Chapter III (2)

Two features of the trial demand a passing notice. The method by which confessions were obtained from the defendants after arrest was not raised on appeal, since the overt acts were proved in other ways, but their testimony, if it can be believed, throws a significant light on the question, important to criminologists, of the treatment which political prisoners may expect in this country, especially if they be obscure aliens. The deportation raids prove that abuses are possible, but such a conclusion cannot be reached in the Abrams case without a detailed investigation of the conflicting evidence. The army sergeants deny threats and force.[231] The assistant district attorney, who showed much consideration toward the prisoners, noticed no traces of violence on the morning after the arrest, and is convinced that none was used. On the other hand, the charges of brutality seem disquietingly specific and sincere.[232] The defendants and their counsel also insisted, though the influenza epidemic and the long interval since the arrest render it improbable, that Schwartz’s fatal illness was caused by the violence of one soldier, whom Judge Clayton relieved from the necessity of telling whether or not he was called by his associates, “The Tiger.” The court observed, “There is no evidence as to who killed Schwartz any more than there was any evidence as to who killed cock robin.”[233]

[231] _Record_, pp. 70, 75, 85. Stenographer’s Notes, 742 ff., 752 ff.

[232] Stenographer’s Notes, 471 ff., 587, 613, 660 ff., 709 ff., 716 ff., 722; and the pamphlet, _Sentenced to Twenty Years Prison_, passim.

[233] Stenographer’s notes, 665.

Legal historians have always taken interest in the criminal judge who jests with the lives of men.[234]

“You keep talking about producers,” said Judge Clayton to Abrams.
“Now may I ask why you don’t go out and do some producing? There
is plenty of untilled land needing attention in this country.”

... The witness said that he was an anarchist and added that
Christ was an anarchist.

“Our Lord is not on trial here. You are....”[235]

[234] The judge’s words are taken _verbatim_ from the _New York Times_, October 22, 1918, which was so far from being prejudiced against him that on October 28 it said editorially, “Judge Henry D. Clayton deserves the thanks of the city and of the country for the way in which he conducted the trial,” and praised his “half-humorous” methods.

[235] Braxfield replied to a similar comparison, “Muckle he made o’ that; he was hanget.” See the account of how he tried Muir for sedition in R. L. Stevenson, _Some Portraits by Raeburn_, and Philip A. Brown, _The French Revolution in English History_, London, 1918, 95–99.

At another point the witness began some remarks about John D. Rockefeller.

“Now,” said Judge Clayton, “suppose we eliminate Mr. Rockefeller.
He is not on trial. However, I will say that it is quite true
that Mr. Rockefeller is a man of considerable wealth and he has
done a great deal of good. He has eliminated the hook-worm, which
was the curse of childhood in large sections of our country; he
has established and maintained a great research hospital, and
in other ways used his wealth to better the condition of his
fellows. We will now proceed with the case.”

“We will now,” said Mr. Weinberger, “ask the witness about his
other writings. The Holy Alliance——”

“Cut out the Holy Alliance. That is not in the issue....”

“When our forefathers of the American Revolution——” the witness
began, but that was as far as he got.

“Your what?” asked Judge Clayton.

“My forefathers,” replied the defendant.

“Do you mean to refer to the fathers of this nation as your
forefathers? Well, I guess we can leave that out, too, for
Washington and the others are not on trial here.”

Abrams explained he called them that because, “I have respect
for them. We all are a big human family, and I say ‘our
forefathers.’... Those that stand for the people, I call them
father.”[236]

[236] Abrams’ reply is in _Record_, p. 194.

The day after conviction the prisoners were called before Judge Clayton for sentence. The court said:[237]

“I am not going to permit anybody to start anything to-day. The
only matter before this court is the sentencing of these persons.
There will be no propaganda started in this court, the purpose of
which is to give aid and comfort to soap-box orators and to such
as these miserable defendants who stand convicted before the bar
of justice.”

When Lipman, the socialist, stepped forward to address the court
and started to harangue about democracy, “You don’t know anything
about democracy,” said Judge Clayton, “and the only thing you
understand is the hellishness of anarchy.”...

“These defendants took the stand. They talked about capitalists
and producers, and I tried to figure out what a capitalist and
what a producer is as contemplated by them. After listening
carefully to all they had to say, I came to the conclusion that a
capitalist is a man with a decent suit of clothes, a minimum of
$1.25 in his pocket, and a good character.

