in applying what seems the familiar technique of the law of attempts. Such ordinary commercial transactions as purchasing goods, holding money on deposit, provisioning a ship, and borrowing from a bank have been held sufficient overt acts, where they were linked with an intention thereby to give aid and comfort to the enemy.81 And there seems no logical reason why a meeting might not be a sufficient overt act, without regard to whether its purpose was simply to plan future activity, or to serve as a means to effectuate plans. On the authorities it is clear, however, that a meeting to plan to subvert the government is not an overt act of treason; it is rather "conspiracy to levy war," and ever since Lord Coke pronounced it such, his dictum, given without satisfactory explanation save such as may be inherent in the phrase "levying war," has been religiously followed.82 But there is no comparable line of historical authority against holding a meeting to plan the giving of aid and comfort to an enemy a sufficient overt act. And it seems taken for granted that harboring an enemy agent is a sufficient overt act of adherence, though the line between this and a meeting to plan the giving of aid might become quite shadowy.83 If, as in the Cramer case, the meeting is not to plan, but instead to effectuate a plan; or even if the meeting is both to plan and to gather in a state of readiness to execute such plans as may be made at the meeting, there is a sufficient overt act under previous authorities even for the charge of levying war.84
In United States v. Greathouse, the assembling of a ship's company aboard a vessel intended as a privateer, but not yet so equipped, seems to be treated as a sufficient overt act.85 The intent, of course, will always determine the criminality of a meeting, and thus if the sole evidence of intent is a meeting with a known rebel or enemy, with no evidence of an intention that the meeting serve any purpose of the rebel or enemy, the most that could be made out would be misprision of treason. Moreover, "war" is in its nature a collective activity, and this serves to explain in part at least Marshall's well-known remarks on the necessity of an assemblage to constitute a levying of war: individual action may amount to levying war when men are already waging war, but in no fair sense of the term could the isolated acts of an individual be said to constitute war against a state.86 But Marshall was also unwilling to overrule ancient authority rejecting conspiracy to levy war as a sufficient overt act, and so he insisted that the assemblage be present in force. In their total context his remarks, despite some ambiguous references to this force as evidencing the intention behind the assembly, simply insist, as would the law of attempts, that defendants be shown to have had some minimum capacity-in-fact, sufficient at least to make them dangerous, to do harm.87
The majority opinion in Cramer v. United States advances no justification in history or authority for its apparent insistence that, to make out an overt act, "actual" aid be given. As a matter of policy such a ruling does not necessarily follow, as the Court seems to believe, from the announced function of the overt act: to ensure "that mere mental attitudes or expressions should not be treason."88 The law of attempts is nothing more or less than a standard to achieve this same objective in the general criminal law, and it has there proved a workable device.89 As soon as one requires the showing of some act reasonably advanced in execution of the criminal intention the danger of prosecuting men for their thoughts alone has been met. It might, of course, be a defensible position to decide that "treason" is a crime so intrinsically open to abuse that it should be abolished. But, if the crime of treason is to be retained, it should be recognized that its value is at least as much in prevention as in punishment. To wait for aid to be "actually" given the enemy risks stultification: the treason may be successful to the point at which there will no longer be a sovereign to punish it.
(d) The Evidence of the Overt Act
It is constitutionally required that at least part of the evidence to establish the crime of treason be of a defined type: "the Testimony of two Witnesses to the same overt Act."90 The elementary meaning of this is plainly stated by the Cramer opinion:
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. 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.91
Cramer v. United States, however, raises the further question, whether the overt act testified to by the two witnesses must, in itself, either (1) provide at least some evidence (if not evidence beyond a reasonable doubt) of treasonable intention, or (2) demonstrate that aid and comfort were given to the enemy. Neither proposition follows necessarily from the elementary meaning of the two witness provision. An act which merely serves to show that the defendant has moved from the realm of thought into that of execution can as well be shown, and required to be shown, by direct evidence as an act having either of the other suggested evidentiary values. Nothing in the Cramer opinion seems to claim the contrary.92
It was clear on previous authority that the treasonable intention need not be proved by inference from an overt act testified to by two witnesses, and, therefore, it was not necessary to prove by two witnesses conduct offered as evidence of intention which could suffice as an overt act.93
The majority opinion in Cramer's case seems to agree with this, and is expressly so construed by the dissent. According to the majority,
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.94
However, it is, of course, "permissible" to draw inferences as to intent from the overt acts as well as from other conduct of the defendant.95
Actually, the majority opinion has only conceded a truism. Consistent with all this it might still be held that, insofar as acts of the defendant are relied on as the basis for inferring intent, any and all such acts must be proved by the testimony of two witnesses. This would not be to require proof of intent by "direct" testimony of two witnesses.
The majority, it is true, purported to reject the more extreme argument of the defendant, that the overt act must in itself "manifest" the treasonable intention. This contention is contrary to the long settled doctrine that the intent and the act are distinct elements of the crime, and "would place on the overt act the whole burden of establishing a complete treason."96 Moreover, the demand that an act, in itself and apart from extrinsic evidence, evidence the intention with which it is done, or the effect which it may or does produce, rests on an unsound conception of the meaning, for these purposes, of the term "act." The law treats a physical movement as an act only if it is willed. Thus behind every jural act there is, ex hypothesi, some purpose, for it would seem psychologically impossible to will a movement without some purpose. Some acts, as, for example, the tying of a shoelace, may conceivably have a purpose (as distinguished, perhaps, from the more remote question of motive), which in all normal cases may be inferred from observation of the acts alone. This is not a theoretical matter, but is true simply because some acts are capable of serving a narrower range of human satisfactions or designs than others. But, when one is dealing with ends as broad as the subverting of a government by domestic disturbance or by aid to its enemies, the range of acts which may fit such purposes is as broad as the possible economic, political, social, racial, sectional, or class factors which affect the health or existence of a community. The acts which can serve to advance purposes of such range may, conversely, be acts which might in another context serve innocent purposes in economic, political, social, racial, sectional, or class dealings. Indeed, so varied is the character of the conduct which may serve the broad purposes penalized by the treason clause, that even the man whose purpose seems to be merely the obvious and undivided one of tying a shoelace may be conveying military intelligence to an observer according to a prearranged code. If thus in theory no act has a meaning in itself, in the sense of a significance which can be grasped by observation of the act alone, so in practice one understands the meaning of acts only insofar as he knows other facts in context with the acts.97 This is particularly likely to be true in dealing with the kind of purposes penalized by the treason clause, since they may be served by manifold acts which can also serve many other purposes. Thus, in prior cases, acts have been found treasonable which on their face were "innocent"98 and acts appearing on their face to be treasonable have been found innocent99 Indeed, if acts could have meaning in themselves, it is difficult to see why, after the centuries of experience represented by the criminal law, it was found necessary or desirable to develop the concept of intent as a separate element of crimes.
