U.S. Supreme Court Cramer v. United States, 325 U.S. 1 (1945) Cramer v. United
States No. 13 Argued March 9, 1944 Reargued November 6,
1944 Decided April 23,
1945 325 U.S.
1 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND
CIRCUIT Syllabus 1. In a prosecution upon an indictment charging treason by
adhering to enemies of the United States, giving them aid and
comfort, in violation of § 1 of the Criminal Code, the overt act
relied on, of which the Constitution requires proof by two
witnesses, must be at least an act of the accused sufficient, in
its setting, to sustain a finding that the accused actually gave
aid and comfort to the enemy. P. 325 U. S. 34 .

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

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

															"1. Anthony Cramer, the defendant herein, on or about June 23,
1942, at the Southern District of New York and within the
jurisdiction of this Court, did meet with Werner Thiel and Edward
John Kerling, enemies of the United States, at the Twin Oaks Inn at
Lexington Avenue and 44th Street, in the City and New York, and did
confer, treat, and counsel with said Werner Thiel Page 325 U. S. 2 and Edward John Kerling for a period of time for the purpose of
giving and with intent to give aid and comfort to said enemies,
Werner Thiel and Edward John Kerling."

															"2. Anthony Cramer, the defendant herein, on or about June 23,
1942, at the Southern District of New York and within the
jurisdiction of this Court, did accompany, confer, treat, and
counsel with Werner Thiel, an enemy of the United States, for a
period of time at the Twin Oaks Inn at Lexington Avenue and 44th
Street, and at Thompson's Cafeteria on 42nd Street between
Lexington and Vanderbilt Avenues, both in the City and New York,
for the purpose of giving and with intent to give aid and comfort
to said enemy, Werner Thiel."

															By direct testimony of two or more witnesses, it was established
that Cramer met Thiel and Kerling on the occasions and at the
places charged; that they drank together, and that they engaged
long and earnestly in conversation. There was no proof by two
witnesses of what they said, or in what language they conversed; no
showing that Cramer gave them any information whatever of value to
their mission, or that he had any to give; no showing of any effort
at secrecy, they having met in public places, and no evidence that
Cramer furnished them shelter, sustenance, or supplies, or that he
gave them encouragement or counsel, or even paid for their
drinks. Held: that overt acts 1 and 2 as proved were
insufficient to support a finding that the accused had given aid
and comfort to the enemy, and therefore insufficient to support a
judgment of conviction. Pp. 325 U. S. 36 -37, 325 U. S. 48 .

															137 F.2d 888 reversed.

															Certiorari, 320 U.S. 730, to review the affirmance of a judgment
of conviction of treason. Page 325 U. S. 3 MR. JUSTICE JACKSON delivered the opinion of the Court.

															Anthony Cramer, the petitioner, stands convicted of violating
Section 1 of the Criminal Code, which provides:

															"Whoever, owing allegiance to the United States, levies war
against them or adheres to their enemies, giving them aid and
comfort within the United States or elsewhere, is guilty of
treason. [ Footnote 1 ]"

															Cramer owed allegiance to the United States. A German by birth,
he had been a resident of the United States since 1925, and was
naturalized in 1936. Prosecution resulted from his association with
two of the German saboteurs who, in June, 1942, landed on our
shores from enemy submarines to disrupt industry in the United
States and whose cases we considered in Ex parte Quirin, 317 U. S. 1 . One of
those, spared from execution, appeared as a government witness on
the trial of Cramer. He testified that Werner Thiel and Edward
Kerling were members of that sabotage crew, detailed their plot,
and described their preparations for its consummation.

															Cramer was conscripted into and served in the German Army
against the United States in 1918. After the war, he came to this
country, intending to remain permanently. So far as appears, he has
been of good behavior, never before in trouble with the law. He was
studious and intelligent, earning $45 a week for work in a boiler
room, and living accordingly.

															There was no evidence, and the Government makes no claim, that
he had foreknowledge that the saboteurs were coming to this
country, or that he came into association with them by
prearrangement. Cramer, however, had known intimately the saboteur
Werner Thiel while the latter lived in this country. They had
worked together, Page 325 U. S. 4 roomed together, and jointly had ventured in a small and
luckless delicatessen enterprise. Thiel early and frankly avowed
adherence to the National Socialist movement in Germany; he foresaw
the war, and returned in 1941 for the purpose of helping Germany.
Cramer did not do so. How much he sympathized with the doctrines of
the Nazi Party is not clear. He became at one time, in Indiana, a
member and officer of the Friends of New Germany, which was a
predecessor of the Bund. However, he withdrew in 1935, before it
became the Bund. He says there was some swindle about it that he
did not like, and also that he did not like their drilling and
"radical activities." In 1936, he made a trip to Germany, attended
the Olympic Games, and saw some of the Bundsmen from this country
who went there at that time for conferences with Nazi Party
officials. There is no suggestion that Cramer, while there, had any
such associations. He does not appear to have been regarded as a
person of that consequence. His friends and associates in this
country were largely German. His social life in New York City,
where he recently had lived, seems to have been centered around
Kolping House, a German-Catholic recreational center.

															Cramer retained a strong affection for his fatherland. He
corresponded in German with his family and friends there. Before
the United States entered the war, he expressed strong sympathy
with Germany in its conflict with other European powers. Before the
attack upon Pearl Harbor, Cramer openly opposed participation by
this country in the war against Germany. He refused to work on war
materials. He expressed concern about being drafted into our army
and "misused" for purposes of "world conquest." There is no proof,
however, except for the matter charged in the indictment, of any
act or utterance disloyal to this country after we entered the
war. Page 325 U. S. 5 Coming down to the time of the alleged treason, the main facts,
as related on the witness stand by Cramer, are not seriously in
dispute. He was living in New York, and, in response to a cryptic
note left under his door, which did not mention Thiel, he went to
the Grand Central Station. There, Thiel appeared. Cramer had
supposed that Thiel was in Germany, knowing that he had left the
United States shortly before the war to go there. Together, they
went to public places and had some drinks. Cramer denies that Thiel
revealed his mission of sabotage. Cramer said to Thiel that he must
have come to America by submarine, but Thiel refused to confirm it,
although his attitude increased Cramer's suspicion. Thiel promised
to tell later how he came to this country. Thiel asked about a girl
who was a mutual acquaintance and whom Thiel had engaged to marry
previous to his going to Germany. Cramer knew where she was, and
offered to and did write to her to come to New York, without
disclosing in the letter that Thiel had arrived. Thiel said that he
had in his possession about $3,600, but did not disclose that it
was provided by the German Government, saying only that one could
get money in Germany if he had the right connections. Thiel owed
Cramer an old debt of $200. He gave Cramer his money belt
containing some $3,600, from which Cramer was to be paid. Cramer
agreed to and did place the rest in his own safe deposit box,
except a sum which he kept in his room in case Thiel should want it
quickly.

															After the second of these meetings, Thiel and Kerling, who was
present briefly at one meeting, were arrested. Cramer's expectation
of meeting Thiel later and of bringing him and his fiancée together
was foiled. Shortly thereafter, Cramer was arrested, tried, and
found guilty. The trial judge at the time of sentencing said:

															"I shall not impose the maximum penalty of death. It does not
appear that this defendant Cramer was aware Page 325 U. S. 6 that Thiel and Kerling were in possession of explosives or other
means for destroying factories and property in the United States,
or planned to do that."

															"From the evidence, it appears that Cramer had no more guilty
knowledge of any subversive purposes on the part of Thiel or
Kerling than a vague idea that they came here for the purpose of
organizing pro-German propaganda and agitation. If there were any
proof that they had confided in him what their real purposes were,
or that he knew, or believed what they really were, I should not
hesitate to impose the death penalty."

															Cramer's case raises questions as to application of the
Constitutional provision that

															"Treason against the United States shall consist only in levying
War against them, or in adhering to their Enemies, giving them Aid
and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession
in open Court. [ Footnote
2 ]"

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

															"Nevertheless, a question may indeed be raised whether the
prosecution may lay as an overt act a step taken in execution of
the traitorous design, innocent in itself, and getting its
treasonable character only from some covert and undeclared intent.
It is true that, in prosecutions for conspiracy under our federal
statute, it is well settled that any step in performance of the
conspiracy is enough, though it is innocent except for its
relations to the agreement. I doubt very much whether that rule has
any application to the case of treason, where the requirement
affected the character of the pleading and proof, rather than
accorded a season of repentance before the crime should be
complete. Lord Reading, in his charge in Page 325 U. S. 7 Casement's Case, uses language which accords with my
understanding:"

															" Overt acts are such acts as manifest a criminal intention, and
tend towards the accomplishment of the criminal object. They are
acts by which the purpose is manifested and the means by which it
is intended to be fulfilled. [ Footnote 4 ]"

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

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

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

															As lower courts thus have taken conflicting positions, or, where
the issue was less clearly drawn, have dealt with the problem
ambiguously, [ Footnote 7 ] we
granted certiorari, [ Footnote
8 ] and, after argument at the October 1943 Term, we invited Page 325 U. S. 8 reargument addressed to specific questions. [ Footnote 9 ] Since our primary question here is the
meaning of the Constitutional provision, we turn to its solution
before considering its application to the facts of this case. I When our forefathers took up the task of forming an independent
political organization for New World society, no one of them
appears to have doubted that to bring into being a new government
would originate a new allegiance for its citizens and inhabitants.
Nor were they reluctant to punish as treason any genuine breach of
allegiance, as every government time out of mind had done. The
betrayal of Washington by Arnold was fresh in mind. They were far
more awake to powerful enemies with designs on this continent than
some of the intervening generations have been. England was
entrenched in Canada to the north, and Spain had repossessed
Florida to the south, and each had been the scene of invasion of
the Colonies; the King of France had but lately been dispossessed
in the Ohio Valley; Spain claimed the Mississippi Valley; and,
except for the seaboard, the settlements were surrounded by Indians
-- not negligible as enemies themselves, and especially threatening
when allied to European foes. The proposed national government
could not for some years become firmly seated in the tradition or
in the habits of Page 325 U. S. 9 the people. There is no evidence that the forefathers intended
to withdraw the treason offense from use as an effective instrument
of the new nation's security against treachery that would aid
external enemies.

															The forefathers also had suffered from disloyalty. Success of
the Revolution had been threatened by the adherence of a
considerable part of the population to the King. The Continental
Congress adopted a resolution after a report by its "Committee on
Spies" [ Footnote 10 ] which,
in effect, declared that all persons residing within any colony
owed allegiance to it, and that, if any such persons adhered to the
King of Great Britain, giving him aid and comfort, they were guilty
of treason, and which urged the colonies to pass laws for
punishment of such offenders "as shall be provably attainted of
open deed." [ Footnote 11 ]
Many of the colonies complied, and a variety of laws, mostly
modeled Page 325 U. S. 10 on English law, resulted. [ Footnote 12 ] Some of the legislation in later years
became so broad and loose as to make treason of Page 325 U. S. 11 mere utterance of opinion. [ Footnote 13 ] Many a citizen, in a time of unsettled and
shifting loyalties, was thus threatened under Page 325 U. S. 12 English law, which made him guilty of treason if he adhered to
the government of his colony, and also under colonial law, which
made him guilty of treason if he adhered to his King. [ Footnote 14 ] Not a few of these
persons were subjected to confiscation of property or other harsh
treatment by the Revolutionists under local laws -- none, however,
so far as appears, to capital punishment. [ Footnote 15 ]

															Before this revolutionary experience, there were scattered
treason prosecutions in the colonies, [ Footnote 16 ] usually not well reported. Some colonies
had adopted treason statutes modeled on English legislation.
[ Footnote 17 ] But the
earlier colonial experience seems to have been regarded as of Page 325 U. S. 13 a piece with that of England, and appears not to have much
influenced the framers in their dealings with the subject.

															However, their experience with treason accusations had been
many-sided. More than a few of them were descendants Page 325 U. S. 14 of those who had fled from measures against sedition and its
ecclesiastic counterpart, heresy. Now the treason offense was under
revision by a Convention whose members almost to a man had
themselves been guilty of treason under any interpretation of
British law. [ Footnote 18 ]
They not only had levied war against their King themselves, but
they had conducted a lively exchange of aid and comfort with
France, then England's ancient enemy. Every step in the great work
of their lives, from the first mild protests against kingly misrule
to the final act of separation, had been taken under the threat of
treason charges. [ Footnote
19 ] The Declaration of Independence may seem cryptic in
denouncing George III "for transporting us beyond Seas to be tried
for pretended offenses," but the specific grievance was recited by
the Continental Congress nearly two years before in saying that

															". . . it has lately been resolved in Parliament, that, by force
of a statute, made in the thirty-fifth year of the reign of King
Henry the eighth, colonists may be transported to England, and
tried there upon accusations for treasons, and misprisions, or
concealments Page 325 U. S. 15 of treasons committed in the colonies, and by a late statute,
such trials have been directed in cases therein mentioned.
[ Footnote 20 ]"

															The Convention numbered among its members men familiar with
government in the Old World, and they looked back upon a long
history of use and abuse of the treason charge. [ Footnote 21 ] The English stream of thought
concerning Page 325 U. S. 16 treasons began to flow in fairly definable channels in 1351 with
the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch.
2. [ Footnote 22 ] That was a
monumental piece Page 325 U. S. 17 of legislation several times referred to in the deliberations of
the Convention. It cut a benchmark by which the English-speaking
world tested the level of its thought on the subject [ Footnote 23 ] until our own abrupt
departure from it in Page 325 U. S. 18 1789, and after 600 years, it still is the living law of treason
in England. Roger Casement in 1917 forfeited his life for violating
it. [ Footnote 24 ] We, of
course, can make no independent judgment as to the inward meanings
of the terms used in a six-century-old statute, written in a form
of Norman French that had become obsolete long before our
Revolution. We can read this statute only as our forebears read it
-- through the eyes of succeeding generations of English judges, to
whom it has been the core of all decision, and of common law
commentators, to whom it has been the text. [ Footnote 25 ] Page 325 U. S. 19 Adjudicated cases in English history generally have dealt with
the offense of compassing the monarch's death; Page 325 U. S. 20 only eleven reported English cases antedating the Constitution
are cited as involving distinct charges of adherence to the King's
enemies. [ Footnote 26 ] When
constructive treasons were not joined on the face of the
indictment, it is not possible to say how far they were joined in
the minds of the judges. No decision appears to have been a factor
in the deliberations of our own Constitutional Convention. Nor does
any squarely meet our issue here, and for good reason -- the Act of
Edward III did not contain the "two witnesses to the same overt
act" requirement which precipitates the issue here.