“And when I tried to find out what the prisoners had produced, I
was unable to find out anything at all. So far as I can learn,
not one of them ever produced so much as a single potato.[238]
The only thing they know how to raise is hell, and to direct it
against the government of the United States....

“But we are not going to help carry out the plans mapped out by
the Imperial German Government, and which are being carried out
by Lenine and Trotsky. I have heard of the reported fate of the
poor little daughters of the Czar, but I won’t talk about that
now. I might get mad. I will now sentence the prisoners.”

[237] _New York Times_, October 26, 1918.

[238] Abrams and Lachowsky bound books, Lipman produced furs, Rosansky produced hats, Molly Steimer produced shirtwaists.

Rosansky was given three years in prison, Molly Steimer fifteen years and $500 fine, Lipman, Lachowsky, and Abrams twenty years (the maximum), and $1,000 on each count. If they had actually conspired to tie up every munition plant in the country and succeeded the punishment could not have been more.[239]

“I did not expect anything better,” said Lipman.

“And may I add,” replied the judge, “that you do not deserve
anything better.”[240]

[239] It would not be treason for lack of overt acts. See Chapter VI. Therefore, they would be punishable only under the Espionage Act. The general statute on conspiracy to destroy by force the government of the United States imposes only six years. _Crim. Code_, § 6, U. S. Comp. Stat., 1918, § 10170. Conspiracies to limit the production of necessaries are punishable under the Lever Act by two years. Act of August 10, 1917, c. 53, § 9, 40 Stat. at L. 279, U. S. Comp. Stat., §3115⅛ i.

[240] _New York Times_, supra. _Record_, p. 243, says, “I do not think you deserve anything less. Now, the next one.”

II. _The Supreme Court_

Seven judges of the Supreme Court were for affirmance of these convictions, Justice Clarke delivering the majority opinion. Justice Holmes read a dissenting opinion, in which Justice Brandeis concurred. The Supreme Court had only a limited power to correct any errors that may have occurred at the trial. It could not revise the sentences.[241] It could not set aside the verdict because its judges would have found differently on the facts themselves, but only if there was so little evidence of the required guilty intent that a reasonable jury could not have convicted. It would be very unlikely to grant a new trial for misdirection and failure to place properly before the jury the vital issue of specific intent to hinder the war, since no objection on this ground is noted in the bill of exceptions,[242] although as I have tried to show, the trial judge did nothing to enlighten the jury on the issues of specific intent and did much to becloud that difficult question, so that they very probably reached a verdict on entirely inadequate grounds,—the existence of intention to publish and to oppose Russian intervention. Only two real questions were before the court: the existence of the requisite evidence of specific intent under the third and fourth counts, the other two being disregarded, and whether the Espionage Act could constitutionally be interpreted to apply to this case.

[241] That excessive sentences may possibly constitute “cruel and unusual punishment” under the Eighth Amendment, see Weems _v._ United States, 217 U. S. 349 (1910), per McKenna, J., White and Holmes, JJ., dissenting.

[242] The Supreme Court has granted a new trial for unexcepted misdirection imperiling liberty. Wiborg _v._ U. S., 163 U. S. 632, 659 (1896). Accord, Skuy _v._ U. S., 261 Fed. 316 (C. C. A. 8th, 1919). See August _v._ United States, 257 Fed. 388 (C. C. A. 8th, 1919), which holds that Act of February 26, 1919, c. 48, amending Judicial Code, § 269, now authorizes an appellate court to look to the entire record and render judgment without regard to the technicality of want of exceptions. It is doubtful, however, if this statute does more than prevent reversals for non-prejudicial errors.

The required specific intent to hinder the war with Germany is worked out by Justice Clarke in this way: “It will not do to say ... that the only intent of these defendants was to prevent injury to the Russian cause.” They intended a general strike of munition workers, _i.e._, a curtailment of production. This plan necessarily involved, before it could be realized, the paralysis and defeat of the war program of the United States. Therefore, the defendants intended such an interference with the war, since “men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.”[243]

[243] 250 U. S. @ 621.