This seems partially recognized by the majority opinion in the Cramer case, which notes that
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 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.100
But, if the majority thus rejects the extreme argument of the defense, it also observes disapprovingly that
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.101
The majority described the "minimum function" of the overt act as being to show the giving of aid and comfort, and purported to decide the case on the insufficiency of the act to show this, rather than on its insufficiency to show intention. 102 But the last-quoted statement ambiguously condemns reliance on an "apparently commonplace and insignificant act" both because it fails to evidence intent and because it does not show that aid was given. And, when the Court concedes that
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....103
it raises at least a doubt whether intent can be established at all, outside the scope of the two-witness testimony. Cramer's act of taking the saboteur's funds for safekeeping, which the majority indicates would be a sufficient overt act if properly proved, is apparently given no weight by the Court on the issue of intent, though the transaction was admitted by Cramer, because it was not submitted as an overt act proved by two witnesses.104
The Court's remarks on the admissibility of evidence extrinsic to that of the overt act testified to by two witnesses, but tending to prove the "environment" of the act, seem equally applicable to the proof that aid was given as to the issue of intent, though made with particular reference to the latter issue.105 But the Court introduced doubt by its declaration that
... the protection of the two-witness rule extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given.106
Analyzing the evidence of Cramer's meetings with the saboteur, the Court further observed that
the Government recognizes the weakness of its proof of aid and comfort, but on this score it urges: "Little imagination is required to perceive the advantage such meeting would afford to enemy spies not yet detected...." 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 or Kerling as enemies ... 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....107
Thus, though the Court made passing comment on the insufficiency of the extrinsic evidence offered, the stress is on the weakness of the overt act. The Court kept this same emphasis when, though conceding that Cramer's receipt of the saboteur's money for safekeeping would be a sufficient overt act if submitted as such, it refused to consider this transaction, though admitted by Cramer, as evidence that the meeting afforded aid to the saboteur, because, "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."108 It is difficult to see why the second meeting between Cramer and the saboteur does not satisfy the two-witness requirement, unless, despite its theoretical concession of the admissibility of extrinsic evidence of the "setting" of the act, the majority opinion practically ruled, as indeed the dissent understood it to do, "that the related acts and events which show the true character of the overt act charged must be proved by two witnesses."109 On no other theory does it seem possible to describe as an "apparently commonplace and insignificant act" a prearranged meeting with a known enemy agent for the probable purpose of undertaking the safekeeping of his funds.110
The only historic evidence we have of the intended function of the two-witness requirement is Madison's note that "Docr Franklin wished this amendment to take place — prosecutions for treason were generally virulent; and perjury too easily made use of against innocence."111 Judge Learned Hand has argued that it is necessary to insist that the overt act be such an act as evidences the treasonable intent because the safeguard against perjury would be easily evaded if it were only necessary to obtain a corroborating witness for some innocent detail of a single witness's story.112 Apparently, Judge Hand's reasoning on this point was wholly a priori. Dean Wigmore, however, did not see the special virtue of the two-witness requirement in any implication that the overt act must evidence the intent or anything else, but in a consideration which might apply to any conduct sufficient to constitute an attempt according to familiar criminal law standards; namely, that "the opportunity of detecting the falsity of the testimony, by sequestering the two witnesses ... and exposing their variance in details, is wholly destroyed by permitting them to speak to different acts.113
Whatever the rule which the majority intended by its vacillating language in the Cramer case, its opinion developed neither arguments of policy nor evidence from history to support any of the functions which it may be construed to have assigned to the two-witness requirement. Certainly there is no sound basis in English or American history to require that the overt act be such as to evidence the intent.114 And, since it was apparent in the English authorities even before Lord Preston's Case115 that actual conferring of aid upon the enemy was not necessary to make out a case of treason, no support can be found in that quarter, even by analogy, for a requirement that the overt act demonstrate the giving of aid. Moreover, even if the current of previous American doctrine is departed from, and it is assumed that accomplished aid and comfort must be shown, the Court advances no evidence that the framers intended the two-witness requirement to apply here. The Constitution in its terms requires only the testimony of two witnesses to an "act," not to the effect of that act.
Therefore, except for some references to the proof of the required intent which, curiously, suggest a broadening of the scope of the offense, the majority opinion in Cramer v. United States has cast such a net of ambiguous limitations about the crime of "treason" that it is doubtful whether a careful prosecutor will ever again chance an indictment under that head. The uncertain meaning of the decision will alone be as strong a deterrent as any doctrine elicited from it. Perhaps this is what the majority desire. The opinion concludes with what amounts to an invitation to Congress "to enact prohibitions of specified acts thought detrimental to our wartime safety," if the limits set to "treason" are deemed too stringent:
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 these particular acts thus eliminating the accusation of treachery and of general intent to betray which have such passion-rousing potentialities.116
As the law of "treason" is founded directly upon the Constitution, the majority's self-denying policy amounts to a shift of power from the executive and judicial branches to the legislative branch of the Federal government. The consequences of this are obviously unpredictable; but the destruction of a protective instrument which the Constitution placed in the hands of the Executive, and thus beyond the authority of the Congress to expand or impair, may come to have significance if crisis ever brings sharp division between the branches of the government.117
1. 325 U.S. 1.
2. Id. at 26; cf. 2 Stephen, A History of the Criminal Law of England (1883) 251, 283.
3. 325 U. S. 1, 27 (1945). No previous opinion had spelled out precisely what form the general restrictive policy should take.
4. See Chase, C. J., in Case of Fries, 9 Fed. Cas. No. 5127, at 930 (C. C. D. Pa. 1800) (second trial); Nelson, C. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,271, at 1035 (C. C. S. D. N. Y. 1861); Stephan v. United States, 133 F. (2d) 87, 90 (C. C. A. 6th, 1943), cert. denied, 318 U. S. 781 (1943).
See also the argument of Sitgreaves, for the prosecution, and Ewing and Lewis for the defense, in the first trial of Fries, 9 Fed. Cas. No. 5126, at 847-48, 887, 895-96 (C. C. D. Pa. 1799); argument of William Pinkney, for the defense, in United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C. C. D. Md. 1815).
5. 4 Cranch 75, 125-26 (U. S. 1807). Cf. Livingston, C. J., in charge to the jury in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398, 402, 403 (C. C. D. Vt. 1808). See also Cramer v. United States, 325 U. S. 1, 27 (1945).
Mr. Justice Curtis, in charging the grand jury, found the Statute of Edward III to have been "enacted ... mainly for the purpose of restraining the power of the crown to oppress the subject by arbitrary constructions of the law of treason." 30 Fed. Cas. No. 18,269, at 1025 (C. C. D. Mass. 1851). Cf. Field, C. J., in charge to jury in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 21 (C. C. N. D. Cal. 1863); Nelson, C. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,271, at 1035 (C. C. S. D. N. Y. 1861); Leavitt, D. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,272, at 1036 (C. C. S. D. Ohio, 1861).
The line between desirable freedom of discussion and political action and "treason" is put at the point where men "pass from words to ... criminal acts of resistance to law" by Sprague, D. J., Charge to Grand Jury Regarding Mob Resistance to Execution of the Fugitive Slave Law, 30 Fed. Cas. No. 18,263, at 1016 (D. Mass. 1851); cf. Leavitt, D. J., Charge to the Grand Jury, loc. cit. supra at 1037. Compare also the decision of the Attorney General not to prosecute the leaders of the Pittsburgh meeting of September 7, 1791, though the resolutions there adopted criticizing government policy and petitioning Congress and the state legislature were a significant step in the unrest which culminated in the "Whiskey Rebellion." (Note) 26 Fed. Cas. 499, 501, 503 (1795). See also Brandeis, J., dissenting in Schaefer v. United States, 251 U. S. 466, 482, at 493 (1920); Mayer, D. J., in charge to jury in United States v. Fricke, 259 Fed. 673, 677 (S. D. N. Y. 1919); cf. Haywood v. United States, 268 Fed. 795, 799-800 (C. C. A. 7th, 1920), cert. denied, 256 U. S. 689 (1921) (conspiracy).
The thread of insistence on a policy, in the interest of individual security and free give-and-take in community life, against vagueness in the definition of the crime, comes up to the present in the charge to the jury in United States v. Stephan, 50 F. Supp. 738, 740, n. 1 (E. D. Mich. 1943). See Stephan v. United States, 133 F. (2d) 87, 99 (C. C.A. 6th, 1943), cert. denied, 318 U. S. 781 (1943).
6. 325 U. S. 1, 27 (1945).
