CRS Annotated Constitution
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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 associates. In Ex parte Bollman,1291 which involved two of Burr’s confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying 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 assemblage 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[p.823]the government does not amount to levying of war.” 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 assembled 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 assembling of men, for the treasonable purpose, to constitute a levying of war.”
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.”1292
The Burr Trial.—Not long afterward, the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling1293 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 assemblage on Blennerhassett’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 assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall’s pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.1294
[p.824]Aid and Comfort to the Enemy
The Cramer Case.—Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and have charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States,1295 the issue was whether the “overt act” had to be “openly manifest treason” or if it was enough if, when supported by the proper evidence, it showed the required treasonable intention.1296 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 circumstantial evidence or by the testimony of a single witness,”1297 even though the single witness in question was the accused himself. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,”1298 Justice Jackson asserted. 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.1299 Here it was held that although the overt acts relied upon to support the charge of treason—defendant’s harboring[p.825]and sheltering in his home his son who was an enemy spy and saboteur, assisting 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 this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son’s instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear.”1300
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional 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 circumstances 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 incriminat[p.826]ing acts to the accused by circumstantial evidence or by the testimony of a single witness.’ 325 U.S. p. 35. The present decision is truer to the constitutional 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 transfomred into a incriminating one.”1301
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