CHAPTER III
A CONTEMPORARY STATE TRIAL—THE UNITED STATES _VS._ JACOB ABRAMS _ET AL._
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them.—JUSTICE HOLMES.
Shortly before eight o’clock, on the morning of August 23, 1918,[199] several men and boys were loitering at the corner of Houston and Crosby streets, in New York City, perched on sprinkler hydrants or standing about in talk, while they waited for the day’s work to begin in the manufacturing building close by. One or two happened to look up and saw something being thrown from a window above and falling—the air was full of leaflets. Nothing of the kind had ever happened there before, and the workmen picked the papers up curiously from sidewalk and gutter. Some circulars in Yiddish they could not make head or tail of, but they read together others in English, which attacked the recent despatch of troops to Russia.
[199] The sources for this case are in the Bibliography.
There has been so much misapprehension about the wording of these two leaflets that their text ought to be given in full.[200] That in English was as follows:
THE HYPOCRISY OF THE UNITED STATES AND HER ALLIES
“Our” President Wilson, with his beautiful phraseology, has hypnotized the people of America to such an extent that they do not see his hypocrisy.
Know, you people of America, that a frank enemy is always preferable to a concealed friend. When we say the people of America, we do not mean the few Kaisers of America, we mean the “People of America.” You people of America were deceived by the wonderful speeches of the masked President Wilson. His shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.
The President was afraid to announce to the American people the intervention in Russia. He is too much of a coward to come out openly and say: “We capitalistic nations cannot afford to have a proletarian republic in Russia.” Instead, he uttered beautiful phrases about Russia, which, as you see, he did not mean, and secretly, cowardly, sent troops to crush the Russian Revolution. Do you see how German militarism combined with allied capitalism to crush the russian revolution?
This is not new. The tyrants of the world fight each other until they see a common enemy—WORKING CLASS—ENLIGHTMENT as soon as they find a common enemy, they combine to crush it.
In 1815 monarchic nations combined under the name of the “Holy Alliance” to crush the French Revolution. Now militarism and capitalism combined, though not openly, to crush the russian revolution.
What have you to say about it?
Will you allow the Russian Revolution to be crushed? YOU: Yes, we mean YOU the people of America!
THE RUSSIAN REVOLUTION CALLS TO THE WORKERS OF THE WORLD FOR HELP.
The Russian Revolution cries: “WORKERS OF THE WORLD! AWAKE! RISE! PUT DOWN YOUR ENEMY AND MINE!”
Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.
It is a crime, that workers of America, workers of Germany, workers of Japan, etc., to fight THE WORKERS’ REPUBLIC OF RUSSIA.
AWAKE! AWAKE, YOU WORKERS OF THE WORLD! REVOLUTIONISTS
P. S. It is absurd to call us pro-German. We hate and despise German militarism more than do your hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House.
[200] The English pamphlet is Government’s Exhibit No. 1, _Record_, p. 245. Errors of punctuation, etc., are preserved. The translation of the Yiddish pamphlet is Government’s Exhibit No. 2, _Record_, p. 247. Both measure 12×4½ inches, one page, printed on one side.
The Yiddish leaflet has been translated. This translation was accepted as correct by the government and the defense. Abrams, however, suggested a few changes during his testimony. It would be interesting to know how much stronger the Yiddish equivalent for “murder” at the end of the fourth paragraph is than the word for “kill.”
WORKERS—WAKE UP.
The preparatory work for Russia’s emancipation is brought to an end by his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors!
America, together with the Allies, will march to Russia, not, “God Forbid,” to interfere with the Russian affairs, but to help the Czecho-Slovaks in their struggle against the Bolsheviki.
Oh, ugly hypocrites; this time they shall not succeed in fooling the Russian emigrants and the friends of Russia in America. Too visible is their audacious move.
Workers, Russian emigrants, you who had the least belief in the honesty of our government must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war. With the money which you have loaned or are going to loan them, they will make bullets not only for the Germans but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.
You who emigrated from Russia, you who are friends of Russia, will you carry on your conscience in cold blood the shame spot as a helper to choke the Workers Soviets. Will you give your consent to the inquisitionary expedition to Russia? Will you be calm spectators to the fleecing blood from the hearts of the best sons of Russia?
America and her Allies have betrayed (the workers). Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia.
Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of revolution.
Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.
Three hundred years had the Romanoff dynasty taught us how to fight. Let all rulers remember this, from the smallest to the biggest despot, that the hand of the revolution will not shiver in a fight.
Woe unto those who will be in the way of progress. Let solidarity live!
THE REBELS.
The Military Intelligence Police were notified, and sent two army sergeants, who climbed from floor to floor of the manufacturing building asking questions, until at a hat factory on the fourth story they arrested Rosansky, a young Russian, who eventually confessed that he had thrown out the circulars. Three men whom he had met at an anarchistic meeting a fortnight previously had handed him a package of leaflets the night before, and asked him to toss them from some window where people were passing. As he had a rendezvous with the same men that night, the Military Police with his aid captured six other Russians,—five men and a girl. The oldest man, Abrams, was twenty-nine, the youngest, Lipman, twenty-one, the same age as the girl, Molly Steimer. The sergeants went with some of the prisoners to their lodgings, three flights up a rear staircase on East 104th Street. It was an apartment of six rooms,—a front room with a table and some books, a cot, and a bookstand; two bedrooms, in one a bed, in the other a mattress on the floor; a dining-room so-called which had a catercornered closet containing a lot of books and papers and in the center large boxes like packing-boxes, used apparently for desks, and also some chairs and a long couch; a room that could be called a kitchen because it had a sink; and a rear room used by Molly Steimer, just a chair and some women’s clothes hanging on the door. Such was the headquarters of the great conspiracy.
Shortly after midnight, Thomas J. Tunney, the Police Inspector who had questioned Rosansky in the morning, and author of _Throttled_, a book on bomb-plotters, examined the prisoners in the presence of several army sergeants, and obtained statements which were taken down stenographically. The prisoners refused to tell where the pamphlets were printed, but some of the sergeants, after finding a bill for a printing press and materials in Abrams’ papers, learned from the seller that they had been sold to Abrams about July 15, partly on a chattel mortgage, and had been delivered at the basement of 1582 Madison Avenue. The Military Police entered the basement with a search-warrant and discovered a motor driven press and a small hand press, bundles of blank paper of the same size as the English and Yiddish pamphlets, and English and Hebrew type of the style used in them. The side door of the basement had been broken in, plates and type were thrown on the chairs, torn pieces of both pamphlets had been set on fire in a pail and partly burned. Misprinted pamphlets and corrected proof lay crumpled upon the floor. Further investigation showed that Abrams had rented the basement from the janitress in mid-July for eight dollars a month, and that she had seen him and Lachowsky, another prisoner, working there together.
The prisoners, one of whom, Schwartz, died before trial, were indicted for conspiracy to violate four clauses of the Espionage Act of 1918.[201] The case promised to be decisive for two reasons. It was the only important prosecution for the new crimes created by the Espionage Act of 1918, although one such crime had been incidentally involved in the Debs trial. Consequently, the construction and constitutionality of this Sedition Act of 1918 would very probably be called in question. In the second place, the defendants were not prosecuted for pacifist or pro-German utterances, as in the general run of Espionage Act cases, but for agitation against the government’s Russian policy. The Department of Justice had prevented several other prosecutions of so-called Bolshevists for opposition to that policy, since no war had been declared against Russia. For example, no trial was ever held upon an indictment contemporaneous with that against the Abrams group which was presented in New York against Abraham Shiplacoff for a speech at a Socialist meeting, in which he compared the attitude of the Russian toward the American troops to the sentiments of our revolutionary patriots toward those “hired murderers,” the Hessians. The appeal of the Abrams group to munition workers for a general strike was, however, regarded as more serious, and since the prosecution had got under way before the Department of Justice learned of it, it was allowed to proceed.[202]
[201] The conspiracy section of the Espionage Act is Act of June 15, 1917, c. 30, Title I, § 4; U. S. Comp. Stat., 1918, § 10212d, § 3 and the cases thereunder are in Appendix III. See page 44, _supra_.
