At petitioner's trial for treason, it appeared that originally
he was a native-born citizen of the United States and also a
national of Japan by reason of Japanese parentage and law. While a
minor, he took the oath of allegiance to the United States; went to
Japan for a visit on an American passport, and was prevented by the
outbreak of war from returning to this country. During the war, he
reached his majority in Japan, changed his registration from
American to Japanese, showed sympathy with Japan and hostility to
the United States, served as a civilian employee of a private
corporation producing war materials for Japan, and brutally abused
American prisoners of war who were forced to work there. After
Japan's surrender, he registered as an American citizen, swore that
he was an American citizen and had not done various acts amounting
to expatriation, and returned to this country on an American
his conviction for treason is affirmed. Pp.
343 U. S.
1. The evidence was sufficient to support the finding of the
jury that he had not renounced or lost his American citizenship at
the time of the overt acts charged in the indictment. Pp.
343 U. S.
(a) In view of petitioner's dual nationality, it cannot be said
as a matter of law that his action in registering in the Koseki (a
family census register) and changing his registration from American
to Japanese amounted to a renunciation of American citizenship
within the meaning of § 401 of the Nationality Act. Pp.
343 U. S.
(b) Nor is such a holding required as a matter of law by the
facts that, during the war, he traveled to China on a Japanese
passport, used his Koseki entry to obtain work at a prisoner of war
camp, bowed to the Emperor, and accepted labor draft papers from
the Japanese Government. P. 343 U. S.
(c) In view of the conflict between petitioner's statements at
his trial that he felt no loyalty to the United States from March,
1943, to late 1945 and his actions after Japan's defeat (when
Page 343 U. S. 718
applied for registration as an American citizen and for an
American passport), the question whether he had renounced his
American citizenship was peculiarly for the jury to determine. Pp.
343 U. S.
(d) It cannot be said that petitioner was serving in the armed
forces of Japan within the meaning of § 401(c), nor that his status
as a civilian employee of a private corporation was so changed by
the regimentation of the industry by the Japanese government that
he was performing the duties of an "office, post or employment
under the government" of Japan within the meaning of § 401(d) of
the Nationality Act. Pp. 343 U. S.
(e) Section 402 creates a rebuttable presumption that a national
in petitioner's category expatriates himself when he remains for
six months or longer in a foreign state of which he or either of
his parents shall have been a national; but that presumption was
rebutted by the showing that petitioner was not expatriated under §
401(c) or (d). P. 343 U. S.
(f) If there was any error in the judge's charge to the jury
that the only methods of expatriation are those contained in § 401,
it was harmless error, since petitioner tendered no question of
fact which was inadmissible under § 401 and since the judge charged
that he could not be convicted if he honestly believed that he was
no longer a citizen of the United States. Pp. 343 U. S.
2. Notwithstanding his dual nationality and his residence in
Japan, petitioner owed allegiance to the United States, and can be
punished for treasonable acts voluntarily committed. Pp.
343 U. S.
(a) Since the definition of treason in Art. III, § 3 of the
Constitution contains no territorial limitation, an American
citizen living beyond the territorial limits of the United States
can be guilty of treason against the United States. Pp.
343 U. S.
(b) Petitioner was held accountable by the jury only for
performing acts of hostility toward this country which he was not
required by Japan to perform. Pp. 343 U. S.
(c) An American citizen owes allegiance to the United States
wherever he may reside. Pp. 343 U. S.
3. Each of the overt acts of which petitioner was convicted was
properly proven by two witnesses, and each of them showed that
petitioner gave aid and comfort to the enemy. Pp. 343 U. S.
(a) Two overt acts (abusing American prisoners for the purpose
of getting more work out of them in producing war materials for the
enemy) qualified as overt acts within the constitutional standard
of treason, since they gave aid and comfort to the enemy,
Page 343 U. S. 719
though their contribution to the enemy's war effort was minor.
Pp. 343 U. S.
(b) The other six overt acts (cruelty to American prisoners of
war) gave aid and comfort to the enemy by helping to make all the
prisoners fearful, docile, and subservient, reducing the number of
guards needed, and requiring less watching -- all of which
encouraged the enemy and advanced his interests. Pp. 343 U. S.
(c) The overt acts were sufficiently proven by two witnesses,
since each overt act was testified to by at least two witnesses who
were present and saw or heard that to which they testified, and any
disagreement among them was not on what took place, but on
collateral details. P. 343 U. S.
4. The evidence was sufficient to prove that petitioner was
guilty of voluntarily "adhering the enemy." Pp. 343 U. S.
5. The treasonable actions of petitioner were so flagrant and
persistent that it cannot be said that the death sentence imposed
by the trial judge was so severe as to be arbitrary. Pp.
343 U. S.
190 F.2d 506 affirmed.
In a Federal District Court, petitioner was convicted of treason
and sentenced to death. See 96 F.
. The Court of Appeals affirmed. 190 F.2d 506. This
Court granted certiorari. 342 U.S. 932. Affirmed,
343 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, a national both of the United States and of Japan,
was indicted for treason, the overt acts relating to his treatment
of American prisoners of war. He was
Page 343 U. S. 720
convicted of treason after a jury trial,
see 96 F. Supp.
, and the judgment of conviction was affirmed. 190 F.2d 506.
The case is here on certiorari. 342 U.S. 932.
The important question that lies at the
threshold of the case relates to expatriation. Petitioner was born
in this country in 1921 of Japanese parents who were citizens of
Japan. He was thus a citizen of the United States by birth,
Amendment XIV, § 1 and, by reason of Japanese law, a national of
Japan. See Hirabayashi v. United States, 320 U. S.
, 320 U. S.
