Chapter VIII: Section 4: of the same Title punishes persons conspiring to violate (4)

That these predictions of what will happen in a petty war are by no means exaggerated is proved by what has been done under the Espionage Act in a time when there is no war at all—except by a legal fiction. First, the Attorney General, a year after the armistice, raided and closed the office of the _Seattle Union-Record_, because it urged the workers to kick the governing class into the discard at the next election, and said that the Centralia shootings were the culmination of a long series of illegal acts by ex-service men, pleading for law and order by rich and poor alike.[191] Secondly, thirteen months after the armistice, Mr. Burleson still kept the _New York Call_ from the mails, and announced to the Supreme Court of the District of Columbia that in view of the facts, his exercise of judgment was “not subject to be reviewed, reversed, set aside, or controlled by a court of law.”[192] Thirdly, fourteen months after all fighting had stopped three men were tried in Syracuse for distributing circulars in the autumn of 1919, describing ill-treatment of political prisoners, calling an amnesty meeting, and requesting that letters be written to the President and members of Congress. The leaflets quoted the First Amendment, _Ex parte_ Milligan, and a speech by President Wilson. The defendants were convicted and sentenced to eighteen months in prison for disloyal language about our form of government and the military forces, language designed to bring them and the Constitution into contempt, inciting resistance to the United States, and obstruction of recruiting.[193]

[191] Anna Louise Strong, “A Newspaper Confiscated—and Returned,” 109 _Nation_ 738 (Dec. 13, 1919). Indictments of the editors for items published during the year after the armistice were quashed in U.S. _v._ Strong, 263 Fed. 789; U.S. _v._ Listman, _ibid._ 798; U.S. _v._ Ault, _ibid._ 800. For the other side, see Ole Hanson, _Americanism versus Bolshevism_, N.Y., 1920.

[192] United States of America _ex rel._ The Workingmen’s Co-operative Publishing Association _v._ Burleson, Supreme Court, Dist. Col., Oct. Term, 1919, Law No. 63134. Answer of Respondent.

[193] 21 _New Republic_ 302 (Feb. 11, 1920); “Bringing the Constitution into Disrepute,” 21 _ibid._ 330 (Feb. 18, 1920). U. S. _v._ Steene, 263 Fed. 130.

The Supreme Court has never passed squarely on these sections of the Espionage Act of 1918, though some of them were involved in the Abrams case, and it is to be hoped that they will be declared unconstitutional. It would be better yet if they and the whole of section 3 were repealed.

Whatever be decided as to constitutionality, the Espionage Act prosecutions break with a great tradition in English and American law. Only once before has the United States tried to punish political crimes, and the Sedition Act of 1798 with its maximum of two years’ imprisonment wrecked the Federalist party. The Mexican War produced the Biglow Papers, and every stanza in the opening poem would have violated a separate clause of the Espionage Act of 1918, if the slaveholders had drafted such a statute. We fought the Civil War with the enemy at our gates and powerful secret societies in our midst without an Espionage Act.

When the disloyal press was curbed by Burnside and his subordinates, they received sharp telegrams of revocation from Lincoln. The irritation produced by such acts was in his opinion “likely to do more harm than the publication would do.”[194] Undoubtedly he permitted a very large number of arbitrary arrests by Seward and Stanton, or under martial law in the border states. “Must I shoot a simple soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?” But Lincoln’s policy, apart from all questions of its legality, was very different in nature from most of the Espionage Act prosecutions and sentences. He was proceeding against men who were so far within the test of direct and dangerous interference with the war that they were actually causing desertions, and even then he acted to prevent and not to punish. Vallandigham was sent through into the Confederate lines, and left unmolested on his return. Lincoln would not have allowed an old man, a Presidential opponent and the choice of nine hundred thousand American citizens, to lie in prison for sincere and harmless, even though misguided, words, over a year after the last gun was fired.

[194] J. F. Rhodes, _History of the United States_, III, 553; IV, 223–253, 267 note, 467, 473; VI, 78, 96. For Lincoln’s refusal to allow General Burnside and his subordinates to suppress the _Chicago Times_ and other newspapers of Copperhead tendencies in Illinois, Indiana, and Ohio, see also Official Record of the Rebellion, Series II, Vol. V, 723, 741; Series III, Vol. III, 252. On number of arrests, Rhodes, IV, 230 note; Lincoln’s Proclamation suspending _habeas corpus_ for “aiders or abettors of the enemy,” 13 Stat, at L. 734.