7. United States v. Burr, 25 Fed. Cas. No. 14,692a, at 13 (C. C. D. Va. 1807). See also Livingston, C. J., in charge to the jury in the United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 397-98 (C.C.D. Vt. 1808). This comment takes on particular emphasis because the charge as a whole so clearly reflects Livmgston's sensitivity to the impeachment proceedings against Chase, J., for his "strong ' expositions of the law of levying of war in the trial of Fries and his ardent expositions of the Alien and Sedition Laws to juries Indeed, after discounting the fervor of advocacy, it is still significant of a prevailing attitude toward the policy of the treason clause that, in his answer to the impeachment charges brought against him, Mr Justice Chase reasoned from the historic danger of abuse of treason prosecutions in political faction to justify his refusal to permit defense counsel in the trial of Fries to parade before the jury the excesses of the earlier English treason cases See answer of Chase, J., to impeachment charges, (Note) 9 Fed. Cas. 934, at 938 (1800), cf. argument of defense counsel in United States v. Hanway, 26 Fed. Cas. No. 15,299, at 117 (C.C. E.D. Pa. 1851) In his charge to the jury in the Fries case, 9 Fed. Cas. No. 5,127, at 930 (C.C.D.Pa. 1800), Chase had, however, confined himself to brief, opening praise for the constitutional definition and proof requirements The argument based on the excesses of English treason trials, which he prevented Lewis and Dallas from making to the jury, seems to have been directed essentially to enlisting the jury's sympathies for the policy of curbing factional use of "treason" prosecutions See, e.g., argument of Dallas on the first trial of Fries, 9 Fed. Cas. No. 5,126, at 878, 883, 879-81 (C.C.D. Pa. 1800), and the argument of Lewis, id. at 897-99.
8 4 Cranch 75, 125 (U.S. 1807), cf. Leavitt, D. J., Charge to Grand Jury, 30 Fed. Cas. No. 18,272, at 1038 (C.C. S.D. Ohio 1861) See Cramer v. United States, 325 U. S. 1, 47 (1945).
The suggestion made in Ex Parte Bollman has been adopted in several cases which, however, create some ambiguity by linking the protection against public passion primarily to the two-witness provision See Sprague, D. J., Charges to Grand Jury, 30 Fed. Cas. Nos. 18,273, at 1039, 18,274, at 1042 (D Mass 1861, 1863) Mingling, as it does, a substantive (overt act) and an evidentiary (two witnesses) safeguard, the objects of this provision are themselves somewhat ambiguous, but the cases stress more the danger of convicting the "wrong man" than of expanding unduly the concept of "treason ' Thus in United States v. Haupt, 136 F. (2d) 661, 671 (C.C.A. 7th, 1943), rev'g, 47 F. Supp. 832 (N D Ill. 1942), 47 F. Supp. 836 (N D Ill. 1942), the court declared that the charge of treason presents special dangers of unfair trials in a time of national crisis, and it linked this warning with a ruling that the trial court had abused its discretion in denying motions for severance of the trials of the several defendants after the admission of much highly prejudicial evidence which did not relate to all of the defendants Significantly, the Circuit Court of Appeals cited the Bollman case in connection with its warning See also Chambers v. Florida, 309 U.S. 227, 236-37 (1940), where the Court lists the two-witness requirement of the treason clause among the constitutional provisions inserted "as assurance against ancient evils." On the other hand, the charge to the jury in United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y. 1919), relates the danger of injustice through public passion both to the hazards of undue expansion of the scope of "treason" and of conviction of the wrong man.
9 Cf. Chafee, Free Speech in the United States (1942) 51-60.
10 See United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y. 1919), United States v. Haupt, 136 F. (2d) 661, 671 (C.C.A. 7th, 1943).
11 See p. 140 supra.
12 See Peters, D.J., in charge to jury in Case of Fries, 9 Fed. Cas. No. 5,126, at 909 (C.C.D.Pa. 1799) (first trial), Livmgston, C.J., in charge to jury in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt. 1808).
13 See Cramer v. United States, 325 U.S. 1, 24 (1945), Ex parte Bollman, 4 Cranch 75, 127 (U.S. 1807), United States v. Burr, 25 Fed. Cas. No. 14,692a, at 13 (C.C. D. Va. 1807).
14 See Cramer v. United States 325 U.S. 1, 35 (1945) (majority opinion), 59 (dissenting opinion), United States v. Burr, 25 Fed. Cas. Nos 14,692a, at 13, 14,693, at 159 (C.C. D. Va. 1807).
15 See Nelson, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,271, at 1035 (C.C.S.D.N.Y. 1861), argument of Lewis, for the defense, in Case of Fries, 9 Fed. Cas. No. 5,126, at 897 (C.C.D.Pa. 1799) (first trial) Chase, C.J., refused, in the second trial of Fries, to permit defense counsel to present to the jury a picture of the extreme constructions given to the Statute of Edward III by English judges Defense counsel then withdrew from the case Subsequently, in response to a request by President Adams, Dallas and Lewis sent to the President a memorandum of the argument which they had proposed to make at the second trial. This included the statement that "as the spirit of the constitution is opposed to implied powers, and constructive expositions, we are bound to take the plain manifest meaning of the words of the definition, independent of any glossary which the English courts, or writers, may have affixed to the words of the English statute." Id at 948.
Probably mindful of the fact that the impeachment of Chase rested in part on his refusal to let counsel argue this point, Livingston, C. J., noted the issue, in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt. 1808), but cautiously avoided it Because he found that no treason had been committed in that case, even within the definitions of the English authorities, he found it unnecessary to decide whether they had any binding effect, or to "discuss a question which has been much agitated — whether, by the use of these terms, it was intended to adopt the technical meaning which they had already received in England, or whether, considering treason as a new offence against a newly created government, the constitution on this point was to be interpreted by itself, without reference to, or with the aid of any common law decisions whatever?"
16 See e.g., Cramer v. United States, 325 U.S. 1, 18 (1945), Iredell, C.J., and Peters, D. J., in charges to the jury in Case of Fries, 9 Fed. Cas. No. 5,126, at 909, 912 (C.C.D.Pa. 1799), Marshall, C.J., in direction to the jury in United States v. Burr, 25 Fed. Cas. No. 14,693, at 159-60 (C.C. D. Va. 1807), Kane, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at 1048 (C.C. E. D.Pa. 1851), Curtis, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,269, at 1025 (C.C. D Mass 1851), Cadwalader, D.J., in United States v. Greiner, 26 Fed. Cas. No. 15,262 at 38 (E.D.Pa. 1861), Field, C.J., in charge to jury in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 21 (C.C.N.D. Cal. 1863), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,273, at 1039 (D. Mass. 1861), United States v. Cramer, 137 F. (2d) 888, 894 (C.C.A. 2d, 1943) cf. Druecker v. Salomon, 21 Wis. 621, 626 (1867).
17 9 Fed. Cas. No. 5,126, at 909 (C.C.D.Pa. 1799), cf. the exchange between the prosecutor and Chase, J., in the second trial of Fries, 9 Fed. Cas. No. 5,127, at 927 (C.C.D.Pa. 1800) See also the answer filed by Chase, J., to his impeachment, (Note) 9 Fed. Cas. 934, at 938 (1800).
18 9 Fed. Cas. No. 5,126, at 912 (C.C.D.Pa. 1799), see, also, Peters, D.J., id. at 909, Grier, J., in United States v. Hanway, 26 Fed. Cas. No. 15,299, at 127 (C.C. E.D.Pa. 1851) Though he does not make clear how far he would carry his strong condemnation of the incorporation of English judicial constructions of the words of Edward III's Statute into the constitutional definition, Tucker would probably agree substantially with the soundness of thus distinguishing the earlier and later English decisions as guides to policy See 5 Blackstone's Commentaries with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (Ed Tucker 1803) 85, n. 18, App Note "B," pp. 13, 40-41, 46.