[202] Testimony of Alfred Bettman, Hearings before the Committee on Rules, 126.—_N. Y. Times_, Sept. 24, 1918.
I. _The District Court_
The trial of Abrams and his associates, except Schwartz, began on October 10, 1918, in the United States Court House in New York City before Judge Clayton of the Northern and Middle Districts of Alabama. Henry De Lamar Clayton was then sixty-one years of age. Belonging to a distinguished Alabama family he had graduated from the State University and practised law in Montgomery. For eighteen years he represented Alabama in Congress, serving eventually as Chairman of the Judiciary Committee of the House and giving his name to the well-known Clayton Act. In 1914 he was appointed to the United States bench. This was his first prominent Espionage Act case.
There were in the Southern District of New York three judges with extensive experience in the difficulties of war legislation. Judge Learned Hand had heard the equity suit of the _Masses_ to obtain admission to the mails, and the demurrer of Scott Nearing. Judge Julius M. Mayer had sat on the Circuit Court of Appeals which reversed Judge Hand’s decision in the _Masses_ case, and had also tried Goldman and Phillips for opposing the draft. Judge Augustus N. Hand had presided at the trial of Max Eastman. If two corporations were litigating the validity of an important patent, they would be surprised to have the matter heard by a judge who had little experience in patent cases, especially if three judges trained in similar contests were available. In the Abrams trail, six persons risked the best part of their lives upon the decision of the perplexing problems of freedom of speech. The position of the defendants could hardly be understood without some acquaintance with the immigrant population of a great city, some knowledge of the ardent thirst of the East Side Jew for the discussion of international affairs. Yet because the New York dockets were crowded the Abrams case was assigned to a judge who had tried no important Espionage Act case, who was called in from a remote district where people were of one mind about the war, where the working class is more conspicuous for a submissive respect for law and order than for the criticism of high officials, where Russians are scarce and Bolshevists unknown.
The government was represented by Francis G. Caffey, United States Attorney, with John M. Ryan and S. L. Miller, Assistant United States Attorneys, of counsel. Harry Weinberger of New York appeared for the defendants. The jury was duly empaneled and sworn on Monday, October 14, and the trial ended on Wednesday, October 23.
The overt acts were proved without contradiction. Soon after United States troops were sent to Vladivostok, the group had begun meeting in the bare “third floor-back” on East 104th Street, where most of them lived, and decided to protest against the attack on the Russian Revolution, with which as anarchists or Socialists they strongly sympathized. Schwartz, the dead prisoner, had written the Yiddish circular, and Lipman the English. Abrams, the oldest, bought the press. After printing five thousand copies of each circular he stopped for lack of funds. Lachowsky and Molly Steimer had distributed about nine thousand pamphlets, throwing them in the streets where there were the most working-people or passing them around at radical meetings. Rosansky’s aid had been secured just before the arrests. There was no evidence that one person was led to stop any kind of war work, or even that the pamphlets reached a single munition worker.
The defense, besides contending that the Espionage Act was unconstitutional, maintained that it was not violated, and in particular that the criminal intent required by the express terms of the statute did not exist. Each count of the indictment[203] covered a conspiracy to violate one clause of the Act, as follows, according to the language of the statute. Certain phrases in the indictment which are not in the Act are enclosed in brackets.
[203] The indictment is in _Record_, 2–19.
Whoever, when the United States is at war, ... shall willfully utter, print, write, or publish
(Count 1) any disloyal, ... scurrilous, or abusive language about the form of government of the United States, ...
(Count 2) or any language intended to bring the form of government of the United States ... into contempt, scorn, contumely, or disrepute, ...
(Count 3) or ... any language intended to incite, provoke, or encourage resistance to the United States [in said war with the German Imperial Government], ...
(Count 4) or shall willfully by utterance, writing, printing, publication, ... urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products [to wit, ordnance and ammunition] necessary or essential to the prosecution of the war in which the United States may be engaged, [to wit, said war with the Imperial German Government], with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, ...
shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years or both.
As to the first crime charged, the publication of “disloyal, ... scurrilous, or abusive language” about our form of government, the Espionage Act by its terms punishes the act of publication, without any mention of intent. Although some district judges have considered that there must be an evil or wicked intention,[204] it has been contended with much force and on high authority[205] that the utterance of the words is in itself criminal regardless of the state of mind. On this view, all that is necessary is intention to publish. There need be no intention to be abusive or disloyal about the form of government. If so, the Espionage Act is in this respect much more rigorous than the Sedition Act of 1798, which created the crime of “publishing any false, scandalous and malicious writing against the government,” but required intent to defame it or excite against it the hatred of the people or stir up sedition. Also the penalty was only two years’ imprisonment, and truth was a defense under that Act, whereas now a statement in real or technical war time of the soundest truths about our form of government is punishable by twenty years in prison if only those truths are sufficiently damaging to be considered abusive or disloyal.
[204] United States _v._ Buessel, Bull. 131; United States _v._ Martin, Bull. 157; United States _v._ Equi, Bull. 172.
[205] 33 _Harv. L. Rev._ 442, 443, citing Learned Hand, J., in United States _v._ Curran, Bull. 140.
However this may be, intention to injure is certainly material on the other three counts. Furthermore, the first and second counts may be dismissed at this point from further discussion. First, these clauses of the Espionage Act of 1918 punishing attacks on the Constitution and our form of government seem clearly unconstitutional, as stated in the preceding chapter. Also, even if they are constitutional, there was no attack in the pamphlets on our form of government, but only upon those who were administering that government. Surely the phrase “capitalistic nation” does not constitute defamation of our political structure, which is compatible with other types of economic organization, such as national ownership of all industries. Although the heavy fines imposed on the defendants under these two counts called for some decision on their constitutionality or construction, the Supreme Court refused to make it, and Justice Clarke contented himself with suggesting that the distinction between abusing our form of government and abusing the President and Congress, the agencies through which it must function in time of war, might be only “technical.”[206] If so, these sections of the Espionage Act must have been more frequently violated in Wall Street than in Harlem.
[206] Abrams _v._ United States, 250 U. S. 616, 623.
The controversy about this case must be limited to the third and fourth counts of the indictment. Aside from questions of constitutionality, the government had to establish the specific criminal intent required by the indictment and the Espionage Act. (1) It had to prove intention to publish the pamphlets, because of the word “willfully” and on general principles of the criminal law, which ordinarily requires intention to do the prohibited act. This the government undoubtedly did. (2) Under the fourth count it had to prove intention to produce curtailment of munitions, because the words “urge, incite, advocate” create an offense analogous to criminal solicitation, which involves a specific intent to bring about the overt act. There are some sentences in the Yiddish circular which show such an intention, although it is open to question whether an incidental portion of a general protest which is not shown to have come dangerously near success really constitutes criminal solicitation or amounts to advocating. (3) At all events, the main task of the government was to establish under both counts an additional intention to interfere with the war with Germany, and the question whether it proved anything more than an intention to obstruct operations in Russia is the vital issue of fact in the case.
Since we had not declared war upon Russia, protests against our action there could not be criminal unless they were also in opposition to the war with Germany. There are two conceivable theories of guilt, which might connect the circulars with the war. First, that the despatch of troops to Siberia was “a strategic operation against the Germans on the eastern battle front,” so that any interference with that expedition hindered the whole war. The second theory is, that the circulars intended to cause armed revolts and strikes and thus diminish the supply of troops and munitions available against Germany on the regular battle front.
Clearly the second theory is the only legitimate basis for conviction. That opposition intended to hinder the armed occupation of neutral territory and asserting it to be illegal should be _per se_ criminal is so clearly a travesty on the defense of Belgium and a violation of the right of freedom of speech that this view has been unanimously rejected by the United States Supreme Court in the Abrams case, by the government’s brief,[207] and by writers[208] who support the decision. They have all adopted the second theory of guilt and have taken it for granted that the jury followed the same course. They assume that the convictions represent a finding of fact by the jury that the defendants intended to interfere with operations against Germany itself and to embarrass or defeat the military plans of our government in Europe. Practically the whole of the discussion of the case has been confined to the question whether such a finding that they encouraged strikes and revolts justifies conviction. Nevertheless, I believe that an examination of the record makes it highly probable that these defendants were convicted on just the other theory for trying to hinder the Russian expedition.
