Front Page Titles (by Subject) DISSENT IN WARTIME - The American Nation: Primary Sources
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
DISSENT IN WARTIME - Bruce Frohnen, The American Nation: Primary Sources 
The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
DISSENT IN WARTIME
Fearful lest internal dissent undermine the war effort, President Wilson urged Congress to pass legislation making it a crime to obtain or communicate information intended to harm the United States or assist its enemies. The resulting Espionage Act empowered the postmaster general to refuse to mail newspapers and magazines deemed illegal under its provisions, including various socialist and communist periodicals and numerous political and nonpolitical periodicals written in German. Among the strongest opponents of Wilson’s internal policies was Wisconsin senator Robert M. La Follette (1855-1925), an opponent of the war and future Progressive Party candidate for president. In the speech reproduced here La Follette opposes public prosecution and intimidation of the war’s opponents. Wilson responded to dissent by calling for stronger measures; the result was the Sedition Act. This legislation amended the Espionage Act to ban “disloyal, profane, scurrilous, or abusive language” about the U.S. government, Constitution, or armed forces. Hundreds of antiwar speakers, protesters, and writers were jailed. Among those jailed was Charles Schenck, a socialist who had distributed leaflets to recent draftees into the Army, urging them to peacefully seek an end to military conscription. The U.S. Supreme Court upheld Schenck’s conviction on the grounds that handing out leaflets opposing conscription during time of war presented a clear and present danger that the war effort would be undermined.
June 15, 1917
An Act To punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled:
Section 1. That (a) whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, or stored, under any contract or agreement with the United States, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place within the meaning of section six of this title; or (b) whoever for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or (c) whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this title; or (d) whoever, lawfully or unlawfully having possession of, access to, control over, or being intrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or (e) whoever, being intrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.
Sec. 2. (a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years; and (b) whoever, in time of war, with intent that the same shall be communicated to the enemy, shall collect, record, publish, or communicate, or attempt to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for not more than thirty years.
Sec. 3. 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 or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
Sec. 4. If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine.
Sec. 5. Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offense under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or both.
Sec. 6. The President in time of war or in case of national emergency may by proclamation designate any place other than those set forth in subsection (a) of section one hereof in which anything for the use of the Army or Navy is being prepared or constructed or stored as a prohibited place for the purposes of this title: Provided, That he shall determine that information with respect thereto would be prejudicial to the national defense.
Sec. 7. Nothing contained in this title shall be deemed to limit the jurisdiction of the general courts-martial, military commissions, or naval courts-martial under sections thirteen hundred and forty-two, thirteen hundred and forty-three, and sixteen hundred and twenty-four of the Revised Statutes as amended.
Sec. 8. The provisions of this title shall extend to all Territories, possessions, and places subject to the jurisdiction of the United States whether or not contiguous thereto, and offenses under this title when committed upon the high seas or elsewhere within the admiralty and maritime jurisdiction of the United States and outside the territorial limits thereof shall be punishable hereunder.
Sec. 9. The Act entitled “An Act to prevent the disclosure of national defense secrets,” approved March third, nineteen hundred and eleven, is hereby repealed.
Free Speech in Wartime
Free Speech and the Right of Congress to Declare the Objects of War
Mr. LA FOLLETTE. Mr. President, I rise to a question of personal privilege.
I have no intention of taking the time of the Senate with a review of the events which led to our entrance into the war except in so far as they bear upon the question of personal privilege to which I am addressing myself.
Six Members of the Senate and 50 Members of the House voted against the declaration of war. Immediately there was let loose upon those Senators and Representatives a flood of invective and abuse from newspapers and individuals who had been clamoring for war, unequaled, I believe, in the history of civilized society.
Prior to the declaration of war every man who has ventured to oppose our entrance into it had been condemned as a coward or worse, and even the President had by no means been immune from those attacks.
Since the declaration of war the triumphant war press has pursued those Senators and Representatives who voted against war with malicious falsehood and recklessly libelous attacks, going to the extreme limit of charging them with treason against their country.
This campaign of libel and character assassination directed against the Members of Congress who opposed our entrance into the war has been continued down to the present hour, and I have upon my desk newspaper clippings, some of them libels upon me alone, some directed as well against other Senators who voted in opposition to the declaration of war.
One of these newspaper reports most widely circulated represents a Federal judge in the State of Texas as saying, in a charge to a grand jury—I read the article as it appeared in the newspaper and the headline with which it was introduced:
DISTRICT JUDGE WOULD LIKE TO TAKE SHOT AT TRAITORS IN CONGRESS.
[By Associated Press leased wire.]
Houston, Tex., October 1, 1917.
Judge Waller T. Burns of the United States district court, in charging a Federal grand jury at the beginning of the October term to-day, after calling by name Senators Stone of Missouri, Hardwick of Georgia, Vardaman of Mississippi, Gronna of North Dakota, Gore of Oklahoma, and La Follette of Wisconsin, said:
“If I had a wish, I would wish that you men had jurisdiction to return bills of indictment against these men. They ought to be tried promptly and fairly, and I believe this court could administer the law fairly; but I have a conviction as strong as life, that this country should stand them up against an adobe wall to-morrow and give them what they deserve. If any man deserves death, it is a traitor. I wish that I could pay for the ammunition. I would like to attend the execution, and if I were in the firing squad I would not want to be the marksman who had the blank shell.
The above clipping, Mr. President, was sent to me by another Federal judge, who wrote upon the margin of the clipping that it occurred to him that the conduct of the judge might very properly be the subject of investigation. He inclosed with the clipping a letter, from which I quote the following:
I have been greatly depressed by the brutal and unjust attacks that great business interests have organized against you. It is a time when all the spirits of evil are turned loose. The Kaisers of high finance, who have been developing hatred of you for a generation because you have fought against them and for the common good, see this opportunity to turn the war patriotism into an engine of attack. They are using it everywhere, and it is a day when lovers of democracy, not only in the world, but here in the United States, need to go apart on the mountain and spend the night in fasting and prayer. I still have faith that the forces of good on this earth will be found to be greater than the forces of evil, but we all need resolution. I hope you will have the grace to keep your center of gravity on the inside of you and to keep a spirit that is unclouded by hatred. It is a time for the words “with malice toward none and charity for all.” It is the office of great service to be a shield to the good man’s character against malice. Before this fight is over you will have a new revelation that such a shield is yours.
