Cramer v. United StatesAnnotate this Case
325 U.S. 1 (1945)
U.S. Supreme Court
Cramer v. United States, 325 U.S. 1 (1945)
Cramer v. United States
Argued March 9, 1944
Reargued November 6, 1944
Decided April 23, 1945
325 U.S. 1
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE SECOND CIRCUIT
1. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, the overt act relied on, of which the Constitution requires proof by two witnesses, must be at least an act of the accused sufficient, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. P. 325 U. S. 34.
2. The protection of the two-witness rule of the Constitution in such case extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given. P. 325 U. S. 33.
3. In a prosecution upon an indictment charging treason by adhering to enemies of the United States, giving them aid and comfort, in violation of § 1 of the Criminal Code, two of the overt acts alleged and relied on were:
"1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and New York, and did confer, treat, and counsel with said Werner Thiel
and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling."
"2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel."
By direct testimony of two or more witnesses, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged; that they drank together, and that they engaged long and earnestly in conversation. There was no proof by two witnesses of what they said, or in what language they conversed; no showing that Cramer gave them any information whatever of value to their mission, or that he had any to give; no showing of any effort at secrecy, they having met in public places, and no evidence that Cramer furnished them shelter, sustenance, or supplies, or that he gave them encouragement or counsel, or even paid for their drinks.
Held: that overt acts 1 and 2 as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy, and therefore insufficient to support a judgment of conviction. Pp. 325 U. S. 36-37, 325 U. S. 48.
137 F.2d 888 reversed.
Certiorari, 320 U.S. 730, to review the affirmance of a judgment of conviction of treason.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Anthony Cramer, the petitioner, stands convicted of violating Section 1 of the Criminal Code, which provides:
"Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason. [Footnote 1]"
Cramer owed allegiance to the United States. A German by birth, he had been a resident of the United States since 1925, and was naturalized in 1936. Prosecution resulted from his association with two of the German saboteurs who, in June, 1942, landed on our shores from enemy submarines to disrupt industry in the United States and whose cases we considered in Ex parte Quirin,317 U. S. 1. One of those, spared from execution, appeared as a government witness on the trial of Cramer. He testified that Werner Thiel and Edward Kerling were members of that sabotage crew, detailed their plot, and described their preparations for its consummation.
Cramer was conscripted into and served in the German Army against the United States in 1918. After the war, he came to this country, intending to remain permanently. So far as appears, he has been of good behavior, never before in trouble with the law. He was studious and intelligent, earning $45 a week for work in a boiler room, and living accordingly.
There was no evidence, and the Government makes no claim, that he had foreknowledge that the saboteurs were coming to this country, or that he came into association with them by prearrangement. Cramer, however, had known intimately the saboteur Werner Thiel while the latter lived in this country. They had worked together,
roomed together, and jointly had ventured in a small and luckless delicatessen enterprise. Thiel early and frankly avowed adherence to the National Socialist movement in Germany; he foresaw the war, and returned in 1941 for the purpose of helping Germany. Cramer did not do so. How much he sympathized with the doctrines of the Nazi Party is not clear. He became at one time, in Indiana, a member and officer of the Friends of New Germany, which was a predecessor of the Bund. However, he withdrew in 1935, before it became the Bund. He says there was some swindle about it that he did not like, and also that he did not like their drilling and "radical activities." In 1936, he made a trip to Germany, attended the Olympic Games, and saw some of the Bundsmen from this country who went there at that time for conferences with Nazi Party officials. There is no suggestion that Cramer, while there, had any such associations. He does not appear to have been regarded as a person of that consequence. His friends and associates in this country were largely German. His social life in New York City, where he recently had lived, seems to have been centered around Kolping House, a German-Catholic recreational center.
Cramer retained a strong affection for his fatherland. He corresponded in German with his family and friends there. Before the United States entered the war, he expressed strong sympathy with Germany in its conflict with other European powers. Before the attack upon Pearl Harbor, Cramer openly opposed participation by this country in the war against Germany. He refused to work on war materials. He expressed concern about being drafted into our army and "misused" for purposes of "world conquest." There is no proof, however, except for the matter charged in the indictment, of any act or utterance disloyal to this country after we entered the war.
Coming down to the time of the alleged treason, the main facts, as related on the witness stand by Cramer, are not seriously in dispute. He was living in New York, and, in response to a cryptic note left under his door, which did not mention Thiel, he went to the Grand Central Station. There, Thiel appeared. Cramer had supposed that Thiel was in Germany, knowing that he had left the United States shortly before the war to go there. Together, they went to public places and had some drinks. Cramer denies that Thiel revealed his mission of sabotage. Cramer said to Thiel that he must have come to America by submarine, but Thiel refused to confirm it, although his attitude increased Cramer's suspicion. Thiel promised to tell later how he came to this country. Thiel asked about a girl who was a mutual acquaintance and whom Thiel had engaged to marry previous to his going to Germany. Cramer knew where she was, and offered to and did write to her to come to New York, without disclosing in the letter that Thiel had arrived. Thiel said that he had in his possession about $3,600, but did not disclose that it was provided by the German Government, saying only that one could get money in Germany if he had the right connections. Thiel owed Cramer an old debt of $200. He gave Cramer his money belt containing some $3,600, from which Cramer was to be paid. Cramer agreed to and did place the rest in his own safe deposit box, except a sum which he kept in his room in case Thiel should want it quickly.
