Chapter V: The Deportations (2)

The case of Peter Frank, an American citizen of Swampscott, Massachusetts, is typical. The warrant of arrest, which he never saw, began, “Whereas from evidence submitted to me, it appears that the alien, Peter Frank, who landed at an unknown port on or about the 1st day of January, 1919,” and went on to charge membership in the stereotyped words of the statute in six kinds of violent organizations, without naming a single one or describing it concretely. All the Boston warrants were in just this form. It was impossible for him to tell from it with what he was really charged. Moreover, no address or other identification of Frank was given, so that there was nothing to show that another man of the same name in another city was not intended. In his petition for _habeas corpus_, which was verified by the evidence, Frank states that he was born in Ohio and was always a citizen; that four days previously immigration officers broke into his house at one o’clock in the morning, arrested him, searched his house and carried off papers, confined him in the Lynn police station and on Deer Island, refused to allow friends or counsel to visit him, and ejected from the immigration office the man who started judicial proceedings in his behalf. Nevertheless, Commissioner Skeffington still contended that Frank was an alien, and that the burden of proof was on him to establish citizenship. The only evidence which was offered to justify his confinement was a questionnaire, on which Frank had answered that he was born in Cincinnati and was not a member of either the Communist or Socialist party or any other organization, but the Shoe Workers’ Union. At the end of this paper the government had stencilled, “I, the under-signed, not a citizen of the United States, on oath depose, etc.,” and Frank had hastily signed without crossing out the “not.” On this flimsy fact the immigration officials kept him five days in jail until against their will he was discharged by Judge George W. Anderson.

The Departments of Justice and Labor were baffled in this case, where there was absolutely no evidence that the prisoner was an alien, but they have not abandoned their main contention that the Secretary of Labor has absolute power, where citizenship turns upon a disputed fact like marriage, parentage, or place of birth, to confine a man who really is a citizen for months and then order him deported on a finding that he is not a citizen. And they are right that Congress has actually conferred this power, and that it makes no difference under the statute if the Secretary of Labor makes a mistake and classifies a man as an alien who is actually a citizen, for “the decision of the Secretary of Labor shall be final.” The citizen is forbidden by Congress to appeal to the courts to correct the mistake of fact and prevent his banishment into places beyond the seas. It is, of course, possible that such a construction of this sentence would be held by the Supreme Court to conflict with the “due process” clause of the Constitution. It would seem that since the Constitution forbids an administrative official to deport any one but an alien without judicial proceedings, the Secretary is simply hauling himself up by his bootstraps when he decides that a citizen is within his jurisdiction and deportable. Nevertheless, the Supreme Court has already allowed him to make almost the same sort of decision under similar statutory language in United States _v._ Ju Toy.[380] That case permitted the Secretary to deport a Mongolian on a finding of fact that he was born in China, regardless of the decision of a court on _habeas corpus_ that he was a native-born American citizen returning from a trip to China. On citizenship as on other questions, the Secretary can be reversed only if there is error of law or an absolute lack of evidence, or if the person to be deported does not receive a fair hearing.[381] It may be that the Ju Toy case will be limited not to apply to deportation after entry, but this cannot be predicted with any confidence. Enough has been said to indicate the possibility, under the present statutory and administrative machinery of deportation, of prolonged vexations for American citizens and even permanent exile.

[380] 198 U. S. 253 (1905).

[381] _E.g._, Chin Yow _v._ U. S., 208 U. S. 8 (1908). The Ju Toy case was held not to apply to deportations, Moy Suey _v._ U. S., 147 Fed. 697 (C. C. A., 1906); U. S. _v._ Low Hong, 261 Fed. 73 (C. C. A., 1919).

It is all very well to say that only Communist citizens run this risk anyway, and that they and Chinese citizens have “no rights that a white man is bound to respect.” The Frank case shows that the government officials were ready enough to confine a citizen who is not a Communist, and he was only one out of many in the recent raids.[382] Moreover, there is nothing in the Deportation Act of 1918 to limit the Secretary to Communists. As I shall show shortly, he may begin to break up other organizations by wholesale deportation of their members, both aliens and citizens whose citizenship is officially denied. Some native-born members of the American Federation of Labor may find a future Secretary of Labor ruling (1) that their association advocates the overthrow of the government by force and violence and (2) that they are aliens. So long as there is any evidence, however much outweighed, to support these two findings, the statute is plain, and allows them no remedy.

[382] F. R. Barkley, “Jailing Radicals in Detroit,” 110 _Nation_ 136 (January 31, 1920); Palmer Deportations Testimony, 109, 111; Colyer opinion.

V. _A Review of the Actual Cases of Radicals Held for Deportation_

The public is therefore in error in assuming that only foreigners have been seized for deportation. It is also wrong in thinking that the aliens who have been arrested are all dangerous characters. Some of those expelled to Europe have undoubtedly been turbulent persons like Emma Goldman, but not all the persons who are held to come within the Deportation Act of 1918 are of the same sort. In order to make it plain just what kind of men the government wants to deport, I shall review the actual decisions relating to three types of radical aliens, Communists, Industrial Workers of the World, and anarchists.

