at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority." (120-1.)

There is even some question whether a law which was held constitutional in the circumstances surrounding the World War could be upheld if the United States was at war in a desultory fashion with some unimportant South American antagonist. Justice Holmes was writing for the court when he said in United States v. Schenck (249 U. S. 47, 52-1919):

*

"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights * *. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.

But quite regardless of the constitutional aspects presented in such a situation Section 3 of Title I of the espionage act would as a practical matter be utterly inappropriate and extremely dangerous in such a situation. The only way to make sure that this will not occur is to repeal that section now so that it can not revive "when the United States is at war.

TITLE XII OF THE ESPIONAGE ACT (NOW U. S. C. TITLE 18, SECS. 343-345) SHOUld be REPEALED

Introductory.-As enacted this title rendered unmailable all matter which violated the espionage law, as well as matter advocating treason, insurrection, or forcible resistance to law and made the mailing of such matter punishable. Apparently the Government kept no records of prosecutions under this section. There are, however, reports of a few typical cases which demonstrate how these provisions operated.

The reported cases.-The most striking of the post-office cases was the famous Milwaukee Leader case (U. S. ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407) affirming the Postmaster General's order denying the Milwaukee Leader second-class mailing privileges because it habitually published matter which was unmailable under Title XII of the espionage act. Justice Clarke, writing for the court, holds that the power to revoke the privilege is inherent in the power to carry out the postal laws, and especially the classification act of 1879, accorded to the Postmaster General.

He notes that such an order does not exclude the paper from the mails absolutely but only from the lower second-class rates until further order. "Government is a practical institution, adapted to the practical conduct of public affairs. It would not be possible for the United States to maintain a reader in every newspaper office of the country to approve in advance each issue." The presumption is that a newspaper which has published nonmailable matter for five months will continue to do so. It must show its reformation before getting back its second-class privileges.

In his dissenting opinion Justice Brandeis, answering the argument that the paper might have been carried either first or third class or by other means of transportation, says:

"The Government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of the service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open. But to carry newspapers generally at a sixth of the cost of the service and to deny that service to one paper of the same general character, because to the Postmaster General views therein expressed in the past seem illegal, would prove an effective censorship and abridge seriously freedom of expression" (431).

Because the espionage law has become incorporated in the U. S. Code, the first section of Title XII, U. 8. C., Title 18, sec. 343, declares nonmailable writings violating a large number of specified sections of the code.

And further:

"In conclusion I say again-because it can not be stressed too strongly-that the power here claimed is not a war power. There is no question of its necessity to protect the country from insidious domestic foes. To that end Congress conferred upon the Postmaster General the enormous power contained in the espionage act of entirely excluding from the mails any letter, picture, or publication which contained matter violating the broad terms of that act. But it did not confer and the Postmaster General concedes that it did not confer the vague and absolute authority practically to deny circulation to any publication which in his opinion is likely to violate in the future any postal law. The grant of that power is construed into a postal rate statute passed 40 years ago which has never before been suspected of containing such implications. I can not believe that in establishing postal classifications in 1879 Congress intended to confer upon the Postmaster General authority to issue the order here complained of. If, under the Constitution, administrative officers may, as a mere incident of the peace-time administration of their departments, be vested with the power to issue such orders as this, there is little of substance in our bill of rights and in every extension of governmental functions lurks a new danger to civil liberty" (436).

Justice Holmes, concurring in this dissent, likewise recognizes that "the regulation of the right to use the mails by the espionage act has no peculiarities as a war measure."

No reports were discovered of most of the proceedings by the Post Office Department against newspapers and private individuals under the espionage act. However, in addition to the Milwaukee Leader case, which finally demonstrated the length to which the courts would go in sustaining the Postmaster General's power in excluding matter from the mails there were three other reported litigations against (1) the Masses, (2) the New York Call, and (3) the Jeffersonian.

The Masses litigation was the best known. In the United States district court (Masses Pub. Co. v. Patten, 244 Fed. 535, S. D. of N. Y.-1917) Judge Learned Hand issued an injunction requiring the postmaster to carry the August, 1917, issue of the Masses. He held that none of the articles or pictures objected to urged upon men that it was their duty or their interest to violate the law, and said: To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom." The Circuit Court of Appeals (245 Fed. 103) first stayed the injunction, and thereafter reversed it (246 Fed. 24). Judge Rogers, after quoting the Blackstonian theory that

"Every free man has an undoubted right to lay what sentiments he pleases before the public, but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity," nevertheless concluded: "If the Postmaster General has been authorized and directed by Congress not to transmit certain matter by mail and is to determine whether a particular publication is nonmailable under the law, he is required to use judgment and discretion in so determining, and his decision must be regarded as conclusive by the courts, unless it appears that it is clearly wrong."