If this newspaper clipping were a single or exceptional instance of lawless defamation, I should not trouble the Senate with a reference to it. But, Mr. President, it is not.
In this mass of newspaper clippings which I have here upon my desk, and which I shall not trouble the Senate to read unless it is desired, and which represent but a small part of the accumulation clipped from the daily press of the country in the last three months, I find other Senators, as well as myself, accused of the highest crimes of which any man can be guilty—treason and disloyalty—and, sir, accused not only with no evidence to support the accusation, but without the suggestion that such evidence anywhere exists. It is not claimed that Senators who opposed the declaration of war have since that time acted with any concerted purpose either regarding war measures or any others. They have voted according to their individual opinions, have often been opposed to each other on bills which have come before the Senate since the declaration of war, and, according to my recollection, have never all voted together since that time upon any single proposition upon which the Senate has been divided.
I am aware, Mr. President, that in pursuance of this general campaign of villification and attempted intimidation, requests from various individuals and certain organizations have been submitted to the Senate for my expulsion from this body, and that such requests have been referred to and considered by one of the committees of the Senate.
If I alone had been made the victim of these attacks, I should not take one moment of the Senate’s time for their consideration, and I believe that other Senators who have been unjustly and unfairly assailed, as I have been, hold the same attitude upon this that I do. Neither the clamor of the mob nor the voice of power will ever turn me by the breadth of a hair from the course I mark out for myself, guided by such knowledge as I can obtain and controlled and directed by a solemn conviction of right and duty.
But, sir, it is not alone Members of Congress that the war party in this country has sought to intimidate. The mandate seems to have gone forth to the sovereign people of this country that they must be silent while those things are being done by their Government which most vitally concern their well-being, their happiness, and their lives. To-day and for weeks past, honest and law-abiding citizens of this country are being terrorized and outraged in their rights by those sworn to uphold the laws and protect the rights of the people. I have in my possession numerous affidavits establishing the fact that people are being unlawfully arrested, thrown into jail, held incommunicado for days, only to be eventually discharged without ever having been taken into court, because they have committed no crime. Private residences are being invaded, loyal citizens of undoubted integrity and probity arrested, cross-examined, and the most sacred constitutional rights guaranteed to every American citizen are being violated.
It appears to be the purpose of those conducting this campaign to throw the country into a state of terror, to coerce public opinion, to stifle criticism, and suppress discussion of the great issues involved in this war.
I think all men recognize that in time of war the citizen must surrender some rights for the common good which he is entitled to enjoy in time of peace. But, sir, the right to control their own Government according to constitutional forms is not one of the rights that the citizens of this country are called upon to surrender in time of war.
Rather in time of war the citizen must be more alert to the preservation of his right to control his Government. He must be most watchful of the encroachment of the military upon the civil power. He must beware of those precedents in support of arbitrary action by administrative officials, which excused on the plea of necessity in war time, become the fixed rule when the necessity has passed and normal conditions have been restored.
More than all, the citizen and his representative in Congress in time of war must maintain his right of free speech. More than in times of peace it is necessary that the channels for free public discussion of governmental policies shall be open and unclogged. I believe, Mr. President, that I am now touching upon the most important question in this country to-day—and that is the right of the citizens of this country and their representatives in Congress to discuss in an orderly way frankly and publicly and without fear, from the platform and through the press, every important phase of this war; its causes, the manner in which it should be conducted, and the terms upon which peace should be made. The belief which is becoming widespread in this land that this most fundamental right is being denied to the citizens of this country is a fact the tremendous significance of which, those in authority have not yet begun to appreciate.
I am contending, Mr. President, for the great fundamental right of the sovereign people of this country to make their voice heard and have that voice heeded upon the great questions arising out of this war, including not only how the war shall be prosecuted but the conditions upon which it may be terminated with a due regard for the rights and the honor of this Nation and the interests of humanity.
I am contending for this right because the exercise of it is necessary to the welfare, to the existence, of this Government, to the successful conduct of this war, and to a peace which shall be enduring and for the best interest of this country.
Suppose success attends the attempt to stifle all discussion of the issues of the war, all discussion of the terms upon which it should be concluded, all discussion of the objects and purpose to be accomplished by it, and concede the demand of the war-mad press and war extremists that they monopolize the right of public utterance upon those questions unchallenged, what think you would be the consequence to this country not only during the war but after the war?
Right of People to Discuss War Issues
Mr. President, our Government, above all others, is founded on the right of the people freely to discuss all matters pertaining to their Government in war not less than in peace, for in this Government the people are the rulers in war no less than in peace. It is true, sir, that Members of the House of Representatives are elected for two years, the President for four years, and the Members of the Senate for six years, and during their temporary official terms these officers constitute what is called the Government. But back of them always is the controlling sovereign power of the people, and when the people can make their will known, the faithful officer will obey that will. Though the right of the people to express their will by ballot is suspended during the term of office of the elected official, nevertheless the duty of the official to obey the popular will continues throughout his entire term of office. How can that popular will express itself between elections except by meetings, by speeches, by publications, by petitions, and by addresses to the representatives of the people? Any man who seeks to set a limit upon those rights, whether in war or peace, aims a blow at the most vital part of our Government. And then as the time for election approaches and the official is called to account for his stewardship—not a day, not a week, not a month, before the election, but a year or more before it, if the people choose—they must have the right to the freest possible discussion of every question upon which their representative has acted, of the merits of every measure he has supported or opposed, of every vote he has cast and every speech that he has made. And before this great fundamental right every other must, if necessary, give way, for in no other manner can representative government be preserved.
Mr. President, what I am saying has been exemplified in the lives and public discussion of the ablest statesmen of this country, whose memories we must revere and whose deeds we most justly commemorate. I shall presently ask the attention of the Senate to the views of some of these men upon the subject we are now considering.
