JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS
If Charles wished to prosecute the five members, a bill against
them should have been sent to a grand jury.—MACAULAY, _Essay on
Hallam_.
It is one of the unfortunate results of governmental action against
freedom of speech that the persons who retain sufficient courage to
come into conflict with the law are often of a heedless and aggressive
character, which makes them unattractive and devoid of personal appeal.
Too often we assume that such persistent trouble-makers are the only
persons injured by a censorship or a sedition law, and conclude from
the indiscreet and unreasonable qualities of their speech and writing
that after all the loss to the world of thought has been very slight.
Too often we forget the multitude of cautious and sensitive men, men
with wives and children dependent upon them, men who abhor publicity,
who prefer to keep silent in the hope of better days. We cannot know
what is lost through the effect upon them of repression, for it is
simply left unsaid.[438] The effort of the agitator is made for their
sake as well as his own, and if he wins the gain to truth comes, not
perhaps from his ideas, but from theirs. The men and women mentioned
in this book, whom reflection has made me consider victims of unwise
and often illegal suppression, are not indeed political prisoners whose
ideals I can share, as I might those of Silvio Pellico or Grotius, and
it may be that even after due allowance has been made for the natural
blindness of a contemporary to the merit of their thinking, that only
one or two among them, like Bertrand Russell, are men whose work has
enduring worth. Yet the views and even the personal qualities of the
victims of persecution have little relation to the justice of their
cause. Few objects of intolerance have touched such a low level of
thought and action, few have rendered more numerous and more valuable
services to liberty than John Wilkes.
[438] Tolstoy once wrote: “You would not believe how, from the very
commencement of my activity, that horrible Censor question has
tormented me! I wanted to write what I felt; but at the same time
it occurred to me that what I wrote would not be permitted, and
involuntarily I had to abandon the work. I abandoned, and went on
abandoning, and meanwhile the years passed away.”—GRAHAM WALLAS, _The
Great Society_, 196.
I. _John Wilkes_
In his person though he were the worst of men, I contend for the
safety and security of the best.—LORD CHATHAM.
“That name,” says Trevelyan, “which was seldom out of the mouths of
our great-grandfathers for three weeks together, had been stained and
blotted from the first.” A rake and a prodigal, unfaithful to the
wife whose fortune he looted for use in election briberies, lacking
in genuine devotion to any political ideal, he nevertheless by sheer
pluck and impudence led the fight to establish in the law of all
English-speaking countries five great principles of freedom: the
immunity of political criticism from prosecution; the publicity of
legislative debates; the abolition of outlawry, which condemned a man
in his absence; the protection of house and property from unreasonable
searches and seizures; and the right of a duly elected representative
of a constituency to sit in the legislature unless disqualified by
law, no matter what personal objections his colleagues may have to his
opinions and writings or to his previous convictions for sedition. So
great were his achievements that he became a household word on this
side of the Atlantic. One of the largest cities in Pennsylvania is
named for him. Men called their children after him. One New England
admirer had three sons, Wilkes, Pitt, and Liberty. In the eyes of
our forefathers he was the most conspicuous combatant against
the doctrine, so obnoxious to them, that men might be maltreated,
imprisoned, exiled, disfranchised, for the supposedly evil tendencies
of their political opinions. The preceding chapters have shown the
gradual revival of that doctrine in our midst, first in war and now in
peace, first against pacifists and pro-Germans, then against radical
aliens, until finally the war with “evil-thinking” has brought us
to the point of governmental action against radical citizens with a
constantly diminishing standard of radicalism, and two of the great
principles for which Wilkes fought amid the applause of our ancestors
are in grave peril, freedom from unreasonable searches and seizures and
the right of the people to choose their representatives.
II. _The Raids of 1763 and the Raids of 1919_
The poorest man may in his cottage bid defiance to all the forces
of the Crown; it may be frail, its roof may shake, the wind may
blow through it; the storm may enter, the rain may enter; but the
King of England can not enter; all his forces dare not cross the
threshold of that ruined tenement.—LORD CHATHAM.
On the 23rd of April, 1763, appeared No. 45 of the _North Briton_,
commenting upon the king’s speech and upon the unpopular peace
recently concluded. It was conducted by Wilkes, who had played a
large part through this newspaper in driving Lord Bute from office
and now castigated his successor, George Grenville, of Stamp Act
fame. Other journalists abused public men under such disguises as
the use of initials, but the _North Briton_ called them by name. The
Ministry resolved to prosecute for libel, but it was unknown who
was the libeler, since those responsible for the newspaper had kept
their identity concealed. Lord Halifax, one of the Secretaries of
State, issued what was then called a general warrant, directing four
messengers to take a constable, search for the authors, printers, and
publishers, and seize them when found, together with their papers.
No one having been charged, or even suspected—no evidence
of crime having been offered—no one was named in this dread
instrument. The offense only was pointed at, not the offender.
The magistrate, who should have sought proofs of crime,
deputed this office to his messengers. Armed with their roving
commission, they set forth in quest of unknown offenders; and
unable to take evidence, listened to rumors, idle tales, and
curious guesses. They held in their hands the liberty of every
man whom they were pleased to suspect. Nor were they triflers
in their work. In three days, they arrested no less than
forty-nine persons on suspicion, many as innocent as Lord Halifax
himself.[439]
[439] 2 May’s _Constitutional History_, 125.
Among the number were Leach, a printer who had printed another
number of the _North Briton_, whose papers were seized; and the
publisher and printer of No. 45, with all their workmen. From them
Wilkes was discovered to be the real offender, and he was carried
off to the Secretaries of State. As soon as he was out of his house,
the messengers returned to it and took entire possession, refusing
admission to his friends. They sent for a blacksmith, who opened the
drawers of his bureau. The messengers dumped his papers, including
his will and pocket-book, into a sack, and went off with them without
even taking an inventory. Wilkes brought an action, not against the
messengers, but against the man higher up, the Under Secretary of
State, who had personally superintended the execution of the warrant.
Chief Justice Pratt, afterwards Lord Chancellor Camden, said of the
warrant:[440]
If such a power is truly invested in a secretary of state, and he
can delegate this power, it certainly may affect the person and
property of every man in this kingdom, and is totally subversive
of the liberty of the subject.
[440] Wilkes _v._ Wood, 19 How. St. Tr. 1167 (1763).
Wilkes recovered £1,000. Then he went still higher, and sued the
Cabinet Minister who had issued the warrant, for false imprisonment,
obtaining £4,000 damages. His associates brought similar actions.
It is said that altogether these suits cost the Grenville Government
£100,000.
This warrant was doubly illegal in failing to specify the persons to be
arrested and in giving no authority to search and seize papers or other
property. Another warrant, issued the previous year because of alleged
libels in the _Monitor_, did specify the author, John Entinck, and
directed that he be seized, “together with his books and papers.” This
warrant was more specific, but not sufficiently so to be legal, for it
did not name the particular papers to be seized, but gave authority
to the messengers to take all his books and papers. Entinck sued the
messengers and recovered £300. Pratt said in this case:[441]
... If this point should be determined in favor of the
jurisdiction, the secret cabinets and bureaus of every subject in
this kingdom will be thrown open to the search and inspection of
a messenger, whenever the secretary of state shall think fit to
charge, or even to suspect, a person to be the author, printer,
or publisher of a seditious libel.
The messenger, under this warrant, is commanded to seize the
person described, and to bring him with his papers to be examined
before the secretary of state. In consequence of this, the house
must be searched; the lock and doors of every room, box, or trunk
must be broken open; all the papers and books without exception,
if the warrant be executed according to its tenor, must be seized
and carried away; for it is observable, that nothing is left
either to the discretion or to the humanity of the officer.