19 See notes 7, 15, 17 supra. The views of Chase, J., on the exclusion of English precedents antedating 1688 are set forth in great detail in his answer to the impeachment charges filed against him The impeachment did not rest on objections to these doctrines, but on the Justice's action in preventing counsel from arguing them to the jury See 11 American State Trials (Lawson ed. 1919) 197, 241, 242, 316, 345, 351.
20 325 U.S. 1, 47 (1945).
21 See Appendix, I, pp. 260-265 infra.
22 However, the materials surrounding the framing and ratification of the Constitution tend to center the emphasis on the dangers of abuse of treason prosecutions in political strife See p. 141 supra.
23 325 U.S. 1, 31 (1945).
24 Ibid. This statement comes after, but does not necessarily follow from, the obvious point made by the opinion that intention can generally be proved only by inference from conduct This is true, but does not rule out the proof of specific intent by such inference, the standard of proof is simply more precise and exacting Note also, as bearing out the implication of the quotation above, the assertion in the majority opinion that statutory crimes forbidding specific acts are safer than reliance on "treason," because "the trial thereof may be focused upon defendant's specific intent to do those particular acts thus eliminating the accusation of treachery and of general intent to betray which have such passion-rousing potentialities." Id at 45.
25 See, eg, Miller, Criminal Law (1934) 502 Even apart from its inconsistency with the history of the American law of treason, this proposition seems contrary to the familiar doctrine that a specific intent is necessary in crimes of the nature of an attempt See Keedy, Ignorance and Mistake in the Criminal Law (1908) 22 Harv. L. Rev. 75, 89, Sayre, Criminal Attempts (1928) 41 Harv. L. Rev. 821, 822, 841, Skilton, The Mental Element in A Criminal Attempt (1937) 3 Univ. of Pitt. L. Rev. 181, 182, Turner, Attempts to Commit Crimes (1934) 5 Camb. L. J. 230, 235, cf. Harno, Intent in Criminal Conspiracy (1941) 89 U. of Pa. L. Rev. 624, 636, 637.
26 See 8 Holdsworth, History of English Law (1937) 327 ff.
27 But see Cramer v. United States, 325 U.S. 1, 20 (1945) Cf. p. 87 supra.
28 See, e.g., United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt. 1808), United States v. Stephan, 50 F. Supp. 738, 744 (E.D. Mich. 1943) (trial court charge) John Brown's defense to the charge of treason by levying war against the state of Virginia was, in part, that he had no intent further than "to free slaves." See The Trial of John Brown, 6 American State Trials (Lawson ed. 1916) 700, 801, 802. There was evidence, however, that Brown had envisioned his effort to help the slaves as possibly involving the creation of a separate commonwealth, and, although he seems to have raided Harper's Ferry with no well thought-out plan for the steps to follow, his intent seems plainly to have embraced such overturning of existing institutions as might be necessary "to free slaves." See Warren, John Brown (1929) 350, 384, Villard, John Brown (Rev. ed. 1943) 427.
29 Thus the profit motive does not excuse the selling of provisions to the enemy Hanauer v. Doane, 12 Wall 342 (U.S. 1871), Carlisle v. United States, 16 Wall 147 (U.S. 1873), Sprott v. United States, 20 Wall 459 (U.S. 1874), United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C. D.C. 1814) And the mingling of friendship or sympathy for the known enemy with the intent to aid him, knowing him an enemy, does not negative the treasonable intent United States v. Stephan, 50 F. Supp. 738, 740, n. 1, at 744 (E. D. Mich. 1943), 133 F. (2d) 87, 99 (C.C.A. 6th, 1943), United States v. Cramer, 137 F. (2d) 888, 893 (C.C.A. 2d, 1943) Nor does hostile duress acting on persons other than the defendant, or directed at property, justify giving aid United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C.C. D Md. 1815), United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D.Pa. 1814) Cf. United States v. Hughes, 26 Fed. Cas. 420, No. 15,418 (S.D. Ohio, 1864), Thompson, A Treason Trial in Ohio (1883) 4 Ohio Bar Assn. Appendix II, 54.
A contrary doctrine concerning sale of supplies to the enemy might seem to have evolved in the Confederate States of America Though originally regarded as clearly involving treason, there trade with the enemy "came to be more generally regarded as an offense against the revenue laws than as an act of treason." Robinson, Justice in Grey (1941) 177. The circumstances strongly suggest, however, that this course of opinion reflected a practical compromise with facts, such trade as was going on seemed probably of greater benefit to the South than to the North.
30 Thus, despite the confused argument of Pinckney for the defense, and the unsatisfactory charge of Duval, C.J., the issue of motive seems the real defense attempted in United States v. Hodges, cited in note 29 supra, and the jury's verdict of acquittal may amount to interposition of mercy.
31 Cf. United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C. D.C. 1814).
32 Cf. Cramer v. United States, 325 U.S. 1, 29 (1945). "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. Note that the implication of the Court's observation rejects the broad possibilities seen for the treason clause in McKinney, Treason under the Constitution of the United States (1918) 12 Ill. L. Rev. 381 and Warren, What is Giving Aid and Comfort to the Enemy? (1918) 27 Yale L.J. 331.
33 See 8 Holdsworth, History of English Law (1937) 335 ff.
34 See Paterson, C.J., in United States v. Vigol, 28 Fed. Cas. 376, No. 16,621 (C.C.D.Pa. 1795), Iredell, C.J., and Peters, D.J., in Case of Fries, 9 Fed. Cas. No. 5,126, at 840, 909, 912, Chase, C.J., in the second trial of Fries, 9 Fed. Cas. No. 5,127, at 930 Needless to say, the Jeffersonian Congress impeachment of Mr Justice Chase was not based on any objection to such parts of his charge to the jury in the Fries trial as confined the definition of treasonable intention, and, significantly, Chase's answer to his impeachment boldly makes capital out of the fact that his refusal to allow defense counsel to describe early English treason law to the jury was based on its excessive scope, both in intent and in act See (Note) 9 Fed. Cas. 934, 938 ff.
35 26 Fed. Cas. 397, No. 15,407 (C.C. D. Vt. 1808).
36 Id at 400, 402 Livingston's ruling is the more striking because, though the particular enterprise was only a somewhat unusually open and brash smuggling attempt, it probably represented a type of conduct which then met with the approval of that substantial part of the community which was violently opposed to the Embargo A different temper of mind towards the scope of "treason" might have led the court to find that a case existed Cf. Moulton, A Vermont Treason Trial (1935) 29 Vt. Bar Assn. 121, 128-32.
37 26 Fed. Cas. No. 15,407, at 399, 401-402 (C.C. D. Vt. 1808).
38 26 Fed. Cas. 105, No. 15,299 (C.C. E.D.Pa. 1851).
39 See note 18 supra.
40 See 26 Fed. Cas. No. 15,299, at 128 (C.C. E.D.Pa. 1851). "Not because the numbers of [or?] force was insufficient But (1) for want of any proof of previous conspiracy to make a general and public resistance to any law of the United States, (2) because there is no evidence that any person concerned in the transaction knew there were such acts of congress, as those with which they are charged with conspiring to resist by force and arms, or had any other intention than to protect one another from what they termed 'kidnappers' (by which slang term they probably included not only actual kidnappers, but all masters and owners seeking to recapture their slaves, and the officers and agents assisting therein).
"The testimony of the prosecution shows that notice had been given that certain fugitives were pursued the not, insurrection, tumult, or whatever you may call it, was but a sudden conclamatio or running together, to prevent the capture of certain of their friends or companions, or to rescue them if arrested Previous to this transaction, so far as we are informed, no attempt had been made to arrest fugitives in the neighbourhood under the new act of congress by a public officer.
