People v. Lloyd (304 Ill. 23, 1922)

Mr. Chiee Justice Thompson

delivered the opinion of the court:

Thirty-nine members of the communist labor party were indicted by the March, 1920, grand jury of the criminal court of Cook county for conspiracy. Twenty of them were arrested, tried and convicted. Two of those convicted were not sentenced,—Max Bedacht, of San Francisco, who failed to appear for sentence, and Edwin Firth, who died before judgment was entered. The eighteen who were sentenced on the verdict are plaintiffs in error here. They are, William Bross Lloyd and Arthur Procter, each sentenced to imprisonment in the penitentiary and to pay a fine of $2000, Jack Carney, sentenced to imprisonment in the penitentiary and to pay a fine of $1000, L. E. Katterfeld, L. K. England, Ludwig Lore, Edgar Owens and Niels Kjar, each sentenced to imprisonment in the penitentiary, and Perry Shipman, Karl F. Sandberg, Oscar Jesse Brown, N. J. Christensen, Samuel Ash, James A. Meisinger, Samuel E. Hankin, John Vogel, Morris A. Stolar, and Charles Krumbein, each sentenced to imprisonment in the county jail for one year.

The felonies and unlawful acts which it is charged plaintiffs in error conspired to commit are those created by the act of June 28, 1919, which declares that it shall be unlawful for any person “openly to advocate by word of mouth or writing the reformation or overthrow by violence or any other unlawful means of the representative form of gov-eminent now secured to the citizens of the United States and the several States by the constitution of the United States and the constitutions of the several States,” “to publish, issue or knowingly sell or distribute any book, paper, document or other written or printed matter which advocates crime and violence as a means of accomplishing the reformation or overthrow of the constitutional representative form of government so secured to the citizens of the United States and the several States,” “to organize, aid in the organization of, or become a member of any society or association, the object of which is to advocate the reformation or overthrow of the existing form of government by violence or any other unlawful means,” and “to display or exhibit at any meeting, gathering or parade, public or private, any flag, banner, emblem or other insignia, symbolizing or intending to symbolize a purpose to overthrow by force or violence or by physical injury to person or property, of the representative form of government now secured to the citizens of the United States and the several States by the constitution of the United States and the constitution of the State of Illinois,” and that any person who shall do any of the acts forbidden shall be deemed guilty of a felony. The act further declares that it shall be unlawful for any person “voluntarily and with knowledge of the purpose of such meeting or assembly to be present at any meeting or assembly, at which the reformation or overthrow of the existing form of government by crime and violence is advocated,” and that any person who attends such a meeting shall be deemed guilty of a misdemeanor. (Laws of 1919, p. 420.)

Plaintiffs in error contend, that every section of said act is invalid for the reason that the General Assembly of Illinois does not have the power and authority to make unlawful and punishable the advocacy of the reformation or overthrow of all or of any separable part of the constitutional representative form of government of the United States of America, or the constitutional representative form of government of all or any one of the other forty-seven several States of the United States, and that the Congress of the United States is the only legislative body in the United States, if any, which has the power and authority to make such advocacy unlawful and punishable. This contention is based in part at least on the argument that the power and authority to “guarantee to every State in this. Union a republican form of government” and to “protect each of them against invasion” are lodged by section 4 of article 4 of the constitution of the United States exclusively in the United States. This contention is not sound. The citizens of this State are citizens of the United States, and the citizens of the United States residing within the borders of this State are citizens of this State. Each citizen owes a duty to these two separate sovereignties. The State is a part of the nation and owes a duty to the nation to support the efforts of the national government to secure the safety and protect the rights of its citizens, and to preserve, maintain and enforce the sovereign rights of the nation against public menace, and to that end the State may require its citizens to refrain from any act which, will interfere with or impede the national government in effectively defending itself against such public enemies. It is the duty of all citizens of the State to aid the State in performing its duty as a part of the nation, and the fact that such citizens are also citizens of the United States and owe a direct duty to the nation does not absolve them from their duty to the State or preclude the State from enforcing such duty. (State v. Holm, (Minn.) 166 N. W. 181, L. R. A. 1918C, 304; Dunne v. People, 94 Ill. 120; State v. Kahn, (Mont.) 182 Pac. 107; State v. Hennessy, (Wash.) 195 Pac. 211.) The phrase, “the representative form of government now secured to the citizens of the United States and the several States by the constitution of the United States and the constitutions of the several States,” is the description of a form of government familiar to every high school boy and girl in the State. The United States of America, the State of Illinois, and each and every one of the other forty-seven States of the United States is a representative democracy, and the government of each is a republican form of government. Each and every one of these forty-nine sovereignties has a written constitution guaranteeing that the residents of the several sovereignties, citizen or alien, shall not be.deprived of life, liberty or property without due process of law. There is embodied in the constitution of the United States and the constitution of each of the forty-eight States a bill (or declaration) of rights, guaranteeing to every citizen, among other things, the right of private ownership of property, and the right of each individual to use and enjoy his property. The fundamental principles upon which each of the governments of these forty-nine sovereignties is established are the same, and the form of government of each is and has been the same since they were severally established. The advocacy within any one of the several States to overthrow the representative form of government of the United States, or of the several States, is therefore an assault upon the established government of each and every one of the forty-nine separate sovereignties, and it would be strange indeed if any one of these sovereignties did not have the right to protect itself against destruction. The overthrow of the national government would be a direct blow at the representative form of government now secured to each of the several States, and the overthrow of the government of any one of the several States would be an indirect assault upon the government of each of the other forty-seven States. The State of Illinois is therefore interested in the preservation of our national government and the government of each and every one of her sister States, and she, without doubt, has the right under the police power inherent in every government to enact laws for the preservation and protection of her government. Each State, when not restrained by its own fundamental law or by the supreme law of the land, possesses all legislative power consistent with a republican form of government, and it therefore has power and authority to provide by legislation, not only for the protection of the health, morals and safety of its people, but for the common good, as involved in the well-being, peace and prosperity of its people. When, by its legislation, a State encourages a feeling of patriotism toward the nation, it necessarily encourages a like feeling toward the State. There is nothing in the Federal constitution in any way granting to the Federal government the exclusive right to punish disloyalty. Halter v. State, 205 U. S. 34, 27 Sup. Ct. 419; Gilbert v. State, 254 U. S. 325, 41 Sup. Ct. 125.