This power so assumed by the secretary of state is an execution
upon all the party’s papers, in the first instance. His house
is rifled; his most valuable secrets are taken out of his
possession, before the paper for which he is charged is found
to be criminal by any competent jurisdiction, and before he is
convicted either of writing, publishing, or being concerned in
the paper....
Papers are the owner’s goods and chattels: they are his dearest
property; and are so far from enduring a seizure, that they
will hardly bear an inspection; and though the eye cannot by
the laws of England be guilty of a trespass, yet where private
papers are removed and carried away, the secret nature of those
goods will be an aggravation of the trespass, and demand more
considerable damages in that respect. Where is the law that gives
any magistrate such a power? I can safely answer, there is none;
and therefore it is too much for us without such authority to
pronounce a practice legal, which would be subversive of all the
comforts of society....
If suspicion at large should be a ground of search, especially in
the case of libels, whose house would be safe?
[441] Entinck _v._ Carrington, _ibid._, 1029 (1765).
The law of this case that search must be by warrant describing the
property to be seized is embodied in the Constitution of the United
States. “Can we doubt,” asks Justice Bradley,[442] “that when the
Fourth and Fifth Amendments were penned and adopted, the language
of Lord Camden was relied on as expressing the true doctrine on the
subject of searches and seizures, and as furnishing the true criteria
of the reasonable and ‘unreasonable’ character of such seizures?” We
had our own grounds for opposing such arbitrary practices. The first of
that long series of contests which led up to the American Revolution
was the attack of James Otis upon the Boston Custom House officers who
were searching for smuggled goods under general warrants. “Then and
there,” said John Adams, “the child Independence was born.”
[442] See the full discussion of the historical background of the
Fourth Amendment in Boyd _v._ U. S., _infra_.
The Fourth Amendment reads thus:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation and particularly
describing the place to be searched, and the persons or things to
be seized.
The United States Supreme Court has made repeated use of this
Amendment[443] to prevent the use of evidence which has been seized
without a search-warrant (even though under a warrant of arrest) or
with a search-warrant which fails to specify the particular papers to
be seized.
[443] Boyd _v._ U. S., 116 U. S. 616 (1886); Weeks _v._ U. S., 232 U.
S. 383 (1914); Silverthorne Lumber Co. _v._ U. S., 251 U. S. 385 (1920).
In Boyd _v._ United States, the federal customs officials, acting under
a statute and with a warrant, compelled the defendant to produce an
invoice which they believed would enable them to forfeit goods. The
Supreme Court held that the evidence could not be used.
Any compulsory discovery ... compelling the production of
his private books and papers, to convict him of crime, or to
forfeit his property, is contrary to the principles of a free
government. It is abhorrent to the instincts of an Englishman;
it is abhorrent to the instincts of an American. It may suit
the purposes of despotic power; but it cannot abide the pure
atmosphere of political liberty and personal freedom.
In Weeks _v._ United States, Justice Day said of a seizure of papers
before indictment:
... This protection reaches all alike, whether accused of
crime or not, and the duty of giving to it force and effect is
obligatory upon all entrusted under our Federal system with
the enforcement of the laws. The tendency of those who execute
the criminal laws of the country to obtain conviction by means
of unlawful seizures and enforced confessions, the latter
often obtained after subjecting accused persons to unwarranted
practices destructive of rights secured by the Federal
Constitution, should find no sanction in the judgments of the
courts which are charged at all times with the support of the
Constitution and to which people of all conditions have a right
to appeal for the maintenance of such fundamental rights.
... The efforts of the courts and their officials to bring the
guilty to punishment, praiseworthy as they are, are not to be
aided by the sacrifice of those great principles established by
years of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land.
The most recent case is Silverthorne Lumber Co. _v._ United States,
decided in January, 1920. After the officers of a corporation had
been arrested, “representatives of the Department of Justice and the
United States Marshal without a shadow of authority went to the office
of their company and made a clean sweep of all the books, papers,
and documents found there.” Photographs and copies were made and the
originals returned. Justice Holmes held that the seizure was “an
outrage,” which prevented the government from making any use of the
copies or even from obtaining a court order directing the corporation
to produce the originals. Thus, under the federal law, an illegal
search and seizure not only subjects the officials and other persons
participating in the raid to civil actions for damages, such as were
brought by Wilkes and his associates, but also prevents the government
from making even the most indirect use by way of evidence of the
purloined material.
It is, of course, necessary and legal that searches should sometimes
be made for the detection of crime. For instance, the person of the
man apprehended as a criminal can be searched without a warrant for a
revolver or burglar’s tools; and search-warrants can be obtained to
look for stolen goods or articles which are retained in violation of
revenue laws. These warrants have such very serious consequences that
they can only be obtained for very urgent and satisfactory reasons, and
the rules of law pertaining to them already mentioned in the discussion
of Wilkes and soon to be stated, are of more than ordinary strictness,
and must be carefully observed. Even duly authorized searches are so
obnoxious in a liberty-loving country, that the law should, as Cooley
points out, be very slow to extend them:[444]
The power of the legislature to authorize a resort to this
process is one which can properly be exercised only in extreme
cases, and it is better oftentimes that crime should go
unpunished than that the citizen should be liable to have his
premises invaded, his desks broken open, his private books,
letters, and papers exposed to prying curiosity, and to the
misconstructions of ignorant and suspicious persons,—and all this
under the direction of a mere ministerial officer, who brings
with him such assistants as he pleases, and who will select them
more often with reference to physical strength and courage than
to their sensitive regard to the rights and feelings of others.
To incline against the enactment of such laws is to incline to
the side of safety. In principle they are objectionable; in the
mode of execution they are necessarily odious; and they tend to
invite abuse and to cover the commission of crime.
[444] _Constitutional Limitations_, 7 ed., 432.
Searches and seizures, whether valid or not, are like spies, the price
that a nation pays for sedition laws, for these can only be enforced
by prying methods. The Espionage Act is careful to include a title
on search-warrants. Over thirty-five big raids by federal officials
took place during the war, sometimes with proper warrants, sometimes
without.[445] Since the armistice, the Espionage Act was used to
close the _Seattle Union-Record_, until a court declared the action
to be invalid.[446] The preceding chapter has shown the absence of
search-warrants in the recent deportation round-ups, which should
not only result in the release of most of the aliens, but subject
the members of the Department of Justice, including Attorney General
Palmer, to the same kind of civil actions which Wilkes sustained
against Lord Halifax, the Secretary of State.
[445] Act of June 15, 1917, c. 30, Title XI. For a list of raids, see
_War-time Prosecutions_, 38–40.
[446] Chapter II, note 191.
The best known instance of searches and seizures, is, however, the
spectacular series of raids conducted in June, 1919, by a joint
committee of the New York Senate and Assembly. Probing committees seem
indigenous to New York. They had one in 1780 to detect and defeat
conspiracies of Loyalists.[447] On March 26, 1919, the legislature
adopted a joint resolution, which, after reciting that a large number
of persons within the state were circulating propaganda calculated
to overthrow the government of the state and nation, and that it was
the duty of the legislature to learn the whole truth regarding these
seditious activities and pass appropriate laws, appointed a committee
of six “to investigate the scope, tendencies, and ramifications of such
seditious activities, and to report the result of its investigation to
the Legislature.” The committee had power “to compel the attendance of
witnesses and the production of books and papers,” and was in general
a legislative committee. In no sense was it a body for the prosecution
of crime.[448]
[447] Minutes of the Commissioners for Detecting and Defeating
Conspiracies in the State of New York, ed. V. H. Patsits, N. Y., 1909.
