Chapter VI: John Wilkes, Victor Berger, and the Five Members (1)

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]