CHAPTER VI

JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS

If Charles wished to prosecute the five members, a bill against them should have been sent to a grand jury.—MACAULAY, _Essay on Hallam_.

It is one of the unfortunate results of governmental action against freedom of speech that the persons who retain sufficient courage to come into conflict with the law are often of a heedless and aggressive character, which makes them unattractive and devoid of personal appeal. Too often we assume that such persistent trouble-makers are the only persons injured by a censorship or a sedition law, and conclude from the indiscreet and unreasonable qualities of their speech and writing that after all the loss to the world of thought has been very slight. Too often we forget the multitude of cautious and sensitive men, men with wives and children dependent upon them, men who abhor publicity, who prefer to keep silent in the hope of better days. We cannot know what is lost through the effect upon them of repression, for it is simply left unsaid.[438] The effort of the agitator is made for their sake as well as his own, and if he wins the gain to truth comes, not perhaps from his ideas, but from theirs. The men and women mentioned in this book, whom reflection has made me consider victims of unwise and often illegal suppression, are not indeed political prisoners whose ideals I can share, as I might those of Silvio Pellico or Grotius, and it may be that even after due allowance has been made for the natural blindness of a contemporary to the merit of their thinking, that only one or two among them, like Bertrand Russell, are men whose work has enduring worth. Yet the views and even the personal qualities of the victims of persecution have little relation to the justice of their cause. Few objects of intolerance have touched such a low level of thought and action, few have rendered more numerous and more valuable services to liberty than John Wilkes.

[438] Tolstoy once wrote: “You would not believe how, from the very commencement of my activity, that horrible Censor question has tormented me! I wanted to write what I felt; but at the same time it occurred to me that what I wrote would not be permitted, and involuntarily I had to abandon the work. I abandoned, and went on abandoning, and meanwhile the years passed away.”—GRAHAM WALLAS, _The Great Society_, 196.

I. _John Wilkes_

In his person though he were the worst of men, I contend for the safety and security of the best.—LORD CHATHAM.

“That name,” says Trevelyan, “which was seldom out of the mouths of our great-grandfathers for three weeks together, had been stained and blotted from the first.” A rake and a prodigal, unfaithful to the wife whose fortune he looted for use in election briberies, lacking in genuine devotion to any political ideal, he nevertheless by sheer pluck and impudence led the fight to establish in the law of all English-speaking countries five great principles of freedom: the immunity of political criticism from prosecution; the publicity of legislative debates; the abolition of outlawry, which condemned a man in his absence; the protection of house and property from unreasonable searches and seizures; and the right of a duly elected representative of a constituency to sit in the legislature unless disqualified by law, no matter what personal objections his colleagues may have to his opinions and writings or to his previous convictions for sedition. So great were his achievements that he became a household word on this side of the Atlantic. One of the largest cities in Pennsylvania is named for him. Men called their children after him. One New England admirer had three sons, Wilkes, Pitt, and Liberty. In the eyes of our forefathers he was the most conspicuous combatant against the doctrine, so obnoxious to them, that men might be maltreated, imprisoned, exiled, disfranchised, for the supposedly evil tendencies of their political opinions. The preceding chapters have shown the gradual revival of that doctrine in our midst, first in war and now in peace, first against pacifists and pro-Germans, then against radical aliens, until finally the war with “evil-thinking” has brought us to the point of governmental action against radical citizens with a constantly diminishing standard of radicalism, and two of the great principles for which Wilkes fought amid the applause of our ancestors are in grave peril, freedom from unreasonable searches and seizures and the right of the people to choose their representatives.

II. _The Raids of 1763 and the Raids of 1919_

The poorest man may in his cottage bid defiance to all the forces of the Crown; it may be frail, its roof may shake, the wind may blow through it; the storm may enter, the rain may enter; but the King of England can not enter; all his forces dare not cross the threshold of that ruined tenement.—LORD CHATHAM.

On the 23rd of April, 1763, appeared No. 45 of the _North Briton_, commenting upon the king’s speech and upon the unpopular peace recently concluded. It was conducted by Wilkes, who had played a large part through this newspaper in driving Lord Bute from office and now castigated his successor, George Grenville, of Stamp Act fame. Other journalists abused public men under such disguises as the use of initials, but the _North Briton_ called them by name. The Ministry resolved to prosecute for libel, but it was unknown who was the libeler, since those responsible for the newspaper had kept their identity concealed. Lord Halifax, one of the Secretaries of State, issued what was then called a general warrant, directing four messengers to take a constable, search for the authors, printers, and publishers, and seize them when found, together with their papers.

No one having been charged, or even suspected—no evidence of crime having been offered—no one was named in this dread instrument. The offense only was pointed at, not the offender. The magistrate, who should have sought proofs of crime, deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days, they arrested no less than forty-nine persons on suspicion, many as innocent as Lord Halifax himself.[439]

[439] 2 May’s _Constitutional History_, 125.

Among the number were Leach, a printer who had printed another number of the _North Briton_, whose papers were seized; and the publisher and printer of No. 45, with all their workmen. From them Wilkes was discovered to be the real offender, and he was carried off to the Secretaries of State. As soon as he was out of his house, the messengers returned to it and took entire possession, refusing admission to his friends. They sent for a blacksmith, who opened the drawers of his bureau. The messengers dumped his papers, including his will and pocket-book, into a sack, and went off with them without even taking an inventory. Wilkes brought an action, not against the messengers, but against the man higher up, the Under Secretary of State, who had personally superintended the execution of the warrant. Chief Justice Pratt, afterwards Lord Chancellor Camden, said of the warrant:[440]

If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.

[440] Wilkes _v._ Wood, 19 How. St. Tr. 1167 (1763).

Wilkes recovered £1,000. Then he went still higher, and sued the Cabinet Minister who had issued the warrant, for false imprisonment, obtaining £4,000 damages. His associates brought similar actions. It is said that altogether these suits cost the Grenville Government £100,000.

This warrant was doubly illegal in failing to specify the persons to be arrested and in giving no authority to search and seize papers or other property. Another warrant, issued the previous year because of alleged libels in the _Monitor_, did specify the author, John Entinck, and directed that he be seized, “together with his books and papers.” This warrant was more specific, but not sufficiently so to be legal, for it did not name the particular papers to be seized, but gave authority to the messengers to take all his books and papers. Entinck sued the messengers and recovered £300. Pratt said in this case:[441]

... If this point should be determined in favor of the jurisdiction, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.

The messenger, under this warrant, is commanded to seize the person described, and to bring him with his papers to be examined before the secretary of state. In consequence of this, the house must be searched; the lock and doors of every room, box, or trunk must be broken open; all the papers and books without exception, if the warrant be executed according to its tenor, must be seized and carried away; for it is observable, that nothing is left either to the discretion or to the humanity of the officer.

This power so assumed by the secretary of state is an execution upon all the party’s papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper....

Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society....

If suspicion at large should be a ground of search, especially in the case of libels, whose house would be safe?

[441] Entinck _v._ Carrington, _ibid._, 1029 (1765).

The law of this case that search must be by warrant describing the property to be seized is embodied in the Constitution of the United States. “Can we doubt,” asks Justice Bradley,[442] “that when the Fourth and Fifth Amendments were penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and ‘unreasonable’ character of such seizures?” We had our own grounds for opposing such arbitrary practices. The first of that long series of contests which led up to the American Revolution was the attack of James Otis upon the Boston Custom House officers who were searching for smuggled goods under general warrants. “Then and there,” said John Adams, “the child Independence was born.”

[442] See the full discussion of the historical background of the Fourth Amendment in Boyd _v._ U. S., _infra_.

The Fourth Amendment reads thus:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has made repeated use of this Amendment[443] to prevent the use of evidence which has been seized without a search-warrant (even though under a warrant of arrest) or with a search-warrant which fails to specify the particular papers to be seized.

[443] Boyd _v._ U. S., 116 U. S. 616 (1886); Weeks _v._ U. S., 232 U. S. 383 (1914); Silverthorne Lumber Co. _v._ U. S., 251 U. S. 385 (1920).

In Boyd _v._ United States, the federal customs officials, acting under a statute and with a warrant, compelled the defendant to produce an invoice which they believed would enable them to forfeit goods. The Supreme Court held that the evidence could not be used.

Any compulsory discovery ... compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.

In Weeks _v._ United States, Justice Day said of a seizure of papers before indictment:

... This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

... The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.

The most recent case is Silverthorne Lumber Co. _v._ United States, decided in January, 1920. After the officers of a corporation had been arrested, “representatives of the Department of Justice and the United States Marshal without a shadow of authority went to the office of their company and made a clean sweep of all the books, papers, and documents found there.” Photographs and copies were made and the originals returned. Justice Holmes held that the seizure was “an outrage,” which prevented the government from making any use of the copies or even from obtaining a court order directing the corporation to produce the originals. Thus, under the federal law, an illegal search and seizure not only subjects the officials and other persons participating in the raid to civil actions for damages, such as were brought by Wilkes and his associates, but also prevents the government from making even the most indirect use by way of evidence of the purloined material.

It is, of course, necessary and legal that searches should sometimes be made for the detection of crime. For instance, the person of the man apprehended as a criminal can be searched without a warrant for a revolver or burglar’s tools; and search-warrants can be obtained to look for stolen goods or articles which are retained in violation of revenue laws. These warrants have such very serious consequences that they can only be obtained for very urgent and satisfactory reasons, and the rules of law pertaining to them already mentioned in the discussion of Wilkes and soon to be stated, are of more than ordinary strictness, and must be carefully observed. Even duly authorized searches are so obnoxious in a liberty-loving country, that the law should, as Cooley points out, be very slow to extend them:[444]

The power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons,—and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws is to incline to the side of safety. In principle they are objectionable; in the mode of execution they are necessarily odious; and they tend to invite abuse and to cover the commission of crime.

[444] _Constitutional Limitations_, 7 ed., 432.

Searches and seizures, whether valid or not, are like spies, the price that a nation pays for sedition laws, for these can only be enforced by prying methods. The Espionage Act is careful to include a title on search-warrants. Over thirty-five big raids by federal officials took place during the war, sometimes with proper warrants, sometimes without.[445] Since the armistice, the Espionage Act was used to close the _Seattle Union-Record_, until a court declared the action to be invalid.[446] The preceding chapter has shown the absence of search-warrants in the recent deportation round-ups, which should not only result in the release of most of the aliens, but subject the members of the Department of Justice, including Attorney General Palmer, to the same kind of civil actions which Wilkes sustained against Lord Halifax, the Secretary of State.

[445] Act of June 15, 1917, c. 30, Title XI. For a list of raids, see _War-time Prosecutions_, 38–40.

[446] Chapter II, note 191.

The best known instance of searches and seizures, is, however, the spectacular series of raids conducted in June, 1919, by a joint committee of the New York Senate and Assembly. Probing committees seem indigenous to New York. They had one in 1780 to detect and defeat conspiracies of Loyalists.[447] On March 26, 1919, the legislature adopted a joint resolution, which, after reciting that a large number of persons within the state were circulating propaganda calculated to overthrow the government of the state and nation, and that it was the duty of the legislature to learn the whole truth regarding these seditious activities and pass appropriate laws, appointed a committee of six “to investigate the scope, tendencies, and ramifications of such seditious activities, and to report the result of its investigation to the Legislature.” The committee had power “to compel the attendance of witnesses and the production of books and papers,” and was in general a legislative committee. In no sense was it a body for the prosecution of crime.[448]

[447] Minutes of the Commissioners for Detecting and Defeating Conspiracies in the State of New York, ed. V. H. Patsits, N. Y., 1909. See also on anti-Loyalist legislation in New York, establishing test oaths, Cummings _v._ Missouri, 4 Wall. 277, _passim_.

[448] Concurrent Resolution, March 26, 1919.

There were in New York several headquarters of radical organizations which this Lusk Committee, so called because of its chairman, determined to investigate. If the officers of these organizations had been served with a _subpœna duces tecum_, the usual order to produce any books and papers that were wanted, which as just stated the Committee had power to issue, no reason has ever been shown to believe that such material would not have been forthcoming. Instead, the Committee proceeded to take out search-warrants and raid the organizations, one after another, throwing their entire offices into hopeless confusion. New York has not a constitutional provision, like the Fourth Amendment, but its Civil Rights Law enacts precisely the same words, and the Code of Criminal Procedure is very explicit. Also no person can be compelled in any criminal case to give evidence against himself.[449] It is possible that the federal rule against the use of illegally seized evidence does not prevail in New York,[450] but the test of what is illegal remains the same and renders liable to civil and criminal penalties and to the condemnation of all law-abiding persons any officials who conduct lawless and disorderly searches and seizures, especially when they act in the name of law and order.

[449] I Birdseye & Gilbert, Consol. Laws, 2d ed., 1079, § 8; Code of Criminal Procedure, §§ 791–813; N. Y. Cons., Art. I., § 6. See Boyd _v._ U. S., 116 U. S. 616, on self-incrimination in connection with searches.

[450] P. _v._ McDonald, 177 N. Y. App. Div. 806 (1917).

It is true that the Lusk Committee obtained search-warrants for its raids, but this does not render the proceedings valid unless the warrants complied with the definite requirements of the law, which are as follows: (1) Property may be seized even though no crime has been committed, if it is held or concealed with the intent to use it as the means of committing a public offense, for example, infernal machines.[451] A man’s privacy must not be invaded for the sole purpose of obtaining evidence against him, but only to obtain a dangerous instrument of past or future crimes. (2) The warrant is to be issued by a judicial officer, after a showing made before him under oath that there is probable cause for suspicion of a crime and the concealment of articles involved in it, which must be particularly described by the affidavit. (3) The magistrate must examine on oath the complainant and any witnesses he may produce, take written depositions subscribed by the witnesses, and satisfy himself that there is probable cause to believe the suspicion of crime is well founded. The suspicion itself is no ground for the warrant except as the facts justify it.[452] (4) The warrant must specify the place to be searched and the precise objects to be seized. Very great particularity is required, and not such blanket descriptions as “goods, wares and merchandises,” or, as Entinck’s case proved, “his books and papers.” In other words, there must be a real exercise of discretion on the part of the judge or magistrate, and he must not be a mere rubber stamp for any government official who wants a hurry-up warrant to clean out somebody’s house or office. (5) The warrant must command that the articles to be searched for be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of according to law. And it is a fatal objection to such a warrant that it leaves the disposition of the articles to the searching officer, instead of enabling the judge to determine by investigation the truth of the complaint made. The property must be delivered in conformity with the warrant, together with a detailed written inventory.[453] A hearing is then to be held, and if the grounds for the warrant fail, the property must be returned. (6) The magistrate must send the depositions, warrant, and inventory, to the court which has power to inquire through a grand jury into the offense in respect to which the warrant was issued. The New York statutes and decisions are explicit on all these matters, and make it a misdemeanor to procure a warrant maliciously and without probable cause, or for an officer to exceed his authority or exercise it with unnecessary severity.[454]

[451] Cooley, _op. cit._, 431, doubts the validity of warrants for preventive purposes. However, the _N. Y. Code of Crim. Proc._, § 792, is explicit. In some cases, preparation of the dangerous object might amount to a criminal attempt.

