Defining Treason 1918
Defining Treason 1918
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WHAT IS GIVING AID AND COMFORT
TO THE ENEMY?
CHARLES WARREN
Washington, D. C.
The elements of the law of treason are extremely simple, and yet
are little understood by laymen, and even by practicing lawyers of the
present day. Hence, a critical summary of the principal features of
that branch of the crime which consists in giving "aid and comfort"
to the enemy may be of assistance during the present trying times. The
law in this country on the subject is to be found in very few court
decisions, and has been largely laid down in generalities in charges to
the grand jury in inferior federal courts. As a result, there has some-
times been a lack of discrimination between the doctrines of law
applicable to "levying war" and those applicable to "giving aid and
comfort."
Treason is the only crime specifically described in the Constitution.
Article III, Section 3, provides:
"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 testi-
mony of two witnesses to the same overt act, or on confession in open
court."
24 [33']
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332 YALE LAW JOURNAL
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AID AND COMFORT TO THE ENEMY 333
their enemies, giving them aid and comfort,"-are distinct, and do not
embody synonymous actions.
'See Field, J., in United States v. Greathouse (i863, C. C.) 4 Sawyer, 457, 466,
2 Abb. (U. S. D. C.) 364, 26 Fed. Cas. No. I5,254.
'Prize Cases (i862, U. S.) 2 Black, 635.
'Marshall, C. J., in Ex Parte Bollman and Swartwout (i8o7, U. S.) 4 Cranch,
75, I26.
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334 YALE LAW JOURNAL
"to aid and assist any enemy . . . by joining the armies of the enemy,
or by enlisting, or procuring, or persuading others to enlist for that
purpose; or by furnishing such enemies with arms or ammunition,
provision, or any other article, or articles, for their aid or comfort,
or by carrying on a traitorous correspondence with them."9
"be adherent to the King's enemies in his realm, giving to them aid
and comfort in the realm, or elsewhere," the Lord Chief Justice
charged the jury as follows: "If a British subject does an act which
strengthens or tends to strengthen the enemies of the King in the
conduct of a war against the King, that is in law the giving of aid
and comfort to the King's enemies. Again, if a British subject com-
mits 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, that is in law the giving of aid and comfort to the King's
enemies.""
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AID AND COMFORT TO THE ENEMY 335
Among the specific acts which have been held to come within the
purview of the above are the following:
' Charge to Grand Jury (i86i, C. C.) i Bond, 6og, 6II, 30 Fed. Cas. No. i8,372.
'Sprott v. United States (i874, U. S.) 20 Wall. 459, 463; Hanauer v. Doane
(1870, U. S.) I2 Wall. 342, 347; Carlisle v. United States (i872, U. S.) i6 Wall.
I47, I55; Young v. United States (i877, U. S.) 97 U. S. 39, 64, 65; United States
v. Aaron Burr (i807, U. S.) 4 Cranch, App. 469, 47I.
1'People v. Lynch (i8I4, N. Y.) ii Johns. 549.
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336 YALE LAW JOURNAL
but mere proceeding to shore from a ship with intent to search for or
procure provisions for the use of the enemy is not treason.15
"Without going into details on the subject, I will briefly notice some
things clearly involving the guilt of treason. Thus, to sell to, or
provide arms or munitions of war, or military stores, or supplies,
including food, clothing, etc., for the use of the enemy, is within the
penalty of the statute. And to hire, sell, or furnish boats, railroad
cars, or other means of transportation, or to advance money, or obtain
credits, for the use and support of a hostile army is treasonable. It is
equally clear that the communication of intelligence to the enemy by
letter, telegraph, or otherwise, relating to the strength, movements, or
position of the army, is an act of treason. These acts, thus briefly
noted, show unequivocally an adherence to the enemy, and an unlawful
purpose of giving him aid and comfort."'
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AID AND COMFORT TO THE ENEMY 337
(g) "Acts which tend and are designed to defeat, obstruct, or weaken
our own arms."
The Lord Chief Justice, in the Casement case, said:
f Charge to the Grand Jury (i86i, C. C. S. D. N. Y.) 5 Blatch. 549, 552, 30 Fed.
Cas. No. i8,27I. See also The Tulip (i8I2, C. C.) 3 Wash. i8i, i83.