(1) Communists—Guilt by Association and Government Spies

The Communist Labor Party and the Communist Party, which were the chief objective of the recent raids, seceded from the Socialist Party in September, 1919, taking with them several state Socialist organizations, and a very large number of left-wing Socialists.[383] Mr. Gordon Watkins, of the University of Illinois, reports the following estimates of the size of the three parties: Socialist Party after the secession, 39,000; Communist Labor Party, 10,000 to 30,000; Communist Party, 30,000 to 60,000, of whom 25,000 belong to foreign language federations which are predominantly Russian in their constituency. The Secretary of Labor has ruled that all the aliens in the Communist Party are _ipso facto_ liable to deportation under the Act of 1918, as members of or affiliated with an “organization that entertains a belief in, teaches or advocates the overthrow by force or violence of the government of the United States.”[384] The Attorney General’s Instructions evidently take the same view of the Communist Labor Party. Consequently, a card from either party found on any alien furnished the immigration officials with what they called “a perfect case.” Nevertheless, Secretary Wilson took a different view of the Communist Labor Party in the Carl Miller case, and Mr. Post in the Truss case ruled that a card was not conclusive proof of membership. Judge Anderson in the Colyer case went still farther, and held that the Communist Party was not an organization within the Act of 1918.

[383] Gordon S. Watkins, “The Present Status of Socialism in the United States,” 124 _Atlantic Monthly_ 821 (December, 1919).

[384] _In re_ Engelbert Preis, January 24, 1920, House Judiciary Hearings, 17. All the important administrative decisions are reprinted in House Immigration Hearings.

These various decisions raise two questions: (_a_) When does an organization advocate force and violence? (_b_) if it does so, can all its members be justly subjected to painful consequences?

(_a_) The difficulties of the first question have already been pointed out in the preceding chapter, and the Program of the Communist Party affords a practical illustration thereof. Although this Program, which is reprinted in the _American Labor Year-Book_ for 1919–20,[385] plainly intends that the proletariat shall “conquer and destroy the bourgeois parliamentary state” and substitute a very different political and economic system, there is not a word which expressly says that the conquest is to be by force and violence. Mr. Wilson, admitting that such a violent purpose is essential to bring the organization within the scope of the Act, finds it inferentially in various passages, which I give below with the omission of two that parallel the first. In the first place he relies on such statements as, “Participation in parliamentary campaigns, which in the general struggle of the proletariat is of secondary importance, is for the purpose of revolutionary propaganda only.” The context, which he does not quote, qualifies the meaning of “revolutionary”:

Parliamentary representatives of the Communist Party shall not
introduce or support reform measures. Parliaments and political
democracy shall be utilized to assist in organizing the
working class against capitalism and the state. Parliamentary
representatives shall consistently expose the oppressive class
character of the capitalist state, using the legislative forum
to interpret and emphasize the class struggle; they shall make
clear how parliamentarism and parliamentary democracy deceive
the workers; and they shall analyze the capitalist legislative
proposals and reform palliatives as evasions of the issue and as
of no fundamental significance to the working class.

[385] Edited by Alexander Trachtenberg, published by Rand School of Social Science, N. Y., pp. 416–419. Also in House Judiciary Hearings, 78–80, which contains many other important documents relating to the two Communist parties.

The vital issue is plainly to determine what is the primary method which is meant to supersede political processes. Is it violence or is there some other alternative? The Program gives the answer, “The Communist Party shall make the great industrial struggle of the working class its major campaigns.” Yet the Secretary decides that this primary method is violence, on the basis of the following extracts from the Party Manifesto:

The conquest of the power of the state is accomplished by the
mass power of the proletariat. Political mass strikes are a vital
factor in developing this mass power, preparing the working class
for the conquest of capitalism. The power of the proletariat
lies fundamentally in its control of the industrial process. The
mobilizing of this control against capitalism means the initial
form of the revolutionary mass action that will conquer the power
of the state.

Mass action is industrial in its origin but it acquires political
character as it develops fuller forms. Mass action, in the form
of general political strikes and demonstrations, unites the
energy and forces of the proletariat, brings proletarian mass
pressure upon the bourgeois state. The more general and conscious
mass action becomes, the more it antagonizes the bourgeois
state, the more it becomes political mass action. Mass action is
responsive to life itself, the form of aggressive proletarian
struggle under imperialism. Out of this struggle develops
revolutionary mass action, the means for the proletarian conquest
of power.

And then, making this violent purpose still more clear in his eyes, he gives this passage from the Manifesto of the Communist International, which the Communist Party is said to accept as a part of its policy:

The revolutionary era compels the proletariat to make use of
the means of battle which will concentrate its entire energies,
namely, mass action, with its logical resultant, direct conflict
with the governmental machinery in open combat. All other
methods, such as revolutionary use of bourgeois parliamentarism,
will be of only secondary significance.

From these quotations and numerous other statements which he does not quote (and certainly nothing in the organic documents is more favorable to his view than the extracts reprinted by me):

“It is apparent,” he says, “that the Communist party is not
merely a political party seeking the control of affairs of
state, but a revolutionary party seeking to conquer and destroy
the state in open combat. And the only conclusion is that the
Communist Party of America is an organization that believes in,
teaches, and advocates the overthrow by force or violence of the
government of the United States.”