															Historical materials are therefore of little help; necessity as
well as desire taught a concept that differed from all historical
models in the drafting of our treason clause. Treason statutes
theretofore had been adapted to a society in which the state was
personified by a king, on whose person were focused the allegiances
and loyalties of the subject. When government was made
representative of the whole body of the governed, there was none to
say "I Page 325 U. S. 21 am the State," and a concept of treason as compassing or
imagining a ruler's death was no longer fitting. Nor can it be
gainsaid that the revolutionary doctrine that the people have the
right to alter or abolish their government relaxed the loyalty
which governments theretofore had demanded -- dangerously diluted
it, as the ruling classes of Europe thought, for, in their eyes,
the colonists not only committed treason, they exalted it.
[ Footnote 27 ] The idea that
loyalty will ultimately be given to a government only so long as it
deserves loyalty, and that opposition to its abuses is not treason,
[ Footnote 28 ] has made our
government tolerant of opposition based on differences of opinion
that in some parts of the world would have kept the hangman busy.
But the basic law of treason in this country was framed by men who,
as we have seen, were taught by experience and by history to fear
abuse of the treason charge almost as much as they feared treason
itself. The interplay in Page 325 U. S. 22 the Convention of their two fears accounts for the problem which
faces us today. II We turn then to the proceedings of the Constitutional Convention
of 1787 so far as we have record of them. The plan presented by
Pinckney evidently proposed only that Congress should have
exclusive power to declare what should be treason and misprision of
treason against the United States. [ Footnote 29 ] The Committee on Detail, apparently not
specifically instructed on the subject, reported a draft
Constitution which left no such latitude to create new treasons. It
provided that:

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

															This clause was discussed on August 20, 1787. Mr. Madison, who
opened the discussion,

															"thought the definition too narrow. It did not appear to go as
far as the Stat. of Edwd III. He did not see why more latitude
might not be left to the Legislature. It wd. be as safe in the
hands of State legislatures, and it was inconvenient to bar a
discretion which experience might enlighten, and which might be
applied to good purposes as well as be abused. [ Footnote 31 ]"

															Mr. Mason was in favor of following the language of the Statute
of Edward III. The discussion shows some confusion as to the effect
of adding the words "giving them aid and comfort," some thinking
their effect restrictive Page 325 U. S. 23 and others that they gave a more extensive meaning. However,

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

															The motion prevailed.

															Mr. Dickenson

															"wished to know what was meant by the 'testimony of two
witnesses,' whether they were to be witnesses to the same overt act
or to different overt acts. He thought also that proof of an overt
act ought to be expressed as essential to the case."

															Doctor Johnson also "considered . . . that something should be
inserted in the definition concerning overt acts."

															When it was moved to insert "to the same overt act" after the
two witnesses requirement, Madison notes that

															"Doc'r. Franklin wished this amendment to take place --
prosecutions for treason were generally virulent, and perjury too
easily made use of against innocence."

															James Wilson observed that

															"Much may be said on both sides. Treason may sometimes be
practiced in such a manner as to render proof extremely difficult
-- as in a traitorous correspondence with an Enemy. [ Footnote 32 ]"

															But the motion carried.

															By this sequence of proposals, the treason clause of the
Constitution took its present form. The temper and attitude of the
Convention toward treason prosecutions is unmistakable. It adopted
every limitation that the practice of governments had evolved or
that politico-legal philosophy Page 325 U. S. 24 to that time had advanced. [ Footnote 33 ] Limitation of the treason of adherence to
the enemy to cases where aid and comfort were given and the
requirement of an overt act were both found in the Statute of
Edward III praised in the writings of Coke and Blackstone, and
advocated in Montesquieu's Spirit of Laws. Likewise, the two
witness requirement had been used in other statutes, [ Footnote 34 ] was advocated by
Montesquieu in all capital cases, [ Footnote 35 ] and was a familiar precept of the New
Testament, [ Footnote 36 ] and
of Mosaic law. [ Footnote 37 ]
The framers combined all of these known protections and added two
of their own which had no precedent. They wrote into the organic
act of the new government a prohibition of legislative or judicial
creation of new treasons. And a venerable safeguard against false
testimony was given a novel application by requiring two witnesses
to the same overt act.

															District of treason prosecutions was not just a transient mood
of the Revolutionists. In the century and a half of our national
existence, not one execution on a federal treason conviction has
taken place. Never before has this Court had occasion to review a
conviction. In the few cases that have been prosecuted, the treason
clause has had its only judicial construction by individual
Justices of this Court presiding at trials on circuit or by
district Page 325 U. S. 25 or circuit judges. [ Footnote
38 ] After constitutional requirements have been satisfied, and
after juries have convicted Page 325 U. S. 26 and courts have sentenced, Presidents again and again have
intervened to mitigate judicial severity or to pardon entirely. We
have managed to do without treason prosecutions to a degree that
probably would be impossible except while a people was singularly
confident of external security and internal stability. [ Footnote 39 ] Page 325 U. S. 27 III Historical materials aid interpretation chiefly in that they
show two kinds of dangers against which the framers were concerned
to guard the treason offense: (1) perversion by established
authority to repress peaceful political opposition, and (2)
conviction of the innocent as a result of perjury, passion, or
inadequate evidence. The first danger could be diminished by
closely circumscribing the kind of conduct which should be treason
-- making the constitutional definition exclusive, making it clear,
and making the offense one not susceptible of being inferred from
all sorts of insubordinations. The second danger lay in the manner
of trial and was one which would be diminished Page 325 U. S. 28 mainly by procedural requirements -- mainly, but not wholly, for
the hazards of trial also would be diminished by confining the
treason offense to kinds of conduct susceptible of reasonably sure
proof. The concern uppermost in the framers' minds, that mere
mental attitudes or expressions should not be treason, influenced
both definition of the crime and procedure for its trial. In the
proposed Constitution, the first sentence of the treason article
undertook to define the offense; the second, to surround its trial
with procedural safeguards.

															"Compassing' and like loose concepts of the substance of the
offense had been useful tools for tyranny. So one of the obvious
things to be put into the definition of treason not consisting of
actual levying of war was that it must consist of doing something.
This the draft Constitution failed to provide, for, as we have
pointed out, it defined treason [ Footnote 40 ] as merely 'adhering to the enemies of the
United States, or any of them."

															Treason of adherence to an enemy was old in the law. It
consisted of breaking allegiance to one's own King by forming an
attachment to his enemy. Its scope was comprehensive, its
requirements indeterminate. It might be predicated on intellectual
or emotional sympathy with the foe, or merely lack of zeal in the
cause of one's own country. That was not the kind of disloyalty the
framers thought should constitute treason. They promptly accepted
the proposal to restrict it to cases where also there was conduct
which was "giving them aid and comfort."

															"Aid and comfort" was defined by Lord Reading in the Casement
trial comprehensively, as it should be, and yet probably with as
much precision as the nature of the matter will permit:

															". . . an act which strengthens or tends to strengthen the
enemies of the King in the conduct of a Page 325 U. S. 29 war against the King, that is in law the giving of aid and
comfort"

															and

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

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

															Thus, the crime of treason consists of two elements: adherence
to the enemy and rendering him aid and comfort. A citizen
intellectually or emotionally may favor the enemy and harbor
sympathies or convictions disloyal to this country's policy or
interest, but, so long as he commits no act of aid and comfort to
the enemy, there is no treason. On the other hand, a citizen may
take actions which do aid and comfort the enemy -- making a speech
critical of the government or opposing its measures, profiteering,
striking in defense plants or essential work, and the hundred other
things which impair our cohesion and diminish our strength -- but
if there is no adherence to the enemy in this, if there is no
intent to betray, there is no treason.

															Having thus, by definition, made treason consist of something
outward and visible and capable of direct proof, the framers turned
to safeguarding procedures of trial, and ordained that "No Person
shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court."
This repeats in procedural terms the concept that thoughts and
attitudes alone cannot make a treason. It need not trouble us that
we find so dominant a purpose emphasized in two different ways. But
does the procedural requirement add some limitation not already
present in the definition of the crime, and, if so, what? Page 325 U. S. 30 While to prove giving of aid and comfort would require the
prosecution to show actions and deeds, if the Constitution stopped
there, such acts could be inferred from circumstantial evidence.
This the framers thought would not do. [ Footnote 41 ] So they added what in effect is a command
that the overt acts must be established by direct evidence, and the
direct testimony must be that of two witnesses, instead of one. In
this sense, the overt act procedural provision adds something, and
something important, to the definition.

															Our problem begins where the Constitution ends. That instrument
omits to specify what relation the indispensable overt act must
sustain to the two elements of the offense as defined: viz., adherence and giving aid and comfort. It requires
that two witnesses testify to the same overt act, and, clearly
enough, the act must show something toward treason, but what? Must
the act be one of giving aid and comfort? If so, how must adherence
to the enemy, the disloyal state of mind, be shown?

															The defendant especially challenges the sufficiency of Page 325 U. S. 31 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 Page 325 U. S. 32 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 Page 325 U. S. 33 in time and place in many relationships. Environment illuminates
the meaning of acts, as context does that of words. What a man is
up to may be clear from considering his bare acts by themselves;
often it is made clear when we know the reciprocity and sequence of
his acts with those of others, the interchange between him and
another, the give and take of the situation.

															It would be no contribution to certainty of judgment, which is
the object of the provision, to construe it to deprive a trial
court of the aid of testimony under the ordinary sanctions of
verity, provided, of course, resort is not had to evidence of less
than the constitutional standard to supply deficiencies in the
constitutional measure of proof of overt acts. For it must be
remembered that the constitutional provision establishes a minimum
of proof of incriminating acts, without which there can be no
conviction, but it is not otherwise a limitation on the evidence
with which a jury may be persuaded that it ought to convict. The
Constitution does not exclude or set up standards to test evidence
which will show the relevant acts of persons other than the accused
or their identity or enemy character or other surrounding
circumstances. Nor does it preclude any proper evidence of
nonincriminating facts about a defendant -- such, for example, as
his nationality, naturalization, and residence.

															From duly proven overt acts of aid and comfort to the enemy in
their setting it may well be that the natural and reasonable
inference of intention to betray will be warranted. The two witness
evidence of the acts accused, together with common law evidence of
acts of others and of facts which are not acts, will help to
determine which among possible inferences as to the actor's
knowledge, motivation, or intent are the true ones. But the
protection of the two witness rule extends at least to all acts of
the defendant which are used to draw incriminating inferences that
aid and comfort have been given. Page 325 U. S. 34 The controversy before us has been waged in terms of intentions,
but this, we think, is the reflection of a more fundamental issue
as to what is the real function of the overt act in convicting of
treason. The prisoner's contention that it, alone and on its face,
must manifest a traitorous intention, apart from an intention to do
the act itself, would place on the overt act the whole burden of
establishing a complete treason. On the other hand, the
Government's contention that it may prove by two witnesses an
apparently commonplace and insignificant act and, from other
circumstances, create an inference that the act was a step in
treason, and was done with treasonable intent, really is a
contention that the function of the overt act in a treason
prosecution is almost zero. It is obvious that the function we
ascribe to the overt act is significant chiefly because it measures
the two witness rule protection to the accused and its handicap to
the prosecution. If the over act or acts must go all the way to
make out the complete treason, the defendant is protected at all
points by the two witness requirement. If the act may be an
insignificant one, then the constitutional safeguards are shrunken
so as to be applicable only at a point where they are least
needed.

															The very minimum function that an overt act [ Footnote 43 ] must perform in a treason
prosecution is that it show sufficient action by the accused, in
its setting, to sustain a finding that the accused actually gave
[ Footnote 44 ] aid and
comfort to the enemy. Every act, movement, deed, and word of the
defendant charged to constitute treason must be supported Page 325 U. S. 35 by the testimony of two witnesses. The two witness principle is
to interdict imputation of incriminating acts to the accused by
circumstantial evidence or by the testimony of a single witness.
The prosecution cannot rely on evidence which does not meet the
constitutional test for overt acts to create any inference that the
accused did other acts or did something more than was shown in the
overt act, in order to make a giving of aid and comfort to the
enemy. The words of the Constitution were chosen not to make it
hard to prove merely routine and everyday acts, but to make the
proof of acts that convict of treason as sure as trial processes
may. When the prosecution's case is thus established, the
Constitution does not prevent presentation of corroborative or
cumulative evidence of any admissible character, either to
strengthen a direct case or to rebut the testimony or inferences on
behalf of defendant. The Government is not prevented from making a
strong case; it is denied a conviction on a weak one.

															It may be that, in some cases, the overt acts sufficient to
prove giving of aid and comfort will fall short of showing intent
to betray, and that questions will then be raised as to permissible
methods of proof that we do not reach in this case. But, in this
and some cases we have cited where the sufficiency of the overt
acts has been challenged because they were colorless as to intent,
we are persuaded the reason intent was left in question was that
the acts were really indecisive as a giving of aid and comfort.
When we deal with acts that are trivial and commonplace, and hence
are doubtful as to whether they gave aid and comfort to the enemy,
we are most put to it to find in other evidence a treacherous
intent.