[207] Page 35 ff.
[208] Mr. Wigmore is a possible exception and may regard all Bolshevism as within the Espionage Act.
As a state trial, this case cannot be understood without reference to the atmosphere in which the defendants wrote the circulars and the jury reached their verdict. I have no desire to venture into the Serbonian bog of the Russian Revolution, but a few undisputed facts must be recalled.[209] On January 8, 1918, two months after the establishment of the Soviet Government, President Wilson declared as the sixth of his Fourteen Points, that Russia must have “an unhampered and unembarrassed opportunity for the independent determination of her own political development,” and that the treatment accorded her by her sister nations during the months to come would be “the acid test of their good-will.” On March 11 he telegraphed the Pan-Soviet Congress, “May I not take advantage of the meeting of the Congress of Soviets to express the sincere sympathy” felt for the disastrous outcome of the Brest-Litovsk negotiations, and again promised that Russia should be secured “complete sovereignty and independence in her own affairs.” Four months later a small body of American marines joined in the occupation of Murmansk, and shortly afterwards American troops were sent to Vladivostok. On August 3, an official statement from Washington announced that military intervention in Russia would only add to the confusion there and dissipate our forces on the western front. Consequently, we would not interfere with the political sovereignty of Russia or intervene in her local affairs, but would merely send a few thousand men to Vladivostok in co-operation with Japan, who had given a similar assurance. The only present object for which the American troops would be employed would be to help the Czechoslovaks against the armed German and Austrian prisoners who were attacking them, to guard military stores, and render acceptable aid to the Russians in the organization of their own self-defense; but we could not restrict the actions or interfere with the independent judgment of our associates.
[209] The documents are in 7 _N. Y. Times Current History of the War_, VII (part 2) 273; VIII (part 1) 49; VIII (part 2) 465, 470; IX (part I) 87. They are reprinted in _Russian-American Relations_, ed. Cumming and Pettit, N. Y., 1920. See Charles Cheney Hyde, “The Recognition of the Czechoslovaks as Belligerents,” 13 _Am. J. Int. L._ 93 (1919).
A few days later Abrams and his friends wrote and printed the leaflet headed, “The Hypocrisy of the United States and her Allies.”
The Soviet government failed to distinguish between military intervention and the arrival of foreign troops on Russian soil. The diplomatic breach was complete. Soon afterwards the newspapers were filled with accounts of Bolshevist atrocities. In September the United States recognized the Czechoslovaks as a belligerent government warring against Germany and Austria, with their capital in Washington and their chief army in Siberia, so that the seacoast of Bohemia was evidently the Pacific Ocean. On September 15 the United States Committee on Public Information published nation-wide in the press the documents[210] collected by its representative, Mr. Edgar Sisson, which were stated to show that the present heads of the Bolshevist government were merely hired German agents. No one who recalls the widespread popular identification of the Soviet Government with Germany in the summer and early autumn of 1918 can doubt that an October jury would inevitably regard pro-Bolshevist activities as pro-German, and consequently apply the first or Russian theory of guilt, besides having a prejudice against the defendants as sympathizers with the Russian Revolution, which could only be overcome by an exposition of the Russian situation from sources which had as yet found no expression in the newspapers.
[210] War Information Series, No. 20 (October, 1918); the documents, without the historical report, are in _Bolshevik Propaganda_, etc., p. 1125. The documents appeared in the public press by installments, beginning September 15, 1918. See the _New York Times_ of that date. For criticism of their genuineness, see 16 _New Republic_ 209 (September 21, 1918), 107 _Nation_ 616 (November 23, 1918), and the anti-Bolshevist book, E. H. Wilcox, _Russia’s Ruin_, New York, 1919. They are accepted as genuine by Étienne Antonelli, _La Russie Bolcheviste_, Paris, 1919.
Early on Friday, October 18, the fifth day of the actual trial, the government rested. Mr. Weinberger opened the case to the jury on behalf of the defendants, and called to the witness stand Colonel Raymond Robins. Mr. Robins had not abandoned without a struggle the retirement in which he had lived since his return from Russia. He had tried to avoid service of a subpœna, and the United States marshal was on the point of breaking in the door of his apartment when it opened and Mr. George W. Wickersham came out. As Mr. Robins’s personal counsel he agreed to his testifying, but accompanied him to and from the court-room and sat at the counsel table during his examination.[211]
[211] The summary of the Robins incident is taken from _Record_, 110–138; _New York Call_, October 19, 1918; conversation with Mr. Weinberger.
After a dozen introductory questions, the United States attorney objected to further examination, and the witness thereafter was obliged to remain silent while the defendants’ counsel ran through a series of thirty unanswered questions in order to get them on the record. This was repeated with Albert Rhys Williams, and it was not considered worth while to call Edgar Sisson at all. The admissibility of their evidence raises problems that go to the heart of the case.
The first theory of guilt raised the complex question whether the Russian expedition was a part of the war. If this is a political question which must be answered in the affirmative on the mere _ipse dixit_ of the government, the existence of a war enables the government to withdraw the most remote and questionable policies from the scope of ordinary discussion simply by labeling them a war matter. The annexation of Mexico to prevent its becoming a base for German operations, the use of American troops to put down strikes in England or Sinn Fein in Ireland, are no more remotely connected with the war with Germany than the Russian affair. On the other hand, if the relation of such an expedition to the war is put in issue to be decided by the jury, the defense ought to be able to call witnesses to disprove it. On this account, in the Abrams case, Raymond Robins and other eyewitnesses of Russian affairs were summoned to prove that the Bolshevist and Czechoslovak situation was such that our intervention was not anti-German; but this testimony and all questions of the constitutionality of intervention were excluded by Judge Clayton with the remark, “The flowers that bloom in the spring, tra la, have nothing to do with the case.”[212]
[212] _Record_, pp. 120, 132.
This phase of the trial is very important for its demonstration of the enormous difficulties of proof into which we have brought ourselves in the United States by creating political crimes. Before the Espionage Act our criminal law punished men almost entirely for acts which take place in the tangible world and are proved by the evidence of our five senses. This Act punishes men for words which cause no injury, but have a supposedly bad tendency to harm the state, and also for intentions which are regarded as evil. Now, bad tendency and bad intention cannot be seen or heard or touched or tasted or smelled. They are, as we have seen, a matter of inference from the complex and obscure background of general conditions. Consequently, that background becomes, whether we admit witnesses or not, an issue in the case. The rules of evidence for the trial of overt criminal acts prove almost useless. Common sense makes it plain that a knowledge of Russian affairs was essential to a jury with the attitude of that moment, obliged to interpret the repeated references to Russia in the circulars, and as we shall see, told often by the judge that the defendants were guilty if their pamphlets were issued for the purpose of preventing the government from carrying on its operations in Russia.
All prosecutions for words will involve us in the same awkward dilemma that was suggested in connection with the “false statements” clause in the Pierce case. If we follow the logical course just indicated and allow the alleged promoter of sedition to bring in a mass of evidence from Russia or other dark and distant regions to show that neither he nor his utterances are liable to cause even remote injury to the national welfare, the prosecution is justly entitled to call other witnesses to establish the evil character of the agitation. Every sedition trial will be a rag-bag proceeding like the hearings about Bolshevism before the Overman Committee of the Senate. As Judge Clayton pointed out in the Abrams trial, the admission of Raymond Robins’s testimony would open up a Pandora’s box. The district attorney would offer on his side to prove that Trotsky had been bought by the German Government.
To use a vulgar expression, it would be “swiping” them on the other hand, and we would forget all about the issues in this case, and we would find ourselves trying Lenine and Trotsky, which is something I do not intend to do. I have enough trouble trying these people here in the United States, and God knows I am not going into Russia to try to try anybody there.[213]
[213] _Record_, 130, 131. For Pierce _v._ U. S., see page 101, _supra_.