Closely related to this subject of the right of the citizen to discuss war is that of the constitutional power and duty of the Congress to declare the purposes and objects of any war in which our country may be engaged. The authorities which I shall cite cover both the right of the people to discuss the war in all its phases and the right and the duty of the people’s representatives in Congress to declare the purposes and objects of the war. For the sake of brevity I shall present these quotations together at this point instead of submitting them separately.
Discussion by American Statesmen
Henry Clay, in a memorable address at Lexington, Ky., on the 18th day of November, 1847, during the Mexican War, took a strong position in behalf of the right of the people to freely discuss every question relating to the war, even though the discussion involved a strong condemnation of the war policy of the Executive. He also declared it to be not only the right but the duty of the Congress to declare the objects of the war. As a part of that address he presented certain resolutions embodying his views on these subjects. These resolutions were adopted at that meeting by the people present, and were adopted at many other mass meetings throughout the country during the continuance of the Mexican War.
For introducing in this body some time ago a resolution asserting the right of Congress to declare the purposes of the present war, I have, as the newspaper clippings here will show, been denounced as a traitor and my conduct characterized as treasonable.
As bearing directly upon the conduct for which I have been so criticized and condemned, I invite your attention to the language of Henry Clay in the address I have mentioned.
But the havoc of war is in progress and the no less deplorable havoc of an inhospitable and pestilential climate. Without indulging in an unnecessary retrospect and useless reproaches on the past, all hearts and heads should unite in the patriotic endeavor to bring it to a satisfactory close. Is there no way that this can be done? Must we blindly continue the conflict without any visible object or any prospect of a definite termination? This is the important subject upon which I desire to consult and to commune with you. Who in this free Government is to decide upon the subjects of a war at its commencement or at any time during its existence? Does the power belong to collective wisdom of the Nation in Congress assembled, or is it vested solely in a single functionary of the Government? . . .
I quote further:
The Constitution provides that Congress shall have power to declare war and grant letters of marque and reprisal, to make rules concerning captures on land and water, to raise and support armies, and provide and maintain a navy, and to make rules for the government of the land and naval forces. Thus we perceive that the principal power, in regard to war, with all its auxiliary attendants, is granted to Congress. Whenever called upon to determine upon the solemn question of peace or war, Congress must consider and deliberate and decide upon the motives, objects, and causes of the war.
If that be true, is it treason for a Senator upon this floor to offer a resolution dealing with that question? . . .
Abraham Lincoln was a Member of Congress at the time of the Mexican War. He strongly opposed the war while it was in progress and severely criticized President Polk on the floor of the House because he did not state in his message when peace might be expected.
In the course of his speech Lincoln said:
At its beginning, Gen. Scott was by this same President driven into disfavor, if not disgrace, for intimating that peace could not be conquered in less than three or four months. But now, at the end of 20 months . . . this same President gives a long message, without showing us that as to the end he himself has even an imaginary conception. As I have said, he knows not where he is. He is a bewildered, confounded, and miserably perplexed man. God grant he may be able to show there is not something about his conscience more painful than his mental perplexity.
Writing to a friend who had objected to his opposition to Polk in relation to this power of the President in war, Lincoln said:
The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no man should hold the power of bringing this oppression upon us. But your view destroys the whole matter and places our President where kings have always stood.
I now quote from the speech of Charles Sumner, delivered at Tremont Temple, Boston, November 5, 1846.
John A. Andrew, who was the great war governor of Massachusetts, as I remember, presided at this public meeting, which was in support of the independent nomination of Dr. I. G. Howe as Representative in Congress. Mr. Sumner was followed by Hon. Charles Francis Adams, who also delivered an address at this meeting.
This is the view of Mr. Sumner on the Mexican War, which was then in progress, as expressed by him on this occasion:
The Mexican War is an enormity born of slavery. . . . Base in object, atrocious in beginning, immoral in all its influences, vainly prodigal of treasure and life, it is a war of infamy, which must blot the pages of our history.
In closing his eloquent and powerful address, he said:
Even if we seem to fail in this election we shall not fail in reality. The influence of this effort will help to awaken and organize that powerful public opinion by which this war will at last be arrested. Hang out, fellow citizens, the white banner of peace; let the citizens of Boston rally about it: and may it be borne forward by an enlightened, conscientious people, aroused to condemnation of this murderous war, until Mexico, now wet with blood unjustly shed, shall repose undisturbed beneath its folds.
Contrast this position taken by Charles Sumner at Tremont Temple with that of the Secretary of the Treasury, Mr. McAdoo. He is now touring the country with all the prestige of his great financial mission and the authority of his high place in the administration. I quote the language of the authorized report of his speech before the Bankers’ Association of West Virginia, September 21, 1917. According to daily press reports he is making substantially the same denunciation in all his addresses:
America intends that those well-meaning but misguided people who talk inopportunely of peace when there can be no peace until the cancer which has rotted civilization in Europe is extinguished and destroyed forever shall be silenced. I want to say here and now and with due deliberation that every pacifist speech in this country made at this inopportune and improper time is in effect traitorous.
In these times we had better turn the marble bust of Charles Sumner to the wall. It ill becomes those who tamely surrender the right of free speech to look upon that strong, noble, patriotic face.
Mr. President, Daniel Webster, then in the zenith of his power, and with the experience and knowledge of his long life and great public service in many capacities to add weight to his words, spoke at Faneuil Hall, November 6, 1846, in opposition to the Mexican War. He said:
Mr. Chairman, I wish to speak with all soberness in this respect, and I would say nothing here to-night which I would not say in my place in Congress or before the whole world. The question now is, For what purposes and to what ends is this present war to be prosecuted!
What will you say to the stature of the statesmanship that imputes treason to his country to a Member of this body who introduces a resolution having no other import than that?
Webster saw no reason why the purposes of the war in which his country was engaged should not be discussed in Congress or out of Congress by the people’s representatives or by the people themselves.
After referring to Mexico as a weak and distracted country he proceeded:
It is time for us to know what are the objects and designs of our Government.
It is not the habit of the American people, nor natural to their character, to consider the expense of a war which they deem just and necessary—
Not only just, but necessary—
but it is their habit and belongs to their character to inquire into the justice and necessity of a war in which it is proposed to involve them.
