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tions set forth as overt acts were the only | public wakes up to the fact that we are means and, when coupled with the joint ac- led and ruled by England, the better; that tivity in producing them, the only evidence our sons, our taxes and our sacrifices are of the conspiracy alleged. Taking it that only in the interest of England. On Sepway, however, so far as the language of the tember 28 there is a sneering contrast bearticle goes there is not much to choose between Lord Northcliffe and other Englishtween expressions to be found in them and men spending many hundreds of thousands those before us in Schenck v. United States. of dollars here to drag us into the war and The first begins by declaring it a monu- Count Bernstorff spending a few thousand mental and inexcusable mistake to send our to maintain peace between his own country soldiers to France, says that it comes no and us. Later follow some compliments to doubt from the great trusts, and later that Germany and a statement that the Central it appears to be outright murder without powers are carrying on a defensive war. serving anything practical; speaks of the There is much more to the general effect unconquerable spirit and undiminished that we are in the wrong and are giving strength of the German nation, and charac- false and hypocritical reasons for our course, terizes its own discourse as words of warn- but the foregoing is enough to indicate the ing to the American people. Then comes a kind of matter with which we have to deal. letter from one of the counsel who argued It may be that all this might be said or here, stating that the present force is a part written even in time of war in circumstances of the regular army raised illegally; a mat- that would not make it a crime. We do not ter discussed at length in his voluminous lose our right to condemn either measures brief, on the ground that before its decision or men because the country is at war. to the contrary the Solicitor General misled does not appear that there was any special this Court as to the law. Later, on August effort to reach men who were subject to the 3, came discussion of the causes of the war, draft; and if the evidence should show that laying it to the administration and saying the defendant was a poor man, turning out "that a few men and corporations might copy for Gleeser, his employer, at less than amass unprecedented fortunes we sold our a day laborer's pay, for Gleeser to use or honor, our very soul" with the usual rep- reject as he saw fit, in a newspaper of small etition that we went to war to protect the circulation, there would be a natural in*clinaloans of Wall Street. Later, after more tion to test every question of law to be found similar discourse, comes "We say therefore, in the record very thoroughly before upholdcease firing." ing the very severe penalty imposed. But we must take the case on the record as it is, and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out. Small compensation would not exonerate the defendant if it were found that he expected the result, even if pay were his chief desire. When we consider that we do not know how strong the Government's evidence may have been we find ourselves unable to say that the articles could not furnish a basis for a conviction upon the first count at least. We pass therefore to the other points that are raised.

Next, on August 10, after deploring "the draft riots in Oklahoma and elsewhere" in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft age and have no boys to be drafted, and the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money. *Who then, it is asked, will pronounce a verdict of guilty upon him if he stops reasoning and follows the first impulse of nature: selfpreservation; and further, whether, while technically he is wrong in his resistance, he is not more sinned against than sinning; and yet again whether the guilt of those who voted the unnatural sacrifice is not greater than the wrong of those who now seek to escape by illadvised resistance. On August 17 there is quoted and applied to our own situation a remark to the effect that when rulers scheme to use it for their own aggrandizement loyalty serves to perpetuate wrong. On August 31 with more of the usual discourse, it is said that the sooner the

[3-8] It is said that the first count is bad because it does not allege the means by which the conspiracy was to be carried out. But a conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose. That purpose could be accomplished or aided by persuasion as well as by false statements, and there was no need to allege that false reports were intended to be made or made. It is argued that there is no sufficient allegation of intent, but intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.




Indictment under Espionage Act June 15, 1917, tit. 1, § 3, as amended by Act May 16, 1918, § 1 (Comp. St. 1918, § 10212c), alleging that defendant obstructed and attempted to obstruct the recruiting and enlistment service of the United States, and to that end and with that intent delivered the speech set out, held sufficient in form.