The “unfortunate maxim” propounded by the Justice is a pure fiction.[244] Obviously our acts result in many probable consequences which we do not intend. If he means that the defendants were liable for such consequences even if they did not in fact intend them, he states a principle of law which is applicable to some crimes, but not to those in which the law requires a specific intent, as in the case at bar. In those crimes the defendant must actually have the defined state of mind.[245] Thus a man who broke into a barn at night and cut the sinews of a horse’s leg to prevent his winning a race is not guilty of burglary with intent to kill a horse, even though in consequence of the injury the horse died.[246] It is needless to multiply examples. Even recklessness does not take the place of the state of mind demanded by the statute.[247] On the other hand, if he means that the jury may permissibly infer as a matter of fact from the doing of an act that the actor intends its ordinary consequences, this is true enough,[248] but such an inference is worthless if there is overwhelming express evidence that the defendant had an entirely different intention. That is the situation in the Abrams case, where the pamphlets and the defendants’ testimony show that they intended to help Russia.

[244] Jeremiah Smith, “Surviving Fictions,” 27 _Yale L. J._ 147, 156 (1917).

[245] May, _Criminal Law_, 3 ed., § 34; 1 Bishop, _New Criminal Law_, 8 ed., § 335; Roberts _v._ People, 19 Mich. 401, 415 (1870); Ogletree _v._ State, 28 Ala. 693, 701 (1856).

[246] Dobbs’ Case, 2 East P. C. 513 (1770).

[247] United States _v._ Moore, 2 Lowell (U. S.) 232 (1873).

[248] Jeremiah Smith, _op. cit._; People _v._ Scott, 6 Mich. 287, 296 (1859).

The majority opinion must rest on the first sentence quoted from Justice Clarke, that aiding Russia was not the only intent of these defendants. It is argued that they had two intents: (1) to help Russia, (2) to hinder the war by curtailment of production in order to accomplish that object; that it is immaterial which intent was principal and which subordinate, so long as both existed.[249] Thus if I throw a brick at a man behind a plate-glass window, my principal desire may be to hit him, but if that necessarily involves breaking the window and I know this fact, I have a secondary intention to break it and am guilty of intentional destruction of property, even though I would much rather not have broken the glass.[250] When a man was indicted for assault on another with intent to disfigure him by biting off his ear, it was useless for him to argue that he only intended to injure but not to disfigure, since the disfigurement was a necessary and obviously a known consequence of the intended act.[251]

[249] 1 Bishop, _New Criminal Law_, 8 ed., § 339; Rex _v._ Gillow, 1 Moody C. C. 85 (1825).

[250] _Cf._ Rex _v._ Pembliton, 12 Cox C. C. 607 (1874). A shooting analogy is given in 33 _Harv. L. Rev._ 444 note.

[251] State _v._ Clark, 69 Iowa 196 (1886).

There are several answers to this argument that one who intends a curtailment of munitions for any purpose must know that fewer munitions will hinder the war and therefore must _ipso facto_ intend to hinder the war. First, the analogy of the throwing and biting cases just stated is too simple to have any application to the Abrams case. There is no such obvious and mechanical chain of cause and effect in complex social conditions, and the obscure factors involved are entirely beyond the capacity of a jury to decide. The argument supposes (1) that the hindrance of the war is inevitable, (2) that this inevitable consequence must have been in the defendants’ minds. Both steps are very questionable, and the opinion of a jury on either step should have no weight with an appellate court. Of the first Justice Holmes says, “An intent to prevent interference with the Revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.”[252] Thus a very short strike that stopped intervention would have caused a very small loss in munitions for shipment to France, which would have been enormously offset by the release of troops and equipment previously diverted to Russia, and a different Russian policy might have created greater liberal enthusiasm in this country and elsewhere for the President’s war aims. The second step ignores the belief of the defendants that a friendly Soviet Government would render valuable aid in attacking Imperial Germany by war, or at least by propaganda, whose effectiveness was proved within a fortnight after the conviction of Abrams and his friends.

[252] 250 U. S. @ 628 (1919).