[452] Cooley, _op. cit._, 429; _Code Cr. Proc._, §§ 793 ff.; Gaynor, J. (afterwards Mayor), in Matter of Blum, 9 Misc. 571 (1894), in nullifying a warrant of arrest issued on information and belief: “Human liberty was never so cheap as that under our law.... It is important that crime should be punished, but far more important that arbitrary power should not be tolerated. The ‘oath or affirmation’ required is of facts.” Comfort _v._ Fulton, 39 Barb. 56 (1861), _accord_.

[453] Cooley, 431; _Code Cr. Proc._, §§ 797, 805 ff.

[454] Notes 12, 13, 15, 16, 19–20; Sanford _v._ Richardson, 176 N. Y. App. Div. 199 (1916).

Let us consider how these requirements were observed in the various raids. The first was against the Bureau of the Representative of the Russian Socialist Soviet Republic in the United States,[455] which had been established in April, 1918, in the World Tower Building, by L. C. A. K. Martens, the as yet unrecognized “ambassador” of the Republic in the United States. An agent of the Committee made affidavit to a magistrate that he had picked up a typewritten document from the floor of the Bureau entitled “Groans from Omsk,” apparently a call to the workingmen of Omsk to establish a Soviet form of government, and that the Bureau was “engaged in the distribution of literature calculated to stimulate revolutionary activities in this state.” A search-warrant was then issued in blanket form authorizing the seizure of “All documents, circulars, and papers printed or typewritten, having to do with Socialist, Labor, Revolutionary, or Bolshevik activities; all books, letters, and papers pertaining to the activities of said Bureau, all circulars and literature of any sort, kind, or character;” in the words of the _Times_, “practically everything that might be construed as documentary evidence in the place.” These were to be brought forthwith before the magistrate at his office. On June 12, 1919, a squad of the State Constabulary took possession of the Bureau, excluded all persons in charge, and ransacked every drawer and cabinet for papers and other material, even breaking open the cash-box. Hundreds of books and pamphlets, Martens’s private bank books, and all letters and other documents in the files were taken away in disorder, including more than a thousand letters of American business concerns relating to the shipment of merchandise to Russia. All these papers were taken on trucks, not to the magistrate, but to the office of the Lusk Committee in the Prince George Hotel, where it is charged that they were examined not only by members of the Committee, but by an agent of the British Secret Service, who shortly afterwards departed for England with the information that he had obtained. It is, of course, well known that Great Britain may soon resume business relations with Russia. This charge is denied by the Committee, and the investigation proposed by the Socialist Assemblymen lapsed upon their expulsion. Letters taken from the Bureau were read into the record of the Lusk Committee, and disclosed to the press, besides the names of a large number of persons on the mailing list of the Bureau, although there was nothing to indicate that they were in any way connected with its work, or sympathized with its aims. None of this material was ever delivered to the magistrate who issued the search-warrant or steps taken to institute criminal proceedings. The seized papers and books were merely used as the basis for the Committee’s subsequent examination of Martens and his associates, in order to prepare a report to the legislature and provide fire-eating material for the newspapers.

[455] For a description of the Bureau’s work, see _American Labor Year-Book_, 1919–20, 383–386. The raid is narrated in _New York Times_, June 13, 1919, and following days. See Bibliography.

The Appellate Division of the New York Supreme Court has declared:[456]

Under the broad provisions of the Fourth Amendment to the Federal Constitution and of our Bill of Rights, which is substantially the same as that enacted in the other States of the Union, it has been held that the right to security of one’s person, house, papers and effects against unreasonable searches and seizures extends as well to letters and sealed packages, and prohibits searches for property other than those to aid in the administration of the criminal law.

[456] Matter of Ehrich _v._ Root, 134 N. Y. App. Div. 432, 438 (1909).

If it be urged that the Lusk Committee was acting to obtain evidence as the basis of a criminal prosecution against this Bureau and its affairs, the proceeding was still more invalid, because it would compel persons to give evidence against themselves contrary to the New York Constitution. That the legislature intended by a mere joint resolution to confer upon a committee “a power far in excess of that conferred upon any tribunal or official—a power so extreme as to be despotic in its character” is unthinkable. The same court has said that the right against unnecessary searches and seizures and the right against self-incrimination are “the complements of each other, directed against the different ways by which a man’s immunity from giving evidence against himself may be violated.”[457]

No inquisitorial officer should be permitted, of his own volition, arbitrarily and without any check or safeguards upon the rights of the citizen, to compel him to produce and submit to his scrutinizing gaze all his books and papers of the most private and confidential character.... Nor is it any answer to say that this examination is not sought in any criminal proceedings. In the absence of a full and complete statute of indemnity, a person should not be compelled, when acting as a witness in any investigation, to give evidence which may tend to imperil his constitutional privilege.... Compulsory process to produce such papers, not in a judicial proceeding, but before a commissioner of inquiry is as subversive of “all the comforts of society” as their seizure under the general warrant.

[457] Matter of Foster, 139 N. Y. App. Div. 769 (1910). See also _Ex parte_ Clarke, 126 Cal. 235 (1899).

If any business man will consider what it would mean to have a number of men breaking into his office with such a blanket warrant and close his business for a day, turn all his letter files into confusion, and carry off some of his most important correspondence for disclosure to outsiders, he will see what is the possible result of encouraging lawlessness of this kind. We are disposed to pardon raids of this sort because they are against radicals. We ought to remember that the same methods may be used by any other investigating committee, for instance, for the purpose of learning why prices are high, in which case they might be employed against any wholesale or retail establishment.

The Lusk Committee next raided the Rand School, on East Fifteenth Street, near Fifth Avenue, a Socialist and Labor college, established in 1906, and having over 5,000 registered students. Its methods are those of any other institution of higher education, and its work is stated by its Director to fall into two parts, “that which offers opportunities for the general public to study Socialism and related subjects, that which gives Socialists such systematic instruction and training as may render them more efficient workers in and for the Socialist Party, the Trade Unions and the Co-operatives.”[458] It also conducts a large reference library and reading room, containing several thousand volumes, pamphlets, and periodicals, open to the public without charge, and a book store, doing a large mail-order business, chiefly, though by no means exclusively, in books and pamphlets relating to social and labor questions. It is supported partly from this store and its moderate tuition fees and partly by private contributions. Except for the fact that its owner, the American Socialist Society, had been convicted under the Espionage Act for publishing Scott Nearing’s _Great Madness_,[459] it had never come in conflict with the law.

[458] _American Labor Year-Book_ 1919–20, pp. 206–8, 109–112. The raid is narrated in _New York Times_, June 22, 1919, and following days. See Bibliography.

[459] See Appendix II and page 27, _supra_.

On June 21, agents of the Committee appeared with ten state troopers and forty ex-members of the American Protective League (now disbanded by the Department of Justice), carrying another blanket warrant, authorizing the seizure of “All publications, documents, books, circulars, letters, typewritten or printed matter having to do with Anarchists, Socialists advocating violence, revolutionary or Bolshevist activities, and all books, letters, and papers pertaining to the activities or business carried on in said offices, and all circulars and letters of any sort, kind, or character.” This was obtained on affidavit that certain books and pamphlets which the informant purchased in the public book shop on the ground floor contained “revolutionary, seditious, and obscene statements.” A number of the raiders carried arms. They proceeded to ransack all the rooms on the ground floor of the school and load the papers into trucks, which as before were not taken to the magistrate, but to the headquarters of the Lusk Committee. Two days later the raiders returned to the school with a new warrant obtained on affidavit that three persons had been heard to say at the school, “It is a good thing they haven’t opened the big safe on the third floor.” Safe experts were directed to drill a hole in the three-ton safe and open it. The raiders then removed all the correspondence, check stubs, accounts, and minutes of the meetings of the American Socialist Society. The Director of the school drew the attention of the state troopers to the fact that these papers clearly fell outside the warrant. He replied, “Oh, that ain’t what we’re after. We want to get at the source of the financial support of the Rand School.” The Committee, without having any one from the Rand School to explain the papers and the purposes of the school, immediately gave all kinds of prejudicial reports to the press throughout the country. It will be recalled that the function of the Committee was to report to the Legislature. The Attorney General began an action to dissolve the charter of the Rand School, which was ignominiously dropped at the first sign of a fight. He could not even produce a _prima facie_ case.

Mr. Samuel Untermeyer, who, though not a Socialist, undertook the school’s case without pay, wrote to Senator Lusk:

There is a library connected with the Rand School, which conducts also a book store for the sale of books and periodicals. Its printed catalogue, which I have now seen for the first time, embraces thousands of books, mainly classics and economics, among which, it appears, you have discovered one periodical and two or three books from which you have extracted and published occasional sentences containing discussions on birth control, revolutionary changes in government, and the like. You have deliberately attempted to distort these few instances in the public prints so as to create the false impression that this is the general character of the teachings of the School, when in point of fact the School appears to be an educational institution of an unusually high order, with courses of studies taught by some of the most eminent professors in the country, most of them holding positions in the great universities of the country.

The New York Public Library and probably every other great public library and book store has on its shelves hundred of books of the character you condemn to every one that the Rand book store or library contains. Why not seize their property and blow open their safes, under an improvidently granted warrant and try to close their doors?... You might with equal justification have raided any book store in New York City.

These searches were illegal: (1) the affidavit stated no probable cause of use of the papers for crime, but only the court’s rumors and suspicions of something objectionable; (2) the complainant was not examined by the magistrate, who took no pains to satisfy himself of a valid cause for search; (3) the warrant did not particularly state the articles to be seized, but was as bad as that against Entinck, or worse; (4) a large portion of the correspondence and other papers seized could not possibly be instruments of crime; (5) the papers were not taken to the magistrate; (6) the whole affair had no connection with any criminal proceeding, but was half legislative investigation and half advertising.

Massachusetts has a constitutional provision in its Bill of Rights[460] like the federal Fourth Amendment, requiring the same particular description of the articles to be seized. Nevertheless, the district attorney of Middlesex County raided a book-bindery in Cambridge and carried off forty-five hundred red-bound copies of _The Proletarian Revolution in Russia_, by N. Lenine and Leon Trotsky, a collection of documents on recent events, by virtue of a warrant authorizing the seizure of obscene literature. In Boston, the police raided a Communist hall with a warrant setting up that firearms were illegally on the premises,[461] but as the _Boston Herald_ naïvely put it, “they had accurate information which made it possible for them to seize the _papers_ they sought almost as soon as they entered the hall.” If they could seize papers on such a warrant, they could enter a house and take silverware. And this in the state where James Otis denounced general warrants as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book,” since they placed “the liberty of every man in the hands of every petty officer.”

[460] Part First, Art. XIV. 3d District Court, E. Middlesex, No. 2972, Nov. 12, 1919. The court found there was no obscenity and the books were returned.

[461] _Boston Herald_, December 18, 1919; italics mine. Gun warrants are authorized by Mass. Laws, 1919, c. 179.

III. _The Exclusion of Wilkes from the House of Commons_

Dr. Johnson: “Is there not a law, Sir, against exporting the current coin of the realm?”

Wilkes: “Yes, Sir: but might not the House of Commons, in case of real evident necessity, order our own current coin to be sent into our own colonies?”

Dr. Johnson: “Sure, Sir, _you_ don’t think a resolution of the House of Commons equal to _the law of the land_?”

Wilkes: “God forbid, Sir.”

We now return to a second great principle established by Wilkes. The Grenville Government, which found him such an expensive opponent, brought an information against him for seditious libel on account of what would now be considered an ordinary political editorial. He was a member of the House of Commons. The House ordered the newspaper to be burned by the common hangman and summoned Wilkes to attend for further proceedings. Meanwhile the government encouraged bullies to make way with him. Forced into a duel, he fled to France. Evidence was taken of his being the author and publisher of the _North Briton_, No. 45, and he was expelled for the seditious libel published during his term as member of Parliament. May considers that this expulsion was legal, but precipitate and vindictive, for Wilkes was about to be tried for his offense, and the House might at least have waited for his conviction, instead of prejudging his cause and anticipating his legal punishment.[462] Later he was convicted in his absence, and outlawed for contumacy.

[462] 1 May, _Constitutional History_, 312.

Four years went by, the general election of 1768 was approaching, and he returned from exile to stand for Parliament. After a defeat in the City of London, he presented himself as a candidate for Middlesex. The working people allowed no man to travel to the polls without a paper in his hat inscribed, “Number 45. Wilkes and Liberty!” Convict and outlaw as Wilkes was, his vote was overwhelming.

After his election, Wilkes surrendered himself into custody, and went to jail. Lord Mansfield reversed the outlawry, and Wilkes was sentenced, on the original charge of seditious libel, to nearly two years in prison. Obviously, the King should have pardoned him. His sentence was unwarranted, and its remission would have relegated him, as Trevelyan puts it, “to an obscurity whence, but for the infatuation of his enemies, he would never have emerged.” A feeble speaker, he would have been negligible; in the words of Junius, “a silent senator, and hardly supporting the eloquence of a weekly newspaper.” But the King and the Cabinet were his implacable enemies and he was left in prison. And, then going back forty years to the precedent of a member who had been expelled for forgery, the House of Commons declared Wilkes’s seat to be vacant by a vote of two hundred and nineteen to one hundred and thirty-seven.