The overt acts are alleged to have been done and expressions of a general and conscientious to effect the object of the conspiracy and that is sufficient under section 4 of the Act of 1917 (Comp. S. 1918, § 10212d). Countenance we believe, has been given by some Courts to the notion that a single count in an indictment for conspiring to commit two offences is bad for duplicity. This Court has given it none. Buckeye Powder Co. v. E. I. Dupont de Nemours Powder Co., 248 U. S. 55, 60, 61, 39 Sup. Ct. 38, 63 L. Ed. 123; Joplin Mercantile Co. v. United States, 236 U. S. 531, 548, 35 Sup. Ct. 291, 59 L. Ed. 705. The conspiracy is the crime, and that is one, however diverse its objects. Some reference was made in the proceedings and in argument to the provision in the Constitution concerning treason, and It was suggested on the one hand that some of the matters dealt with in the Act of 1917 were treasonable and punishable as treason or not at all, and on the other that the acts complained of not being treason could not be punished. These suggestions seem to us to need no more than to be stated. The amendment of the Act of 1917 in 1918 (Act May 16, 1918, c. 75) did not affect the present indictment. Schenck v. United States. Without pursuing the matter further we are of opinion

that the indictment must stand.

[9] Before the demurrer was disposed of the Court had ordered jurymen to be summoned to serve for the April term of the Court and to report for service on June 25, 1918, as of course it might. The demurrer was overruled on June 24, and on the following day the plea of not guilty was ordered to be entered, a continuance was refused, a jury was empannelled and the trial set to be gin the next morning. There is nothing be fore us that makes it possible to say that the judge's discretion was wrongly exercised. Upon the whole case we are driven to the conclusion that the record shows no ground upon which the judgment can be reversed. Judgment affirmed.

(249 U. S. 211)


Defendant, indicted for obstructing and attempting to obstruct recruiting, having, in his speech complained of, purported to understand the grounds on which certain persons were imprisoned, the records of their convictions were admissible to show what those grounds were, to show what he was talking about, to explain the true import of his expression of sympathy, and to throw light on the intent of the address. 4. ARMY AND NAVY 40-OBSTRUCTING EN


Defendant, indicted for obstructing and attempting to obstruct the draft, having just before his speech, complained of, stated that he approved of the Socialist Anti-War Proclamation and Program, adopted at St. Louis in April, 1917, which recommended opposition by all means to the war, it was admissible as evidence that, if in his speech he used words tending to obstruct recruiting, he meant that they should have that effect.

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Mr. Justice HOLMES delivered the opinion of the Court.

This is an indictment under the Espionage Act of June 15, 1917, c. 30, tit. 1, § 3, 40 Stat.

(Argued Jan. 27 and 28, 1919. Decided March 219, as amended by the Act of May 16, 1918,

10, 1919.)

No. 714.

c. 75, § 1, 40 Stat. 553 (Comp. St. 1918, § 10212c). It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16,

1. ARMY AND NAVY 40-ESPIONAGE ACT 1918, at Canton, Ohio, the defendant caused OBSTRUCTING RECRUITING.

If a purpose of defendant's speech, even though incidental, was, as the jury were warranted in finding, to oppose, not only war in general, but the existing war, and the opposition was so expressed that its natural effect would be to obstruct recruiting, and that was intended, and in all the circumstances would be its probable effect, it would not be protected by reason of it being part of a general program

and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech, set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that

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


Intent delivered the same speech, again set forth. There was a demurrer to the indictment on the ground that the statute is unconstitutional as interfering with free speech, contrary to the First Amendment, and to the 'several counts as insufficiently stating the supposed offence. This was overruled, subject to exception. There were other exceptions to the admission of evidence with which we shall deal. The defendant was found guilty and was sentenced to ten years' imprisonment on each of the two counts, the punishment to run concurrently on both.

have the right to declare war if you consider a war necessary." The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that if she was guilty so was he, and that he would not be cowardly enough to plead his innocence; [1] The main theme of the speech was So- but that her message that opened the eyes cialism, its growth, and a prophecy of its ul- of the people must be suppressed, and so afttimate success: With that we have nothing|er a mock trial before a packed jury and a to do, but if a part or the manifest intent of corporation tool on the bench, she was sent the *more general utterances was to encour-to the penitentiary for ten years. age those present to obstruct the recruiting There followed personal experiences and ilservice and if in passages such encourage-lustrations of the growth of Socialism, a glorment was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruthenberg v. United States, 245 U. S. 480, 38 Sup. Ct. 168, 62 L. Ed. 414. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.