Secondly, if every curtailment of munitions, whatever its purpose, is necessarily criminal under this Act, because of its alleged obvious and inevitable effect on the war, why does the Espionage Act take pains to limit the crime to “curtailment ... _with intent ... to cripple or hinder the United States in the prosecution of the war_”?[253] This clause is superfluous and meaningless, if every advocacy of curtailment involves such an intent. This clause about intent must add something to the rest of the definition of this crime. “Intent to hinder the war” clearly means more than the artificial lawyer-made intention to obstruct the war conjured up from any threat of a strike. The word “intent” in a very severe criminal statute and especially a statute limiting popular discussion must mean what any layman who wished to urge a strike in war time lawfully would assume it to mean, that interference with the war must not be the object of his exhortation, the purpose at which he aims. Such a man would be entrapped if “intent” means an incidental, undesired, and at the most a vaguely considered consequence of his utterances.[254] Strikes are not ordinarily illegal, and it would be startling if Congress intended to prohibit all incitement to them in war. Naturally the statute confined itself to strikes and similar measures that were specifically planned to interfere with the war.

[253] It is significant that Justice Clarke omits this clause in quoting the indictment, and possibly he overlooked it altogether and assumed that intent to advocate curtailment of war essentials was the only intent specified in the Act.

[254] _Ibid._, Holmes, J.: “When words are used exactly a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed—unless the aim to produce it is the proximate motive of the specific act ...” The Sabotage Act punishes defective manufacture of war essentials only if there is intent to interfere with the war or reason to believe that the act will interfere with it. Act of April 20, 1918.

This is not, as has been charged, a confusion of intent and motive.[255] It is absurd to say that “interference with the war was palpably the _direct_ and desired effect which these appeals were intended to produce” and aid to Russia only a motive. Justice Clarke expressly recognizes that the “primary intent” was to help Russia.[256] The defendants intended to produce certain tangible results, notably protest meetings, which in turn were intended to produce another tangible result, the end of intervention. Their motive was love for Russia. Possibly they also intended as part of their machinery of protest to produce a general strike, if intent can exist without any expectation of success. Interference with the war was at the most an incidental consequence of the strikes, entirely subordinate to the longed for consequence of all this agitation, withdrawal from Russia. It is wholly unsound to label the conjectural war consequence intent and the absorbing Russian consequence motive.

[255] “Justice Holmes’ Dissent,” 1 _Review_ 636 (December 6, 1919). This article also censures Justice Holmes for not quoting the passage about keeping the armies at home. I hope I have shown reasons why it should never have been quoted by any judge.

[256] 250 U. S. @ 621.

Finally, this argument of inevitable hindrance proves too much. If these defendants were guilty under the fourth count, so was every other person who advocated curtailment in the production of war essentials, no matter what his purpose. The machinists in Bridgeport who struck in defiance of the arbitration of the National War Labor Board violated the Espionage Act, although they intended to obtain higher wages. The Smith and Wesson Company violated it in refusing to continue to manufacture pistols under another arbitration, although they intended to retain an open shop.[257] The coal miners last autumn violated that Act in calling a strike. The government should have threatened all these people with the twenty-year penalty of the Espionage Act instead of acting under its general war statutes or imposing the milder rigors of the Lever Act and an injunction.[258]

[257] See these two cases in Report of the Activities of the War Department in the Field of Industrial Relations During the War (Washington, 1919), 32–35.

[258] I have not troubled to apply similar reasoning to the third count of the indictment, because for reasons already stated I do not consider the pamphlets contained any advocacy of resistance to the United States. Consequently, that count should be disregarded like the first two. Holmes, J., says: “Resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war.... There is no hint at resistance to the United States as I construe the phrase.” 250 U. S. @ 629 (1919).

In other words, the Supreme Court was construing not only a criminal statute which must be applied in a fashion which the laymen who are menaced by it will readily understand, but a statute limiting discussion and hence to be interpreted in the light of the First Amendment. It ought not to be assumed that Congress meant to make all discussion of any governmental measure criminal in war time simply because of an incidental interference with the war. The danger of the majority view is that it allows the government, once there is a war, to embark on the most dubious enterprises, and gag all but very discreet protests against these non-war activities. To give extreme concrete examples: Irish munition workers could not have been urged to strike had our government been sending arms to Dublin Castle, because this would have lessened munitions for France, since a machinist could not be sure that any particular shell or gun was going to Ireland. Incitement to armed resistance to an executive edict nationalizing women would be opposition that might paralyze the war, and therefore easily suppressed under this Act.