See also on anti-Loyalist legislation in New York, establishing test
oaths, Cummings _v._ Missouri, 4 Wall. 277, _passim_.
[448] Concurrent Resolution, March 26, 1919.
There were in New York several headquarters of radical organizations
which this Lusk Committee, so called because of its chairman,
determined to investigate. If the officers of these organizations
had been served with a _subpœna duces tecum_, the usual order to
produce any books and papers that were wanted, which as just stated
the Committee had power to issue, no reason has ever been shown to
believe that such material would not have been forthcoming. Instead,
the Committee proceeded to take out search-warrants and raid the
organizations, one after another, throwing their entire offices into
hopeless confusion. New York has not a constitutional provision,
like the Fourth Amendment, but its Civil Rights Law enacts precisely
the same words, and the Code of Criminal Procedure is very explicit.
Also no person can be compelled in any criminal case to give evidence
against himself.[449] It is possible that the federal rule against the
use of illegally seized evidence does not prevail in New York,[450]
but the test of what is illegal remains the same and renders liable to
civil and criminal penalties and to the condemnation of all law-abiding
persons any officials who conduct lawless and disorderly searches and
seizures, especially when they act in the name of law and order.
[449] I Birdseye & Gilbert, Consol. Laws, 2d ed., 1079, § 8; Code of
Criminal Procedure, §§ 791–813; N. Y. Cons., Art. I., § 6. See Boyd
_v._ U. S., 116 U. S. 616, on self-incrimination in connection with
searches.
[450] P. _v._ McDonald, 177 N. Y. App. Div. 806 (1917).
It is true that the Lusk Committee obtained search-warrants for its
raids, but this does not render the proceedings valid unless the
warrants complied with the definite requirements of the law, which
are as follows: (1) Property may be seized even though no crime has
been committed, if it is held or concealed with the intent to use it
as the means of committing a public offense, for example, infernal
machines.[451] A man’s privacy must not be invaded for the sole
purpose of obtaining evidence against him, but only to obtain a
dangerous instrument of past or future crimes. (2) The warrant is to
be issued by a judicial officer, after a showing made before him under
oath that there is probable cause for suspicion of a crime and the
concealment of articles involved in it, which must be particularly
described by the affidavit. (3) The magistrate must examine on oath the
complainant and any witnesses he may produce, take written depositions
subscribed by the witnesses, and satisfy himself that there is probable
cause to believe the suspicion of crime is well founded. The suspicion
itself is no ground for the warrant except as the facts justify
it.[452] (4) The warrant must specify the place to be searched and the
precise objects to be seized. Very great particularity is required,
and not such blanket descriptions as “goods, wares and merchandises,”
or, as Entinck’s case proved, “his books and papers.” In other words,
there must be a real exercise of discretion on the part of the judge or
magistrate, and he must not be a mere rubber stamp for any government
official who wants a hurry-up warrant to clean out somebody’s house
or office. (5) The warrant must command that the articles to be
searched for be brought before the magistrate, to the end that, upon
further examination into the facts, the goods, and the party in whose
custody they were, may be disposed of according to law. And it is a
fatal objection to such a warrant that it leaves the disposition of
the articles to the searching officer, instead of enabling the judge
to determine by investigation the truth of the complaint made. The
property must be delivered in conformity with the warrant, together
with a detailed written inventory.[453] A hearing is then to be held,
and if the grounds for the warrant fail, the property must be returned.
(6) The magistrate must send the depositions, warrant, and inventory,
to the court which has power to inquire through a grand jury into
the offense in respect to which the warrant was issued. The New York
statutes and decisions are explicit on all these matters, and make it
a misdemeanor to procure a warrant maliciously and without probable
cause, or for an officer to exceed his authority or exercise it with
unnecessary severity.[454]
[451] Cooley, _op. cit._, 431, doubts the validity of warrants for
preventive purposes. However, the _N. Y. Code of Crim. Proc._, § 792,
is explicit. In some cases, preparation of the dangerous object might
amount to a criminal attempt.
[452] Cooley, _op. cit._, 429; _Code Cr. Proc._, §§ 793 ff.; Gaynor,
J. (afterwards Mayor), in Matter of Blum, 9 Misc. 571 (1894), in
nullifying a warrant of arrest issued on information and belief: “Human
liberty was never so cheap as that under our law.... It is important
that crime should be punished, but far more important that arbitrary
power should not be tolerated. The ‘oath or affirmation’ required is of
facts.” Comfort _v._ Fulton, 39 Barb. 56 (1861), _accord_.
[453] Cooley, 431; _Code Cr. Proc._, §§ 797, 805 ff.
[454] Notes 12, 13, 15, 16, 19–20; Sanford _v._ Richardson, 176 N. Y.
App. Div. 199 (1916).
Let us consider how these requirements were observed in the various
raids. The first was against the Bureau of the Representative of the
Russian Socialist Soviet Republic in the United States,[455] which had
been established in April, 1918, in the World Tower Building, by L. C.
A. K. Martens, the as yet unrecognized “ambassador” of the Republic
in the United States. An agent of the Committee made affidavit to a
magistrate that he had picked up a typewritten document from the floor
of the Bureau entitled “Groans from Omsk,” apparently a call to the
workingmen of Omsk to establish a Soviet form of government, and that
the Bureau was “engaged in the distribution of literature calculated
to stimulate revolutionary activities in this state.” A search-warrant
was then issued in blanket form authorizing the seizure of “All
documents, circulars, and papers printed or typewritten, having to do
with Socialist, Labor, Revolutionary, or Bolshevik activities; all
books, letters, and papers pertaining to the activities of said Bureau,
all circulars and literature of any sort, kind, or character;” in the
words of the _Times_, “practically everything that might be construed
as documentary evidence in the place.” These were to be brought
forthwith before the magistrate at his office. On June 12, 1919, a
squad of the State Constabulary took possession of the Bureau, excluded
all persons in charge, and ransacked every drawer and cabinet for
papers and other material, even breaking open the cash-box. Hundreds
of books and pamphlets, Martens’s private bank books, and all letters
and other documents in the files were taken away in disorder, including
more than a thousand letters of American business concerns relating to
the shipment of merchandise to Russia. All these papers were taken on
trucks, not to the magistrate, but to the office of the Lusk Committee
in the Prince George Hotel, where it is charged that they were examined
not only by members of the Committee, but by an agent of the British
Secret Service, who shortly afterwards departed for England with the
information that he had obtained. It is, of course, well known that
Great Britain may soon resume business relations with Russia. This
charge is denied by the Committee, and the investigation proposed by
the Socialist Assemblymen lapsed upon their expulsion. Letters taken
from the Bureau were read into the record of the Lusk Committee,
and disclosed to the press, besides the names of a large number of
persons on the mailing list of the Bureau, although there was nothing
to indicate that they were in any way connected with its work, or
sympathized with its aims. None of this material was ever delivered
to the magistrate who issued the search-warrant or steps taken to
institute criminal proceedings. The seized papers and books were merely
used as the basis for the Committee’s subsequent examination of Martens
and his associates, in order to prepare a report to the legislature and
provide fire-eating material for the newspapers.
[455] For a description of the Bureau’s work, see _American Labor
Year-Book_, 1919–20, 383–386. The raid is narrated in _New York Times_,
June 13, 1919, and following days. See Bibliography.