															We proceed to consider the application of these principles to
Cramer's case. IV The indictment charged Cramer with adhering to the enemies of
the United States, giving them aid and comfort, Page 325 U. S. 36 and set forth ten overt acts. The prosecution withdrew seven,
and three were submitted to the jury. The overt acts which present
the principal issue [ Footnote
45 ] are alleged in the following language:

															"1. Anthony Cramer, the defendant herein, on or about June 23,
1942, at the Southern District of New York and within the
jurisdiction of this Court, did meet with Werner Thiel and Edward
John Kerling, enemies of the United States at the Twin Oaks Inn at
Lexington Avenue and 44th Street, in the City and New York, and did
confer, treat, and counsel with said Werner Thiel and Edward John
Kerling for a period of time for the purpose of giving and with
intent to give aid and comfort to said enemies, Werner Thiel and
Edward John Kerling."

															"2. Anthony Cramer, the defendant herein, on or about June 23,
1942, at the Southern District of New York and Page 325 U. S. 37 within the jurisdiction of this Court, did accompany, confer,
treat, and counsel with Werner Thiel, an enemy of the United
States, for a period of time at the Twin Oaks Inn at Lexington
Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street
between Lexington and Vanderbilt Avenues, both in the City and New
York, for the purpose of giving and with intent to give aid and
comfort to said enemy, Werner Thiel."

															At the present stage of the case, we need not weight their
sufficiency as a matter of pleading. Whatever the averments might
have permitted the Government to prove, we now consider their
adequacy on the proof as made.

															It appeared upon the trial that, at all times involved in these
acts, Kerling and Thiel were under surveillance of the Federal
Bureau of Investigation. By direct testimony of two or more agents,
it was established that Cramer met Thiel and Kerling on the
occasions and at the places charged and that they drank together
and engaged long and earnestly in conversation. This is the sum of
the overt acts as established by the testimony of two witnesses.
There is no two witness proof of what they said, nor in what
language they conversed. There is no showing that Cramer gave them
any information whatever of value to their mission, or indeed that
he had any to give. No effort at secrecy is shown, for they met in
public places. Cramer furnished them no shelter, nothing that can
be called sustenance or supplies, and there is no evidence that he
gave them encouragement or counsel, or even paid for their
drinks.

															The Government recognizes the weakness of its proof of aid and
comfort, but, on this scope, it urges:

															"Little imagination is required to perceive the advantage such
meeting would afford to enemy spies not yet detected. Even apart
from the psychological comfort which the meetings furnished Thiel
and Kerling by way of social intercourse with Page 325 U. S. 38 one who they were confident would not report them to the
authorities, as a loyal citizen should, the meetings gave them a
source of information and an avenue for contact. It enabled them to
be seen in public with a citizen above suspicion, and thereby to be
mingling normally with the citizens of the country with which they
were at war."

															The difficulty with this argument is that the whole purpose of
the constitutional provision is to make sure that treason
conviction shall rest on direct proof of two witnesses ,and not on
even a little imagination. And, without the use of some
imagination, it is difficult to perceive any advantage which this
meeting afforded to Thiel and Kerling as enemies, or how it
strengthened Germany or weakened the United States in any way
whatever. It may be true that the saboteurs were cultivating Cramer
as a potential "source of information and an avenue for contact."
But there is no proof either by two witnesses or by even one
witness, or by any circumstance, that Cramer gave them information
or established any "contact" for them with any person other than an
attempt to bring about a rendezvous between Thiel and a girl, or
that being "seen in public with a citizen above suspicion" was of
any assistance to the enemy. Meeting with Cramer in public drinking
places to tipple and trifle was no part of the saboteurs' mission,
and did not advance it. It may well have been a digression which
jeopardized its success.

															The shortcomings of the overt act submitted are emphasized by
contrast with others which the indictment charged but which the
prosecution withdrew for admitted insufficiency of proof. It
appears that Cramer took from Thiel for safekeeping a money belt
containing about $3,600, some $160 of which he held in his room
concealed in books for Thiel's use as needed. An old indebtedness
of Thiel to Cramer of $200 was paid from the fund, and the rest
Cramer put in his safe deposit box in a bank for safekeeping. All
of this was at Thiel's request. That Thiel Page 325 U. S. 39 would be aided by having the security of a safe deposit box for
his funds, plus availability of smaller amounts, and by being
relieved of the risks of carrying large sums on his person --
without disclosing his presence or identity to a bank -- seems
obvious. The inference of intent from such act is also very
different from the intent manifest by drinking and talking
together. Taking what must have seemed a large sum of money for
safekeeping is not a usual amenity of social intercourse. That such
responsibilities are undertaken and such trust bestowed without the
scratch of a pen to show it implies some degree of mutuality and
concert from which a jury could say that aid and comfort was given
and was intended. If these acts had been submitted as overt acts of
treason, and we were now required to decide whether they had been
established as required, we would have a quite different case. We
would then have to decide whether statements on the witness stand
by the defendant are either "confession in open court" or may be
counted as the testimony of one of the required two witnesses to
make out otherwise insufficiently proved "overt acts." But this
transaction was not proven as the Government evidently hoped to do
when the indictment was obtained. The overt acts based on it were
expressly withdrawn from the jury, and Cramer has not been
convicted of treason on account of such acts. We cannot sustain a
conviction for the acts submitted on the theory that, even if
insufficient, some unsubmitted ones may be resorted to as proof of
treason. Evidence of the money transaction serves only to show how
much went out of the case when it was withdrawn.

															The Government contends that, outside of the overt acts, and by
lesser degree of proof, it has shown a treasonable intent on
Cramer's part in meeting and talking with Thiel and Kerling. But if
it showed him disposed to betray, and showed that he had
opportunity to do so, it still has not proved in the manner
required that he did any acts Page 325 U. S. 40 submitted to the jury as a basis for conviction which had the
effect of betraying by giving aid and comfort. To take the intent
for the deed would carry us back to constructive treasons.

															It is outside of the commonplace overt acts as proved that we
must find all that convicts or convinces either that Cramer gave
aid and comfort or that he had a traitorous intention. The
prosecution relied chiefly upon the testimony of Norma Kopp, the
fiancée of Thiel, as to incriminating statements made by Cramer to
her, [ Footnote 46 ] upon
admissions made by Cramer after his arrest to agents of the Federal
Bureau of Investigation, [ Footnote 47 ] upon letters and Page 325 U. S. 41 documents found on search of his room by permission after his
arrest, [ Footnote 48 ] and
upon testimony that Cramer had Page 325 U. S. 42 curtly refused to buy Government bonds. [ Footnote 49 ] After denial of defendant's motion
to dismiss at the close of the prosecution's case, defendant became
a witness in his own behalf, and the Government obtained on
cross-examination some admissions of which it had the benefit on
submission. [ Footnote
50 ] Page 325 U. S. 43 It is not relevant to our issue to appraise weight or
credibility of the evidence apart from determining its
constitutional sufficiency. Nor is it necessary, in the view we
take of the more fundamental issues, to discuss the Page 325 U. S. 44 reservations which all of us entertain as to the admissibility
of some of it or those which some entertain as to other of it. We
could conclude in favor of affirmance only if all questions of
admissibility were resolved against the prisoner. At all events,
much of the evidence is of the general character whose infirmities
were feared by the framers, and sought to be safeguarded
against.

															Most damaging is the testimony of Norma Kopp, a friend of
Cramer's and one with whom, if she is to be believed, he had been
most indiscreetly confidential. Her testimony went considerably
beyond that of the agents of the Federal Bureau of Investigation as
to admissions of guilty knowledge of Thiel's hostile mission and of
Cramer's sympathy with it. To the extent that his conviction rests
upon such evidence, and it does to an unknown but considerable
extent, it rests upon the uncorroborated testimony of one witness
not without strong emotional interest in the drama of which
Cramer's trial was a part. Other evidence relates statements by
Cramer before the United States was at war with Germany. At the
time they were uttered, however, they were not treasonable. To use
pre-war expressions of opposition to entering a war to convict of
treason during the war is a dangerous procedure, at best. The same
may be said about the inference of disloyal attitude created by
showing that he refused to buy bonds and closed the door in the
salesman's face. Another class of evidence consists of admissions
to agents of the Federal Bureau of Investigation. They are, of
course, not "confession in open court." The Government does not
contend, and could not well contend, Page 325 U. S. 45 that admissions made out of court, if otherwise admissible, can
supply a deficiency in proof of the overt act itself. V The Government has urged that our initial interpretation of the
treason clause should be less exacting, lest treason be too hard to
prove and the Government disabled from adequately combating the
techniques of modern warfare. But the treason offense is not the
only, nor can it well serve as the principal, legal weapon to
vindicate our national cohesion and security. In debating this
provision, Rufus King observed to the Convention that the

															"controversy relating to Treason might be of less magnitude than
was supposed, as the legislature might punish capitally under other
names than Treason. [ Footnote
51 ]"

															His statement holds good today. Of course, we do not intimate
that Congress could dispense with the two witness rule merely by
giving the same offense another name. But the power of Congress is
in no way limited to enact prohibitions of specified acts thought
detrimental to our wartime safety. The loyal and the disloyal alike
may be forbidden to do acts which place our security in peril, and
the trial thereof may be focussed upon defendant's specific intent
to do those particular acts, [ Footnote 52 ] thus eliminating the accusation of treachery
and of general intent to betray which have such passion-rousing
potentialities. Congress repeatedly has enacted prohibitions of
specific acts thought to endanger our security, [ Footnote 53 ] and the practice of foreign
nations with defense Page 325 U. S. 46 problems more acute than our own affords examples of others.
[ Footnote 54 ]

															The framers' effort to compress into two sentences the law of
one of the most intricate of crimes gives a superficial appearance
of clarity and simplicity which proves illusory when it is put to
practical application. There are few subjects on which the
temptation to utter abstract Page 325 U. S. 47 interpretative generalizations is greater or on which they are
more to be distrusted. The little clause is packed with controversy
and difficulty. The offense is one of subtlety, and it is easy to
demonstrate lack of logic in almost any interpretation by
hypothetical cases, to which real treasons rarely will conform. The
protection of the two witness requirement, limited as it is to
overt acts, may be wholly unrelated to the real controversial
factors in a case. We would be understood as speaking only in the
light of the facts and of the issues raised in the case under
consideration, although that leaves many undetermined grounds of
dispute which, after the method of the common law, we may defer
until they are presented by facts which may throw greater light on
their significance. Although nothing in the conduct of Cramer's
trial evokes it, a repetition of Chief Justice Marshall's warning
can never be untimely:

															"As there is no crime which can more excite and agitate the
passions of men than treason, no charge demands more from the
tribunal before which it is made a deliberate and temperate
inquiry. Whether this inquiry be directed to the fact or to the
law, none can be more solemn, none more important to the citizen or
to the government; none can more affect the safety of both. . . .
It is therefore more safe, as well as more consonant to the
principles of our constitution, that the crime of treason should
not be extended by construction to doubtful cases, and that crimes
not clearly within the constitutional definition should receive
such punishment as the legislature in its wisdom may provide." Ex parte
Bollman , 4 Cranch 75, 8 U. S.
125 -127.

															It is not difficult to find grounds upon which to quarrel with
this Constitutional provision. Perhaps the framers placed rather
more reliance on direct testimony than modern researches in
psychology warrant. Or it may be considered that such a
quantitative measure of proof, such Page 325 U. S. 48 a mechanical calibration of evidence, is a crude device, at
best, or that its protection of innocence is too fortuitous to
warrant so unselective an obstacle to conviction. Certainly the
treason rule, whether wisely or not, is severely restrictive. It
must be remembered, however, that the Constitutional Convention was
warned by James Wilson that

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

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

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

															We still put trust in it.

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

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

															[ Footnote 2 ]

															Article III, Section 3.

															[ Footnote 3 ]

															259 F. 685, 690.

															[ Footnote 4 ]

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

															[ Footnote 5 ] United States v. Cramer, 137 F.2d 888, 896.

															[ Footnote 6 ]

															259 F. 673, 677.

															[ Footnote 7 ]

															"An overt act, in criminal law, is an outward act done in
pursuance and in manifestation of an intent or design; an overt act
in this case means some physical action done for the purpose of
carrying out or affecting [ sic ] the treason." United States v. Haupt, 47 F.
Supp. 836 , 839, rev'd on other grounds, 136 F.2d
661.

															"The overt act is the doing of some actual act looking towards
the accomplishment of the crime." United States v.
Stephan, 50 F. Supp.
738 , 742, 743, note.

															[ Footnote 8 ]

															320 U.S. 730.

															[ Footnote 9 ]

															May 22, 1944. Counsel for petitioner, although assigned by the
trial court, has responded with extended researches. The Solicitor
General engaged scholars not otherwise involved in conduct of the
case to collect and impartially to summarize statutes, decisions,
and texts from Roman, Continental, and Canon law, as well as from
English, Colonial, and American law sources. The part of the study
dealing with American materials has been made available through
publication in 58 Harv.L.Rev. 226 et seq. Counsel have
lightened our burden of examination of the considerable
accumulation of historical materials.

															[ Footnote 10 ]

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

															[ Footnote 11 ]

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

															"That all persons, members of, or owing allegiance to any of the
United Colonies, as before described, who shall levy war against
any of the said colonies within the same, or be adherent to the
king of Great Britain, or others the enemies of the said colonies,
or any of them, within the same, giving to him or them aid and
comfort, are guilty of treason against such colony:"

															"That it be recommended to the legislatures of the several
United Colonies, to pass laws for punishing, in such manner as to
them shall seem fit, such persons before described as shall be
proveably attainted of open deed, by people of their condition, of
any of the treasons before described."

															5 Journals of the Continental Congress (1906) 475.

															[ Footnote 12 ]

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

															The Maryland act declared that

															"the several crimes aforesaid shall receive the same
constructions that have been given to such of the said crimes as
are enumerated in the statute of Edward the third, commonly called
the statute of treasons."