In 1939, shortly before petitioner turned 18 years of age, he
went to Japan with his father to visit his grandfather. He traveled
on a United States passport, and, to obtain it, he took the
customary oath of allegiance. In 1940, he registered with an
American consul in Japan as an American citizen. Petitioner
remained in Japan, his father returning to this country. In March,
1941, he entered Meiji University and took a commercial course and
military training. In April, 1941, he renewed his United States
passport, once more taking the oath of allegiance to the United
States. During this period, he was registered as an alien with the
Japanese police. When war was declared, petitioner was still a
student at Meiji University. He became of age in 1942, and
completed his schooling in 1943, at which time it was impossible
for him to return to the United States. In 1943, he registered in
the Koseki, a family census register. [Footnote 1
] Petitioner did not join the Japanese Army, nor
serve as a soldier. Rather, he obtained employment as an
interpreter with the Oeyama Nickel Industry Co., Ltd., where he
worked until Japan's surrender. He was hired to interpret
communications between the Japanese and the
Page 343 U. S. 721
prisoners of war who were assigned to work at the mine and in
the factory of this company. The treasonable acts for which he was
convicted involved his conduct toward American prisoners of
In December, 1945, petitioner went to the United States consul
at Yokohama and applied for registration as an American citizen. He
stated under oath that he was a United States citizen and had not
done various acts amounting to expatriation. He was issued a
passport, and returned to the United States in 1946. Shortly
thereafter, he was recognized by a former American prisoner of war,
whereupon he was arrested and indicted and tried for treason.
Petitioner defended at his trial on the ground that he had
renounced or abandoned his United States citizenship, and was
expatriated. Congress has provided by § 401 of the Nationality Act
of 1940, 54 Stat. 1137, 1168, as amended, 8 U.S.C. § 801, that a
national of the United States may lose his nationality in certain
prescribed ways. It provides in relevant part,
"A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by: "
"(a) Obtaining naturalization in a foreign state . . . ; or"
"(b) Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state; or"
"(c) Entering, or serving in, the armed forces of a foreign
state unless expressly authorized by the laws of the United States,
if he has or acquires the nationality of such foreign state;
"(d) Accepting, or performing the duties of, any office, post or
employment under the government of a
Page 343 U. S. 722
foreign state or political subdivision thereof for which only
nationals of such state are eligible. . . ."
The court charged that, if the jury found that petitioner had
lost his American citizenship prior to or during the period
specified in the indictment, they must acquit him even if he did
commit the overt acts charged in the indictment, since his duty of
allegiance would have ceased with the termination of his American
citizenship. The court further charged that, if the jury should
find beyond a reasonable doubt that, during the period in question,
petitioner was an American citizen, he owed the United States the
same duty of allegiance as any other citizen. The court also
charged that, even though the jury found that petitioner was an
American citizen during the period in question, they must acquit
him if, at the time of the overt acts, petitioner honestly believed
he was no longer a citizen of the United States, for then he could
not have committed the overt acts with treasonable intent. The
special verdicts of the jury contain, with respect to each overt
act as to which petitioner was found guilty, an affirmative answer
to an interrogatory that he was at that time "an American citizen
owing allegiance to the United States, as charged in the
Petitioner asks us to hold as a matter of law that he had
expatriated himself by his acts and conduct beginning in 1943. He
places special emphasis on the entry of his name in the Koseki.
Prior to that time, he had been registered by the police as an
alien. There is evidence that, after that time, he was considered
by Japanese authorities as a Japanese, and that he took action
which might give rise to the inference that he had elected the
Japanese nationality: he took a copy of the Koseki to the police
station and had his name removed as an alien; he changed his
registration at the University from American to Japanese and his
address from California to Japan;
Page 343 U. S. 723
he used the Koseki entry to get a job at the Oeyama camp; he
went to China on a Japanese passport, see United States ex rel.
Scimeca v. Husband,
6 F.2d 957, 958; he accepted labor draft
papers from the Japanese government; he faced the east each morning
and paid his respects to the Emperor.
The difficulty with petitioner's position is that the
implications from the acts, which he admittedly performed, are
ambiguous. He had a dual nationality, a status long recognized in
the law. [Footnote 2
Perkins v. Elg, 307 U. S. 325
307 U. S.
-349. The concept of dual citizenship recognizes that
a person may have and exercise rights of nationality in two
countries and be subject to the responsibilities of both.
Page 343 U. S. 724
The mere fact that he asserts the rights of one citizenship does
not, without more, mean that he renounces the other. In this
setting, petitioner's registration in the Koseki might reasonably
be taken to mean no more than an assertion of some of the rights
which his dual citizenship bestowed on him. The deposition of the
Attorney General of Japan states that the entry of a person's name
in the Koseki is taken to mean that one has Japanese nationality.
But, since petitioner already had Japanese nationality, he
obviously did not acquire it by the act of registration. The
Attorney General of Japan further deposed that all Japanese
nationals, whether or not born abroad, are duty bound to Japanese
allegiance, and that registering in the Koseki is "not necessarily
a formal declaration of allegiance, but merely a reaffirmation of
an allegiance to Japan which already exists." From this, it would
appear that the registration may have been nothing more than the
disclosure of a fact theretofore not made public.
Conceivably, it might have greater consequences. In other
settings, it might be the equivalent of "naturalization" within the
meaning of § 401(a) of the Act, or the making of "an affirmation or
other formal declaration of allegiance" to Japan within the meaning
of § 401(b). Certainly it was relevant to the issue of
expatriation. But we cannot say as a matter of law that it was a
renunciation of petitioner's American citizenship. What followed
might reasonably be construed to mean no more than recognition of
the Japanese citizenship which petitioner had acquired on birth --
nationality that was publicly disclosed for the first time in Japan
by his registration in the Koseki. Cf.
3 Hackworth, Digest
of International Law (1942), p. 373. The changing of his
registration at the police station and at the University, so as to
conform those records to the public record of his
Page 343 U. S. 725
Japanese nationality, might reasonably mean no more than
announcing the fact of his Japanese nationality to the interested
As we have said, dual citizenship presupposes rights of
citizenship in each country. It could not exist if the assertion of
rights or the assumption of liabilities of one were deemed
inconsistent with the maintenance of the other. For example, when
one has a dual citizenship, it is not necessarily inconsistent with
his citizenship in one nation to use a passport proclaiming his
citizenship in the other. See
3 Hackworth, supra,
p. 353. Hence, the use by petitioner of a Japanese passport on his
trip to China, his use of the Koseki entry to obtain work at the
Oeyama camp, the bowing to the Emperor, and his acceptance of labor
draft papers from the Japanese government might reasonably mean no
more than acceptance of some of the incidents of Japanese
citizenship made possible by his dual citizenship.
