of the law be rendered, it must stand unreversed and unpunished, since Bushell's Case, Vaughn, 135; and a verdict of conviction, though resting on inferences of fact that the judges would not draw, is assailable in an appellate court, only by demonstrating that reasonable men could not, as matter of law, be convinced beyond a reasonable doubt. The feat is always difficult, and we are far from finding it possible in this instance.

[9] (3a) The objections to admission of evidence, certainly fundamental, if well founded, are that Cheyney's speech, the Fraina pamphlet, and all of Fraina's oration (not merely the words specified as an overt act) were put before the jury.

The argument is based on a wholly inadmissible reading of Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, viz. that because it was there pointed out that an overt act is "more than evidence of conspiracy," and is a part of the crime, therefore nothing can be proven, that might have been laid as an overt act, that is not so charged. No such doctrine is supported by the decision cited; on the other hand, the prosecution is not confined to the overt acts charged (Houston v. United States, 217 Fed. 858, 133 C. C. A. 562); and a fortiori there can be no legal complaint of testimony tending to show the object of the conspiracy, which evidence one may call an overt act, if so minded.

[10] (3b and 3c) The mental attitude evident throughout the conduct of defense below, and argument here, is suggested rather than plainly stated by the points that it was error to permit the jury to infer guilt from the speeches, that in so doing defendants were tried for their words, and such procedure invades the right of free speech.

We think the contention may be thus summed up: If there was a meeting of minds, it was not actually productive of any breach of peace; no one was shown to have refused physical obedience to the law; it was all words; and men cannot constitutionally and lawfully be punished for words, especially when the language relates to rights based on the moral sense-i. e., the "idealism"-of the "nonreligious conscientious objector."

The matter at bottom is political, not legal. Men can be punished for words, if the Legislature so decrees, within constitutional limits. Men commit crimes when they counsel or procure others to sin against the statute law, and they also commit crimes when they confederate to effect that object, and yet it is difficult to imagine any more suitable or usual method of procuring or counseling than by speech. In this inaccurate sense men have very often been punished for words by statutory enactment.

The free speech secured federally by the First Amendment means. complete immunity for the publication by speech or print of whatever is not harmful in character, when tested by such standards as the law affords. For these standards we must look to the common-law rules in force when the constitutional guaranties were established and in reference to which they were adopted. By legislative action the

2 This definition by Judge Cooley (Const. Limitations [7th Ed.] p. 605) has been often adopted, most lately perhaps in People ex rel. Atty. Gen. v. NewsTimes, 35 Colo. 253, 84 Pac. 912.

boundaries of unpunishable speech have doubtless and often been much enlarged; but the constitutional limit remains unchanged, and what the Legislature has done it can undo. Legal talk-liberty never has meant, however, "the unrestricted right to say what one pleases at all times and under all circumstances." Warren v. United States, 183 Fed. at 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800. Nothing said to the jury by the court below in this case went beyond the limits thus stated, and there was no error.

Complaint as to inferring guilt from speeches, or letting men be found guilty therefore, when or if the speeches only expressed moral principles and social aspirations, is really objecting to the statutes. The statutes in question here, like most others, are of general application; they must be so unless exceptions of equal authority are also statutory. They operate alike on the religious, the atheist, and the unthinking.

While "religion is not defined in the Constitution" (Reynolds v. United States, 98 U. S. 162, 25 L. Ed. 244), and the "law knows no religion and is committed to no dogma" (Watson v. Jones, 13 Wall. 728, 20 L. Ed. 666), yet “directly or by clear implication" every American Constitution "recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well-being of the community" (Holy Trinity Church v. United States, 143 U. S. 465, 12 Sup. Ct. 511, 36 L. Ed. 226). Nevertheless the most profound religious conviction that compliance with statute is wrong will not by law save any one from conviction by a petty jury for violating that statute. Cf. Reynolds v. United States, supra; Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637.

The regulations promulgated under the Service Act fully recognized the spirit of the above quotations, although the executive was under no legal compulsion so to frame them. Rule 14 reserved for noncombatant service members of any "well-recognized religious sect or organization," and no others, and after that the court as such was concerned only with the law as it stood, not as some persons thought it should be.