It is next contended, that every section of the act is invalid and void because of the uncertainty, ambiguity and repugnancy that appear in the essential words thereof, and every error of grammar and rhetoric is pointed out and argued at length. It is argued that the act is ambiguous because its language makes it a felony to reform and overthrow our form of government, whereas a form of government cannot be overthrown. This objection is too fanciful to appeal to a reasonable mind. The legislative intent is clearly expressed by the language used, and whether the language is strictly accurate is not material. It is also argued that the word “now” used in the act in the phrase “now secured,” and the word “existing” used in the phrase “existing form,” render the act ambiguous, because they create a doubt as to whether the act means the representative form of government as it existed on the day on which the act became a law, or as it may exist from time to time on the divers days on which said act may be violated. As ■jve said in the preceding paragraph, the representative form of government now existing in the United States and the several States of the United States, and now secured to the citizens of these sovereignties, is the same form of government that has existed in this country since the constitution of the United States became the law of the land, and that form of government will always remain in force until that constitution is destroyed or replaced by another, establishing a different form of government. It is further argued that there is uncertainty and repugnancy in the phrases, “violence or any other unlawful means,” “crime and violence,” and “force or violence or physical injury to person or property,” the contention being that the word “violence” appearing in each of the phrases is given a different meaning in each phrase because of the words with which it is associated. We experience no difficulty in gathering the legislative intent from the language used by the legislature, but we must confess that we experience unusual difficulty in grasping the highly technical argument of plaintiffs in error in their effort to show that these words make the meaning of the act uncertain and repugnant. It must be clear to anyone examining this statute, that the General Assembly could not enumerate all the unlawful means that might be conceived for overthrowing a government, and so it used the general terms used in this act to make punishable the advocacy of the overthrow of the existing government. It is clear that it intended to embrace and that it did embrace all and every kind of unlawful means for overthrowing this government that might be devised by the enemies of the government. The constitutions clearly provide the lawful means by which the existing form of government may be reformed or changed, and any means other than those provided are unlawful. Plaintiffs in error seem to. argue that the language of the act must be such that the term “violence and other unlawful means” is limited to such unlawful acts as create a clear, real and imminent danger to the form of government now secured to this State, but this is not the true law. Of course, if the acts are too trivial for the law’s notice and create no apparent danger and no perturbation in the peaceful order of things, then no crime is committed; but if the means advocated are apparently adapted to the end, then the public peace, so far as advocacy is concerned, is as much disturbed as if they should be so actually, (i Wharton on Crim. Law,—nth ed.— secs. 221-225; 1 Bishop’s New Crim. Law, secs. 737-740.) Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law. The act under consideration makes the advocacy of the overthrow of the government a felony, and provides for the punishment of the advocate, and so it is not necessary that there be a real or actual effort to carry out the program that he advocates. The act is certain in its terms, has no double meaning and will not in any way deceive the common mind.