Those acts, to be sure, were colored by various other acts and
statements of petitioner. He testified, for example, that he felt
no loyalty to the United States from about March, 1943, to late
1945. There was evidence that he boasted that Japan was winning and
would win the war, that he taunted American prisoners of war with
General MacArthur's departure from the Philippines, that he
expressed his hatred toward things American and toward the
prisoners as Americans. That was in 1943 and 1944. This attitude
continued into 1945, although, in May or June, 1945, shortly before
Japan's surrender, he was saying he did not care "which way the war
goes, because I am going back to the States anyway."
On December 31, 1945, he applied for registration as an American
citizen, and in that connection he made an affidavit in which he
stated that he had been "temporarily residing" in Japan since
August 10, 1939; that he came to
Page 343 U. S. 726
Japan to study Japanese; that he possessed dual nationality from
birth, but that his name was not entered in the census register
until March 8, 1943, and that he had "never been naturalized, taken
an oath of allegiance, or voted as a foreign citizen or subject, or
in any way held myself out as such."
The United States foreign service officer concluded that
petitioner had overcome the presumption of expatriation. He
"In 1943, his possession of Japanese nationality was made a
matter of record by the entry of his name into his uncle's Family
Census Register. He states that this action was taken under severe
pressure by the Japanese police and by his uncle, on whom he was
financially dependent after his supply of funds from the U.S. was
cut off; this office has reason to believe this statement."
These representations led to the issuance of an American
passport on which he returned to the United States in 1946.
If petitioner were to be believed, in December, 1945, he never
once renounced his American citizenship. If what petitioner now
says were his thoughts, attitudes, and motives in 1943 and 1944 and
in part of 1945, he did intend to renounce his American
citizenship. If the latter version were believed by the jury, the
signing of the family register, and the changing of his
registration at the police station and at the University would
assume different significance; those acts might then readily
suggest the making of a declaration of allegiance to Japan within
the meaning of § 401(b). If, on the other hand, petitioner were to
be believed when, in 1945, he stated he had not done acts by which
he renounced his American citizenship, then the Koseki incident and
the changes in his police and University registration could
reasonably be taken as amounting to no more than a public
declaration of an established and preexisting fact, viz.,
Page 343 U. S. 727
nationality. We think, in other words, that the question whether
petitioner had renounced his American citizenship was, on this
record, peculiarly for the jury to determine. The charge was that
the jury must be satisfied beyond a reasonable doubt that, during
the period specified in the indictment, petitioner was an American
citizen. We cannot say there was insufficient evidence for that
Petitioner concedes he did not enter the armed services of Japan
within the meaning of § 401(c) of the Act, but claims that, during
his tour of duty at the Oeyama camp, he was "serving in" the
Japanese armed services within the statutory meaning of those
words. In this connection, he also argues that his work in the
Oeyama camp was the performance of the duties of an "office, post,
or employment under the government" of Japan "for which only
nationals of such state are eligible" within the meaning of §
401(d) of the Act.
The Oeyama Nickel Industry Co., Ltd., was a private company,
organized for profit. It was engaged in producing metals used for
war under contracts with the Japanese government. In 1944, it was
designated by the Japanese government as a munitions corporation,
and, under Japanese law, civilian employees were not allowed to
change or quit their employment without the consent of the
government. The company's mine and factory were manned in part by
prisoners of war. They lived in a camp controlled by the Japanese
army. Though petitioner took orders from the military, he was not a
soldier in the armed services; he wore insignia on his uniform
distinguishing him as nonmilitary personnel; he had no duties to
perform in relation to the prisoners except those of an
interpreter. His employment was as an interpreter for the Oeyama
Nickel Industry Co., Ltd., a private company. The regulation of the
Page 343 U. S. 728
the Japanese government, the freezing of its labor force, the
assignment to it of prisoners of war under military command, were
incidents of a war economy. But we find no indication that the
Oeyama Company as nationalized, or its properties seized and
operated by the government. The evidence indicates that it was a
part of a regimented industry, but it was an organization operating
for private profit under private management. We cannot say that
petitioner's status as an employee of a private company was changed
by that regimentation of the industry.
It would require a broad and loose construction of "office,
post, or employment under the government of a foreign state," as
those words are used in § 401(d), to hold that petitioner had
sacrificed his American citizenship by accepting or performing the
duties of interpreter. We are thinking not only of this case, but
of other cases to which § 401(d) is applicable. We are reluctant to
resolve the ambiguity contained in § 401(d) so as to provide
treacherous ground for the loss of the rights of citizenship by the
Nisei. As the Court said in Perkins v. Elg, supra,
307 U. S. 337
"Rights of citizenship are not to be destroyed by an ambiguity." It
would be harsh indeed to hold that a Nisei, marooned in Japan when
World War II broke out, would be expatriated merely by working for
a private company whose business was supervised and whose labor
supply was controlled by the Japanese government in time of war.
That would give § 401(d) a broad, pervasive sweep. Section 401(d)
not only makes acceptance of "any office, post, or employment under
the government of a foreign state" the basis of expatriation; it
also makes "performing the duties" of any such office, post, or
employment a ground for expatriation. One who was drafted for such
service would be included as well as one who volunteered. In time
of war, that would bring most employees of private companies within
Page 343 U. S. 729
zone in view of the hold which a war economy places on industry
and the supervision and control which it asserts. We therefore
incline to a construction of the words "under the government of a
foreign state" to mean the relationship that public employees have
with their government or with the bureaus or corporations which are
government owned and controlled. Support for that narrower meaning
is found in the legislative history. [Footnote 3
Page 343 U. S. 730
Section 402 [Footnote 4
creates a presumption [Footnote
] that a national in Kawakita's category who remains six
months or longer within a foreign state of which he or either of
his parents shall have been a national shall be presumed to have
expatriated himself under § 401(c) or (d). Section 402 does not
enlarge § 401(c) or (d); it creates a rebuttable presumption of
expatriation, and, when it is shown that the citizen did no act
which brought him under § 401(c) or (d), the presumption is
overcome. On that showing, the person never loses his American
nationality. See Dos Reis ex rel. Camara v. Nicolls,
F.2d 860, 868. In other words, once it was shown that petitioner
was not expatriated under § 401(c) or (d), the force of § 402 was
Section 408 provides,
"The loss of nationality under this Act shall result solely from
the performance by a national of the acts of fulfillment of the
conditions specified in this Act."