On an application by the Masses for the transmission of its September issue as second-class matter, Judge Augustus N. Hand held that because one issue had not circulated it could no longer lay claim to regularity of issue. (Bulletin No. 26.)

In the case against the Jeffersonian (Jeffersonian Pub. Co. v. West, S. D. of Ga.-1917, Bulletin No. 24) Judge Speer denied an injunction against the Postmaster General where the paper in vituperative language charged President Wilson and Congress with the illegality of the conscription act and urged conscripts to await the decision of the Supreme Court on the constitutionality of that act. According to the court, for the Postmaster to have carried this paper "would have been to forego the opportunity to serve his country afforded by his lofty station." Judge Speer, bringing up an entirely different issue, asks this rhetorical question:

"Can one be said to come with clean hands when the policy, methods, and efforts he would maintain may cause his hands to be imbrued in the blood of the demoralized and defeated armies of his countrymen?"

The Call, like the Masses, obtained in the court of first instance an injunction restoring its second-class mailing privilege. But the Circuit Court of Appeals of the District of Columbia reversed this judgment (Burleson v. U. S. ex rel

Workingmen's Coop. Pub. Co., 274 Fed. 749-1921-writ of error dismissed 260 U. S. 257) after the Supreme Court's decision in the Milwaukee Leader case. The Call's articles dealt largely with the war as a class war and called on the American workingmen to follow the example of their Russian brothers. Opinions of Government officials entrusted with the enforcement of Title XII.This law with which we are dealing is not, as we have already shown, a war measure. It is, until repealed, part of the permanent law of the land, not even suspended during peace time, but ready at any time for use against publishers of an unpopular cause. That it has apparently fallen into disuse is only evidence of its unsuccessful operation.

Almost contemporaneously with the close of the war Mr. Burleson ceased to be Postmaster General. When Mr. Hays came in we notice in the annual reports of the Postmaster General, beginning with the annual report for the fiscal year ended June 30, 1921, that the paragraph dealing with the enforcement of the espionage act is conspicuously absent. Under the modest heading "Second-class matter" Mr. Hays writes that applications pending for three years have finally been granted. He explains the change of policy as follows: "The fourth requirement of section 14 of the classification act is that, to entitle matter to the second-class mailing privilege, it must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry. It has been suggested that it was the intent of Congress in the passage of this provision that the privilege of second-class rate should only go to publications disseminating information of a public benefit. If this were true then the responsibility is lodged somewhere to determine what is and what is not information of public benefit. There is a vast difference between what is 'information of a public character' and what is information of public benefit. The arbitrary power to decide what is and what is not a public benefit was never intended to be lodged in the Postmaster General, and it shall not be assumed by the present postal management.

* * *

*

"The war is over and it has been the purpose of the department to return to ordered freedom. Our method of safeguarding the public welfare, while at the same time maintaining freedom of the press, has been through a long period of stable civil liberty better for the public welfare and personal security of citizens than to establish a bureaucratic censorship which in its nature becomes a matter of individual opinion, prejudice, or caprice. There is a certain cost in free institutions in which the institution of freedom of the press shares, but, we in this country, have preferred to pay such costs from time to time rather than to seek protection through the historically discredited devices of bureaucratic government. "Either these publications should be entirely suppressed and their publishers prosecuted or they should be given equal mailing rights in common with the other periodicals of the country, There shall be no hesitancy in suppressing any publications that fall within the prohibitions of the public law, but there are also laws in this country safeguarding the integrity of the freedom of the press and these laws must and shall be also scrupulously observed" (pp. 88-90).

* * *

Mr. Alfred Bettman until May, 1919, Special Assistant United States Attorney General in charge of seditious prosecutions, expressed strikingly the same idea in testimony before the Committee on Rules of the House of Representatives opposing a peace-time sedition law. He said:

'The history of freedom of speech begins with the birth of the licensing system in England. When printing and newspapers began to appear, the King claimed the right to forbid any of it without his license, and that licensing system was administered by the star chamber, and became one of the disgraces of English history. In 1695 the House of Commons refused to reenact the licensing act, and since 1695, over two centuries ago, and about one century before the Constitution of the United States, it became the settled law of England that no advance interference with publication was constitutional in Anglo-Saxon countries-no advance interference. So that to allow the Postmaster General to state in advance what shall or shall not go out and be published, to allow the fear of what the Postmaster General will or will not allow to exert a palsing effect on the freedom of intelligence of the American public, is turning back the hands of the clock over two centuries in this country * * * But the Supreme Court of the United States in sustaining the right to exclude obscene matter from the mails, stated that it is not as a government controlling morals that it did that, but that it, as the head of the post-office business, in deciding what it shall carry in the mails, may do that. But that if in addition to stating what shall be carried in the mails, the Government attempted to state what shall be transported by other means, that would be an absolutely unconstitutional combination. That is the