A new election was held, and though still in prison, he was re-elected. The House next day voted that, having been expelled, he was incapable of serving in Parliament. A third election followed with the same result. Burke told his fellow members that Wilkes had grown great by their folly, and Townshend reminded his hearers “that a heavy account would some day be exacted from them if they continued to postpone all useful legislation for the sake of a frivolous and interminable squabble.” But the election was declared null and void without a division. An opponent was produced for the fourth election in one Luttrell, who drew one vote to Wilkes’s four, but was declared by the House of Commons to be member for Middlesex, after a debate in which even George Grenville rallied to the support of his old enemy, Wilkes, with such vehemence that when he sat down he spat blood, shortening his life to diminish the majority against the lawfully elected candidate. Blackstone tried to show that Wilkes was disqualified by common law, but was confuted by a passage in the early editions of his _Commentaries_, which he carefully altered in the edition of 1773 and which said that every British subject not in certain specified classes was “eligible of common right.” The majority was forced to rely on precedents from the Great Civil War, when the majority expelled the minority and was itself expelled in turn, until the House of Commons was reduced to forty-six members. Luttrell’s election was confirmed, against the petition of the Middlesex electors, and the King prorogued Parliament.

Burke expounded the principle involved in Wilkes’s exclusion in his _Thoughts on the Present Discontents_. The only check on arbitrary power is the presence here and there on the benches of members endowed with a “spirit of independence carried to some degree of enthusiasm, an inquisitive character to discover, and a bold one to display, every corruption and every error of government.” Such qualities are distasteful to those in power, and Wilkes was the example chosen to discourage others, just as the arrest of five members by Charles I, if successfully conducted, would have stifled liberty as effectually as the execution of fifty. The question was whether the people or the government should select the legislature. The leading Whigs stood behind Burke, and denounced the position, that a resolution of any branch of the legislature could “make, alter, suspend, abrogate, or annihilate the law of the land.”

Of all the statements of the cause of Wilkes, that of Burke in debate has the greatest value for our own time:

Accumulative crimes are things unknown to the courts below. In those courts two bad things will not make one capital offense. This is a serving up like cooks. Some will eat of one dish, and some of another, so that there will not be a fragment left. Some will like the strong solid roast-beef of the blasphemous libel. One honorable member could not bear to see Christianity abused, because it was part of the common law of England. This is substantial roast-beef reasoning. One gentleman said he meant Mr. Wilkes’s petition to be the ground of expulsion; another, the message from the House of Lords. “I come into this resolution,” says a fourth, “because of his censure upon the conduct of a great magistrate.” “In times of danger,” says a fifth, “I am afraid of doing anything that will shake the government.” These charges are all brought together to form an accumulated offense, which may extend to the expulsion of every other member of this House. This law, as it is now laid down, is that any member who, at any time, has been guilty of writing a libel will never be free from punishment. Is any man, when he takes up his pen, certain that the day may not come when he may wish to be a member of Parliament? This, sir, will put a last hand to the liberty of the press.

It was not until his fourth election had been annulled that Wilkes left prison. The persecution of the government had turned him from an obscure member of Parliament into a man of national prominence. As Junius said, “The rays of the Royal indignation, collected upon him, served only to illuminate, and could not consume.” The people, unable to send him to Parliament, made him Alderman and then Lord Mayor of London, while Luttrell voted with the majority in the Commons. At the next general election in 1774, he was returned for Middlesex and allowed to take his seat, since Massachusetts was causing too much trouble to encourage a stirring up of old grievances at home. Thereafter, he sat without interruption, while the men who had expelled him brought the nation into its lowest humiliation. In 1782 the resolution of 1769 declaring him incapable of election was expunged from the records “as being subversive of the rights of the whole body of electors of this kingdom.”

IV. _The Exclusion of Victor L. Berger from the House of Representatives_

The most prominent person convicted under the Espionage Act, with the exception of Debs, was Victor L. Berger. He was born in Austria in 1860, came to this country in 1878, and was a founder of the Socialist Party in the United States, editor of the _Milwaukee Leader_, and member of Congress, 1911–1913, the first Socialist to serve in Washington. The left-wing Socialists have always regarded him as a bourgeois member of the party. Before we entered the European War, he gave vigorous expression to the orthodox Socialist views about war, and employed many of the arguments in favor of American neutrality which were used at that time by non-Socialists, for instance, in the key-note speech of Governor Glynn at the Democratic National Convention of 1916 and in the President’s note of December 18, 1916, to all the belligerents, asking them to state their terms of peace. Unlike the great majority of Americans, Berger and other Socialists did not consider the German submarine campaign of February, 1917, a sufficient reason for changing their minds, but maintained that war was justified only in case of invasion. He was a member of the resolutions committee of the Socialist Convention at St. Louis and signed the Proclamation and War Program of April 14, 1917, which has already been mentioned.[463] It branded the declaration of war as a crime against the people of the United States and the nations of the world, and stated that in all modern history there had been no war more unjustifiable. Mr. Roosevelt called these planks “treason to the United States.”[464] Berger published this platform in the _Milwaukee Leader_, and poured out a stream of editorials, articles, and cartoons, denouncing the war policies of the government. He did not, however, urge any one to resist the draft, and indeed advised one Socialist conscientious objector to put on the uniform. Berger testified that several men in his immediate family volunteered, although his opposition would have prevented them from doing so. It is, of course, well known that the record of Wisconsin and Milwaukee in the war was very high, and while Berger can take no credit for this, it tends to disprove that opposition to war produces violations of the draft act or other war laws.[465]

[463] P. 162, _supra_.

[464] _Berger Hearings_, I, 72.

[465] _Ibid._, II, 460; I, 323; I, 166.

In September, 1917, the _Leader_ was deprived of its second-class mailing privilege for the future by a blanket order of the Postmaster General, and relief was subsequently denied by the courts.[466] The newspaper thus lost a daily circulation of approximately 15,000 subscribers. All first-class mail addressed to the _Leader_ was returned to the sender. The District of Columbia Court of Appeals said of the articles on which the exclusion was based, and in this opinion the House of Representatives committee afterwards concurred:

No one can read them without becoming convinced that they were printed in a spirit of hostility to our own government and in a spirit of sympathy for the Central Powers; that through them, appellant sought to hinder and embarrass the government in the prosecution of the war.

[466] U. S. _ex. rel._ Milwaukee Social Democrat Pub. Co. _v._ Burleson, 258 Fed. 282 (1919). The full record is in _Berger Hearings_, I, 503 ff.

The reader can determine the general character of the _Milwaukee Leader_ from the passages abstracted in a later paragraph, and decide for himself whether the judicial and legislative comments quoted in this chapter are correct in concluding that Berger wanted to aid Germany. My own opinion is that they err in confusing opposition to the war with wishing the enemy to win. Whether Berger was within the terms of the Espionage Act or not, I find in his writings no desire that the militarism and autocracy of Germany should triumph, but rather a series of extremely bitter and cynical attacks upon what seemed to him the Junkerism and selfishness of all the governments on both sides of the war. They indicate that he wanted the war to end at once because in the absence of invasion he sincerely believed it unnecessary and a crushing burden upon the workers of America. I say this although I thoroughly detest the attitude of Berger. I can understand the abhorrence of Debs for a law which compels a man to kill fellow-workers because their rulers quarrel, and recognize that he speaks from the heart even while I disagree with him. But for Berger the war seems only an impersonal step in an economic argument. His is not the position of the man who has weighed the good and bad reasons and motives which are inextricably mingled in war as in most human actions, and finding that the bad outweigh the good, calls for peace despite the ideals which he recognizes behind the war. Berger ignores the good, and sets forth only meanness. He sneers at the possibility of noble purposes in the conflict, and nowhere utters a word of praise or sympathy for those who gave up home and life with the desire that the world should not be made an armed camp and that oppressed nations should be free from military domination.

Despite all this, the fundamental question remains, whether it is for the advantage of government by public opinion and popular election that just because most of us consider a person’s views detestable, he should be thrown into prison and American citizens should be denied the right to be represented by the man of their choice.

In February, 1918, Berger was indicted with four other Socialists for conspiracy under the Espionage Act. The indictment was brought in Chicago, because the defendants were alleged to have agreed there for the issue of publications in various places. The overt acts which Berger himself was said to have committed consisted of five editorials in the _Leader_, which were in substance as follows: (1) We were in the war because the Allies were at the end of their rope, and their obligations would otherwise be worthless; continued fighting would maintain the existing high prices of munition stocks; war meant absolute freedom from labor troubles, since strikes would be put down as treason; the plutocracy and its government in Washington would be enabled to establish autocracy as a war necessity; war would be a wonderful chance to establish a large permanent army; the commercial rivalry of Germany would be ended. The submarines, Belgium, invasion, and democracy had nothing to do with it. (2) There are many men driven insane at the front. (3) Young men do not talk as if they considered it an honor to be drafted. (4) Only big business men and their satellites are enthusiastic over the war, but they do not fight. (5) The Bible contains many passages which are opposed to war and must therefore be considered as treasonable.

Shortly before the indictment, Berger was nominated for the United States Senate on a Socialist platform announcing that if elected he would work for a speedy, general, democratic, and permanent peace without forcible annexations and punitive indemnities; an immediate armistice and peace conference; the withdrawal of American troops from Europe and their use to secure this country from invasion; confiscation of war profits; and safeguards to prevent panic or unemployment when demobilization should take place. War would ruin the country and could be ended by electing men pledged to end it.[467] He was defeated, but in spite of the charges pending against him received over 100,000 votes.

[467] _Berger Hearings_, I, 340.

In November, 1918, before the trial began, he was elected to Congress from the fifth district of Wisconsin, polling 17,920 votes against 12,450 for the Democratic candidate and 10,678 for the Republican. In December, he was put on trial before Judge Kenesaw Mountain Landis, who several years ago imposed a fine of $29,000,000 on the Standard Oil Company, which was afterwards set aside. Judge Landis sentenced Berger and the other defendants to twenty years imprisonment. An appeal to the Circuit Court of Appeals is still pending, and the defendants were released on bail.[468]

[468] Volume II of _Berger Hearings_ contains the full record of the trial. The charge is also in Bull. Dept. Just., No. 186. Comment from the Socialist side is in _American Labor Year-Book_, 1919–20, pp. 97–100, and the _Socialist Review_, February, 1920. O’Brian speaks of “the dignity and fairness” which characterized the work of the court. 52 Rep. N. Y. Bar Assn. 310 (1919).

When Berger presented himself to the House of Representatives to be sworn in, it was charged that he was ineligible, and the question was referred to a special committee, which reported[469] for reasons hereafter stated that he was not entitled to take the oath of office or hold a seat as Representative. At the same time the candidate with the next highest number of votes, Joseph P. Carney, had claimed the seat, on the ground that since Berger was ineligible those persons who had voted for him should be considered to have deliberately thrown away their ballots—in the words of an English judge, just as if they had voted “for the man in the moon.”[470] Although this is the English law, and a Wisconsin decision had reached the same result where the leading candidate was known at the time of the election to be dead,[471] the Congressional practice is otherwise, and holds that electors ought not to be disfranchised in such a fashion, especially when they supposed the leading candidate to be eligible.[472] It would be absurdly harsh to presume that those who voted for Berger in November knew that he was disqualified, just because a jury convicted him the following January. Consequently, Carney gained nothing by his contest, but on November 11, 1919, the House of Representatives with only one dissenting member, Voigt of Wisconsin, declared Berger’s seat vacant.[473]

[469] House of Representatives, 66th Cong., 1st Sess., Ho. Cal. No. 91, Rep. No. 413, hereafter called Berger Report.

[470] Lord Campbell, C. J., in Regina _v._ Coaks, 3 E. & B. 249, 254 (1854).

[471] Beresford-Hope _v._ Lady Sandhurst, 23 Q. B. D. 79 (1889). Women were allowed to vote for County Councillor and were supposed to be eligible to hold the office. The highest candidate was a woman. The court seated the highest male candidate. State _ex rel._ Bancroft _v._ Frear, 144 Wis. 79 (1910).

[472] Smith _v._ Brown, 1 Hinds’ Precedents 448; _Re_ Abbott, 1 _ibid._ 478. _Accord_, P. _ex rel._ Furman _v._ Clute, 50 N. Y. 451 (1872).

[473] The debates on the two exclusions are in _New York Times_, November 12, 1919, January 11, 1920.

The Governor of Wisconsin ordered a special election on December 19, 1919. The Republicans and Democrats nominated a fusion candidate, H. H. Bodenstab, and the German paper, the _Herold_, appealed to all German-Americans to support their compatriot against Berger. The Socialist vote was increased by nearly 8,000 over the first election, Berger receiving 25,802 ballots to 19,800 for his opponent. On January 10, 1920, the House again refused to seat him. This time, six Representatives voted in his favor, including Floor Manager James R. Mann, who said during the debate:

Mr. Berger has been elected anew to the House by a majority of those who vote in his district and to me the question is whether we shall maintain inviolate the representative form of government where people who desire changes in the fundamental or other laws of the land shall have the right to be represented on the floor of this House, when they control a majority of the votes in a Congressional district.

I do not share the views of Mr. Berger, but I am willing to meet his views in an argument before the people rather than to say we shall deny him the opportunity to be heard when selected by the people in the legal form and invite them, in effect, to resort to violence.

Has it come to the point that a man who believes certain things cannot be heard? His people, his constituents, desire him to represent them. It is not our duty to select a representative from this Congressional district. That is the duty of the people back at home. We cannot take the attitude of refusing to permit the voice of the people of a district to be heard by their own selection with safety to the future of the country.

Berger afterwards stated that he was accused of calling the late war a capitalist war, and that the President had said the same thing at St. Louis on September 5, 1919, when he declared:

Why, my fellow-citizens, is there any man here or woman who does not know that the seed of war in the modern world is industrial and commercial rivalry? This war was a commercial and industrial war. It was not a political war.

Within an hour after Berger was unseated, the Socialist committee in Milwaukee announced his renomination for a third contest. However, he has not yet equalled the record of Wilkes, for the Governor of Wisconsin has decided that another special election would be too expensive. Meanwhile, Berger has been forbidden to speak in several cities, including that founded by Roger Williams, and Jersey City forcibly ran him out of town. Whatever the legal merits of his case in the courts and Congress, his enemies like those of Wilkes have adopted against him the very methods that vastly increase his influence.

The question whether a person who is duly elected to either branch of Congress is rendered ineligible because during a war he expressed opinions opposed to its continuance and the methods by which it was waged is full of difficulties. It is sometimes supposed that the clause in the Constitution,[474] “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members,” gives a majority the unlimited right to exclude any one. The problem is less simple than that. Each house is to act as “judge,” that is, it must decide the facts by applying to them rules of law, and must not proceed arbitrarily. For instance, the majority has no right to exclude the minority by a new Pride’s Purge. It is undoubtedly true that if the House of Representatives should exclude a man on some whimsical ground, no appeal would lie from its action. Neither is there any appeal from the Supreme Court, but for this very reason it feels a grave responsibility to decide according to law. In the same way, the House has only the power to decide whether the man received the proper number of votes and satisfies the qualifications established by law, and it ought not to create new requirements for a particular case any more than a criminal judge ought to invent new crimes.