Mr. Webster discussed the Mexican War at Springfield, Mass., September 29, 1847, and again, while the war was in progress, he did not hesitate to express his disapproval in plain language.
Many battles had been fought and won, and our victorious armies were in the field, on foreign soil.
Sir, free speech had not been suppressed. The right of the people to assemble and to state their grievances was still an attribute of American freedom. Mr. Webster said:
We are, in my opinion, in a most unnecessary and therefore a most unjustifiable war.
Whoever expects to whip men, free men, in this country into a position where they are to be denied the right to exercise the same freedom of speech and discussion that Webster exercised in that speech little understand the value which the average citizen of this country places upon the liberty guaranteed to him by the Constitution. Sir, until the sacrifices of every battle field consecrated to the establishment of representative government and of constitutional freedom shall be obliterated from the pages of history and forgotten of men, the plain citizenship of this country will jealously guard that liberty and that freedom and will not surrender it.
To return to my text. Mr. Webster said:
We are, in my opinion, in a most unnecessary and therefore a must unjustifiable war. I hope we are nearing the close of it. I attend carefully and anxiously to every rumor and every breeze that brings to us any report that the effusion of blood, caused, in my judgment, by a rash and unjustifiable proceeding on the part of the Government, may cease.
He makes the charge that the war was begun under false pretexts, as follows:
Now, sir, the law of nations instructs us that there are wars of pretexts. The history of the world proves that there have been, and we are not now without proof that there are, wars waged on pretexts; that is, on pretenses, where the cause assigned is not the true cause. That I believe on my conscience is the true character of the war now waged against Mexico. I believe it to be a war of pretexts; a war in which the true motive is not distinctly avowed, but in which pretenses, afterthoughts, evasions, and other methods are employed to put a case before the community which is not the true case.
Think you Mr. Webster was not within his constitutional rights in thus criticizing the character of the war, its origin, and the reasons which were given from time to time in justification of it?
Mr. Webster discusses at length what he considers some of the false pretexts of the war. Later on he says:
Sir, men there are whom we see, and whom we hear speak of the duty of extending our free institutions over the whole world if possible. We owe it to benevolence, they think, to confer the blessings we enjoy on every other people. But while I trust that liberty and free civil institutions, as we have experienced them, may ultimately spread over the globe, I am by no means sure that all people are fit for them: nor am I desirous of imposing, or forcing, our peculiar forms upon any nation that does not wish to embrace them.
Taking up the subject that war does now exist, Mr. Webster asks:
What is our duty? I say for one, that I suppose it to be true—I hope it to be true—that a majority of the next House of Representatives will be Whigs: will be opposed to the war. I think we have heard from the East and the West, the North and the South, some things that make that pretty clear. Suppose it to be so. What then? Well, sir, I say for one, and at once, that unless the President of the United States shall make out a case which shall show to Congress that the aim and object for which the war is now prosecuted is no purpose not connected with the safety of the Union and the just rights of the American people, then Congress ought to pass resolutions against the prosecution of the war, and grant no further supplies. I would speak here with caution and all just limitation. It must be admitted to be the clear intent of the Constitution that no foreign war should exist without the assent of Congress. This was meant as a restraint on the Executive power. But, if, when a war has once begun, the President may continue it as long as he pleases, free of all control of Congress, then it is clear that the war power is substantially in his own single hand. Nothing will be done by a wise Congress hastily or rashly, nothing that partakes of the nature of violence or recklessness; a high and delicate regard must, of course, be had for the honor and credit of the Nation but, after all, if the war should become odious to the people, if they shall disapprove the objects for which it appears to be prosecuted, then it will be the bounden duty of their Representatives in Congress to demand of the President a full statement of his objects and purposes. And if these purposes shall appear to them not to be founded in the public good, or not consistent with the honor and character of the country, then it will be their duty to put an end to it by the exercise of their constitutional authority. If this be not so, then the whole balance of the Constitution is overthrown, and all just restraint on the Executive power, in a matter of the highest concern to the peace and happiness of the country, entirely destroyed. If we do not maintain this doctrine; if it is not so—if Congress, in whom the war-making power is expressly made to reside, is to have no voice in the declaration or continuance of war; if it is not to judge of the propriety of beginning or carrying it on—then we depart at once, and broadly, from the Constitution.
Mr. Webster concluded his speech in these memorable words:
We may be tossed upon an ocean where we can see no land—nor perhaps, the sun or stars. But there is a chart and a compass for us to study, to consult, and to obey. That chart is the Constitution of the country. That compass is an honest, single-eyed purpose to preserve the institutions and the liberty with which God has blessed us.
In 1847 Senator Tom Corwin made a memorable speech in the Senate on the Mexican War. It was one of the ablest addresses made by that very able statesman, and one of the great contributions to the discussion of the subject we are now considering. At the time of Senator Corwin’s address the majority in Congress were supporting the President. The people up to that time had had no chance to express their views at an election. After referring to the doctrine then preached by the dominant faction of the Senate, that after war is declared it must be prosecuted to the bitter end as the President may direct, until one side or the other is hopelessly beaten and devastated by the conflict, with one man—the President—in sole command of the destinies of the Nation. Mr. Corwin said:
With these doctrines for our guide, I will thank any Senator to furnish me with any means of escaping from the prosecution of this or any other war, for an hundred years to come. If it please the President who shall be, to continue it so long. Tell me, ye who contend that, being in war, duty demands of Congress for its prosecution all the money and every able-bodied man in America to carry it on if need be, who also contend that it is the right of the President, without the control of Congress, to march your embodied hosts to Monterey, to Yucatan, to Mexico, to Panama, to China, and that under penalty of death to the officer who disobeys him—tell me, I demand it of you—tell me, tell the American people, tell the nations of Christendom, what is the difference between your democracy and the most odious, most hateful despotism that a merciful God has ever allowed a nation to be afflicted with since government on earth began? You may call this free government, but it is such freedom, and no other, as of old was established at Babylon, at Susa, at Bactrina, or Persepolis. Its parallel is scarcely to be found when thus falsely understood, in any, even the worst, forms of civil polity in modern times. Sir, it is not so; such is not your Constitution; it is something else, something other and better than this.
