251 F. 946 | D.N.J. | 1918
The indictment to which the defendants have demurred, is based on section 4, title 1, of the so-called “Espionage Act” of June 15, 1917 (40 Stat. 217, c. 30), and charges a conspiracy to commit the third specific crime set forth in section 3, title 1, of that act, before it was amended by Act May 16, 1918, c. 75. It contains but one count, and alleges, in substance, that subsequent to June 15, 1917, the defendants conspired “unlawfully and willfully to obstruct the recruiting and enlistment service of the United States, to the injury of the service and of the United States, through and by means of the printing and publishing at Newark, * * * and the circulating and distributing at Newark aforesaid and elsewhere throughout the United States, among persons who were then and there persons available and eligible for enlistment and recruiting in the military forces of the United States, as well as persons who then and there were liable to be taken into the service of the military forces of the United States, under the provisions of an act of Congress entitled [then follows a description of the Selective Service Act of May 18, 1917], a certain newspaper*or publication called and known as the New Jersey Freie Zeitung, containing headlines and editorials and printed matter calculated and intended by the said defendants to induce said persons available and eligible for enlistment and recruiting in said military forces to fail and refuse to enlist for service therein, and to induce persons liable to military service pursuant to said act of Congress approved May 18, 1917, to refuse to submit to registration and draft for service in the military forces, to the injury of the service and of the United States”; that thereafter, at various times between June 16, 1917, and October 1, 1917, to effect the object of the conspiracy, they caused a number of articles to be printed in the before-mentioned newspaper, and the latter to be put in circulation through the mails and otherwise. The articles, together with the dates of publication, are all set forth in the indictment. Many grounds of demurrer have been assigned, but they raise comparatively few questions, which will hereafter appear.
The contention that only such obstructions are within the act as are in the nature of torts committed against the persons actually engaged in the “recruiting service” is stated by counsel to be based on the use of the words “willfully” and “injury.” Conceding that the meaning of those words is generally as counsel contends, I am nevertheless utterly unable to comprehend how, under any reasoning, the conclusion sought to be drawn therefrom is justifiable. Those words simply require that an obstruction, to be criminal, shall, on the one hand, be intentionally caused, with the evil purpose of obstructing the recruiting service, and, on the other hand, that it he injurious to the nation, or “the service,” or both. It certainly requires no argument to demonstrate that the “enlistment or recruiting service” would he quite, as much obstructed, and it and the United States as severely injured, by inducing eligible ■persons, through newspaper articles, persuasion, or any kindred means,
The arguments that only such obstructions as are directed at a concrete prospective recruit, and then only when threats, etc., are employed, proceed, respectively, on the theory that this act should be construed the same as prior statutes which prohibit the obstructing of “an officer in the courts of the United States,” and that decisions in labor injunction cases are applicable. If it be.assumed for purposes of argument that the last-mentioned statutes have under all circumstances been construed as narrowly as counsel contend, that affords no reason for so construing the statute in question. Neither the language nor the purpose of the latter justify any such construction. There is no analogy between labor injunction cases and recruiting for the army and navy, save the right to freely contract. But the government has undoubtedly the additional right, which those decisions do not recognize that the employer has, to prevent any and all interferences with its raising of an army, no matter what they may be.
Moreover, there has been no case, as far as I have been able to ascertain, where any judge has adopted any such narrow construction of the act in question as the defendants contend for, or any case in which it has not been held, in one way or another, that any willful act, no matter what it was, which was designed to, and the effect of which was to, obstruct recruiting and enlistment, whether it was aimed at a particular person or the public generally, is a violation of this provision of the Espionage Act. Some of the cases (most of them being charges to the jury, reported in the bulletins issued by the Department of Justice) which have so construed the act are as follows: United States v. Wal
The question, therefore, is whether “the recruiting or enlistment service of the United States,” referred to in the provision in question of the Espionage Act, embraces the “service” created by The Selective Service Act. One’s first impression from a mere reading of section 3 of title 1 of the Espionage Act might readily be that the “service” intended was that which has to do with procuring voluntary enlistments. But, of course, a statute should not be construed on a mere superficial impression. The decisions rendered prior to1 the passage of the Espionage Act afford little assistance on this question, hi Babbitt v. United States, 16 Ct. Cl. 202, it was held that the word “enlistment” was of technical origin, derived from Great Britain, and had reference only to a voluntary acknowledgment to serve as a private soldier for a certain number of years. On the other hand, the Supreme Court of Massachusetts, in Sheffield v. Inhabitants of Otis, 107 Mass. 282, held that the word “enlisted,” in a Massachusetts statute which dealt with the question of settlement of those who had enlisted in the War of the Rebellion, referred to drafted men as well as volunteers. Nowhere in the statutes, so far as diligent and able counsel have been able to ascertain, is “the recruiting service” or “the enlistment service” spoken of in terms, although the machinery for procuring “recruits” by vol
“Or shall interfere with or obstruct the recruiting or enlistment service of' the United States.”, Volume 55, No. 16, Congressional Record, p. 879.