2 Charge to Grand Jury (i842, C. C.) i Story, 614, 6i6, 30 Fed. Cas. No. i8,275
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338 YALE LAW JOURNAL
the King, that is in law the giving of aid and comfort to the King's
enemies. Again, . . . to weaken the power of the King and of the
country-to resist or to attack the enemies of the King and the country,
that is in law the giving of aid and comfort to the King's enemies."22
'Rex v. Casement [I9I7] i K. B. 98, I33. And see Sprague, J., in Charge to
Grand Jury (i86i, C. C.) 2 Sprague, 285, 30 Fed. Cas. No. i8,277.
' United States v. Mitchell (I795, C. C) 2 Dall. 348. See United States v.
Vigol (I795, C. C.) 2 Dall. 346. See also opinions of Iredell, J., Chase, J., and
Peters, D. J., in the Fries Case (0799, C. C.) Whart. St. Tr. 458, 3 Dall. 50
Cas. No. 5i26, pp. 840, gog.
2 United States v. Aaron Burr, Fed. Cas. No. I4,692a, p. I3.
' Idem. Fed. Cas. No. I4,693, p. i6i.
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AID AND COMFORT TO THE ENEMY 339
"It is not the intention of the court to say that no individual can
be guilty of this crime who has not prepared in arms against his
country. On the contrary, if war 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."26
"to resist the execution of a law of the United States; not in a par-
ticular instance or case alone, but in pursuance of a determination
to prevent its operation at all, in any and every case," says: "Wher-
ever a body of men are assembled in force for such a purpose, and
are in a condition to carry that purpose into effect, the assemblage
itself is an act of levying war."29
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340 YALE LAW JOURNAL
(i) Advising, inciting and persuading others to give aid and com-
fort to the enemy may in itself constitute treason.
? United States v. Greiner (i86i, D. C. E. D. Pa.) Fed. Cas. No. 15,262, P. 39.
An article on Treason written prior to the Burr case is to be found in (i8o8)
i AM. LAW J. 344, 359, which takes the opposite view, and contends:
"Laying, therefore, the opinion of the supreme court out of the case, I hold it
to be clear and settled law, that the actual employment of the force, after it has
been assembled, in some unlawful act of violence conducive to the accomplish-
ment of the hostile design, is necessary to constitute the crime of levying war."
See Curtis, J., in Charge to Grand Jury (i85I) Fed. Cas. No. i8,269.
' Charge to Grand Jury (i86i, C. C. S. D. Oh.) I Bond, 609, 30 Fed. Cas. No.
i8,272. See also Mr. Justice Nelson, in Charge to Grand Jury (i86i, C. C. S. D.
N. Y.) 5 Blatch. 549, 30 Fed. Cas. No. i8,27I.
judge Smalley in Charge to Grand Jury (i86i, U. S. D. C. S. D. N. Y.) 4
Blatch. 5i8, Fed. Cas. No. i8,270, states:
"What amounts to adhering to, and giving aid and comfort to our enemies, it
is somewhat difficult in all cases to define; but certain it is, that furnishing them
with arms or munitions of war, vessels or other means of transportation, or any
materials which will aid the traitors in carrying out their traitorous purposes,
with a knowledge that they are intended for such purposes, or inciting and
encouraging others to engage in or aid the traitors in any way, does come within
the provisions of the act."
(The word "traitors" in the above charge is synonymous with "enemies.")
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AID AND COMFORT TO THE ENEMY 341
and to fight against the King ......." Another overt act was "cir-
culating and distributing and causing and procuring to be circulated
and distributed to and amongst certain persons being British subjects
and members of the military forces of the King and being prisoners
of war . . . a certain leaflet . . . with intent to solicit, incite, and
persuade the said last-mentioned British subjects, being Irishmen,
to forsake their duty and allegiance to the King and to aid and
assist his enemies in the prosecution of the said war against the King
and his subjects."33
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342 YALE LAW JOURNAL
"they who have the wickedness to plan and incite and aid, and who
perform any part however minute, are justly deemed guilty of this
offence, though they are not present at the immediate scene of vio-
lence."36 And he stated further: "Influential persons cannot form
associations to resist the law by violence, excite the passion of ignorant
and unreflecting, or desperate men, incite them to action, supply them
with weapons, and then retire and await in safety the result of the
violence which they themselves have caused. To permit this, would
not only be inconsistent with sound policy, but without a due regard
to the just responsibilities of men. The law does not permit it."37
See United States v. Aaron Burr (i807) Fed. Cas. No. 14,693, Note A, p. i8I.