The last sentence is a complete _non sequitur_. The passages he quotes and the whole Program show that the combat is to be through the proletarian control over industry, which is to be used not merely to secure economic advantages but to put the government in such an uncomfortable position that it will give way to a new kind of government. He lays too much emphasis on the exact wording of the International Manifesto, for although applicants for membership in the Communist Party declare their adherence to the principles and tactics of the Communist International, they are not required to read its manifesto and so cannot be supposed to approve every word. And even if they do, “direct conflict with the governmental machinery in open combat” means lawlessness but not necessarily violent lawlessness. A continuation of the recent coal strike after the injunction would have been just such a conflict without any violence at all. The jargon of Socialism has always been full of such militant phraseology, which does not imply anything more than political and economic effort. “Revolutionary class struggle,” “mass power,” “mass action,” mean big strikes for political ends. Such strikes like any strike might lead to violence, but Secretary Wilson as a former labor leader can hardly hold that advocacy of a strike is _per se_ advocacy of force and violence. Objectionable as the purposes of the Communist Party are to all who have faith in our system of representative government and the possibility of progress through public opinion and the ballot, those purposes are not within the Deportation Act of 1918, for they are altogether compatible with the absence of force and violence. The general strike may be more effective against a government than an armed rebellion, and Congress can if it wants make advocacy of the general strike a ground for deportation, but it is not such a ground now. Secretary Wilson is wrong in assuming that non-political methods of overturning a government are necessarily criminal and violent methods. Francis Place, the tailor, overturned the government of England in 1832 and precipitated a revolution which the vote of the electorate had failed to accomplish, simply by posting placards urging the people to start a run on the banks. There is a middle method of political change between the ballot and the bomb, namely economic pressure, and that, however unwise or injurious in nature, is the method of the Communist Party. It advocates the overthrow of our government, but not by force or violence.

Undoubtedly there are men in the Communist Party who would use force to get rid of their opponents. Every party has such men. Billy Sunday preaches, “If I had my way with these ornery wild-eyed Socialists and I.W.W.’s, I would stand them up before a firing squad and save space on our ships.” Guy Empey tells his hearers to get rid of Bolsheviks; “the necessary implements can be obtained at any hardware store.” The Republican Secretary of the State of Massachusetts would shoot Bolshevists and traitors every morning, at least in war time, and the next morning he would have a trial to see if they were guilty. But such men do not turn their party into a party of force and violence.

There is no sure test of what a party does advocate. The utterances of a leader may represent only his personal view and be rejected by his associates. Even platforms have never been taken very seriously in any party. The law has got itself into a bad mess by starting investigations into the opinions of associations, the vaguest kind of inquiry imaginable. And certainly the evidence adduced by Secretary Wilson, even if it can be construed as an encouragement of violence, is much more capable of a peaceful interpretation. Until he is sure that the violent construction is actually put upon the words by the members of the party, he is not justified in adopting an interpretation which makes possible the expulsion from their homes of thousands of workingmen in the United States.

The Communist Labor Party is also outside the scope of the Deportation Act. Its Program has the same talk about “the conquest of political power by the workers,” “the class struggle,” “action of the masses.” It favors “the establishment of the Dictatorship of the Proletariat” by making “the great industrial battle its major campaigns, to show the value of the strike as a political weapon.”[386] It is a revolutionary working-class party but there is nothing in its Platform or Program which advocates force or violence. As for the ruling of Assistant Attorney General Garvan that the two Communist parties violate the Espionage Act because they are “pledged to fight any suggestion of military action by America against the Soviet Russians,”[387] the widest construction of that convenient statute has never before extended it to prohibit opposition to war before war is declared.

[386] _Ibid._, pp. 414–416. See Secretary Wilson’s opinion in favor of Communist Labor Party, Post Deportations Testimony, 152. Contrast convictions of members under anti-anarchy acts of states.

[387] _New York Times_, January 4, 1920.

(_b_) Even if Secretary Wilson is right in his ruling that some of the tenets of the Communist Party advocate force and violence, it does not necessarily follow that all its members are supporters of violence. It is true that persons joining the Communist Party sign a statement of allegiance to its platform, but this ought not to be taken as conclusive that they favor violence, especially as there is no express mention of violence in that document and the party had not then been declared illegal. The facts show that many persons are affiliated with this party for various innocent reasons. Some believe in peaceful industrial action as the only cure for social ills, some join because their friends do, others without being members of the party frequent its headquarters (and so may be held to be affiliated) to take lessons in physical geography or because the Communist restaurant has better meals at cheap prices than any other place. In Massachusetts, many persons are members of the Communist Party because they belonged to the local state Socialist organization when it seceded last September and turned Communist, and their year’s Socialist membership had not yet expired. Many such men fall within Secretary Wilson’s ruling just as much as the real revolutionists, very few of whom seem to have been caught. When hundreds were lined up together after the recent raids, the _Times_ reported, “They were a tame, unterroristic looking crowd, and their appearance bore out the statements of operatives that not a man had tried to put up a fight.”[388]

[388] Quoted in 21 _New Republic_ 232 (January 21, 1920).

The idea that guilt is not necessarily personal, but can result from mere association is absolutely abhorrent to every American tradition or conception of criminal justice.[389] Therein it differs from the law of Germany. In 1878, after two attempts had been made upon the Emperor’s life, Bismarck secured a law “against the generally dangerous efforts of Social Democracy,” a party which then advocated the doctrine that the existing capitalistic society must be overthrown by forcible revolution. This law made men offenders, not for anything they individually did or said, but simply by reason of their membership in an association which aimed at the overthrow of the existing order of government or society. The party thrived and prospered under this law as never before. When it was repealed, the party became conservative.[390] Similar legislative measures were adopted in England during the hysteria of the French Revolution against associations which advocated universal manhood suffrage, although as May says, the few men who were really guilty of sedition and treason would have met with no sympathy among a loyal people. A statute was passed suppressing by name the “Societies of United Englishmen, United Scotchmen, United Britons, United Irishmen, and The London Corresponding Society” and enacting that any person who thereafter became or continued a member of any such society should be deemed guilty of an unlawful combination and confederacy and upon conviction might be transported for seven years.[391] Other societies were broken up by a general statute punishing any one concerned in taking oaths to engage in any “seditious purpose.” This statute was used nearly forty years later to punish men for membership in a labor union.[392]

[389] Alfred Bettman in Hearings before the Committee on Rules, 66th Cong., 2d Sess., on H. Res. 438, Wash., 1920, pp. 125–128.