The Appellate Division of the New York Supreme Court has declared:[456]
Under the broad provisions of the Fourth Amendment to the Federal
Constitution and of our Bill of Rights, which is substantially
the same as that enacted in the other States of the Union,
it has been held that the right to security of one’s person,
house, papers and effects against unreasonable searches and
seizures extends as well to letters and sealed packages, and
prohibits searches for property other than those to aid in the
administration of the criminal law.
[456] Matter of Ehrich _v._ Root, 134 N. Y. App. Div. 432, 438 (1909).
If it be urged that the Lusk Committee was acting to obtain evidence
as the basis of a criminal prosecution against this Bureau and its
affairs, the proceeding was still more invalid, because it would compel
persons to give evidence against themselves contrary to the New York
Constitution. That the legislature intended by a mere joint resolution
to confer upon a committee “a power far in excess of that conferred
upon any tribunal or official—a power so extreme as to be despotic
in its character” is unthinkable. The same court has said that the
right against unnecessary searches and seizures and the right against
self-incrimination are “the complements of each other, directed against
the different ways by which a man’s immunity from giving evidence
against himself may be violated.”[457]
No inquisitorial officer should be permitted, of his own
volition, arbitrarily and without any check or safeguards upon
the rights of the citizen, to compel him to produce and submit
to his scrutinizing gaze all his books and papers of the most
private and confidential character.... Nor is it any answer
to say that this examination is not sought in any criminal
proceedings. In the absence of a full and complete statute of
indemnity, a person should not be compelled, when acting as a
witness in any investigation, to give evidence which may tend to
imperil his constitutional privilege.... Compulsory process to
produce such papers, not in a judicial proceeding, but before a
commissioner of inquiry is as subversive of “all the comforts of
society” as their seizure under the general warrant.
[457] Matter of Foster, 139 N. Y. App. Div. 769 (1910). See also _Ex
parte_ Clarke, 126 Cal. 235 (1899).
If any business man will consider what it would mean to have a number
of men breaking into his office with such a blanket warrant and close
his business for a day, turn all his letter files into confusion, and
carry off some of his most important correspondence for disclosure
to outsiders, he will see what is the possible result of encouraging
lawlessness of this kind. We are disposed to pardon raids of this sort
because they are against radicals. We ought to remember that the same
methods may be used by any other investigating committee, for instance,
for the purpose of learning why prices are high, in which case they
might be employed against any wholesale or retail establishment.
The Lusk Committee next raided the Rand School, on East Fifteenth
Street, near Fifth Avenue, a Socialist and Labor college, established
in 1906, and having over 5,000 registered students. Its methods are
those of any other institution of higher education, and its work is
stated by its Director to fall into two parts, “that which offers
opportunities for the general public to study Socialism and related
subjects, that which gives Socialists such systematic instruction and
training as may render them more efficient workers in and for the
Socialist Party, the Trade Unions and the Co-operatives.”[458] It
also conducts a large reference library and reading room, containing
several thousand volumes, pamphlets, and periodicals, open to the
public without charge, and a book store, doing a large mail-order
business, chiefly, though by no means exclusively, in books and
pamphlets relating to social and labor questions. It is supported
partly from this store and its moderate tuition fees and partly by
private contributions. Except for the fact that its owner, the American
Socialist Society, had been convicted under the Espionage Act for
publishing Scott Nearing’s _Great Madness_,[459] it had never come in
conflict with the law.
[458] _American Labor Year-Book_ 1919–20, pp. 206–8, 109–112. The raid
is narrated in _New York Times_, June 22, 1919, and following days. See
Bibliography.
[459] See Appendix II and page 27, _supra_.
On June 21, agents of the Committee appeared with ten state troopers
and forty ex-members of the American Protective League (now disbanded
by the Department of Justice), carrying another blanket warrant,
authorizing the seizure of “All publications, documents, books,
circulars, letters, typewritten or printed matter having to do with
Anarchists, Socialists advocating violence, revolutionary or Bolshevist
activities, and all books, letters, and papers pertaining to the
activities or business carried on in said offices, and all circulars
and letters of any sort, kind, or character.” This was obtained
on affidavit that certain books and pamphlets which the informant
purchased in the public book shop on the ground floor contained
“revolutionary, seditious, and obscene statements.” A number of the
raiders carried arms. They proceeded to ransack all the rooms on the
ground floor of the school and load the papers into trucks, which as
before were not taken to the magistrate, but to the headquarters of
the Lusk Committee. Two days later the raiders returned to the school
with a new warrant obtained on affidavit that three persons had been
heard to say at the school, “It is a good thing they haven’t opened
the big safe on the third floor.” Safe experts were directed to drill
a hole in the three-ton safe and open it. The raiders then removed all
the correspondence, check stubs, accounts, and minutes of the meetings
of the American Socialist Society. The Director of the school drew the
attention of the state troopers to the fact that these papers clearly
fell outside the warrant. He replied, “Oh, that ain’t what we’re after.
We want to get at the source of the financial support of the Rand
School.” The Committee, without having any one from the Rand School to
explain the papers and the purposes of the school, immediately gave
all kinds of prejudicial reports to the press throughout the country.
It will be recalled that the function of the Committee was to report
to the Legislature. The Attorney General began an action to dissolve
the charter of the Rand School, which was ignominiously dropped at the
first sign of a fight. He could not even produce a _prima facie_ case.
Mr. Samuel Untermeyer, who, though not a Socialist, undertook the
school’s case without pay, wrote to Senator Lusk:
There is a library connected with the Rand School, which conducts
also a book store for the sale of books and periodicals. Its
printed catalogue, which I have now seen for the first time,
embraces thousands of books, mainly classics and economics,
among which, it appears, you have discovered one periodical and
two or three books from which you have extracted and published
occasional sentences containing discussions on birth control,
revolutionary changes in government, and the like. You have
deliberately attempted to distort these few instances in the
public prints so as to create the false impression that this is
the general character of the teachings of the School, when in
point of fact the School appears to be an educational institution
of an unusually high order, with courses of studies taught by
some of the most eminent professors in the country, most of them
holding positions in the great universities of the country.
The New York Public Library and probably every other great public
library and book store has on its shelves hundred of books of
the character you condemn to every one that the Rand book store
or library contains. Why not seize their property and blow open
their safes, under an improvidently granted warrant and try to
close their doors?... You might with equal justification have
raided any book store in New York City.
These searches were illegal: (1) the affidavit stated no probable
cause of use of the papers for crime, but only the court’s rumors and
suspicions of something objectionable; (2) the complainant was not
examined by the magistrate, who took no pains to satisfy himself of
a valid cause for search; (3) the warrant did not particularly state
the articles to be seized, but was as bad as that against Entinck,
or worse; (4) a large portion of the correspondence and other papers
seized could not possibly be instruments of crime; (5) the papers were
not taken to the magistrate; (6) the whole affair had no connection
with any criminal proceeding, but was half legislative investigation
and half advertising.
Massachusetts has a constitutional provision in its Bill of
Rights[460] like the federal Fourth Amendment, requiring the same
particular description of the articles to be seized. Nevertheless,
the district attorney of Middlesex County raided a book-bindery in
Cambridge and carried off forty-five hundred red-bound copies of _The
Proletarian Revolution in Russia_, by N. Lenine and Leon Trotsky,
a collection of documents on recent events, by virtue of a warrant
authorizing the seizure of obscene literature. In Boston, the police
raided a Communist hall with a warrant setting up that firearms were
illegally on the premises,[461] but as the _Boston Herald_ naïvely put
it, “they had accurate information which made it possible for them
to seize the _papers_ they sought almost as soon as they entered the
hall.” If they could seize papers on such a warrant, they could enter
a house and take silverware. And this in the state where James Otis
denounced general warrants as “the worst instrument of arbitrary power,
the most destructive of English liberty and the fundamental principles
of law, that ever was found in an English law book,” since they placed
“the liberty of every man in the hands of every petty officer.”