[474] U. S. Cons., Art. 1, § 5. That this a judicial proceeding, to be decided in accordance with legal principles as established by precedents, cases of Abbott, 1 Hinds’ Prec. 478; Lorimer, in Webb and Pierce, Senate Election Cases, 1061; and page 340, _infra_.

What then are the lawful qualifications for membership in the House of Representatives? The authorities disclose two divergent views. The first is, that the Constitution contains all the qualifications, and that if a district elects a man who conforms to its requirements, he must be seated, no matter how unfit he is considered by the rest of the House. His unfitness is not a reason for exclusion by a majority vote, but may if continuing in character justify his expulsion by a two-thirds vote. The second view holds that additional tests may be imposed by statute or possibly in accordance with established usage to cover obvious cases of unfitness, such as conviction of crime. Since the committee report in the Berger case held that he should be unseated, even under the first view, we can postpone the controversy whether his conviction was a bar, until after discussing his eligibility under the terms of the Constitution.

The original requirements are threefold:[475]

No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

[475] U. S. Cons., Art. I, § 2.

Berger satisfied all these. However, the committee reported that he was excluded by a fourth qualification, enacted in 1868 by section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

At the outset the committee decided not to be governed by the action of the judge and jury at Chicago, but to review all the evidence at that trial, the proceedings about the exclusion of the _Leader_ from the mails, and the fresh testimony introduced at the hearings. The conclusions of fact were as follows:[476]

After a careful consideration of all the evidence, in the opinion of your committee the admitted acts, writings, and declarations of Victor L. Berger and of the men with whom he was associated in the management and control of the Socialist Party from the time of the entrance of this country into the war until their indictment by a Federal grand jury, giving such acts and the language of the writings and declarations their ordinary everyday meaning and without considering any other evidence, clearly establishes a conscious, deliberate and continuing purpose and intent to obstruct, hinder, and embarrass the Government of the United States in the prosecution of the war and thus to give aid and comfort to the enemies of our country. The writings and activities of Mr. Berger and his associates could have had no other purpose. That Victor L. Berger was disloyal to the United States of America and did give aid and comfort to its enemies at a time when its existence as a free and independent Nation was at stake there can not be the slightest doubt.

[476] _Berger Report_, 7.

Even if Berger’s guilt under the Espionage Act be considered as established, three replies are conceivable to the proposition that such guilt renders him ineligible under the Fourteenth Amendment. (1) This provision may relate to the Civil War only, like section 4 of the same Amendment about pensions and Confederate debts. Since section 1, forbidding states to deprive citizens of the United States of life, liberty, or property without due process of law, has been construed to protect much more than the rights of emancipated slaves, the committee rejected this argument. (2) Early in the Spanish War, in order to cement good feeling between North and South, both houses by the necessary two-thirds vote adopted a blanket resolution, “that the disability imposed by section three ... heretofore incurred is hereby removed.”[477] The committee held that this could not apply to a subsequent disability. (3) Berger’s violation of the Espionage Act was not a bar under the Fourteenth Amendment because it did not amount to treason. This is a very important point and it is an odd commentary on legislative justice that every one involved in the Berger case, except Representative Mann, overlooked it completely and assumed that “aid and comfort to the enemy” was synonymous with guilt under the Espionage Act. Of course, this phrase is often employed loosely in conversation and Congressional debates to include all sorts of language that is considered disloyal in war time, but legally these words have a technical significance, and they are used in a statute or in the Fourteenth Amendment in the same sense as in the clause of the Constitution defining treason.[478] Therefore, the acts of aid and comfort which would disqualify Berger from serving in Congress under the Amendment (if section three is still in force) must be of the same general character with those necessary to convict him of treason.

[477] Act, June 6, 1898, c. 389.

[478] Art. III, § 3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The omission of any mention of adherence in the Fourteenth Amendment is immaterial. Judge Leavitt said in 1861 (1 Bond 611): “The words in the definition, _adhering to their enemies_, seem to have no special significance, as the substance is found in the words which follow—_giving them aid and comfort_.” Judge Learned Hand said in U. S. _v._ Robinson, 259 Fed. 685, 690 (1919): “The words ‘adhering’ must be taken as defined by the phrase ‘giving aid and comfort.’” The U. S. Supreme Court has reached the same result in construing the Captured and Abandoned Property Act of March 12, 1863 (12 Stat. L. 820), which allowed the owner of any captured property to reclaim its value from the United States, on proof that he had “never given aid or comfort to the present rebellion.” In Young _v._ U. S., 97 U. S. 39, 62 (1877), the Court held, through Chief Justice Waite, that although a British claimant could not commit treason since he owed no allegiance, “the acts of aid and comfort which will defeat a suit must be of the same general character with those necessary to convict of treason.... It is sufficient if he has done that which would have made him a traitor if he had owed allegiance to the United States.”

Was Berger guilty of treason? In answering this question, we must not be misled by colloquial usage. Mr. Roosevelt denounced the St. Louis Socialist platform as “treason,” and “traitor” is a heart-warming conversational epithet for any one who wants a war stopped, but lawyers and legislators must be less vague in accusing a man of a crime that is punishable with death. Chief Justice Marshall said long ago[479] that treason should not be extended by construction to doubtful cases, and there has never been a decision that talking against a war is treason. If it were, Vallandigham, Milligan, and the other Copperheads would surely have been prosecuted for this crime. The few writers[480] who assert that the Espionage Act of 1917 created no new crimes, but that causing insubordination in the armed forces and obstructing enlistment are also treason,[481] are forced to rely on one or two sweeping judicial definitions, like Lord Reading’s charge in the trial of Sir Roger Casement, that it is giving aid and comfort to the enemy to do any act which tends to strengthen them or tends to weaken the power of one’s own country to resist.[482] So broad a statement would if taken literally revive all the evils of constructive treason, but it must be limited with reference to the particular facts which the jury were considering. Casement had issued a proclamation to Irish prisoners in Germany urging them to form a regiment in the German army.[483] The use of words in an attempt to gain recruits for the enemy is absolutely different from telling your fellow-citizens that they ought to stop fighting. It may be that the latter is so dangerous that it must be punished, but only as sedition, which consists of _words_ creating disaffection. Treason requires overt _acts_ of direct assistance to the enemy. The distinction is fundamental. It is inconceivable that the trivial utterances which were held criminal under the Espionage Act because of their bad tendency and the supposed intention to hinder the war were already subject under the treason statute to a death penalty.

[479] _Ex parte_ Bollman and Swartwout, 4 Cranch 77, 127 (1807).

[480] Charles Warren, “What Is Giving Aid and Comfort to the Enemy?” 27 Y. L. J. 331 (1918); Thomas F. Carroll, 17 _Mich. L. Rev._ 660 (1918).

[481] If so, the treason statute would have rendered the Espionage Act unnecessary. Instead the treason statute proved well-nigh useless during the war. See p. 41, _supra_.

[482] Rex _v._ Casement [ 1917], 1 K. B. 98, 133. Warren, _op cit._, quotes other judges. They plainly refer to language used to cause men to join the enemy and participate in his operations. Such words form an element in acts of direct aid. These judges are not speaking of expressions of opinion about the injustice of a war, even if intended to deter men from enlisting in one’s own army. _Cf._ note 49.

[483] It is doubtful if even this would be treason in this country, inasmuch as no one was persuaded to enlist. Respublica _v._ Roberts, 1 Dall. 39 (Pa. 1778). But see U. S. _v._ Robinson, 259 Fed. 685, 690, on unsuccessful attempts to aid. This point in the Casement trial received no attention from the Court of Appeal, which was entirely occupied with the question whether treason could be committed outside England, answered in the affirmative. It is interesting to Americans to find that one of the authorities relied on was a legal opinion rendered in 1775 that certain persons in New Hampshire could be prosecuted for treason.

This distinction is clearly brought out by the kind of conduct which has been held to be “giving aid and comfort to the enemy,”[484] for example, furnishing money, troops or arms, saltpeter for gunpowder, steamers for blockade running, delivering up deserters and prisoners, and actually joining the enemy in person. Contrast these acts, which advance the cause of the enemy by their immediate effect, with newspaper articles attacking the war, which may encourage the enemy but do not promote his success in any tangible or measurable way. The result is indirect and purely mental. It is true that words do sometimes constitute treason, as when a letter is sent to the enemy containing military information, or even a wireless message.[485] Here language has all the qualities of action, because it furnishes the enemy with something he can use. It is treason if he be given a gun to batter down a fort or a photograph of its plan or a written description. That the last is in words is immaterial. But if words are used in a speech demanding immediate peace, this is not assistance by acts at all, and furnishes the enemy with nothing but emotions of dubious value. Judges have frequently declared that expressions of opinion are not treason.[486] It is interesting to note that even in the excitement of the Civil War, when Congress was passing on the qualifications of members under the much broader terms of the Test Oath Act of 1862, soon to be more fully discussed, a line was usually (though not always) drawn between language adverse to the North, even though clearly intended to embarrass the conduct of the war, and definite acts of assistance to the South, such as participation in an ordinance of secession or the offer of a military invention to Jefferson Davis. In the Berger case, however, the committee did not consider at all whether he was guilty of acts of treason. There is nothing in the record to show any aid to Germany except by the indirect, intangible method of creating a body of opinion opposed to the continuance of the war. And this is a risk which a nation governed by public opinion must take, which ours has taken by guarantying freedom of speech. To call it treason is contrary not only to the First Amendment but to the law of treason. Therefore, Berger did not in any legal sense give aid and comfort to the enemy, and he was not barred from the House of Representatives by the Fourteenth Amendment.

[484] Carlisle _v._ U. S., 16 Wall. 147 (1872); U. S. _v._ Fricke, 259 Fed. 673 (1919); Young _v._ U. S., 97 U. S. 39 (1878); U. S. _v._ Hodges, 2 Wheel. Cr. 477 (1815); King _v._ Ahlers [ 1915] 1 K. B. 616. For other examples see Warren, _op. cit._, especially on p. 347 a.

[485] U. S. _v._ Robinson, 259 Fed. 685 (1919) (invisible ink); U. S. _v._ Werner, 247 Fed. 708. See Warren, _op. cit._

[486] Charges to Grand Jury, 5 Blatchf. 549, 550 (1861): “Words, oral, written, or printed, however treasonable, seditious or criminal of themselves, do not constitute an overt act of treason within the definition of the crime”; _accord_, 1 Bond 609, 612 (1861); 2 Sprague 292, 294 (1863).

Consequently, if Berger’s exclusion is to be justified, it can only be on the second theory already mentioned, that the House of Representatives had power to impose qualifications not mentioned in the Constitution. The instances of additional qualifications mentioned in the _Berger Report_ were imposed by statutes like the Test Oath Act of 1862 or the Edmunds Act abolishing polygamy. No such statute applies to Berger, so that he could only be barred if additional requirements can be based on unwritten law or the will of a single branch of the legislature. This question will be examined at length in connection with the New York Socialists. It will be seen that there is some authority that a man who has been convicted of crime _after_ his election to the legislature should not be allowed to occupy his seat, but that there is a sharp disagreement whether he should be excluded or expelled.[487] The reason for declaring the seat vacant is that his constituents should have the opportunity to reconsider their votes if they were cast in ignorance of a fact which so materially affects his fitness for the office. This argument supports the first exclusion of Berger, but not the second, for the overwhelming vote received by him at the second election, after his conviction, made it clear that the electorate considered guilt under the Espionage Act no disqualification for their representative in Congress. The Wilkes case established the principle that such a decisive expression of opinion given with full knowledge of the offense of sedition should not afterwards be overridden by one branch of the legislature. Indeed, the House of Representatives went one step farther than the House of Commons, for Wilkes when disqualified was in prison and wholly incapable of serving, but Berger was out on bail pending an appeal. His conviction might be reversed and he was capable of taking his seat. An American precedent is Matthew Lyon, who was elected to Congress by voters who had full knowledge of his prosecution under the Sedition Act of 1798. He was allowed to qualify, and when he was subsequently convicted and imprisoned the House of Representatives by a close vote refused to expel him.[488] The Wilkes and Lyon cases are opposed to the belief of some persons that sedition is more of a disqualification than other crimes because it involves a breach of allegiance. On the contrary, the opinion of the voters about a conviction for a political crime is entitled to peculiar respect. Such crimes do not usually arise from an individual malevolence, as do murder and robbery, but from political, economic, or ethical views which are shared by a group, for instance, of pacifists or Socialists, and which are considered dangerous because they clash with the will of the majority. The election of such a criminal is in effect an approval of these views by the voters of his district, so that the legislature by excluding or expelling him denies expression to a political, economic, or ethical theory which is held by a considerable mass of the electorate. The tide of public opinion with regard to disloyal utterances is very likely to vary with time and locality. The penalty affixed by the statute sufficiently guards against their dangerous consequences in the emergency of war. If an additional penalty not included in the law is imposed by one branch of the legislature after hostilities have ceased, the result is to block changes in public opinion, whereas the theory of democratic government is that such changes shall find an immediate and ready expression through the ballot.

[487] See p. 344, _infra_. _Berger Report_, p. 10, says that the power of expulsion is limited to causes arising out of the conduct of a member after his induction into office.

[488] 2 Hinds’ Precedents 850.

Lincoln’s principle[489] that the nation must be able to protect itself in war against utterances which actually cause insubordination and obstruct the raising of armies may justify some of the Espionage Act convictions, but his policy was absolutely opposed to the annexation of political disqualifications when the emergency had passed. Berger’s utterances were far less dangerous in their tendency than those expressed by many persons who took office unmolested during the Civil War. A large number of Democrats were elected to Congress in 1864 on a platform drafted by the notorious Vallandigham, which declared the war a failure.[490] The reasoning of the Berger committee would have allowed the Republican majority in Congress to exclude the Democratic minority. Apart from the fact of conviction, the conduct of these men furnishes a close analogy to Berger, much closer than the persons excluded under the Test Oath Act, most of whom had committed treason, while a few others came from Border States and had definitely identified themselves with the South. The Mexican War affords more honorable precedents for the principle that men who oppose a war in public discussion should afterwards be sworn in at the National Capitol without question. Daniel Webster said at a public meeting in 1847: “We are, in my opinion, in a most unnecessary and therefore a most unjustifiable war.” Henry Clay asked: “Must we blindly continue the conflict, without any visible object, or any prospect of a definite termination?... It is the privilege of the people in their primary assemblies, and of every private citizen, however humble, to express an opinion in regard to the purposes for which the war should be continued.” Charles Sumner outdid Berger in vituperation: “The Mexican War is an enormity born of slavery.... Base in object, atrocious in beginning, immoral in all its influences, vainly prodigal of treasure and life; it is a war of infamy which must blot the pages of our history.”[491] The additional element of conviction in the Berger case should be limited in its effect to the statutory penalty and should not overthrow the principle recognized in the cases just mentioned and many others, that variations of public opinion with respect to a war, especially if it is past, should be allowed to reflect themselves in the national legislature without interference. It is significant that all the Entente powers, except Japan, have admitted to their legislatures without any hesitation Socialists who opposed the war as vigorously as Berger, with the same intention to bring it to an immediate close. Indeed, some of the Italian Socialists were elected while serving prison sentences for their militant anti-war activities.[492]

[489] P. 117, _supra_.

