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30 Mil. L. Rev. 43 (1965)
Treason and Aiding the Enemy

handle is hein.journals/milrv30 and id is 51 raw text is: TREASON AND AIDING THE ENEMY* BY CAPTAIN JABEZ W. LOANE, IV** I. INTRODUCTION It has been said that no crime is greater ;' it has been termed . . the most serious offense that may be committed against the United States; 2 it has been classified as the highest of all crimes. 3 Chief Justice Marshall once commented: As there is no crime which can more excite and agitate the passions of men, no charge demands more from the tribunal before which it is made a deliberate and temporate inquiry. ' All of these quota- tions refer to the same offense-the crime of treason. It is a crime which, in many ways, is set apart from all others. It is the only crime specifically denounced by the Constitution of the United States.5 It is the only federal crime upon which con- viction must be predicated on the testimony of two eye-witnesses to the overt act of the offense.6 It may only be committed in time of war or quasi war since it must be predicated either in levying war against the United States or in aiding an enemy. It is the only crime which, if successfully committed, may cease to be a crime. As Sir John Harrington noted: Treason doth never prosper; what's the reason? Why, if it prosper, none dare call it treason.- * This article was adapted from a thesis presented to The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Thirteenth Career Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General's School or any other govern- mental agency. ** JAGC, U. S. Army; Office of the Staff Judge Advocate, Hq, U. S. Army, Europe; A.B., 1953, Duke University; LL.B., 1956, University of Maryland; Member of the Bars of the State of Maryland, the United States Supreme Court, and the United States Court of Military Appeals. 'Hanauer v. Doane, 79 U.S. (12 Wall.) 342, 347 (1870). - Stephen v. United States, 133 F.2d 87, 90 (6th Cir.), cert. denied, 318 U.S. 781 (1943). Charge to Grand Jury, 30 Fed. Cas. 1024, 1025 (No. 18269) (C.C.D. Mass. 1851). Marshall, C. J., in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 125 (1807). U. S. CONST. art. III, § 3. 'Ibid. This assumes, of course, a plea other than guilty. However, it should be noted that some states require two witnesses to any crime pun- ishable by death. See State V. Chin Lung, 106 Conn. 701, 139 A. 91 (1929). 7 FAMILIAR QUOTATIONS 29 (12th ed. Morley Ed., 1951). AGO 5364B

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