The Constitution of the United States of America: Analysis and Interpretation Part 107

LEVYING WAR

Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his a.s.sociates. In Ex parte Bollman,[725] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying of war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into open action, by the a.s.semblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."[726] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually a.s.sembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual a.s.sembling of men, for the treasonable purpose, to const.i.tute a levying of war."[727]

On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war."[728]

The Burr Trial

Not long afterward the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling[729] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief this ruling held that Burr, who had not been present at the a.s.semblage on Blennerha.s.sett's Island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the a.s.semblage. This operation having been covert, such testimony was naturally un.o.btainable. The net effect of Marshall's p.r.o.nouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal partic.i.p.ation in actual hostilities.[730]

AID AND COMFORT TO THE ENEMY; THE CRAMER CASE

Since the Bollman case only three treason cases have ever reached the Supreme Court, all of them outgrowths of World War II and all charging adherence to enemies of the United States and giving them aid and comfort. In the first of these, Cramer _v._ United States,[731] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[732] The Court in a five-to-four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of _incriminating acts_ to the accused by circ.u.mstantial evidence or by the testimony of a single witness,"[733] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to const.i.tute treason must be supported by the testimony of two witnesses,"[734] Justice Jackson a.s.serted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.

THE HAUPT CASE

The Supreme Court sustained a conviction of treason, for the first time in its history in 1947 in Haupt _v._ United States.[735] Here it was held that although the overt acts relied upon to support the charge of treason--defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, a.s.sisting him in purchasing an automobile, and in obtaining employment in a defense plant--were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[736]

The Court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the const.i.tutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length;

"As the _Cramer_ case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circ.u.mstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.

"The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action.

That requirement is undeniably met in the present case, as it was in the case of _Cramer_.

"The _Cramer_ case departed from those rules when it held that 'The two-witness principle is to interdict imputation of _incriminating acts_ to the accused by circ.u.mstantial evidence or by the testimony of a single witness.' 325 U.S. p. 35. The present decision is truer to the const.i.tutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one."[737]

THE KAWAKITA CASE

The third case referred to above is Kawakita _v._ United States,[738]

which was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At pet.i.tioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of j.a.pan by reason of j.a.panese parentage and law. While a minor, he took the oath of allegiance to the United States; went to j.a.pan for a visit on an American pa.s.sport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in j.a.pan; changed his registration from American to j.a.panese; showed sympathy with j.a.pan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for j.a.pan; and brutally abused American prisoners of war who were forced to work there. After j.a.pan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American pa.s.sport." The question whether, on this record Kawakita had intended to renounce American citizens.h.i.+p, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[739]

DOUBTFUL STATE OF THE LAW OF TREASON TODAY

The vacillation of Chief Justice Marshall between the Bollman[740] and Burr[741] cases and the vacillation of the Court in the Cramer[742] and Haupt[743] cases leaves the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by Chief Justice Marshall himself in the Bollman case. The pa.s.sage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those inst.i.tutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason.

The wisdom of the legislature is competent to provide for the case; and the framers of our Const.i.tution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those pa.s.sions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."[744]

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

CORRUPTION OF BLOOD AND FORFEITURE

The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish Treason and Rebellion; to Seize and Confiscate the Property of Rebels raised issues under article III, section 3, clause 2." Because of the const.i.tutional doubts of the President the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any t.i.tle from the United States. In applying this act, pa.s.sed in pursuance of the war power and not the power to punish treason,[746] the Court in one case[747] quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person "to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him."[748]

Notes

[1] Miller, On the Const.i.tution, 314 (New York, 1891).

[2] 219 U.S. 346 (1911)

[3] Ibid. 361.

[4] United States _v._ Arredondo, 6 Pet. 691 (1832).

[5] General Investment Co. _v._ New York Central R. Co., 271 U.S. 228, 230 (1926).

[6] For distinctions between judicial power and jurisdiction _see_ Williams _v._ United States, 289 U.S. 553, 566 (1933); and the dissent of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 467-468 (1944).

[7] Michaelson _v._ United States, 266 U.S. 42 (1924).

[8] McIntire _v._ Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 (1807).

[9] Wayman _v._ Southard, 10 Wheat. 1 (1825)

[10] Gumbel _v._ Pitkin, 124 U.S. 131 (1888).

[11] Ex parte Peterson, 253 U.S. 300 (1920).

[12] Ex parte Garland, 4 Wall. 333, 378 (1867).

[13] Chisholm _v._ Georgia, 2 Dall. 419 (1793); Kentucky _v._ Dennison, 24 How. 66, 98 (1861) contains a review of authorities on this point.

[14] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Cary _v._ Curtis, 3 How. 236 (1845); Shelden _v._ Sill, 8 How. 441 (1850); Kline _v._ Burke Construction Co., 260 U.S. 226 (1922). _See also_ the cases discussed under the heading of the Power of Congress to regulate the jurisdiction of the lower federal courts, _infra_, p. 616.

[15] 2 Dall. 409 (1792).

[16] His initial effort was in United States _v._ Ferreira, 13 How. 40 (1852). This case involved the validity of an act of Congress directing the judge of the territorial court of Florida to examine and adjudge claims of Spanish subjects against the United States and to report his decisions with evidence thereon to the Secretary of the Treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. After Florida became a State and the territorial court a district court of the United States, the Supreme Court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings.

The duties required by the act, it was said "are entirely alien to the legitimate functions of a judge or court of justice, and have no a.n.a.logy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws." Ibid.

51.

[17] 2 Wall. 561 (1865).

[18] 117 U.S. 697 Appx. (1864). _See also_ De Groot _v._ United States, 5 Wall. 419 (1867) and United States _v._ Klein, 13 Wall. 128 (1872), which sustained Supreme Court revision after the jurisdiction of the Court of Claims had been made final. The Gordon decision had indicated that the Supreme Court could not review the decision of any legislative court.

[19] 117 U.S. 697, 703. This last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. _See_ In re Sanborn, 148 U.S. 222, 226 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 457 (1899); Frasch _v._ Moore, 211 U.S. 1 (1908); Muskrat _v._ United States, 219 U.S. 346, 355, 361-362 (1911), and Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927).

[20] 273 U.S. 70 (1927).

[21] 276 U.S. 71 (1928).

[22] 274 U.S. 123 (1927). This case also clarified any doubts concerning a federal declaratory judgment act which was pa.s.sed in 1934 and sustained in Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937).

[23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases removed all const.i.tutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in 1934 (48 Stat. 955) and sustained in Aetna Life Ins. Co. _v._ Haworth, 300 U.S.