[490] J. F. Rhodes, _History of the United States_, IV, 522 ff.

[491] _Berger Hearings_, I, 712, 713. On the War of 1812, see Beveridge’s _Marshall_, IV, c. I.

[492] _Socialist Review_, February, 1920, p. 159.

Therefore, although Berger’s statements in the _Milwaukee Leader_, before the committee, and in Congress at the time of his exclusion, entitle him to no personal sympathy, nevertheless the twofold denial of his seat was, apart from all questions of legality, a great mistake and a wrong to the voters of the fifth district of Wisconsin.

The action of the House of Representatives has, however, still more serious and far-reaching aspects. If it had been based simply on Berger’s conviction its effect would be limited to men who have been actually convicted under the Espionage Act, although if such were its ground, it would have been desirable to follow the view of the minority member of the committee, Mr. Rodenberg, and suspend legislative action until the final result of the prosecution had been reached by the Circuit Court of Appeals. The great evil of the case is that the House of Representatives and its committee assumed the power to go behind the conviction, and expressed the view that without any conviction at all Berger could be deprived of his seat because of his opposition to the war. The chairman of the committee, Mr. Dallinger, said in the debate upon the first exclusion:

The one and only issue in this case is that of Americanism. It is whether a man who in 1911 took an oath as a member of the House to support the Constitution of the United States and who, when this country declared war against the Imperial German Government, became the head and front of an organized conspiracy to hinder, obstruct, and embarrass the Government in its fight for existence, should be admitted to membership in this House simply because a constituency in one of our States has seen fit to give him a plurality of its vote.

This issue is far broader than the question of a conviction for a violation of a particular statute by a court in Chicago, an appeal from which may be set aside by a higher court on technical grounds, and your committee is convinced upon all the facts and upon all the precedents in this House that Victor L. Berger should be excluded from membership, and that the question should be determined by the House here and now. In our opinion the House expects it; the men who fought for their country in the great war expect it; the entire country expects it.

Therefore, while the precise legal ground of the Berger exclusion was the Fourteenth Amendment, the case gave public currency to the broad proposition that “disloyalty” during a war would bar a duly elected representative. Thus long after a war was over, a legislature could without any previous judicial condemnation conduct an inquiry into the mental state of a man during the war and the tendency of his utterances to discourage the national cause, just the kind of investigation which is shown in my second chapter to have proved so vague and unsatisfactory in the hands of an impartial judge and jury and which was justified if at all only by the great necessities and dangers of the war. Furthermore, the conduct for which Berger was convicted and excluded was said by him and regarded by many of his opponents to be that of the Socialist Party generally, so that if conviction were an immaterial factor as Mr. Dallinger said, Berger’s ineligibility could naturally be extended to any Socialist. Thus the popular impressions created by the Berger case paved the way for one of the most astonishing episodes in American political life.

V. _The Five Socialist Members of the New York Assembly_

Then stood there up one in the council, a Pharisee, named Gamaliel, a doctor of the law, had in reputation among all the people, and said unto them: “Ye men of Israel, take heed to yourselves what ye intend to do as touching these men. Refrain from these men and let them alone: for if this counsel or this work be of men, it will come to nought; but if it be of God, ye can not overthrow it; lest haply ye be found even to fight against God.”—_The Acts of the Apostles._

On January 7, 1920, just before the second exclusion of Berger, and while the front pages of the press were still full of the great conspiracy which would have overthrown the nation had it not been for the New Year’s round-up of four thousand left-wing radicals, the New York Legislature opened its session. Among the members of the Assembly or lower house were five Socialists, Claessens, Solomon, Waldman, De Witt, and Orr. The Socialist Party of New York was a legally recognized party under the Election Law,[493] so that its candidates had as much right on the ballot as Democrats or Republicans. All these Socialists except De Witt had previously served in the Assembly. The opposition of the party to the war had aroused no objection to its representatives at any time during the conflict, even when ten of them took their seats at Albany just before the Spring Drive of 1918. And on this day, in 1920, the five members took office without interference, swearing that they would support the Constitution of the United States and that of New York, and discharge the duties of their office to the best of their ability, and that they had not influenced votes by bribe or promise. The New York fundamental law prescribes this oath and makes it all-sufficient:[494]

No other oath, declaration or test shall be required as a qualification for any office of public trust.

[493] Sec. 3 (9) “The term ‘party’ means any political organization which at the last preceding election for governor polled at least fifteen thousand votes for governor.” The Socialist candidate in 1918 received over 120,000.

[494] N. Y. Const., Art. XIII, § 1.

They occupied their seats and entered into all the business of the day, participating in the organization of the House and voting for Speaker and other officers. These proceedings occupied upwards of two hours.

Suddenly the newly-elected Speaker, without notice or motion, directed the Sergeant-at-Arms to present the five Socialist members before the bar of the House.[495] The surprised men were paraded down into the well of the Assembly chamber in front of the Speaker’s rostrum, in full view of their fellow members and hundreds of guests, who crowded the galleries and the floor to witness the ceremonies of the opening day. There they were lined up with the Sergeant-at-Arms on guard, while the Speaker addressed them:

You are seeking seats in this body, you who have been elected on a platform that is absolutely inimical to the best interests of the State of New York and of the United States.

[495] _Briefs_, and _New York Times_, January 8, 1920.

He then declared that the Socialist Party was not truly a political party, but a subversive and unpatriotic organization, and informed them that if the House should adopt a resolution declaring their places vacant they would be given an opportunity to appear before a tribunal to prove their rights to a seat in the Assembly.

A resolution[496] drafted by the Attorney General in his capacity as counsel for the Lusk Committee was presented. This did not even recite that the members were charged with certain offenses, but stated facts as if already proved, an Alice-in-Wonderland performance of “sentence first—verdict afterwards.” It declared that they were members of the Socialist Party of America, which adhered to the revolutionary forces of Soviet Russia and endorsed the principles of the Communist International of Moscow, and this was pledged to the forcible and violent overthrow of all organized governments. They agreed to be guided by the party constitution and platform, and could be expelled from the party for disobeying the instructions of the Executive Committee, which might include aliens. The party by its St. Louis platform had opposed the war, and thereby stamped itself and all its members with an inimical attitude to the best interests of New York and the United States. These five members had subscribed to its principles and its aims and purposes against the government. They had been connected with an organization convicted of a violation of the Espionage Act. Therefore, it concluded, they were denied seats in the Assembly “pending determination of their qualifications and eligibility to their respective seats”; and the investigation of their qualifications and eligibility was referred to the Committee on Judiciary. The roll-call was then taken and the five Socialists were called upon to vote as members. After the passage of the Resolution they were hustled by the Sergeant-at-Arms out of the chamber, where their seats remained vacant for the remainder of the session, to the disfranchisement of sixty thousand voters of the City of New York.

[496] _Record_, p. 367.

In one of those magnificent decisions whereby the Supreme Court of the United States in former years fortified the civil liberties wrested from authority by the long struggles of the seventeenth and eighteenth centuries and proclaimed in the American Bill of Rights, Justice Bradley warned us that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of procedure.[497] Since the 15th day of June, 1917, the nation had been led on by its panic-stricken fear of adverse opinion to abandon one national tradition after another. Every unheeded prediction of the handful of liberals was more than fulfilled. The Espionage Act was only to punish interference with recruiting and military discipline. It was used against all prominent opposition to the war. Every one agreed that freedom of speech meant the absence of previous administrative restraint on political discussion—and the Postmaster General was allowed to establish a whimsical censorship of the political press and maintain it long after the last American soldier had been demobilized. Suppression was said to be only a war measure. The states prolonged it into peace, and the Attorney General of the United States begged Congress to imitate them. Radical aliens were put under control, and a similar law was demanded for radical citizens. One by one, the right of freedom of speech, the right of assembly, the right to petition, the right to protection against unreasonable searches and seizures, the right against arbitrary arrest, the right to a fair trial, the hatred of spies, the principle that guilt is personal, the principle that punishment should bear some proportion to the offense, had been sacrificed and ignored. Here and there a solitary and despised protest—the rest was silence. And now the waves of hysteria dashed against the very foundation of American life, the right of the people to elect their own rulers. Berger was excluded after he was convicted of crime, but these men were excluded without any conviction, without any crime, without any trial, from the offices which they had taken with all the qualifications and formalities prescribed by the fundamental law. At last the leaders of thought were awakened to the realization that a government cannot be saved, is not worth saving, at the cost of its own principles.

[497] Boyd _v._ U. S., 116 U. S. 616, 635 (1885).

The successor of Jefferson had taken no step to stop the encroachments on freedom of speech, had signed his name to both Espionage Acts, had allowed his officers without a reproach to censor and raid and arrest as they chose. It was reserved for the Republican presidential candidate at the election of 1916 to become the champion of Anglo-Saxon liberties. Charles Evans Hughes, leader of the American bar, former Governor of New York, former Justice of the Supreme Court, within forty-eight hours of the Albany imbroglio, wrote Speaker Sweet that it was absolutely opposed to the fundamental principles of our government for a majority to undertake to deny representation to the minority through the men who had been elected by a ballot lawfully cast.[498]

If there was anything against these men as individuals, if they were deemed to be guilty of criminal offenses, they should have been charged accordingly. But I understand that the action is not directed against these five elected members as individuals but that the proceeding is virtually an attempt to indict a political party and to deny it representation in the Legislature. This is not, in my judgment, American government.

Are Socialists unconvicted of crime, to be denied the ballot? If Socialists are permitted to vote, are they not permitted to vote for their own candidates? If their candidates are elected and are men against whom, as individuals, charges of disqualifying offenses cannot be laid, are they not entitled to their seats?...

I understand that it is said that the Socialists constitute a combination to overthrow the Government. The answer is plain. If public officers or private citizens have any evidence that any individuals, or group of individuals, are plotting revolution and seeking by violent measures to change our Government, let the evidence be laid before the proper authorities and swift action be taken for the protection of the community. Let every resource of inquiry, of pursuit, of prosecution be employed to ferret out and punish the guilty according to our laws. But I count it a most serious mistake to proceed, not against individuals charged with violation of law, but against masses of our citizens combined for political action, by denying them the only resource of peaceful government; that is, action by the ballot box and through duly elected representatives in legislative bodies.

[498] _New York Times_, January 10, 1920; Sweet’s reply, January 11.

Speaker Sweet, after consultation with the Lusk Committee, replied that the Socialists were not expelled, but merely subjected to an investigation by the body which was charged by the Constitution with the authority to inquire into the fitness of those who seek seats in the Assembly. The question presented squarely was whether the different organizations which they sought to represent in the legislature advocated methods and employed tactics to overthrow our form of government, which would justify their exclusion from participating in legislative proceedings. He thus characterized the proceeding, as did the Attorney General of New York,[499] not as an inquiry into the personal unfitness of these men or into the overt acts of any one, but into the opinions and words of whole groups. Finally he stated that criticism of the Assembly action without full knowledge of the facts gave aid and comfort to those elements of our society which seek the destruction of our institutions.

[499] _Ibid._, January 9.

Nevertheless, criticism poured in, not only from Socialists and labor unions, but from large conservative groups like the National Security League. The New York Board of Aldermen refused to follow the example of the Assembly as to its Socialist members. For once the _Tribune_ and the _Review_ stood shoulder to shoulder with the _New Republic_ and the _Nation_, and outdid them in the vigor of their condemnation. The Bar Association of the City of New York adopted resolutions offered by Governor Hughes, opposing any attempt to exclude legislators because of their affiliation with any political party, when they are seeking by constitutional and legal methods to bring about any change in the Constitution and laws. The Association appointed a committee of non-Socialists to appear before the Judiciary Committee of the Assembly and safeguard the principles of representative government.[500] No action could have done more to strengthen the confidence of workingmen in the public spirit of the bar.

[500] _New York Post_, January 14.

The Assembly paid no more attention to these protests than the House of Commons to the remonstrances of Burke and the voters of England on behalf of Wilkes. The Assembly was past saving, but the nation was saved. The American people, long bedrugged by propaganda, were shaken out of their nightmare of revolution. The red terror became ridiculous on the lips of Speaker Sweet. A legislature trembling before five men—the long lost American sense of humor revived and people began to laugh. That broke the spell. The light of day beat in not only upon the Assembly, but upon Congress and the Department of Justice. Never again did the hysteria of the past year return. The raids of January 2d were flood-tide, and with Governor Hughes’ letter on the 9th, the ebb set in. Then followed the opposition of the conservative press and sober speakers to the pending federal sedition bills, the disclosures in the Colyer trial of the illegal character of the New Year’s round-up, the decision of Secretary Wilson legalizing the Communist Labor Party, the wholesale cancellation of deportation warrants. The American people owe a lasting debt of gratitude to the New York Assembly.

But there was no return to sanity in Albany. On January 20th the investigation of the five members began before the Judiciary Committee, which was appointed by the Speaker who had taken such a definite stand against them. At the outset the Bar Association committee appeared, with Mr. Hughes as its chairman, but was not allowed to participate in the proceedings. Before withdrawing it filed a brief and these recommendations:[501]

That the Judiciary Committee at once report to the Assembly that there is no question properly before the Judiciary Committee of any disqualification on the part of these members; that no charges against these members of any constitutional disqualification, or of any misconduct in office or of any violation of law on their part have been properly made, that the members under suspension should at once be restored to the privileges of their seats and that if it be desired to present any charges against them of any violation of law, such charges should be properly formulated, and that until such charges, properly laid, have been established by proof, after due opportunity to be heard, these members shall enjoy all the privileges of their seats in recognition of their own rights and of the rights of their constituencies.