Lincoln, Webster, Clay, Sumner—what a galaxy of names in American history! They all believed and asserted and advocated in the midst of war that it was the right—the constitutional right—and the patriotic duty of American citizens, after the declaration of war and while the war was in progress, to discuss the issues of the war and to criticize the policies employed in its prosecution and to work for the election of representatives opposed to prolonging war.
The right of Lincoln, Webster, Clay, Sumner to oppose the Mexican War, criticize its conduct, advocate its conclusion on a just basis, is exactly the same right and privilege as that possessed by every Representative in Congress and by each and every American citizen in our land to-day in respect to the war in which we are now engaged. Their arguments as to the power of Congress to shape the war policy and their opposition to what they believed to be the usurpation of power on the part of the Executive are potent so long as the Constitution remains the law of the land. . . .
Mr. President, while we were struggling for our independence the Duke of Grafton, in the House of Lords, October 28, 1775, speaking against voting thanks to British officers and soldiers, after the battles of Lexington and Bunker Hill, declared:
I pledge myself to your lordships and my country that if necessity should require it and my health otherwise permit it, I mean to come down to this House in a litter in order to express my full and hearty disapproval of the measures now pursued, and, as I understand from the noble lords in office, meant to be pursued.
On the same occasion, Mr. Fox said:
I could not consent to the bloody consequences of so silly a contest, about so silly an object, conducted in the silliest manner that history or observation had ever furnished an instance of, and from which we are likely to derive poverty, misery, disgrace, defeat, and ruin.
In the House of Commons, May 14, 1777, Mr. Burke is reported in the parliamentary debates against the war on the American Colonies, as saying he was, and ever would be, ready to support a just war, whether against subjects or alien enemies, but where justice or color of justice was wanting he would ever be the first to oppose it.
Lord Chatham, November 18, 1777, spoke as follows regarding the war between England and the American Colonies:
I would sell my shirt off my back to assist in proper measures, properly and wisely conducted, but I would not part with a single shilling to the present ministers. Their plans are founded in destruction and disgrace. It is, my lords, a ruinous and destructive war; it is full of danger; it teems with disgrace and must end in ruin . . . if I were an American, as I am an Englishman, while a foreign troop was landed in my country I never would lay down my arms! Never! Never! Never!
Mr. President, I have made these quotations from some of the leading statesmen of England to show that the principle of free speech was no new doctrine born of the Constitution of the United States. Our Constitution merely declared the principle. It did not create it. It is a heritage of English-speaking peoples, which has been won by incalculable sacrifice, and which they must preserve so long as they hope to live as free men. I say without fear of contradiction that there has never been a time for more than a century and a half when the right of free speech and free press and the right of the people to peaceably assemble for public discussion have been so violated among English-speaking people as they are violated to-day throughout the United States. To-day, in the land we have been wont to call the free United States, governors, mayors, and policemen are preventing or breaking up peaceable meetings called to discuss the questions growing out of this war, and judges and courts, with some notable and worthy exceptions, are failing to protect the citizens in their rights.
It is no answer to say that when the war is over the citizen may once more resume his rights and feel some security in his liberty and his person. As I have already tried to point out, now is precisely the time when the country needs the counsel of all its citizens. In time of war even more than in time of peace, whether citizens happen to agree with the ruling administration or not, these precious fundamental personal rights—free speech, free press, and right of assemblage so explicitly and emphatically guaranteed by the Constitution should be maintained inviolable. There is no rebellion in the land, no martial law, no courts are closed, no legal processes suspended, and there is no threat even of invasion.
But more than this, if every preparation for war can be made the excuse for destroying free speech and a free press and the right of the people to assemble together for peaceful discussion, then we may well despair of ever again finding ourselves for a long period in a state of peace. With the possessions we already have in remote parts of the world, with the obligations we seem almost certain to assume as a result of the present war, a war can be made any time overnight and the destruction of personal rights now occurring will be pointed to then as precedents for a still further invasion of the rights of the citizen. This is the road which all free governments have heretofore traveled to their destruction, and how far we have progressed along it is shown when we compare the standard of liberty of Lincoln, Clay, and Webster with the standard of the present day.
This leads me, Mr. President, to the next thought to which I desire to invite the attention of the Senate, and that is the power of Congress to declare the purpose and objects of the war, and the failure of Congress to exercise that power in the present crisis.
Power of Congress to Declare Objects of War
For the mere assertion of that right, in the form of a resolution to be considered and discussed—which I introduced August 11, 1917—I have been denounced throughout this broad land as a traitor to my country.
Mr. President, we are in a war the awful consequences of which no man can foresee, which, in my judgment, could have been avoided if the Congress had exercised its constitutional power to influence and direct the foreign policy of this country.
On the 8th day of February, 1915, I introduced in the Senate a resolution authorizing the President to invite the representatives of the neutral nations of the world to assemble and consider, among other things, whether it would not be possible to lay out lanes of travel upon the high seas and through proper negotiation with the belligerent powers have those lanes recognized as neutral territory, through which the commerce of neutral nations might pass. This, together with other provisions, constituted a resolution, as I shall always regard it, of most vital and supreme importance in the world crisis, and one that should have been considered and acted upon by Congress.
I believe, sir, that had some such action been taken the history of the world would not be written at this hour in the blood of more than one-half of the nations of the earth, with the remaining nations in danger of becoming involved.
I believe that had Congress exercised the power in this respect, which I contend it possesses, we could and probably would have avoided the present war.
Mr. President, I believe that if we are to extricate ourselves from this war and restore this country to an honorable and lasting peace, the Congress must exercise in full the war powers intrusted to it by the Constitution. I have already called your attention sufficiently, no doubt, to the opinions upon this subject expressed by some of the greatest lawyers and statesmen of the country, and I now venture to ask your attention to a little closer examination of the subject viewed in the light of distinctly legal authorities and principles.
Constitutional Provisions Involved
Section 8, Article I, of the Constitution provides:
The Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States.
