Robert H. Jackson

“ 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. ”

“ 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 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 ”

“ The defendant especially challenges the sufficiency of 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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? ”

“ It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion. ”

“ 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 [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. ”

“ 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. ”

“ 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. ”

“ 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. [50]
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 reservations which all of us entertain as to the admissibility of some of it or those which some entertain as to other of it. ”

“ 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? 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. ”

“ The plight of petitioners is not due to any failure of the State of Illinois to provide forums adequate for the hearing of their cases under the federal statute. The state provides a system of circuit courts sitting in each of its counties which have general and unlimited original jurisdiction at law and in equity. These were open to the petitioners, but they chose instead to file their complaints in city courts. It would not be open for us to say that the state in setting up a local court could not limit its jurisdiction to actions arising within the city for which it is established. ”

“ If for instance it should be the state law that local causes are sufficiently commenced from the time of filing the complaint, though in the wrong court for reasons of jurisdiction relating to trial and decision, if nevertheless upon discovery of the error the cause is transferred to another court having complete jurisdiction, nothing in Section 6 or the Federal Employers' Liability Act requires or permits suits brought under that Act to be treated differently. A state may confer upon its courts of limited jurisdiction limited powers over causes they are not competent to hear and decide. ”

“ After constitutional requirements have been satisfied, and after juries have convicted 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. ”

“ Neither the Illinois Court of Appeals nor the State Supreme Court which remanded Herb's case to the City Court had any doubt at that time that suits had been 'commenced.'
The plainest principles of justice demand that these employees be afforded a trial. No reason that can be conceived for erecting a statutory bar of two years justifies an inference that Congress intended that employees who made bona fide efforts to prosecute their claims in a court should be barred because of unanticipated decisions as to jurisdiction. ”

“ Many a citizen in a time of unsettled and shifting loyalties was thus threatened under 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. ”

“ 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. ”

“ 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. ”

“ That Act contains no statute of limitations. No authority has been cited to support the proposition that the condition of liability imposed by § 6 of the Federal Employers' Liability Act applies to actions for damages for violation of the Safety Appliance Act. The rule of this Court has been to give the Safety Appliance Act, under which these claims are filed, a liberal construction, and one which will promote, not defeat its purpose. ”

“ 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. ”

“ 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. ”

“ That Thiel 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. ”

“ These causes are continued for such period as will enable counsel for petitioners with all convenient speed to apply to the Supreme Court of Illinois for amendment, or certificate, which will show whether it intended to rest the judgments herein on an adequate and independent state ground or whether decision of the federal question was necessary to the judgment rendered. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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 State of 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. ”