After the second of these meetings, Thiel and Kerling, who was present briefly at one meeting, were arrested. Cramer's expectation of meeting Thiel later and of bringing him and his fiancee together was foiled. Shortly thereafter, Cramer was arrested, tried, and found guilty. The trial judge at the time of sentencing said:
"I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware
that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States, or planned to do that."
"From the evidence, it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew, or believed what they really were, I should not hesitate to impose the death penalty."
Cramer's case raises questions as to application of the Constitutional provision that
"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. [Footnote 2]"
Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson: [Footnote 3]
"Nevertheless, a question may indeed be raised whether the prosecution may lay as an overt act a step taken in execution of the traitorous design, innocent in itself, and getting its treasonable character only from some covert and undeclared intent. It is true that, in prosecutions for conspiracy under our federal statute, it is well settled that any step in performance of the conspiracy is enough, though it is innocent except for its relations to the agreement. I doubt very much whether that rule has any application to the case of treason, where the requirement affected the character of the pleading and proof, rather than accorded a season of repentance before the crime should be complete. Lord Reading, in his charge in
Casement's Case, uses language which accords with my understanding:"
" Overt acts are such acts as manifest a criminal intention, and tend towards the accomplishment of the criminal object. They are acts by which the purpose is manifested and the means by which it is intended to be fulfilled. [Footnote 4]"
The Government, however, contends for, and the court below has affirmed, this conviction upon a contrary principle. [Footnote 5] It said:
"We believe, in short, that no more need be laid for an overt act of treason than for an overt act of conspiracy. . . . Hence, we hold the overt acts relied on were sufficient to be submitted to the jury, even though they perhaps may have appeared as innocent on their face."
A similar conclusion was reached in United States v. Fricke; [Footnote 6] it is: "An overt act, in itself, may be a perfectly innocent act standing by itself; it must be in some manner in furtherance of the crime."
As lower courts thus have taken conflicting positions, or, where the issue was less clearly drawn, have dealt with the problem ambiguously, [Footnote 7] we granted certiorari, [Footnote 8] and, after argument at the October 1943 Term, we invited
reargument addressed to specific questions. [Footnote 9] Since our primary question here is the meaning of the Constitutional provision, we turn to its solution before considering its application to the facts of this case.
When our forefathers took up the task of forming an independent political organization for New World society, no one of them appears to have doubted that to bring into being a new government would originate a new allegiance for its citizens and inhabitants. Nor were they reluctant to punish as treason any genuine breach of allegiance, as every government time out of mind had done. The betrayal of Washington by Arnold was fresh in mind. They were far more awake to powerful enemies with designs on this continent than some of the intervening generations have been. England was entrenched in Canada to the north, and Spain had repossessed Florida to the south, and each had been the scene of invasion of the Colonies; the King of France had but lately been dispossessed in the Ohio Valley; Spain claimed the Mississippi Valley; and, except for the seaboard, the settlements were surrounded by Indians -- not negligible as enemies themselves, and especially threatening when allied to European foes. The proposed national government could not for some years become firmly seated in the tradition or in the habits of
the people. There is no evidence that the forefathers intended to withdraw the treason offense from use as an effective instrument of the new nation's security against treachery that would aid external enemies.
The forefathers also had suffered from disloyalty. Success of the Revolution had been threatened by the adherence of a considerable part of the population to the King. The Continental Congress adopted a resolution after a report by its "Committee on Spies" [Footnote 10] which, in effect, declared that all persons residing within any colony owed allegiance to it, and that, if any such persons adhered to the King of Great Britain, giving him aid and comfort, they were guilty of treason, and which urged the colonies to pass laws for punishment of such offenders "as shall be provably attainted of open deed." [Footnote 11] Many of the colonies complied, and a variety of laws, mostly modeled
on English law, resulted. [Footnote 12] Some of the legislation in later years became so broad and loose as to make treason of
mere utterance of opinion. [Footnote 13] Many a citizen, in a time of unsettled and shifting loyalties, was thus threatened under
English law, which made him guilty of treason if he adhered to the government of his colony, and also under colonial law, which made him guilty of treason if he adhered to his King. [Footnote 14] Not a few of these persons were subjected to confiscation of property or other harsh treatment by the Revolutionists under local laws -- none, however, so far as appears, to capital punishment. [Footnote 15]
Before this revolutionary experience, there were scattered treason prosecutions in the colonies, [Footnote 16] usually not well reported. Some colonies had adopted treason statutes modeled on English legislation. [Footnote 17] But the earlier colonial experience seems to have been regarded as of
a piece with that of England, and appears not to have much influenced the framers in their dealings with the subject.