principle of the case, that they have a certain amount of right to say what they will and what they will not carry as the post-office business, but if they make any attempt to join other means of distribution, such a joinder would be unconstitutional *. To my mind, to-day the carriage in the mails is a Government monopoly, and is so usual and customary and necessary a means of transporattion of printed matter, that that old doctrine that the United States is a mail carrier and can as a mail carrier decide what it will and what it will not carry, should not be considered as applying; that the effect of refusing to carry in the mails is the effect of suppression, under modern conditions where the mail has grown to be such a tremendous factor. And suppression in advance violates the very minimum definition of freedom of speech settled in England for 200 years."

Prior legislation sufficient.-A mere inspection of section 1 of Title XII in its present form makes obvious its complexity. As originally enacted the section declared unmailable all matter in violation of the espionage act. Now that that act has taken its place in the United States Code all the various sections must be specified. There is no apparent reason for declaring matter unmailable which violates this particular law rather than any other and the arbitrary power thus accorded an administrative official is both contrary to our free tradition and unworkable in practice.

Finally if there is objection to the post office transmitting propaganda advocating violent revolution the law provided for this long prior to the enactment of Title XII of the espionage act. Thus section 334 of title 18 of the United States Code (Criminal Code, sec. 211) fixes a maximum penalty of a fine of $5,000 and/or five years' imprisonment for the mailing of "matter of a character tending to incite arson, murder, or assassination." The decision of the Postmaster General in refusing reinstatement to the New York Call was based in part upon this provision (274 Fed. at 750).

CONCLUSION

The legislation sought to be repealed is contrary to the best American tradition. Thus President Wilson, just prior to transmitting his war message to Congress, is reported to have said, "Conformity would be the only virtue

* * and every man who refused to conform would have to pay the penalty. "He thought the Constitution would not survive it; that free speech and the right of assembly would go." (Nelles, Freedom of Opinion and Expression, Am. Yearbook, 1925, p. 85.)

James Kent almost a hundred years earlier had sensed the menace of war to constitutional safeguards. He wrote:

"It may be observed, on the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights." (2 Kent's Commentaries, 1st ed., p. 5.)

The repeal of the laws now under attack can give no assurance that the excesses indulged in during the World War will not recur. But our armies are now demobilized. We have signed the Kellogg peace pact. It is time that war legislation should be wiped from our statute books and persons convicted under it be restored to full citizenship. If, unhappily, we should participate in a future war the American people can be trusted to then enact such laws as will insure its successful prosecution.

APPENDIX

United States Code, title 50, section 33:

"Seditious or disloyal acts or words in time of war.-Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval

forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both." (June 15, 1917, ch. 30, Title I, sec. 3, 40 Stat. 219; March 3, 1921, ch. 136, 41 Stat. 1359.4)

United States Code, title 18, secs. 343-345:

"SEC. 343. Certain letters or writings nonmailable; opening letters.-Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, in violation of any of the provisions of sections 25, 27, 31 to 38, inclusive; 98, 130 to 132, inclusive; 288, 381, 502, 611 to 633, inclusive, of this title; sections 213, 221 to 223, inclusive; 231 to 235, inclusive; and 238 to 245, inclusive, of title 22, and sections 31 to 42 and 191 to 194 of title 50 is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier; but no person other than an employee of the dead-letter office, duly authorized thereto, or other person upon a search warrant authorized by law, shall be authorized to open any letter not addressed to himself." (June 15, 1917, ch. 30, Title XII, sec. 1, 40 Stat. 230.)

"SEC. 344. Letters or writings advocating treason declared nonmailable.—Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States is hereby declared to be nonmailable." (June 15, 1917, ch. 30, Title XII, sec. 2, 40 Stat. 230.)

"SEC. 345. Using or attempting to use mails for transmission of matter declared nonmailable by title; jurisdiction of offense. Whoever shall use or attempt to use the mails or Postal Service of the United States for the transmission of any matter declared by sections 343 and 344 of this title to be nonmailable, shall be fined not more than $5,000 or imprisoned not more than five years, or both. Any person violating any provision of said sections may be tried and punished either in the district in which the unlawful matter or publication was mailed, or to which it was carried by mail for delivery according to the direction thereon, or in which it was caused to be delivered by mail to the person to whom it was addressed." (June 15, 1917, ch. 30, Title XII, sec. 3, 40 Stat. 230.)

The two words "and 33" should be stricken from title 50, sec. 34, making punishable conspiracies to violate secs. 32 and 33 of title 50.

"221 to 223" should be "220 to 222."

O