If one moved by religion-i. e., by his "recognition of God as an object of worship, love and obedience" (People v. Board of Education, 245 Ill. 334, 92 Ñ. E. 251, 29 L. R. A. [N. S.] 442, 19 Ann. Cas. 220) -can decline or refuse service only secundum regulum, certainly no one else can do otherwise. "Idealism" must mean a self-created standard of conduct or desire, and is therefore subject to instant change or destruction by its creator. Idealism "compels" its possessor only as does any other appetite or desire. Nor can conscience -said to be "that moral sense which dictates right and wrong" (Miller v. Miller, 187 Pa. 572, 41 Atl. 277)-claim any higher rights than religion.

[11] Measured by these rules, if the speeches of plaintiffs in error furnished evidence of an intent and an effort to induce and procure those who listened to violate the law, i. e., to evade or neglect their mili tary duties, then those speeches alone might carry to the jury conviction beyond reasonable doubt; and if religion, and a conscience pre

sumably begotten of religion, afforded no legal excuse for evasion or neglect, it is certain that irreligion and idealism are upon no higher plane of privilege.

Indeed, to say that one who speaks, and does nothing else, cannot be or should not be convicted for his speech, is inaccurate, and evades the point. These men on this record were quite possibly convicted by their speeches, as evidence of their criminal intent to procure violations of statute; but that is a very different thing from conviction for speaking.

It has often been urged by the preacher that man is judged by every word that proceedeth out of his mouth; human law usually treats speech only as evidence; if as such these speeches persuaded the jury of guilt, nothing happened which is either surprising or assignable as legal error.

Judgments affirmed.



(Circuit Court of Appeals, Second Circuit.

No. 100.

December 12, 1918.)



A steamship contracting to deliver cargo at a wharf is liable under its contract to the cargo owner for loss due to negligence in discharging from the ship into a lighter.


Stevedores contracting with a steamship to discharge ore into a lighter, although not including trimming the cargo, held primarily liable for loss by dumping because of failure to trim, where they continued loading after danger of capsizing was apparent, over protest of the master of the lighter, and without notifying the ship.



A contract by a steamship with stevedores to discharge cargo into a lighter contemplated exercise by the stevedores of ordinary care, and, if conditions showed that continuance of discharging was unsafe they were bound to stop until the danger was removed.


Only the clearest requirement of a contract to do something which is dangerous can relieve the contractors from the exercise of ordinary prudence and impose liability on the owner.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty by H. D. Boret against the lighter Robert R., Jacob Rice, claimant; the steamship Prinz Frederick Hendrik, Royal Dutch West India Mail Company, claimant; Angelo Pellegrino and Carmelo Pellegrino, and Johnson Lighterage Company, incorporated, impleaded. Decree for libelant against the steamship alone, and her claimant appeals. Modified.

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

This is an appeal from a decree whereby the libelant recovered from the steamship Prinz Frederick Hendrik and her claimant, Royal Dutch West India Mail Company, the sum of $10,372.27, and the libel and petitions against the lighter Robert R., Angelo Pellegrino and Carmelo Pellegrino, stevedores, and the Johnson Lighterage Company, charterers of the lighter Robert R., were dismissed.

The steamship, on September 29, 1914, was docked at Pier 3, Bush Terminal, Brooklyn. Part of the cargo consisted of copper ore which belonged to the libelant and was to be delivered at Chrome, N. J. Messrs. Funch, Edye & Co., the agents of the steamship, arranged with the Johnson Lighterage Company, who were charterers of the lighter Robert R., to transport the ore from the steamship to its destination at the rate of 22 cents a ton. They had been informed that, if trimming of the ore when loaded on the lighter was necessary, the rate would be 25 cents a ton. The District Court, therefore, found that no trimming was contracted for (Record, fol. 478) and that there was an extension of the contract of carriage to Chrome. Funch, Edye & Co., through its subsidiary company, employed the stevedores to unload the ore and place it on the lighter, but did not so far as appears contract with them to do any trimming (Record, fol. 268). The lighter was loaded by the stevedores, so that there was but little more weight of ore on one side than the other; but the ore was not spread, and the center of gravity apparently became so high, because of the deep pile of ore along the center of the deck, that finally a single bucket of ore, weighing about half a ton, tilted the lighter, the stern corner hit the steamship, and caused the load to shift and the lighter to dump a part of the ore. The District Court found, on abundant evidence, that the loss of a part of the cargo was caused by the failure to trim. The libel was filed against the lighter. The owner, by petition, brought in the steamship and the stevedores, Angelo Pellegrino and Carmelo Pellegrino, under the FiftyNinth Admiralty Rule (29 Sup. Ct. xlvi), and the Royal Dutch West India Mail Company, the owners of the steamship, and the Pellegrinos filed a crosspetition against the lighter Robert R. and the Johnson Lighterage Company, her charterers. The court granted a decree for damages against the steamship and her owners, on the ground that the vessel improperly discharged her cargo. It dismissed the libel against the lighter on the ground that she was not bound to trim, and the intervening petition against the Pellegrinos for the same reason. Decree modified.