On the other hand, if for the sake of speed and convenience we adopt the policy of Judge Clayton and exclude general testimony as to bad tendency, pinning the evidence down to the facts of publication and the precise intention of the defendants, we shall often do a grave injustice to the prisoners. The jury and even the judge may bring to the trial preconceived views of the bad tendency and evil purpose of utterances opposed to the existing economic and social order or to war policies supported by the great mass of the population. If no counter-evidence to show that the opinions of the defendants may be reasonable or honest is admitted from third persons like Raymond Robins, these presuppositions must inevitably remain. Even if a defendant is allowed a wide scope in testifying in his own behalf, he is often the sort of man whose arguments carry little weight. In other words, in spite of the judge’s desire to exclude outside evidence on either side as to bad tendency and bad intention from the case, such evidence in favor of a bad tendency and a bad intention is often automatically admitted the moment that the jury enter the box, and no system of challenges can avoid it. During a war they have for months been supplied with evidence by the government and the loyal press, diametrically opposed to the utterances for which the prosecution is brought. Unless something is done to tear the tribunal out of the fabric of public sentiment, a conviction is almost certain to result in prosecutions for political crimes, where the ordinary tests of the five senses play no part and men are forced to judge of the opinions and character of the prisoners by their own opinions and character as formed in the furnace of war. What Mr. Robins has since said and written makes it clear that his evidence would have been highly valuable to the defense.
Despite the practical inconveniences of such testimony as his in political prosecutions, it is the method pursued in countries where political crimes have existed when unknown in the United States. France, for instance, allows a “free defense,” as in the _Affaire Dreyfus_. The defendant is not only allowed to say anything in his own favor, but may bring forward any witnesses he pleases, who express themselves fully and unhindered. Strange as it seems to us, the results are said to be very satisfactory.[214] Consequently, if we are going to continue to prosecute men for the bad political tendency of their disloyal or anarchistic utterances, we may have to adopt a similar wide-open policy in justice to the defendants.
[214] Robert Ferrari, “The Trial of Political Prisoners Here and Abroad,” 66 _Dial_ 647 (June 28, 1919). The same method is pursued in French murder cases where “the honor of the family” is a defense, and perhaps instances like the Thaw trial show it is not wholly unknown in this country. See Walter F. Angell, “A Providence Lawyer at the Caillaux Trial,” _Providence Daily Journal_, August 21, 1914.
Better far to reject both horns of the dilemma and refuse altogether to make tendency a test of criminality. If we are not willing to allow the free defense, we ought to abolish political crimes by the repeal of the Espionage Act and all other sedition statutes.
In the absence of any established technique for political crimes in this country, the exclusion of the Robins testimony was correct, since it did not bear directly on the only legitimate theory of guilt, but this only made it all the more imperative that Judge Clayton should repeatedly during the trial and in his charge insist to the jury that opposition to our Russian policy was not in itself a crime. He ought to have cleared Russia and Bolshevism out of the case for good and all, and pounded home the proposition that the only issue under the third and fourth counts (which alone should have gone to the jury, if anything went at all) was whether the defendants intended by inducing strikes in munition factories and other forms of protest to interfere with the supply of munitions for use against Germany. No one who will put himself back into the atmosphere of October, 1918, can doubt that the jury would naturally regard pro-Bolshevist activities as pro-German, and that it was the duty of Judge Clayton to warn them explicitly against the Russian theory of guilt, and confine their attention to the pro-German theory. There is no trace of such a warning in the record. Instead, Judge Clayton himself repeatedly proclaimed the unsound theory of guilt, that if the defendants intended to oppose the government’s Russian policy, they had _ipso facto_ violated the law.
Before the defendants had put in any material testimony, he said:[215]
Now the charge in this case is, in its very nature, that these defendants, by what they have done, conspired to go and incite a revolt; in fact, one of the very papers is signed ‘Revolutionists,’ and it was for the purpose of avoiding—a purpose expressed in the paper itself—the purposes of the Government and raising a state of public opinion in this country of hostility to the Government of the United States, so as to prevent the Government from carrying on its operations and prevent the Government from recognizing that faction of the Government of Russia, which the Government has recognized, and to force the Government of the United States to recognize that faction of the Government in Russia to which these people were friendly.
Now, they cannot do that. No man can do that, and that is the theory that I have of this case, and we might as well have it out in the beginning.
[215] _Record_, pp. 117, 118.
The court did tell the jury that this statement was not part of the evidence and should be disregarded in passing on the issue of fact, but the harm was done and he took no steps to present any concrete alternative view. The second and legitimate theory of guilt was never stated by him, and it is doubtful if he himself ever realized the distinction or what really was in issue. Instead, he continued to apply the Russian theory in his cross-examination of Lipman, for it is one of the remarkable features of this case that most of the cross-examination of the prisoners was not by the district attorney, but by the court, who sometimes broke in upon the direct examination before half a dozen questions had been asked.[216] Lipman was testifying in response to his counsel that he had written the English pamphlet because the President after sending the telegram of sympathy to the Soviets had a few weeks later despatched a military expedition to Russia. Judge Clayton took over the witness:[217]
“The President, you thought, and all that he was doing ought to be stopped and broken up?” “I thought when I know he is elected by the people they should protest against intervention.... I did not want to break up. I called for a protest, which as I understand it, from my knowledge of the Constitution, the people of America had a right to protest.”...
“Did you not intend to incite or provoke or encourage resistance to the Government of the United States?” “Not to the Government—never did.”
“Who was acting for the Government if the President was not?” “I thought it was the Congress and Senate that was supposed to represent the people of America.”
“The President is the executive head.... You intended to incite opposition to what the President did?” “I did not. I intended to enlighten the people about the subject, for, as I stated, the papers were afraid to state it, and I thought it was the right time.”
“... The Government acts through the President, and you intended to incite opposition to what he was doing?” “I intended to incite opposition to every wrong act I understood to be wrong.”
“You had the specific intention to make public opinion and arouse public opinion against intervention in Russia?” “Yes.”
[216] See the court’s cross-examination of Abrams, _Record_, p. 163. The testimony not included in the _Record_ shows much more questioning by the judge. See current issues of the _New York Times_ and _New York Call_; Stenographer’s Notes.
[217] _Record_, pp. 201–203.
When the judge also kept saying that the defendants’ opinion of the legality of the President’s action could not justify them in breaking the law,[218] he made their anti-interventionist propaganda seem a crime in itself, and there was no need for the jury to consider whether they had any intention to prevent the shipment of munitions to the western front. There is nothing in the charge about such an intention, nothing to exclude Russian operations from the scope of the war. Therefore, it is very probable that the defendants were convicted on an erroneous theory of guilt, simply because they protested against the despatch of armed forces to Russia.
[218] _Record_, pp. 115–121, 130–138, 167, 172, 173. See also Stenographer’s Notes of Testimony, _passim_.
However, it is maintained that the defendants did intend to hinder the fighting against Germany and so were properly convicted on the second theory of guilt. There are three classes of evidence in the case bearing on their intention.
First, the two pamphlets speak for themselves. Both plainly protest against our Russian policy and not against the war. The English circular emphatically repudiates the charge of pro-Germanism. It is nearly all expository, but throws in a few general exhortations which have been tossed about in every Socialistic hall and street-meeting for seventy years since the Communist manifesto in 1848 until Justice Clarke discovered in 1918 that it was a crime in war time to say, “Workers of the World! Awake! Rise! Put down your enemy and mine.... Capitalism!”
“This,” he declares, “is clearly an appeal to the ‘workers’ of this country to arise and put down by force the Government of the United States.”[219]
[219] 250 U. S. @ 620 (1919).
If this be so, practically every Socialistic book or pamphlet violates the Espionage Act, and the belief of American Socialists that the Act was directed against their political existence as a party under the pretext of war finds ample justification. Military imagery ought not to be taken literally in radical propaganda, any more than in church hymns. Nothing could show better than this sentence of Justice Clarke’s how peace-time statutes which are limited in terms to the advocacy of “force and violence” may be interpreted judicially to punish obnoxious radical opinions which call for working-class action without a single word to indicate that force is to be employed.