The District Court therefore charged
Page 343 U. S. 731
the jury that the only methods of expatriation are those
contained in § 401. Petitioner claims that charge was error. He
argues that § 408 is applicable only to the loss of nationality
"under this Act," and that there are other methods of losing it. He
refers to R.S. § 1999, 8 U.S.C. § 800, which survived the
Nationality Act of 1940 and is not part of it, and which proclaims
the right of expatriation as "a natural and inherent right of all
people." [Footnote 6
] We do not
undertake to resolve the question, for the reason that it is not
squarely presented. On this issue of expatriation, petitioner
tenders no question of fact which was inadmissible under § 401.
Petitioner merely says that, "by his conduct," he had "expatriated
himself from United States citizenship." But he has failed to show
that that issue is narrower than or different from the issue
presented on this record under § 401(b) -- the declaration of
allegiance to Japan. As we have indicated, the major factual
problem on the issue of expatriation revolved around the entry of
petitioner's name in the Koseki. All of the other conduct referred
to, including the paying of respects to the Emperor and the
expressions of hostility to the United States, were relevant and
admissible on that issue. If it could not, in the eyes of the jury,
Page 343 U. S. 732
signing of the Koseki and the changes in the registration that
followed that event tantamount to renunciation under § 401(b), it
hardly could do so standing alone. Hence, if there was error in the
charge, it was harmless.
That conclusion is reinforced by another aspect of the case.
Petitioner testified that he believed when he signed the Koseki
that he lost his American citizenship. He testified that, during
the period charged in the indictment, he believed that he was no
longer an American citizen. The District Court charged that, if the
jury found (1) defendant had committed any overt act charged in the
indictment, and (2) he was an American citizen, yet they should not
convict if they further found that, at the time, "the defendant
honestly believed that he was no longer a citizen of the United
States," since, in that event, he could not have committed the act
with treasonable intent. Under this charge, the belief of
petitioner that he had renounced his American citizenship was
sufficient to acquit if the jury believed him. His belief could not
have been made more relevant to the issue of guilt if it had been
admitted as proof of expatriation separate and apart from the other
grounds specified in § 401 of the Act. Hence, even if we assume,
that the court was wrong in charging that § 408
made the grounds specified in § 401 exclusive, the error was
Petitioner contends that a person who has a
dual nationality can be guilty of treason only to the country where
he resides, not to the other country which claims him as a
national. More specifically, he maintains that, while petitioner
resided in Japan, he owed his paramount allegiance to that country,
and was indeed, in the eyes of our law, an alien enemy.
The argument in its broadest reach is that treason against the
United States cannot be committed abroad or in enemy territory, at
least by an American with a dual nationality residing in the other
Page 343 U. S. 733
claims him as a national. The definition of treason, however,
contained in the Constitution contains no territorial
"Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort. . . ."
Art. III, § 3. A substitute proposal containing some territorial
limitations was rejected by the Constitutional Convention.
2 Farrand, The Records of the Federal Convention, pp.
347-348. The Act of April 30, 1790, 1 Stat. 112, which was passed
by the first Congress defining the crime of treason, likewise
contained no territorial limitation, and that legislation is
contained in substantially the same form in the present statute. 18
U.S.C. (Supp. IV) § 2381. [Footnote
] We must therefore reject the suggestion that an American
citizen living beyond the territorial limits of the United States
may not commit treason against them. See Chandler v. United
171 F.2d 921, 929-930; Burgman v. United
88 U.S.App.D.C. 184, 185, 188 F.2d 637, 640.
One who has a dual nationality will be subject to claims from
both nations, claims which at times may be competing or
conflicting. The nature of those claims has recently been stated as
"A person with dual nationality may be subjected to taxes by
both states of which he is a national. He is not entitled to
protection by one of the two states of which he is a national while
in the territorial jurisdiction of the other. Either state not at
war with the other may insist on military service when the person
is present within its territory. In time
Page 343 U. S. 734
of war, if he supports neither belligerent, both may be
aggrieved. If he supports one belligerent, the other may be
aggrieved. One state may be suspicious of his loyalty to it and
subject him to the disabilities of an enemy alien, including
sequestration of his property, while the other holds his conduct
Orfield, The Legal Effects of Dual Nationality, 17
Geo.Wash.L.Rev. 427, 429.
Dual nationality, however, is the unavoidable consequence of the
conflicting laws of different countries. See
pp. 352 et seq.
One who becomes a citizen
of this country by reason of birth retains it even though, by the
law of another country, he is also a citizen of it. He can, under
certain circumstances, be deprived of his American citizenship
through the operation of a treaty or an act of Congress; he can
also lose it by voluntary action. See Perkins v. Elg,
at 307 U. S. 329
But American citizenship, until lost, carries obligations of
allegiance, as well as privileges and benefits. For one who has a
dual status, the obligations of American citizenship may at times
be difficult to discharge. An American who has a dual nationality
may find himself in a foreign country when it wages war on us. The
very fact that he must make a livelihood there may indirectly help
the enemy nation. In these days of total war, manpower becomes
critical, and everyone who can be placed in a productive position
increases the strength of the enemy to wage war. Of course, a
person caught in that predicament can resolve the conflict of duty
by openly electing one nationality or the other and becoming either
an alien enemy of the country where he resides or a national of it
alone. Yet, so far as the existing law of this country is
concerned, he need not make that choice, but can continue his dual
citizenship. It has been stated in an administrative ruling of the
State Department that a person with a dual citizenship who lives
abroad in the other country claiming him
Page 343 U. S. 735
as a national owes an allegiance to it which is paramount to the
allegiance he owes the United States. [Footnote 8
] That is a far cry from a ruling that a citizen
in that position owes no allegiance to the United States. Of
course, an American citizen who is also a Japanese national living
in Japan has obligations to Japan necessitated by his residence
there. There might conceivably be cases where the mere
nonperformance of the acts complained of would be a breach of
Japanese law. He may have employment which requires him to perform
certain acts. The compulsion may come from the fact that he is
drafted for the job, or that his conduct is demanded by the laws of
Japan. He may be coerced by his employer or supervisor or by the
force of circumstances to do things which he has no desire or heart
to do. That was one of petitioner's defenses in this case. Such
acts -- if done voluntarily and willfully -- might be treasonable.