Marshall, C. J., in the Burr case expressly declined to pass upon it (ibid. p. i6i).
86 (C. C. D. Mass.) Fed. Cas. No. i8,269, p. io26.
So Kane, J., in Charge to Grand Jury (i85I, C. C. E. D. Pa.) 30 Fed. Cas. No.
i8,276, held in case of "levying war" that if forcible acts had been committed,
"If he was present, directing, aiding, abetting, counselling, or countenancing it,
he is in law guilty of the forcible act. Nor is even his personal presence indis-
pensable. Though he be absent at the time of its actual perpetration, yet if he
directed the act, devised or knowingly furnished the means, for carrying it into
effect, instigating others to perform it, he shares their guilt."
The same doctrine is vigorously upheld by Professor Simon Greenleaf, On the
Law of Treason (i85I) I4 LAW REP. 409. As to Judge Kane's charge, Note A
in the Burr case, 25 Fed. Cas. No. I4,693, p. i82, says:
"These mere obiter dicta of a district judge, thrown out in a charge to the
grand jury, derive their only consequence from the fact that Judge Grier, subse-
quently in his charge to the petit jury in Hanway's case expressed his general
concurrence in the doctrines and sentiments of said charge to the grand jury
delivered by Judge Kane. But, as has been before stated, there was nothing in
Hanway's case to call for any opinion on the question now under consideration.
as Grier, J., in United States v. Hanway (i85I, C. C. E. D. Pa.) 2 Wall. Jr. 139,
26 Fed. Cas. No. 15,299, P. i26.
89 United States v. Hoxie (i8o8, C. C. D. Vt) i Paine, 265, 26 Fed. Cas. No.
15,407; Nelson, J., in Charge to Grand Jury (i86i, C. C. S. D. N. Y.) 30 Fed.
Cas. No. i8,27i; United States v. Hanway (I85I, C. C. E. D. Pa.) 2 Wall. Jr. I39,
26 Fed. Cas. No. I5,299; United States v. Burr (i807) 25 Fed. Cas. No. I4,692a,
p. I4, 4 Cranch, App. 469; United States v. Pryor (i8I4, C. C. D. Pa.) 27 Fed.
Cas. No. 16,o96.
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AID AND COMFORT TO THE ENEMY 343
OVERT ACT
There must be an overt act, for it is well settled that the law cannot
punish a mere operation of the mind. The words "overt act" mean
an act of a character susceptible of clear proof and not resting in
mere inference or conjecture. An "overt act," however, can be as
well words as deeds if they can be proved by direct evidence. The
requirement of proof of an "overt act," it has been said, was intended
to exclude the possibility of a conviction of the odious crime of trea-
son upon proof of facts which may be only treasonable by construc-
tion or inference, or which have no better foundation than mere
suspicion.
Where the overt act is a composite thing, made up of several
circumstances, and passing through various stages, it is not necessary,
in order to satisfy the provisions of the statute requiring two witnesses
to an overt act, that there should be two witnesses to each circumstance
at each stage.'2-
Conviction of treason cannot be had on confession, unless such con-
fession is in open court. But evidence of confession out of court is
admissible to corroborate evidence of overt acts.43
INTENT
'Ex Parte Bollman and Swartwout (1807, U. S.) 4 Cranch, 75, I26.
' Charge to Grand Jury (i86i, C. C. S. D. Oh.) i Bond, 609, 30 Fed. Cas. No.
18,372.
'a United States v. Mitchell (0795, C. C. D. Pa.) 2 Dall. 348; Regina v. Mc-
Cafferty (i867) io Cox Cr. 603.
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344 YALE LAW JOURNAL
"The case is not relieved of its harsh features by the finding of the
court that the claimant did not intend to aid the rebellion, but only to
make money. It might as well be said that the man who would sell
for a sum beyond its value to a lunatic, a weapon with which he knew
the latter would kill himself, only intended to make money and did not
intend to aid the lunatic in his fatal purpose."45
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AID AND COMFORT TO THE ENEMY 345
Commonwealth v. Webster (i850, Mass.) 5 Cush. 295, 305, 3i6. See also
United States v. Hoxie (i8o8, C. C. Vt.) i Paine, 265, 280; Charge to Grand
Jury (i842) i Story, 6I4; United States v. Bollman (i8o6) I Cranch, 373, 384.