Plaintiffs in error further contend that because of uncertainties and ambiguities appearing in the statute, they are deprived of the right to be informed of the nature and cause of the accusation against them, and that the act is therefore repugnant to section 9 of article 2 of the State constitution, and that they are deprived of their liberty and property without due process of law, thereby making the act repugnant to section 2 of article 2 of the State constitution and the fourteenth amendment to the constitution of the United States. We have already said that there are no substantial uncertainties or ambiguities in the language of the act and that the words used in it, taken in their ordinary sense, clearly express the legislative intent. There is no organic law or rule of sound public policy that requires the legislature to define the meanings of English words in common and daily use. (State v. Quinlan, 86 N. J. L. 120, 91 Atl. 111.) Law in its regular course of administration through courts of justice is due process, and when secured by the law of the State, the constitutional requisition is satisfied. Due process of law is so secured by laws operating on all alike and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. (Caldwell v. State, 137 U. S. 692, 11 Sup. Ct. 224; Burdick v. People, 149 Ill. 600.) These objections to the validity of the statute are without merit. See State v. Moilen, (Minn.) 167 N. W. 345, 1 A. L. R. 331, and note.

The objection that the penalties are disproportioned to the nature of the offense is overruled. When one considers the blessings of the form of government now secured to this State and nation, it is difficult to think of a punishment disproportionate to the offense of advocating the overthrow of our government by force and violence. The nature, character and extent of penalties are a matter almost wholly legislative. The General Assembly may prescribe definite terms of imprisonment, a specified amount as a fine, or fix the maximum or minimum limits of either, which the courts are bound to respect and follow. The courts have jurisdiction to interfere with legislation upon this subject only where there has been a great departure from the fundamental law and the spirit and purpose thereof, and a penalty imposed which is manifestly in excess of the constitutional limitations. State v. Moilen, supra; State v. Hennessy, supra; People v. Illinois State Reformatory, 148 Ill. 413.

The act is entitled, “An act to amend an act entitled ‘An act to revise the law in relation to criminal jurisprudence/ ” and it is contended that the act is void for the reason that it contravenes section 13 of article 4 of the constitution in that the-subject of the act is not expressed in the title. Plaintiffs in error concede that we have sustained mdny amendments to the Criminal Code which have similar titles, but they argue that those acts are not similar to the act in question for the reason that the present act creates crimes unknown to the jurisprudence of Illinois. It is further argued that section 263 of the Criminal Code, which has been part of the law of this State for more than seventy-five years, expressly declares that treason and misprision of treason are the only crimes against the government and the people of this State, and that since the act under consideration creates new crimes by enlarging the scope of this section, by adding thereto six new sub-sections, the title should have indicated this radical departure from the long-established policy of the State. We have held that the title of the Criminal Code is not liable to any constitutional objection by reason of its generality. (Fuller v. People, 92 Ill. 182.) The provision of the constitution under consideration has been uniformly construed liberally in favor of the validity of enactments. If, by any fair intendment, the provisions in the body of the act have a necessary and proper connection with the title, it is not objectionable. To render a provision in the body of an act void, as not embraced in the title, such provision must be incongruous with the title or must have no proper connection or relation with the title. People v. Clark, 296 Ill. 46.

The last assault made upon the constitutionality of the act is that it is repugnant to section 4 of article 2 of the constitution of Illinois, which provides that “every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty,” on the ground that the act does not define what shall constitute an abuse of the right of free speech. It would'be a strange constitution, indeed, that would guarantee to any man the right to advocate the destruction by force of that which that constitution guarantees to the people living under its protection. The true limitations of the constitutional guaranty of freedom of speech and press, so far as the question is here involved, were clearly stated in Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247. In a unanimous opinion the'Supreme Court of the United States said: “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.” Speaking in a later case of the Espionage act, the Supreme Court of the United States said: “Simple as the law is, perilous to the country as disobedience to it was, offenders developed, and when it was exerted against them challenged it to decision as a violation-of the right of free speech assured by the constitution of the United States. A curious spectacle was presented. That great ordinance of government and orderly liberty was invoked to justify the activities of anarchy or of the enemies of the United States, and by a strange perversion of its precepts it was adduced against itself.” (Schaefer v. United States, 251 U. S. 466, 40 Sup. Ct. 259.) “It is settled that the State may prohibit publications or teachings which are injurious to society, or which tend to subvert or imperil the government or to impede or hinder it in the performance of its public and governmental duties, without infringing the constitutional provisions which preserve freedom of speech and of the press. These constitutional provisions preserve the right to speak and to publish, without previously submitting for official approval the matter to be spoken or published, but do not grant immunity to those who abuse this privilege, nor preyent the State from making it a penal offense to publish or advocate matters or measures inimical to the public welfare.” (State v. Holm, supra.) Speaking of a similar provision of the constitution, the Court of Appeals of New York said: “It places no restraint upon the power of the legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the State of the primary right of self-preservation. It does not sanction unbridled license nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force. All courts and commentators contrast the liberty of the press with its licentiousness, and condemn as not sanctioned by the constitution of any State appeals designed to destroy the reputation of the citizen, the peace of society, or the existence of the government.” (People v. Most, 171 N. Y. 423, 64 N. E. 175.) Discussing a similar contention, the Supreme Court of New Jersey said: “The fundamental answer to the point raised is, that free speech does not mean unbridled license of speech, and that language tending to the violation of the rights of personal security and private property and toward breaches of the public peace is an abuse of the right of free speech for which, by the very constitutional language invoked, the utterer is responsible.” State v. Boyd, 86 N. J. L. 75, 91 Atl. 586.