The Yiddish circular is more specific and calls for a general strike, which can no more be kept out of a radical pamphlet than King Charles’s head could be barred from Mr. Dick’s Memorial. We ought to hesitate a long while before we decide that Congress made such shop-worn exuberance criminal. Very likely, as Justice Clarke says, “This is not an attempt to bring about a change of administration by candid discussion,”[220]—but how much political discussion is candid? If nothing but candid discussion is protected by the First Amendment, its value for safeguarding popular review of official acts is _nil_. And even if words like “fight” and “revolution” indicate violence, though often used in a peaceable sense, the advocacy of strikes and violence is not a crime under this indictment unless intended to resist and hinder the war with Germany.
[220] _Ibid._ 622. Bagehot points out the danger of such a test: “The effect of all legislative interference in controversies has ever been to make an approximation to candor compulsory on one side but to encourage on the other side violence, calumny, and bigotry.”—_Works_, Longmans’ ed., X, 127.
The second group of evidence consists of two manuscripts which were seized at the time of the arrests without a search-warrant.[221] One, a yellow sheet of paper in handwriting, taken from Lipman, contains a passage about keeping the allied armies busy at home in order to save the Russian Revolution.[222] The other, some typewritten sheets found in a closet in Abrams’ rooms on a pile of books and papers, urges at its close a similar policy, so that there will be no armies to spare for Russia, and adds that if arms are used against the Russian people, “so will we use arms, and they shall never see the ruin of the Russian Revolution.”[223] Very little attention was given to these manuscripts in either brief on appeal, but Justice Clarke says, after quoting the passages just mentioned:
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe.[224]
[221] A contest could have been made on this point. See Chapter VI.
[222] Government’s Exhibit 11, _Record_, pp. 250, 251. See also _Record_, pp. 45, 103; also 78, where Lipman, under examination by the military intelligence police, testified it meant soldiers were to be kept busy preventing and stopping protest meetings.
[223] Government’s Exhibit 13, _Record_, pp. 252–255. See also _Record_, pp. 55, 104. The significant passages from both manuscripts are in 250 U. S. @ 622 (1919). Mr. Wigmore actually quotes these passages as forming part of the Yiddish pamphlet. 14 _Ill. L. Rev._ 544.
[224] 250 U. S. @ 623 (1919).
These excerpts form a small part of two long discussions wholly concerned with the wrong committed against Russia by both Germany and ourselves. The clear and only purpose is to stop Russian intervention. Much more important, these passages do not occur in the pamphlets for which the defendants were indicted. They are in manuscripts which were never printed. There is not the slightest testimony that any one intended to print them, or indeed that the author, Lipman, ever showed them to any one. What one man jots down and refrains from printing is very weak proof of what several other men intended when they printed something else. Finally, a comparison of the second or typewritten manuscript with the English pamphlet shows that it is only a first draft, and the omission in revision of all the passages on which Justice Clarke relies furnishes decisive evidence that such language did not express the actual intention of the defendants. All talk about keeping soldiers busy and using arms was thrown out, and the postscript denouncing German militarism was added. In other words, the one portion of the draft which might conceivably be regarded as favorable to Germany was deliberately dropped before printing, and a paragraph was substituted hostile to Germany and repudiating pro-Germanism.
Thirdly, we have the testimony of the defendants on the vital issue, whether they intended to defend the Russian Revolution by the methods of impulsive youth or intended to hinder us in our war against German militarism. All were born in Russia and had remained citizens of that country during their few years in the United States. All were anarchists except Lipman, and he was a Socialist. Nothing in the case rebuts the natural inference that such persons were devoted to Russian radicalism and bitterly hostile to Imperial Germany.
Abrams, under cross-examination by the district attorney, said that he had offered his services to the President to go to Russia and fight Germany, but permission had been refused.[225] Under cross-examination by the court, he denied that he intended to obstruct and hinder the government of the United States. His object was to help Russia. He did not believe in governments and was a revolutionist, rebelling against the conditions of life from twelve years of age, but that was only his philosophy. It had nothing to do with the pamphlets, the purpose of which was to protest against intervention.[226] On direct examination he testified that this was his sole purpose; that every Russian revolutionist was in favor of America’s crushing German militarism; that he would go to Russia to fight it any time he had a chance; that he would help send propaganda from Russia to Germany to start a revolution there, as he had done on the border of Austria and was sent to Siberia for it. As to the appeal for strikes, he called upon the workers here not to produce bayonets to be used against the workers in Russia.
“I say it is absurd I should be called a pro-German, because in my heart I feel it is about time the black spot of Europe should be wiped out.”
“You are opposed to German militarism in every form?” “Absolutely.”
“You would overthrow it and help overthrow it if you could?” “First chance.”[227]
[225] _Record_, pp. 197.
[226] _Record_, pp. 163, 164, 196.
[227] _Record_, pp. 182, 183; and see also 168, 180, 190.
The other defendants testified to the same effect, even Molly Steimer, the most inflexible, who says that if she ever had a doubt whether people ought to be governed by one another it has vanished since she came in contact with those who rule, and now refuses to apply for a pardon because she ought not to be released so long as thousands of other political prisoners are languishing in American jails. She stated her intention thus: “The war between the United States and Germany does not concern me, because I wish to see militarism throughout the entire world crushed by the workers.... I thought, and I do think it now, that the workers of the United States who are working in munition factories ought to stop producing munitions which are used for the killing of Russians. I care nothing about interfering with the war with Germany, because it does not matter to me.”
There is not a word in the whole _Record_ to show that any prisoner was opposed to the war with Germany or had any intention except an absorbing desire to protest against intervention in Russia.[228]
[228] Lipman, page 138, _supra_, _Record_, pp. 77, 200, 203, 206; Lachowsky, _Record_, pp. 223; Steimer, _Record_, pp. 82, 216, 221, 222.
It is hard to see how the jury could have convicted on this evidence if they had been instructed that a specific intent to hinder the war with Germany was necessary, but the charge contains nothing on this point except a mere repetition of the words of the statute. There is no comment on those words, no attempt to distinguish between a general intention to publish and the required specific intent. Instead, the judge charged, “People who have circulars to distribute, and they intend no wrong, go up and down the streets circulating them.”[229] During the trial, although the defendants’ counsel reminded him that Russian meetings in New York had been broken up, Judge Clayton said he would leave it to the jury whether throwing pamphlets out of windows squared with good, honest intention, and whether being anarchists and wanting to break up all government squared with honesty and sincerity of purpose. Soon afterward he stated:
If it were a case where the defendant was indicted for homicide, and he was charged with having taken a pistol and put it to the head of another man and fired the pistol and killed the man, you might say that he did not intend to do that.
But I would have very little respect for a jury that would come in with a verdict that he didn’t have any intent.[230]
[229] _Record_, pp. 237, 238.
[230] _Record_, pp. 159–161.
Plainly these rulings of Judge Clayton ignore absolutely the specific intent to oppose or hinder the war with Germany, as demanded by the statute, and authorize the jury to convict the defendants for intention to publish the pamphlets and a generally bad mind.
The verdict against Abrams, Lipman, Lachowsky, Rosansky, and Molly Steimer was guilty on all four counts. The sixth prisoner, Prober, was acquitted, for insufficient evidence of connection with the leaflets. The district attorney’s office, which thought he had distributed leaflets at radical meetings, cites his acquittal as evidence of the fairness of the jury.
There is little of the heroic about these defendants and much that is repellent. Their beliefs were, as Justice Holmes called them, “the creed of ignorance and immaturity.” Abrams was a sufficiently prominent radical to preside at a meeting in New York where Trotsky spoke. He and Lipman, who were subject to the draft as citizens of a nation still technically associated with ours in the war although our troops were fighting the compatriots of these men, have been indicted on strong evidence for stealing and forging draft cards. Two defendants, while out on bail after conviction, tried to escape as stowaways from New Orleans to Yucatan. Molly Steimer used her temporary freedom to distribute anarchistic leaflets in the New York streets, and was sent to Blackwell’s Island, where she was regarded as incorrigible. Yet all this, bad as it is, in no way justifies their conviction under the Espionage Act. It is a fundamental principle of our law that men must not be punished in one case for other crimes, especially if not yet proved. If these prisoners are guilty of other offenses, they can be prosecuted for them. Such guilt and all their undesirable qualities cannot take the place of the essential and absent intention to hinder the war with Germany, and do not lessen the bad effects of this case as a precedent for the suppression of public protests against governmental action on the ground of its illegality.