In this first sentence we find that no war can be prosecuted without the consent of the Congress. No war can be prosecuted without money. There is no power to raise the money for war except the power of Congress. From this provision alone it must follow absolutely and without qualification that the duty of determining whether a war shall be prosecuted or not, whether the people’s money shall be expended for the purpose of war or not rests upon the Congress, and with that power goes necessarily the power to determine the purposes of the war, for if the Congress does not approve the purposes of the war, it may refuse to lay the tax upon the people to prosecute it.
Again, section 8 further provides that Congress shall have power—
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a Navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion;
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.
In the foregoing grants of power, which are as complete as language can make them, there is no mention of the President. Nothing is omitted from the powers conferred upon the Congress. Even the power to make the rules for the government and the regulation of all the national forces, both on land and on the sea, is vested in the Congress.
Then, not content with this, to make certain that no question could possibly arise, the framers of the Constitution declared that Congress shall have power—
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
We all know from the debates which took place in the constitutional convention why it was that the Constitution was so framed as to vest in the Congress the entire war-making power. The framers of the Constitution knew that to give to one man that power meant danger to the rights and liberties of the people. They knew that it mattered not whether you call the man king or emperor, czar or president, to put into his hands the power of making war or peace meant despotism. It meant that the people would be called upon to wage wars in which they had no interest or to which they might even be opposed. It meant secret diplomacy and secret treaties. It meant that in those things most vital to the lives and welfare of the people, they would have nothing to say. The framers of the Constitution believed that they had guarded against this in the language I have quoted. They placed the entire control of this subject in the hands of the Congress. And it was assumed that debate would be free and open, that many men representing all the sections of the country would freely, frankly, and calmly exchange their views, unafraid of the power of the Executive, uninfluenced by anything except their own convictions, and a desire to obey the will of the people expressed in a constitutional manner.
Another reason for giving this power to the Congress was that the Congress, particularly the House of Representatives, was assumed to be directly responsible to the people and would most nearly represent their views. The term of office for a Representative was fixed at only two years. One-third of the Senate would be elected each two years. It was believed that this close relation to the people would insure a fair representation of the popular will in the action which the Congress might take. Moreover, if the Congress for any reason was unfaithful to its trust and declared a war which the people did not desire to support or to continue, they could in two years at most retire from office their unfaithful Representatives and return others who would terminate the war. It is true that within two years much harm could be done by an unwise declaration of war, especially a war of aggression, where men were sent abroad. The framers of the Constitution made no provision for such a condition, for they apparently never contemplated that such a condition would arise.
Moreover, under the system of voluntary enlistment, which was the only system of raising an army for use outside the country of which the framers of the Constitution had any idea, the people could force a settlement of any war to which they were opposed by the simple means of not volunteering to fight it.
The only power relating to war with which the Executive was intrusted was that of acting as Commander in Chief of the Army and Navy and of the militia when called into actual service. This provision is found in section 2 of Article II, and is as follows:
The President shall be Commander in Chief of the Army and Navy of the United States and of the militia of the several States when called into the actual service of the United States.
Here is found the sum total of the President’s war powers. After the Army is raised he becomes the General in Command. His function is purely military. He is the General in Command of the entire Army, just as there is a general in command of a certain field of operation. The authority of each is confined strictly to the field of military service. The Congress must raise and support and equip and maintain the Army which the President is to command. Until the Army is raised the President has no military authority over any of the persons that may compose it. He can not enlist a man, or provide a uniform, or a single gun, or pound of powder. The country may be invaded from all sides and except for the command of the Regular Army, the President, as Commander in Chief of the Army, is as powerless as any citizen to stem the tide of the invasion. In such case his only resort would be to the militia, as provided in the Constitution. Thus completely did the fathers of the Constitution strip the Executive of military power.
It may be said that the duty of the President to enforce the laws of the country carries with it by implication control over the military forces for that purpose, and that the decision as to when the laws are violated, and the manner in which they should be redressed, rests with the President. This whole matter was considered in the famous case of Ex parte Milligan. The question of enforcing the laws of the United States, however, does not arise in the present discussion. The laws of the United States have no effect outside the territory of the United States. Our Army in France or our Navy on the high seas may be engaged in worthy enterprises, but they are not enforcing the laws of the United States, and the President derives from his constitutional obligation to enforce the laws of the country no power to determine the purposes of the present war.
The only remaining provision of the Constitution to be considered on the subject is that provision of Article II, section 2, which provides that the President—
Shall have power by and with the consent of the Senate to make treaties, providing two-thirds of the Senate present concur.
This is the same section of the Constitution which provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, consuls, judges of the Supreme Court,” and so forth.
Observe, the President under this constitutional provision gets no authority to declare the purposes and objects of any war in which the country may be engaged. It is true that a treaty of peace can not be executed except the President and the Senate concur in its execution. If a President should refuse to agree to terms of peace which were proposed, for instance, by a resolution of Congress, and accepted by the parliament of an enemy nation against the will, we will say, of an emperor, the war would simply stop. If the two parliaments agreed and exercised their powers respectively to withhold supplies; and the formal execution of a treaty of peace would be postponed until the people could select another President. It is devoutly to be hoped that such a situation will never arise, and it is hardly conceivable that it should arise with both an Executive and a Senate anxious, respectively, to discharge the constitutional duties of their office. But if it should arise, under the Constitution, the final authority and the power to ultimately control is vested by the Constitution in the Congress. The President can no more make a treaty of peace without the approval not only of the Senate but of two-thirds of the Senators present than he can appoint a judge of the Supreme Court without the concurrence of the Senate. A decent regard for the duties of the President, as well as the duties of the Senators, and the consideration of the interests of the people, whose servants both the Senators and the President are, requires that the negotiations which lead up to the making of peace should be participated in equally by the Senators and by the President. For Senators to take any other position is to shirk a plain duty; is to avoid an obligation imposed upon them by the spirit and letter of the Constitution and by the solemn oath of office each has taken. . . .
