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2 Ex parte Quirin, 317 U.S. 1 (1942) See Mason, Alpheus T., Harlan Fiske Stone: Pillar of the Law 653–66 (New York: Viking Press, 1956); Michal R. Belknap, The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case, 89 Mil. L. Rev. 59 (1980); Washington Post, July 20, 1952; summary of trial transcript, Nazi Saboteur Case, 20C, and Memorandum, Warren Olney III to the Attorney General, Feb. 4, 1953, Department of Justice File: 146–7-4219 (hereinafter cited as DJ File).Google Scholar

3 F. F.'s Soliloquy, Ex parte Quirin, Oct. 23, 1942, Box 4, Frank Murphy Papers, Michigan Historical Collections, University of Michigan. For the problem of treason, see infra note 94.Google Scholar

4 Quote, Wendell Berge to E. E. Thompson, Sept. 23, 1942, DJ File. This account draws heavily from Harold R. Medina (hereinafter cited as HRM), An Illustration: The Anthony Cramer Treason Case, in Liberal Arts and the Professions 17 (Ferdinand Phinizy Lectures at the University of Georgia, 1956); also reprinted in HRM, The Anatomy of Freedom 48 (New York: Henry Holt & Co., 1959); interview, Columbia Oral History Collection-HRM at 490–92, 607–38 (hereinafter cited as COH-HRM); interview, the author-HRM at 128–31, 438–41, 516–17, 566–82 (hereinafter cited as JWH-HRM); William M. Kunstler, The Case for Courage 312 (New York: William Morrow & Co., 1962); and a fine paper containing interviews with HRM and Charles Fahy by Jonathan Rusch, Cramer v. United States: A Study in Treason (unpub., University of Virginia, May 6, 1977).Google Scholar

5 HRM to Charles G. Proffitt, Sept. 10, 1942, Harold R. Medina Papers, Princeton University. All correspondence not otherwise cited is from this source.Google Scholar

6 See United States v. Foster, 9 F.R.D. 367 (S.D.N.Y. 1949); Dennis v. United States, 183 F.2d 301 (2d Cir. 1950); 341 U.S. 494 (1951). See also United States v. Sacher, 9 F.R.D. 394 (S.D.N.Y. 1949); 182 F.2d 416 (2d Cir. 1950); 343 U.S. 1 (1952).Google Scholar

7 After a bungled pleading provoked a client's suicide in 1915, he had lost his nerve for trials and concentrated on appeals. He developed into a skilled trial lawyer in the 1930s, having learned what not to do from appeals. See Daniel, Hawthorne, Judge Medina: A Biography 108–9 (New York: Wilfred Funk, Inc., 1952); COH-HRM at 68, 256–60; 509–11; JWH-HRM at 385–87; and HRM to S. A. Mc-Swain, Jan. 7, 1915. His most important writings included: Important Features of Pleading and Practice Under the New York Civil Practice Act (New York: Baker, Voorhis & Co., 1922); Medina's New York Civil Practice Manual (New York: George Grady Press, 1928; 2d ed. 1930; 3d ed. 1932); with Carr & Finn (St. Paul, Minn.: West Publishing Co., 1936–42); and his magnum opus, Cases on New York Pleading and Practice (New York: Callaghan & Co., 1928). At the urging of Dean Harlan F. Stone, he also published one of the earliest casebooks on federal civil procedure, HRM, Cases on Federal Jurisdiction and Procedure (St. Paul, Minn.: West Publishing Co., 1926), later edited by Armistead M. Dobie.Google Scholar

8 Interviews, COH-George W. Alger at 172; JWH-HRM at 413. He was counsel in such important litigation as People v. Marcus, 235 A.D. 397 (1932); 261 N.Y. 268 (1933), involving one of the largest bank failures in U.S. history; and Matter of MacAdams v. Cohen, 236 A.D. 361; 260 N.Y. 559 (1932), a defeat that paved the way for Fiorello H. LaGuardia's election as Mayor of New York City.Google Scholar

9 Douglas, William O., Go East Young Man 147 (New York: Random House, 1974).Google Scholar

10 For Medina's concepts of advocacy, see HRM, How Law Suits Are Won and Lost, 1938 Clev. B.A.J. 61; and The Oral Argument on Appeal, 20 A.B.A.J. 139 (1934).Google Scholar

