[735] 330 U.S. 631 (1947).
[736] Ibid. 635-636.
[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Ibid. 649. The following summary, taken from the Appendix to the Government's brief in Cramer v. United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), contains all the cases in which, prior to Kawakita v. United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States v. Vigol, 28 Fed. Cas. No. 16,621 (1795), United States v. Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas. Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States v. Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States v. Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States v. Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States v. Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States v. Greiner, 26 Fed. Cas. No. 15,262 (1861) (participation as members of state militia company in seizure of a federal fort is a levying of war). United States v. Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 12 Wall. 342 (1871); Carlisle v. United States, 16 Wall. 147 (1873); Sprott v. United States, 20 Wall. 459, 371[Transcriber's Note: "371" is incorrect—case occupies 20 Wall. 459-474 (1874)] (1874); United States v. Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States v. Cathcart and United States v. Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case (unreported: see Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 2 Phil. 703 (1903), United States v. De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan v. United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F. (2d) 888 (1943).
[738] 343 U.S. 717.
[739] Ibid. 732. For citations on the subject of dual nationality, see ibid. 723 note 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." Ibid. 746.
[740] Ex parte Bollman, 4 Cr. 75 (1807).
[741] United States v. Burr, 4 Cr. 470 (1807).
[742] Cramer v. United States, 325 U.S. 1 (1945).
[743] Haupt v. United States, 330 U.S. 631 (1947).
[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).