[501] _Record_, p. 6; _Socialist Brief_, p. 7.

This position is conclusively established by the Bar Association in its brief.[502] After the respondents had taken the constitutional oath of office, and in the absence of any personal misconduct during their term, they became entitled to participate in all proceedings of the Assembly until they were actually ousted. This has always been the practice in Congress, even on charges of bribery; for instance, Senator Lorimer participated in all the proceedings of the Senate until he was finally disqualified, and Senator Truman H. Newberry of Michigan, who has been actually convicted of corrupt practices, still retains his seat and will continue to do so even during any investigation that may be made of his conduct by the Senate. The issue of free speech, however, is less concerned with the unwarranted method of the proceedings against the five members than with the question whether there was any legal cause to deprive them of their seats by any method whatever.

[502] Pages 8–20.

The opening clause of the New York Constitution provides that no member of this state shall be disfranchised unless by the law of the land, or the judgment of his peers. Like the United States Constitution, it makes each House “the judge of the elections, returns and qualifications of its own members,”[503] but it imposes the restriction already mentioned that no declaration, test or oath shall be imposed except that specified. Certain offices are a disqualification,[504] but even the right to vote is not a requisite for eligibility.[505] The power to expel is conferred by statute.[506] The power to suspend is not given by Constitution or statute. Although this was an inquiry into qualifications and not an expulsion, yet since the method is immaterial it is desirable to review the cases of both exclusion and expulsion to determine whether a Legislature, especially in the absence of any disqualifying statute, can lawfully unseat a member for opinions and affiliations without overt acts.

[503] Art. III, § 10.

[504] Art. III, § 8.

[505] Barker _v._ People, 3 Cow. 686, 703 (1824); Cooley, _Constitutional Limitations_, 7th ed., 894 note.

[506] Legislative Law, § 3. “Each house has the power to expel any of its members after the report of a committee to inquire into the charges against him shall have been made.”

The analysis of the law on this question is peculiarly difficult. The judicial precedents are necessarily few and indirect in their bearing, for the courts have uniformly denied that they have any power to review either legislative expulsions or legislative decisions on the qualifications of members.[507] The house in making decisions on qualifications and in other election cases acts in a judicial capacity, in spite of the doctrine of the separation of powers, and such controversies do not fall within the general judicial power vested in the courts, since the constitutions expressly confer jurisdiction upon the legislative chamber in question. However, judges have sometimes been called upon to discuss whether anybody has power to add to the constitutional requirements for eligibility. Justice Story, in denying that the states can impose additional tests for a member of Congress, for example, that he shall reside in the district which elects him, writes:[508]

It would seem but fair reasoning, upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others.

[507] Hiss _v._ Bartlett, 3 Gray (Mass.) 468 (1855); French _v._ Senate, 146 Cal. 604 (1905); P. _ex rel._ Hatzel _v._ Hall, 80 N. Y. 117, 122 (1880); P. _v._ Mahaney, 13 Mich. 482, 492 (1865).

[508] I Story on the Constitution, § 625; Congress has always refused to recognize these state limitations as valid. 1 Hinds’ Prec. 381, 384, 387.

There is much force in his position, that the power to judge “qualifications” means only constitutional qualifications, but it does present difficulties, especially when the constitutional requirements for eligibility are so meagerly stated as in New York. Can insanity be made a bar, or is it only a ground for expulsion after admission? Were women eligible to Congress, before they were allowed to vote, inasmuch as they were not specifically excluded? Or were they under a common law ineligibility, which had to be read into the Constitution?[509] At all events, some judges have been willing to admit that in some instances the requirements of the Constitution may be added to, but only within narrow limits. (1) Additional qualifications can be imposed only by law; that is, by a statute enacted by both houses of the legislature, and signed by the governor. The body which judges the qualifications of its members cannot itself legally create new qualifications any more than the Supreme Court of the United States can legally create new income taxes. One house cannot make the law, and eligibility is fixed by law.[510] (2) The highest court of the state of New York has decided that the legislature under its power to punish crimes can pass a valid statute, making conviction for duelling a disqualification for the legislature, but said through Chancellor Sanford:[511]

Eligibility ... belongs equally, to all persons whomsoever, not excluded by the constitution. I therefore conceive it to be entirely clear, that the legislature can not establish arbitrary exclusions from office, or any general regulation requiring qualifications, which the constitution has not required. If, for example, it should be enacted by law, that all physicians, or all persons of a particular religious sect, should be ineligible to public trusts; ... any such regulation, would be an infringement of the constitution; and it would be so, because, should it prevail, it would be in effect, an alteration of the constitution itself.... _There may be an exclusion by law, in punishment for crimes; but in no other manner, and for no other cause._

[509] “Eligibility of Women for Public Office,” 33 _Harv. L. Rev._ 295 (1919).

[510] Barker _v._ People, 3 Cow. 686, 707 (1824); P. _ex rel._ Bush _v._ Thornton, 25 Hun 456, 463 (1881).

[511] Barker _v._ People, 3 Cow. 686, 703, 704, 707. The italics are mine.

(3) In New York and other states which have constitutions forbidding any other “oath, declaration, or test” except that specified, this prohibits not merely new forms of test oaths, but all arbitrary requirements as a qualification for voting or office-holding, particularly those based on opinions and party affiliations, and it makes no difference that these requirements are imposed by statute. Thus, the New York Court of Appeals has held a statute unconstitutional which required voters to swear that they had never borne arms against the United States, given aid to the enemy, deserted, or evaded the draft.[512] It has also invalidated a statute which made all persons except members of the two leading political parties ineligible for the Albany police commission. Judge O’Brien declared:[513]

The legislature of this state has no power to enact a law which proscribes any class of citizens as ineligible to hold public office on account of political belief or party affiliations.

[512] Green _v._ Shumway, 39 N. Y. 418 (1868); Goetcheus _v._ Matthewson, 61 N. Y. 420 (1875). Similar disqualifications for preaching, teaching, or practising law have been declared invalid under the U. S. Constitution. Cummings _v._ Missouri, 4 Wall. 277 (1866); _Ex parte_ Garland, 4 Wall. 333.

[513] Rathbone _v._ Wirth, 150 N. Y. 459, 485 (1896), and see cases cited from other states. (Some of the judges rested the invalidity of the statute on other clauses of the N. Y. Constitution.) The legislature may of course impose requirements which relate directly to fitness for the particular office, _e.g._, that only physicians are eligible to the board of health. Rogers _v._ Common Council, 123 N. Y. 173, 184 (1890).

Clearly, all these cases render the unseating of the five Socialists illegal. They were not made ineligible by any law, but by the fiat of the Assembly alone. They had not been convicted of crime, and they were guilty of no crime which was a statutory bar to office. And they were proscribed for their political beliefs and party affiliations.

Let us now turn to the legislative precedents and see how far they agree with the judicial discussion. At the outset, the reader must be warned that these precedents rarely afford a satisfactory formulation of the principle on which the house acted, which can be automatically applied in subsequent cases after the manner of court decisions. A legislature is not by nature a judicial body. Its members are chosen and organized for carrying out policies, and not, like judges, for the sole purpose of thinking together. When they are called upon to perform judicial duties in trying impeachments and charges of bribery, the most earnest efforts to attain impartiality hardly prevent them from being swayed by party motives, and their debates lack the training and the restraints which mold the words of judges. The Lorimer case brought out these qualities of a legislative trial, and a few years ago the New York Senate refused to expel two members for corrupt practices, who were subsequently tried and convicted for the same offense. Moreover, the basis of a legislative discussion is often obscure because of the number of persons who join in the debate. Sometimes the only certain fact is that the member was or was not unseated. It is significant that the Wilkes case led Parliament to delegate the trial of controverted elections to a tribunal of judges.[514] The Berger and Socialist cases might well lead us to consider establishing a preliminary investigation by judges instead of by a legislative committee and thus obtaining the benefit of a trained judicial opinion as the basis of the action of the house.[515]

[514] May, _Parliamentary Practice_, 12 ed., 581.

[515] This plan is already in force in Pennsylvania. _Re_ McNeill, 111 Pa. St. 235 (1885). The legislature could not completely delegate the decision of such contests. S. _v._ Gilmore, 20 Kan. 551 (1878); Dalton _v._ S. _ex rel._ Richardson, 43 Oh. St. 652, 680 (1885). The Presidential Electoral Commission of 1877 affords an analogy.

The English legislative precedents show that Parliament has no control over the eligibility of candidates but simply administers the laws defining their qualifications. One house of Parliament cannot create a disability unknown to the law. This was established by the Wilkes case and by that of Charles Bradlaugh, who was at first debarred and expelled from the House of Commons on the ground that as an agnostic he could not conscientiously take the oath, but was eventually on re-election sworn in without objection, and the resolution debarring him was expunged from the journals. On the other hand, each house has power to suspend or expel by way of punishment. Members have been suspended for disregarding the authority of the chair or obstructing business. They have been expelled for crimes and other disgraceful acts which render them unfit for a seat and which if not so punished would bring discredit on Parliament. Lord Campbell thinks even an offense before election is cause for expulsion if conviction follows election, for there might be a presumption that his constituents would not have elected a person guilty of such misconduct, and it might be fair to give them an opportunity of determining whether they would still have him for a representative. Expulsion is not a disqualification if the member be re-elected. Except for Wilkes and Bradlaugh, no person has been expelled in modern times for conduct involving the expression of opinions, and both these expulsions were officially declared to be wrong and expunged.[516]

[516] May, _op. cit._, 59–62, 153–156, 187. He does not discuss the question whether a member can be expelled for an offense committed before his election. I Story on the Constitution, § 838, says the power is not limited to offenses during the particular session. Lord Campbell’s opinion is in his _Life of Lord Camden, Lord Chancellors_, (1846 ed.) V, 276.

The Congressional precedents also afford no support for the contention of the New York Assembly that duly elected legislators can be disqualified or expelled for disloyal opinions which have not been made a bar by law. There is no authority that a house will go into the question of the moral fitness of a member to occupy a seat. Where would such an inquiry stop, and what standards could be fixed? Each house undoubtedly has the right to expel a member for actual crimes committed after his induction to office, but it is settled that it cannot punish him for an offense committed before his election, and even Lord Campbell’s view of the effect of conviction after election is opposed by the case already mentioned of Matthew Lyon, imprisoned under the Sedition Act of 1798. This disposes of the half-hearted contention that the New York Socialists had violated the Espionage Act during the war.[517]

[517] _Berger Report_, 10; opinion by Speaker Cannon in 3 Hinds’ Prec. 1157; 2 _ibid._ 829–860, 1 _ibid._ 521, for cases. But see arguments contra, 1 _ibid._ 437, 524. Apparently no one has been expelled from Congress for crimes, except those against the Government, but several men have resigned. There is some doubt whether a member can be expelled for crimes unrelated to his office. See the majority and minority reports in the Roberts case. 1 Hinds’ Prec. 523. The House refused to expel Herbert of California in 1857, who was charged with homicide, and Harris of Maryland in 1865, though convicted of aiding the rebellion (probably before election), and Cannon of Utah in 1875, though a polygamist. 1 Hinds’ Prec. 500. For the Espionage Act charge, see _Assembly Outline_, 75. No evidence is given.

At the outbreak of the Civil War several Southern Senators and Representatives were expelled for their treasonable conduct in remaining permanently absent from their Congressional duties and either taking up arms against the government or entering the Confederate lines and actively participating in the rebellion.[518] On the other hand, both houses refused to expel members from border states who had committed no overt acts, but had vigorously opposed by speeches the prosecution of the war by the North.[519] Among these were Representative Long of Ohio, who declared himself in favor of recognizing the independence of the Confederacy, Representative Harris of Maryland, who said, “I hope you will never subjugate the South,” and Senator Powell of Kentucky. Powell presided at a large Southern States’ Rights convention in Kentucky in June, 1861, which urged the recall of the Northern armies and the recognition of the Confederacy and endorsed the action of the Governor in refusing to furnish troops to subjugate the South and forbidding both sides to invade Kentucky. In September, 1861, he was a delegate to a second convention, which adopted resolutions drafted by a committee of which he was a member, proclaiming the neutrality of Kentucky and refusing aid by money, taxation, or loans to “a cause so hopeless as the military subjugation of the Confederate States.” The Committee on the Judiciary reported against expulsion, and its chairman, Senator Trumbull of Illinois, whose loyalty no man can question, stated in debate that though the resolutions were downright opposition to the constituted authorities of the government and wholly unjustifiable, and though the neutrality of Kentucky did favor the cause of the rebellion, yet when that neutrality was abandoned Powell had discharged his duties to the government at Washington; “and no man is to be expelled from this body because he disagrees with others in opinion.” The resolution of expulsion was overwhelmingly defeated.

[518] 2 Hinds’ Prec. 812, 813, 822–826. See also the expulsion of Senator Blount in 1797 for trying to alienate the Creek Indians from the resident Government officials, 2 _ibid._ 813.

[519] 2 _ibid._ 803, 827.

The Assembly relies on the case of Senator Bright of Indiana, who was expelled by a bare two-thirds for writing a letter to Jefferson Davis, bringing a military invention to his attention. It is true that some language used in the debate about other utterances of Bright implied a power to expel merely for disloyal opinions, but his conduct was treasonable aid to the enemy if the requisite intent existed, and Senator Trumbull in moving his expulsion based it squarely on the ground of treason.[520] Therefore, this and all the other expulsion cases draw the line between overt acts identifying the legislator with the enemy and opposition to war by words. A legislator can be expelled only for criminal or otherwise disgraceful conduct subsequent to his election, and not for disloyal language or for affiliations with political groups, even if like the Kentucky neutrals they oppose the government without, however, joining its enemies.

[520] 2 _ibid._ 821; see extracts from debates omitted by Hinds in _Assembly Outline_, 83, and _Socialist Brief_, 110.