But, if done under the compulsion of the job or the law or some
other influence, those acts would not rise to the gravity of that
offense. The trial judge recognized the distinction in his charge
when he instructed the jury to acquit petitioner if he did not do
the acts willingly or voluntarily,
"but so acted only because performance of the duties of his
employment required him to do so or because of other coercion or
In short, petitioner was held accountable by the jury only for
performing acts of hostility toward this country which he was not
required by Japan to perform.
If he can retain that freedom and still remain an American
citizen, there is not even a minimum of allegiance which he owes to
the United States while he resides in the enemy country. That
conclusion is hostile to the concept of citizenship as we know it,
and it must be rejected. One who wants that freedom can get it
Page 343 U. S. 736
renouncing his American citizenship. He cannot turn it into a
fair weather citizenship, retaining it for possible contingent
benefits but meanwhile playing the part of the traitor. An American
citizen owes allegiance to the United States wherever he may
Circumstances may compel one who has a dual nationality to do
acts which otherwise would not be compatible with the obligations
of American citizenship. An American with a dual nationality who is
charged with playing the role of the traitor may defend by showing
that force or coercion compelled such conduct. The jury rejected
that version of the facts which petitioner tendered. He is
therefore forced to maintain that, being a national and a resident
of Japan, he owed no allegiance to the United States even though he
was an American citizen. That proposition we reject.
Article III, § 3 of the Constitution
"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."
So far as material here, the crime thus consists of two elements
-- adhering to the enemy and giving him aid and comfort. See
Cramer v. United States, 325 U. S. 1
325 U. S. 29
may think disloyal thoughts and have his heart on the side of the
enemy. Yet if he commits no act giving aid and comfort to the
enemy, he is not guilty of treason. He may, on the other hand,
commit acts which do give aid and comfort to the enemy, and yet not
be guilty of treason, as, for example, where he acts impulsively,
with no intent to betray. Two witnesses are required not to the
disloyal and treacherous intention, but to the same overt act.
See Cramer v. United States, supra,
at 325 U. S.
Page 343 U. S. 737
The jury found petitioner guilty of eight overt acts. [Footnote 9
] One overt act alone,
properly proved, would be sufficient to sustain the conviction, all
other elements of the crime of treason being established. Since the
jury returned special verdicts and findings as to each of the eight
overt acts, we could not upset the judgment of conviction unless
all eight were insufficient. See Haupt v. United States,
330 U. S. 631
330 U. S. 641
We conclude, however, that each of the eight overt acts was
Each of these related to his treatment of American prisoners of
war at the Oeyama camp. These prisoners were mostly from Bataan,
and were in weakened condition on their arrival. All were below
normal weight; many of them were suffering from disease; most of
them were unfit for work. They were assigned to work either in the
factory or at the mine of the Oeyama Company. They were under the
supervision of the Japanese army. Petitioner was a civilian
interpreter, as we have said. There was evidence that he had no
authority and no duties, as respects the prisoners, except as an
interpreter. Yet the record shows a long, persistent, and
continuous course of conduct directed against the American
prisoners and going beyond any conceivable duty of an
After the American prisoners arrived, the Japanese authorities
raised the quota of ore which they were expected to produce each
day. The quota had been between 120 and 165 carloads a day; now it
was increased to 200. A part of petitioner's conduct was swearing
at the prisoners, beating them, threatening them, and punishing
them for not working faster and harder, for failing to fill their
quotas, for resting, and for slowing down.
There were two overt acts in this category. Overt act (a) as
alleged in the indictment and developed at the
Page 343 U. S. 738
trial was that, in May, 1945, petitioner kicked a prisoner named
Toland, who was ill, because he slowed down in lifting pieces of
ore rocks from the tracks at the factory to keep the tracks clear.
Toland had suffered a dizzy spell and slowed down. Petitioner told
him to get to work, and thereupon kicked him, causing him to fall
flat and to cut his face and hand. Another prisoner wanted to pick
Toland up; but petitioner would not let him. Overt act (j), as
alleged in the indictment and developed at the trial, was that, in
May, 1945, petitioner struck a prisoner named Armellino, who was
weak and emaciated, in order to make him carry more lead. Armellino
had been carrying only one bucket of lead. Petitioner thereupon
struck him, causing him to fall. When he got up, petitioner forced
him to carry two buckets, pushing him along.
Each of these acts was aimed at getting more work out of the
prisoners -- work that produced munitions of war for the enemy, or
so the jury might have concluded. The increased efforts charged in
overt acts (a) and (j) were small; the contribution to the war
effort of the enemy certainly was minor, not crucial. Harboring the
spy in Haupt v. United States, supra,
insignificant in the total war effort of Germany during the recent
war. Yet it was a treasonable act. It is the nature of the act that
is important. The act may be unnecessary to a successful completion
of the enemy's project; it may be an abortive attempt; it may in
the sum total of the enemy's effort be a casual and unimportant
step. But if it gives aid and comfort to the enemy at the immediate
moment of its performance, it qualifies as an overt act within the
constitutional standard of treason. As Chief Justice Marshall said
in Ex parte
4 Cranch 75, 8 U. S. 126
"If war be actually levied, . . . all those who perform any
part, however minute, or however remote from the scene of action,
and who are actually leagued in the general
Page 343 U. S. 739
conspiracy, are to be considered as traitors."