															None of the statutes contained negative language limiting the
definition of treason expressly to that set forth in the statute.
In general, too, they added to the definition of the model
recommended by Congress other specific kinds of treason. Thus, a
number defined treason as including conspiracy to levy war.
Conspiracy to adhere to the enemy and give aid and comfort was also
included in several, or incorporated by separate acts. Much
explicit attention was given to the problem of contact with the
enemy. Conveying of intelligence or carrying on of correspondence
with the enemy were expressly mentioned. One typical provision
declared guilty of treason those persons who were

															"adherent to . . . the enemies of this State within the same, or
to the Enemies of the United States . . . giving to . . . them Aid
or Comfort, or by giving to . . . them Advice or Intelligence
either by Letters, Messages, Words, Signs or Tokens, or in any way
whatsoever, or by procuring for, or furnishing to . . . them any
Kind of Provisions or Warlike Stores. . . ."

															Other provisions referred to "joining their Armies," "inlisting
or persuading others to inlist for that Purpose," "furnishing
Enemies with Arms or Ammunition, Provision or any other Articles
for such their Aid or Comfort,"

															"willfully betraying, or voluntarily yielding or delivering any
vessel belonging to this State or the United States to the Enemies
of the United States of America;"

															and to persons who

															"have joined, or shall hereafter join the Enemies of this State,
or put themselves under the Power and Protection of the said
Enemies, who shall come into this State and rob or plunder any
Person or Persons of their Goods and Effects, or shall burn any
Dwelling House or other Building, or be aiding or assisting
therein,"

															or who should maliciously and with an intent to obstruct the
service dissuade others from enlisting, or maliciously spread false
rumors concerning the forces of either side such as to alienate the
affections of the people from the Government "or to terrify or
discourage the good Subjects of this State, or to dispose them to
favor the Pretensions of the Enemy," or who

															"shall take a Commission or Commissions from the King of Great
Britain, or any under his Authority, or other the Enemies of this
State, or the United States of America."

															A number of the statutes required "the testimony of two lawful
and credible witnesses." But the requirement was not linked to the
proof of overt acts, and there was no suggestion of the type of
provision later embodied in the Constitution. Supplementary acts
creating special treasonable offenses tended to omit any
requirement as to quantum of proof. See Hurst, op cit. supra, 58 Harv.L.Rev. at
248 et seq. [ Footnote 13 ]

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

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

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

															[ Footnote 14 ]

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

															[ Footnote 15 ] See Hurst, Treason in the United States (1944) 58
Harv.L.Rev. 226, 268-71. Although these acts, dealing with
withdrawal to enemy territory, imposed in general only forfeiture
and banishment, some did reinforce these penalties with the threat
of death if the person should later be found within the state. Id., 272.

															[ Footnote 16 ]

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

															[ Footnote 17 ]

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

															"3. Treason against the Person of our Sovereign Lord the King,
the State and Commonwealth of England, shall be punished by
death."

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

															But the bulk of colonial legislation prior to the Revolution
drew extensively on English law, especially the statute 25 Edward
III. Some of the acts substantially adopted the language of the
latter statute, with additions, and some simply declared that the
offense of treason should follow the English law. With the
exception of Georgia and New Jersey, all the colonies eventually
adopted one or the other type statute. In addition, the English law
of treason itself applied, to an undefined extent, and several
colonial acts were disallowed on the theory that they covered
ground already occupied by the mother country's legislation. The
colonies which enacted their own statutes patterned after 25 Edward
III did not narrow its terms. Several expressly included the
treason of compassing the death of the king, and a couple even made
an analogous offense of compassing the death of the proprietor. The
offense of levying war against the king was given a broad
definition; some of the colonies expressly included various forms
of "constructive" levying of war which had been put into the
English statute by judicial construction, in general extending the
crime to domestic disturbances, and some of the statutes made
conspiracy to levy war sufficient to constitute the crime of
levying war. Some specific attention was given in separate
legislation at various times to contact with the enemy --
legislation comparable to that subsequently enacted during the
Revolutionary period.

															Most of the colonial treason acts contained two witness
requirements, without the additional qualification later adopted in
the Constitution, that they must be witnesses to the same overt
act, although it was required that they be witnesses to the same
general kind of treason. See generally Hurst, op. cit. supra, 58
Harv.L.Rev. at 226-245.

															[ Footnote 18 ]

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

															3 Adams, History of the United States 468.

															"Every member of that Convention -- every officer and soldier of
the Revolution from Washington down to private, every man or woman
who had given succor or supplies to a member of the patriot army,
everybody who had advocated American independence . . . could have
been prosecuted and convicted as 'traitors' under the British law
of constructive treason."

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

															[ Footnote 19 ]

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

															[ Footnote 20 ]

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

															[ Footnote 21 ]

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

															Some of his precepts were: "If the crime of high treason be
indeterminate, this alone is sufficient to make the government
degenerate into arbitrary power." Book 12, Ch. 7, Of the Crime of
High Treason. "The laws do not take upon them to punish any other
than overt acts." Book 12, Ch. 11, Of Thoughts.

															"Nothing renders the crime of high treason more arbitrary than
declaring people guilty of it for indiscreet speeches. . . . Words
do not constitute an overt act; they remain only in idea. . . .
Overt acts do not happen every day; they are exposed to the eye of
the public, and a false charge with regard to matters of fact may
be easily detected. Words carried into action assume the nature of
that action. Thus, a man who goes into a public marketplace to
incite the subject to revolt incurs the guilt of high treason,
because the words are joined to the action, and partake of its
nature. It is not the words that are punished, but an action in
which the words are employed."

															Book 12, Ch. 12, Of Indiscreet Speeches. "Those laws which
condemn a man to death on the deposition of a single witness are
fatal to liberty." Book 12, Ch. 3, Of The Liberty of the
Subject.

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

															[ Footnote 22 ]

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

															4 Halsbury's Statutes of England 273.

															[ Footnote 23 ]

															Stephen said of it:

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

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

															Blackstone says:

															"But afterwards, between the reign of Henry the fourth and queen
Mary, and particularly in the bloody reign of Henry the eighth, the
spirit of inventing new and strange treasons was revived, among
which we may reckon the offences of clipping money; breaking prison
or rescue, when the prisoner is committed for treason; burning
houses to extort money; stealing cattle by Welshmen; counterfeiting
foreign coin; willful poisoning; execrations against the king;
calling him opprobrious names by public writing; counterfeiting the
sign manual or signet; refusing to abjure the pope; deflowering, or
marrying without the royal licence, any of the king's children,
sisters, aunts, nephews, or nieces; bare solicitation of the
chastity of the queen or princess, or advances made by themselves;
marrying with the king, by a woman not a virgin, without previously
discovering to him such her unchaste life; judging or believing
(manifested by any overt act) the king to have been lawfully
married to Anne of Cleve; derogating from the king's royal stile
and title; impugning his supremacy, and assembling riotously to the
number of twelve, and not dispersing upon proclamation. . . ."

															4 Blackstone 86, 87.

															[ Footnote 24 ] Rex v. Casement. (1917) 1 K.B. 98; Knott, Trial of
Roger Casement, 184, 185.

															[ Footnote 25 ]

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

															Hale (History of the Pleas of the Crown, Emlyn ed. London, 1736)
frequently uses terminology, found in Coke and earlier writers,
which might mean that the function of an overt act is to prove
intent, saying that the overt act is to "manifest" or "declare" the
compassing of the king's death, and so forth. Id., 109.
But, as in the other writers, the statements are usually open as
well to the interpretation that the act must show translation of
thought into action. In the latter sense, the act "declares" intent
in that it shows, in the light of other evidence, that the
defendant's thoughts were not mere idle desires. This is a
different thing from saying that the overt act must of itself
display an unambiguously traitorous character. Elsewhere, Hale
gives some support to the view that the act may itself be of an
innocent character. Dealing with the principle that words alone
cannot be an overt act, he says that

															"words may expound an overt act to make good an indictment of
treason of compassing the king's death, which overt act possibly of
itself may be indifferent and unapplicable to such an intent, and
therefore, in the indictment or treason, they may be joined with
such an overt act, to make the same applicable and expositive of
such a compassing." Id., 115. He also declares that the mere meeting of
persons with the intent of plotting the king's death is a
sufficient overt act for the treason of compassing the king's
death. Id., 108, 109. These remarks, however, deal only
with compassing the king's death, and little light is given as to
the overt act in connection with levying war and adhering to the
enemy. With Coke, Hale takes the position that a mere meeting of
persons to conspire, though sufficient under the compassing clause,
is not sufficient for the levying of war clause. Id., 130.

															Foster's view of the overt act does not seem materially
different from Hale's. (A Report of Some Proceedings on the
Commission for the Trial of the Rebels in the Year 1746 in the
County of Surry, and of other Crown Cases, 2d ed. 1791.)

															"Overt acts undoubtedly do discover the man's intentions, but, I
conceive, they are not to be considered merely as evidence, but as
the means made use of to effectuate the purposes of the
heart. . . . though, in the case of the King, overt acts of
less malignity, and having a more remote tendency to his
destruction, are with great propriety deemed treasonable; yet still
they are considered as means to affectuate [ sic ], not
barely as evidence of, the treasonable purpose."

															Foster also repeats the assertion that the mere meeting of
persons with intent to plan the king's death is a sufficient overt
act. Id., 195. However, his discussion, too, is confined
to the treason of compassing, and he says little that is helpful
about levying war and adhering.

															[ Footnote 26 ]

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

															[ Footnote 27 ]

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

															[ Footnote 28 ]

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

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

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

															Later, as Secretary of State, he wrote:

															"Treason . . . when real, merits the highest punishment. But
most codes extend their definitions of treason to acts not really
against one's country. They do not distinguish between acts against
the government and acts against the oppressions of the
government; the latter are virtues; yet they have furnished
more victims to the executioner than the former; because real
treasons are rare; oppressions frequent. The unsuccessful
strugglers against tyranny have been the chief martyrs of treason
laws in all countries."

															8 Jefferson's Writings 332. Compare 7th Annual Message,
1807, 3 Jefferson's Writing 451, 452.

															[ Footnote 29 ]

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

															[ Footnote 30 ]

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

															[ Footnote 31 ]

															The debates are at 2 Farrand 345-350.

															[ Footnote 32 ]

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

															[ Footnote 33 ]

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

															[ Footnote 34 ] See note 16 supra; see also 9 Holdsworth (2d ed.1938) 203-211.

															[ Footnote 35 ]

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

															[ Footnote 36 ]

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

															[ Footnote 37 ]

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

															Deut. xix, 15.

															[ Footnote 38 ]

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

															Whiskey Rebellion cases: United States v. Vigol, 28
Fed.Cas. 376, No. 16,621, United States v. Mitchell, 26
Fed.Cas. 1277, No. 15,788, (constructive levying of war, based on
forcible resistance to execution of a statute; defendants convicted
and later pardoned). House tax case: Case of Fries, 9
Fed.Cas. 826, No. 5, 126; 9 Fed.Cas. 924, No. 5, 127 (constructive
levying of war, based on forcible resistance to execution of a
statute; defendant convicted and later pardoned). The Burr
Conspiracy: Ex parte
Bollman , 4 Cranch 75; United States v.
Burr, 25 Fed.Cas. 2, No. 14,692a; 25 Fed.Cas. 55, No. 14,693
(conspiracy to levy war held not an overt art of levying war). United States v. Lee, 26 Fed.Cas. 907, No. 15,584 (sale of
provisions a sufficient overt act; acquittal). United States v.
Hodges, 26 Fed.Cas. 332, No. 15,374 (obtaining release of
prisoners to the enemy is adhering to the enemy, the act showing
the intent; acquittal). United States v. Hoxie, 26
Fed.Cas. 397, No. 15,407 (attack of smugglers on troops enforcing
embargo is riot and not levying of war). United States v.
Pryor, 27 Fed.Cas. 628, No. 16,096 (proceeding under flag of
truce with enemy detachment to help buy provisions is too remote an
act to establish adhering to the enemy). United States v.
Hanway, 26 Fed.Cas. 105, No. 15,299 (forcible resistance to
execution of Fugitive Slave Law, 9 Stat. 462, no levying of war). United States v. Greiner, 26 Fed.Cas. 36, No. 15,262
(participation as member of state militia company in seizure of a
Federal fort is a levying of war). United States v.
Greathouse, 26 Fed.Cas. 18, No. 15,254 (fitting out and
sailing a privateer is a levying of war; defendants convicted,
later pardoned). Cases of confiscation of property or refusal to
enforce obligations given in connection with sale of provisions to
the Confederacy: Hanauer v.
Doane , 12 Wall. 342; Carlisle
v. United States , 16 Wall. 147; Sprott v.
United States , 20 Wall. 459; United States v.
Athens Armory, 24 Fed.Cas. page 878, No. 14,473 (Mixed motive,
involving commercial profit, does not bar finding of giving aid and
comfort to the enemy.); United States v. Cathcart and United States v. Parmenter, 25 Fed.Cas. 344, No. 14,756; Chenoweth's Case (unreported; see Ex parte
Vallandingham, 28 Fed.Cas. 874, 888, No. 16,816) (indictment
bad for alleging aiding and abetting rebels, instead of directly
charging levying of war). Case of Jefferson Davis, 7
Fed.Cas. 63, No. 3,621a (argument that rebels whose government
achieved status of a recognized belligerent could not be held for
treason; Davis was not tried on the indictment); see 2
Warren, Supreme Court in United States History (1934 ed.) 485-87;
Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669.
Philippine insurrections: United States v. Magtibay, 2
Philippine 703; United States v. De Los Rayos, 3
Philippine 349 (mere possession of rebel commissions insufficient
overt acts; strict enforcement of two witness requirement;
convictions reversed); United States v. Lagnason, 3
Philippine 472 (armed effort to overthrow the government is levying
war). United States v. Fricke, 259 F. 673 (acts
"indifferent" on their face held sufficient overt acts). United
States v. Robinson, 259 F. 685 (dictum, acts harmless on their
face are insufficient overt acts). United States v.
Werner, 247 F. 708, aff'd, 251 U. S. 251 U.S.
466 (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F.2d 661 (reversal of
conviction on strict application of two witness requirement and
other grounds; inferentially approves acts harmless on their face
as overt acts). Stephan v. United States, 133 F.2d 87
(acts harmless on their face may be sufficient overt acts;
conviction affirmed but sentence commuted). United States v.
Cramer, 137 F.2d 888.