However, their experience with treason accusations had been many-sided. More than a few of them were descendants
of those who had fled from measures against sedition and its ecclesiastic counterpart, heresy. Now the treason offense was under revision by a Convention whose members almost to a man had themselves been guilty of treason under any interpretation of British law. [Footnote 18] They not only had levied war against their King themselves, but they had conducted a lively exchange of aid and comfort with France, then England's ancient enemy. Every step in the great work of their lives, from the first mild protests against kingly misrule to the final act of separation, had been taken under the threat of treason charges. [Footnote 19] The Declaration of Independence may seem cryptic in denouncing George III "for transporting us beyond Seas to be tried for pretended offenses," but the specific grievance was recited by the Continental Congress nearly two years before in saying that
". . . it has lately been resolved in Parliament, that, by force of a statute, made in the thirty-fifth year of the reign of King Henry the eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments
of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned. [Footnote 20]"
The Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge. [Footnote 21] The English stream of thought concerning
treasons began to flow in fairly definable channels in 1351 with the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2. [Footnote 22] That was a monumental piece
of legislation several times referred to in the deliberations of the Convention. It cut a benchmark by which the English-speaking world tested the level of its thought on the subject [Footnote 23] until our own abrupt departure from it in
1789, and after 600 years, it still is the living law of treason in England. Roger Casement in 1917 forfeited his life for violating it. [Footnote 24] We, of course, can make no independent judgment as to the inward meanings of the terms used in a six-century-old statute, written in a form of Norman French that had become obsolete long before our Revolution. We can read this statute only as our forebears read it -- through the eyes of succeeding generations of English judges, to whom it has been the core of all decision, and of common law commentators, to whom it has been the text. [Footnote 25]
Adjudicated cases in English history generally have dealt with the offense of compassing the monarch's death;
only eleven reported English cases antedating the Constitution are cited as involving distinct charges of adherence to the King's enemies. [Footnote 26] When constructive treasons were not joined on the face of the indictment, it is not possible to say how far they were joined in the minds of the judges. No decision appears to have been a factor in the deliberations of our own Constitutional Convention. Nor does any squarely meet our issue here, and for good reason -- the Act of Edward III did not contain the "two witnesses to the same overt act" requirement which precipitates the issue here.
Historical materials are therefore of little help; necessity as well as desire taught a concept that differed from all historical models in the drafting of our treason clause. Treason statutes theretofore had been adapted to a society in which the state was personified by a king, on whose person were focused the allegiances and loyalties of the subject. When government was made representative of the whole body of the governed, there was none to say "I
am the State," and a concept of treason as compassing or imagining a ruler's death was no longer fitting. Nor can it be gainsaid that the revolutionary doctrine that the people have the right to alter or abolish their government relaxed the loyalty which governments theretofore had demanded -- dangerously diluted it, as the ruling classes of Europe thought, for, in their eyes, the colonists not only committed treason, they exalted it. [Footnote 27] The idea that loyalty will ultimately be given to a government only so long as it deserves loyalty, and that opposition to its abuses is not treason, [Footnote 28] has made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy. But the basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself. The interplay in
the Convention of their two fears accounts for the problem which faces us today.
We turn then to the proceedings of the Constitutional Convention of 1787 so far as we have record of them. The plan presented by Pinckney evidently proposed only that Congress should have exclusive power to declare what should be treason and misprision of treason against the United States. [Footnote 29] The Committee on Detail, apparently not specifically instructed on the subject, reported a draft Constitution which left no such latitude to create new treasons. It provided that:
"Treason against the United States shall consist only in levying war against the United States, or any of them, and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason unless on the testimony of two witnesses. No attainder of treason shall work corruption of bloods, nor forfeiture, except during the life of the person attained. [Footnote 30]"
This clause was discussed on August 20, 1787. Mr. Madison, who opened the discussion,
"thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe in the hands of State legislatures, and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused. [Footnote 31]"
Mr. Mason was in favor of following the language of the Statute of Edward III. The discussion shows some confusion as to the effect of adding the words "giving them aid and comfort," some thinking their effect restrictive
and others that they gave a more extensive meaning. However,
"Col. Mason moved to insert the words 'giving [them] aid comfort,' as restrictive of 'adhering to their Enemies, &c' -- the latter, he thought, would be otherwise too indefinite."
The motion prevailed.
"wished to know what was meant by the 'testimony of two witnesses,' whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt act ought to be expressed as essential to the case."
Doctor Johnson also "considered . . . that something should be inserted in the definition concerning overt acts."
When it was moved to insert "to the same overt act" after the two witnesses requirement, Madison notes that
"Doc'r. Franklin wished this amendment to take place -- prosecutions for treason were generally virulent, and perjury too easily made use of against innocence."
James Wilson observed that
"Much may be said on both sides. Treason may sometimes be practiced in such a manner as to render proof extremely difficult -- as in a traitorous correspondence with an Enemy. [Footnote 32]"
But the motion carried.