These two overt acts, if designed to speed up Japan's war
production, plainly gave aid and comfort to the enemy in the
The other overt acts were acts of cruelty to American prisoners
Overt act (b) as alleged in the indictment and developed at the
trial was that one Grant, an American prisoner, had been seen by a
Japanese sentry coming out of the Red Cross store room with a
package of cigarettes. He was thereupon thrown into a cesspool by a
Japanese sergeant, ordered out, and knocked back repeatedly. While
Grant was in the cesspool, petitioner hit him over the head with a
wooden pole or sword, told him to squat down, and tried to force
him to sit in the water. When Grant was taken from the pool, he was
blue, his teeth were chattering, and he could not straighten
Overt act (c), as alleged in the indictment and developed at the
trial, was that, in December, 1944, petitioner and Japanese guards
lined up about 30 American prisoners and, as punishment for making
articles of clothing out of blankets, struck them and forced them
to strike each other. Petitioner hit prisoners who, he thought, did
not hit each other hard enough.
Overt act (d) as alleged in the indictment and developed at the
trial was that petitioner imposed cruelty on O'Connor, an American
prisoner who was sick and had stolen Red Cross supplies. He was
knocked into the cesspool by Japanese soldiers and then repeatedly
hit and thrown back into the pool by them and by petitioner, with
the result that O'Connor temporarily lost his reason.
Overt act (g), as alleged in the indictment and developed at the
trial, was that, in July or August, 1945, a Japanese sergeant
compelled a work detail of American prisoners who had returned
early to run around a quadrangle. Petitioner forced two of the
Page 343 U. S. 740
were unable to run fast because of illness to run the course an
additional four and six times, respectively. Petitioner threw
pebbles and sod at them to make them run faster.
Overt act (i), as alleged in the indictment and developed at the
trial, was that, in December, 1944, petitioner ordered one Carter,
an American prisoner of war, to carry a heavy log up an ice-overed
slope at the mine. When Carter slipped, fell, and was injured,
petitioner, although he knew Carter was badly hurt and needed
attention, delayed his removal back to camp for approximately five
Overt act (k), as alleged in the indictment and developed at the
trial, was that, in the spring or summer of 1945, petitioner
participated in the inhuman punishment of one Shaffer, an American
prisoner of war. Shaffer was forced to kneel on bamboo sticks on a
platform with a bamboo stick inside the joints of his knees, and to
keep his arms above his head holding a bucket of water, and later a
log. When Shaffer became tired and bent his elbows, petitioner
would strike him. When Shaffer leaned over and spilled some water,
petitioner would take the bucket, throw the water on Shaffer, and
have the bucket refilled. Then Shaffer was required to hold up a
log. It fell on him, causing a gash. After the wound was treated,
petitioner placed bamboo sticks on the ground and once more made
Shaffer kneel on them and go through the same performance.
As we have said, petitioner was not required by his employment
to inflict punishment on the prisoners. His duties regarding the
prisoners related solely to the role of interpreter. His acts of
cruelty toward the prisoners were over and beyond the call of duty
of his job, or so the jury might have found. We cannot say as a
matter of law that petitioner did these acts under compulsion. He
seeks, however, to find protection under Japanese municipal law. It
is difficult to see how that argument helps
Page 343 U. S. 741
petitioner. The source of the law of treason is the
Constitution. If an American citizen is a traitor by the
constitutional definition, he gains no immunity because the same
acts may have been unlawful under the law of the country where the
acts were performed. Treason is a separate offense; treason can be
committed by one who scrupulously observes the laws of other
nations, and his acts may be nonetheless treasonable though the
same conduct amounts to a different crime. It would take a long
chapter to relate the numerous acts that supplement the crime of
treason and build different and lesser crimes out of the same or
related acts. See Cramer v. United States, supra,
325 U. S. 45
no matter the reach of the legislative power in defining other
crimes, the constitutional requirements for treason remain the
same. The crime of treason can be taken out of the Constitution by
the processes of amendment, but there is no other way to modify or
The jury found that each of the six overt acts of cruelty
actually gave aid and comfort to the enemy. We agree. These were
not acts innocent and commonplace in appearance and gaining
treasonable significance only by reference to other evidence, as in
Cramer v. United States, supra.
They were acts which
showed more than sympathy with the enemy, more than a lack of zeal
in the American cause, more than a breaking of allegiance to the
United States. They showed conduct which actually promoted the
cause of the enemy. They were acts which tended to strengthen the
enemy and advance its interests. These acts, in their setting,
would help make all the prisoners fearful, docile, and subservient.
Because of these punishments, the prisoners would be less likely to
be troublesome; they would need fewer guards; they would require
less watching. These acts would tend to give the enemy the "heart
and courage to go on with the war." That was the test laid down by
Lord Chief Justice Treby
Page 343 U. S. 742
in Trial of Captain Vaughan,
13 How.St.Tr. 485, 533. It
is a sufficient measure of the overt act required by the
Constitution. Cramer v. United States, supra,
325 U. S. 28
All of the overt acts tended to strengthen Japan's war efforts; all
of them encouraged the enemy and advanced its interests.
Petitioner contends that the overt acts were not sufficiently
proved by two witnesses. Each witness who testified to an overt act
was, however, an eye-itness of the commission of that act. They
were present, and saw or heard that to which they testified. In
some instances, there was a variance as to details. Thus, overt act
(b) was testified to by thirteen witnesses. They did not all agree
as to the exact date when the overt act occurred, whether in April,
May, or June, 1945. But they all agreed that it did take place,
that Grant was the victim, and that it happened between 3 and 6
o'clock in the afternoon, and most of them agreed that petitioner
struck Grant. The Court of Appeals concluded, and we agree, that
the disagreement among the witnesses was not on what took place,
but on collateral details. "While two witnesses must testify to the
same act, it is not required that their testimony be identical."