Our investigation is limited to the right of the General Assembly to enact this law. Granting that there is much force to the argument of counsel for plaintiffs in error that repressive measures of this character are unwise, that they tend to solidify the several disintegrated groups of malcontents, that they drive the agitators to cellars where they plot overt acts and become a real menace, and that the enactment of such measures is a confession that the theory of popular self-government is wrong because the people cannot be trusted to protect themselves against false doctrines, the arguments are not properly directed to the judicial branch of the government. It may be that this evil can best be met by providing a place where all agitators can relieve themselves of their pent-up fury and where all preachers of false doctrines can work off their fervor from a soapbox in the open air, but that is a question which our constitution has committed for decision to the legislative branch of the government. The wisdom or propriety of such legislation is not a question for the courts. We repeat, the courts are concerned only with the question of the legislative power to enact it, (State v. Moilen, supra; People v. Graham, 301 Ill. 446;) and of that we have no doubt.

The indictment is in twelve counts, the odd-numbered counts severally charging a conspiracy to commit the acts which are declared to be crimes by the several sections of the statute hereinbefore quoted, and the even-numbered counts severally concluding as at common law and each charging a conspiracy to do unlawful acts, which consist of the same elements as the crimes set forth as the purpose of the conspiracy in the next preceding odd-numbered count. The first and second counts each charge that plaintiffs in error and others, on the second day of September, 1919, “in said county of Cook in the State of Illinois, aforesaid, did unlawfully, knowingly, wickedly, maliciously and feloniously combine, conspire, confederate and agree together and with divers other persons, whose names to the grand jurors are unknown, with the fraudulent and malicious intent, wrongfully and wickedly to unlawfully and openly advocate by word of mouth and by writing the reformation and overthrow by violence and by other unlawful means, the exact character of which is to the grand jurors unknown, the representative form of government now secured to the citizens of the United States of America and to the State of Illinois by the constitution of the, United States of America and the constitution of the State of Illinois, and to unlawfully, wickedly and feloniously publish, issue and knowingly sell and distribute books, papers and documents and other written and printed matter which advocate crime and violence as a means of accomplishing the reformation and overthrow of the constitutional representative form of government secured to the citizens of the United States of America and of the State of Illinois, and to unlawfully and feloniously and wickedly organize and aid in the organization of a certain society and association, to-wit, communist labor party of the United States of America, and to become members of such society and association, the object of which is and was to be to advocate the reformation and overthrow of the existing form of government of the United States of America and of the State of Illinois by violence and other unlawful means, the exact description of which is to the grand jurors unknown, and to knowingly and unlawfully and voluntarily be present at meetings and assemblies at which the reformation and overthrow of the existing form of government of the United States of America and of the State of Illinois was to be advocated by crime and by violence, and to knowingly and unlawfully display and to exhibit at meetings and gatherings and parades in public or in private flags, banners, emblems and other insignia, the exact description of which to the grand jurors is unknown, symbolizing and intending to symbolize a purpose to overthrow by force and by violence and by physical injury to persons and property the representative form of government now secured to the citizens of the United States of America and to the State of Illinois and the several States of the Union by the constitution of the United States of America and the constitution of the State of Illinois.” Counts 3 and 4 charge a conspiracy to commit the felony and unlawful act described in section 265/ of the statute; counts 5 and 6, the crime and unlawful act described in section 265d; counts 7 and 8, the felony and unlawful act described in section 265c; counts 9 and 10, the felony and unlawful act described in section 265 b; and counts xi and 12, the felony and unlawful act described in section 265a of the statute. A nolle prosequi was entered as to count 5.