By this sequence of proposals, the treason clause of the Constitution took its present form. The temper and attitude of the Convention toward treason prosecutions is unmistakable. It adopted every limitation that the practice of governments had evolved or that politico-legal philosophy
to that time had advanced. [Footnote 33] Limitation of the treason of adherence to the enemy to cases where aid and comfort were given and the requirement of an overt act were both found in the Statute of Edward III praised in the writings of Coke and Blackstone, and advocated in Montesquieu's Spirit of Laws. Likewise, the two witness requirement had been used in other statutes, [Footnote 34] was advocated by Montesquieu in all capital cases, [Footnote 35] and was a familiar precept of the New Testament, [Footnote 36] and of Mosaic law. [Footnote 37] The framers combined all of these known protections and added two of their own which had no precedent. They wrote into the organic act of the new government a prohibition of legislative or judicial creation of new treasons. And a venerable safeguard against false testimony was given a novel application by requiring two witnesses to the same overt act.
District of treason prosecutions was not just a transient mood of the Revolutionists. In the century and a half of our national existence, not one execution on a federal treason conviction has taken place. Never before has this Court had occasion to review a conviction. In the few cases that have been prosecuted, the treason clause has had its only judicial construction by individual Justices of this Court presiding at trials on circuit or by district
or circuit judges. [Footnote 38] After constitutional requirements have been satisfied, and after juries have convicted
and courts have sentenced, Presidents again and again have intervened to mitigate judicial severity or to pardon entirely. We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability. [Footnote 39]
Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition, and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence. The first danger could be diminished by closely circumscribing the kind of conduct which should be treason -- making the constitutional definition exclusive, making it clear, and making the offense one not susceptible of being inferred from all sorts of insubordinations. The second danger lay in the manner of trial and was one which would be diminished
mainly by procedural requirements -- mainly, but not wholly, for the hazards of trial also would be diminished by confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern uppermost in the framers' minds, that mere mental attitudes or expressions should not be treason, influenced both definition of the crime and procedure for its trial. In the proposed Constitution, the first sentence of the treason article undertook to define the offense; the second, to surround its trial with procedural safeguards.
"Compassing' and like loose concepts of the substance of the offense had been useful tools for tyranny. So one of the obvious things to be put into the definition of treason not consisting of actual levying of war was that it must consist of doing something. This the draft Constitution failed to provide, for, as we have pointed out, it defined treason [Footnote 40] as merely 'adhering to the enemies of the United States, or any of them."
Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own King by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the foe, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was "giving them aid and comfort."
"Aid and comfort" was defined by Lord Reading in the Casement trial comprehensively, as it should be, and yet probably with as much precision as the nature of the matter will permit:
". . . an act which strengthens or tends to strengthen the enemies of the King in the conduct of a
war against the King, that is in law the giving of aid and comfort"
"an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country . . . is . . . giving of aid and comfort."
Lord Reading explained it, as we think one must, in terms of an "act." It is not easy, if indeed possible, to think of a way in which "aid and comfort" and be "given" to an enemy except by some kind of action. Its very nature partakes of a deed or physical activity, as opposed to a mental operation.
Thus, the crime of treason consists of two elements: adherence to the enemy and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.
Having thus, by definition, made treason consist of something outward and visible and capable of direct proof, the framers turned to safeguarding procedures of trial, and ordained that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." This repeats in procedural terms the concept that thoughts and attitudes alone cannot make a treason. It need not trouble us that we find so dominant a purpose emphasized in two different ways. But does the procedural requirement add some limitation not already present in the definition of the crime, and, if so, what?
While to prove giving of aid and comfort would require the prosecution to show actions and deeds, if the Constitution stopped there, such acts could be inferred from circumstantial evidence. This the framers thought would not do. [Footnote 41] So they added what in effect is a command that the overt acts must be established by direct evidence, and the direct testimony must be that of two witnesses, instead of one. In this sense, the overt act procedural provision adds something, and something important, to the definition.
Our problem begins where the Constitution ends. That instrument omits to specify what relation the indispensable overt act must sustain to the two elements of the offense as defined: viz., adherence and giving aid and comfort. It requires that two witnesses testify to the same overt act, and, clearly enough, the act must show something toward treason, but what? Must the act be one of giving aid and comfort? If so, how must adherence to the enemy, the disloyal state of mind, be shown?
The defendant especially challenges the sufficiency of
the overt acts to prove treasonable intention. Questions of intent in a treason case are even more complicated than in most criminal cases because of the peculiarity of the two different elements which together make the offense. Of course, the overt acts of aid and comfort must be intentional, as distinguished from merely negligent or undesigned, ones. Intent in that limited sense is not in issue here. But to make treason, the defendant not only must intend the act, but he must intend to betray his country by means of the act. It is here that Cramer defends. The issue is joined between conflicting theories as to how this treacherous intention and treasonable purpose must be made to appear.