'4 United States v. Fries, supra.
6' United States v. Burr, 25 Fed. Cas. No. 14,693.
6 United States v. Fries, supra.
I (i874, U. S.) 20 Wall. 459.
65 (x863, C. C. D. Cal.) 2 Abb. 364, 379.
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346 YALE LAW JOURNAL
of war with the purpose of attacking and destroying the United States
vessels. These were held to be overt acts of treason as giving aid
and comfort to the enemy; and it was said:
"It is not essential, to constitute the giving of aid and comfort, that
the enterprise commenced should be successful, and actually render
assistance. If, for example, a vessel fully equipped and armed in the
service of the rebellion should fail in its attack upon one of our vessels,
and be itself captured, no assistance would, in truth, be rendered to
the rebellion; but yet, in judgment of law-in legal intent-the aid
and comfort would be given. So if a letter containing important
intelligence for the insurgents, be forwarded, the aid and comfort are
given, though the letter be intercepted on its way. Thus, FOSTER, in
his Treatise on Crown Law, says: 'And the bare sending money or
provisions, or sending intelligence to rebels or enemies, which in most
cases is the most effectual aid that can be given them, will make a
man a traitor, though the money or intelligence should happen to be
intercepted; for the party in sending it did all he could; the treason
was complete on his part, though it had not the effect he intended.'"
So, also, in case of letters to the enemy which are intercepted and
never reach the enemy, it is held that the treason is complete on the
defendant's part, in that he has done all that he can to carry it forward.
As was said by Lord Chief Justice Kenyon:
' Rex v. Stone (0796) 6 Term Rep. 527, 529. To the same effect are Rex v.
Hensey (0758) i Burr. 642, and Gregg's Trial (07o8) I4 How. St. Tr. I37I.
" (i872, U. S.) i6 Wall. I47, I55. See also Radich v. Hutchins (i877) 95 U. S.
2I0, United States v. Wiltberger (i820, U. S.) 5 Wheaton, 76.
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AID AND COMFORT TO THE ENEMY 347a
ADDENDA
[Through editorial oversight, the concluding portion of the article on What
Is Giving Aid and Comfort to the Enemy? by Charles Warren, Esq., was
omitted from the January issue. This portion is printed below. The present
sheet should be bound after page 346.-Ed.]
There have been various federal statutes other than the Treason
Act in which the words "aid and comfort" to the enemy have been
used and construed by the courts,-see the Abandoned and Captured
Property Act of March 3[I2], i863,56 the Court of Claims Act of
June 25, I868.57 Decisions of the Court.of Claims may be somewhat
helpful in ascertaining the meaning of these words, although those
decisions (prior to I870) are not an entirely safe precedent; for that
court in holding, in i866, that they included "any acts voluntarily
committed which would tend to assist, countenance, abet, or encour-
age the rebellion," also held that the words were not confined "to
such acts as would under the Constitution and laws constitute
treason."58 If this expression simply meant that which was decided
in the Supreme Court in i870 in Young v. United States,59 viz.: that
"a claimant to be excluded need not have been a traitor: it is sufficient
if he has done that which would have made him a traitor if he had
owed allegiance to the United States," then the Court of Claims cases
are of value. The following acts, among others, have been held
to constitute "aid and comfort": standing guard over Federal
prisoners and being enrolled for local defense in Richmond ;6? super-
intending enemy boats, and running through the federal blockade,
engaging in commercial transactions within the enemy lines;61 con-
nection with blockade companies and violations of blockade law ;62
bringing slaves within the Confederate lines to prevent their emancipa-
tion ;63 allowing a steamboat to be used in the military service of the
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347b YALE LAW JOURNAL
GENERAL CONSIDERATION
4 Slawson's Case (i870) 6 Ct. Cl. 370, (i873, U. S.) i6 Wall. 3I0.
65 (I868) 4 Ct. Cl. I, 13.
'"Hill v. United States (1872) 8 Ct. Cl. 470.
6r 5 Ct. Cl. 627, 63I.
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AID AND COMFORT TO THE ENEMY 347
All aliens, therefore, in the United States who in any way give aid
and comfort to the enemy, even though that enemy be of their own
blood and kin, are guilty of treason to the United States, and may be
punished by death, exactly as any citizen native born or naturalized
who performs the same acts may suffer that penalty.
25
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