Plaintiffs in error contend that the indictment is insufficient, and that the trial court erred in denying each of the motions to quash the indictment, and the motion in arrest of judgment, and in overruling the objection to the reception of any evidence in support of the indictment. Substantially all of the objections urged against the validity of the statute are urged against the sufficiency of the indictment, and each and every count thereof. The contentions that the representative form of government mentioned in the several counts of the indictment is not clearly named and identified, that the representative form of government of the several States is for the benefit of the citizens of the respective States and not for the benefit of the respective States, that the form of government existing at the time the indictment was returned is not declared by the grand jury to be the same form of government existing at the time plaintiffs in error conspired to advocate its overthrow, or at the time the act became a law, and that there is uncertainty, ambiguity and repugnancy in the indictment and each and every count thereof because of the use of the uncertain, ambiguous and repugnant words and phrases of the statute, have all been fully answered in former paragraphs of this opinion and will not be further considered here. The argument, that the county and State wherein it was charged that plaintiffs in error conspired to advocate the reformation and overthrow of government is not shown by the allegations of the indictment, is clearly without merit.

The only point urged against the indictment that has not been considered and overruled in preceding paragraphs of this opinion is the argument that the indictment is bad for want of an allegation showing that the advocacy mentioned therein was to be carried on and prosecuted to, before and among persons who should and would owe permanent or temporary allegiance to the sovereignty or to the several sovereignties, against, whose form of government said advocacy was to be directed. We are unable to see how it can be seriously urged that if said advocacy is carried on and prosecuted before persons who do not owe allegiance to this State or nation, the advocacy would be entirely harmless and could not by any possibility create or even threaten a real danger to the constitutional form of government now existing and secured to the several States of the nation. It would be a pitiful situation, indeed, if this nation or State could not protect itself against a group of undesirable aliens who were organizing for the purpose of destroying our established government. And wouldn’t Illinois be an object of pity and contempt if she could not prevent her own citizens from advocating to this group of foreigners the forcible reformation and overthrow of our State government! This indictment does not charge plaintiffs in error with treason, and the fact that some or most of the men with whom plaintiffs in error conspired and consorted could not be punished as traitors, if they undertook to carry out the program advocated by plaintiffs in error, does not affect the sufficiency of this indictment. (Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249.) Plaintiffs in error are charged with conspiracy and the conspiracy is complete when the agreement to do the thing forbidden by law has been made. The conspiracy is none the less punishable because it is not successful. The essence of the offense is not the accomplishment of the unlawful object, but it is the unlawful combination or agreement to accomplish the criminal or unlawful purpose. People v. Smith, 239 Ill. 91; People v. Blumenberg, 271 id. 180.

Some of the language used in this indictment and in the statute on which it is based may not be grammatically exact, but such exactness is not required. (People v. Blumenberg, supra.) We have held that the statute clearly defines the offense, and where that is true and the indictment charges the offense substantially in the language of the statute, the indictment is sufficient. To hold that the indictment does not state a public, offense would be to say that the statute defines none. • The language of the statute and of the indictment being substantially the same, the latter must be understood in the same sense as the former. (People v. Malley, (Cal.) 194 Pac. 48.) The offense with which plaintiffs in error are charged is stated plainly enough to be readily understood by the jury, and plaintiffs in error were sufficiently informed to properly prepare their defense. This is all the law requires. (People v. Robertson,, 284 Ill. 620; People v. Krause, 291 id. 64; State v. Hennessy, supra.) In an indictment for a conspiracy to commit a felony it is only necessary to designate the felony intended to be committed by such description as will apprise the defendants of the exact charge upon which they will be tried, and it is not required that the felony be described with the same accuracy as would be required in an indictment for the felony itself. (People v. Warfield, 261 Ill. 293.) Since it has always been unlawful to advocate the overthrow by force of established government, the common law counts in this indictment are good. (People v. Blumenberg, supra; Smith v. People, 25 Ill. 9.) We have examined each and every count of the indictment and the objections of plaintiffs in error thereto, and find the indictment sufficient. We shall not discuss, objections urged to specific counts of the indictment for the reason that the verdict in this case was a general verdict, and the rule is established by many decisions of this court, that one good count in an indictment will support such a verdict, (People v. Darr, 262 Ill. 202; Ochs v. People, 124 id. 399;) and no good purpose could be served by lengthening this opinion for the purpose of discussing these objections.