Bearing in mind that the constitutional requirement in effect is one of direct, rather than circumstantial, evidence, we must give it a reasonable effect in the light of its purpose both to preserve the offense and to protect citizens from its abuse. What is designed in the mind of an accused never is susceptible of proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved by the direct testimony of two witnesses, it would be to hold that it is never provable. It seems obvious that adherence to the enemy, in the sense of a disloyal state of mind, cannot be, and is not required to be, proved by deposition of two witnesses.
Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual reasonable inferences as to intent from the overt acts. The law of treason, like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts. Proof that a citizen did give aid and comfort to an enemy may well be, in the circumstances, sufficient evidence that he adhered to that enemy and intended and purposed to strike at his
own country. [Footnote 42] It may be doubted whether it would be what the founders intended, or whether it would well serve any of the ends they cherished, to hold the treason offense available to punish only those who make their treacherous intentions more evident than may be done by rendering aid and comfort to an enemy. Treason -- insidious and dangerous treason -- is the work of the shrewd and crafty more often than of the simple and impulsive.
While, of course, it must be proved that the accused acted with an intention and purpose to betray or there is no treason, we think that, in some circumstances, at least, the overt act itself will be evidence of the treasonable purpose and intent. But that still leaves us with exceedingly difficult problems. How decisively must treacherous intention be made manifest in the act itself? Will a scintilla of evidence of traitorous intent suffice? Or must it be sufficient to convince beyond reasonable doubt? Or need it show only that treasonable intent was more probable than not? Must the overt act be appraised for legal sufficiency only as supported by the testimony of two witnesses, or may other evidence be thrown into the scales to create inferences not otherwise reasonably to be drawn or to reinforce those which might be drawn from the act itself?
It is only overt acts by the accused which the Constitution explicitly requires to be proved by the testimony of two witnesses. It does not make other common law evidence inadmissible, nor deny its inherent powers of persuasion. It does not forbid judging by the usual process by which the significance of conduct often will be determined by facts which are not acts. Actions of the accused are set
in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation.
It would be no contribution to certainty of judgment, which is the object of the provision, to construe it to deprive a trial court of the aid of testimony under the ordinary sanctions of verity, provided, of course, resort is not had to evidence of less than the constitutional standard to supply deficiencies in the constitutional measure of proof of overt acts. For it must be remembered that the constitutional provision establishes a minimum of proof of incriminating acts, without which there can be no conviction, but it is not otherwise a limitation on the evidence with which a jury may be persuaded that it ought to convict. The Constitution does not exclude or set up standards to test evidence which will show the relevant acts of persons other than the accused or their identity or enemy character or other surrounding circumstances. Nor does it preclude any proper evidence of nonincriminating facts about a defendant -- such, for example, as his nationality, naturalization, and residence.
From duly proven overt acts of aid and comfort to the enemy in their setting it may well be that the natural and reasonable inference of intention to betray will be warranted. The two witness evidence of the acts accused, together with common law evidence of acts of others and of facts which are not acts, will help to determine which among possible inferences as to the actor's knowledge, motivation, or intent are the true ones. But the protection of the two witness rule extends at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given.
The controversy before us has been waged in terms of intentions, but this, we think, is the reflection of a more fundamental issue as to what is the real function of the overt act in convicting of treason. The prisoner's contention that it, alone and on its face, must manifest a traitorous intention, apart from an intention to do the act itself, would place on the overt act the whole burden of establishing a complete treason. On the other hand, the Government's contention that it may prove by two witnesses an apparently commonplace and insignificant act and, from other circumstances, create an inference that the act was a step in treason, and was done with treasonable intent, really is a contention that the function of the overt act in a treason prosecution is almost zero. It is obvious that the function we ascribe to the overt act is significant chiefly because it measures the two witness rule protection to the accused and its handicap to the prosecution. If the over act or acts must go all the way to make out the complete treason, the defendant is protected at all points by the two witness requirement. If the act may be an insignificant one, then the constitutional safeguards are shrunken so as to be applicable only at a point where they are least needed.
The very minimum function that an overt act [Footnote 43] must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave [Footnote 44] aid and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute treason must be supported
by the testimony of two witnesses. The two witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. The prosecution cannot rely on evidence which does not meet the constitutional test for overt acts to create any inference that the accused did other acts or did something more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy. The words of the Constitution were chosen not to make it hard to prove merely routine and everyday acts, but to make the proof of acts that convict of treason as sure as trial processes may. When the prosecution's case is thus established, the Constitution does not prevent presentation of corroborative or cumulative evidence of any admissible character, either to strengthen a direct case or to rebut the testimony or inferences on behalf of defendant. The Government is not prevented from making a strong case; it is denied a conviction on a weak one.
It may be that, in some cases, the overt acts sufficient to prove giving of aid and comfort will fall short of showing intent to betray, and that questions will then be raised as to permissible methods of proof that we do not reach in this case. But, in this and some cases we have cited where the sufficiency of the overt acts has been challenged because they were colorless as to intent, we are persuaded the reason intent was left in question was that the acts were really indecisive as a giving of aid and comfort. When we deal with acts that are trivial and commonplace, and hence are doubtful as to whether they gave aid and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent.
