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(40 Sup.Ct.)

-which defendants admitted referred to the other things essential to the conduct of the United States Government

"must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war."

The purpose of this obviously was to persuade the persons to whom it was addressed 621

to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.

It goes on:

"With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom."

It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans and not to work in ammunition factories, where their work would produce "bullets, bayonets, cannon" and other munitions of war, the use of which would cause the "murder" of Germans and Russians.

war.

This purpose is emphasized in the next paragraph, which reads:

"Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight."

After more of the same kind, the circular concludes:

"Woe unto those who will be in the way of progress. Let solidarity live!"

It is signed, "The Rebels."

That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: "Revolutionists! Unite for Action!"

After denouncing the President as "Our Kaiser" and the hypocrisy of the United States and her Allies, this article concludes: *623

*"Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations Unite for Aotion and let us save the Workers' Republic of Russia!

"Know you lovers of freedom that in order to save the Russian revolution, we must keep the armies of the allied countries busy at home."

Thus was again avowed the purpose to Again, the spirit becomes more bitter as it throw the country into a state of revolution, proceeds to declare that

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if possible, and to thereby frustrate the military program of the government.

The remaining article, after denouncing the President for what is characterized as hostility to the Russian revolution, continues:

"We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia."

It concludes with this definite threat of armed rebellion:

"If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution."

These excerpts sufficiently show, that while the immediate occasion for this par

America, etc., to fight the workers' republic of Russia, and ends "Awake! Awake, you workers of the world! Revolutionists." A

note adds "It is absurd to call us pro-German. We hate and despise German militarWe have more reason for denouncing Gerism more than do you hypocritical tyrants.

ticular outbreak of lawlessness, on the part | President's cowardly silence about the interof the defendant alien anarchists, may have vention in Russia reveals the hypocrisy of been resentment caused by our government the plutocratic gang in Washington. It insending troops into Russia as a strategic timates that "German militarism combined operation against the Germans on the east- with allied capitalism to crush the Russian ern battle front, yet the plain purpose of revolution"-goes on that the tyrants of the their propaganda was to excite, at the su- world fight each other until they see a compreme crisis of the war, disaffection, sedi- mon enemy-working class enlightenment, tion, riots, and, as they hoped, revolution, when they combine to crush it; and that in this country for the purpose of embarrass- now militarism and capitalism combined, ing and if possible defeating the military though not openly, to crush the Russian revplans of the government in Europe. A tech-olution. It says that there is only one enemy nical distinction may perhaps be taken be of the workers of the world and that is tween disloyal and abusive language applied capitalism; that it is a crime for workers of to the form of our government or lan*624 guage intended to bring the form *of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment and under the long established rule of law hereinbefore stated the judgment of the District Court must be Affirmed.

man militarism than has the coward of the White House."

The other leaflet, headed "Workers-Wake Up," with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth and says that with the money they have lent or are going to lend "they will make bullets not only for the Germans but also for the Workers Soviets of Russia," and further, "Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only the Ger

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*mans, but also your dearest, best, who are in Russia fighting for freedom." It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary expedition in Russia," and says that the destruction of the Russian revolution is "the politics of the march on Russia." The leaflet winds up by saying "Workers, our reply to this barbaric intervention has to be a general strike!" and after a few words on the

spirit of revolution, exhortations not to be afraid, and some usual tall talk ends "Woe unto those who will be in the way of prog

Mr. Justice HOLMES, dissenting. This indictment is founded wholly upon the publication of two leaflets which I shall de scribe in a moment. The first count charges a conspiracy pending the war with Germany to publish abusive language about the form of government of the United States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into contempt, laying the preparation and publishing of the two leaflets as No argument seems to be necessary to show overt acts. The third count alleges a conspiracy to encourage resistance to the United that these pronunciamentos in no way attack States in the same war and to attempt to ef- the form of government of the United States, or that they do not support either of the first fectuate the purpose by publishing the same two counts. What little I have to say about leaflets. The fourth count lays a conspiracy the third count may be postponed until I to incite curtailment of production of things have considered the fourth. With regard to necessary to the prosecution of the war and that it seems too plain to be denied that the to attempt to accomplish it by publishing the suggestion to workers in the ammunition facsecond leaflet to which I have referred. tories that they are producing bullets to mur The first of these leaflets says that the der their dearest, and the further advocacy

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ress.

Let solidarity live! The Rebels."

(40 Sup. Ct.)

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than in time of peace because war opens dangers that do not exist at other times.

of a general strike, both in the second leaf- that it will bring about forthwith certain let, do urge curtailment of production of substantive evils that the United States conthings necessary to the prosecution of the stitutionally may seek to prevent. The powwar within the meaning of the Act of May er undoubtedly is *greater in time of war 16, 1918, c. 75, 40 Stat. 553, amending section 3 of the earlier Act of 1917 (Comp. St. § 10212c). But to make the conduct criminal that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved.

But as against dangers peculiar to war, as against others, the principle of the right to It is only free speech is always the same. the present danger of immediate evil or an intent to bring it about that warrants Con

I am aware of course that the word "in-gress in setting a limit to the expression of tent" as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than

that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of *627

his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.

It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.

opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surrepti

tious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is re

quired to complete the substantive crime, for reasons given in Swift & Co. v. United States, 196 U. S. 375, 396, 25 Sup. Ct. 276, 49 L. Ed. 518. It is necessary where the success of the attempt depends upon others because if that intent is not present the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.

I do not see how anyone can find the intent required by the statute in any of the defendant's words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the *629 former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American interI never have seen any reason to doubt that vention there against the popular government the questions of law that alone were before not to impede the United States in the war this Court in the Cases of Schenck (249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470) Frohwerk (249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561), and Debs (249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566), were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger

that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect.