ification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that "you need to know that you are fit for something better than slavery and cannon fodder." The rest of the discourse had only the indirect though not necessarily ineffective bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, "Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves." The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, "I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone." The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether inAfter considerable discourse that it is un- cidental *or not does not matter, was to opnecessary to follow, he took up the case of pose not only war in general but this war, Kate Richards O'Hare, convicted of obstruct- and that the opposition was so expressed that ing the enlistment service, praised her for her its natural and intended effect would be to loyalty to Socialism and otherwise, and said obstruct recruiting. If that was intended that she was convicted on false testimony, and if, in all the circumstances, that would under a ruling that would seem incredible be its probable effect, it would not be proto him if he had not had some experience tected by reason of its being part of a genwith a Federal Court. We mention this pas-eral program and expressions of a general sage simply for its connection with evidence and conscientious belief. put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and have never yet had a voice in declar*ing peace. "You have your lives to lose; you certainly ought to

[2, 3] The chief defences upon which the defendant seemed willing to rely were the denial that we have dealt with and that based upon the First Amendment to the Constitution, disposed of in Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470. His counsel questioned the sufficiency of the indictment. It is sufficient in form. Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561. The most important question that remains is raised by the admis

sion in evidence of the record of the convic-|ing to cause insubordination, &c., in the milltion of Ruthenberg, Wagenknecht and Baker, tary and naval forces, is equally impregnaRose Pastor Stokes, and Kate Richards ble. The jury were instructed that for the O'Hare. The defendant purported to under- purposes of the statute the persons designatstand the grounds on which these persons ed by the Act of May 18, 1917, c. 15, 40 Stat. were imprisoned and it was proper to show 76 (Comp. St. 1918, §§ 2044a-2044k), registered what those grounds were in order to show and enrolled under it, and thus subject to be what he was talking about, to explain the called into the active service, were a part of true import of his expression of sympathy the military forces of the United States. and to throw light on the intent of the ad- The Government presents a strong argument, dress, so far as the present matter is con- from the history of the statutes that the instruction *was correct and in accordance with


ficient reason for differing from the conclusion but think it unnecessary to discuss the question in detail.

Judgment affirmed.

(249 U. S. 217)

[4] There was introduced also an "Anti-established legislative usage. We see no sufWar Proclamation and Program" adopted at St. Louis in April, 1917, coupled with testimony that about an hour before his speech the defendant had stated that he approved of that platform in spirit and in substance. The defendant referred to it in his address to the jury, seemingly with satisfaction and willingness that it should be considered in evidence. But his counsel objected and has argued against its admissibility at some length. This document contained the usual suggestion that 'capitalism was the cause of the war and that our entrance into it "was instigated by the predatory capitalists in the United States." It alleged that the war of the United States against Germany could not "be justified even on the plea that it is a war in defence of American rights or American 'honor.' It said:

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BALTIMORE & O. R. CO. et al. v. LEACH.
(Argued Jan. 15 & 16, 1919.
10, 1919.)

No. 132.

Decided March


A shipper of live stock must comply with provision in bill of lading, issued as required by Act of Congress, that no claim for damages shall be allowed or paid, or sued for, unless claim shall be made in writing, verified by affidavit of shipper or his agent, and delivered to general freight agent of carrier at his office in given city within five days from time live stock is removed from cars.

Mr. Justice Clarke and Mr. Justice McKenna, dissenting.

On Writ of Certiorari to the Court of Appeals of the State of Kentucky.

Its first recommendation was, "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power." Evidence that the defendant accepted this view and this declaration of his duties at the time that Action by J. G. Leach against the Baltihe made his speech is evidence that if in that more & Ohio Railroad Company and the Balspeech he used words tending to obstruct the timore & Ohio Southwestern Railroad Comrecruiting service he meant that they should pany. From judgment for plaintiff, the first have that effect. The principle is too well es- defendant appealed to the Court of Appeals tablished and too manifestly good sense to of the state of Kentucky, moving for rehearneed citation of the books. We should adding and to set aside judgment, which motion that the jury were most carefully instructed was overruled (173 Ky. 452, 191 S. W. 310), that they could not find the defendant guilty and defendants bring certiorari. Reversed for advocacy of any of his opinions unless the and remanded. words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind.