Insistence on specific intent underlies Grier's admission of defense evidence that in the previous nine months there had been rough seizure of Negroes in the neighbourhood by men of dubious character, who acted without show of official authority. This was recognized as a critical point, and was hard fought, on both sides See Hensel, The Christiana Riot and the Treason Trials of 1851 (1911) 78 The prosecution objected that the evidence was irrelevant Grier answered. "The objection of the prosecution would be irresistible if Hanway was indicted simply for resisting an officer of government But in treason there must be some previous agreement." Id at 112.
So also Grier and Kane, D.J., agreed that the prosecution, not having previously supplied the defense with a list of the witnesses on the point as the statute required, could not now introduce "rebuttal" evidence that for the year previous armed bands of Negroes had ranged the neighbourhood seeking out whites trying to reclaim slaves Judge Kane declared that "the two elements of the crime are the act and the preconcert The evidence which is now offered is merely to prove that preconcert It was an indispensable element of the original case." Id. at 114.
41 See id. at 126.
42 Id at 128 Grier's observations are the more striking in view of the clarity with which District Judge Kane, who sat with Grier in the Hanway trial, had charged the grand jury on the theory that an attempt by force generally to prevent the enforcement of a single law was treason by levying war See Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at 1048 (C.C. E.D.Pa. 1851) Judge Kane, a former district attorney and Attorney-General of Pennsylvania, was herein merely reflecting his "well known views" on the need for strict enforcement of the constitutional right of slave owners to the return of their property See Hensel, op. cit. supra note 40, at 57-58 Justice Grier's evident distaste for the doctrine of constructive levying of war is further pointed by the contrast of his remarks with the clear presentation of the broader doctrine by the district attorney in his address to the jury See Robbins, Report of the Trial of Castner Hanway (1852) 45, 53.
Mr. Justice Grier's sweeping exclusion of the mortgage debtor's case can also be contrasted with the resort to force to stop the general operation of the mortgage foreclosure system in farm states at the depth of the depression of the 1930's See Skilton, Government and the Mortgage Debtor (1944) 74 So far as appears, no effort was ever made to charge these disturbances as constructive levying of war, though they seem within the scope of the older English authority.
43 See Appendix, III, pp. 268-269 infra.
44 There seems to be no evidence that any stronger measures than the use of Federal troops were considered in connection with the 1877 riots. In view of the broad construction of "conspiracy" used to convict the leaders in the Haymarket meeting, it is notable that no charge of treason was attempted Cf. Spies v. People, 122 Ill. 1, 12 N E 865 (1887), The Trial of the Chicago Anarchists, 12 American State Trials (Lawson ed. 1919) 1, David, History of the Haymarket Affair (1936) c. XIV.
The Spies decision was declared by (1887) 18 Weekly L. Bull 326, 327 to be "the most portentous and dangerous ... ever pronounced by a court of justice in the United States," because "the theories laid down in the Chicago case are essentially the exploded idea of constructive treason revived and applied to the crime of murder."
Whatever the pacific protestations of its organizers, Coxey's "petition in boots" was the sort of mass movement on the legislature which earlier English doctrine would almost certainly have regarded as within the scope of constructive levying of war, but, despite real official concern for the dangerous potentialities of the movement, the only prosecutions which eventuated were for the misdemeanors of unlawful parading on the Capitol grounds and trampling the grass See McMurry, Coxey's Army (1929) 104-106, 116, 123.
The value of fastening a serious criminal charge on the leadership of the Pullman strike both as a matter of influencing public opinion and breaking the morale of the strikers was fully appreciated by the government, which, yet, relied on a conspiracy charge rather than the more intimidating accusation of treason, and there seems to be no evidence that the possibility of the latter was considered See Lindsey, The Pullman Strike (1942) c. XII, 276, 278, 279, 280, cf. Consolidated Coal & Coke Co v. Beale, 282 Fed. 934, 936 (S.D. Ohio 1922) Any theory of constructive levying of war was conspicuously absent in strong charges delivered to grand juries in connection with the strike See In re Charge to Grand Jury, 62 Fed. 828 (N D Ill. 1894), In re Grand Jury, id., at 834 (S.D. Cal. 1894), In re Grand Jury, id., at 840 (N.D. Cal. 1894).
There are numerous dicta through the Civil War period to the effect that effort by force to prevent the general execution of a single law is a levying of war See Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D R I 1842), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,263 at 1,015 (D Mass 1851), Nelson, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,261, at 1,012 (C.C.S.D.N.Y. 1851), Kane, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,276, at 1,048 (C.C. E.D.Pa. 1851), Curtis C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,269, at 1,025 (C.C. D Mass 1851), United States v. Gremer, 26 Fed. Cas. No. 15,262, at 39 (E.D.Pa. 1861), Field, C.J., in charge to jury in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 22 (C.C.N.D. Cal. 1863), Charge to Grand Jury, In re Riots of 1844, 4 Pa Law Jour Rep 29, 35 (Phila. Quar. Sess. 1844), also quoted at 26 Fed. Cas. 116, Druecker v. Salomon, 21 Wis. 621, 626 (1867).
45 Cf. 8 Holdsworth, (2d ed. 1937) 320, 328-29, Kenny, Outlines of Criminal Law (15th ed. 1936) 315.
46 Paxson, C.J., in Commonwealth v. O'Donnel, 12 Pa Co 97, 104-105 (Oyer & Tr , Allegheny Cty 1892).
47 See Burgoyne, Homestead (1893) 294, Stowell, "Fort Frick" or the Siege of Homestead (1893) 291.
48 (1892) 26 Am. L. Rev. 912, 914, cf. (1892) 46 Alb L. Jour 345, (1892) 31 Am L. Reg. (N.S.) 691, 699, (1893) 15 Grim L. Mag 191, 197 Former Chief Justice Agnew, of Pennsylvania, is quoted as stating in a letter to the press that "it is easy to distinguish treason from not It lies in the purpose or intent of the traitor to overthrow the government or subvert the law or destroy an institution of the state Riot is a breach or violation of law, but without a purpose against the state." See Burgoyne, Homestead (1893) 202.
49 See Seagle, Riot in 13 Enc. Soc. Sci. (1934) 388.
50 See Appendix, IV, pp. 270-273 infra.
51 96 Utah 500, 503, 504-505, 87 P (2d) 807, 808-809 (1939), cf. 93 Utah 70, 71 P (2d) 104 (1937).
52 See Harno, Intent in Criminal Conspiracy (1941) 89 U of Pa L. Rev. 624, 646 The practical protection against a finding of "guilt by association" afforded by insistence upon a showing that any given defendant shared the specific intent to commit the plotted crime is shown in United States v. Bryant, 245 Fed. 682 (N.D. Tex. 1917), aff'd, 257 Fed. 378 (C.C.A. 5th, 1919) See, especially, 257 Fed. at 384.
A strict construction of the intent element in the general federal conspiracy statute was the instrument employed to prevent a dangerously vague extension of the crime in Haywood v. United States, 268 Fed. 795, 799-800 (C.C.A. 7th, 1920), cert denied, 256 U.S. 689 (1921) Cf. Baldwin v. Franks, 120 U.S. 678 (1887), for the same rationale of interpretation, though erroneously applied See Field, J., dissenting in 256 U.S. at 703, 705, Deady, D.J., in In re Impaneling and Instructing the Grand Jury, 26 Fed. 749, 754 (D Ore 1886).
53 United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D.Pa. 1814) And compare the acquittal of Joshua Hett Smith, for lack of convincing proof of intent to join in Arnold's treason See note 97 infra.
54 Id at 630, 631.
55 See, e.g, United States v. Stephan, 50 F. Supp. 738, 740, n. 1, at 744, charge approved, 133 F. (2d) 87, 99 (C.C.A. 6th, 1943), United States v. Fricke, 259 Fed. 673, 676, 682 (S.D.N.Y. 1919), Douglas, J., dissenting in Cramer v. United States, 325 U.S. 1, 49, n. 2 (1945).