I return for a moment to the third count. That charges an intent to provoke resistance to the United States in its war with Ger

ference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to

many. Taking the clause in the statute that they so imminently threaten immediate interdeals with that in connection with the other elaborate provisions of the Act, I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described and for the reasons me against the notion. I had conceived that that I have given I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase.

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow-a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although

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made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless

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the United States through many years had
shown its repentance for the Sedition Act of
1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by
repaying fines that it imposed. Only the
emergency that makes it immediately danger-
ous to leave the correction of evil counsels to
time warrants *making any exception to the
sweeping command, "Congress shall make no
law abridging the freedom of speech."
course I am speaking only of expressions of
opinion and exhortations, which were all
that were uttered here, but I regret that I
cannot put into more impressive words my
belief that in their conviction upon this in-
dictment the defendants were deprived of
their rights under the Constitution of the

United States.

Of

Mr. Justice BRANDEIS concurs with the foregoing opinion.

(250 U. S. 603) BANK OF OXFORD et al. v. LOVE et al., Bank Examiners of State of Mississippi. (Argued Oct. 10, 1919. Decided Nov. 10, 1919.)

No. 9.

1. CONSTITUTIONAL LAW 125-BANK CHARTER A "CONTRACT" UNDER FEDERAL CONSTITUTION.

A bank's charter from a state Legislature, embodied in a special act, constitutes a "contract," protected by the federal Constitution, in its provision against impairment of the obligation of contracts.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Contract.]

LAW

2. CONSTITUTIONAL
129-BANKING
LAW REQUIRING EXAMINATIONS AND PAY-
MENTS TO STATE BANKING DEPARTMENT, CON-
STITUTIONAL.

No impairment of the corporate charter of a bank from a state, embodied in special act containing a section that the business of the bank shall be controlled by its stockholders under such rules and regulations as the company may see fit to adopt, will result from reasonable examinations and small prescribed payments for the maintenance of the state banking department; the examinations and payments being required by act of the Legislature of the state of Mississippi of March 9, 1914 (Laws 1914, c. 124).

In Error to the Supreme Court of the State of Mississippi.

Bill by the Bank of Oxford and others against J. S. Love and others, Bank Exami

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

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After paying one assessment under protest plaintiff bank, May 14, 1914, instituted this proceeding in the chancery court for Hinds county. The original bill sets up and relies upon the charter of 1872 as a contract, protected by the federal Constitution, which by confiding control to stockholders excludes legislative authority in respect thereto. It alleges:

"That the said bank examiners are threatenand to exercise such powers as are provided for ing to interfere with the affairs of this bank by said statute [of 1914] over this bank, and

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are threatening to make such examinations and

Mr. Justice McREYNOLDS delivered the reports upon and about, and to exercise all opinion of the Court.

A special act of the Mississippi Legislature approved March, 1872, incorporated the Bank of Oxford and authorized it to "exercise the privilege appertaining to a general banking, exchange and brokerage business, with all the power of a body corporate." Section 4 declares:

"That the business of said bank shall be confided to and controlled by its stockholders under such rules of laws and regulations as said company may see fit to adopt: Provided, the same be not in conflict with the Constitution of the United States or of this state."

It was immediately organized, and has continued to carry on business under the charter so granted.

By a comprehensive act containing 69 sec

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tions, *approved March 9, 1914 (Laws 1914, c. 124), the Legislature prescribed general regulations concerning banking. Its scope is fairly indicated by the title, copied below.1 Section 23 provides:

"Each bank subject to the provisions of this act is hereby assessed for each year one-fortieth of one per cent. of its total assets, and the money accruing from said assessment shall be used for the maintenance of the banking department."

1"An act establishing a banking department for the state of Mississippi, creating a board of bank commissioners, prescribing their qualifications, duties and compensation, providing for the election of state bank examiners, prescribing their qualifications, duties and compensation, defining what shall constitute a bank and banking business in the state of Mississippi fixing the capital required to do a banking business, and providing for the examination, regulation and control of banks and banking business conducted by corporations, other than national banks and postal savings banks and fixing the assessment for the revenues of the department, fixing qualifications and liability of officers, stockholders and directors of banking corporations; fixing the qualifications and liability of persons, firms and corporations in the banking business;

providing for the payment of deposits to minors count; prohibiting banking except under the provisions of this act; providing for the liquidation of banks and the distribution of the assets thereof; providing for giving publicity to deposits more than five years old; and prescribing penalties for the breach of any of the provisions thereof, and to provide a system for guaranteeing deposits, and for other purposes, without expense to the state."

and other persons under disability and on joint ac

the other authorities and powers provided for by such statute, over the affairs of your orator, said bank. And your orator pleads hereby, and invokes for such, its contract immunity from such supervision and control, the said contract clause of the Constitution of the United States, and claims its right exclusively to control and manage the affairs of its own bank."

And further:

"Your orator protests and shows that it was not subject to the provisions of said banking law, and by its said contract charter, the whole scheme so devised, as applied to your orator bank, was unconstitutional and void; and your orator shows that for such reason it was not subject to assessment devised and contrived only for the purpose of maintaining such bank department; and your orator was protected against the payment of such assessment, also, by the said contract clause of the Constitution of the United States."

The prayer is for an injunction perpetually restraining defendants and their successors from examining or undertaking to enforce as against the complainant any provision contained in the act of March 9, 1914, and for a decree requiring repayment of the sum assessed and paid under protest.

[1, 2] No argument is required to show that the charter of 1872 constitutes a contract protected by the federal Constitution. But the construction placed upon section 4 by counsel for plaintiffs in error is not tenable. It really contains nothing which purports to take away commonly recognized power of the state to establish such reasonable and general regulations of banks as may be essential to public safety, and to enforce them through a board supported by moderate assessments upon those engaging in the busi

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