[390] Ernst Freund, _The Police Power_, 513 note; 2 Stephen’s _History of the Criminal Law_ 395. Alfred Bettman, _supra_.

[391] 39 Geo. III, c. 79 (1799).

[392] 37 Geo. III, c. 123 (1797); 20 _Columbia L. Rev._ 234 note (February, 1920).

May’s description of England in 1792 applies to this country in 1920, and should stand as a warning.[393]

In ordinary times the insignificance of these societies would
have caused contempt, rather than alarm; but as clubs and
demagogues originally not very formidable had obtained a
terrible ascendancy in France, they aroused apprehensions out
of proportion to their real danger.... The Government gave too
ready a credence to the reports of their agents; and invested the
doings of a small knot of democrats, chiefly workingmen, with the
dignity of a widespread conspiracy to overturn the constitution.
Ruling over a free State, they learned to treat the people in the
spirit of tyrants. Instead of relying upon the sober judgment
of the country, they appealed to its fears, and in repressing
seditious practices they were prepared to sacrifice liberty of
opinion. Their policy, dictated by the circumstances of a time
of strange and untried danger, was approved by the prevailing
sentiment of their contemporaries, but has not been justified in
an age of greater freedom by the maturer judgment of posterity.

[393] 2 May’s _Constitutional History of England_, 32, 33. Aliens are specifically discussed on 156 ff.

Ireland is another country where the policy of guilt by association has been a favorite with the government. In 1825 the Catholic Association, which advocated the admission of Roman Catholics to full civil and political rights, was suppressed by an Act of Parliament declaring unlawful every society acting for more than fourteen days for the purpose of procuring the redress of grievances in church or state, and making membership thereafter a misdemeanor punishable by fine and imprisonment in the discretion of the court. The Catholic Association was dissolved, and its former members started a new society every fourteen days to do exactly the same things. When the statute expired after three years, the Catholic Association immediately revived. In 1829 it was suppressed again by name, but it had accomplished its object of securing Catholic Emancipation.[394] In 1881 the English Cabinet repeated this policy with what Morley, who ought to know, calls “about the most egregious failure in the whole history of exceptional law.” Parnell’s Land League was suppressed by proclamation under authority of a Coercion Act, and hundreds of suspects, including Parnell himself, were arrested and imprisoned, “but the only effect of these measures was largely to increase agrarian crime in Ireland and to strengthen the malign influence of the instigators to violence who had to some real extent been held in check by the imprisoned leaders.”[395]

[394] 6 Geo. IV, c. 4 (1825); 10 Geo. IV, c. 1 (1829); 2 May, _ibid._, 88–93.

[395] 44 Vic., c. 4 (1881); 3 May, _ibid._, 160; Morley’s _Recollections_, II, 818.

It is this policy of guilt by association which our government now proposes to imitate. The American policy has always been different. A man has not been visited with legal penalties because he had bad companions. He has not been imprisoned except for acts which he himself did or injurious words which he himself uttered, and he has not been expelled unless after investigation of his individual qualities he was found undesirable. The deportation clauses against radical organizations were practically a dead letter until these raids. Even with treason, the most dangerous crime of all, he is not guilty just because he associates with treasonable persons. Chief Justice Marshall held in the case of Aaron Burr that he must himself commit overt acts of treason.[396] Unless a man is a member of a conspiracy he is not responsible for the acts of others unless they are authorized by him. And no one contends that the two Communist parties are conspiracies. The Supreme Court has just handed down a decision squarely in point.[397] It held unanimously that the president and treasurer of the Philadelphia _Tageblatt_ could not lawfully be convicted for items in its columns violating the Espionage Act, which were put in by their associates on the newspaper, since they were in no way responsible for the publications complained of. The same principle applies to the rank and file of the Communist parties.

[396] Beveridge’s _Marshall_, III, c. 9.

[397] Schaefer _v._ U. S., 251 U. S. 468; see p. 94, _supra_.

The deportation statutes introduce the European principle that a man is known by the company he keeps and that guilt is not personal. This is an unprecedented and obnoxious feature of the various syndicalist statutes mentioned in the last chapter, and it is equally obnoxious as a ground for expulsion, which, as I have shown, is in all its practical effects equivalent to punishment of the severest kind. These membership clauses in the deportation statutes have never been construed by the Supreme Court, but even if it be held that the power of Congress over aliens is so extensive that expulsion for mere membership in an association without themselves expressing or even holding prohibited opinions is “due process of law” and a permissible abridgment of freedom of speech, nevertheless the clauses are drastic and dangerous.

It would be like some of the obnoxious statutes just mentioned for the Secretary of Labor to rule that the Communist Party is an outlawed organization, and that all aliens who _thereafter_ join it or neglect to withdraw are liable to deportation. It is even harsher to expel them because they were members before the ruling. How many can fairly be supposed to have known until then that that party was within the statute? Its violent character was not so obvious that they can fairly be considered to have assumed the risk of such a severe penalty. To impose banishment on them without warning recalls Bentham’s complaint that the criminal judges of his time gave laws to the poor just as a man makes laws for his dog. “When your dog does anything you want to break him of, you wait until he does it and then you beat him for it. That is the way you make laws for your dog,” and that is the way we are making laws for our radical aliens.