Haupt v. United States, supra,
at 330 U. S. 640
There is no doubt that, as respects each of the eight overt acts,
the witnesses were all talking about the same incident, and were
describing the same conduct on petitioner's part.
Petitioner challenges the sufficiency of the
evidence to show the second element in the crime of treason --
adhering to the enemy. The two-itness requirement does not extend
to this element. Cramer v. United States, supra,
325 U. S. 31
Intent to betray must be inferred from conduct. It may be inferred
from the overt acts themselves, Cramer v. United States,
at 325 U. S. 31
from the defendant's own statements of his attitudes toward
Page 343 U. S. 743
the war effort, Haupt v. United States, supra,
330 U. S. 642
and from his own professions of loyalty to Japan.
Evidence of what petitioner said during this period concerning
the war effort and his professions of loyalty, if believed by the
jury, leaves little doubt of his traitorous intent. "It looks like
MacArthur took a run-ut powder on you boys;" "The Japanese were a
little superior to your American soldiers;" "You Americans don't
have no chance. We will win the war." "Well, you guys needn't be
interested in when the war will be over, because you won't go back;
you will stay here and work. I will go back to the States, because
I am an American citizen;" "We will kill all you prisoners right
here anyway, whether you win the war or lose it. You will never get
to go back to the States;" "I will be glad when all of the
Americans is dead, and then I can go home and live happy." These
are some of the statements petitioner made aligning himself with
the Japanese cause. There was also evidence that he said that the
prisoners would never go back to their wives and their families,
that Japan would win the war, and that he would return to the
United States as an important man, that Japan would win if it took
100 years, that the Japanese were superior to the Americans, and,
if the American Army had Japanese officers, they could whip the
world, that there were more American boys who would be available to
do the work if the present prisoners were too weak to work. And, on
the day the work at the camp ended after Japan surrendered, he
commented, "You American bastards will be well fed," or "you will
be getting fat from now on."
There was evidence that, in May or June, 1945, petitioner said,
"It don't make a damn to me which way the war goes, because I am
going back to the States anyway." At the trial, he said he felt no
loyalty to the United States during the period from March, 1943, to
Page 343 U. S. 744
and that he intended to do everything he could to help Japan. He
also testified that the first loyalty he felt to the United States,
following the entry of his name in the Koseki, was when he applied
for registration as an American citizen in December, 1945, and once
more took the oath of allegiance. Yet we have already seen that, in
connection with that application, he conceded his dual nationality
and the continuance of his American citizenship during his entire
stay in Japan.
If the versions of petitioner's words and conduct at the Oeyama
camp, testified to by the various witnesses, were believed, the
traitorous intent would be shown by overwhelming evidence.
Petitioner indeed conceded at the trial that he felt no loyalty to
the United States at this time, and had thrown his lot in with
Japan. Yet, at the end of the war, he had taken the oath of
allegiance to the United States, claiming he had been a United
States citizen all along. The issue of intent to betray, like the
citizenship issue, was plainly one for the jury to decide. We would
have to reject all the evidence adverse to petitioner and accept as
the truth his protestations when the shadow of the hangman's noose
was on him in order to save him from the finding that he did have
the intent to betray. That finding of the jury was based on its
conclusion that what he did was done willingly and voluntarily, and
not because the duty of his office or any coercion compelled him to
do it. The finding that he had an uncoerced and voluntary purpose
was amply supported by the evidence. Therefore, the second element
of the crime of treason was firmly established.
Other alleged errors are pressed upon us. But they are either
insubstantial or so adequately disposed of by the Court of Appeals
that we give them no notice, with one exception, and that relates
to the severity of the sentence. At the time of these offenses,
Congress had provided that one who is guilty of treason
"shall suffer death; or, at
Page 343 U. S. 745
the discretion of the court, shall be imprisoned not less than
five years and fined not less than $10,000, . . . and every person
so convicted of treason shall, moreover, be incapable of holding
any office under the United States. [Footnote 10
The trial judge imposed the death sentence. The argument is that
that sentence was so severe as to be arbitrary. It was, however,
within the statutory limits. Whether a sentence may be so severe
and the offense so trivial that an appellate court should set it
aside is a question we need not reach. The flagrant and persistent
acts of petitioner gave the trial judge such a leeway in reaching a
decision on the sentence that we would not be warranted in
interfering. Cf. Blockburger v. United States,
284 U. S. 299
284 U. S. 305
MR. JUSTICE FRANKFURTER, not having heard the argument, owing to
illness, took no part in the disposition of the case.
MR. JUSTICE CLARK took no part in the consideration or decision
of the case.
Blakemore, Recovery of Japanese Nationality as
Cause for Expatriation in American Law, 43 Am.J.Int'l L. 441,
For discussions of the subject of dual nationality,
See Talbot v.
3 Dall. 133, 3 U.S. 164
-165, 3 U.S. 169
; Inglis v.
Trustees of The Sailor's Snug Harbour,
3 Pet. 99,
28 U. S. 126
28 U. S. 157
28 U. S. 161
3 Pet. 242, 28 U. S. 247
28 U. S. 249
Perkins v. Elg, 307 U. S. 325
307 U. S. 329
307 U. S. 339
307 U. S.
-345; Hirabayashi v. United States,
320 U. S. 81
320 U. S. 97
Savorgnan v. United States, 338 U.
, 338 U. S. 500
United States ex rel. Scimeca v. Husband,
6 F.2d 957, 958;
Dos Reis ex rel. Camara v. Nicolls,
161 F.2d 860;
Attorney General v. Ricketts,
165 F.2d 193; Uyeno v.
Acheson, 96 F. Supp.
, 514-515; Tomasicchio v. Acheson, 98 F. Supp.
; Kondo v. Acheson, 98 F.
, 886-887; Hamamoto v.
Acheson, 98 F. Supp.
, 905; Boissonnas v. Acheson, 101 F.
, 147, 151-152; Di Girolamo v.
Acheson, 101 F.