Since the Constitution vests in Congress the supreme power to determine when and for what purpose the country will engage in war and the objects to attain which the war will be prosecuted, it seems to me to be an evasion of a solemn duty on the part of the Congress not to exercise that power at this critical time in the Nation’s affairs. The Congress can no more avoid its responsibility in this matter than it can in any other. As the Nation’s purposes in conducting this war are of supreme importance to the country, it is the supreme duty of Congress to exercise the function conferred upon it by the Constitution of guiding the foreign policy of the Nation in the present crisis.
A minor duty may be evaded by Congress, a minor responsibility avoided without disaster resulting, but on this momentous question there can be no evasion, no shirking of duty of the Congress, without subverting our form of government. If our Constitution is to be changed so as to give the President the power to determine the purposes for which this Nation will engage in war, and the conditions on which it will make peace, then let that change be made deliberately by an amendment to the Constitution proposed and adopted in a constitutional manner. It would be bad enough if the Constitution clothed the President with any such power, but to exercise such power without constitutional authority can not long be tolerated if even the forms of free government are to remain. We all know that no amendment to the Constitution giving the President the powers suggested would be adopted by the people. We know that if such an amendment were to be proposed it would be overwhelmingly defeated.
The universal conviction of those who yet believe in the rights of the people is that the first step toward the prevention of war and the establishment of peace, permanent peace, is to give the people who must bear the brunt of war’s awful burden more to say about it. The masses will understand that it was the evil of a one-man power exercised in a half dozen nations through the malevolent influences of a system of secret diplomacy that plunged the helpless peoples of Europe into the awful war that has been raging with increasing horror and fury ever since it began and that now threatens to engulf the world before it stops.
No conviction is stronger with the people to-day than that there should be no future wars except in case of actual invasion, unless supported by a referendum, a plebiscite, a vote of ratification upon the declaration of war before it shall become effective.
And because there is no clearness of understanding, no unity of opinion in this country on the part of the people as to the conditions upon which we are prosecuting this war or what the specific objects are upon the attainment of which the present administration would be willing to conclude a peace, it becomes still more imperative each day that Congress should assert its constitutional power to define and declare the objects of this war which will afford the basis for a conference and for the establishment of permanent peace. The President has asked the German people to speak for themselves on this great world issue; why should not the American people voice their convictions through their chosen representatives in Congress?
Ever since new Russia appeared upon the map she has been holding out her hands to free America to come to her support in declaring for a clear understanding of the objects to be attained to secure peace. Shall we let this most remarkable revolution the world has ever witnessed appeal to us in vain?
We have been six months at war. We have incurred financial obligations and made expenditures of money in amounts already so large that the human mind can not comprehend them. The Government has drafted from the peaceful occupations of civil life a million of our finest young men—and more will be taken if necessary—to be transported 4,000 miles over the sea, with their equipment and supplies, to the trenches of Europe.
The first chill winds of autumn remind us that another winter is at hand. The imagination is paralyzed at the thought of the human misery, the indescribable suffering, which the winter months, with their cold and sleet and ice and snow, must bring to the war-swept lands, not alone to the soldiers at the front but to the noncombatants at home.
To such excesses of cruelty has this war descended that each nation is now, as a part of its strategy, planning to starve the women and children of the enemy countries. Each warring nation is carrying out the unspeakable plan of starving noncombatants. Each nurses the hope that it may break the spirit of the men of the enemy country at the front by starving the wives and babes at home, and woe be it that we have become partners in this awful business and are even cutting off food shipments from neutral countries in order to force them to help starve women and children of the country against whom we have declared war.
There may be some necessity overpowering enough to justify these things, but the people of America should demand to know what results are expected to satisfy the sacrifice of all that civilization holds dear upon the bloody altar of a conflict which employs such desperate methods of warfare.
The question is, Are we to sacrifice millions of our young men—the very promise of the land—and spend billions and more billions, and pile up the cost of living until we starve—and for what? Shall the fearfully overburdened people of this country continue to bear the brunt of a prolonged war for any objects not openly stated and defined?
The answer, sir, rests, in my judgment, with the Congress, whose duty it is to declare our specific purposes in the present war and to state the objects upon the attainment of which we will make peace.
Campaign Should Be Made on Constitutional Lines
And, sir, this is the ground on which I stand. I maintain that Congress has the right and the duty to declare the objects of the war and the people have the right and the obligation to discuss it.
American citizens may hold all shades of opinion as to the war; one citizen may glory in it, another may deplore it, each has the same right to voice his judgment. An American citizen may think and say that we are not justified in prosecuting this war for the purpose of dictating the form of government which shall be maintained by our enemy or our ally, and not be subject to punishment at law. He may pray aloud that our boys shall not be sent to fight and die on European battle fields for the annexation of territory or the maintenance of trade agreements and be within his legal rights. He may express the hope that an early peace may be secured on the terms set forth by the new Russia and by President Wilson in his speech of January 22, 1917, and he can not lawfully be sent to jail for the expression of his convictions.
It is the citizen’s duty to obey the law until it is repealed or declared unconstitutional. But he has the inalienable right to fight what he deems an obnoxious law or a wrong policy in the courts and at the ballot box.
It is the suppressed emotion of the masses that breeds revolution.
If the American people are to carry on this great war, if public opinion is to be enlightened and intelligent, there must be free discussion.
Congress, as well as the people of the United States, entered the war in great confusion of mind and under feverish excitement. The President’s leadership was followed in the faith that he had some big, unrevealed plan by which peace that would exalt him before all the world would soon be achieved.
Gradually, reluctantly, Congress and the country are beginning to perceive that we are in this terrific world conflict not only to right our wrongs, not only to aid the allies, not only to share its awful death toll and its fearful tax burden, but, perhaps, to bear the brunt of the war.
And so I say, if we are to forestall the danger of being drawn into years of war, perhaps finally to maintain imperialism and exploitation, the people must unite in a campaign along constitutional lines for free discussion of the policy of the war and its conclusion on a just basis.
Permit me, sir, this word in conclusion. It is said by many persons for whose opinions I have profound respect and whose motives I know to be sincere that “we are in this war and must go through to the end.” That is true. But it is not true that we must go through to the end to accomplish an undisclosed purpose, or to reach an unknown goal.
I believe that whatever there is of honest difference of opinion concerning this war, arises precisely at this point.