The proposition that men who are personally dangerous must be vigorously dealt with is in no way affected by what I have said about these membership clauses of the deportation statute. Those clauses give administrative officials the right to expel men who are in themselves harmless, and if the free speech and due process clauses do not invalidate them, they are none the less unjust. Burke said in his Speech on the Conciliation of a certain rebellious people, when his opponents wanted a bill “with teeth in it,” that you cannot draw an indictment against a whole nation. You cannot draw it against a whole party either. Those Republicans and Democrats who shout for the deportation or imprisonment of the entire Communist Party because of certain clauses in its platform might recover their sense of humor long enough to ask themselves if they ever endorsed every plank in their respective party platforms. Even Congressmen, party leaders, and Presidents have been known to disregard some such principles. Let us deport men for the injuries they do or, if we must, for what they say, but stop condemning them for the grandiose phrases of a party creed.

People seem to think high-handed acts a matter of indifference, so long as the men who suffer are Communists, like the Spanish woman who did not object to watching autos-da-fé because only heretics were burned.[398] But if the Secretary of Labor has final power to decide whether any organization advocates force or violence, if this is an administrative question of fact like an alien’s having tuberculosis, then there is no logical reason for him to stop with the Communist parties. As we shall see in the next chapter, a very energetic attempt has been made to put the Socialist Party in the same category. The Non-Partisan League, the American Labor Party, the Committee of 48, have all been called forcible revolutionists. The Western Federation of Miners has been accused of violence. Nor is the American Federation of Labor exempt from such charges. The recent steel strike was frequently denounced as revolutionary, and there is no doubt that the Bridge and Structural Iron Workers have blown up many bridges and buildings.[399] Suppose not only that the law punishes individual members of these organizations who commit or even talk violence, but that a future Secretary of Labor shares the opinions of those who believe that the organizations themselves advocate force and violence. Deportations will follow for the purpose of driving these organizations out of existence.

[398] Ernst Freund in 21 _New Republic_ 266 (January 28, 1920).

[399] Hoxie, _Trade-unionism in the United States_, passim.

And even if the wording of the present constitutions of these various bodies makes such a possibility very remote, some future change of language may easily bring any of them within the scope of the statute. Here a very sinister opportunity is afforded to the enemies of any radical organization, whether they be the Federal Government or a state government, unscrupulous employers or a detective agency proceeding on its own initiative, a conservative union or a rival political party. Spies can be sent into the councils of the organization in question, for the purpose of inducing the insertion of violent planks in its constitution. Once this is accomplished, all alien members of the organization are presented with the alternatives of immediate resignation or deportation; to say nothing of the fact that citizen members may face prosecution under a state syndicalism statute or perhaps under a future federal sedition statute like section 10 of the Graham Bill. These clauses in deportation and syndicalist statutes making mere membership a basis for severe penalties render it so easy to destroy any organization in the way I have suggested that the temptation may not be resisted in times of excitement. Indeed, it is believed by Judge Anderson that some of the extreme planks in the Communist Party Platform, to which Secretary Wilson points, may possibly have been inserted in this very manner.

The very existence of spies, whether or not they would thus influence statements of radical principles, is one of the worst evils of sedition legislation, whether directed toward prosecution or deportation. Espionage goes with an Espionage Act. Informers have been the inseparable accompaniment of government action against the expression of opinion since the delators of Tiberius.[400] The state cannot reach such crimes without them. It needs no great force of eavesdroppers to report murders and robberies. The overt act marks the offense, and if a detective is required at all it is either to chase the criminal, to ward off bomb-plots and assassinations, or to discover who is committing especially ingenious thefts. But if political utterances are made criminal, secret police are indispensable to discover that the crime has been committed at all. That was why the original loose Anti-Anarchy Bill introduced in the Massachusetts legislature in 1919 was accompanied by a bill to establish a secret police.[401] The Attorney General was empowered to “make inquiry into any matters concerning the public safety,” and for that purpose to employ “officers, agents, or deputies,” whose names were known only to him and the governor, and to have at his disposal a fund from which disbursements could be made without audit. When the Anti-Anarchy Bill was made less sweeping, the Secret Police Bill became unnecessary and was dropped.

[400] Merivale, _The Romans under the Empire_, c. 44.

[401] Mass. Senate Bill No. 184 (January, 1919). This did not become law.

We do not need to go out of Anglo-Saxon countries to Russia for examples of this system in actual operation. The accounts of the historic English sedition trials are full of the employment of spies at the meetings of political societies. And the spy often passes over an almost imperceptible boundary into the _agent provocateur_, who instigates the utterances he reports, and then into the fabricator, who invents them. There was plenty of this in England, and the same kind of liar, Captain Zaneth of the North West Mounted Police, has just been exposed in Canada after convicting one of the Winnipeg strike leaders on a charge of seditious conspiracy.[402] This dirty business is the price a government must pay for the suppression of political crime. Are we willing to pay that price?

[402] J. A. Stevenson, “A Set-back for Reaction in Canada,” 110 _Nation_ 292 (March 6, 1920).