The Congressional precedents on the unseating of members because they are not qualified are still more important, since the action of the New York Assembly, though often called an expulsion, was really an adjudication of ineligibility and not an expulsion for misconduct. A review of these precedents reveals two sharply conflicting views. The first accords with Story’s opinion that no addition can be made to the constitutional requirements.[521] The Constitution gives the people the inalienable right to choose any one they please who has the qualifications named. An insane man cannot take his seat if he lacks the mental capacity to take the constitutional oath. Bribery and corrupt practices connected with the election prevent him from being duly elected, for fraud vitiates all transactions, and an unseating on this ground, as in the Lorimer case,[522] is not a disqualification for crime, but a decision that no valid election has taken place. Crime as such is no bar, except treason by virtue of the Fourteenth Amendment. Representative government relies on the judgment of the people to pick fit men, not on the wisdom of a House of Congress or any other select group. In the improbable event that a district should elect a convicted murderer, he can act so long as he is at large. If the general welfare requires that this be made impossible, then the Constitution should be amended. A power in the legislature to add new qualifications is equivalent to a power to change those prescribed by the fundamental law. If it can add crime or disloyal acts as bars, it can add profiteering as well. There is no line to be drawn, once it is allowed to cross the constitutional limits. It can turn our democracy into an oligarchy by imposing high property qualifications, or into a dictatorship of the proletariat by declaring ineligible all persons deriving income from rents and invested capital.

[521] The fullest discussion of both views is in the minority report in the Roberts case, 1 Hinds’ Prec. 518 (unseated). See also Stark, 1 _ibid._ 433 (seated); Smith _v._ Brown, 1 _ibid._ 441 (unseated); McKee _v._ Young, 1 _ibid._ 451 (unseated); Thomas, 1 _ibid._ 466 (unseated); Maxwell _v._ Cannon, 1 _ibid._ 493 (seated); Campbell _v._ Cannon, 1 _ibid._ 500 (unseated); Smoot, 1 _ibid._ 561 (seated); discussion by House Committee, 1 _ibid._ 591; _Berger Hearings and Report_ (unseated). Among those presenting the first view are Littlefield of Maine, 1 _ibid._ 537; Senator Knox, 1 _ibid._ 587; Senator Reverdy Johnson, 1 _ibid._ 489.

[522] Webb and Pierce, Senate Election Cases, 1002. But see P. _ex rel._ Bush _v._ Thornton, 25 Hun 456 (1881).

The second view allows some additions to be made to the constitutional qualifications. Otherwise, the great leaders of the Confederacy might have been seated before the Fourteenth Amendment, or Brigham Young could have been elected and his forty wives have occupied the gallery to see him sworn in. Is a man to be brought from a felon’s cell to the floor of the Senate? Suppose a representative just before he is sworn in should create some outrageous disturbance in the House; if he cannot be disqualified, will it be necessary to go through the rigmarole of first swearing him in, and then expelling him? The duty of each chamber to preserve the nation and carry on business is said not to be sufficiently safeguarded if the constitutional requirements are exclusive of all others.

The view forbidding all additions seems to me the sounder in the United States Government, and still more obligatory under the New York Constitution, with its clause against other tests. It must be conceded, nevertheless, that notwithstanding the ability of the men who have taken this position, it has frequently been rejected in Congressional practice, and is also opposed to the opinion of the New York Court, rendered however before the adoption of the test clause just mentioned, that conviction for crime could be made a bar by statute.[523] Yet even if the second view be accepted, the range of new qualifications has been so closely limited by Congress that neither of the two views furnishes the slightest support for the proceedings of the New York Assembly.

[523] See p. 342, _supra_.

In the first place, the Congressional precedents agree with the Wilkes case and the judicial decisions that qualifications must be established by law, and that the resolution of one house of Congress cannot make law. When Representative Connor of Texas was charged with having cruelly whipped negro soldiers under his command and bribing them not to testify against him before a military court, Garfield asked if anything in the Constitution and laws of the United States forbade that a moral monster should be elected to Congress. Connor was sworn.[524] The House also refused to inquire into a charge of seduction, and the Senate into one of embezzlement.[525] All the exclusions which have occurred were for offenses which had expressly been made a disqualification by Act of Congress.[526]

[524] Grafton _v._ Connor, 1 Hinds’ Prec. 488.

[525] Acklen, 1 _ibid._ 489; Roach, 1 _ibid._ 570.

[526] Besides the statutes mentioned, Act of February 26, 1853, c. 81, 10 Stat. at L. 171, disqualifies any member convicted of receiving bribes for discharging an official function. B. F. Whittemore of South Carolina resigned to avoid expulsion for sale of West Point appointments, was at once re-elected, and disqualified. 1 Hinds’ Prec. 487. The case cannot be supported. See 1 _ibid._ 540 for a vigorous attack on this case.

The most important of these statutes was enacted in July, 1862. In January of that year the Senate had decided that Stark of Oregon was entitled to take his seat, although he had made disloyal speeches. Senator Harris of New York, the Chairman of the Judiciary Committee, denied in debate that the Senate ought to be the ultimate judge of a man’s fitness or was competent to reject him upon any view it might take of his moral, intellectual, or political capacity.[527] It was not until the passage of the Test Oath Act,[528] obliging men to swear before admission to office that they had never borne arms against the United States, given aid, countenance, counsel, or encouragement to the enemy, or yielded a voluntary support to any pretended government, that persons were excluded for disloyal conduct. Such an Act is of course impossible under the New York Constitutional prohibition of additional oaths and tests. And it is noteworthy that although the terms of this statute included much more than treason, the ironclad oath was not used to bar members for personal disloyalty or passive sympathy with the rebellion, or speeches denouncing the war as an abolition war and opposing any further aid toward its prosecution.[529] One man was excluded who had sent food to a Confederate camp, brought a gun, and pointed out a house where a Union soldier was hiding, telling the Southerners to go and get him, a clear case of treason.[530] The most extreme case was John Young Brown, who was disqualified for a letter to the press, saying that Kentucky would not furnish a man or a dollar to aid Lincoln in his unholy war against the South, that an invading Northern army would be resisted to the death, and that any Kentuckian joining it ought to be and would be shot down before he left the state.[531] This is the only instance of disqualification from Congress for utterances without overt acts. Thus, even in the heat of the Civil War, disloyalty was not a bar to an elected member of Congress, until it was expressly made so by a statute, and not then unless it was evidenced by actual aid to the enemy or words of acute virulence.

[527] 1 Hinds’ Prec. 433. _The Assembly Outline_, 82, erroneously cites this case as authority for the exclusion of the Socialists; besides that of Smoot, who was also seated. The only other authorities cited are the case of Roberts, a polygamist disqualified by statute, and Bright expelled for treason, and a Virginia vote of 1619 excluding men who denied they were subject to the government of Virginia. The Assembly Brief cites several cases under the Test Oath Act; and several instances of expulsion. The principles of these cases are discussed in the text.

[528] Act of July 2, 1862, c. 128, 12 Stat, at L. 502.

[529] Kentucky Members, 1 Hinds’ Prec., 441; Symes _v._ Trimble, 1 _ibid._ 459.

[530] McKee _v._ Young, Rowell Dig. Election Cases H. R., 222. Hinds does not state the facts fully. Senator Thomas of Maryland was disqualified for aiding his son to enter the Confederate army. 1 Hinds’ Prec. 466.

[531] Smith _v._ Brown, 1 Hinds’ Prec. 444.

Some doubt was cast upon the validity of the Test Oath Act, and in 1868 it was virtually superseded by section three of the Fourteenth Amendment,[532] on which rightly or wrongly the exclusion of Berger was based.

[532] P. 323, _supra_. See Reverdy Johnson in 1 Hinds’ Prec. 469.

The Church of Jesus Christ of Latter-day Saints is a much more closely knit and powerful organization than the Socialist Party and instead of being legalized by statute has frequently been made the object of adverse legislation. Consequently, the decisions upon the admission of Mormons to Congress are much in point. The constitutional question was not squarely raised while Utah was still a territory because each house was held to have complete control over the eligibility of Delegates, who were distinguished from Representatives. Nevertheless, the decisions at that time make the distinction which I have emphasized between overt acts and mere opinions.[533] In 1868 the election of Hooper was contested on the ground that he represented the institution of polygamy and a community hostile to the other portions of the United States and was disqualified by a secret oath. The House Committee reported that Mormonism was antagonistic to the United States but had never organized rebellion or sedition against the supreme authority of the Union, or committed treason by any overt act. Hooper was accordingly seated. On the other hand, a Delegate who was himself a polygamist was unseated. Even in this case a strong minority protested against the assumption by the House of the arbitrary power to inquire into the moral fitness of candidates, and asked whether if it was a bar for a Delegate to live with four women who were married to him, it would also be a bar if three of them were not.

[533] McGrorty _v._ Hooper, 1 Hinds’ Prec. 490; Maxwell _v._ Cannon, 1 _ibid._ 493; Campbell _v._ Cannon, 1 _ibid._ 500.

After the admission of Utah as a state, the issue became acute. The Edmunds Act of 1882 had disqualified any polygamist, whether convicted or not, from office under the United States.[534] Brigham H. Roberts, a convicted polygamist, who was still living with three wives, was elected Representative in 1898, and was finally unseated after a thorough discussion from both points of view of the question whether Congress or the House could add qualifications to those specified in the Constitution.[535] The majority relied to a large extent on his ineligibility under the Edmunds Act, so that the case supports the principle already stated, that if any disqualification can be added to the Constitution, it must be created by law. The minority in an opinion by Representative Littlefield of Maine, and De Armond of Missouri, which has been approved by Chief Justice Cullen of New York,[536] contended that Congress could not add any qualification to the Constitution, especially if it did not satisfy the test of Chancellor Sanford[537] that it must be based upon a conviction of crime. The minority declared that Roberts should not be disqualified but expelled, not for any offense prior to his election but because he was continuing to commit the crime of polygamy. Inasmuch as the vote for unseating him was more than two-thirds, the method of removal became academic. At all events the decision is no authority for the case of the New York Socialists, because it rested upon a statute and upon an alleged breach of the compact which Utah had made on entering the Union to abandon polygamy forever, and furthermore it involved overt criminal acts and not opinions or party affiliations.

[534] Act, March 22, 1882, c. 47, § 8; 22 Stat. at L. 31. This was held in the Roberts case to apply to members of Congress.

[535] 1 Hinds’ Prec. 518–560.

[536] Dissenting opinion, P. _v._ Ahearn, 196 N. Y. 221, 252 (1909): “No lawyer can read the clear and forceful minority report of Messrs. Littlefield and De Armond without at least doubting the correctness of this decision.”

[537] P. 342, _supra_.

This distinction is clearly brought out by the refusal of the Senate in 1904 to exclude or expel Reed Smoot.[538] He was not himself a polygamist or otherwise disqualified by statute, and had personally opposed polygamy in Utah, but he was one of the twelve apostles who together with the first president ruled over the Mormon hierarchy, and as a body encouraged the continuance of polygamous cohabitation (at least in long-standing marriages) and controlled the political affairs of Utah. According to the majority of the Committee, Mr. Smoot came there, “not as the accredited representative of the State of Utah, but as the choice of the hierarchy which controls the church and has usurped the functions of the State.”[539] Nevertheless, the Senate refused to look beyond the question of his personal guilt of crime or disbar him for the political and ethical purposes of the organization to which he belonged. A powerful argument for the prevailing view was made in debate by Senator Knox of Pennsylvania, who pointed out that the Constitutional disqualifications do not in any way involve the moral qualities of a man. They relate to facts outside the realm of ethical consideration and are requirements of fact easily established. As to all matters affecting a man’s moral or mental fitness the states are to be the judges, in the first instance, subject to the power of the Senate to reverse their judgment by a two-thirds vote of expulsion when an offense or offensive status extends into the period of service; and such a question can only be raised after a Senator has taken his seat. It is hardly proper to adopt a rule of constitutional construction based upon the theory that states will send criminals or idiots to the Senate. This position limits the effect of the Test Oath cases and relegates them to the status of consequences of the extraordinary situation following the Civil War.

[538] 1 Hinds’ Prec. 561–590. _Socialist Brief_, 116. The majority of the committee recommended disqualification but the Senate adopted the minority view, which did not however dispute the political power of the hierarchy or its attitude toward polygamy.

[539] 1 _ibid._ 587.

And finally the precedents in the New York Assembly itself are inconsistent with its recent action.[540] In 1906 it refused to disqualify a member for fraudulent practices in connection with a nomination. In 1917 it refused to oust another on the ground that he was not a resident of the district which he had been elected to represent. And in 1918 Lucas E. Decker, who was found to have failed to register for the selective draft and lied to excuse himself, was not excluded. The committee reported that the circumstances were matters of public record while Decker was a candidate for election, and that “in order to remove a member of the Assembly from office, under the Constitution, some question involving the election or returns is necessary before the Assembly has jurisdiction in the premises, or further, that the person so elected must be entirely disqualified under the Constitution, or by his conduct in the house must disqualify himself.” The committee’s report was adopted and Decker declared entitled to his seat by a unanimous vote.

[540] _Socialist Brief_, 104–109.

Consequently, the principle is indubitably established, by judicial and legislative precedents, that the power to add qualifications to those fixed by the Constitution, if it exist at all, extends at the most to overt acts which have been made a bar by statute. And in New York State in view of the test clause in the Constitution and the decision of Chancellor Sanford, it is doubtful if even a statute could impose any other bar than conviction for crime. No such statute existed in the case of the New York Socialists. They were convicted of no crime, they were not even charged with any crime except a vague and unsubstantiated allegation of violation of the Espionage Act.[541] The action of the Assembly must be characterized as a flagrant usurpation of power, only to be found in that government of which Senator Root,[542] who had good reason to know, said that for forty years it had been about as representative and responsible as the government of Venezuela.

[541] _Assembly Outline_, 75. The subsequent Assembly Brief reached me too late for extended comment upon its argument (64–76, 195) that the Constitution, by requiring an oath to support it, also impliedly requires an “inner state of mind” and so makes “disloyalty” or membership in a “disloyal organization” a disqualification for taking the oath, which the Assembly is authorized to investigate. The dangers of such a vague disqualification are obvious and no precedent exists for this doctrine. Even in the exasperations and exacerbations of politics after the Civil War Congress only refused the Test Oath to men found to have committed _in the past_ the very acts which the oath denied. When the Constitution requires a solemn oath _as to the future_, it leaves the guarantee of its performance, not to the speculations of other human beings, but to the strongest sanctions of conscience and religion. _Cf._ note 551.

[542] Quoted in 40 Rep. Am. Bar. Assn. 365 (1915).