11 HRM to Rollin B. Sanford, May 20, 1938.Google Scholar

12 Jailers, he recalled, gave him a “helluva time” about interviewing Cramer in private. He had to obtain an order from Judge Knox, who “backed me up to beat the band.” JWH-HRM at 654; Irene Soehren, Lawyers on Trial, Reporter, July 11, 1957, at 31.Google Scholar

13 N.Y. Times, Nov. 17, 1942, at 27, col. 5. HRM, Anthony Cramer, supra note 4, at 18–19; Transcript of Record, Supreme Court of the United States, Oct. Term, 1943, No. 406, Cramer v. United States, HRM, 233 Cases & Points 19, 234, 334, and quote at 239 (1943) (hereinafter cited as Record).Google Scholar

14 Record at 262–64, 133.Google Scholar

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16 Record at 4–7.Google Scholar

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22 COH-Charles Fahy at 164; HRM, Anthony Cramer, supra note 4, at 23; Memorandum, Philip Elman to the Solicitor General, June 7, 1944, Box 34, Charles Fahy Papers, Franklin D. Roosevelt Library, Hyde Park, New York (hereinafter cited as FDR Library). See James Willard Hurst, The Law of Treason in the United States ix-x (Westport, Conn.: Greenwood Publishing Corp., 1971); and Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins 83 (Seattle: University of Washington Press, 1964).Google Scholar

23 Memorandum, Unsigned, Re Accessories to Axis Sabotage, July 15, 1942; Press release, July 16, 1942; unsigned Memorandum to M. E. Gilford, Aug. 10, 1942, enclosed with M. E. Gilford to Oscar Cox, Aug. 11, 1942; Memoranda, Wendell Berge to the Attorney General, Aug. 10, 1942, & July 3, 1943; and HRM to Chester T. Lane, Feb. 28, 1944, DJ File.Google Scholar

24 Cf. Memoranda, Wendell Berge to the Attorney General, July 6 & Aug. 10, 1942; Memorandum, W. Wallace Kirkpatrick, Melva M. Graney, and Philip R. Monahan to Assistant Attorney General Berge, n.d.; Memorandum, Melva M. Graney to Assistant Attorney General Berge, Aug. 7, 1942; Memorandum, Wallace Kirkpatrick to Wendell Berge, Aug. 5, 1942; and two unsigned Memoranda to Assistant Attorney General Berge, Aug. 4, 1942, DJ File.Google Scholar

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27 United States v. Haupt, 136 F.2d 661 (7th Cir. 1943). Burger's testimony solved a nagging technical problem of no witnesses to prove that the aided saboteurs were enemies of the United States. George A. McNulty to Francis Biddle, July 20, 1942, DJ File. The government did not use the other informer, George John Dasch, as a witness because of his “unsatisfactory attitude.” See Wendell Berge to James Mclnerney, Sept. 22, 1942; Wendell Berge to Mathias F. Correa, Oct. 19 & 22, 1942, DJ File. Both men received clemency and were deported to Germany in 1948.Google Scholar

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40 Id. at 402; HRM to Walter K. Urich, Sept. 22, 1947.Google Scholar

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48 Id. at 26.Google Scholar

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52 Id. at 375, 454.Google Scholar

53 Id. at 437.Google Scholar

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56 The Supreme Court later repudiated the natural consequences presumption. See Sandstrom v. Montana, 442 U.S. 510, 512 (1979); Connecticut v. Johnson, 460 U.S. 73 (1983); and Francis v. Franklin, 105 S. Ct. 1965 (1985).Google Scholar

57 Record at 437–46, 481. Cf. Memorandum, W. Marvin Smith to the Solicitor General, Mar. 8, 1944, Box 55, Fahy Papers, FDR Library; United States v. Cramer, 137 F.2d 888, 893 (2d Cir. 1943); and Frederick Bernays Wiener, Briefing and Arguing Federal Appeals 152–56 (Washington, DC: Bureau of National Affairs, 1967).Google Scholar

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63 JWH-HRM at 578. See United States v. Cramer, brief for the United States, HRM, 229 Cases & Points 9 n., 21 (1943); and brief for defendant-appellant, id. at 49.Google Scholar

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66 259 F. 685, 690 (S.D.N.Y. 1919).Google Scholar

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131 Korematsu v. United States, 323 U.S. 214 (1944); Ex parte Endo. 323 U.S. 283 (1944).Google Scholar

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141 Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar

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143 Conference notes. Mar. 13, 1944, Murphy Papers, Michigan Historical Collections; Frankfurter memo, No. 13, Cramer v. United States, Nov. 7, 1944, Box 97, Douglas Papers, MS-LC. During the intense debate. Justice Murphy recorded the following colloquy between Frankfurter and the oe-nophile Chief Justice: FF. I suppose we know more than those who drafted the Constitution CJ. I know some things better than those who drafted the Constitution FF. Yes on wine and cheese [uproar] Murphy, J., undated conference notes, Cramer v. United States, Oct. Term 1944, No. 13, Murphy Papers, Michigan Historical Collections.Google Scholar

144 Memorandum, July 12 & 14, 1944, No. 406, Cramer v. United States, Box 129. Jackson Papers, MS-LC.Google Scholar

145 Draft opinion, Dec. 26, 1944, at 7. Oct. Term 1944, No. 13, Box 130 Jackson Papers, MS-LS.Google Scholar

146 Id. at 10–11, 16; and memorandum, July 12, 1944, at 2–3, No. 406, Cramer v. United States, Box 129, Jackson Papers, MS-LC. See Hurst, supra note 22, at 126–45.Google Scholar

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148 Cf. memorandum by P.C.N. [Phil C. Neal], Cramer v. United States, Jan. 14, 1945, and unsigned memorandum, Re: Cramer, Feb. 22, 1945, Box 130, Jackson Papers, MS-LC.Google Scholar

149 Cf. id.; Jackson's draft opinions, Jan. 17 & 23, 1945, Box 130, Jackson Papers, MS-LC; and Cramer v. United States, 325 U.S. 1, at 35–36. According to Neal, Justice Jackson almost invariably wrote his own opinions from the very first draft. Letter to author, Dec. 23, 1986.Google Scholar

150 Stanley Reed to Robert H. Jackson, Mar. 19, 1945, Box 130, Jackson Papers, MS-LC. 325 U.S. 1 (1945). Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar

151 325 U.S. 1, 20, 34.Google Scholar

152 Id. at 33–35.Google Scholar

153 Id. at 37.Google Scholar

154 Id. at 38.Google Scholar

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156 See supra note 57. This question remained troublesome. Cf. Wiener, supra note 57, at 152–56; and unsigned memorandum re Haupt v. United States, Oct. Term 1946, No. 119, Feb. 26, 1947, Box 155, Rutledge Papers, MS-LC.Google Scholar

157 325 U.S. 1, 45–48.Google Scholar

158 Handwritten notes, Frank Murphy to Robert H. Jackson, undated; Owen J. Roberts to Robert H. Jackson on memorandum of Mar. 9, 1945, Box 130, Jackson Papers, MS-LC.Google Scholar

159 325 U.S. 1, 48–49, 60. Cf. Harlan F. Stone, undated Memorandum. Cramer v. United States not used, much of which became Rider 9 of Douglas's opinion; and 325 U.S. 1, at 60–61. Cf. Black, J. dissent, Cramer v. United States, Oct. Term 1943, No. 406, at 3, 55. Box 97, Douglas Papers, MS-LC; and 325 U.S. 1.Google Scholar

160 325 U.S. 1, 60–61. The problem of inseparable evidence cut both ways. For Rutledge's worries from the opposite direction, see Wiley Rutledge to Robert H. Jackson, Mar. 5, 1945, Box 112, Rutledge Papers, MS-LC.Google Scholar

161 325 U.S. 1, 59, 65–67.Google Scholar

162 Fine, supra note 80, at 464–65. Cf., e.g., Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Haupt v. United States, 330 U.S. 631, 644–46 (1947); and Dennis v. United States, 341 U.S. 494, 561, 579, 581 (1951). In Dennis, 11 Communist Party leaders were convicted under the Smith Act for conspiracy to advocate overthrow of the U.S. government by force and violence. Medina as presiding judge denied a free-speech challenge to the Smith Act on the basis of specific intent to overthrow the government as speedily as circumstances would permit. 9 F.R.D. 367, 390 (1949). The Supreme Court, including Reed, Frankfurter, and Jackson, sustained the convictions under a clear and probable danger test formulated by Learned Hand in the circuit court. Black and Douglas, dissenting vigorously, contended that the Smith Act was unconstitutional for want of seditious acts or sufficiently dangerous speech. Thus, in both Cramer and Dennis, the government contended that hostile intention confirmed illegal action while the defense challenged the sufficiency of overt acts. Medina, Hand, Clark, Frankfurter, Jackson, Black, and Douglas apparently switched positions, if one assumes that the two crimes were analogous. Douglas assumed so in Dennis, id. at 583. Also see Hurst, supra note 22, at 243, 252 n.19. There is no evidence that Medina considered the analogy in Dennis. Conspiracy had not been charged in Cramer, and he had taken pains to deny any analogy between treason and conspiracy in order to preserve the two-witness requirement. At the time of Dennis, moreover, conspiracy under the Smith Act required no overt act.Google Scholar