“The freedom of a country,” writes the historian already quoted, “may be measured by its immunity from this baleful agency.”[403] We have never had it before in the United States, but there is disquieting evidence that this inevitable machinery of sedition-hunters is already at work. At the end of the instructions which W. J. Flynn, Director of the Bureau of Investigation in the Department of Justice, issued, on August 12, 1919, “to all special agents and employees,” ordering an investigation of the promotion of sedition and revolution, which should be particularly directed to aliens with a view of obtaining deportation cases, we find this enigmatic passage:[404]

Special agents will constantly keep in mind the necessity of
preserving the cover of our confidential informants, and in no
case shall they rely upon the testimony of such cover informants
during deportation proceedings.

[403] 2 May, _ibid._, 150.

[404] Investigation Activities of the Department of Justice, 34.

Who these “cover informants” were is disclosed by the _New York Times_[405] in its account of the raids on the Communists four months later:

For months Department of Justice men, dropping all other work,
had concentrated on the Reds. Agents quietly infiltrated into
the radical ranks, slipped casually into centers of agitation,
and went to work, sometimes as cooks in remote mining colonies,
sometimes as miners, again as steel workers, and, where the
opportunity presented itself, as “agitators” of the wildest type.
Although careful not to inspire, suggest, or aid the advancement
of overt acts or propaganda, several of the agents, “under cover”
men, managed to rise in the radical movement, and become, in at
least one instance, the recognized leader of a district.

[405] January 3, 1920. For additional evidence as to the activities of these informants, see the testimony of Captain Swinburne Hale in Hearings before the Committee on Rules, _supra_, note 389; Colyer opinion; Palmer Deportations Testimony, 48, 87 ff., 199; Report upon Illegal Practices.

The Attorney General and his subordinates testify that the Department of Justice employs men who are or have recently been spies in outlawed organizations. One special agent, though never an under-cover informant in the Department, was a spy for the Lusk Committee a short time before as recording secretary of the Buffalo Communist local. The letter of instructions about the raids from Chief Burke of the Bureau of Investigation to his Boston agent, December 27, 1919, whatever its precise meaning, shows that United States employees were active and influential members of both Communist parties:

If possible, you should arrange with your under-cover informants
to have meetings of the Communist Party and the Communist Labor
Party held on the night set.... This, of course, would facilitate
the making of the arrests.

It is to be hoped that these men have been as “careful” as the _Times_ reporter says, and that Mr. Palmer is right in denying his employment of _agents provocateurs_, but we would do well to recall one more warning from May:[406]

The relations between the Government and its informers are of
extreme delicacy. Not to profit by timely information were a
crime; but to retain in Government pay, and to reward spies
and informers, who consort with conspirators as their sworn
accomplices, and encourage while they betray them in their
crimes, is a practice for which no plea can be offered. No
Government, indeed, can be supposed to have expressly instructed
its spies to instigate the perpetration of crime; but to be
unsuspected, every spy must be zealous in the cause which he
pretends to have espoused; and his zeal in a criminal enterprise
is a direct encouragement of crime. So odious is the character
of a spy, that his ignominy is shared by his employers, against
whom public feeling has never failed to pronounce itself, in
proportion to the infamy of the agent, and the complicity of
those whom he served.

[406] 2 May, _ibid._, 151–2. See Graham Wallas, _Francis Place_, N. Y., 1919, 121.

When the litigation growing out of the Communist raids is over, and we can count how many men out of the many thousands arrested are actually deported, and determine how many of those deported are really bad, then only will it be possible to say whether it was worth while instead of deporting the conspicuously dangerous men to go through all this enormous expense, all this spying, arresting, and herding, to save the country from men who in ordinary peace-time conditions were advocating a revolution at some distant and indefinite day through legislative and other propaganda and occasional future unspecified and improbable general strikes.

(2) Industrial Workers of the World

The Industrial Workers of the World have been classified differently from the two Communist parties. Both the Department of Justice and the Secretary of Labor have taken the position, contrary to some state decisions,[407] that the organization does not advocate the unlawful destruction of property. “Its constitution and by-laws have been adroitly drawn so as to avoid the possibility of construing it as teaching either anarchy or sabotage.” Consequently, mere membership is not a ground for deportation.[408] It is evident that local immigration inspectors do not all agree with this view of the organization, for Secretary Wilson has released some aliens who after being carried from Oregon to Ellis Island, declared they joined the I.W.W. without realizing its principles.[409] The leaders, organizers, and distributers of literature, at any rate, are getting deported, and this action has been sustained by United States courts in Washington and Oregon on the ground that there is some evidence to justify the administrative order of expulsion.[410] One judge has cancelled the naturalization of an I.W.W. organizer, who at the time he became a citizen approved of sabotage and indorsed the preamble and constitution of the organization.[411] The judge said that since the I.W.W. is “opposed to all forms of government, advocates lawlessness, and constructs its own morals, which are not in accord with those of well-ordered society,” but are “adapted by design to the demoralization and degradation thereof,” its adherents must _ipso facto_ be guilty of fraud in declaring that they are attached to the principles of the United States constitution. Therefore, they cannot become citizens, and if they do, the right can be taken away and deportation follows. The Districts Courts go further than Secretary Wilson, since they denounce the organization itself and regard all members of the I.W.W. who understand and approve its tenets as barred from citizenship and within the Deportation Act, whether or not they have personally advocated violence. There is, of course, no question that many alien officers and members have preached sabotage, and are deportable.