, 382; Coumas v. Superior
Court, 31 Cal. 2d
, 192 P.2d 449; Doyle v. Ries,
208 Minn. 321, 293
N.W. 614; Ludlam v. Ludlam,
26 N.Y. 356, 376-377;
Lynch v. Clarke,
1 Sandf.Ch. (N.Y.) 583, 659, 677-679;
State ex rel. Phelps v. Jackson,
79 Vt. 504, 520, 65 A.
657, 661; Borchard, Diplomatic Protection of Citizens Abroad,
575-591; Flournoy, Dual Nationality and Election, 30 Yale L.J. 545,
693; Hackworth, Digest of International Law, Vol. III, pp, 352-377;
Hyde, International Law (2d ed.) Vol. 2, pp. 1131-1143; Moore,
International Law Digest, Vol. III, pp. 518-551; Nielsen, Some
Vexatious Questions Relating to Nationality, 20 Col.L.Rev. 840;
Oppenheim, International Law (7th ed., Lauterpacht), Vol. I, pp.
606-610; Orfield, The Legal Effects of Dual Nationality, 17
Geo.Wash.L.Rev. 427; Van Dyne, Citizenship of the United States,
The explanatory comments on the draft code of the Nationality
Laws transmitted with the message of the President on June 13,
1938, stated the following as respects § 401(c) and (d):
"With reference to subsections (c) and (d), attention is called
to the following statement in an opinion of Attorney General
Williams, dated August 20, 1873 (14 Op.Atty.Gen. 295, 297): "
" My opinion . . . is that, in addition to domicile and intent
to remain, such expressions or acts as amount to a renunciation of
United States citizenship and a willingness to submit to or adopt
the obligations of the country in which the person resides,
such as accepting public employment,
engaging in military
services, etc., may be treated by this Government as expatriation,
without actual naturalization. Naturalization is without doubt the
highest, but not the only evidence of expatriation."
(Italics added.) Codification of the Nationality Laws of the
United States, 76th Cong., 1st Sess., House Committee Print, p. 67.
Mr. Flournoy, speaking for the State Department at the hearings
Hearings on H.R. 6127, H.R. 9980, 76th Cong., 1st
Sess., pp. 131-132), described the provision that became § 401(d)
in the following way:
"It seems to me the object of that is fairly clear. A foreign
state has some position in its government
which can be
held only by its citizens, and an American accepts such a
and serves the foreign state and loses his American
nationality. That is intended particularly for cases of persons of
dual nationality, and there are not a great many of those cases.
There are not many thousands of them. . . . This is intended
particularly for those cases of dual nationality. Say an American
is born here, and he goes to and is living in Mexico, and he
takes a position in the Mexican Government
-- that is regarded
as equivalent to a choice of his citizenship, and he loses his
Section 402 reads as follows:
"A national of the United States who was born in the United
States or who was born in any place outside of the jurisdiction of
the United States of a parent who was born in the United States,
shall be presumed to have expatriated himself under subsection (c)
or (d) of section 401, when he shall remain for six months or
longer within any foreign state of which he or either of his
parents shall have been a national according to the laws of such
foreign state, or within any place under control of such foreign
state, and such presumption shall exist until overcome whether or
not the individual has returned to the United States. Such
presumption may be overcome on the presentation of satisfactory
evidence to a diplomatic or consular officer of the United States,
or to an immigration officer of the United States, under such rules
and regulations as the Department of State and the Department of
Justice jointly prescribe. However, no such presumption shall arise
with respect to any officer or employee of the United States while
serving abroad as such officer or employee, nor to any accompanying
member of his family."
Section 402 was adopted
"upon the special recommendation of the War Department with a
view to checking the activities of persons regarded as prospective
86 Cong.Rec. 11948.
R.S. § 1999, 8 U.S.C. § 800 provides:
"Whereas the right of expatriation is a natural and inherent
right of all people, indispensable to the enjoyment of the rights
of life, liberty, and the pursuit of happiness, and whereas, in the
recognition of this principle, this Government has freely received
emigrants from all nations, and invested them with the rights of
citizenship, and whereas it is claimed that such American citizens,
with their descendants, are subjects of foreign states, owing
allegiance to the governments thereof, and whereas it is necessary
to the maintenance of public peace that this claim of foreign
allegiance should be promptly and finally disavowed: Therefore any
declaration, instruction, opinion, order, or decision of any
officer of the United States which denies, restricts, impairs, or
questions the right of expatriation is declared inconsistent with
the fundamental principles of the Republic."
"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, and shall suffer death, or shall be imprisoned not less
than five years and fined not less than $10,000, and shall be
incapable of holding any office under the United States."
Abstract of Passport Laws and Precedents, Passport Division
Office Instructions, Code No. 1.6, May 19, 1941.
The form of interrogatory which the jury answered affirmatively
to each of the eight overt acts is printed in United States v.
Kawakita, 96 F. Supp.
18 U.S.C. (1946 ed.) § 2. For the present version see
note 7 supra.
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE BLACK and MR.
JUSTICE BURTON join, dissenting.
The threshold question in this case is whether petitioner
renounced his United States citizenship and became expatriated by
reason of acts committed in Japan during the War. Prior to 1943,
petitioner was regarded by Japanese authorities as an enemy alien.
In March, 1943, petitioner gave official notice of his allegiance
to Japan by having his name registered in the family Koseki.
Thereafter, petitioner had his name removed from police
Page 343 U. S. 746
records as an enemy alien, secured employment subject to
military control at a munitions plant, traveled to China on a
Japanese passport, and prayed daily for the Emperor's health and a
Japanese victory. These facts and petitioner's heinous treatment of
American prisoners of war, recited in the opinion of the Court,
convince us that petitioner, for over two years, was consistently
demonstrating his allegiance to Japan, not the United States. As a
matter of law, he expatriated himself as well as that can be
Petitioner's statements that he was still a citizen of the
United States -- made in order to obtain a United States passport
after Japan had lost the War -- cannot restore citizenship
renounced during the War. Because we conclude, on this record, that
petitioner's whole course of conduct was inconsistent with
retention of United States citizenship, we would reverse
petitioner's conviction of treason against the United States.