We proceed to consider the application of these principles to Cramer's case.
The indictment charged Cramer with adhering to the enemies of the United States, giving them aid and comfort,
and set forth ten overt acts. The prosecution withdrew seven, and three were submitted to the jury. The overt acts which present the principal issue [Footnote 45] are alleged in the following language:
"1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling, enemies of the United States at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and New York, and did confer, treat, and counsel with said Werner Thiel and Edward John Kerling for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies, Werner Thiel and Edward John Kerling."
"2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New York and
within the jurisdiction of this Court, did accompany, confer, treat, and counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and Vanderbilt Avenues, both in the City and New York, for the purpose of giving and with intent to give aid and comfort to said enemy, Werner Thiel."
At the present stage of the case, we need not weight their sufficiency as a matter of pleading. Whatever the averments might have permitted the Government to prove, we now consider their adequacy on the proof as made.
It appeared upon the trial that, at all times involved in these acts, Kerling and Thiel were under surveillance of the Federal Bureau of Investigation. By direct testimony of two or more agents, it was established that Cramer met Thiel and Kerling on the occasions and at the places charged and that they drank together and engaged long and earnestly in conversation. This is the sum of the overt acts as established by the testimony of two witnesses. There is no two witness proof of what they said, nor in what language they conversed. There is no showing that Cramer gave them any information whatever of value to their mission, or indeed that he had any to give. No effort at secrecy is shown, for they met in public places. Cramer furnished them no shelter, nothing that can be called sustenance or supplies, and there is no evidence that he gave them encouragement or counsel, or even paid for their drinks.
The Government recognizes the weakness of its proof of aid and comfort, but, on this scope, it urges:
"Little imagination is required to perceive the advantage such meeting would afford to enemy spies not yet detected. Even apart from the psychological comfort which the meetings furnished Thiel and Kerling by way of social intercourse with
one who they were confident would not report them to the authorities, as a loyal citizen should, the meetings gave them a source of information and an avenue for contact. It enabled them to be seen in public with a citizen above suspicion, and thereby to be mingling normally with the citizens of the country with which they were at war."
The difficulty with this argument is that the whole purpose of the constitutional provision is to make sure that treason conviction shall rest on direct proof of two witnesses ,and not on even a little imagination. And, without the use of some imagination, it is difficult to perceive any advantage which this meeting afforded to Thiel and Kerling as enemies, or how it strengthened Germany or weakened the United States in any way whatever. It may be true that the saboteurs were cultivating Cramer as a potential "source of information and an avenue for contact." But there is no proof either by two witnesses or by even one witness, or by any circumstance, that Cramer gave them information or established any "contact" for them with any person other than an attempt to bring about a rendezvous between Thiel and a girl, or that being "seen in public with a citizen above suspicion" was of any assistance to the enemy. Meeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs' mission, and did not advance it. It may well have been a digression which jeopardized its success.
The shortcomings of the overt act submitted are emphasized by contrast with others which the indictment charged but which the prosecution withdrew for admitted insufficiency of proof. It appears that Cramer took from Thiel for safekeeping a money belt containing about $3,600, some $160 of which he held in his room concealed in books for Thiel's use as needed. An old indebtedness of Thiel to Cramer of $200 was paid from the fund, and the rest Cramer put in his safe deposit box in a bank for safekeeping. All of this was at Thiel's request. That Thiel
would be aided by having the security of a safe deposit box for his funds, plus availability of smaller amounts, and by being relieved of the risks of carrying large sums on his person -- without disclosing his presence or identity to a bank -- seems obvious. The inference of intent from such act is also very different from the intent manifest by drinking and talking together. Taking what must have seemed a large sum of money for safekeeping is not a usual amenity of social intercourse. That such responsibilities are undertaken and such trust bestowed without the scratch of a pen to show it implies some degree of mutuality and concert from which a jury could say that aid and comfort was given and was intended. If these acts had been submitted as overt acts of treason, and we were now required to decide whether they had been established as required, we would have a quite different case. We would then have to decide whether statements on the witness stand by the defendant are either "confession in open court" or may be counted as the testimony of one of the required two witnesses to make out otherwise insufficiently proved "overt acts." But this transaction was not proven as the Government evidently hoped to do when the indictment was obtained. The overt acts based on it were expressly withdrawn from the jury, and Cramer has not been convicted of treason on account of such acts. We cannot sustain a conviction for the acts submitted on the theory that, even if insufficient, some unsubmitted ones may be resorted to as proof of treason. Evidence of the money transaction serves only to show how much went out of the case when it was withdrawn.
The Government contends that, outside of the overt acts, and by lesser degree of proof, it has shown a treasonable intent on Cramer's part in meeting and talking with Thiel and Kerling. But if it showed him disposed to betray, and showed that he had opportunity to do so, it still has not proved in the manner required that he did any acts
submitted to the jury as a basis for conviction which had the effect of betraying by giving aid and comfort. To take the intent for the deed would carry us back to constructive treasons.