That amendment, in the form now found in the act, was subsequently adopted. It is therefore apparent that Congress, having before it the Selective Service Act, which contained no provision to prohibit the obstructing of the “service” thereby created, except as before stated (which will hereafter be shown to be manifestly inadequate to-deal with tire most dangerous and insidious obstructions), deliberately inserted .the clause in question in that part of the “Espionage Act” which sought to prevent interference with the military forces and efforts of the nation, and thereafter passed the Selective Service Act without attempting to provide in it for any outside obstructions to the draft.
The irresistible conclusion to be drawn from these fácts seems tome to be that Congress intended, by the clause in question, to pro
Considering the thoroughness with which the whole section was revised, and that the Selective Service Act contained no provision 1o prevent obstructions to it, except in the ways before indicated, although many attempts to obstruct it had been made in the meantime, it is difficult to understand why, if Congress did not consider that an obstruction to “the enlistment or recruiting service” covered an obstruction to the draft, some attempt was not made, in the amendment, to cover obstructions to the draft specifically. An argument to the effect that Congress had, by the clause in section 3, 'title 1, of the Espionage Act, prohibiting the causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States,” covered obstructions to the operation of the Selective Service law, on the theory that all who are registered are in the military forces, although not actually called or inducted into military service, as a number of the judges have held — United States v. Sugarman, Bulletin No. 12 (D. C. Minn.) 245 Fed. 604; United States v. Capo, Bulletin No. 37 (D. C. Porto Rico); United States v. Olivereau, Bulletin No. 40 (D. C. W. D. Wash.); United States v. Wolf, Bulletin No. 81 (D. C. S. D.); United States v. Frerichs, Bulletin No. 85 (D. C. Neb.); United States v. Stokes, Bulletin No. 106 (D. C. Mo.); United States v. Rhuberg, Bulletin No. 107 (D. C. Or.); United States v. Sandvick, Bulletin No. 113 (D. C. Alaska)— would not be an answer to the argument, above advanced, regarding the unreasonableness of attributing to Congress an intention not to prohibit obstructions to the draft, because the selective draft service could be obstructed in many ways besides acting immediately on those ejuject to be inducted into the service through the machinery of the draft.
The charges in United States v. Capo, Bulletin No. 37 (D. C. Porto Rico); United States v. Schenck, Bulletin No. 43 (D. C. E. D. Pa.); United States v. Doe, Bulletin No. 55 (D. C. Colo.); United States v. Wolf, Bulletin No. 81 (D. C. S. D.); United States v. Rhuberg, Bulletin No. 107 (D. C. Or.); United States v. Taubert, Bulletin No. 108 (D. C. N. H.); United States v. Rutherford, Bulletin No. — (D. C. E. D. N. Y.) — all contain expressions which indicate that the several judges who delivered them were of the opinion that an obstruction of the draft was a violation of the provision in question of the Espionage Act. On the other hand, in several jury charges, although there are no expressions indicating that the judges expressly considered that an obstruction of the draft was not within the statute, the only obstruction seemingly dealt with was that which was aimed at voluntary enlistments. United States v. Frerichs, Bulletin No. 85 (D. C. Neb.); United States v. Hendricksen, Bulletin No. 86 (D. C. Neb.; same judge as in United States v. Frerichs); United States v. Stokes, Bulletin No. 106 (D. C. Mo.). See, also, remarks in United States v. Pierce (D. C. N. D. N. Y.) 245 Fed. 878, 887. Those cases, however, shed very little light on the question, because it does not appear that the indictments were, so framed as to permit the consideration of it, but, on the contrary, it would seem that the indictments covered only obstructions to voluntary enlistments.
The remarks in Franke v. Muray, 248 Fed. 865, 868, - C. C. A. -, to which counsel refer in support of their contention, are in no respect applicable. They had reference only to the fact that the decision in Re Grimley, 137 U. S. 47, 11 Sup. Ct. 54, 34 L. Ed. 636, did not apply to the situation which was then before the court and which arose under the Selective Service Act, a different act than was considered in the Grimley Case. My conclusion, therefore, is that the clause in question of the Espionage Act covers the obstructing of the operation of the Selective Service Act, except as to such acts as are specifically provided for in that act and which might possibly be said to be obstructions, as well as that branch of the military service, strict-'
My conclusion, therefore, is that the demurrer should be overruled.