															[ Footnote 39 ]

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

															"It had been a real revolution -- a long and difficult travail,
full of hardship, struggle, bitterness, and the overturning of old
habits and customs. But it did not eat its children, and it had no
aftermath of vengeance. The Hessians who stayed in the country were
not hunted down and annihilated. Some loyalists who returned were
harshly treated -- others came back and settled down peacefully as
citizens of the new state. There was neither blood bath nor purge.
There was bitter political dispute -- but no small group of men
plotted in secret to overthrow the government by force of arms.
There were a couple of minor and local revolts, based on genuine
grievances -- Shays' Rebellion in 1786 -- the Whisky Rebellion in
1794. Both collapsed when the government showed itself able to put
down rebellion -- and nobody was hanged for either of them. Shays
and his temporary rebels received a general amnesty -- the leaders
of the Whisky Rebellion were convicted of treason and then pardoned
by the President."

															Benet, America, pp. 49-50.

															Speaking of the War between the States, he says:

															"Again, there was no blood purge. There were no mass executions.
No heads rolled."

															"The handful of fanatics who had plotted the assassination of
Lincoln and other government leaders were executed. His actual
murderer was tracked down and shot. The half-crazy officer who
commanded a notorious southern prison camp was hanged. The former
President of the Confederacy, Jefferson Davis, was kept for a while
in prison with certain of his associates, and then released. But
that was all."

															"Not one of the great southern generals or statesmen, Lee,
Johnson, Stephens, Hampton, Longstreet -- was even tried for
treason." Id., 78.

															[ Footnote 40 ]

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

															[ Footnote 41 ]

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

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

															V. 2, p. 509.

															Continuing, after comment on particular cases, he said:

															"In the vast mass of circumstantial testimony which our modern
trials for high treason display, it is sometimes difficult to
discern whether the great principle of our law requiring two
witnesses to overt acts has been adhered to, for certainly it is
not adhered to unless such witnesses depose to acts of the prisoner
from which an inference of his guilt is immediately deducible."

															V. 2, p. 516.

															[ Footnote 42 ]

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

															[ Footnote 43 ]

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

															[ Footnote 44 ]

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

															[ Footnote 45 ]

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

															[ Footnote 46 ]

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

															[ Footnote 47 ]

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

															[ Footnote 48 ]

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

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

															[ Footnote 49 ]

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

															Normal Kopp testified that Cramer told her that the "Minute Man"
called at his door "and he got kind of fresh and he closed the door
at him." Miss Kopp's testimony was objected to, and was offered as
"showing the general motive and disposition, insofar as loyalty to
the country is concerned, of this defendant," and as probative on
the issue of intent. The court received it on the theory that
incidents of that sort might corroborate or the jury might find it
corroborated certain other testimony offered by the Government
indicating a motive or intent.

															[ Footnote 50 ]

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

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

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

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

															"through Norbert warned you that your letters discussed the
United States in such an unfriendly fashion that Norbert's father
feared that you would be put on the blacklist, because, according
to him, the letters went through an American censorship?"

															Objection was duly made that the letters referred to were from
someone else, and could not bind the defendant. The objection was
overruled, and the witness answered: "Well, I have received a
letter from my nephew Norbert which mentions that, I admit that." A
motion to strike the answer was denied, and exceptions to both
rulings were duly taken.

															The Circuit Court of Appeals observed that, "Of course, these
expressions of opinion could not properly bind appellant, and the
objection might wisely have been sustained." But it concluded that
the ruling was not sufficiently prejudicial to call for
reversal.

															While defendant was under cross-examination, he was asked,

															"By the way, Mr. Witness, you have testified at length here
about your various studies and your various occupations and
interests. Were you ever interested in law?"

															"A. No. sir; I was not."

															"Q. Isn't it a fact, sir, that at one time you were particularly
interested in the law of treason?"

															"A. No, sir; I have never been interested in that."

															The District Attorney then offered a complete text of the
Constitution of the United States as printed in the New York Times
in 1937. It had been found in Cramer's room, and on it were marks
which he admitted making. One of the marks was opposite the
paragraph which defines treason. The District Attorney offered it
for impeachment, and also contended it to be of probative force to
show "that this witness had in mind at the time these events which
are the subject of the indictment here occurred, what the law of
treason was." Against objection, the court admitted it as material
and relevant, and declined to limit the grounds on which it was
received.

															It appears without dispute that the marks on this copy of the
Constitution were made at a time not definitely established, but
clearly before the United States entered the war, and when the
policy of the Government was declared to be one of neutrality.

															The treason paragraph of the Constitution was one of six
provisions which he marked. Another was the provision of Article 1
of Section 7, that, if any bill passed by the Congress shall not be
returned by the President within ten days after having been
presented to him, the same shall be a law. Another, the provision
of Article 1, Section 8, that Congress shall have the power to
declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water. A third was Article 1,
Section 9, which provides that no bill of attainder or ex post
facto law shall be passed. A fourth was that provision of
Article 1, Section 9, that no title of nobility shall be granted by
the United States. Another was the portion of Article 2, Section 1,
which sets forth the President's oath.

															The petitioner was naturalized in 1936, and, so far as appears,
came into possession of the Constitution in 1937.

															[ Footnote 51 ]

															2 Farrand 347.

															[ Footnote 52 ] E.g., Hartzel v. United States, 322 U.
S. 680 .

															[ Footnote 53 ]

															Congress has prohibited obtaining defense information in certain
ways, 50 U.S.C. § 31; certain disclosures of information, 50 U.S.C.
§ 32; certain seditious and disloyal acts in war time, 50 U.S.C. §
33, and has enacted such statutes as the Trading with the Enemy
Act, 50 U.S.C. Appendix, § 3.

															[ Footnote 54 ]

															The Government's Appendix includes such examples as the
following: Danish Penal Code. --

															"Sec. 105. One who commits an act by virtue of which a foreign
service of military intelligence is set up, or who assists directly
or indirectly in its functioning on the territory of the Denmark,
shall be punished by imprisonment up to two years and, in cases of
extenuating circumstances, by detention." Polish Code. --

															"Art. 100, Sec. 1. Whoever in time of war acts in favor of the
enemy or to the damage of the Polish armed forces or allied forces
shall be punished by imprisonment not under ten years or for
life."

															"Art. 100, Sec. 2. If the offender unintentionally acted, he
shall be punished by imprisonment not to exceed three years or by
detention not to exceed three years." French Code of 1939. --

															"Art. 103. Whoever, knowing about the plans of an act of treason
or espionage, does not report them to the military, administrative,
or judicial authorities as soon as he acquired knowledge shall be
punished by penalties provided by Art. 83 for the attack on the
exterior safety of the State."

															The French Code (Harboring) provides in Article 85 that every
Frenchman and every foreigner shall be punished as an accomplice or
for harboring:

															"(1) Who, knowing the intentions of the perpetrators of major
crimes and minor crimes against the exterior safety of the State,
furnishes them subsidies, means of existence, lodging, place of
asylum or meeting place."

															"(2) Who, knowingly carries the correspondence of the
perpetrators of a major or minor crime or knowingly facilitates
them in any manner whatsoever in finding, harboring, transporting,
or transmitting, the objects of a major or minor crime;"

															"(3) Who harbors knowingly the objects or instruments which
served or should serve for the commission of the crime or offense
or material objects or documents obtained through a crime or
offense."

															[ Footnote 55 ]

															2 Farrand 348.

															[ Footnote 56 ] See Brooks, The World of Washington Irving, 73 n.

															MR. JUSTICE DOUGLAS, with whom the CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE REED concur, dissenting.

															The opinion of the Court is written on a hypothetical state of
facts, not on the facts presented by the record. Page 325 U. S. 49 It states a rule of law based on an interpretation of the
Constitution which is not only untenable, but is also unnecessary
for the decision. It disregards facts essential to a determination
of the question presented for decision. It overlooks the basis
issue on which our disposition of the case must turn. In order to
reach that issue, we must have a more exact appreciation of the
facts than can be gleaned from the opinion of the Court. I Cramer is a naturalized citizen of the United States, born in
Germany. He served in the German army in the last war, coming to
this country in 1925. In 1929, he met Thiel, who had come to this
country in 1927 from a place in Germany not far from petitioner's
birthplace. The two became close friends; they were intimate
associates during a twelve-year period. In 1933, Cramer found work
in Indiana. Thiel joined him there. Both became members of the
Friends of New Germany, predecessor of the German-American Bund.
Cramer was an officer of the Indiana local. He resigned in 1935,
but Thiel remained a member, and was known as a zealous Nazi. In
1936, Cramer visited Germany. On his return, he received his final
citizenship papers. He and Thiel returned to New York in 1937, and
lived either together or in close proximity for about four years.
Thiel left for Germany in the spring of 1941, feeling that war
between the United States and Germany was imminent. According to
Cramer, Thiel was "up to his ears" is Nazi ideology. Cramer
corresponded with Thiel in Germany. Prior to our declaration of
war, he was sympathetic with the German cause and critical of our
attitude. Thus, in November, 1941, he wrote Thiel saying he had
declined a job in Detroit "as I don't was to dirty my fingers with
war material;" that

															"We sit here in pitiable comfort, when we should be in the Page 325 U. S. 50 battle -- as Nietzsche says -- I want the man, I want the woman,
the one fit for war, the other fit for bearing."

															In the spring of 1942, he wrote another friend in reference to
the possibility of being drafted: "Personally I should not care at
all to be misused by the American army as a world conqueror."
Cramer listened to short-wave broadcasts of Lord Haw-Haw and other
German propagandists. He knew that the theme of German propaganda
was that England and the United States were fighting a war of
aggression and seeking to conquer the world.

															So much for the background. What followed is a sequel to Ex
parte Quirin, 317 U. S. 1 .

															Thiel entered the German army, and, in 1942, volunteered with
seven other German soldiers who had lived in the United States for
a special mission to destroy the American aluminum industry. They
were brought here by German submarines in two groups. Kerling was
the leader, and Thiel a member, of one group which landed by rubber
boat near Jacksonville, Florida on June 17, 1942. They buried their
explosives and proceeded to New York City, where, on June 21st,
they registered at the Hotel Commodore under the assumed names of
Edward Kelly and William Thomas.

															The next morning, a strange voice called Cramer's name from the
hall of the rooming house where he lived. On his failure to reply,
an unsigned note was slipped under his door. It read,

															"Be at the Grand Central station tonight at 8 o'clock, the upper
platform near the information booth, Franz from Chicago has come
into town and wants to see you; don't fail to be there."

															Cramer said he knew no Franz from Chicago. But, nevertheless, he
was on hand at the appointed hour and place. Thiel shortly
appeared. They went to the Twin Oaks Inn, where they talked for two
hours. Cramer admitted that he knew Thiel had come from Germany,
and, of course, he knew that at that time men were not freely
entering this country from Germany. Page 325 U. S. 51 He asked Thiel, "Say, how have you come over, have you come by
submarine?" Thiel looked startled, smiled, and said, "Some other
time, I am going to tell you all about this." Thiel told him that
he had taken the assumed name of William Thomas, and had a forged
draft card. Thiel admonished him to remember that he, Thiel, was
"anti-Nazi" -- a statement Cramer doubted because he knew Thiel was
a member of the Nazi party. Thiel indicated he had come from the
coast of Florida. Cramer inquired if he had used a rubber boat.
When Thiel said that the only time he was "scared to death was when
I came over here we got bombed," Cramer replied, "Then you have
come over by submarine, haven't you?" Thiel told Cramer that he had
"three and a half or four thousand dollars" with him, and that "if
you have the right kind of connection, you can even get dollars in
Germany." Cramer offered to keep Thiel's money for him. Thiel
agreed, but nothing was done about it that evening. Cramer admitted
he had a "hunch" that Thiel was here on a mission for the German
government. He asked Thiel "whether he had come over here to spread
rumors and incite unrest." Cramer, after his arrest, told agents of
the FBI that he had suspected that Thiel had received the money
from the German government, that Thiel in fact had told him that he
was on a mission for Germany, and that "whatever his mission was, I
thought that he was serious in his undertaking." Thiel, from the
beginning, clothed his actions with secrecy; was unwilling to be
seen at Cramer's room ("because I have too many acquaintances
there, and I don't want them to see me"), and cautioned Cramer
against conversing loudly with him in the public tavern.

															So they agreed to meet at the Twin Oaks Inn at 8 P.M. on the
following evening, June 23, 1942. At this meeting, Kerling joined
them. Cramer had met Kerling in this country, and knew he had
returned to Germany. Kerling Page 325 U. S. 52 and Thiel told Cramer that they had come over together. Cramer
had a "hunch" that Kerling was here for the same purpose as Thiel.
Kerling left Thiel and Cramer after about an hour and a half.
Kerling was followed and arrested. Cramer and Thiel stayed on at
the tavern for about another hour. After Kerling left, Thiel agreed
to entrust his money to Cramer for safekeeping. He told Cramer to
take out $200 which Thiel owed him. But he asked Cramer not to put
all of the balance in the safe deposit box -- that he should keep
some of it out "in the event I need it in a hurry." Thiel went to
the washroom to remove the money belt. He handed it to Cramer on
the street when they left the tavern. From the Twin Oaks, Thiel and
Cramer went to Thompson's Cafeteria, where they conversed for about
fifteen minutes. They agreed to meet there at 8 P.M. on June 25th.
They parted. Thiel was followed and arrested.