It is outside of the commonplace overt acts as proved that we must find all that convicts or convinces either that Cramer gave aid and comfort or that he had a traitorous intention. The prosecution relied chiefly upon the testimony of Norma Kopp, the fiancee of Thiel, as to incriminating statements made by Cramer to her, [Footnote 46] upon admissions made by Cramer after his arrest to agents of the Federal Bureau of Investigation, [Footnote 47] upon letters and
documents found on search of his room by permission after his arrest, [Footnote 48] and upon testimony that Cramer had
curtly refused to buy Government bonds. [Footnote 49] After denial of defendant's motion to dismiss at the close of the prosecution's case, defendant became a witness in his own behalf, and the Government obtained on cross-examination some admissions of which it had the benefit on submission. [Footnote 50]
It is not relevant to our issue to appraise weight or credibility of the evidence apart from determining its constitutional sufficiency. Nor is it necessary, in the view we take of the more fundamental issues, to discuss the
reservations which all of us entertain as to the admissibility of some of it or those which some entertain as to other of it. We could conclude in favor of affirmance only if all questions of admissibility were resolved against the prisoner. At all events, much of the evidence is of the general character whose infirmities were feared by the framers, and sought to be safeguarded against.
Most damaging is the testimony of Norma Kopp, a friend of Cramer's and one with whom, if she is to be believed, he had been most indiscreetly confidential. Her testimony went considerably beyond that of the agents of the Federal Bureau of Investigation as to admissions of guilty knowledge of Thiel's hostile mission and of Cramer's sympathy with it. To the extent that his conviction rests upon such evidence, and it does to an unknown but considerable extent, it rests upon the uncorroborated testimony of one witness not without strong emotional interest in the drama of which Cramer's trial was a part. Other evidence relates statements by Cramer before the United States was at war with Germany. At the time they were uttered, however, they were not treasonable. To use pre-war expressions of opposition to entering a war to convict of treason during the war is a dangerous procedure, at best. The same may be said about the inference of disloyal attitude created by showing that he refused to buy bonds and closed the door in the salesman's face. Another class of evidence consists of admissions to agents of the Federal Bureau of Investigation. They are, of course, not "confession in open court." The Government does not contend, and could not well contend,
that admissions made out of court, if otherwise admissible, can supply a deficiency in proof of the overt act itself.
The Government has urged that our initial interpretation of the treason clause should be less exacting, lest treason be too hard to prove and the Government disabled from adequately combating the techniques of modern warfare. But the treason offense is not the only, nor can it well serve as the principal, legal weapon to vindicate our national cohesion and security. In debating this provision, Rufus King observed to the Convention that the
"controversy relating to Treason might be of less magnitude than was supposed, as the legislature might punish capitally under other names than Treason. [Footnote 51]"
His statement holds good today. Of course, we do not intimate that Congress could dispense with the two witness rule merely by giving the same offense another name. But the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety. The loyal and the disloyal alike may be forbidden to do acts which place our security in peril, and the trial thereof may be focussed upon defendant's specific intent to do those particular acts, [Footnote 52] thus eliminating the accusation of treachery and of general intent to betray which have such passion-rousing potentialities. Congress repeatedly has enacted prohibitions of specific acts thought to endanger our security, [Footnote 53] and the practice of foreign nations with defense
problems more acute than our own affords examples of others. [Footnote 54]
The framers' effort to compress into two sentences the law of one of the most intricate of crimes gives a superficial appearance of clarity and simplicity which proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract
interpretative generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty. The offense is one of subtlety, and it is easy to demonstrate lack of logic in almost any interpretation by hypothetical cases, to which real treasons rarely will conform. The protection of the two witness requirement, limited as it is to overt acts, may be wholly unrelated to the real controversial factors in a case. We would be understood as speaking only in the light of the facts and of the issues raised in the case under consideration, although that leaves many undetermined grounds of dispute which, after the method of the common law, we may defer until they are presented by facts which may throw greater light on their significance. Although nothing in the conduct of Cramer's trial evokes it, a repetition of Chief Justice Marshall's warning can never be untimely:
"As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both. . . . It is therefore more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases, and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide."
It is not difficult to find grounds upon which to quarrel with this Constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such
a mechanical calibration of evidence, is a crude device, at best, or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that
"Treason may sometimes be practiced in such a manner as to render proof extremely difficult -- as in a traitorous correspondence with an Enemy. [Footnote 55]"
The provision was adopted not merely in spite of the difficulties it put in the way of prosecution, but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that "prosecutions for treason were generally virulent." Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that
"He that would make his own liberty secure must guard even his enemy from oppression, for, if he violates this duty, he establishes a precedent that will reach himself. [Footnote 56]"
We still put trust in it.
We hold that overt acts 1 and 2 are insufficient as proved to support the judgment of conviction, which accordingly is
18 U.S.C. § 1, derived from Act of April 30, 1790, c. 9, § 1, 1 Stat. 112.
Article III, Section 3.