Kirlin, Woolsey & Hickox, of New York City (J. Parker Kirlin and Robert S. Erskine, both of New York City, of counsel), for appellant.

Barry, Wainwright, Thacher & Symmers, of New York City (James K. Symmers, of New York City, of counsel), for libelant.

Hyland & Zabriskie, of New York City (Nelson Zabriskie, of New York City, of counsel), for appellee Jacob Rice.

Herbert Green, of New York City, for appellee Johnson Lighterage Company.

Haight, Sandford & Smith, of New York City (Henry M. Hewitt, of New York City, of counsel), for appellees Angelo Pellegrino and Carmelo Pellegrino.

Before ROGERS and MANTON, Circuit Judges, and AUGUSTUS N. HAND, District Judge.

AUGUSTUS N. HAND, District Judge (after stating the facts as above). [1, 2] There can be no doubt that the steamship under the contract of carriage is liable in any event for the damage suffered. In spite of the fact that the Pellegrinos were independent contractors, it is contended that the steamship is liable in tort on the ground that

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a contract to discharge a vessel of a cargo like copper ore, without adequate provision for trimming, was dangerous in itself because large lumps of ore would not spread by mere dumping. This theory will hardly bear analysis. Other vessels were safely loaded with ore at Pier 3 without trimming, and trimming was apparently required, if at all, under circumstances which could only develop as the work proceeded. It therefore is unreasonable to regard the contract as in itself negligent and improper. It was one in which circumstances might arise during the performance where the stevedores should call on the steamship to trim, and their failure to do this, and persistence in dangerous loading, rather than the making of a contract which did not call for trimming, were the negligent acts that caused the damage. Indeed, the fact that the stevedores did not contract to trim seems to us in no way to relieve the latter from liability. They undertook to discharge the cargo, and were bound to do this in a prudent manner. If it became unsafe to load the barge without trimming, as proved to be the fact, it was the plain duty of the stevedores to stop work and call upon the steamship to trim. Instead of doing this, they continued to pile the ore on the deck of the lighter, without seeing that it was spread by some one, until the center of gravity of the lighter became so high that she dumped her load.

[3] It is argued that because the vessel did not do the trimming when it was bound to do so, and had not provided other means, the damages should either be placed on her alone, or be divided. We cannot say, however, that under the circumstances shown the ship in a legal sense was liable in tort. If the stevedores had ceased loading and called for trimming and secured assistance, the accident would not have happened. Their continuance in loading when danger was imminent was the proximate cause of the damage, and they only are liable in tort. It was the dumping of the last buckets of ore on the lighter that caused the injury. The M. E. Luckenbach, 214 Fed. 571, 131 C. C. A. 177; The Satilla, 235 Fed. 58, 148 C. C. A. 552.

Cases are cited where owners of merchandise consented to place it on deck and were not allowed to recover for any damage suffered by a jettison of the cargo which became necessary by reason of this method of stowage. Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58.

[4] Cases are also cited where a specific contract has been made to do something which from its very nature resulted in loss. MacKnight F. Stone Co. v. City of New York, 160 N. Y. 72, 54 N. E. 661; Penn Bridge Co. v. City of New Orleans, 222 Fed. 737, 138 C. C. A. 191. The contracts involved in these cases are entirely different from the one under consideration. Here the shipowner never contracted that the stevedores should discharge the steamer in a dangerous manner and cause the lighter to dump the cargo by piling on more ore until she lost her equilibrium. He did not contract that the steamer should be discharged, at all events, without trimming of the cargo, but only that the stevedores should discharge her subject to the ordinary standard of care. If conditions showed that continuance in discharging was unsafe, the stevedores, like any one else, were bound to cease discharging. Only an express contract, or consent, to do dangerous acts, can shift the lia

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