[460] Part First, Art. XIV. 3d District Court, E. Middlesex, No. 2972,
Nov. 12, 1919. The court found there was no obscenity and the books
were returned.
[461] _Boston Herald_, December 18, 1919; italics mine. Gun warrants
are authorized by Mass. Laws, 1919, c. 179.
III. _The Exclusion of Wilkes from the House of Commons_
Dr. Johnson: “Is there not a law, Sir, against exporting the
current coin of the realm?”
Wilkes: “Yes, Sir: but might not the House of Commons, in case
of real evident necessity, order our own current coin to be sent
into our own colonies?”
Dr. Johnson: “Sure, Sir, _you_ don’t think a resolution of the
House of Commons equal to _the law of the land_?”
Wilkes: “God forbid, Sir.”
We now return to a second great principle established by Wilkes. The
Grenville Government, which found him such an expensive opponent,
brought an information against him for seditious libel on account
of what would now be considered an ordinary political editorial. He
was a member of the House of Commons. The House ordered the newspaper
to be burned by the common hangman and summoned Wilkes to attend for
further proceedings. Meanwhile the government encouraged bullies to
make way with him. Forced into a duel, he fled to France. Evidence was
taken of his being the author and publisher of the _North Briton_,
No. 45, and he was expelled for the seditious libel published during
his term as member of Parliament. May considers that this expulsion
was legal, but precipitate and vindictive, for Wilkes was about to be
tried for his offense, and the House might at least have waited for his
conviction, instead of prejudging his cause and anticipating his legal
punishment.[462] Later he was convicted in his absence, and outlawed
for contumacy.
[462] 1 May, _Constitutional History_, 312.
Four years went by, the general election of 1768 was approaching, and
he returned from exile to stand for Parliament. After a defeat in the
City of London, he presented himself as a candidate for Middlesex. The
working people allowed no man to travel to the polls without a paper in
his hat inscribed, “Number 45. Wilkes and Liberty!” Convict and outlaw
as Wilkes was, his vote was overwhelming.
After his election, Wilkes surrendered himself into custody, and
went to jail. Lord Mansfield reversed the outlawry, and Wilkes was
sentenced, on the original charge of seditious libel, to nearly two
years in prison. Obviously, the King should have pardoned him. His
sentence was unwarranted, and its remission would have relegated him,
as Trevelyan puts it, “to an obscurity whence, but for the infatuation
of his enemies, he would never have emerged.” A feeble speaker, he
would have been negligible; in the words of Junius, “a silent senator,
and hardly supporting the eloquence of a weekly newspaper.” But the
King and the Cabinet were his implacable enemies and he was left in
prison. And, then going back forty years to the precedent of a member
who had been expelled for forgery, the House of Commons declared
Wilkes’s seat to be vacant by a vote of two hundred and nineteen to one
hundred and thirty-seven.
A new election was held, and though still in prison, he was re-elected.
The House next day voted that, having been expelled, he was incapable
of serving in Parliament. A third election followed with the same
result. Burke told his fellow members that Wilkes had grown great by
their folly, and Townshend reminded his hearers “that a heavy account
would some day be exacted from them if they continued to postpone
all useful legislation for the sake of a frivolous and interminable
squabble.” But the election was declared null and void without a
division. An opponent was produced for the fourth election in one
Luttrell, who drew one vote to Wilkes’s four, but was declared by the
House of Commons to be member for Middlesex, after a debate in which
even George Grenville rallied to the support of his old enemy, Wilkes,
with such vehemence that when he sat down he spat blood, shortening
his life to diminish the majority against the lawfully elected
candidate. Blackstone tried to show that Wilkes was disqualified by
common law, but was confuted by a passage in the early editions of his
_Commentaries_, which he carefully altered in the edition of 1773 and
which said that every British subject not in certain specified classes
was “eligible of common right.” The majority was forced to rely on
precedents from the Great Civil War, when the majority expelled the
minority and was itself expelled in turn, until the House of Commons
was reduced to forty-six members. Luttrell’s election was confirmed,
against the petition of the Middlesex electors, and the King prorogued
Parliament.
Burke expounded the principle involved in Wilkes’s exclusion in his
_Thoughts on the Present Discontents_. The only check on arbitrary
power is the presence here and there on the benches of members endowed
with a “spirit of independence carried to some degree of enthusiasm,
an inquisitive character to discover, and a bold one to display,
every corruption and every error of government.” Such qualities are
distasteful to those in power, and Wilkes was the example chosen to
discourage others, just as the arrest of five members by Charles I,
if successfully conducted, would have stifled liberty as effectually
as the execution of fifty. The question was whether the people or the
government should select the legislature. The leading Whigs stood
behind Burke, and denounced the position, that a resolution of any
branch of the legislature could “make, alter, suspend, abrogate, or
annihilate the law of the land.”
Of all the statements of the cause of Wilkes, that of Burke in debate
has the greatest value for our own time:
Accumulative crimes are things unknown to the courts below. In
those courts two bad things will not make one capital offense.
This is a serving up like cooks. Some will eat of one dish, and
some of another, so that there will not be a fragment left.
Some will like the strong solid roast-beef of the blasphemous
libel. One honorable member could not bear to see Christianity
abused, because it was part of the common law of England. This
is substantial roast-beef reasoning. One gentleman said he meant
Mr. Wilkes’s petition to be the ground of expulsion; another, the
message from the House of Lords. “I come into this resolution,”
says a fourth, “because of his censure upon the conduct of a
great magistrate.” “In times of danger,” says a fifth, “I am
afraid of doing anything that will shake the government.” These
charges are all brought together to form an accumulated offense,
which may extend to the expulsion of every other member of this
House. This law, as it is now laid down, is that any member
who, at any time, has been guilty of writing a libel will never
be free from punishment. Is any man, when he takes up his pen,
certain that the day may not come when he may wish to be a member
of Parliament? This, sir, will put a last hand to the liberty of
the press.
It was not until his fourth election had been annulled that Wilkes
left prison. The persecution of the government had turned him from
an obscure member of Parliament into a man of national prominence.
As Junius said, “The rays of the Royal indignation, collected upon
him, served only to illuminate, and could not consume.” The people,
unable to send him to Parliament, made him Alderman and then Lord Mayor
of London, while Luttrell voted with the majority in the Commons.
At the next general election in 1774, he was returned for Middlesex
and allowed to take his seat, since Massachusetts was causing too
much trouble to encourage a stirring up of old grievances at home.
Thereafter, he sat without interruption, while the men who had expelled
him brought the nation into its lowest humiliation. In 1782 the
resolution of 1769 declaring him incapable of election was expunged
from the records “as being subversive of the rights of the whole body
of electors of this kingdom.”
IV. _The Exclusion of Victor L. Berger from the House of
Representatives_
The most prominent person convicted under the Espionage Act, with
the exception of Debs, was Victor L. Berger. He was born in Austria
in 1860, came to this country in 1878, and was a founder of the
Socialist Party in the United States, editor of the _Milwaukee Leader_,
and member of Congress, 1911–1913, the first Socialist to serve in
Washington. The left-wing Socialists have always regarded him as a
bourgeois member of the party. Before we entered the European War, he
gave vigorous expression to the orthodox Socialist views about war,
and employed many of the arguments in favor of American neutrality
which were used at that time by non-Socialists, for instance, in
the key-note speech of Governor Glynn at the Democratic National
Convention of 1916 and in the President’s note of December 18, 1916,
to all the belligerents, asking them to state their terms of peace.