259 F. 685, 690.
This view was recently followed by Judge Clancy in District Court, in dismissing an indictment for treason. United States v. Leiner, S.D.N.Y.1943 (unreported).
United States v. Cramer, 137 F.2d 888, 896.
259 F. 673, 677.
"An overt act, in criminal law, is an outward act done in pursuance and in manifestation of an intent or design; an overt act in this case means some physical action done for the purpose of carrying out or affecting [sic] the treason."
United States v. Haupt, 47 F.Supp. 836, 839, rev'd on other grounds, 136 F.2d 661.
"The overt act is the doing of some actual act looking towards the accomplishment of the crime." United States v. Stephan, 50 F.Supp. 738, 742, 743, note.
320 U.S. 730.
May 22, 1944. Counsel for petitioner, although assigned by the trial court, has responded with extended researches. The Solicitor General engaged scholars not otherwise involved in conduct of the case to collect and impartially to summarize statutes, decisions, and texts from Roman, Continental, and Canon law, as well as from English, Colonial, and American law sources. The part of the study dealing with American materials has been made available through publication in 58 Harv.L.Rev. 226 et seq. Counsel have lightened our burden of examination of the considerable accumulation of historical materials.
The Committee included John Adams, Thomas Jefferson, John Rutledge, James Wilson, and Robert Livingston. See C. F. Adams, Life of John Adams in 1 Works of John Adams (1856) 224, 225.
"Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony, and that all persons passing through, visiting, or make [sic] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto:"
"That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony:"
"That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described as shall be proveably attainted of open deed, by people of their condition, of any of the treasons before described."
5 Journals of the Continental Congress (1906) 475.
Nine states substantially adopted the recommendation of the Congress: Delaware, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Virginia. (The Virginia law, though it did not copy in full the recommendation of Congress, was drawn by Jefferson, among others, and hence probably can be regarded as originating in the same source as the others.) Three states had basic treason statutes not patterned on the Congressional model, one antedating the latter: Connecticut, Maryland, South Carolina. Georgia is not found to have enacted any general treason statute, although it passed a number of separate acts of attainder.
The Maryland act declared that
"the several crimes aforesaid shall receive the same constructions that have been given to such of the said crimes as are enumerated in the statute of Edward the third, commonly called the statute of treasons."
None of the statutes contained negative language limiting the definition of treason expressly to that set forth in the statute. In general, too, they added to the definition of the model recommended by Congress other specific kinds of treason. Thus, a number defined treason as including conspiracy to levy war. Conspiracy to adhere to the enemy and give aid and comfort was also included in several, or incorporated by separate acts. Much explicit attention was given to the problem of contact with the enemy. Conveying of intelligence or carrying on of correspondence with the enemy were expressly mentioned. One typical provision declared guilty of treason those persons who were
"adherent to . . . the enemies of this State within the same, or to the Enemies of the United States . . . giving to . . . them Aid or Comfort, or by giving to . . . them Advice or Intelligence either by Letters, Messages, Words, Signs or Tokens, or in any way whatsoever, or by procuring for, or furnishing to . . . them any Kind of Provisions or Warlike Stores. . . ."
Other provisions referred to "joining their Armies," "inlisting or persuading others to inlist for that Purpose," "furnishing Enemies with Arms or Ammunition, Provision or any other Articles for such their Aid or Comfort,"
"willfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United States to the Enemies of the United States of America;"
and to persons who
"have joined, or shall hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein,"
or who should maliciously and with an intent to obstruct the service dissuade others from enlisting, or maliciously spread false rumors concerning the forces of either side such as to alienate the affections of the people from the Government "or to terrify or discourage the good Subjects of this State, or to dispose them to favor the Pretensions of the Enemy," or who
"shall take a Commission or Commissions from the King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States of America."
A number of the statutes required "the testimony of two lawful and credible witnesses." But the requirement was not linked to the proof of overt acts, and there was no suggestion of the type of provision later embodied in the Constitution. Supplementary acts creating special treasonable offenses tended to omit any requirement as to quantum of proof.
See Hurst, op cit. supra, 58 Harv.L.Rev. at 248 et seq.
For example, the New York Act of March 30, 1781, after reciting that it was necessary to make further provision respecting treason in order to prevent adherence to the king, made it a felony to declare or maintain "that the King of Great Britain hath, or of Right ought to have, any Authority, or Dominion, in or over this State, or the Inhabitants thereof," or to persuade or attempt to persuade any inhabitant to renounce allegiance to the State or acknowledge allegiance to the king, or to affirm one's own allegiance to the king. A person convicted was to "suffer the Pains and Penalties prescribed by Law in Cases of Felony without Benefit of Clergy," except that the court might, instead of prescribing death, sentence to three years' service on an American warship. Laws of the New-York (Poughkeepsie, 1782) 4th Sess., Ch. XLVIII. Virginia imposed a fine not exceeding
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