56 See p. 193 supra.
58 The remaining overt act submitted to the jury was based on falsehoods told by Cramer after his arrest to FBI agents, admittedly for the purpose of shielding the saboteur The Supreme Court does not pass on the "complicated" problem presented by this phase of the case, since it reverses on the error found in submitting as overt acts Cramer's meetings with Thiel See 325 US 1, 36,n 45 (1945) The falsehoods would seem clearly to constitute a giving of aid, although Thiel was already under arrest when Cramer falsified, and the latter fact would seem irrelevant if prior doctrine were followed, and successful conferring of a benefit on the enemy did not have to be shown Since the lies were told to two or more of the Federal agents, they would seem to be established satisfactorily under the two-witness provision.
59 Cramer v. United States, 325 U.S. 1, 39-40 (1945).
60 See Appendix, V, pp. 273-276 infra.
61 See, e.g., Paterson, C.J., in United States v. Vigol, 28 Fed. Cas. 376, No. 16, 621 (C.C.D.Pa. 1795) Thus, though it be assumed that there is incontrovertible evidence of treasonable plotting to subvert the government, a conspiracy to levy war is not treason within the constitutional definition, says Mr Chief Justice Marshall, because plotting does not amount to a sufficient overt act Ex parte Bollman, 4 Cranch 75,126 (U.S. 1807) See Peters, D.J., in charge to jury in first trial of Fries, 9 Fed. Cas. No. 5,126, at 909 (C.C.D.Pa. 1799), and charge to Chase, C.J., on second trial, 9 Fed. Cas. No. 5,127, at 931 (C.C.D.Pa. 1800), Livingston, C.J., in charge to jury in United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C. D. Vt. 1808), Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D r 1 1842), Sprague, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,263, at 1,015 (D Mass 1851), Grier, C.J., in charge to jury in United States v. Hanway, 26 Fed. Cas. No. 15,299, at 127 (C.C. E.D.Pa. 1851), Nelson, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,271, at 1,035 (C.C.S.D.N.Y. 1861), Leavitt, D.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,272, at 1,037 (S.D. Ohio 1861), cf. Wimmer v. United States, 264 Fed. 11, 13 (C.C.A. 6th, 1920), cert. denied, 253 U.S. 494 (1920).
On the other hand, where there was a clear overt act of armed resistance to constituted authority — as by an armed clash with troops seeking to enforce the Jeffersonian Embargo, or a forcible resistance to execution of the Fugitive Slave Law — verdicts were nevertheless directed when evidence of treasonable intent was lacking, or the evidence was ambiguous as to whether force was not applied for particular or private purposes and hence would not sustain the prosecution's burden of proof See, e.g., United States v. Hoxie, 26 Fed. Cas. 397, No. 15,407 (C.C. D. Vt. 1808), United States v. Hanway, 26 Fed. Cas. 105, No. 15,299 (C.C. E.D.Pa. 1851), cf. United States v. Lemer, S.D. N.Y. 1943 (unreported) (reprinted in Brief for Petitioner, p. 47, in United States v. Cramer, 325 U.S. 1 (1945)).
62 See, e.g., United States v. Burr, 25 Fed. Cas. No. 14,692a, at 54 (C.C. D. Va. 1807), United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C. D.C. 1814), The Trial of Thomas Wilson Dorr, 2 American State Trials (Lawson ed. 1914) 5, 22 (R I Sup. Ct. 1844), Pitman, Report of the Trial of Thomas Wilson Dorr (1844) 10, cf. United States v. Fricke, 259 Fed. 673, 675 (S.D.N.Y. 1919) See also Douglas, J., dissenting in Cramer v. United States, 325 U.S. 1, 54, n. 1 (1945) Marshall pointed out in effect that, if one of the two elements were merely corroborative of the other, it would plainly be improper and capable of prejudicial effect on defendant's rights to permit the prosecutor to prove the corroborative fact before establishing the fact corroborated. See United States v. Burr, 25 Fed. Cas. No. 14,692a, at 54 (C.C. D. Va. 1807), and 7 Wigmore, Evidence (3d ed. 1940) § 2038 (praising the "lucid opinion by Marshsll, C J.").
63 See Harno, op. cit. supra note 52, at 646.
64 325 US 1, 28 (1945).
65 See Ex parte Bollman, 4 Cranch 75, 126 (U.S. 1807), United States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1,280 (C.C.D.Pa. 1795), Csse of Fries, 9 Fed. Cas. No. 5,126, at 840 (charge to grand jury), 909 (first trial) (C.C.D.Pa. 1799), Case of Fries, 9 Fed. Cas. No. 5,127, at 924, 931 (C.C.D.Pa. 1800) (second trial), United States v. Burr, 25 Fed. Cas. No. 14,6923, at 13-14 (C.C. D. Va. 1807), United States v. Burr, 25 Fed. Cas. No. 14,693, at 168 (C.C. D. Va. 1807), United St3tes v. Pryor, 27 Fed. Cas. No. 16,096, 3t 630 (C.C. D Pa. 1814), United States v. Fricke, 259 Fed. 673, 677 (S.D.N.Y. 1919), United States v. Robinson, 259 Fed. 685, 690 (S.D.N.Y. 1919), United States v. Haupt, 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd on other grounds, 136 F(2d) 66 1 (C.C.A. 7th, 1943), United States v. Stephan, 50 F. Supp. 738, 742-43 (E D Mich. 1943), approved, 133 F. (2d) 87, 99 (C.C.A. 6th, 1943) All of the rulings and dicta refusing to recognize a conspiracy as a sufficient overt act of levying war contain similar language or implications See cases cited, note 61 supra. The familiar analysis is in the background of those contemporary decisions refusing to concede that "mere words," 3s punished under sedition acts, could constitute treason, because they do not amount to sufficient execution of such treasonable intent as they evidence See cases cited in notes 106, 111, 112, and 118, all in chapter 4 supra To the same effect are numerous charges to grand and petit juries regarding disturbances against the Fugitive Slave Law and the outbreak of the Civil War See Charge to Grand Jury, 30 Fed. Cas. 1,015, No. 18,263 (D Mass 1851), Charge to Grand Jury, 30 Fed. Cas. 1,047, No. 18, 276 (C.C. E. D. Pa 1851), United States v. Hanway, 26 Fed. Cas. 105, No. 15, 299(C.C. E. D. Pa. 1851), Charge to Grand Jury, 30 Fed. Cas. 1,024, No. 18,269 (D. Mass 1851), United States v. Greiner, 26 Fed. Cas. 36, No. 15, 262 (E.D.Pa. 1861), United States v. Greathouse, 26 Fed. 18, No. 15,254 (C.C.N.D. Cal. 1863), Charge to Grand Jury, 30 Fed. Cas. 1,034, No. 18,271 (C.C.S.D.N.Y. 1861), Charge to Grand Jury, 30 Fed. Cas. 1,036, No. 18,272 (C.C. S.D. Ohio 1861), cf. 10 Ops. Att'y Gen. 513 (1863).
66 The function of the overt act in treason is identified with this general policy of the criminal law in the charge to the jury in United States v. Stephan, 50 F. Supp. 738, 740, n. 1, at 742-43 (E D Mich. 1943), approved, 133 F. (2d) 87, 99 (C C. A 6th, 1943) See Hall, Criminal Attempt — A Study of Foundations of Criminal Liability (1940) 49 Yale L.J. 789, 818.
67 325 US 1, 28 (1945).
68 See United States v. Fricke, 259 Fed. 673, 677 (S. D. N.Y. 1919), Charge to Grand Jury, 30 Fed. Cas. No. 18,272, 3t 1,037 (C.C. S. D. Ohio 1861) This rationale is implicit in the decisions which sustain criminal syndicalism legislation against the claim that it trenches on the treason clause, by pointing out that legislation penalizing "mere words" does not ipso facto purport to punish treason See cases cited in notes 106, 111, 112, and 118, all in chapter 4 supra.