The majority opinion dismisses this matter of constitutionality in two sentences, citing decisions on the Espionage Act of 1917 to establish the validity of the far more objectionable provisions of the Act of 1918.[259] Furthermore, the court did not have to declare the clauses involved in the third and fourth counts void. Indeed, it cannot reasonably be doubted that they are constitutional when construed in accordance with the First Amendment. It is the same situation that Judge Hand pointed out in Masses _v._ Patten:[260] it is not a question of judicial refusal to enforce legislation, but of giving it a construction which will not limit discussion beyond the express terms of the Act. The words of the statute requiring a specific intent were presumably not meant by Congress to bear a meaning which would curb political agitation on matters unrelated to the war. The statute uses the ordinary language of criminal solicitation and attempt, and does not expressly demand the punishment of words in the absence of immediate danger or a determined purpose in itself dangerous to cause actual obstruction of the war. Therefore, it was erroneous for the court to construe it so as to make the remote bad tendency and possible incidental consequences of these pamphlets a valid basis for conviction. And even if all advocacy of curtailment of munitions be considered dangerous, the intent clause limits the crime and should not have been ignored. While the decision of the majority has done a lasting injustice to the defendants, its effect on the legal conception of freedom of speech should be temporary in view of its meager discussion of the subject and the enduring qualities of the reasoning of Justice Holmes.

[259] 250 U. S. @ 619.

[260] 244 Fed. 535, 538 (1917). See p. 48, _supra_.

Although a dissenting opinion, it must carry great weight as an interpretation of the First Amendment, because it is only an elaboration of the principle of “clear and present danger” laid down by him with the backing of a unanimous court in Schenck _v._ United States. Since that case is reaffirmed by Justice Clarke this principle still remains law, greatly strengthened since the Abrams case by Justice Holmes’s magnificent exposition of the philosophic basis of this article of our Constitution:

Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power
and want a certain result with all your heart you naturally
express your wishes in law and sweep away all opposition. To
allow opposition by speech seems to indicate that you think the
speech impotent, as when a man says that he has squared the
circle, or that you do not care whole-heartedly for the result,
or that you doubt either your power or your premises. But when
men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired
is better reached by free trade in ideas—that the best test of
truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out. That at any
rate is the theory of our Constitution. It is an experiment, as
all life is an experiment. Every year if not every day we have
to wager our salvation upon some prophecy based upon imperfect
knowledge. While that experiment is part of our system I think
that we should be eternally vigilant against attempts to check
the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate
interference with the lawful and pressing purposes of the law
that an immediate check is required to save the country....
Only the emergency that makes it immediately dangerous to leave
the correction of evil counsels to time warrants making any
exception to the sweeping command, “Congress shall make no law
abridging the freedom of speech.” Of course I am speaking only of
expressions of opinion and exhortations, which were all that were
uttered here, but I regret that I cannot put into more impressive
words my belief that in their conviction upon this indictment the
defendants were deprived of their rights under the Constitution
of the United States.

The preceding chapters have been written in support of this danger-test as marking the true limit of governmental interference with speech and writing under our constitutions, but an able and thoughtful criticism of Justice Holmes’ dissent[261] makes it imperative to say something more on the subject. In the first place, the First Amendment is very much more than “an expression of political faith.” It was demanded by several states as a condition of their ratification of the Federal Constitution, and is as definitely a prohibition upon Congress as any other article in the Bill of Rights. The policy behind it is the attainment and spread of truth, not merely as an abstraction, but as the basis of political and social progress. “Freedom of speech and of the press” is to be unabridged because it is the only means of testing out the truth. The Constitution does not pare down this freedom to political affairs only or to the opinions which are held by a majority of the people in opposition to the government. A freedom which does not extend to a minority, however small, and which affords them no protection when the majority are on the side of the government would be a very partial affair, enabling the majority to dig themselves in for an indefinite future. The narrow view that the amendment does not protect a few of the people against the force of public opinion throws us back to the English trials during the French Revolution, and the Sedition Law of 1798, for which the United States through many years showed its repentance by pardoning all prisoners and repaying to them the fines imposed. These were none the less injurious to the cause of truth because they had the sanction of the majority.

[261] “The Espionage Act and the Limits of Legal Toleration,” 33 _Harv. L. Rev._ 442 (January, 1920), by Day Kimball.

Undoubtedly, although we are not infallible, we must assume certain opinions to be true for purposes of action; but this does not make it right or desirable to assume that they are true for the purpose of crushing those who hold a contrary doctrine.

There is the greatest difference between presuming an opinion to
be true, because, with every opportunity for contesting it, it
has not been refuted, and assuming its truth for the purpose of
not permitting its refutation.[262]

[262] Mill, _Liberty_, c. II.