Two features of the trial demand a passing notice. The method by which confessions were obtained from the defendants after arrest was not raised on appeal, since the overt acts were proved in other ways, but their testimony, if it can be believed, throws a significant light on the question, important to criminologists, of the treatment which political prisoners may expect in this country, especially if they be obscure aliens. The deportation raids prove that abuses are possible, but such a conclusion cannot be reached in the Abrams case without a detailed investigation of the conflicting evidence. The army sergeants deny threats and force.[231] The assistant district attorney, who showed much consideration toward the prisoners, noticed no traces of violence on the morning after the arrest, and is convinced that none was used. On the other hand, the charges of brutality seem disquietingly specific and sincere.[232] The defendants and their counsel also insisted, though the influenza epidemic and the long interval since the arrest render it improbable, that Schwartz’s fatal illness was caused by the violence of one soldier, whom Judge Clayton relieved from the necessity of telling whether or not he was called by his associates, “The Tiger.” The court observed, “There is no evidence as to who killed Schwartz any more than there was any evidence as to who killed cock robin.”[233]
[231] _Record_, pp. 70, 75, 85. Stenographer’s Notes, 742 ff., 752 ff.
[232] Stenographer’s Notes, 471 ff., 587, 613, 660 ff., 709 ff., 716 ff., 722; and the pamphlet, _Sentenced to Twenty Years Prison_, passim.
[233] Stenographer’s notes, 665.
Legal historians have always taken interest in the criminal judge who jests with the lives of men.[234]
“You keep talking about producers,” said Judge Clayton to Abrams. “Now may I ask why you don’t go out and do some producing? There is plenty of untilled land needing attention in this country.”
... The witness said that he was an anarchist and added that Christ was an anarchist.
“Our Lord is not on trial here. You are....”[235]
[234] The judge’s words are taken _verbatim_ from the _New York Times_, October 22, 1918, which was so far from being prejudiced against him that on October 28 it said editorially, “Judge Henry D. Clayton deserves the thanks of the city and of the country for the way in which he conducted the trial,” and praised his “half-humorous” methods.
[235] Braxfield replied to a similar comparison, “Muckle he made o’ that; he was hanget.” See the account of how he tried Muir for sedition in R. L. Stevenson, _Some Portraits by Raeburn_, and Philip A. Brown, _The French Revolution in English History_, London, 1918, 95–99.
At another point the witness began some remarks about John D. Rockefeller.
“Now,” said Judge Clayton, “suppose we eliminate Mr. Rockefeller. He is not on trial. However, I will say that it is quite true that Mr. Rockefeller is a man of considerable wealth and he has done a great deal of good. He has eliminated the hook-worm, which was the curse of childhood in large sections of our country; he has established and maintained a great research hospital, and in other ways used his wealth to better the condition of his fellows. We will now proceed with the case.”
“We will now,” said Mr. Weinberger, “ask the witness about his other writings. The Holy Alliance——”
“Cut out the Holy Alliance. That is not in the issue....”
“When our forefathers of the American Revolution——” the witness began, but that was as far as he got.
“Your what?” asked Judge Clayton.
“My forefathers,” replied the defendant.
“Do you mean to refer to the fathers of this nation as your forefathers? Well, I guess we can leave that out, too, for Washington and the others are not on trial here.”
Abrams explained he called them that because, “I have respect for them. We all are a big human family, and I say ‘our forefathers.’... Those that stand for the people, I call them father.”[236]
[236] Abrams’ reply is in _Record_, p. 194.
The day after conviction the prisoners were called before Judge Clayton for sentence. The court said:[237]
“I am not going to permit anybody to start anything to-day. The only matter before this court is the sentencing of these persons. There will be no propaganda started in this court, the purpose of which is to give aid and comfort to soap-box orators and to such as these miserable defendants who stand convicted before the bar of justice.”
When Lipman, the socialist, stepped forward to address the court and started to harangue about democracy, “You don’t know anything about democracy,” said Judge Clayton, “and the only thing you understand is the hellishness of anarchy.”...
“These defendants took the stand. They talked about capitalists and producers, and I tried to figure out what a capitalist and what a producer is as contemplated by them. After listening carefully to all they had to say, I came to the conclusion that a capitalist is a man with a decent suit of clothes, a minimum of $1.25 in his pocket, and a good character.
“And when I tried to find out what the prisoners had produced, I was unable to find out anything at all. So far as I can learn, not one of them ever produced so much as a single potato.[238] The only thing they know how to raise is hell, and to direct it against the government of the United States....
“But we are not going to help carry out the plans mapped out by the Imperial German Government, and which are being carried out by Lenine and Trotsky. I have heard of the reported fate of the poor little daughters of the Czar, but I won’t talk about that now. I might get mad. I will now sentence the prisoners.”
[237] _New York Times_, October 26, 1918.
[238] Abrams and Lachowsky bound books, Lipman produced furs, Rosansky produced hats, Molly Steimer produced shirtwaists.
Rosansky was given three years in prison, Molly Steimer fifteen years and $500 fine, Lipman, Lachowsky, and Abrams twenty years (the maximum), and $1,000 on each count. If they had actually conspired to tie up every munition plant in the country and succeeded the punishment could not have been more.[239]
“I did not expect anything better,” said Lipman.
“And may I add,” replied the judge, “that you do not deserve anything better.”[240]
[239] It would not be treason for lack of overt acts. See Chapter VI. Therefore, they would be punishable only under the Espionage Act. The general statute on conspiracy to destroy by force the government of the United States imposes only six years. _Crim. Code_, § 6, U. S. Comp. Stat., 1918, § 10170. Conspiracies to limit the production of necessaries are punishable under the Lever Act by two years. Act of August 10, 1917, c. 53, § 9, 40 Stat. at L. 279, U. S. Comp. Stat., §3115⅛ i.
[240] _New York Times_, supra. _Record_, p. 243, says, “I do not think you deserve anything less. Now, the next one.”
II. _The Supreme Court_
Seven judges of the Supreme Court were for affirmance of these convictions, Justice Clarke delivering the majority opinion. Justice Holmes read a dissenting opinion, in which Justice Brandeis concurred. The Supreme Court had only a limited power to correct any errors that may have occurred at the trial. It could not revise the sentences.[241] It could not set aside the verdict because its judges would have found differently on the facts themselves, but only if there was so little evidence of the required guilty intent that a reasonable jury could not have convicted. It would be very unlikely to grant a new trial for misdirection and failure to place properly before the jury the vital issue of specific intent to hinder the war, since no objection on this ground is noted in the bill of exceptions,[242] although as I have tried to show, the trial judge did nothing to enlighten the jury on the issues of specific intent and did much to becloud that difficult question, so that they very probably reached a verdict on entirely inadequate grounds,—the existence of intention to publish and to oppose Russian intervention. Only two real questions were before the court: the existence of the requisite evidence of specific intent under the third and fourth counts, the other two being disregarded, and whether the Espionage Act could constitutionally be interpreted to apply to this case.
[241] That excessive sentences may possibly constitute “cruel and unusual punishment” under the Eighth Amendment, see Weems _v._ United States, 217 U. S. 349 (1910), per McKenna, J., White and Holmes, JJ., dissenting.
[242] The Supreme Court has granted a new trial for unexcepted misdirection imperiling liberty. Wiborg _v._ U. S., 163 U. S. 632, 659 (1896). Accord, Skuy _v._ U. S., 261 Fed. 316 (C. C. A. 8th, 1919). See August _v._ United States, 257 Fed. 388 (C. C. A. 8th, 1919), which holds that Act of February 26, 1919, c. 48, amending Judicial Code, § 269, now authorizes an appellate court to look to the entire record and render judgment without regard to the technicality of want of exceptions. It is doubtful, however, if this statute does more than prevent reversals for non-prejudicial errors.
The required specific intent to hinder the war with Germany is worked out by Justice Clarke in this way: “It will not do to say ... that the only intent of these defendants was to prevent injury to the Russian cause.” They intended a general strike of munition workers, _i.e._, a curtailment of production. This plan necessarily involved, before it could be realized, the paralysis and defeat of the war program of the United States. Therefore, the defendants intended such an interference with the war, since “men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.”[243]
[243] 250 U. S. @ 621.