[407] State _v._ Moilen, 140 Minn. 122 (1918); and the injunction mentioned on p. 193, _supra_; also State _v._ Lowery, 104 Wash. 520 (1918), which refused to admit in evidence the Report of the President’s Mediation Commission.

[408] Investigation Activities, etc., 33; letter of W. B. Wilson to John E. Milholland, 110 _Nation_ 327 (March 13, 1920).

[409] _New York Times_, March 18, 1919. See adverse editorial, March 19. Officials of the Department of Justice are reported, _ibid._, February 11, as asserting that mere membership is enough, so that “it will be impossible for that organization to continue in existence.” The Ellis Island I.W.W.’s would have been discharged by a judge if they had not been released.—Post Deportations Testimony, 207.

[410] _Ex parte_ Bernat and Dixon, 255 Fed. 429 (1918); Guiney _v._ Bonham, 261 Fed. 582 (C. C. A., 1919); and see administrative decisions in “The Anarchist Deportations,” 21 _New Republic_ 96 (December 21, 1919); and Charles Recht, _American Deportation and Exclusion Laws_. _Cf._ U. S. _ex rel._ Grau _v._ Uhl, 262 Fed. 532 (1919).

[411] U. S. _v._ Swelgin, 254 Fed. 884 (1918).

It is unnecessary to repeat here what was said in the preceding chapter about the wisdom of coercion against the propagandist activities of the I.W.W., as distinct from the commission of sabotage and other violence, which of course must be vigorously punished. I will only add that the Department of Labor should be sure that the organization against which it employs this great power is fundamentally revolutionary and not at bottom a labor union. The use of deportation to break up unions, little as I sympathize with them, seems to me to be wholly wrong. It is said, for instance, that when the Chinese workers in New York chop suey restaurants organized a union and struck on New Year’s Eve, 1918, the leaders were arrested for deportation.[412] The facts of another case are given in the decision of a United States judge, who discharged the alien held for deportation:

From August, 1918, to February, 1919, the Butte Union of the
Industrial Workers of the World was dissatisfied with working
places, conditions, and wages in the mining industry, and to
remedy them was discussing ways and means, including strike if
necessary. In consequence, its hall and orderly meetings were
several times raided and mobbed by employers’ agents, and federal
agents and soldiers duly officered, acting by federal authority
and without warrant or process. The union members, men and women,
many of them citizens, limited themselves to oral protests,
though in the circumstances the inalienable right and law of
self-defense justified resistance to the last dread extremity.
There was no disorder save that of the raiders. These, mainly
uniformed and armed, overawed, intimidated, and forcibly entered,
broke, and destroyed property, searched persons, effects, and
papers, arrested persons, seized papers and documents, cursed,
insulted, beat, dispersed, and bayoneted union members by order
of the commanding officer. They likewise entered petitioner’s
adjacent living apartment, insulted his wife, searched his person
and effects, and seized his papers and documents, and in general,
in a populous and orderly city, perpetrated a reign of terror,
violence, and crime against citizen and alien alike, and whose
only offense seems to have been peaceable insistence upon and
exercise of a clear legal right.

[412] _American Labor Year-Book_, 1919–20, p. 113. _Ex parte_ Jackson, 263 Fed. 110 (1920), Bourquin, J. The whole decision should be read. The attitude of the government toward labor unions outside the A. F. of L. is shown by the Attorney General’s statement about the Amalgamated Clothing Workers, Palmer Deportations Testimony, 196, 197.

This opens up dangerous possibilities of influence not only by employers but also by rival conservative unions to secure the annihilation of radical labor organizations through wholesale arrests and expulsions. I believe that the eventual disappearance of the I.W.W. is highly desirable, but Congress ought to consider carefully in the light of the English experience with the Irish Land League whether the deportation of all intelligent alien members is the best method to obtain that result.

The government ought not to be satisfied to base such drastic action merely on an examination of the literature of the organization by men who are unfamiliar with its economic background. An alternative plan for dealing with the very difficult problem of this organization would be a vigorous suppression and punishment by state law of acts of sabotage, while the Federal Government before arresting or deporting any more members should ascertain the possibility of curing the causes of the revolutionary character of the I.W.W., such as the permanent presence of a large body of migratory labor, homeless, wifeless, jobless. The Department of Labor has at hand for purposes of consultation men who have studied the I.W.W. carefully and men who aroused the enthusiastic efforts of its members in war industries.[413] Such a conference might evolve a new and more satisfactory policy.

[413] See Bibliography, on I.W.W.

For example, deportation does not seem quite the right way to handle the case of John Meehan,[414] who was arrested in Everett, Washington, in May, 1917, for violation of a local anti-billboard law, and then ordered deported as an I.W.W. to England, from which he came twenty-four years ago. After eighteen months of incarceration he was landed, hatless, penniless, and with insufficient clothing, in England, where he has neither kith nor kin.

[414] Charles Recht (counsel for Meehan), _American Deportation and Exclusion Laws_, p. 9.

(3) Anarchists

Anarchists have long been subject to exclusion and expulsion. If the term be taken in the popular sense of supporters of bomb-throwing and assassination generally, the statute is undoubtedly constitutional, and has been so held by the Supreme Court[415] in sustaining the exclusion of an Englishman named Turner. The case possesses some literary interest, for one of his counsel was Edgar Lee Masters, whose acid-bitten portraits of life at Spoon River have indicated possibilities of improvement in American life.

[415] Turner _v._ Williams, 194 U. S. 279 (1904).