															Cramer returned home. He put Thiel's money belt in a shoe box.
He put some of the money between the pages of a book. Later, he put
the balance in his bank -- some in a savings account, most of it in
his safe deposit box. He and Thiel had talked of Thiel's fiancée,
Norma Kopp. At the first meeting, Cramer had offered to write her
on Thiel's behalf. He did so. He did not mention Thiel's name, but
asked her to come to his room, saying he had "sensational" news for
her. Cramer appeared at Thompson's Cafeteria at 8 P.M. June 25th to
keep his appointment with Thiel. He waited about an hour and a
half. He returned the next night, June 26th, and definitely
suspected Thiel had been arrested. Though he knew Thiel was
registered at the Hotel Commodore, he made no attempt to get in
touch with him there. When he returned to his room that night,
Norma Kopp was waiting for him. She testified that he told her that
Thiel was here; that "they came about six men with a U-boat, in a
rubber boat, and landed in Florida;" that they "brought so Page 325 U. S. 53 much money along from Germany, from the German government," he
was keeping it in a safe deposit box, and that they "get
instructions from the sitz (hideout) in the Bronx what to do, and
where to go." The next morning, Cramer left a note for "William
Thomas" at the Commodore saying that Norma Kopp had arrived and
suggested a rendezvous. Later in the day, Cramer was arrested. He
told the agents of the FBI that the name of the man who had been
with him at Thompson's Cafeteria on the evening of June 23rd was
"William Thomas," that "Thomas" had been working in a factory on
the West Coast since March, 1941, and had not been out of the
United States since then. He was asked if "Thomas" was not Thiel.
He then admitted he was, saying that Thiel had used an assumed
name, as he was having difficulties with his draft board. He also
stated that the money belt Thiel gave him contained only $200 which
Thiel owed him, and that the $3,500 in his safe deposit box
belonged to him, and were the proceeds from the sale of securities.
After about an hour or so of the falsehoods, Cramer asked to speak
to one of the agents alone. The request was granted. He then
recanted his previous false statements and stated that he felt sure
that Thiel had come from Germany by submarine on a mission for the
German Government, and that he thought that mission was "to stir up
unrest among the people and probably spread propaganda." He stated
he had lied in order to protect Thiel.

															The Court holds that this evidence is insufficient to sustain
the conviction of Cramer under the requirements of the
Constitution. We disagree. II Article III, Sec. 3 of the Constitution defines treason as
follows:

															"Treason against the United States, shall consist only in
levying War against them, or in adhering to Page 325 U. S. 54 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."

															The charge against Cramer was that of adhering. The essential
elements of the crime are that Cramer (1) with treasonable intent
(2) gave aid and comfort to the enemy. [ Footnote 2/1 ]

															There was ample evidence for the jury that Cramer had a
treasonable intent. The trial court charged the jury that

															"criminal intent and knowledge, being a mental state, are not
susceptible of being proved by direct evidence, and therefore you
must infer the nature of the defendant's intent and knowledge from
all the circumstances."

															It charged that proof of criminal intent and knowledge is
sufficient if proved beyond a reasonable doubt, and that the two
witnesses are not necessary for any of the facts other than the
overt acts. On that there apparently is no disagreement. It also
charged:

															"Now gentlemen, motive should not be confused with intent. If
the defendant knowingly gives aid and comfort to one who he knows
or believes is an enemy, then he must be taken to intend the
consequences of his own voluntary act, and the fact that his motive
might not have been to aid the enemy is no Page 325 U. S. 55 defense. In other words, one cannot do an act which he knows
will give aid and comfort to a person he knows to be an enemy of
the United States and then seek to disclaim criminal intent and
knowledge by saying that one's motive was not to aid the enemy. So
if you believe that the defendant performed acts which by their
nature gave aid and comfort to the enemy, knowing or believing him
to be an enemy, then you must find that he had criminal intent,
since he intended to do the act forbidden by the law. The fact that
you may believe that his motive in so doing was, for example,
merely to help a friend, or possibly for financial gain, would not
change the fact that he had a criminal intent."

															On that there apparently is no disagreement. A man who
voluntarily assists one known or believed to be an enemy agent may
not defend on the ground that he betrayed his country for only
thirty pieces of silver. See Hanauer v.
Doane , 12 Wall. 342, 79 U. S. 347 ; Sprott v. United
States , 20 Wall. 459, 87 U. S.
463 .

															"The consequences of his acts are too serious and enormous to
admit of such a plea. He must be taken to intend the consequences
of his own voluntary act." Hanauer v. Doane, supra. For the same reasons, a man
cannot slip through our treason law because his aid to those who
would destroy his country was prompted by a desire to "accommodate
a friend." [ Footnote 2/2 ] Loyalty
to country cannot be subordinated to the amenities of personal
friendship. Page 325 U. S. 56 Cramer had a traitorous intent if he knew or believed that Thiel
and Kerling were enemies and were working here in the interests of
the German Reich. The trial court charged that mere suspicion was
not enough, but that it was not necessary for Cramer to have known
all their plans. There apparently is no disagreement on that. By
that test, the evidence against Cramer was overwhelming. The
conclusion is irresistible that Cramer believed, if he did not
actually know, that Thiel and Kerling were here on a secret mission
for the German Reich with the object of injuring the United States,
and that the money which Thiel gave him for safekeeping had been
supplied by Germany to facilitate the project of the enemy. The
trial court charged that, if the jury found that Cramer had no
purpose or intention of assisting the German Reich in its
prosecution of the war or in hampering the United States in its
prosecution of the war, but acted solely for the purpose of
assisting Kerling and Thiel as individuals, Cramer should be
acquitted. There was ample evidence for the jury's conclusion that
the assistance Cramer rendered was assistance to the German Reich,
not merely assistance to Kerling and Thiel as individuals.

															The trial judge stated when he sentenced Cramer that it did not
appear that Cramer knew that Thiel and Kerling were in possession
of explosives or other means for destroying factories in this
country, or that they planned to do that. He stated that, if there
had been direct proof of such knowledge, he would have sentenced
Cramer to death, rather than to forty-five years in prison. But
however relevant such particular knowledge may have been to fixing
the punishment for Cramer's acts of treason, it surely was not
essential to proof of his traitorous intent. A defendant who has
aided an enemy agent in this country may not escape conviction for
treason on the ground that he was not aware of the enemy's precise
objectives. Knowing or believing that the agent was here on a
mission Page 325 U. S. 57 on behalf of a hostile government, he could not, by simple
failure to ask too many questions, assume that this mission was one
of charity and benevolence toward the United States. But the
present case is much stronger. For Cramer claims he believed the
enemy agent's objective was to destroy national morale by
propaganda, and not to blow up war factories. Propaganda designed
to cause disunity among adversaries is one of the older weapons
known to warfare and, upon occasion, one of the most effective. No
one can read this record without concluding that the defendant
Cramer knew this. He is an intelligent, if misguided, man. He has a
quick wit sharpened by considerable learning of its kind. He is
widely read, and a student of history and philosophy, particularly
Ranke and Nietzsche. He had been an officer of a pro-German
organization, and his closest associate had been a zealous Nazi. He
also had listened to German propagandists over the short wave. But,
in any event, it is immaterial whether Cramer was acquainted with
the efficacy of propaganda in modern warfare. Undoubtedly he knew
that the German Government thought it efficacious. When he was
shown consciously and voluntarily to have assisted this enemy
program, his traitorous intent was then and there sufficiently
proved.

															The Court does not purport to set aside the conviction for lack
of sufficient evidence of traitorous intent. It frees Cramer from
this treason charge solely on the ground that the overt acts
charged are insufficient under the constitutional requirement. III The overt acts alleged were (1) that Cramer met with Thiel and
Kerling on June 23rd, 1942, at the Twin Oaks Inn, and "did confer,
treat, and counsel" with them "for the purpose of giving and with
the intent to give aid and comfort" to the enemy; (2) that Cramer
"did accompany, Page 325 U. S. 58 confer, treat, and counsel with" Thiel at the Twin Oaks Inn and
at Thompson's Cafeteria on June 23rd, 1942, "for the purpose of
giving and with intent to give aid and comfort" to the enemy, and
(3) that Cramer gave false information of the character which has
been enumerated to agents of the FBI "for the purpose of concealing
the identity and mission" of Thiel and "for the purpose of giving
and with intent to give aid and comfort" to the enemy.

															The Court concedes that an overt act need not manifest on its
face a traitorous intention. By that concession, it rejects the
defense based on the treason clause which Cramer has made here. The
Court says an overt act must "show sufficient action by the
accused, in its setting, to sustain a finding that the accused
actually gave aid and comfort to the enemy." It says, however, that
the

															"protection of the two witness rule extends at least to all acts
of the defendant which are used to draw incriminating inferences
that aid and comfort have been given."

															It adds,

															"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."

															And when it comes to the overt acts of meeting and conferring
with Thiel and Kerling, the Court holds that they are inadequate
since there was "no two witness proof of what they said nor in what
language they conversed." That is to say, reversible error is found
because the two witnesses who testified to the fact that Cramer met
twice with the saboteurs did not testify that Cramer Page 325 U. S. 59 gave them information of "value to their mission" such as
shelter, sustenance, supplies, encouragement, or counsel.

															That conclusion, we submit, leads to ludicrous results. The
present case is an excellent example.

															It is conceded that, if the two witnesses had testified not only
that they saw Cramer conferring with Thiel and Kerling, but also
heard him agree to keep Thiel's money and saw him take it, the
result would be different. But the assumption is that, since the
two witnesses could not testify as to what happened at the
meetings, we must appraise the meetings in isolation from the other
facts of the record. Therein lies the fallacy of the argument.

															In the first place, we fully agree that, under the
constitutional provision, there can be no conviction of treason
without proof of two witnesses of an overt act of treason. We also
agree that the act so proved need not itself manifest on its face
the treasonable intent. And, as the Court states, such intent need
not be proved by two witnesses. It may even be established by
circumstantial evidence. For it is well established that the overt
act and the intent are separate and distinct elements of the crime.
[ Footnote 2/3 ] The "intent may be
proved by one witness, collected from circumstances, or even by a
single fact." Case of Fries, 9 Fed.Cas. 826, 909, No. 5,
126; Respublica v.
Roberts , 1 Dall. 39; United States v. Lee, 26 Fed.Cas. 907, No. 15,584; Trial of David Maclane, 26
How.St.Tr. 721, 795-798. Acts innocent on their face, when judged
in the light of their purpose and of related events, may turn out
to be acts of aid and comfort committed with treasonable purpose.
It is the overt act charged as such in the indictment which must be
proved by two witnesses, and not the related events which make
manifest its treasonable quality and purpose. This, we think, is
the correct and necessary conclusion to be drawn from the
concession that the overt act need not on its face manifest the
guilty purpose. The Page 325 U. S. 60 grossest and most dangerous act of treason may be, as in this
case, and often is, innocent on its face. But the ruling of the
Court that the related acts and events which show the true
character of the overt act charged must be proved by two witnesses
is without warrant under the constitutional provisions, and is so
remote from the practical realities of proving the offense as to
render the constitutional command unworkable. The treasonable
intent or purpose which it is said may be proved by a single
witness or circumstantial evidence must, in the absence of a
confession of guilt in open court, be inferred from all the facts
and circumstances which surround and relate to the overt act.
Inference of the treasonable purpose from events and acts related
to or surrounding the overt act necessarily includes the inference
that the accused committed the overt act with the knowledge or
understanding of its treasonable character. To say that the
treasonable purpose with which the accused committed the overt act
may be inferred from related events proved by a single witness, and
at the same time to say that, so far as they show the treasonable
character of the overt act, they must be proved by two witnesses,
is a contradiction in terms. The practical effect of such a
doctrine is to require proof by two witnesses not only of the overt
act charged which the Constitution requires, but of every other
fact and circumstance relied upon to show the treasonable character
of the overt act and the treasonable purpose with which it was
committed, which the Constitution plainly does not require. Here,
as in practically all cases where there is no confession in open
court, the two are inseparable, save only in the single instance
where the overt act manifests its treasonable character on its
face. The court thus in substance adopts the contention of the
respondent, which it has rejected in words, and for all practical
purposes requires proof by two witnesses not only of the overt act,
but of all other elements of the crime save only in the Page 325 U. S. 61 case where the accused confesses in open court. It thus confuses
proof of the overt act with proof of the purpose or intent with
which the overt act was committed, and, without historical support,
expands the constitutional requirement so as to include an element
of proof not embraced by its words.

															We have developed in the 325 U.S.
1 app|>Appendix to this opinion the historic function of the
overt act in treason cases. It is plain from those materials that
the requirement of an overt act is designed to preclude punishment
for treasonable plans or schemes or hopes which have never moved
out of the realm of thought or speech. It is made a necessary
ingredient of the crime to foreclose prosecutions for constructive
treason. The treasonable project is complete as a crime only when
the traitorous intent has ripened into a physical and observable
act. The act, standing alone, may appear to be innocent or
indifferent, such as joining a person at a table, stepping into a
boat, or carrying a parcel of food. That alone is insufficient. It
must be established beyond a reasonable doubt that the act was part
of the treasonable project, and done in furtherance of it. Its
character and significance are to be judged by its place in the
effectuation of the project. That does not mean that, where the
treasonable scheme involves several treasonable acts, and the overt
act which is charged has been proved by two witnesses, that all the
other acts which tend to show the treasonable character of the
overt act and the treasonable purpose with which it was committed
must be proved by two witnesses. The Constitution does not so
declare. There is no historical support for saying that the phrase
"two Witnesses to the same overt Act" may be or can be read as
meaning two witnesses to all the acts involved in the treasonable
scheme of the accused. Obviously, one overt act proved by two
witnesses is enough to sustain a conviction, even though the
accused has committed many other acts which can be proved by only
one Page 325 U. S. 62 witness or by his own admission in open court. Hence, it is
enough that the overt act which is charged be proved by two
witnesses. As the Court concedes, its treasonable character need
not be manifest upon its face. We say that its true character may
be proved by any competent evidence sufficient to sustain the
verdict of a jury. Any other conclusion leads to such absurd
results as to preclude the supposition that the two witness rule
was intended to have the meaning attributed to it.