69 Ibid. 325 U.S. 1, 34 (1945).
71 Id., 38 Compare also the comment that "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 ' Acts "that are trivial and commonplace," it continues, "hence are doubtful as to whether they gave aid and comfort to the enemy." Id., 35. Likewise, in the court's summation, cited in note 59 supra, its insistence that the act of meeting with the saboteur is insufficient, because this would be "to take the intent for the deed," points to a requirement that aid actually be conferred on the enemy The majority's approving quotation of Lord Reading's formula that "aid" is "an act which strengthens or tends to strengthen the enemy" (325 U.S. 1, 28) is somewhat ambiguous and in isolation might suggest that something less than accomplished aid and comfort would suffice But the formula may also mean simply that a net accretion to the enemy's strength need not be shown, if it appears that some effect of defendant's efforts has at least reached the enemy More ambiguous are the majority's examples (id., 29) of "actions which do aid and comfort the enemy," such as "making a speech critical of the government ... profiteering, striking in defense plants ... ," for such acts would probably require the conjunction of other events to constitute them effective aid to the enemy.
72 Id., 37.
74 See Note 59 supra.
75 325 U.S. 1, 28 (1945).
76 See United States v. Fricke, 259 Fed. 673 (S.D.N.Y 1919), cf. Douglas, J., dissenting in Cramer v. United States, 325 U.S. 1, 55, n. 2 (1945).
77 See 2 Stephen, History of the Criminal Law of England (1893) 263, 4 Holdsworth, History of English Law (1924) 496-97, Cf. Learned Hand, J., in United States v. Robinson, 259 Fed. 685, 689-90 (S.D.N.Y. 1919).
78 See Appendix, VI, pp. 276-279 infra.
79 See cases discussed by Douglas, J., dissenting in Cramer v. United States, 325 U.S. 1, 64 (App 73-74).
80 Cf. Ex parte Bollman, 4 Cranch 75, 126 (U.S. 1807), United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C.D.C. 1814), United States v. Pryor, 27 Fed. Cas. No. 16,096, at 631 (C.C.D.Pa. 1814), Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D. R.I. 1842), United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 24 (C.C.N.D. Cal. 1863) United States v. Fricke, 259 Fed. 673, 678, 679 (S.D.N.Y. 1919), see United States v. Stephan, 50 F. Supp. 445, 448 (E.D. Mich. 1943) That the law of treason is probably, in fact, the origin of the general law of attempt, see Hall, Criminal Attempt (1940) 49 Yale L.J. 789, 794-97, 815. That treason is of the nature of a "direct attempt," see Strahorn, Effect of Impossibility of Criminal Attempts (1930) 78 U. of Pa. L. Rev. 962, 964. This is also the executive construction of the scope of "treason" in the President's proclamation of April 16, 1917, warning of the nature and penalties of treasonable activities See 18 U.S. C A § 1, annotation, at 4 (1940) Contra United States v. Robinson, 259 Fed. 685 (S.D.N.Y. 1919), Respublica v. Malm, 1 Dall. 33 (U. S. 1778) See Strahorn, op. cit. supra at 994-95.
81 See, e.g., Hanauer v. Doane, 12 Wall 342 (U.S. 1870) (sale of goods, intended for enemy use), United States v. Lee, 26 Fed. Cas. 907, No. 15,584 (C.C. D.C. 1814) (purchase of provisions, intended for enemy), United States v. Greathouse, 26 Fed. Cas. 18, No. 15,254 (C.C.N.D. Cal. 1863) (fitting out a sailing vessel, intended to act as a privateer), United States v. Werner, 247 Fed. 708 (E.D. Pa. 1918) (words), United States v. Fricke, 259 Fed. 673 (S.D. N.Y. 1919) (holding of funds on deposit, or borrowing money, when for convenience of enemy agent), United States v. Haupt, 136 F(2d) 661 (C.C.A. 7th, 1943) (holding funds, securing lodgings, furnishing mailing address, when for convenience of enemy agent).
82 See Marshall, C.J., in Ex parte Bollman, 4 Cranch 75, 126 (U.S. 1807), and cases cited in note 61 supra.
83 This was one of the overt acts charged in United States v. Haupt, in an indictment the substantive validity of which was not involved in the reversal of the convictions 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd, 136 F. (2d) 661 (C.C.A. 7th, 1943).
84 See United States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1,278 (C.C. D.Pa. 1795), Case of Fries, 9 Fed. Cas. No. 5,126, at 914 (C.C.D.Pa. 1799) (first trial), Case of Fries, 9 Fed. Cas. No. 5,127, at 931 (C.C.D.Pa. 1800) (second trial), Ex parte Bollman, 4 Cranch 75, 134, (U.S. 1807), United States v. Burr, 25 Fed. Cas. No. 14,692a, at 14 (C.C. D. Va. 1807), United States v. Burr, 25 Fed. Cas. No. 14,693, at 165, 168 (C.C. D. Va. 1807), Charge to Grand Jury, 30 Fed. Cas. 1,015, No. 18,263 (D. Mass 1851), United States v. Haupt, 47 F. Supp. 836, 839 (N D Ill. 1942), rev'd on grounds not affecting the substance of indictment, 136 F. (2d) 661 (C.C.A. 7th, 1943) Cf. Stephan v. United States, 133 F. (2d) 87, 93, 94 (C.C.A. 6th, 1943) But cf. Story, C.J., Charge to Grand Jury, 30 Fed. Cas. No. 18,275, at 1,047 (C.C. D R.I. 1842), Grier, C.J., in charge to jury in United States v. Hanway, 26 Fed. Cas. No. 15,299, at 126 (C.C. E.D. Pa. 1851).
85 See 26 Fed. Cas. No. 15,254, at 24 (C.C. N D Cal. 1863).
86 See United States v. Burr, 25 Fed. Cas. No. 14,693, at 165, 168 (C.C. D. Va. 1807).
87 Id at 169.
88 See note 71 supra.
89 See note 80 supra.
90 U.S. Const. Art III, § 3 The clause, of course, also recognizes confession in open court as a basis for conviction.
91 325 U.S. 1, 30 (1945), see Marshall, C.J., in United States v. Burr, 25 Fed. Cas. No. 14,693, at 176 (C.C. D. Va. 1807), Baldwin, C.J., in United States v. Doebler, 25 Fed. Cas. No. 14,977, at 886 (C.C. E.D. Pa. 1832) The suggestion of Judge Hand in United States v. Robinson, 259 Fed. 685, 691 (S. D. N.Y. 1919), that the requirement of direct evidence represents a continuance of an archaic philosophy of proof by oath bearers seems without conviction in logic, and is certainly without evidence in history It seems clear that a rational theory of probative values, whether mistaken or not, underlies the two-witness requirement. Indeed, it would be difficult to find two members of the Federal Convention less likely to have been moved by considerations drawn from a "system of trial not rational in its processes (Id at 691), than Benjamin Franklin and James Wilson, whose remarks alone are recorded on the point. See p. 133 supra, 7 Wigmore, Evidence (3d ed. 1940) § 2039, 259 Fed. at 692-93 The cases cited in this note discuss the basis of the two-witness requirement wholly in terms of probative values, and the same approach has been taken toward the requirements for proof of overt acts in English law See 7 Wigmore, Evidence (3d ed. 1940) §§ 2036, 2037.
92 When the Court says (325 U.S. 1, 35) that "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," it seems merely to state its conclusion, not an argument therefor, since the meaning of the assertion depends on the content of the "incriminating" act. This is true also of the statement that "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 be." Ibid. The germ of an argument why aid or intent must be evidenced by the act seems at first glance implied in the remark that the framers, "having thus by definition made treason consist of something capable of direct proof," wrote the two-witness requirement to safeguard the trial procedure Id., 29 But, again, the significance of the statement turns on the meaning of the act, for obviously an act which merely furthers defendant's plan of aiding the enemy is, qua act, as much "capable of direct proof" as an act which completes the aid.