Plaintiffs in error filed a petition for a bill of particulars, in which they requested the court to require the State’s attorney to furnish them with a copy of all books, papers, documents, and written and printed matter which the State’s attorney intended to introduce in evidence upon the trial. This petition was granted and the information furnished. They also requested that the State’s attorney inform them of the nature and particulars of the “violence,” “other unlawful means,” “force,” “crime” and “physical injury,” and that he provide them with a particular description of the kind and nature of the “flags, banners, emblems and other insignia” mentioned in the indictment. This latter request the court denied. The bill of particulars furnished plaintiffs in error covers eight pages of the printed abstract. It gives them the title and description of every book, pamphlet, leaflet, newspaper, letter, hand-bill and song, and the minutes of the various conventions and committees in which plaintiffs in error participated, and the platform of the various parties and organizations to'which they belonged. Plaintiffs in error were not charged with doing any particular acts of “violence” or with using any “force” or “other unlawful means,” so it was not possible to particularize the “violence,” etc., advocated by them. The terms are common everyday terms with well known and established meanings, and there was no necessity for details concerning them. Whether the State shall be required to furnish a bill of particulars in a particular case, and the character and extent of such a bill, if required, rests in the sound legal discretion of the trial court, and it is only in cases where it is clear that there has been an abuse of this discretion that the action of the trial court, in denying a part or all of the request, will be held to be error. (People v. Munday, 280 Ill. 32; People v. Nall, 242 id. 284.) There was no abuse of discretion in the court’s action in this regard. Plaintiffs in error were sufficiently and fully advised of the charge against them.

August 31, 19x9, the socialist national convention convened in Chicago. The radical element, who styled themselves the “Left Wingers,” undertook to capture the socialist party and to commit it to a revolutionary program. They created such a disturbance that the conservative element, with the assistance of the Chicago police, threw them out of Machinists’ Hall, where the convention was being held. The following day, the Left Wingers gathered in an ante-room in the same building and elected plaintiff in error Owens as temporary chairman of their group. About forty or fifty persons attended the first session, among them plaintiffs in error Owens, Lloyd, Carney, England, Katterfeld, Lore, Sandberg, Brown, Christensen, Shipman, Ash, Hankin, Vogel, Kjar, Stolar and Krumbein. They were in session for five days. The number of delegates increased during the session to about seventy-five. A different person was elected chairman of the convention each day. Lloyd was elected sergeant-at-arms and acted in that capacity throughout the convention. Benjamin Gitlow, a prominent radical of New York and business manager of The Revolutionary Age, the official newspaper of the Left Wingers, was a delegate to this convention and took an active part in all the proceedings. Thereafter, he was indicted and convicted in New York of criminal anarchy. (People v. Gitlow, 187 N. Y. Supp. 783; affd. 234 N. Y. 132.) On the first day they adopted the bolshevik yell, which ran like this:

“Bolshevik, bolshevik, bolshevik, bang!

We are members of the ’Gene Debs gang.

Are we rebels ? I should smile.

We are with the soviets all the while.”

—and thereafter each session of the convention was opened with this yell. After the convention had been permanently organized, committees were appointed. With other delegates, plaintiffs in error England and Carney were named as members of the committee on credentials; Lore, Lloyd and Christensen on international relations; Owens on constitution; Carney and England on program and labor; Lore, Sandberg and Brown on platform; Katterfeld on organization, education and propaganda; Owens on ways and means; and Lore and Carney on socialist press and publicity. Plaintiffs in error accepted these assignments and served on the committees. The delegates to this convention were constantly informed of the activities of the previous day by having placed in their hands at each succeeding session a mimeographed copy of the minutes of the preceding session/ All committee reports were mimeographed and distributed among the delegates. Sessions of the second day were held in the billiard room in the same building. At this session the name and emblem of the organization were adopted. The committee on resolutions recommended the name, “The Communist Labor Party of the United States of America,” and considerable debate took place regarding the word “communist.” During the debate, plaintiff in error Carney said that the socialists had disgraced themselves and that a new name must be selected; that the word “communism” meant a revolutionary movement which embodied and embraced the Third International. After this explanation the name was adopted. The committee also recommended that the convention adopt as an emblem, the one used by the soviet government of Russia. That emblem is circular in form, has on it a hammer and sickle, and bears the inscription, “Workers of the World Unite.” This emblem was adopted. At this session the platform committee was instructed to prepare and submit a platform containing a clear, terse and revolutionary statement of their principles, and nothing more. The delegates to this communist convention had been sent by their locals as delegates to the socialist convention, and after they had been refused seats in the latter some of them became concerned about their per diem. The ways and means committee recommended that communist mass meetings be held in different places in the city of Chicago for the purpose of raising funds. The recommendation was adopted and two meetings were held, one at Old Style Inn, and one at the West Side Auditorium. The quarters where the sessions of the first two days were held were small and unsatisfactory, and a committee selected to secure larger quarters reported that arrangements had been made to hold the sessions at the I. W. W. hall at 119 Throop street, Chicago. The meetings of Wednesday, Thursday and Friday, September 3, 4 and 5, 1919, were held in this hall. At the first session in this hall, the delegates began singing revolutionary songs. They sang “The Red Flag” and “The Internationale” and gave the bolshevik yell. The usual committee reports were received and adopted. The platform committee reported a platform, which was read and acted upon, sentence by sentence, and paragraph by paragraph; that is, each sentence in a paragraph was read and acted upon separately, and then the entire paragraph was read and acted upon. Each delegate was furnished with, and held in his hands during the reading, a mimeographed copy of the committee report. At the evening session of September 3, the program and labor committee made its report, and it was considered in the same manner in which the platform committee’s report was considered. These two reports occupied the attention of the convention throughout the afternoon and evening of September 3 and the forenoon of September 4. At the afternoon session of September 4, both reports were unanimously adopted. Practically every delegate in the convention took part in the discussion and debate of these committee reports. After this, the committee on international relations recommended that the convention pledge itself to affiliate with the revolutionary working classes throughout the world that are affiliated with the Third International; that the delegates pledge themselves to work in accordance with the program outlined and adopted by the congress of the Third International at Moscow, Russia; and that the national executive committee of the party be instructed to take immediate steps to affiliate with the Third International. This resolution was unanimously adopted. The constitution committee reported, and the constitution was adopted. Owens, England, Car-' ney and Katterfeld were named as members of the national executive committee. The business of the convention was concluded, and the convention adjourned sine die at 11 P.'M. Friday, September 5, 1919. Immediately before the final adjournment, the delegates had a musical program of revolutionary songs.

