CRS Annotated Constitution

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The Kawakita Case.—Kawakita v. United States1302 was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he was a native–born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan’s surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport.” The question whether, on this record Kawakita had intended to renounce American citizenship, 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.1303


Doubtful State of the Law of Treason Today

The vacillation of Chief Justice Marshall between the Bollman1304 and Burr1305 cases and the vacillation of the Court in the Cramer1306 and Haupt1307 cases leave 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,1308 within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions 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 Constitution . . . 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 passions 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.”1309

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.


The Confiscation Act of 1862 “to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of[p.828]Rebels”1310 raised issues under Article III, Sec. 3, cl.2. Because of the constitutional 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 title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,1311 the Court in one case1312 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 attained person “to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him.”1313


1302 343 U.S. 717 (1952).
1303 Id., 732. For citations in the subject of dual nationality, see id., 723 n. 2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. “As a matter of law, he expatriated himself as well as that can be done.” Id., 746.
1304 Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
1305 United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).
1306 Cramer v. United States, 325 U.S. 1 (1945).
1307 Haupt v. United States, 330 U.S. 631 (1947).
1308 Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two–witness rule nor the requirement as to the overt act is applicable.
1309 Ex parte Bollman, 4 Cr. (8 U.S.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n. 38 (1945), a list taken from the Government’s brief of all the cases prior to Cramer in which construction of the treason clause was involved. The same list, updated, appears in J. Hurst, op. cit., n. 1283, 260–267. Professor Hurst was responsible for the historical research underlaying the Government’s brief in Cramer.
1310 12 Stat. 589 . This act incidentally did not designate rebellion as treason.
1311 Miller v. United States, 11 Wall. (78 U.S.) 268, 305 (1871).
1312 Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).
1313 Lord de la Warre’s Case, 11 Coke Rept. 1a, 77 Rept.1145 (1597). A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Ill. Central Railroad v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 203 (1876); Armstrong’s Foundry, 6 Wall. (73 U.S.) 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle v. United States, 16 Wall. (83 U.S.) 147, 154–155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native–born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863), which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason “is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.” However, see In re Shinohara, Court Martial Orders, No. 19, September 8, 1949, p. 4, Office of the Judge Advocate General of the Navy, reported in 17 Wash. L. Rev.283 (1949). In the latter, an enemy alien resident in United States territory (Guam) was held guilty of treason for acts done while the enemy nation of which he was a citizen occupied such territory. Under English precedents, an alien residing in British territory is open to conviction for high treason on the theory that his allegiance to the Crown is not suspended by foreign occupation of the territory. DeJager v. Attorney General of Natal (1907), A.C., 96 L.T.R. 857. See also 18 U.S.C. Sec. 2381 .
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