Messrs. Wm. W. Crawford and Charles H. Gibson, both of Louisville, Ky., for petitioners. Messrs. Frank W. Hackett and John S. Blair, both of Washington, D. C., for respondent.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Without going into further particulars we are of opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained. Therefore it is less important to consider whether that upon the third count, for causing and attempted at East St. Louis, *Ill., October 1, 1914, for

Respondent Leach sued the petitioners for damages sustained en route by cattle deliver

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

shipment to Georgetown, Ky. In defense In Boston & Maine Railroad v. Piper, 246 the carriers set up non-compliance with the U. S. 439, 38 Sup. Ct. 354, 62 L. Ed. 820, Ann. following provision contained in bill of lad- Cas. 1918E, 469, a provision in exactly these ing issued as required by act of Congress. terms was held "illegal and consequently "That no claim for damages which may ac- void," as an attempt by the carrier to exonercrue to the said shipper under this contract ate itself from loss negligently caused by it. shall be allowed or paid by the said carrier, or This is the only provision in the bill of ladsued for in any court by the said shipper, un-ing, as pleaded, which is applicable to a less a claim for loss or damages shall be made claim for delay, such as the shipper made in in writing verified by the affidavit of the shipper this case, and since it is void there is nothing or his agent, and delivered to the general eight in the contract for carriage on which the agent of said carrier at his office in Cincinnati, five-day limitation could operate, for it apOhio, within five days from the time said stock is removed from said car or cars, and that if any plied in terms only to claims "for damages loss or damage occurs upon the line of conwhich may accrue to said shipper under this necting carrier, then such carrier shall not be contract." liable unless a claim shall be made in like manner and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs."

This averment was not denied; but the shipper replied that he promptly advised the railroad's agent at Georgetown of all essential facts and maintained that requirement in respect of written notice to general freight agent had been waived.

The point involved has been discussed in our recent opinions and we can find nothing which takes this case out of the rule requiring compliance with a provision in a bill of lading like the one above quoted. St. L, I. Mt. & So. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917; Southern Pacific Co. v. Stewart, 248 U. S. 446, 39 Sup. Ct. 139, 63 L. Ed. 350, decided January 13, 1919.

The judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

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The suit of the shipper was based on the common-law liability of the carrier, not at all on the bill of lading; the five-day limitation is in terms applicable only to claims under the bill of lading; the only provision in the bill of lading applicable to claims for delay was void, and therefore it seems very clear that the five-day limitation was not available as a defense.

Permit me to add that the many cases coming into this and other courts show that this five-day limitation is unreasonably short and in my judgment, for this reason, it should be declared void upon its face. Certainly it should not be made a favorite of the law and extended beyond its strict terms, in presence of the Act of Congress approved March 4, 1915 (38 Stat. 1196, c. 176), declaring that where in such suit the damage complained of is due to delay or damage in transit by carelessness or negligence, "then no notice of claim nor filing of claim shall be required as a condition precedent to recovery." While the case before us arose prior to the passing of this. act, it is an important declaration of public

Mr. Justice PITNEY and Mr. Justice policy by Congress, which should not be BRANDEIS concur in the result.

Mr. Justice CLARKE dissenting.


For the reasons thus briefly stated, I cannot concur in the opinion of the court.

Mr. Justice MCKENNA also dissents.

In this case the shipper sued two connecting interstate *carriers for damages to a carload of cattle, caused by delay in transit. Three died in the car and four more within three or four days of arrival at destination and the defense sustained by the court is SHAFFER v. HOWARD, Auditor of State of failure to notify the carrier of claim for damages within five days of unloading.

The carrier pleaded that one of the terms of the bill of lading was the five-day limitation, quoted in the opinion of the court. This was immediately preceded, in the same paragraph, by the following:

"That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employés, or its connecting carriers, or their employés, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby the amount actually expended by said shipper in the purchase of food and water for said live stock, while so detained."

Oklahoma, et al.

249 U. S. 200)

(Argued Dec. 13, 1918. Decided March 10,
No. 375.



In suit to enjoin state auditor and sheriff of county from enforcing tax as repugnant to Constitution of United States, term of office of defendant officials having expired, and their successors having qualified, and there being no law of state authorizing revival or continuance of cause against successors, controversy, after argument on appeal, has become merely meot, and

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