We state the object and purposes of the communist labor party by quoting from their platform and program:

“The communist labor party of the United States of America declares itself in full harmony with the revolutionary working class parties of all countries and stands by the principles stated by the Third International formed at Moscow.

“With them it thoroughly appreciates the complete development of capitalism into its present form of capitalist imperialism with its dictatorship of the capitalist class and its absolute suppression of the working class.

“With them it also fully realizes the crying need for an immediate change in the social system; it realizes that the time for parleying and compromise has passed; and that now it is only the question whether all power remains in the hands of the capitalist or is taken by the working class.

“The communist labor party proposes the organization of the workers as a class, the overthrow of capitalist rule and the conquest of political power by the workers. The workers organized as the ruling class, shall, through their government make and enforce the laws; they shall own and control land, factories, mills, mines, transportation systems and financial institutions. All power to the workers!

“The communist labor party has as its ultimate aim: The abolition of the present system of production, in which the working class is mercilessly exploited, and the creation of an industrial republic wherein the machinery of production shall be socialized so as to guarantee to the workers the full social value of the product of their toil.

“To this end we ask the workers to unite with the communist labor party for the conquest of political power to establish a government adapted to the communist transformation.

“The communist labor party of America declares itself in complete accord with the principles of communism, as laid down in the manifesto of the Third International formed at Moscow.

“In essence, these principles are as follows:

“1. The present is the period of the dissolution and collapse of the whole system of world capitalism. Unless capitalism is replaced by the rule of the working class, world civilization will collapse.

“2. The working class must organize and train itself for the capture of State power. This capture means the establishment of the new working class government machinery, in place of the State machinery of the capitalists.

“3. This new working class government—the dictatorship of the proletariat—will re-organize society on the basis of communism, and accomplish the transition from capitalism to the communist commonwealth.

“Communist society is not like the present fraudulent capitalist democracy—which, with all its pretensions to equality, is merely a disguise for the rule of the financial oligarchy—but it is a proletarian democracy, based on the control of industry and the State by the workers, who are thereby free to work out their own destiny. It does not mean capitalist institutions of government, which are controlled by the great financial and industrial interests, but organs of administration created and controlled by the masses themselves; as, for example, the soviets of Russia.

“4. The dictatorship of the proletariat shall transfer private property in the means of production and distribution to the working class government, to be administered by the workers themselves. It shall nationalize the great trusts and financial institutions. It shall abolish capitalist agricultural production.

“5. The present world situation demands that the revolutionary working class movements of all countries shall closely unite.

“6. The most important means of capturing State power for the workers is the action of the masses, proceeding from the place where the workers are gathered together— in the shops and factories. The use of the political machinery of the capitalist State for this purpose is only secondary.

“7. In those countries in which there is a possibility for the workers to use this machinery in the class struggle, they have, in the past, made effective use of it as a means of propaganda, and of defense. In all countries where the conditions for a working class revolution are not ripe, the same process must go on.