															When we apply that test to the facts of this case, it is clear
to us that the judgment of conviction against Cramer should not be
set aside. The historical materials which we have set forth in the 325 U.S.
1 app|>Appendix to this opinion establish that a meeting with
the enemy may be adequate as an overt act of treason. Hale, Kelyng,
and Foster establish that beyond peradventure of doubt. Such a
meeting might be innocent on its face. It might also be innocent in
its setting, as Hale, Kelyng, and Foster point out, where, for
example, it was accidental. We would have such a case here if
Cramer's first meeting with Thiel was charged as an overt act. For,
as we have seen, Cramer went to the meeting without knowledge that
he would meet and confer with Thiel. But the subsequent meetings
were arranged between them. They were arranged in furtherance of
Thiel's designs. Cramer was not only on notice that Thiel was here
on a mission inimical to the interests of this nation. He had
agreed at the first meeting to hide Thiel's money. He had agreed to
contact Norma Kopp. He knew that Thiel wanted his identity and
presence in New York concealed. This was the setting in which the
later meetings were held. The meetings take on their true character
and significance from that setting. They constitute acts. They
demonstrate that Cramer had a liking for Thiel's design to the
extent of aiding him in it. They show beyond doubt that Cramer had
more than a treasonable intent; that that intent had moved from the
realm of Page 325 U. S. 63 thought into the realm of action. Since two witnesses proved
that the meetings took place, their character and significance
might be proved by any competent evidence.

															In the second place, this judgment of conviction should be
sustained even though we assume, arguendo, that Cramer's
motion to dismiss at the end of the government's case should have
been granted. The concern of the Court is that acts innocent on
their face may be transformed into sinister or guilty acts by
circumstantial evidence, by inference, by speculation. The rule
announced by the Court is based on a desire for trustworthy
evidence in determining the character and significance of the overt
acts. But this is not a case where an act innocent on its face is
given a sinister aspect and made a part of a treasonous design by
circumstantial evidence, by inference, or by the testimony of a
single witness for the prosecution. We know from Cramer's own
testimony -- from his admissions at the trial -- exactly what
happened.

															We know the character of the meetings from Cramer's own
admissions. We know from his own lips that they were not accidental
or casual conferences, or innocent social meetings. He arranged
them with Thiel. When he did so, he believed that Thiel was here on
a secret mission for the German Reich with the object of injuring
this nation. He also knew that Thiel was looking for a place to
hide his money. Cramer had offered to keep it for Thiel, and Thiel
had accepted the offer. Cramer had also offered to write Norma
Kopp, Thiel's fiancée, without mentioning Thiel's name. Cramer also
knew that Thiel wanted his identity and his presence in New York
concealed. Cramer's admissions at the trial gave character and
significance to those meetings. Those admissions, plus the finding
of treasonable intent, place beyond a reasonable doubt the
conclusion that those meetings were steps in, and part and parcel
of, the treasonable project.

															Nor need we guess or speculate for knowledge of what happened at
the meetings. We need not rely on circumstantial Page 325 U. S. 64 evidence, draw inferences from other facts, or resort to
secondary sources. Again, we know from Cramer's testimony at the
trial -- from his own admissions -- precisely what transpired.

															Cramer told the whole story in open court. He admitted he agreed
to act and did act as custodian of the saboteur Thiel's money. He
agreed to hold it available for Thiel's use whenever Thiel might
need it. It is difficult to imagine what greater aid one could give
a saboteur unless he participated in the sabotage himself. Funds
were as essential to Thiel's plans as the explosives he buried in
the sands of Florida. Without funds, the mission of all the
saboteurs would have soon ended, or been seriously crippled. Cramer
did not stop here. Preservation of secrecy was essential to this
invasion of the enemy. It was vital if the project was to be
successful. In this respect, Cramer also assisted Thiel. He
cooperated with Thiel in the concealment of Thiel's identity and
presence in New York City. He did his best to throw federal
officers off the trail and to mislead them. He made false
statements to them saying that Thiel's true name was "Thomas," and
that Thiel had not been not of the country since the war began.

															If Cramer had not testified, we would then be confronted with
the questions discussed in the opinion of the Court. But he took
the stand, and told the whole story. It is true that, at the end of
the government's case, Cramer moved to dismiss on the ground that
the crime charged had not been made out. That motion was denied,
and an exception taken. If Cramer had rested there, the case
submitted to the jury and a judgment of conviction rendered, we
would have before us the problem presented in the opinion of the
Court. But Cramer did not rest on that motion. He took the stand
and told the whole story. Any defect in the proof was cured by that
procedure. As stated in Bogk v. Gassert, 149 U. S.
17 , 149 U. S.
23 ,

															"A defendant Page 325 U. S. 65 has an undoubted right to stand upon his motion for a nonsuit,
and have his writ of error, if it be refused; but he has no right
to insist upon his exception after having subsequently put in his
testimony, and made his case upon the merits, since the court and
jury have the right to consider the whole case as made by the
testimony. It not infrequently happens that the defendant himself,
by his own evidence, supplies the missing link." And see Sigafus v. Porter, 179 U.
S. 116 , 179 U. S. 121 ; McCabe & Steen Const. Co. v. Wilson, 209 U.
S. 275 , 209 U. S. 276 ; Bates v. Miller, 133 F.2d 645, 647-648; 9 Wigmore on
Evidence (3d ed.1940) § 2496. And the rule obtains in criminal, as
well as in civil, cases. Sheridan v. United States, 112
F.2d 503, 504, rev'd on other grounds, 312 U.S. 654; Edwards v. United States, 7 F.2d 357, 359; Baldwin v.
United States, 72 F.2d 810, 812.

															Why, then, must we disregard Cramer's admissions at the trial?
Why must we assume, as does this Court, that those admissions are
out of the case, and that our decision must depend solely on the
evidence presented by the government?

															The Constitution says that a "confession in open Court" is
sufficient to sustain a conviction of treason. It was held in United States v. Magtibay, 2 Philippine 703, that a
confession in open court to the overt acts charged in the
indictment was not an adequate substitute for the testimony of two
witnesses where the accused denied treasonable purpose. We need not
go so far as to say that, if the whole crime may be proved by an
admission by the accused in open court, one of the ingredients of
the offense may be established in like manner. See Respublica
v. Roberts, supra. We do not say that, if the government
completely fails to prove an overt act or proves it by one witness
only, the defect can be cured by the testimony of other witnesses
or by the admissions of the accused. We do say that a meeting with
the enemy is an act, and Page 325 U. S. 66 may, in its setting, be an overt act of treason. We agree that
overt acts innocent on their face should not be lightly transformed
into incriminating acts. But, so long as overt acts of treason need
not manifest treason on their face, as the Court concedes, the
sufficiency of the evidence to establish the treasonable character
of the act, like the evidence of trasonable intent, depends on the
quality of that evidence, whatever the number of witnesses who
supplied it. There can be no doubt in this case on that score.
Certainly a person who takes the stand in defense of a treason
charge against him will not be presumed to commit perjury when he
makes admissions against self-interest. Admissions against
self-interest have indeed always been considered as the highest
character of evidence. When two witnesses testify to the overt
acts, why then are not admissions of the accused in open court
adequate to establish their true character? Could the testimony of
any number of witnesses more certainly or conclusively establish
the significance of what was done? Take the case where two
witnesses testify that the accused delivered a package to the
enemy, the accused admitting in open court that the package
contained guns or ammunition. Or two witnesses testify that the
accused sent the enemy a message, innocuous on its face, the
accused admitting in open court that the message was a code
containing military information. Must a conviction be set aside
because the two witnesses did not testify to what the accused
admitted in open court? We say no. In such circumstances, we have
no examples of constructive treason. The intent is not taken for
the deed. Proof of the overt act plus proof of a treasonable intent
make clear that the treasonable design has moved out of the realm
of thought into the filed of action. And any possibility that an
act innocent on its face has been transformed into a sinister or
guilty act is foreclosed. For the significance and character of the
act are supplied by the admissions from the lips of Page 325 U. S. 67 the accused in open court. The contrary result could be reached
only if it were necessary that the overt act manifest treason on
its face. That theory is rejected by the Court. But, once rejected,
it is fatal to the defense.

															Cramer's counsel could not defend on the grounds advanced by the
Court for the simple reason that, the government having proved by
two witnesses that Cramer met and conferred with the saboteurs, any
possible insufficiency in the evidence which it adduced to show the
character and significance of the meetings was cured by Cramer's
own testimony. Cramer can defend only on the ground that the overt
act must manifest treason, which the Court rejects, or on the
ground that he had no treasonable intent, which the jury found
against him on an abundance of evidence. Those are the only
alternatives, because, concededly, conferences with saboteurs here
on a mission for the enemy may be wholly adequate as overt acts
under the treason clause. They were proved by two witnesses, as
required by the Constitution. Any possible doubt as to their
character and significance as parts of a treasonable project were
removed by the defendant's own admissions in open court. To say
that we are precluded from considering those admissions in weighing
the sufficiency of the evidence of the true character and
significance of the overt acts is neither good sense nor good law.
Such a result makes the way easy for the traitor, does violence to
the Constitution, and makes justice truly blind.

															[ Footnote 2/1 ]

															It is well established that the overt act and the intent are
separate and distinct elements of the crime of treason under the
Constitution. See Ex parte
Bollman , 4 Cranch. 75, 8 U. S. 126 ; United States v. Burr, 25 Fed.Cas. 2, 13-14, No. 14,692a; United States v. Lee, 26 Fed.Cas. 907, No. 15,584; United States v. Vigol, 28 Fed.Cas. 376, No. 16,621; United States v. Hanway, 26 Fed.Cas. 105, 126, No. 15,299; United States v. Greiner, 26 Fed.Cas. 36, 39, No. 15,262; United States v. Greathouse, 26 Fed.Cas. 18, 22 No.
15,254; United States v. Werner, 247 F. 708, 709, 710; United States v. Fricke, 259 F. 673, 677; United
States v. Robinson, 259 F. 685, 690; United States v.
Stephan, 50 F. Supp.
738 , 742, 743, aff'd, 133 F.2d 87, 99. Chief Justice
Marshall ruled in United States v. Burr, 25 Fed.Cas. pages
52, 54, No. 14,692h, that it was in the discretion of the
prosecutor to present evidence of the intent before proof of an
overt act. And see United States v. Lee, supra. [ Footnote 2/2 ] Carlisle v. United
States , 16 Wall. 147, 83 U. S.
150 -151; Sprott v. United
States , 20 Wall. 459, 87 U. S.
463 -464; United States v. Hodges, 26 Fed.Cas.
332, 334, No. 15,374; Charge to Grand Jury -- Treason, 30 Fed.Cas.
1032, 1034, No. 18,270; see also 1 East, Pleas of the
Crown (1806) pp. 77-81; Warren, What is Giving Aid and Comfort to
the Enemy (1918), 27 Yale L.J. 331, 343-345; Hazard and Stern,
"Exterior Treason" (1938), 6 U. of Chi.L.Rev. 77, 84, 85. But a
mere showing of aid and assistance to an alien enemy permanently
residing in the United States without any showing that the enemy
alien has designs against the interest of the United States, does
not without more establish an act of treason. See United States
v. Fricke, 259 F. 673, 682.

															[ Footnote 2/3 ] See 325 U.S.
1 fn2/1|>note 1, supra. | 325 U.S.
1 app| APPENDIX The most relevant source of materials for interpretation of the
treason clause of the Constitution is the statute of 25 Edw. III,
Stat. 5, ch. 2 (1351) and the construction which was given it. It
was with that body of law and the English and colonial experience
under it that the Framers were acquainted. That statute specified
seven offenses as Page 325 U. S. 68 constituting treason. As respects the three offenses relevant to
our present discussion, it provided as follows: if a man "doth
compass or imagine the death" of the king, or "if a man do levy
war" against the king in his realm, or if he

															"be adherent to the king's enemies in his realm, giving to them
aid and comfort in the realm, or elsewhere, and thereof be probably
attainted of open deed,"

															he shall be guilty of treason.

															Coke makes clear that the requirement of an overt act under the
statute applies to all of the offenses included in the category of
treason. See Coke, Institutes of the Laws of England,
Third Part (5th ed. London, 1671), p. 5. There are indications by
Coke that the overt act was a separate element of the offense, and
that its function was to show that the treasonable design had moved
from thought to action. Id., pp. 5, 12, 14, 38. Hale is
somewhat more explicit. In discussing the offense of compassing the
king's death, he indicates that the overt act may be "indifferent"
in character. He says,

															"That words may expound an overt act to make good an indictment
of treason of compassing the king's death, which overt act possibly
of itself may be indifferent and unapplicable to such an
intent."

															1 Hale, History of the Pleas of the Crown (Emlyn ed., London,
1736), p. 115. And he noted that,

															"If there be an assembling together to consider how they may
kill the king, this assembling is an overt act to make good an
indictment of compassing the king's death." Id., p. 119. Kelyng states the same view. He cites Sir Everard Digby's Case, 1 St.Tr. 234, for the
proposition that the meeting of persons and their consulting to
destroy the king was itself an overt act.

															"It was resolved that, where a Person knowing of the Design does
meet with them, and hear them discourse of their traitorous
Designs, and say or act nothing, This is High-Treason in that
Party, for it is more than a bare Concealment, which is Misprision,
because it sheweth his liking and approving of their Design. " Page 325 U. S. 69 He says that, if a person, not knowing their intent, met with
them, heard their plans, but said nothing and never met again, that
would be only misprision of treason.

															"But if he, after meet with them again, and hear their
Consultations, and then conceal it, this is High-Treason. For it
sheweth a liking and an approving of their Design."

															Kelyng, A Report of Divers Cases in Pleas of the Crown (3d ed.,
London, 1873), p. *17. And see p. *21.