163 Anthony Cramer to HRM, Apr. 24, 1945.Google Scholar

164 Rusch, supra note 4, at 23; HRM, supra note 4, at 39. Tom C. Clark to John F. X. McGohey. May 22, 1945 & June 13, 1945; Memorandum, J. M. Mclnerney to Mr. Elilf, Sept. 20. 1945, DJ File. N.Y. Herald Tribune, Sept. 29, 1945; Anthony Cramer to HRM, Mar. 5, 1950, and HRM's reply, Mar. 7, 1950.Google Scholar

165 325 U.S. 91 (1945).Google Scholar

166 325 U.S. 226 (1945).Google Scholar

167 325 U.S. 761 (1945).Google Scholar

168 COH-Fahy at 163; COH-Lane at 723–25.Google Scholar

169 Hurst, supra note 22, at 207, 247, 218.Google Scholar

170 Corwin, Edward S., Total War and the Constitution 126 (New York: Alfred A. Knopf, 1947). Frederick Bernays Wiener also criticized the Court's reading of history in Uses and Abuses of Legal History: A Practitioner's View, Selden Society Lecture 12–13, 30–31 (London: Bernard Quaritch, 1962). The gravamen of historical criticism differed, however. Hurst emphasized precedents, Corwin seminal English statutes, and Wiener the concepts of James Wilson at the Philadelphia convention. Cf. Justice Jackson's belief, prior to reargument, that (1) the Framers at Philadelphia had cut clean “from pre-Revolution interpretations of English statutes by English courts” and (2) rejected Wilson's views by adopting Franklin's. Memorandum, July 12, 1944, 2–4, No. 406, Cramer v. United States, Box 129, Jackson Papers, MS-LC.Google Scholar

171 HRM to Christian Gauss, May 7, 1945. Justice Murphy also believed the Framers wanted to make treason convictions “almost impossible.” Undated, handwritten note, Frank Murphy to Robert H. Jackson, Box 130, Jackson Papers, MS-LCGoogle Scholar

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173 Wiener, supra note 170, at 12 n.6; Hurst, supra note 22, at 236–59, 265–67. The poet Ezra Pound was indicted for treason for his radio broadcasts from Italy but not brought to trial by reason of insanity. See E. Fuller Torrey, The Roots of Treason (New York: McGraw-Hill Book Co., 1983). For a lucid self-defense, see Ezra Pound to Francis Biddle, Aug. 4, 1943, as quoted in Charles Norman, Ezra Pound 389–91 (New York: Macmillan, 1960).Google Scholar

174 Haupt v. United States, 330 U.S. 631, 635, 645–46 (1947). See Black's comments on Douglas's slip opinion in Haupt v. United States, Box 283, Hugo L. Black Papers, MS-LC; and William O. Douglas, Memorandum to the Conference, Mar. 14, 1947, Box 155, Rutledge Papers, MS-LC. Also see COH-Fahy at 163; Hurst, supra note 22, at 255 nn.35-36; and Wiener, supra note 170, at 13, and supra note 57, at 152.Google Scholar

175 United States v. Rosenberg, 195 F.2d 583, 611 (2d Cir. 1952), cert, denied, 344 U.S. 838 (1952). See Kutler, Stanley I., The American Inquisition: Justice and Injustice in the Cold War 19–23 (New York: Hill & Wang, 1983); and Hurst, supra note 22, at 239–40, 249.Google Scholar

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181 Harlan F. Stone to HRM, June 20, 1945.Google Scholar

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188 Cramer, Anthony, to HRM, Mar. 5, 1950, & Dec. 19, 1950.Google Scholar

189 John C. Knox to HRM, Mar. 13, 1950. One Justice, probably Black, questioned Jackson's description of Cramer as “a studious and intelligent man in humble position.” That was “What Medina said about him?” he wrote, on the margin of Jackson's slip opinion, Memorandum for the Conference, No. 406, Apr. 24, 1944, at 4, Box 97, Douglas Papers, MS-LC.Google Scholar

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