Unlike the great majority of Americans, Berger and other Socialists
did not consider the German submarine campaign of February, 1917,
a sufficient reason for changing their minds, but maintained that
war was justified only in case of invasion. He was a member of the
resolutions committee of the Socialist Convention at St. Louis and
signed the Proclamation and War Program of April 14, 1917, which has
already been mentioned.[463] It branded the declaration of war as a
crime against the people of the United States and the nations of the
world, and stated that in all modern history there had been no war
more unjustifiable. Mr. Roosevelt called these planks “treason to the
United States.”[464] Berger published this platform in the _Milwaukee
Leader_, and poured out a stream of editorials, articles, and cartoons,
denouncing the war policies of the government. He did not, however,
urge any one to resist the draft, and indeed advised one Socialist
conscientious objector to put on the uniform. Berger testified
that several men in his immediate family volunteered, although his
opposition would have prevented them from doing so. It is, of course,
well known that the record of Wisconsin and Milwaukee in the war was
very high, and while Berger can take no credit for this, it tends to
disprove that opposition to war produces violations of the draft act or
other war laws.[465]
[463] P. 162, _supra_.
[464] _Berger Hearings_, I, 72.
[465] _Ibid._, II, 460; I, 323; I, 166.
In September, 1917, the _Leader_ was deprived of its second-class
mailing privilege for the future by a blanket order of the Postmaster
General, and relief was subsequently denied by the courts.[466] The
newspaper thus lost a daily circulation of approximately 15,000
subscribers. All first-class mail addressed to the _Leader_ was
returned to the sender. The District of Columbia Court of Appeals said
of the articles on which the exclusion was based, and in this opinion
the House of Representatives committee afterwards concurred:
No one can read them without becoming convinced that they were
printed in a spirit of hostility to our own government and in a
spirit of sympathy for the Central Powers; that through them,
appellant sought to hinder and embarrass the government in the
prosecution of the war.
[466] U. S. _ex. rel._ Milwaukee Social Democrat Pub. Co. _v._
Burleson, 258 Fed. 282 (1919). The full record is in _Berger Hearings_,
I, 503 ff.
The reader can determine the general character of the _Milwaukee
Leader_ from the passages abstracted in a later paragraph, and decide
for himself whether the judicial and legislative comments quoted in
this chapter are correct in concluding that Berger wanted to aid
Germany. My own opinion is that they err in confusing opposition to the
war with wishing the enemy to win. Whether Berger was within the terms
of the Espionage Act or not, I find in his writings no desire that
the militarism and autocracy of Germany should triumph, but rather a
series of extremely bitter and cynical attacks upon what seemed to him
the Junkerism and selfishness of all the governments on both sides of
the war. They indicate that he wanted the war to end at once because
in the absence of invasion he sincerely believed it unnecessary and
a crushing burden upon the workers of America. I say this although
I thoroughly detest the attitude of Berger. I can understand the
abhorrence of Debs for a law which compels a man to kill fellow-workers
because their rulers quarrel, and recognize that he speaks from the
heart even while I disagree with him. But for Berger the war seems only
an impersonal step in an economic argument. His is not the position of
the man who has weighed the good and bad reasons and motives which are
inextricably mingled in war as in most human actions, and finding that
the bad outweigh the good, calls for peace despite the ideals which
he recognizes behind the war. Berger ignores the good, and sets forth
only meanness. He sneers at the possibility of noble purposes in the
conflict, and nowhere utters a word of praise or sympathy for those who
gave up home and life with the desire that the world should not be made
an armed camp and that oppressed nations should be free from military
domination.
Despite all this, the fundamental question remains, whether it is for
the advantage of government by public opinion and popular election
that just because most of us consider a person’s views detestable, he
should be thrown into prison and American citizens should be denied the
right to be represented by the man of their choice.
In February, 1918, Berger was indicted with four other Socialists
for conspiracy under the Espionage Act. The indictment was brought
in Chicago, because the defendants were alleged to have agreed there
for the issue of publications in various places. The overt acts which
Berger himself was said to have committed consisted of five editorials
in the _Leader_, which were in substance as follows: (1) We were in
the war because the Allies were at the end of their rope, and their
obligations would otherwise be worthless; continued fighting would
maintain the existing high prices of munition stocks; war meant
absolute freedom from labor troubles, since strikes would be put down
as treason; the plutocracy and its government in Washington would be
enabled to establish autocracy as a war necessity; war would be a
wonderful chance to establish a large permanent army; the commercial
rivalry of Germany would be ended. The submarines, Belgium, invasion,
and democracy had nothing to do with it. (2) There are many men driven
insane at the front. (3) Young men do not talk as if they considered it
an honor to be drafted. (4) Only big business men and their satellites
are enthusiastic over the war, but they do not fight. (5) The Bible
contains many passages which are opposed to war and must therefore be
considered as treasonable.
Shortly before the indictment, Berger was nominated for the United
States Senate on a Socialist platform announcing that if elected he
would work for a speedy, general, democratic, and permanent peace
without forcible annexations and punitive indemnities; an immediate
armistice and peace conference; the withdrawal of American troops from
Europe and their use to secure this country from invasion; confiscation
of war profits; and safeguards to prevent panic or unemployment when
demobilization should take place. War would ruin the country and could
be ended by electing men pledged to end it.[467] He was defeated, but
in spite of the charges pending against him received over 100,000 votes.
[467] _Berger Hearings_, I, 340.
In November, 1918, before the trial began, he was elected to Congress
from the fifth district of Wisconsin, polling 17,920 votes against
12,450 for the Democratic candidate and 10,678 for the Republican. In
December, he was put on trial before Judge Kenesaw Mountain Landis, who
several years ago imposed a fine of $29,000,000 on the Standard Oil
Company, which was afterwards set aside. Judge Landis sentenced Berger
and the other defendants to twenty years imprisonment. An appeal to
the Circuit Court of Appeals is still pending, and the defendants were
released on bail.[468]
[468] Volume II of _Berger Hearings_ contains the full record of the
trial. The charge is also in Bull. Dept. Just., No. 186. Comment from
the Socialist side is in _American Labor Year-Book_, 1919–20, pp.
97–100, and the _Socialist Review_, February, 1920. O’Brian speaks of
“the dignity and fairness” which characterized the work of the court.
52 Rep. N. Y. Bar Assn. 310 (1919).
When Berger presented himself to the House of Representatives to be
sworn in, it was charged that he was ineligible, and the question
was referred to a special committee, which reported[469] for reasons
hereafter stated that he was not entitled to take the oath of office or
hold a seat as Representative. At the same time the candidate with the
next highest number of votes, Joseph P. Carney, had claimed the seat,
on the ground that since Berger was ineligible those persons who had
voted for him should be considered to have deliberately thrown away
their ballots—in the words of an English judge, just as if they had
voted “for the man in the moon.”[470] Although this is the English law,
and a Wisconsin decision had reached the same result where the leading
candidate was known at the time of the election to be dead,[471] the
Congressional practice is otherwise, and holds that electors ought not
to be disfranchised in such a fashion, especially when they supposed
the leading candidate to be eligible.[472] It would be absurdly harsh
to presume that those who voted for Berger in November knew that he was
disqualified, just because a jury convicted him the following January.
Consequently, Carney gained nothing by his contest, but on November 11,
1919, the House of Representatives with only one dissenting member,
Voigt of Wisconsin, declared Berger’s seat vacant.[473]
[469] House of Representatives, 66th Cong., 1st Sess., Ho. Cal. No. 91,
Rep. No. 413, hereafter called Berger Report.