															Foster is even more explicit. Like Coke, he asserts that an
overt act is required for each branch of treason covered by the
Statute of Edward III. Foster, A Report of Some Proceedings on the
Commission for the Trial of the Rebels in the Year 1746 in the
County of Surry, and of other Crown Cases (2d ed., London 1791),
pp. 207, 237. He makes clear that an overt act is required not to
corroborate the proof of a traitorous intent, but to show that the
treasonable project has left the realm of thought and moved into
the realm of action. As respects the offense of compassing the
death of the king, he says that the indictment

															"must charge that the defendant did traitorously compass and
imagine &c, and then go on and charge the several overt acts as
the means employed by the defendant for executing his traitorous
purposes. For the compassing is considered as the treason, the
overt acts as the means made use of to effectuate the intentions
and imaginations of the heart." Id., p. 194. He refers to Crohagan's Case (Cro.Car. 332), where the defendant said "I will kill the King of
England if I can come at him," and the indictment added that he
came to England for that purpose. "The traitorous intention, proved
by his words, converted an action, innocent in itself, into an
overt act of treason." Id., p. 202. And he also points out
that

															"Overt acts undoubtedly do discover the man's intentions, but, I
conceive, they are not to be considered merely as evidence, but as
the means made use of to effectuate the purposes of the heart." Id., p. 203. And he adds,

															"Upon this Page 325 U. S. 70 principle, words of advice or encouragement, and, above all,
consultations for destroying the King very properly come under the
notion of means made use of for the purpose. But loose words not
relative to facts are, at the worst, no more than bare indications
of the malignity of the heart." Id., p. 204. He follows Kelyng in saying that
attendance at a meeting with previous notice of the design to plot
the death of the king or a return to a meeting after knowledge is
gained of its treasonable purpose is treason, though bare
concealment would not be if the defendant met the conspirators
"accidentally or upon some indifferent occasion." Id., p.
195.

															It is true that these observations related to the offense of
compassing or imagining the death of the king. But Foster indicates
that the same test applies to make out the offense of adherence to
the king's enemies. He says,

															"The offense of inciting foreigners to invade the kingdom is a
treason of signal enormity. In the lowest estimation of things and
in all possible events, it is an attempt on the part of the
offender to render his country the seat of blood and
desolation." Id., pp. 196-197. This was said in connection with his
discussion of Lord Preston's Case, 12 How.St.Tr. 645, a
landmark in the law of treason. Lord Preston was indicted both for
compassing the death of the king and for adherence to his enemies.
England was at war with France. The indictment alleged as an overt
act of treason that, on December 30, 1690, Lord Preston and others
hired a small boat in the County of Middlesex to take them to
another vessel which would carry them to France. The indictment
alleged that the defendants were en route to France to communicate
military information to the enemy. After the vessel set sail for
France and when the vessel was in the County of Kent, the
defendants were arrested. Papers containing information of value to
the enemy were found on the person of Lord Preston's servant. Lord
Preston contended that, since the indictment laid the Page 325 U. S. 71 treason in Middlesex, there was no showing that a legally
sufficient overt act of treason had been committed in that county.
The court held, however, that the act of boarding the boat in
Middlesex was a sufficient overt act of treason. Lord Chief Justice
Holt ruled,

															"Now the question is whether your lordship had a design to go to
France with these papers? If you had, and if your lordship did go
on shipboard in order to it, your taking boat in Middlesex in order
to go on shipboard is a fact done in the county of Middlesex."

															12 How.St.Tr., p. 728.

															Foster, in his analysis of that case, makes clear that taking
the boat was an overt act sufficient not only to the crime of
compassing the death of the king, but also adherence to the enemies
of the king. Foster, op. cit., pp. 197-198. Yet, on its
face and standing alone, the overt act of taking the boat was
completely innocent and harmless. Only when it was related to other
activities and events did it acquire a treasonable significance.
Foster gives other indications that, in case of adherence to the
enemy, the function of the overt act is no different than when the
offense of compassing is charged. The crime of adherence is made
out where the defendant attempts to send money, provisions, or
information to the enemy

															"though the money or intelligence should happen to be
intercepted; for the party, in sending, did all he could; the
treason was complete on his part, though it had not the effect he
intended." Id., p. 217.

															Blackstone emphasizes the desirability of a restrictive
interpretation of the offense of treason, condemning "constructive"
treason and "newfangled treasons" which imperil the liberty of the
people. 4 Blackstone, Commentaries (6th ed. Dublin 1775), pp. 75,
83, 85, 86. Blackstone recognizes the distinction between evidence
of intent and the overt act:

															"But, as this compassing or imagination is an act of the mind,
it cannot possibly fall under any judicial cognizance unless it be
demonstrated by Page 325 U. S. 72 some open or overt act. And yet the tyrant Dionysius is recorded
to have executed a subject barely for dreaming that he had killed
him, which was held for a sufficient proof that he had thought
thereof in his waking hours. But such is not the temper of the
English law, and therefore, in this and the three next species of
treason, it is necessary that there appear an open or overt act of
a more full and explicit nature to convict the traitor upon." Id., p. 79. When it comes to the offense of adherence
to the enemy, he gives examples of adequate overt acts, some of
which may be innocent standing by themselves.

															"This must likewise be provided by some overt act, as by giving
them intelligence, by sending them provisions, by selling them
arms, by treacherously surrendering a fortress, or the like." Id. pp. 82-83. His analysis supports the views of
Foster that the function of the overt act is to show that the
traitorous project has moved out of the realm of thought into the
realm of action.

															The English cases prior to 1790 support this thesis. We have
mentioned Lord Preston's Case. In the case of Captain
Vaughn, 13 How.St.Tr. 485, the principal charge against the
defendant was adhering to the enemy, though levying war was also
alleged. The substance of the overt act of adherence was that, when
France and England were at war, the defendant cruised in a small
ship of war, in English waters, in the service of France with
intent to take the king's ships. It was objected that the overt act
alleged was insufficient,

															"for it is said only he went a-cruising, whereas they ought to
have alleged that he did commit some acts of hostility, and
attempted to take some of the king's ships, for cruising alone
cannot be an overt act, for he might be cruising to secure the
French merchantships from being taken, or for many other purposes
which will not be an overt act of treason."

															p.531. But Lord Chief Justice Holt ruled:

															"I beg your pardon. Suppose the French king, with forces,
should Page 325 U. S. 73 come to Dunkirk with a design to invade England; if anyone
should send him victuals, or give him intelligence, or by any other
way contribute to their assistance, it would be high treason in
adhering to the king's enemies."

															p. 531. And Lord Chief Justice Treby added:

															"The indictment is laid for adhering to, and comforting and
aiding the king's enemies. You would take that to be capable to be
construed adhering to the king's enemies in other respects; but I
take it to be a reasonable construction of the indictment, to be
adhering to the king's enemies in their emnity. What is the duty of
every subject? It is to fight with, subdue, and weaken the king's
enemies; and, contrary to this, if he confederate with and
strengthen the king's enemies, he expressly contradicts this duty
of his allegiance, and is guilty of this treason of adhering to
them. But then you say here is no aiding unless there was something
done, some act of hostility. Now here is going aboard with an
intention to do such acts, and is not that comforting and aiding?
Certainly it is. Is not the French king comforted and aided when he
has got so many English subjects to go a-cruising upon our
ships?"

															Pp. 532, 533. And he went on to say that acts which "give the
enemy heart and courage to go on with the war" are acts of
adherence even though the whole project was "an unprosperous
attempt." P. 533. He emphasized that the lack of success was
immaterial, for "if they have success enough, it will be too late
to question them." P. 533. This is plain recognition not only that
the aid and comfort may be given though the project is thwarted,
[ Footnote 3/1 ] but also that aid
and comfort is given when the enemy is encouraged and his morale
bolstered as well as when materials are furnished. Page 325 U. S. 74 The case of Francis De la Motte, 21 How.St.Tr. 687, is
also somewhat illuminating. The indictment charged compassing and
adhering. The overt acts included writing and causing to be written
documents conveying intelligence to the enemy, procuring a
messenger to carry the documents, and hiring a person to gather and
to send the intelligence. Mr. Justice Buller, in his charge to the
jury, said:

															"The sending intelligence, or collecting intelligence, for the
purpose of sending it to an enemy, to enable them to annoy us or to
defend themselves, though it be never delivered to the enemy, or
the hiring a person for that purpose, is an overt act of both the
species of treason which I am stating to you from this
indictment."

															P. 808.

															These materials indicate that the function of the overt act was
to make certain that, before a conviction for the high crime of
treason may be had, more than a treasonable design must be
established; it must be shown that action pursuant to that design
has been taken. The treason of adherence was defined essentially in
terms of conduct, for it involved giving aid and comfort. Yet the
attempt alone was sufficient; the aid and comfort need not have
been received by the enemy. Conduct amounting to aid and comfort
might be innocent by itself -- such as collecting information or
stepping into a boat. It was sufficient if, in its setting, it
reflected a treasonable project. It need not entail material aid;
comfort or encouragement was sufficient. The only requirement was
that it definitely translate treasonable thought into action which
plainly tended to give aid and comfort to the enemy.

															These materials likewise support the contention of the
government that the overt act need not manifest treason on its
face.

															The history of treason in this country down to the Constitution
has been recently developed in Hurst, Treason in the United States,
58 Harv.L.Rev. 226. We Page 325 U. S. 75 do not stop to explore that field. But Professor Hurst's
researches make plain that, prior to the revolution, the influence
of 25 Edw. III was strong in the colonies, and that, if anything,
the scope of the offense was somewhat broadened. The Revolution
changed matters. The Continental Congress recommended more
restrictive legislation to the colonies which limited treason to
levying war and adhering to the enemy, giving him aid and comfort. Id., p. 247. No form of treason by compassing was
retained. Id., p. 252. Distrust of constructive treason
was beginning to be voiced ( id., pp. 253, 254), though, in
some colonies, treason was so broadly defined as to include mere
utterances of opinions. Id., pp. 266 et seq. The proceedings of the Constitutional Convention of 1787 have
been related in the opinion of the Court. And see Hurst,
Treason in the United States, 58 Harv.L.Rev. 395. As the Court
points out, the Framers were anxious to guard against convictions
of the innocent by perjury, and to remove treason from the realm of
domestic political disputes. Franklin expressed concern on the
first in his statement that "prosecutions for treason were
generally virulent, and perjury too easily made use of against
innocence." 2 Farrand, Records of the Federal Convention, p. 348.
Madison and Jefferson [ Footnote
3/2 ] both expressed distrust of treason for its long history of
abuse in the political field. Madison said, in language somewhat
reminiscent of Blackstone:

															"As treason may be committed Page 325 U. S. 76 against the United States, the authority of the United States
ought to be enabled to punish it. But, as new-fangled and
artificial treasons have been the great engines by which violent
factions, the natural offspring of free government, have usually
wreaked their alternate malignity on each other, the convention
have, with great judgment, opposed a barrier to this peculiar
danger by inserting a constitutional definition of the crime fixing
the proof necessary for conviction of it, and restraining the
Congress, even in punishing it, from extending the consequences of
guilt beyond the person of its author."

															The Federalist, No. XLIII.

															The requirement of two witnesses was not novel. England had long
had that rule. 9 Holdsworth, A History of English Law (2d ed.1938)
p. 207. The novelty was in the requirement that there be two
witnesses to the "same" overt act. Moreover, there was no novelty
in the offenses which were included in the definition of treason.
Adhering to the enemy, giving him aid and comfort, like levying
war, had long been embraced in the English crime of treason, as we
have seen. But there was novelty in the narrow definition of
treason which was adopted -- a restrictive definition born of the
fear of constructive treason and distrust of treason as a political
instrument.

															There is, however, no evidence whatever that the offense of
adhering to the enemy giving him aid and comfort was designed to
encompass a narrower field than that indicated by its accepted and
settled meaning. Nor is there the slightest indication that the
kind or character of overt acts required were any different than
those which had long been recognized or accepted as adequate. The
overt act was, of course, "intended as a distinct element of proof
of the offense in addition to intent." Hurst, op. cit., pp. 415-416. But any suggested difference from the body of law
which preceded vanishes when two witnesses to the same overt act
are produced. As respects the point vital Page 325 U. S. 77 for our decision, it is therefore quite inaccurate for the Court
to conclude that our treason clause "taught a concept that differed
from all historical models." That would be true only if there was a
purpose to depart from the concept of adhering to the enemy or the
concept of overt acts which had become ingrained in the antecedent
English law. We find no such purpose.

															[ Footnote 3/1 ] Accord: William Gregg, 14 How.St.Tr. 1371; Trial of
Dr. Hensey, 19 How.St.Tr. 1341. Both of these involved
indictments for compassing and adhering, the overt acts being
letters of intelligence intercepted before they reached the
enemy.

															[ Footnote 3/2 ]

															In a letter of April 24, 1792, Jefferson, then Secretary of
State, wrote:

															"Treason, . . . when real, merits the highest punishment. But
most codes extend their definitions of treason to acts not really
against one's country. They do not distinguish between acts against
the government and acts against the oppressions of the government;
the latter are virtues, yet they have furnished more victims to the
executioner than the former, because real treasons are rare,
oppressions frequent. The unsuccessful strugglers against tyranny
have been the chief martyrs of treason law in all countries." See 8 Writings of Thomas Jefferson (Library ed.
Wash.1903) p. 332.

Summary: The Supreme Court case Cramer v. United States (1945) dealt with a treason charge against Anthony Cramer, accused of meeting and aiding German spies during World War II. The key issue was the interpretation of the Constitutional requirement that treason must be proven by the testimony of two witnesses to the same overt act. The Court held that the overt act must be sufficient to prove that the accused gave aid and comfort to the enemy, and this protection extends to all acts used to draw incriminating inferences. In this case, while there were two witnesses who testified to Cramer's meetings with the spies, there was no proof that he provided valuable information or any form of aid. The Court found the overt acts as proved were insufficient to sustain a treason conviction, highlighting the strict standards for such charges.