93 Cf. Case of Fries, 9 Fed. Cas. No. 5,126, at 909, 914 (C.C.D.Pa. 1799) (first trial), see United States v. Doebler, 25 Fed. Cas. , No. 14,977, at 885-86 (C.C. E.D. Pa. 1832), 7 Wigmore, Evidence (3d ed. 1940) § 2037.
94 325 U.S. 1, 31 (1945), cf. Douglas, J., dissenting, at 59.
95 325 U.S. 1, 31 (1945).
96 Id , 34, cf. Douglas, J., dissenting, id., 58 The fact that the intent and the act elements have always been recognized as distinct, so that the prosecution must equally establish each, and that distinct functions have been ascribed to them, in itself suggests that the evidence sufficient to establish one element may not necessarily be required to be of a character relevant to establishing the other As an a priori matter, it may of course be argued also that both elements are designed, ultimately, to prove the intent, which is the basic factor which may make the accused a dangerous man, and that it would not be irrational, in promotion of the obvious concern of the framers to safeguard the rights of the accused, if the overt act were intended to be such as would offer corroborative evidence of the intent It may fairly be urged that men in all ages would be perfectly willing to punish one whom they were sure was adhering to the state's enemies by treacherous thoughts, that the practical problem is one of securing adequate proof to assure against abusive prosecutions of the innocent, and that, hence, if the overt act element is construed to require proof which will provide cumulative evidence of intent, this is not to say that the overt act requirement is rendered meaningless Whatever the persuasiveness of this latter analysis, certainly it must carry the burden of proof, for, by familiar principles of construction, distinct elements in a constitutional, legislative, or judge made rule of law are to be taken prima facie as intended to serve distinct purposes See Marshall, C.J., in Marbury v. Madison, 1 Cranch 137, 174 (U.S. 1803) Further, if the evidence to establish the overt act is required to be such as will corroborate the existence of the intent, it is difficult to understand the decisions which so rigorously insist on full proof of each element, acquitting those whose intent is assumed treasonable, but who have not been shown guilty of an "overt act" Likewise, it is hard to see how it can be said to be immaterial which element of the crime is proved first (see note 62 supra), if one is corroborative of the other True, in the cases of ruling on the order of proof, the issues arose because the prosecution sought first to introduce its evidence on intent, and it might be argued that it is hence wholly consistent with a corroborative function of the act element to introduce the principal evidence on intent first But the rulings make no such distinction, and Marshall, C.J., plainly says that there is none an answer which is the more to the present point because it was in response to the contention that the act must be proved first.
97 Cf. United States v. Schulze, 253 Fed. 377, 379 (S.D. Cal. 1918), aff'd without reference to the point here relevant, 259 Fed. 189 (C.C.A. 9th, 1919), Hall, op. cit. supra note 80, at 794-97, 824-25.
98 See cases cited in note 81 supra.
99 See, e.g., United States v. Hodges, 26 Fed. Cas. 332, No. 15,374 (C.C. D. Md. 1815) (delivery of prisoners to enemy), United States v. Hoxie, 26 Fed Cas. 397, No. 15,407 (C.C. D. Vt. 1808) (armed clash with troops seeking to enforce national embargo), United States v. Hanway, 26 Fed. Cas. 105, No. 15,299, (C.C. E.D. Pa. 1851) (forcible resistance to execution of Fugitive Slave Law), United States v. Magtibay, 2 Philipp 703 (1903) (duress), United States v. Leiner, Cr. No. 113-120 (S.D.N.Y. 1943) (unreported, see note 61 supra) (misstatements to authorities regarding identity of spy) Distinguish cases where the prosecution fails because the acts shown are not deemed sufficiently advanced in execution of the intent See, e.g., United States v. Pryor, 27 Fed. Cas. 628, No. 16,096 (C.C.D.Pa. 1814) United States v. De Los Reyes, 3 Philipp 349 (1904).
There is no more striking example of conduct on its face clearly treasonable, but in fact found innocent, than the case of Joshua Hett Smith Smith, a resident of the West Point area, arranged to have two of his tenants row him on the night of September 21, 1780, to the British sloop Vulture, lying in the Hudson. He hailed the vessel as a friend, boarded her and was aboard for fifteen to twenty minutes, after which he returned to the rowboat accompanied by Major Andre, whom he then brought ashore for the meeting with Arnold. Smith took Andre to his house and furnished him with the civilian coat which Andre wore at the time of his capture. Smith was tried before a court-martial, convened under a resolution of the Congress authorizing the commander in chief thus to try any citizen who should harbor or secrete any of the subjects or soldiers of Great Britain, knowing them to be such, or should be instrumental in conveying intelligence to the enemy. His defense, apart from a challenge to the jurisdiction of the court martial, was that Arnold had enlisted his aid on the pretext that this was a means of obtaining information helpful to the American cause. The most careful student of the Arnold conspiracy apparently believes that Smith was telling the truth. Van Doren, Secret History of the American Revolution (1941) 330, 331, 337. The court-martial acquitted the defendant, finding that although he had aided Arnold, "yet they are of opinion, that the evidence is not sufficient to convict the said Joshua H. Smith of his being privy to, or having a knowledge of the said Benedict Arnold's criminal, traitorous and base designs." See The Trial of Joshua H. Smith for Assisting the Enemy, 6 American State Trials (Lawson ed. 1916) 486; 2 Chandler, American Criminal Trials (1844) 255; Smith, An Authentic Narrative of the Causes which Lead to the Death of Major Andre (1809) 118.
100. 325 U. S. 1, 32-33 (1945).
101. Id., 34.
102. See notes 59 and 71 supra.
103. 325 U.S. 1, 35 (1945).
104. Id., 38-39.
105. See note 100 supra.
106. 325 U. S. 1, 33 (1945). Emphasis added.
107. Id., 37-38.
108. Id., 39.
109. Douglas, J., dissenting in 325 U. S. 1, 59 (1945).
110. See id., 34.
111. See pp. 133-134 supra.
112. See United States v. Robinson, 259 Fed. 685, 691-91 (S. D. N. Y. 1919).
113. 7 Wigmore, Evidence (3d ed. 1940) § 2037.
114. The only effort to defend this position seems to be that of Judge Hand in United States v. Robinson, 259 Fed. 685, 689-90 (S. D. N. Y. 1919), and the scant historical evidence which he adduces does not present a convincing case. His interpretation of the significance of the repeal of 21 Rich. II, c. 3 (1397-98), by 1 Hen. IV, c. 10 (1399), is not unreasonable on the face of the statutes, considered in isolation. But see 1 Hale, History of the Pleas of the Crown. (Emlyn ed. 1736-1739) 85, 111, 266, 267; 2 Stephen, History of the Criminal Law of England (1883) 254. His attempt to derive the principle of the two-witness rule from the law of "oath bearers" seems to have no plausible relation to the hard-headed men who framed the treason clause. See note 91 supra. His argument that a heavy burden of proof must be laid on the prosecution, if the two-witness clause is to mean anything seems wholly a priori, and ignores the practical, evidentiary value which may be derived from the simple comparison of the testimony of two separate witnesses to what is allegedly the same transaction. See note 113 supra. And see, generally, note 96 supra.
115. The King v. Lord Preston, 1 Salk. 278, 91 Eng. Rep. 243 (1691).
116. 325 U.S. 1, 45 (1945).
117. The constitutional authority of Congress, under Art. III, § 3, to mitigate the penalty for treason, of course, limits but cannot be said to destroy the political, as compared to the legal, significance of the constitutional status of the crime. See pp. 146, 149-150 supra.
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