It is well known, however, that anarchism has no necessary connection with violence. It really means the belief which opposes every kind of forcible government and favors the abolition of all coercion over the individual by the community.[416] Philosophical anarchists argue that most governmental action is required because of inequalities in property, and point to many activities of life where these inequalities do not operate and coercion has been found unnecessary. For example, if a number of friends are cruising on a sloop, they require no policeman to keep order or compel each person to do his allotted task. Mutual agreement and the desire to achieve praise and avoid blame from one’s companions furnish sufficient incentive to right action. The anarchist looks forward to the time when life will be such a perpetual holiday, and hopes to convert all men to the same faith in human nature. While waiting and working for the millennium, he will, with rare exceptions, think it consistent with his theories to render obedience to existing laws, until they shall disappear forever. Kropotkin and Tolstoi in Russia, Herbert Spencer and Bertrand Russell in England, have at least been strongly influenced by this view that all government is evil. It is obvious that such men and many others have no desire to employ force to end force, but seek to attain their ideal system gradually and peacefully through discussion and education.

[416] Bertrand Russell, _Proposed Roads to Freedom_, 32.

These philosophical anarchists caused much perplexity in the early days in this country, even to such a strong champion of soul-liberty as Roger Williams, who argued for their suppression in his celebrated letter of 1655 to the people of Providence:[417]

There goes many a ship to sea, with many hundred souls in one
ship, whose weal and woe is common, and is a true picture of a
commonwealth or a human combination or society. It hath fallen
out sometimes that both Papists and Protestants, Jews and Turks,
may be embarked in one ship; upon which supposal I affirm, that
all the liberty of conscience that ever I pleaded for, turns upon
these two hinges—that none of the Papists, Protestants, Jews,
or Turks, be forced to come to the ship’s prayers or worship,
nor compelled from their own particular prayers or worship,
if they practise any. I further add, that I never denied that,
notwithstanding this liberty, the commander of this ship ought to
command the ship’s course, yea, and also command that justice,
peace, and sobriety, be kept and practised, both among the
seamen and all the passengers. If any of the seamen refuse to
perform their services or passengers to pay their freight; if any
refuse to help, in person or purse, toward the common charges or
defense; if any refuse to obey the common laws and orders of the
ship, concerning their common peace or preservation; if any shall
mutiny and rise up against their commanders and officers; if
any should preach or write that there ought to be no commanders
or officers, because all are equal in Christ, therefore no
masters nor officers, no laws nor orders, nor corrections, nor
punishments;—I say, I never denied, but in such cases, whatever
is pretended, the commander or commanders may judge, resist,
compel, and punish such transgressors, according to their deserts
and merits. This, if seriously and honestly minded, may, if it
so please the Father of Lights, let in some light to such as
willingly shut not their eyes.

[417] Moses Coit Tyler, _History of American Literature_, II, 261.

However, when government became stronger in this country and stood ready to punish any of these men who actually disobeyed the law, it was realized that they presented no danger merely because of their thought and teachings. Many Quakers in the Colonies refused to participate in government because of the New Testament teachings of non-resistance. A similar philosophy was held by many great Americans in the 1840’s when as Emerson said, with a twinkle in his eye, every reading man went round with a draft of a new community in his waistcoat pocket. The famous settlements at Brook Farm and Fruitlands were peopled by just such persons.

The Deportation Act of 1918 undoubtedly applies to these peaceful disbelievers in organized government as well as to the bombers, and so did all the statutes since 1903, but the power of Congress to bar them out has never been upheld by the Supreme Court. In the decision just mentioned, which involved only the exclusion of a violent anarchist, Chief Justice Fuller said nothing at all about expulsion, but suggested in passing that Congress could exclude even innocent anarchists if it was of the opinion “that the _tendency_ of the general exploitation of such views is so dangerous to the public weal that aliens who hold and advocate them would be undesirable additions to our population.” On the other hand, Justice Brewer, in concurring, expressly refused to determine the right of an alien, if only a philosophical anarchist, “one who simply entertains and expresses the opinion that all government is a mistake, and that society would be better off without any.”[418]

[418] 194 U. S. 294, 296; italics mine.

The public does not realize that it is men of this type as well as violent anarchists whom the government is now sending out of the country after long residence, during which they have necessarily remained aliens since the law forbids their naturalization. Take, for instance, the case of Frank R. Lopez, a Spaniard of the Ferrer school. This man has been in the United States seventeen years, belongs to the A. F. of L., is married, has a son born in this country, owns his own home, and has always been a law-abiding member of society. Yet he has been ordered deported to Spain because he held and expounded, in speech and writing, views which Judge Rogers of the Circuit Court of Appeals in New York expressly stated to be only philosophical anarchism and in no sense advocacy of a resort to force and revolution. Judge Rogers upheld the order of deportation because of the following testimony of Lopez[419] before the immigration inspector:

Q. Do you believe in or advocate the overthrow by violence or
force of the government of the United States? A. No, sir.

Q. Any other government, Spanish, or Italian, or Mexican? A. No,
sir; our ideals are founded on education.

Q. What are your ideals? A. Free thinking.

Q. Don’t you believe in the power of authority? A. What do you
mean?

Q. Organized government. Don’t you think, if the President gives
an order when Congress empowers him, that it should be obeyed? A.
Yes; the orders should be obeyed.

Q. Do you believe in the propriety of assassination of public
officials of the United States or any other government? A. No,
sir; not only of officials, but of nobody. Everybody has a right
to live.

Q. Do you believe in anarchy? A. What do you mean by anarchy?