There is, and of course can be, no real difference of opinion concerning the duty of the citizen to discharge to the last limit whatever obligation the war lays upon him.
Our young men are being taken by the hundreds of thousands for the purpose of waging this war on the Continent of Europe, possibly Asia or Africa, or anywhere else that they may be ordered. Nothing must be left undone for their protection. They must have the best army, ammunition, and equipment that money can buy. They must have the best training and the best officers which this great country can provide. The dependents and relatives they leave at home must be provided for, not meagerly, but generously so far as money can provide for them.
I have done some of the hardest work of my life during the last few weeks on the revenue bill to raise the largest possible amount of money from surplus incomes and war profits for this war and upon other measures to provide for the protection of the soldiers and their families. That I was not able to accomplish more along this line is a great disappointment to me. I did all that I could, and I shall continue to fight with all the power at my command until wealth is made to bear more of the burden of this war than has been laid upon it by the present Congress. Concerning these matters there can be no difference of opinion. We have not yet been able to muster the forces to conscript wealth, as we have conscripted men, but no one has ever been able to advance even a plausible argument for not doing so.
No, Mr. President; it is on the other point suggested where honest differences of opinion may arise. Shall we ask the people of this country to shut their eyes and take the entire war program on faith? There are no doubt many honest and well-meaning persons who are willing to answer that question in the affirmative rather than risk the dissensions which they fear may follow a free discussion of the issues of this war. With that position I do not—I can not agree. Have the people no intelligent contribution to make to the solution of the problems of this war? I believe that they have, and that in this matter, as in so many others, they may be wiser than their leaders, and that if left free to discuss the issues of the war they will find the correct settlement of these issues.
But it is said that Germany will fight with greater determination if her people believe that we are not in perfect agreement. Mr. President, that is the same worn-out pretext which has been used for three years to keep the plain people of Europe engaged in killing each other in this war. And, sir, as applied to this country, at least, it is a pretext with nothing to support it.
The way to paralyze the German arm, to weaken the German military force, in my opinion, is to declare our objects in this war, and show by that declaration to the German people that we are not seeking to dictate a form of government to Germany or to render more secure England’s domination of the seas.
A declaration of our purposes in this war, so far from strengthening our enemy, I believe would immeasurably weaken her, for it would no longer be possible to misrepresent our purposes to the German people. Such a course on our part, so far from endangering the life of a single one of our boys, I believe would result in saving the lives of hundreds of thousands of them by bringing about an earlier and more lasting peace by intelligent negotiation, instead of securing a peace by the complete exhaustion of one or the other of the belligerents.
Such a course would also immeasurably, I believe, strengthen our military force in this country, because when the objects of this war are clearly stated and the people approve of those objects they will give to the war a popular support it will never otherwise receive.
Then, again, honest dealing with the entente allies, as well as with our own people, requires a clear statement of our objects in this war. If we do not expect to support the entente allies in the dreams of conquest we know some of them entertain, then in all fairness to them that fact should be stated now. If we do expect to support them in their plans for conquest and aggrandizement, then our people are entitled to know that vitally important fact before this war proceeds further. Common honesty and fair dealing with the people of this country and with the nations by whose side we are fighting, as well as a sound military policy at home, requires the fullest and freest discussion before the people of every issue involved in this great war and that a plain and specific declaration of our purposes in the war be speedily made by the Congress of the United States.
May 16, 1918
An Act To amend section three, title one, of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June fifteenth, nineteen hundred and seventeen, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section three of title one of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June fifteenth, nineteen hundred and seventeen, be, and the same is hereby, amended so as to read as follows:
“Sec. 3. 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, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever, when the United States is at war, shall willfully cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both: Provided, That any employee or official of the United States Government who commits any disloyal act or utters any unpatriotic or disloyal language, or who, in an abusive and violent manner criticizes the Army or Navy4 or the flag of the United States shall be at once dismissed from the service. Any such employee shall be dismissed by the head of the department in which the employee may be engaged, and any such official shall be dismissed by the authority having power to appoint a successor to the dismissed official.”
Sec. 2. That section one of Title XII and all other provisions of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June fifteenth, nineteen hundred and seventeen, which apply to section three of Title I thereof shall apply with equal force and effect to said section three as amended.
Title XII of the said Act of June fifteenth, nineteen hundred and seventeen, be, and the same is hereby, amended by adding thereto the following section:
Sec. 4. When the United States is at war, the Postmaster General may, upon evidence satisfactory to him that any person or concern is using the mails in violation of any of the provisions of this Act, instruct the postmaster at any post office at which mail is received addressed to such person or concern to return to the postmaster at the office at which they were originally mailed all letters or other matter so addressed, with the words ‘Mail to this address undeliverable under Espionage Act’ plainly written or stamped upon the outside thereof, and all such letters or other matter so returned to such postmasters shall be by them returned to the senders thereof under such regulations as the Postmaster General may prescribe.”
Approved, May 16, 1918.
Schenck v. United States
Mr. Justice Holmes delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On August 20 the general secretary’s report said “Obtained new leaflets from printer and started work addressing envelopes” &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383, 395, 396. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants’ possession. See Johnson v. United States, 228 U.S. 457. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.
The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said “Do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.” It stated reasons for alleging that any one violated the Constitution when he refused to recognize “your right to assert your opposition to the draft,” and went on “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up “You must do your share to maintain, support and uphold the rights of the people of this country.” Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. 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. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words are “obstruct the recruiting or enlistment service,” and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. Stats., § 13.
Delivered to a joint session of Congress while World War I still raged, the speech reproduced here sets forth Wilson’s view of the principles and specific actions necessary to secure a just and lasting peace in Europe and throughout the world. Many of Wilson’s points attempted to address deep-seated geographical and cultural problems and the results of the war itself. Other, more general, points sought the vindication of Wilsonian principles of international human rights, including free trade, the elimination of secret treaties, and the redrawing of national borders to reflect people’s cultural and other ties. Once the war ended, Wilson sought to enshrine his Fourteen Points in the Versailles Treaty. His partial success was further limited by the United States’ refusal to ratify that treaty.