Subject: Re: Pound's Treason Charge
 
        A point or two about Pound's "guilt" on the treason charge, in
reply to Jonathan Gill's posting: It is not self-evident that Pound would
have been convicted of treason in 1945-46, even though the nation's blood
was up and the bare fact of Pound's broadcasts was scarcely in dispute.
 
        Article III, Section 3 of the U.S. Constitution defines treason as
"levying war against" the United States or "adhering to their enemies,
giving them aid and comfort."  Pound would have fallen into the second
category of treasonous conduct.  The then recent Supreme Court case of
U.S. v. Cramer, involving a charge of treason against an alleged Axis
sympathizer, construed this second category to include two requirements
for conviction: an overt act ("giving aid and comfort") and a mental state
revealing treasonous intent ("adhering to enemies").
 
        While the Justice Department _might_ have been able to prove the
overt act(s) beyond a reasonable doubt, I believe it would have had
difficulty carrying its high burden of proof with respect to the mental
state requirement.  Pound's defense counsel, Julien Cornell, would surely
have pointed to Pound's many prewar years spent criticizing the American
and British governments, his obsession of two decades or more with the
economic causes of war, his Confucian conception of ethics and civic life,
and so forth, by way of assailing the government's case on intent.  (I
believe that Judge Rushing came to a similar conclusion about Pound's case
a number of years ago in Critical Inquiry.)
 
        Another problem for the Justice Department would have been the
Constitution's requirement, in the same clause, of "the testimony of two
witnesses to the same overt act [of treason]" to prove guilt.  The
Government's problem was acute, since the only persons who had both
ocularly and aurally "witnessed" Pound's recording of the broadcasts were
Italian radio technicians who spoke little or no English.  The Government
considered this so serious a problem that it kept Frank Amprim, the FBI
Special Agent in charge of Pound's case, on the trail of witnesses in
Italy for months after Amprim himself felt that he had concluded his
investigation.  The thousands of pages of FBI documents relating to the
Pound case attest again and again to the Government's and Amprim's
frustration over the difficulty of developing witnesses.  The seven or so
Italians who were eventually flown to the U.S. to testify at Pound's trial
were going to be a gamble and a headache for the Justice Department.
 
        Therefore, even the overt act requirement would have been
difficult to prove beyond a reasonable doubt.  Moreover, had Cornell not
been able to convince a jury--as he in fact did with the help of expert
psychiatric testimony--that Pound was mentally unfit to stand trial, there
is evidence that he would have put on an insanity defense--perhaps not a
hard case to make given the poet's wonted eccentricity compounded by the
strain he'd been under for many months (not to mention the willingness of
the Government's own experts to testify to Pound's paranoid-delusional
state, as shown in the mental-fitness phase of the proceeding).
 
        I believe that the Government saw the difficulty of the case it
had to make and allowed it to "go away" with the expedient of confining
Pound at St. Elizabeths.  Pound was not one of the Government's most
serious treason targets, and to lose on Pound--one of the first cases up
after the war--might have made it harder to pursue those convictions the
Government really wanted to secure.  The Justice Department's lukewarm
prosecution of Pound, remarked on by many observers after its virtually
acquiescent performance at the sanity hearing, is entirely explicable in
the circumstances.
 
        Some may feel, justly perhaps, that Pound has been duly convicted
in the court of conscience, but it did not happen in a court of law, and
now it can never happen.  Pound will enjoy, for eternity, the basic
presumption of our criminal law: innocent until proven guilty.
 
                Sincerely,
                Robert Spoo
                Editor, James Joyce Quarterly
                University of Tulsa
                (On leave at the Yale Law School)