The conduct of the investigation was thoroughly in harmony with its illegality. It was not based on any definite charges nor was it even limited to the accusations in the Resolution of January 7th. The affair had all the characteristics of an accumulative crime as described by Burke in the Wilkes case.[543] Whenever the Attorney General or his associate counsel thought of some new offense with which the Socialist Party could be taxed, it was lugged into the case and made a fresh reason for exclusion. The Resolution was construed as a roving commission to the Judiciary Committee, to find as many objectionable opinions of the Socialist Party as possible, on the theory that twenty-seven bad grounds[544] for exclusion might be rolled together and make one good ground. Inasmuch as there was no demarcation of counts in this rag-bag and ever-reopened indictment, no single fact had to be proved to the satisfaction of a majority of the Assembly. One member could vote to exclude the five Socialists because he thought they were as guilty under the Espionage Act as the three men who were convicted at Syracuse;[545] another because he considered Socialism threatened the family; a third to protect the church; a fourth, because Socialists sought to set up a Soviet in the United States; some one else, because he disliked the vote of Claessens against the military training of boys. Others might object on the ground that the party fostered the claims of conscientious objectors or worked for the repeal of the draft or opposed the conscription of labor or voted against large military appropriations. The range was large and every member could find a reason of his own. It was the Wilkes case over again:[546]

The very enumeration of so many grounds of expulsion implied their separate weakness and insufficiency; while it was designed to attract the support of members, influenced by different reasons for their votes.

[543] P. 314, _supra_.

[544] See a list of these charges in _Socialist Brief_, 10; also the report of the Committee, _New York Times_, March 31.

[545] See p. 115, _supra_. The whole of Judge Garvin’s opinion in the Syracuse case was read into the _Record_, p. 492, and reprinted in _Assembly Outline_, 75. No facts or other reasons than this are given to establish the guilt of the five members under the Act.

[546] May’s _Constitutional History_, I, 316.

Few legal documents furnish more delightful reading than the _Outline_, as it is called, of “the case of the Assembly against the five Socialist Assemblymen,”—the title is a significant comment on the impartiality of a tribunal which constitutes itself both judge and prosecutor. This makes it clearer than ever that the Socialists were not excluded for any personal unfitness but for the supposed principles of the party. Against Orr and De Witt as individuals, nothing whatever is said. Claessens and Waldman are charged with intemperate speeches, which “breathe in every word the spirit of treason and revolution with thinly veiled phrases to escape the prosecutions of the federal agents.” In other words, because they spoke so as not to violate the Espionage Act, that makes it all the worse. Also Claessens is guilty of teaching at the Rand School. That is an institution which circulates the decrees of Soviet Russia, and has been convicted of publishing Nearing’s _Great Madness_. Also one of his fellow-instructors was imprisoned for leading raids on churches. Obviously, Claessens “stands for the overthrow of our government.” And Solomon at least has committed overt acts of undoubted enormity.

In 1692 the chief accusers of the Salem witches were a club of young girls who sent more than one old woman to her death by telling how they had seen her drink their blood or cause a yellow bird to sit on the minister’s hat where it hung on a peg in the pulpit.[547] In 1920 Ellen Chivers, a stenographer just under eighteen years old, testified that three years before when she was barely fifteen, she heard Solomon make a speech in Brooklyn, with an American flag and a red flag flying on his stand.[548] A detachment of soldiers rode up recruiting and asked to borrow his platform. She heard Solomon reply, “Lend you my platform? Can you borrow my platform? Huh; the gutter is good enough for you.” They spoke from their jitney and went on. Nor was this the worst. A band of music came by on a trolley-car, stopped about three minutes, and struck up the “Star-Spangled Banner.” And then in her presence and in the presence, she declared, of two policemen, “Mr. Solomon turned up his coat collar, put down his hat, and pulled it over his eyes, spit on the American flag and sat down.” And the police did nothing.

[547] Palfrey, _History of New England_, IV, 102; Hutchinson, _History of the Province of Massachusetts Bay_, II, 27.

[548] _Assembly Outline_, 71; _Record_, 705–723, for Chivers’ testimony.

The spy who is regularly employed by the government was brought into undesired publicity by the Colyer trial. The voluntary informer is also a recurrent feature of all prosecutions for opinion since the day of Titus Oates and beyond. This girl was a member of the American Anti-Socialist League and had attended weekly meetings for two years before she testified. She had not mentioned these incidents to any member of that society or to her sister or to any one else, until after the investigation began, when she wrote to Speaker Sweet, because she thought “it was the duty of any American to take the stand against one who has committed treason against their country.” The two policemen on the spot afterwards swore that no such disloyal acts occurred. The Attorney General’s brief reprints without question the testimony of Ellen Chivers.

Another group of charges was presented to appeal to Assemblymen who were not entirely convinced by Miss Chivers and to attack the Socialists who could not be accused of such open disloyalty. Candidates of the Socialist Party were said to be bound by certain pledges, which might conceivably operate to ruin the country, and were so inconsistent with their constitutional oath as to make it false. First, the National Socialist Constitution provides that Socialist office-holders who vote to appropriate money for military or naval purposes shall be expelled from the party. The New York Constitution makes it the duty of the Legislature to maintain a minimum militia of 10,000 men. Therefore they have disqualified themselves to take the oath to support this Constitution. Even if this oath were not obligatory, they have made themselves ineligible by promising to take a course which if supported by a majority of the Assembly would destroy the entire military organization of the state and tend to expose state and nation to destruction from its enemies without and within. The state’s right of self-defense gives it the right to exclude such traitors. Their intention to disregard the constitutional provision about the minimum militia is shown by their opposition in previous sessions to laws giving extra pay for the National Guard and pay while in federal service, also to laws for the expulsion of alien enemies from teaching in the public schools, punishing the desecration of the flag, establishing military training for boys, and conscripting labor. The Attorney General neglected to add that they also voted against the establishment of the Lusk Committee.

The Socialists replied that the Constitution was paramount. Inconsistent party pledges were rejected by virtue of their oath as Assemblymen. The National Party platform naturally failed to consider the militia requirement of a particular state, and they were ready to carry out whatever duty that requirement imposed. However, until some one knew better what it meant, other members of the Assembly had no right to define this duty for them[549] or say that it included extravagant appropriations to maintain far more than the constitutional minimum of 10,000 men. If a question of maintaining that minimum were presented, they would do so. They were not obliged to vote extras or conscript boys.

[549] That constitutional duties must be interpreted by the person obligated under the sanction of his official oath, Ops. of the Justices, 56 N. H. 576 (1875); Andrew Jackson, in United States Bank veto, quoted by W. M. Evarts, _Arguments and Speeches_, I, 445.

Still more flimsy is the charge that the Socialist legislators were to vote as a unit and obey the wishes of the party organization. This promise, the Republican Attorney General gravely explains, must not “be confused with party action in caucus where party men uniformly reserve the right to withdraw if a proposed measure violates their conscience or their patriotism or is not with party issues.”[550] And then a few days later the Republicans proposed to displace Floor Manager Adler because he voted against the unseating of the five members. Nothing can be more touching than the indignation which the bare possibility of political control by outsiders inspired in the henchmen of New York’s “invisible government”:[551]

It makes no difference what name you give, whether you call it Fenton or Conkling or Cornell or Arthur or Platt, or by the names of men now living. The ruler of the state during the greater part of the forty years of my acquaintance with the state government has not been any man authorized by the constitution or by the law.

[550] _Assembly Outline_, 13. _Cf._ Bryce, _Am. Commonwealth_, 3 ed., I, c. XIX, p. 204. See Hillquit’s remarks on the Roman augurs’ wink. _Socialist Brief_, p. 22. I omit to discuss the charge that the Socialists were required to resign if they violated the party platform, as this was a dead-letter.

[551] Elihu Root, _Addresses on Government and Citizenship_, p. 202 (at the N. Y. Const. Conv. of 1915).

The meat of the _Outline_ is the portrayal of the iniquities of Socialism. This is a very different affair from the body of economic principles which is attacked by Carver, Taussig, and other economists, none of whom was summoned as an expert by the prosecution. The _Outline_ conceives it as “a Revolutionary Party, having the single purpose of destroying our institutions and government and substituting the Russian-Soviet government, ... an anti-national party whose allegiance is given to the Internationale and not to the United States.” Its purposes, mass action and the general strike, are treasonable. For its crimes the five members are responsible, and more than that, for the acts of any other person in that party, whether or not he belongs to their particular faction. As Mr. Stanchfield, for the prosecution, openly stated:[552]

The whole theory of this investigation rests upon the proposition that the Socialist Party, of which the five members under investigation are confessedly, concededly members, has embarked upon a program that calls for the overthrow of our form of government, some assert by constitutional means, others by violence. Now, assuming that that program is the basic charge under investigation, then my argument runs along this line: That every pamphlet, every declaration, every speech, every statement of every men who is affiliated with or belongs to that party, not necessarily in a technical sense of belonging to it, but everybody who upholds those claims, who supports those principles, who stands upon that platform, is bound by the speeches, the sentiments, the writings, the books, the publications of every other man affiliated with that association, whether they were present at the time when it was made or they were uttered, or whether they were absent.

[552] _Record_, 335.

No person who has followed with any intelligence the proceedings of the Socialist Party at the conventions of September, 1919, or May, 1920, can doubt that that party is as much divided into factions as any other. Nevertheless, the five members were held responsible on Stanchfield’s principle, not merely for the statements in the party platform but for the Debs speech at Canton, Ohio, statements in the Moscow manifesto, extracts from a book in Yiddish published by the Jewish Socialist Federation of America, all the articles contributed to the _American Socialist_, for everything that was said by speakers at meetings at which one of the assemblymen was present as well as for statements made in a letter by an organization to which he was bitterly opposed. This was guilt by association with a vengeance.

And finally the Attorney General corrects one member of the Committee in his misapprehension of thinking that the duty to disqualify for disloyalty rests with the people of the district. This, he says, misconceives the representative as an officer of the district and not of the state, and he shows the gravity of the error by an extract from Burke’s “Speech to the Sheriffs of Bristol”:

You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of _Parliament_.

“Thoughts on the Present Discontents” had been more to the point. And, quoting more political scripture, he warns the Committee in Madison’s words against that sectionalism which leads state legislators to sacrifice the comprehensive and permanent interest of the state to the particular and separate views of the counties or districts where they reside.

When such testimony and arguments were admitted, the result was a foregone conclusion. The Committee recommended expulsion, the Assembly characteristically waited until April 1st, which was too late for a re-election, and then disregarding the maiden speech of Theodore Roosevelt, who, with all his inherited abhorrence of Socialism and pacifism, refused to condemn the Socialist Party as a conspiracy for a state of mind, expelled the five members by an overwhelming vote.[553] The Legislature proceeded to enact the bills drafted by the triumphant Lusk Committee, which not only throttle the Rand School, but exclude from the definition of a party under the Election Law any organization which advocates:

Principles, doctrines, or policies that tend, if carried into effect, to the destruction, subversion or endangering of the existing governments of the United States and of the State of New York, and of the rights, privileges and institutions secured under such constitutions.[554]

[553] _New York Times_, April 1st and 2nd.

[554] 2 _Review_, 422. Governor Smith vetoed all the Lusk bills in a stinging message.

Any person who is a member of such organization is made ineligible for public office. And then leaving the governor’s welfare bills untouched the New York Legislature adjourned, and Speaker Sweet proclaimed the session “a victory for undivided Americanism.”

Surely this event ought to free us from the tyranny of this word, which seems like some magic helmet to render the true qualities of the wearer invisible to those around him. The men who use the ideals of the founders of our Republic, not as an inspiration for high-minded action on their own part but as a test by which they may condemn and imprison and disfranchise their fellow-citizens, are as unpardonable as the persecutors who used the teachings of the Gospels to send men to the stake in this world and hell-fire in the next. Years ago William Graham Sumner commented:

Who dares say that he is not “American”? Who dares repudiate what is declared to be Americanism? It follows that if anything is base and bogus it is always labeled American. If a thing is to be recommended which cannot be justified it is put under “Americanism” .... Then we see what Americanism and patriotism are. They are the duty laid upon us all to applaud, follow and obey whatever a ruling clique of newspapers or politicians chooses to say or wants to do.[555]

[555] _Folkways_, p. 177.

The absurdity to which our greatest state has descended in its frantic desire to suppress disloyalty cannot be entirely explained by the fear of Bolshevism, because the danger of that is far greater in European countries, which have large groups of Socialists in their legislatures unmolested. Nor is it entirely due to the activities of organizations like the Lusk Committee. Something more is needed to account for the statement of the _New York Times_ that the expulsion of the Socialists was as clearly and demonstrably a measure of national defense as the declaration of war again Germany.[556] Speaker Sweet and his associates would not have acted as they did had they not been assured of wide support, especially in the country districts. Much of the panic-stricken dread of Socialism is due to the sentiment that we must have unanimity of thought in this country. The surprising uniformity of American life has long excited attention from foreign observers.[557] Until recently we have had only a middle class without any proletariat or large group of extremely wealthy men. Since the issues of the Civil War died away, whatever few fundamental differences in opinion have existed have rarely coincided with party lines. A French writer in his biography of President Wilson remarks that a foreigner on coming to this country does not understand our political parties. In Europe every party has a platform which represents a definite policy, like monarchy, clericalism, Socialism. He finds nothing of the kind here. Why do we have two parties when they do not differ? Halévy explains that the Republican and Democratic parties are like two great department stores, such as the _Bon Marché_ and the _Louvre_. Both sell very much the same things. Some people go entirely to one, some go entirely to the other, some go first to one and then to the other. They are there because they have always been there.[558] But now a new party has entered the field which has real issues, vital one way or the other to all of us and hence the antagonism of its opponents is immediate and bitter. When it shows signs of gaining real strength then there is an energetic effort to stamp it out, which likes to base itself on patriotism and self-preservation.

[556] Editorial of April 2nd.

[557] See Bryce’s _American Commonwealth_, II, c. CXII.

[558] Daniel Halévy, _Le Président Wilson_, Paris, 1918, p. 109.

It is not by such methods that the nation can be saved from the evil tendencies of any doctrine. The great strength of our argument against violent-talking radicals in the past has been that we could say to them: “It is true that in the countries that you came from you naturally resorted to violence because you had no vote and could not abolish the abuses to which you objected. It is not so in this country. If you want a change, go and vote for it, vote for men who have promised to bring it to pass.” The New York Assembly has deprived us of this argument in the state where the left wing is strongest. It has appealed to force as the normal method for settling conflicts between ideas. It has disregarded the counsel of its wisest men to take that of the Lusk Committee, whose whole existence has been a violation of constitutional rights. It has disfranchised 60,000 American citizens on the basis of a caricature of Socialism and the testimony of Ellen Chivers. It has repudiated government by representation and substituted government by misrepresentation.