[470] Lord Campbell, C. J., in Regina _v._ Coaks, 3 E. & B. 249, 254
(1854).
[471] Beresford-Hope _v._ Lady Sandhurst, 23 Q. B. D. 79 (1889). Women
were allowed to vote for County Councillor and were supposed to be
eligible to hold the office. The highest candidate was a woman. The
court seated the highest male candidate. State _ex rel._ Bancroft _v._
Frear, 144 Wis. 79 (1910).
[472] Smith _v._ Brown, 1 Hinds’ Precedents 448; _Re_ Abbott, 1 _ibid._
478. _Accord_, P. _ex rel._ Furman _v._ Clute, 50 N. Y. 451 (1872).
[473] The debates on the two exclusions are in _New York Times_,
November 12, 1919, January 11, 1920.
The Governor of Wisconsin ordered a special election on December 19,
1919. The Republicans and Democrats nominated a fusion candidate, H.
H. Bodenstab, and the German paper, the _Herold_, appealed to all
German-Americans to support their compatriot against Berger. The
Socialist vote was increased by nearly 8,000 over the first election,
Berger receiving 25,802 ballots to 19,800 for his opponent. On
January 10, 1920, the House again refused to seat him. This time, six
Representatives voted in his favor, including Floor Manager James R.
Mann, who said during the debate:
Mr. Berger has been elected anew to the House by a majority of
those who vote in his district and to me the question is whether
we shall maintain inviolate the representative form of government
where people who desire changes in the fundamental or other laws
of the land shall have the right to be represented on the floor
of this House, when they control a majority of the votes in a
Congressional district.
I do not share the views of Mr. Berger, but I am willing to meet
his views in an argument before the people rather than to say we
shall deny him the opportunity to be heard when selected by the
people in the legal form and invite them, in effect, to resort to
violence.
Has it come to the point that a man who believes certain things
cannot be heard? His people, his constituents, desire him to
represent them. It is not our duty to select a representative
from this Congressional district. That is the duty of the people
back at home. We cannot take the attitude of refusing to permit
the voice of the people of a district to be heard by their own
selection with safety to the future of the country.
Berger afterwards stated that he was accused of calling the late war a
capitalist war, and that the President had said the same thing at St.
Louis on September 5, 1919, when he declared:
Why, my fellow-citizens, is there any man here or woman who does
not know that the seed of war in the modern world is industrial
and commercial rivalry? This war was a commercial and industrial
war. It was not a political war.
Within an hour after Berger was unseated, the Socialist committee in
Milwaukee announced his renomination for a third contest. However,
he has not yet equalled the record of Wilkes, for the Governor of
Wisconsin has decided that another special election would be too
expensive. Meanwhile, Berger has been forbidden to speak in several
cities, including that founded by Roger Williams, and Jersey City
forcibly ran him out of town. Whatever the legal merits of his case in
the courts and Congress, his enemies like those of Wilkes have adopted
against him the very methods that vastly increase his influence.
The question whether a person who is duly elected to either branch
of Congress is rendered ineligible because during a war he expressed
opinions opposed to its continuance and the methods by which it was
waged is full of difficulties. It is sometimes supposed that the
clause in the Constitution,[474] “Each House shall be the Judge of the
Elections, Returns, and Qualifications of its own Members,” gives a
majority the unlimited right to exclude any one. The problem is less
simple than that. Each house is to act as “judge,” that is, it must
decide the facts by applying to them rules of law, and must not proceed
arbitrarily. For instance, the majority has no right to exclude the
minority by a new Pride’s Purge. It is undoubtedly true that if the
House of Representatives should exclude a man on some whimsical ground,
no appeal would lie from its action. Neither is there any appeal
from the Supreme Court, but for this very reason it feels a grave
responsibility to decide according to law. In the same way, the House
has only the power to decide whether the man received the proper number
of votes and satisfies the qualifications established by law, and it
ought not to create new requirements for a particular case any more
than a criminal judge ought to invent new crimes.
[474] U. S. Cons., Art. 1, § 5. That this a judicial proceeding, to
be decided in accordance with legal principles as established by
precedents, cases of Abbott, 1 Hinds’ Prec. 478; Lorimer, in Webb and
Pierce, Senate Election Cases, 1061; and page 340, _infra_.
What then are the lawful qualifications for membership in the House
of Representatives? The authorities disclose two divergent views. The
first is, that the Constitution contains all the qualifications, and
that if a district elects a man who conforms to its requirements, he
must be seated, no matter how unfit he is considered by the rest of
the House. His unfitness is not a reason for exclusion by a majority
vote, but may if continuing in character justify his expulsion by a
two-thirds vote. The second view holds that additional tests may be
imposed by statute or possibly in accordance with established usage
to cover obvious cases of unfitness, such as conviction of crime.
Since the committee report in the Berger case held that he should be
unseated, even under the first view, we can postpone the controversy
whether his conviction was a bar, until after discussing his
eligibility under the terms of the Constitution.
The original requirements are threefold:[475]
No Person shall be a Representative who shall not have attained
to the Age of twenty-five Years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.
[475] U. S. Cons., Art. I, § 2.
Berger satisfied all these. However, the committee reported that he was
excluded by a fourth qualification, enacted in 1868 by section 3 of the
Fourteenth Amendment:
No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office,
civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability.
At the outset the committee decided not to be governed by the action
of the judge and jury at Chicago, but to review all the evidence at
that trial, the proceedings about the exclusion of the _Leader_ from
the mails, and the fresh testimony introduced at the hearings. The
conclusions of fact were as follows:[476]
After a careful consideration of all the evidence, in the opinion
of your committee the admitted acts, writings, and declarations
of Victor L. Berger and of the men with whom he was associated
in the management and control of the Socialist Party from the
time of the entrance of this country into the war until their
indictment by a Federal grand jury, giving such acts and the
language of the writings and declarations their ordinary everyday
meaning and without considering any other evidence, clearly
establishes a conscious, deliberate and continuing purpose and
intent to obstruct, hinder, and embarrass the Government of the
United States in the prosecution of the war and thus to give
aid and comfort to the enemies of our country. The writings and
activities of Mr. Berger and his associates could have had no
other purpose. That Victor L. Berger was disloyal to the United
States of America and did give aid and comfort to its enemies at
a time when its existence as a free and independent Nation was at
stake there can not be the slightest doubt.
[476] _Berger Report_, 7.
Even if Berger’s guilt under the Espionage Act be considered as
established, three replies are conceivable to the proposition that
such guilt renders him ineligible under the Fourteenth Amendment.
(1) This provision may relate to the Civil War only, like section 4
of the same Amendment about pensions and Confederate debts. Since
section 1, forbidding states to deprive citizens of the United States
of life, liberty, or property without due process of law, has been
construed to protect much more than the rights of emancipated slaves,
the committee rejected this argument. (2) Early in the Spanish War,
in order to cement good feeling between North and South, both houses
by the necessary two-thirds vote adopted a blanket resolution, “that
the disability imposed by section three ... heretofore incurred is
hereby removed.”[477] The committee held that this could not apply
to a subsequent disability. (3) Berger’s violation of the Espionage
Act was not a bar under the Fourteenth Amendment because it did not
amount to treason. This is a very important point and it is an odd
commentary on legislative justice that every one involved in the Berger
case, except Representative Mann, overlooked it completely and assumed
that “aid and comfort to the enemy” was synonymous with guilt under
the Espionage Act. Of course, this phrase is often employed loosely
in conversation and Congressional debates to include all sorts of
language that is considered disloyal in war time, but legally these
words have a technical significance, and they are used in a statute or
in the Fourteenth Amendment in the same sense as in the clause of the
Constitution defining treason.[478] Therefore, the acts of aid and
comfort which would disqualify Berger from serving in Congress under
the Amendment (if section three is still in force) must be of the same
general character with those necessary to convict him of treason.