The vote of the majority of the electorate or the legislature is the best way to decide what beliefs shall be translated into immediate action, and the government must resist if its opponents begin to carry on the conflict of opinions by breaking heads instead of counting them. But it is equally inadvisable for the government to seek to end a contest of ideas by imprisoning or exiling its intellectual adversaries. Force seems like force to its victim, whether or not it has the sanction of law. No one will question that the government must resist a revolt, however Utopian in purposes, but the inference that logically it must also condemn all utterances “aimed at such subversion or tending solely thither” ignores the difference of degree emphasized by the First Amendment. It is the unfailing argument of persecutors. The opinions to which they object are always conceived to aim at revolution, violence, and nothing else, although such utterances are usually in large part the exposition of political and economic views. The advocates of parliamentary reform in England were condemned on just such reasoning. To throw overboard the danger-test, and permit “the suppression, whenever reasonably necessary, of utterances whose aims render them a menace to the existence of the state,” inevitably substitutes jail for argument, since the determination of the vague test of “menace” depends on the tribunal’s abhorrence of the defendant’s views. It is no answer that this tribunal (outside of the crushing powers of the post-office and of the immigration officials in deportation cases) is a jury. A fitness to apply a common-sense standard to alleged criminal acts bears no resemblance to a capacity to appraise the bad political and social tendency of unfamiliar economic doctrines during panic. The Abrams case shows the capacity of a judge to decide such a question. The only tribunal which can pass properly on the menace of ideas is time.

We must fight for some of our beliefs, but there are many ways of fighting. The state must meet violence with violence, since there is no other method, but against opinions, agitation, bombastic threats, it has another weapon,—language. Words as such should be fought with their own kind, and force called in against them only to head off violence when that is sure to follow the utterances before there is a chance for counter-argument. To justify the suppression of the Abrams agitation because the government could not trust truth to win out against “the monstrous and debauching power of the organized lie” overlooks the possibility that in the absence of free discussion organized lies may have bred unchecked among those who upheld the course of the government in Russia.

The lesson of United States _v._ Abrams is that Congress alone can effectively safeguard minority opinion in times of excitement. Once a sedition statute is on the books, bad tendency becomes the test of criminality. Trial judges will be found to adopt a free construction of the act so as to reach objectionable doctrines, and the Supreme Court will probably be unable to afford relief.

Most of the discussion of the Abrams case has turned on the question whether the decision of the United States Supreme Court affirming these convictions was right or wrong. It seems to me much more important to consider the case as a whole, and ask how the trial and its outcome accord with a just administration of the criminal law.

The systematic arrest of civilians by soldiers on the streets of New York City was unprecedented, the seizure of papers was illegal, and the charges of brutality at Police Headquarters are very sinister. The trial judge ignored the fundamental issues of fact, took charge of the cross-examination of the prisoners, and allowed the jury to convict them for their Russian sympathies and their anarchistic views. The maximum sentence available against a formidable pro-German plot was meted out by him to the silly futile circulars of five obscure and isolated young aliens, misguided by their loyalty to their endangered country and ideals, who hatched their wild scheme in a garret, and carried it out in a cellar. “The most nominal punishment” was all that could possibly be inflicted, in Justice Holmes’s opinion,[263] unless Judge Clayton was putting them in prison, not for their conduct, but for their creed. Yet they are condemned for their harmless folly to spend the best years of their lives in American jails. The injustice[264] is none the less because our highest court felt powerless to wipe it out. The responsibility is simply shifted to the pardoning authorities, who except for the release of the unlucky dupe Rosansky have as yet done nothing to remedy the injustice, and to Congress which can change or abolish the Espionage Act of 1918, so that in future wars such a trial and such sentences for the intemperate criticism of questionable official action[265] shall never again occur in these United States.

[263] 250 U. S. @ 629 (1919).

[264] See Morley’s indignation at the “thundering sentences” for sedition in India. 2 _Recollections_ 269.

[265] On armed intervention without Congressional authority, see the state papers of Seward and Fish in J. B. Moore, _Digest of International Law_, VI, 23 ff., and Moorfield Storey, “A Plea for Honesty,” 7 _Yale Rev._ 260 (1918): “If any nation were to do any of these things to the United States, we should not doubt that it was making war on us.”