The “unfortunate maxim” propounded by the Justice is a pure fiction.[244] Obviously our acts result in many probable consequences which we do not intend. If he means that the defendants were liable for such consequences even if they did not in fact intend them, he states a principle of law which is applicable to some crimes, but not to those in which the law requires a specific intent, as in the case at bar. In those crimes the defendant must actually have the defined state of mind.[245] Thus a man who broke into a barn at night and cut the sinews of a horse’s leg to prevent his winning a race is not guilty of burglary with intent to kill a horse, even though in consequence of the injury the horse died.[246] It is needless to multiply examples. Even recklessness does not take the place of the state of mind demanded by the statute.[247] On the other hand, if he means that the jury may permissibly infer as a matter of fact from the doing of an act that the actor intends its ordinary consequences, this is true enough,[248] but such an inference is worthless if there is overwhelming express evidence that the defendant had an entirely different intention. That is the situation in the Abrams case, where the pamphlets and the defendants’ testimony show that they intended to help Russia.
[244] Jeremiah Smith, “Surviving Fictions,” 27 _Yale L. J._ 147, 156 (1917).
[245] May, _Criminal Law_, 3 ed., § 34; 1 Bishop, _New Criminal Law_, 8 ed., § 335; Roberts _v._ People, 19 Mich. 401, 415 (1870); Ogletree _v._ State, 28 Ala. 693, 701 (1856).
[246] Dobbs’ Case, 2 East P. C. 513 (1770).
[247] United States _v._ Moore, 2 Lowell (U. S.) 232 (1873).
[248] Jeremiah Smith, _op. cit._; People _v._ Scott, 6 Mich. 287, 296 (1859).
The majority opinion must rest on the first sentence quoted from Justice Clarke, that aiding Russia was not the only intent of these defendants. It is argued that they had two intents: (1) to help Russia, (2) to hinder the war by curtailment of production in order to accomplish that object; that it is immaterial which intent was principal and which subordinate, so long as both existed.[249] Thus if I throw a brick at a man behind a plate-glass window, my principal desire may be to hit him, but if that necessarily involves breaking the window and I know this fact, I have a secondary intention to break it and am guilty of intentional destruction of property, even though I would much rather not have broken the glass.[250] When a man was indicted for assault on another with intent to disfigure him by biting off his ear, it was useless for him to argue that he only intended to injure but not to disfigure, since the disfigurement was a necessary and obviously a known consequence of the intended act.[251]
[249] 1 Bishop, _New Criminal Law_, 8 ed., § 339; Rex _v._ Gillow, 1 Moody C. C. 85 (1825).
[250] _Cf._ Rex _v._ Pembliton, 12 Cox C. C. 607 (1874). A shooting analogy is given in 33 _Harv. L. Rev._ 444 note.
[251] State _v._ Clark, 69 Iowa 196 (1886).
There are several answers to this argument that one who intends a curtailment of munitions for any purpose must know that fewer munitions will hinder the war and therefore must _ipso facto_ intend to hinder the war. First, the analogy of the throwing and biting cases just stated is too simple to have any application to the Abrams case. There is no such obvious and mechanical chain of cause and effect in complex social conditions, and the obscure factors involved are entirely beyond the capacity of a jury to decide. The argument supposes (1) that the hindrance of the war is inevitable, (2) that this inevitable consequence must have been in the defendants’ minds. Both steps are very questionable, and the opinion of a jury on either step should have no weight with an appellate court. Of the first Justice Holmes says, “An intent to prevent interference with the Revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.”[252] Thus a very short strike that stopped intervention would have caused a very small loss in munitions for shipment to France, which would have been enormously offset by the release of troops and equipment previously diverted to Russia, and a different Russian policy might have created greater liberal enthusiasm in this country and elsewhere for the President’s war aims. The second step ignores the belief of the defendants that a friendly Soviet Government would render valuable aid in attacking Imperial Germany by war, or at least by propaganda, whose effectiveness was proved within a fortnight after the conviction of Abrams and his friends.
[252] 250 U. S. @ 628 (1919).
Secondly, if every curtailment of munitions, whatever its purpose, is necessarily criminal under this Act, because of its alleged obvious and inevitable effect on the war, why does the Espionage Act take pains to limit the crime to “curtailment ... _with intent ... to cripple or hinder the United States in the prosecution of the war_”?[253] This clause is superfluous and meaningless, if every advocacy of curtailment involves such an intent. This clause about intent must add something to the rest of the definition of this crime. “Intent to hinder the war” clearly means more than the artificial lawyer-made intention to obstruct the war conjured up from any threat of a strike. The word “intent” in a very severe criminal statute and especially a statute limiting popular discussion must mean what any layman who wished to urge a strike in war time lawfully would assume it to mean, that interference with the war must not be the object of his exhortation, the purpose at which he aims. Such a man would be entrapped if “intent” means an incidental, undesired, and at the most a vaguely considered consequence of his utterances.[254] Strikes are not ordinarily illegal, and it would be startling if Congress intended to prohibit all incitement to them in war. Naturally the statute confined itself to strikes and similar measures that were specifically planned to interfere with the war.
[253] It is significant that Justice Clarke omits this clause in quoting the indictment, and possibly he overlooked it altogether and assumed that intent to advocate curtailment of war essentials was the only intent specified in the Act.
[254] _Ibid._, Holmes, J.: “When words are used exactly a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed—unless the aim to produce it is the proximate motive of the specific act ...” The Sabotage Act punishes defective manufacture of war essentials only if there is intent to interfere with the war or reason to believe that the act will interfere with it. Act of April 20, 1918.
This is not, as has been charged, a confusion of intent and motive.[255] It is absurd to say that “interference with the war was palpably the _direct_ and desired effect which these appeals were intended to produce” and aid to Russia only a motive. Justice Clarke expressly recognizes that the “primary intent” was to help Russia.[256] The defendants intended to produce certain tangible results, notably protest meetings, which in turn were intended to produce another tangible result, the end of intervention. Their motive was love for Russia. Possibly they also intended as part of their machinery of protest to produce a general strike, if intent can exist without any expectation of success. Interference with the war was at the most an incidental consequence of the strikes, entirely subordinate to the longed for consequence of all this agitation, withdrawal from Russia. It is wholly unsound to label the conjectural war consequence intent and the absorbing Russian consequence motive.
[255] “Justice Holmes’ Dissent,” 1 _Review_ 636 (December 6, 1919). This article also censures Justice Holmes for not quoting the passage about keeping the armies at home. I hope I have shown reasons why it should never have been quoted by any judge.
[256] 250 U. S. @ 621.
Finally, this argument of inevitable hindrance proves too much. If these defendants were guilty under the fourth count, so was every other person who advocated curtailment in the production of war essentials, no matter what his purpose. The machinists in Bridgeport who struck in defiance of the arbitration of the National War Labor Board violated the Espionage Act, although they intended to obtain higher wages. The Smith and Wesson Company violated it in refusing to continue to manufacture pistols under another arbitration, although they intended to retain an open shop.[257] The coal miners last autumn violated that Act in calling a strike. The government should have threatened all these people with the twenty-year penalty of the Espionage Act instead of acting under its general war statutes or imposing the milder rigors of the Lever Act and an injunction.[258]
[257] See these two cases in Report of the Activities of the War Department in the Field of Industrial Relations During the War (Washington, 1919), 32–35.
[258] I have not troubled to apply similar reasoning to the third count of the indictment, because for reasons already stated I do not consider the pamphlets contained any advocacy of resistance to the United States. Consequently, that count should be disregarded like the first two. Holmes, J., says: “Resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war.... There is no hint at resistance to the United States as I construe the phrase.” 250 U. S. @ 629 (1919).