[477] Act, June 6, 1898, c. 389.
[478] Art. III, § 3: “Treason against the United States, shall consist
only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort.” The omission of any mention of adherence
in the Fourteenth Amendment is immaterial. Judge Leavitt said in
1861 (1 Bond 611): “The words in the definition, _adhering to their
enemies_, seem to have no special significance, as the substance is
found in the words which follow—_giving them aid and comfort_.” Judge
Learned Hand said in U. S. _v._ Robinson, 259 Fed. 685, 690 (1919):
“The words ‘adhering’ must be taken as defined by the phrase ‘giving
aid and comfort.’” The U. S. Supreme Court has reached the same result
in construing the Captured and Abandoned Property Act of March 12, 1863
(12 Stat. L. 820), which allowed the owner of any captured property to
reclaim its value from the United States, on proof that he had “never
given aid or comfort to the present rebellion.” In Young _v._ U. S., 97
U. S. 39, 62 (1877), the Court held, through Chief Justice Waite, that
although a British claimant could not commit treason since he owed no
allegiance, “the acts of aid and comfort which will defeat a suit must
be of the same general character with those necessary to convict of
treason.... It is sufficient if he has done that which would have made
him a traitor if he had owed allegiance to the United States.”
Was Berger guilty of treason? In answering this question, we must not
be misled by colloquial usage. Mr. Roosevelt denounced the St. Louis
Socialist platform as “treason,” and “traitor” is a heart-warming
conversational epithet for any one who wants a war stopped, but lawyers
and legislators must be less vague in accusing a man of a crime that is
punishable with death. Chief Justice Marshall said long ago[479] that
treason should not be extended by construction to doubtful cases, and
there has never been a decision that talking against a war is treason.
If it were, Vallandigham, Milligan, and the other Copperheads would
surely have been prosecuted for this crime. The few writers[480] who
assert that the Espionage Act of 1917 created no new crimes, but that
causing insubordination in the armed forces and obstructing enlistment
are also treason,[481] are forced to rely on one or two sweeping
judicial definitions, like Lord Reading’s charge in the trial of Sir
Roger Casement, that it is giving aid and comfort to the enemy to do
any act which tends to strengthen them or tends to weaken the power of
one’s own country to resist.[482] So broad a statement would if taken
literally revive all the evils of constructive treason, but it must
be limited with reference to the particular facts which the jury were
considering. Casement had issued a proclamation to Irish prisoners in
Germany urging them to form a regiment in the German army.[483] The use
of words in an attempt to gain recruits for the enemy is absolutely
different from telling your fellow-citizens that they ought to stop
fighting. It may be that the latter is so dangerous that it must be
punished, but only as sedition, which consists of _words_ creating
disaffection. Treason requires overt _acts_ of direct assistance to the
enemy. The distinction is fundamental. It is inconceivable that the
trivial utterances which were held criminal under the Espionage Act
because of their bad tendency and the supposed intention to hinder the
war were already subject under the treason statute to a death penalty.
[479] _Ex parte_ Bollman and Swartwout, 4 Cranch 77, 127 (1807).
[480] Charles Warren, “What Is Giving Aid and Comfort to the Enemy?” 27
Y. L. J. 331 (1918); Thomas F. Carroll, 17 _Mich. L. Rev._ 660 (1918).
[481] If so, the treason statute would have rendered the Espionage
Act unnecessary. Instead the treason statute proved well-nigh useless
during the war. See p. 41, _supra_.
[482] Rex _v._ Casement [ 1917], 1 K. B. 98, 133. Warren, _op cit._,
quotes other judges. They plainly refer to language used to cause men
to join the enemy and participate in his operations. Such words form
an element in acts of direct aid. These judges are not speaking of
expressions of opinion about the injustice of a war, even if intended
to deter men from enlisting in one’s own army. _Cf._ note 49.
[483] It is doubtful if even this would be treason in this country,
inasmuch as no one was persuaded to enlist. Respublica _v._ Roberts, 1
Dall. 39 (Pa. 1778). But see U. S. _v._ Robinson, 259 Fed. 685, 690, on
unsuccessful attempts to aid. This point in the Casement trial received
no attention from the Court of Appeal, which was entirely occupied
with the question whether treason could be committed outside England,
answered in the affirmative. It is interesting to Americans to find
that one of the authorities relied on was a legal opinion rendered in
1775 that certain persons in New Hampshire could be prosecuted for
treason.
This distinction is clearly brought out by the kind of conduct which
has been held to be “giving aid and comfort to the enemy,”[484] for
example, furnishing money, troops or arms, saltpeter for gunpowder,
steamers for blockade running, delivering up deserters and prisoners,
and actually joining the enemy in person. Contrast these acts, which
advance the cause of the enemy by their immediate effect, with
newspaper articles attacking the war, which may encourage the enemy
but do not promote his success in any tangible or measurable way.
The result is indirect and purely mental. It is true that words do
sometimes constitute treason, as when a letter is sent to the enemy
containing military information, or even a wireless message.[485]
Here language has all the qualities of action, because it furnishes
the enemy with something he can use. It is treason if he be given a
gun to batter down a fort or a photograph of its plan or a written
description. That the last is in words is immaterial. But if words are
used in a speech demanding immediate peace, this is not assistance
by acts at all, and furnishes the enemy with nothing but emotions of
dubious value. Judges have frequently declared that expressions of
opinion are not treason.[486] It is interesting to note that even in
the excitement of the Civil War, when Congress was passing on the
qualifications of members under the much broader terms of the Test
Oath Act of 1862, soon to be more fully discussed, a line was usually
(though not always) drawn between language adverse to the North,
even though clearly intended to embarrass the conduct of the war,
and definite acts of assistance to the South, such as participation
in an ordinance of secession or the offer of a military invention
to Jefferson Davis. In the Berger case, however, the committee did
not consider at all whether he was guilty of acts of treason. There
is nothing in the record to show any aid to Germany except by the
indirect, intangible method of creating a body of opinion opposed to
the continuance of the war. And this is a risk which a nation governed
by public opinion must take, which ours has taken by guarantying
freedom of speech. To call it treason is contrary not only to the First
Amendment but to the law of treason. Therefore, Berger did not in any
legal sense give aid and comfort to the enemy, and he was not barred
from the House of Representatives by the Fourteenth Amendment.
[484] Carlisle _v._ U. S., 16 Wall. 147 (1872); U. S. _v._ Fricke,
259 Fed. 673 (1919); Young _v._ U. S., 97 U. S. 39 (1878); U. S. _v._
Hodges, 2 Wheel. Cr. 477 (1815); King _v._ Ahlers [ 1915] 1 K. B. 616.
For other examples see Warren, _op. cit._, especially on p. 347 a.
[485] U. S. _v._ Robinson, 259 Fed. 685 (1919) (invisible ink); U. S.
_v._ Werner, 247 Fed. 708. See Warren, _op. cit._
[486] Charges to Grand Jury, 5 Blatchf. 549, 550 (1861): “Words,
oral, written, or printed, however treasonable, seditious or criminal
of themselves, do not constitute an overt act of treason within the
definition of the crime”; _accord_, 1 Bond 609, 612 (1861); 2 Sprague
292, 294 (1863).