The case of _Ex parte_ Vallandigham, 1 Wall. (U. S.) 243 (1863), is sometimes supposed to support the unlimited exercise of the war power to restrict speech. See Ambrose Tighe in 3 _Minn. L. Rev._ 1 (1918). The decision merely holds that the writ of _certiorari_ does not lie to a military tribunal. Nothing is said as to the existence of some other remedy such as _habeas corpus_, or an action for false imprisonment. _Ex parte_ Vallandigham, 28 Fed. Cas. 874 (1863), lends support to Mr. Tighe. The treatment of Vallandigham is considered illegal by Rhodes, _op. cit._, IV, 245–252, and would seem so under _Ex parte_ Milligan. On the South, Rhodes, V, 473, is contradicted by Edward A. Pollard, Jefferson Davis, p. 316. As late as May 19, 1864, a resolution was introduced in the Confederate Congress to inquire if legislation was necessary to prevent press disclosures of military information. 4 Journ. C. S. A. Cong., p. 60.

If the North was a dictatorship, says Rhodes, the South was a socialized state, which was much closer to the situation of all the countries engaged in the World War. There the newspapers were probably under closer control, but there were no prosecutions.

And so in England. Bright and Cobden in the Crimean War, Morley and Lloyd George in the Boer War, were untouched. Even in this war, while the terms of the Defense of the Realm Act are more sweeping than our statute, the administration has been less severe. Those who enforced it have allowed a wide range of discussion and imposed brief sentences, though they sat within sound of the German guns. And of all the nations at war, we alone, three thousand miles from the conflict, still refuse a general amnesty to political prisoners.[195]

[195] This was granted in Italy on November 19, 1918, before the signing of peace and in Germany before the armistice. The French amnesty was October 24, 1919. Sentences under the British Defense of the Realm Act have all expired, being very short; the longest, three years, was commuted to one year. This note comprises only seditious utterances in the war, not treasonable acts like the Bonnet Rouge affair or Irish convictions since the armistice.

Undoubtedly some utterances had to be suppressed. We have passed through a period of danger, and have reasonably supposed the danger to be greater than it actually was, but the prosecutions in Great Britain during a similar period of peril in the French Revolution have not since been regarded with pride. Action in proportion to the emergency was justified, but we have censored and punished speech which was very far from direct and dangerous interference with the conduct of the war. The chief responsibility for this must rest, not upon Congress which was content for a long period with the moderate language of the Espionage Act of 1917, but upon the officials of the Department of Justice and the Post-office, who turned that statute into a drag-net for pacifists, and upon the judges who upheld and approved this distortion of law. It may be questioned too, how much has actually been gained. Men have been imprisoned, but their words have not ceased to spread.[196] The poetry in the _Masses_ was excluded from the mails only to be given a far wider circulation in two issues of the _Federal Reporter_. The mere publication of Mrs. Stokes’ statement in the _Kansas City Star_, “I am for the people and the Government is for the profiteers,” was considered so dangerous to the morale of the training camps that she was sentenced to ten years in prison, and yet it was repeated by every important newspaper in the country during the trial. There is an unconscious irony in all suppression. It lurks behind Judge Hough’s comparison of the _Masses_ to the Beatitudes,[197] and in the words of Lord Justice Scrutton during this struggle against autocracy: “It had been said that a war could not be conducted on the principles of the Sermon on the Mount. It might also be said that a war could not be carried on according to the principles of Magna Charta.”[198]

[196] _Cf._ a similar experience of the Emperor Tiberius: Tacitus, _Annals_, IV, c. 35: “Punitis ingeniis, gliscit auctoritas.” “A man who preaches in the stocks will always have hearers enough.”—Dr. Johnson.

[197] See page 55, _supra_.

[198] Ronnfeldt _v._ Phillips, 35 T. L. R. 46 (1918, C. A.).

Those who gave their lives for freedom would be the last to thank us for throwing aside so lightly the great traditions of our race. Not satisfied to have justice and almost all the people with our cause, we insisted on an artificial unanimity of opinion behind the war. Keen intellectual grasp of the President’s aims by the nation at large was very difficult when the opponents of his idealism ranged unchecked while the men who urged greater idealism went to prison. In our efforts to silence those who advocated peace without victory we prevented at the very start that vigorous threshing out of fundamentals which might to-day have saved us from a victory without peace.