In other words, the Supreme Court was construing not only a criminal statute which must be applied in a fashion which the laymen who are menaced by it will readily understand, but a statute limiting discussion and hence to be interpreted in the light of the First Amendment. It ought not to be assumed that Congress meant to make all discussion of any governmental measure criminal in war time simply because of an incidental interference with the war. The danger of the majority view is that it allows the government, once there is a war, to embark on the most dubious enterprises, and gag all but very discreet protests against these non-war activities. To give extreme concrete examples: Irish munition workers could not have been urged to strike had our government been sending arms to Dublin Castle, because this would have lessened munitions for France, since a machinist could not be sure that any particular shell or gun was going to Ireland. Incitement to armed resistance to an executive edict nationalizing women would be opposition that might paralyze the war, and therefore easily suppressed under this Act.
The majority opinion dismisses this matter of constitutionality in two sentences, citing decisions on the Espionage Act of 1917 to establish the validity of the far more objectionable provisions of the Act of 1918.[259] Furthermore, the court did not have to declare the clauses involved in the third and fourth counts void. Indeed, it cannot reasonably be doubted that they are constitutional when construed in accordance with the First Amendment. It is the same situation that Judge Hand pointed out in Masses _v._ Patten:[260] it is not a question of judicial refusal to enforce legislation, but of giving it a construction which will not limit discussion beyond the express terms of the Act. The words of the statute requiring a specific intent were presumably not meant by Congress to bear a meaning which would curb political agitation on matters unrelated to the war. The statute uses the ordinary language of criminal solicitation and attempt, and does not expressly demand the punishment of words in the absence of immediate danger or a determined purpose in itself dangerous to cause actual obstruction of the war. Therefore, it was erroneous for the court to construe it so as to make the remote bad tendency and possible incidental consequences of these pamphlets a valid basis for conviction. And even if all advocacy of curtailment of munitions be considered dangerous, the intent clause limits the crime and should not have been ignored. While the decision of the majority has done a lasting injustice to the defendants, its effect on the legal conception of freedom of speech should be temporary in view of its meager discussion of the subject and the enduring qualities of the reasoning of Justice Holmes.
[259] 250 U. S. @ 619.
[260] 244 Fed. 535, 538 (1917). See p. 48, _supra_.
Although a dissenting opinion, it must carry great weight as an interpretation of the First Amendment, because it is only an elaboration of the principle of “clear and present danger” laid down by him with the backing of a unanimous court in Schenck _v._ United States. Since that case is reaffirmed by Justice Clarke this principle still remains law, greatly strengthened since the Abrams case by Justice Holmes’s magnificent exposition of the philosophic basis of this article of our Constitution:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
The preceding chapters have been written in support of this danger-test as marking the true limit of governmental interference with speech and writing under our constitutions, but an able and thoughtful criticism of Justice Holmes’ dissent[261] makes it imperative to say something more on the subject. In the first place, the First Amendment is very much more than “an expression of political faith.” It was demanded by several states as a condition of their ratification of the Federal Constitution, and is as definitely a prohibition upon Congress as any other article in the Bill of Rights. The policy behind it is the attainment and spread of truth, not merely as an abstraction, but as the basis of political and social progress. “Freedom of speech and of the press” is to be unabridged because it is the only means of testing out the truth. The Constitution does not pare down this freedom to political affairs only or to the opinions which are held by a majority of the people in opposition to the government. A freedom which does not extend to a minority, however small, and which affords them no protection when the majority are on the side of the government would be a very partial affair, enabling the majority to dig themselves in for an indefinite future. The narrow view that the amendment does not protect a few of the people against the force of public opinion throws us back to the English trials during the French Revolution, and the Sedition Law of 1798, for which the United States through many years showed its repentance by pardoning all prisoners and repaying to them the fines imposed. These were none the less injurious to the cause of truth because they had the sanction of the majority.
[261] “The Espionage Act and the Limits of Legal Toleration,” 33 _Harv. L. Rev._ 442 (January, 1920), by Day Kimball.
Undoubtedly, although we are not infallible, we must assume certain opinions to be true for purposes of action; but this does not make it right or desirable to assume that they are true for the purpose of crushing those who hold a contrary doctrine.
There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation.[262]
[262] Mill, _Liberty_, c. II.
The vote of the majority of the electorate or the legislature is the best way to decide what beliefs shall be translated into immediate action, and the government must resist if its opponents begin to carry on the conflict of opinions by breaking heads instead of counting them. But it is equally inadvisable for the government to seek to end a contest of ideas by imprisoning or exiling its intellectual adversaries. Force seems like force to its victim, whether or not it has the sanction of law. No one will question that the government must resist a revolt, however Utopian in purposes, but the inference that logically it must also condemn all utterances “aimed at such subversion or tending solely thither” ignores the difference of degree emphasized by the First Amendment. It is the unfailing argument of persecutors. The opinions to which they object are always conceived to aim at revolution, violence, and nothing else, although such utterances are usually in large part the exposition of political and economic views. The advocates of parliamentary reform in England were condemned on just such reasoning. To throw overboard the danger-test, and permit “the suppression, whenever reasonably necessary, of utterances whose aims render them a menace to the existence of the state,” inevitably substitutes jail for argument, since the determination of the vague test of “menace” depends on the tribunal’s abhorrence of the defendant’s views. It is no answer that this tribunal (outside of the crushing powers of the post-office and of the immigration officials in deportation cases) is a jury. A fitness to apply a common-sense standard to alleged criminal acts bears no resemblance to a capacity to appraise the bad political and social tendency of unfamiliar economic doctrines during panic. The Abrams case shows the capacity of a judge to decide such a question. The only tribunal which can pass properly on the menace of ideas is time.
We must fight for some of our beliefs, but there are many ways of fighting. The state must meet violence with violence, since there is no other method, but against opinions, agitation, bombastic threats, it has another weapon,—language. Words as such should be fought with their own kind, and force called in against them only to head off violence when that is sure to follow the utterances before there is a chance for counter-argument. To justify the suppression of the Abrams agitation because the government could not trust truth to win out against “the monstrous and debauching power of the organized lie” overlooks the possibility that in the absence of free discussion organized lies may have bred unchecked among those who upheld the course of the government in Russia.
The lesson of United States _v._ Abrams is that Congress alone can effectively safeguard minority opinion in times of excitement. Once a sedition statute is on the books, bad tendency becomes the test of criminality. Trial judges will be found to adopt a free construction of the act so as to reach objectionable doctrines, and the Supreme Court will probably be unable to afford relief.
Most of the discussion of the Abrams case has turned on the question whether the decision of the United States Supreme Court affirming these convictions was right or wrong. It seems to me much more important to consider the case as a whole, and ask how the trial and its outcome accord with a just administration of the criminal law.
The systematic arrest of civilians by soldiers on the streets of New York City was unprecedented, the seizure of papers was illegal, and the charges of brutality at Police Headquarters are very sinister. The trial judge ignored the fundamental issues of fact, took charge of the cross-examination of the prisoners, and allowed the jury to convict them for their Russian sympathies and their anarchistic views. The maximum sentence available against a formidable pro-German plot was meted out by him to the silly futile circulars of five obscure and isolated young aliens, misguided by their loyalty to their endangered country and ideals, who hatched their wild scheme in a garret, and carried it out in a cellar. “The most nominal punishment” was all that could possibly be inflicted, in Justice Holmes’s opinion,[263] unless Judge Clayton was putting them in prison, not for their conduct, but for their creed. Yet they are condemned for their harmless folly to spend the best years of their lives in American jails. The injustice[264] is none the less because our highest court felt powerless to wipe it out. The responsibility is simply shifted to the pardoning authorities, who except for the release of the unlucky dupe Rosansky have as yet done nothing to remedy the injustice, and to Congress which can change or abolish the Espionage Act of 1918, so that in future wars such a trial and such sentences for the intemperate criticism of questionable official action[265] shall never again occur in these United States.
[263] 250 U. S. @ 629 (1919).
[264] See Morley’s indignation at the “thundering sentences” for sedition in India. 2 _Recollections_ 269.
[265] On armed intervention without Congressional authority, see the state papers of Seward and Fish in J. B. Moore, _Digest of International Law_, VI, 23 ff., and Moorfield Storey, “A Plea for Honesty,” 7 _Yale Rev._ 260 (1918): “If any nation were to do any of these things to the United States, we should not doubt that it was making war on us.”