“8. We must rally all groups and proletarian organizations which have manifested and developed tendencies leading in the direction above indicated, and support and encourage the working class in every phase of its struggle against capitalism. * * *

“The economic conditions in every country determine the form of organization and method of propaganda to be adopted. In order efficiently to organize our movement here, we must clearly understand the political and economic structure of the United States.

“Although the United States is called a political democracy there is no opportunity whatever for the working class through the regular political machinery to effectively oppose the will of the capitalist class.

“The years of socialist activity on the political field have brought no increase of power to the workers. Even the million votes piled up by the socialist party in 1912, left the party without any proportionate representation. The Supreme Court, which is the only body in any government in the world with the power to review legislation passed by the popular representative assembly, would be able to obstruct the will of the working class even if Congress registered it, which it does not. The constitution, framed by the capitalist class for the benefit of the capitalist class, can not be amended in the workers’ interest, no matter how large a majority may desire it. * * *

“Not one of the great teachers of scientific socialism has ever said that it is possible to achieve the social revolution by the ballot.

“However, we do not ignore the value of voting, or of electing candidates to public office—so long as these are of assistance to the workers in their economic struggle. Political campaigns, and the election of public officials, provide opportunities for showing up capitalist democracy, educating the workers to a realization of their class position, and of demonstrating the necessity for the overthrow of the capitalist system. But it must be clearly emphasized that the chance of winning even advanced reforms of the present capitalist system at the polls is extremely remote; and even if it were possible, these reforms would not weaken the capitalist system. * * *

Program.

“1. We favor international alliance of the communist labor party only with the communist groups of other countries,—those which have affiliated with the communist international.

“2. We are opposed to association with other groups not committed to the revolutionary class struggle.

“3. We maintain that the class struggle is essentially a political strug'gle,—that is, a struggle by the proletariat to conquer the capitalist State, whether its form be monarchical or democratic-republican, and to replace it by a governmental structure adapted to the communist transformation.

“4. Communist platforms, being based on the class struggle, and recognizing that this is the historical period of the social revolution, can contain only one demand: The establishment of the dictatorship of the proletariat.

“5. We favor organized party activity and co-operation with class-conscious industrial unions, in order to unify industrial and political class-conscious propaganda and action. Locals and branches shall organize shop branches, to conduct the communist propaganda and organization in the shops and to encourage the workers to organize in one big union.

“6. The party shall propagandize industrial unionism and industrial union organization, pointing out their revolutionary nature and possibilities.

“7. The party shall make the great industrial battles its major campaigns, to show the value of the strike as a political weapon.

“8. The party shall maintain strict control over all members elected to public office—not- only the local organizations, but the national executive committee. All public officials who refuse'to accept the decisions of the party shall be immediately expelled.

“9. In order that the party shall be a centralized organization, capable of united action, no autonomous groups or federations independent of the will of the entire party shall be permitted.

‘To. All'party papers and publications indorsed by the party; and all educational and propaganda institutions indorsed by the party, shall be owned and controlled by the regular party organization.

“n. Party platforms, propaganda, dues and methods of organization shall be standardized.

Special Report on Labor Organization.

“The purpose of the party is to create a unified revolutionary working class movement in America. * * *

“By the term ‘revolutionary industrial unionism’ is meant the organization of the workers into unions by industries with a revolutionary aim and purpose; that is to say, a purpose not merely to defend or strengthen the status of the workers as wage earners, but to gain control of industry.

“In any mention of revolutionary industrial unionism in this country, there must be recognized the immense effect upon the American labor movement of the propaganda and example of the Industrial Workers of the World, whose long and valiant struggles and heroic sacrifices in the class-war have earned the respect and affection of all workers everywhere. We greet the revolutionary industrial proletariat of America, and pledge them our wholehearted support and co-operation in their struggles against the capitalist class. Elsewhere in the organized labor movement a new tendency has recently manifested itself, as illustrated by the Seattle and Winnipeg strikes, the One Big Union and Shop Committee movements in Canada and the West, and the numerous strikes all over the country of the rank and file, which are proceeding without the authority of the old reactionary trade union officials, and even against their orders. This tendency, an impulse of the workers toward unity for common action across the lines of craft-divisions, if carried to its logical conclusion would inevitably lead to workers’ control of industry.

“This revolt of the rank and file must not be allowed to end in the disorganization of the ranks of organized labor. We must help to keep the workers together, and through rank and file control of the unions, assist the process of uniting all workers in one big union.

“With this purpose in view, the communist labor party welcomes and supports, in whatever labor organization found, any tendency toward revolutionary industrial unionism. We urge all our members to join industrial unions. Where the job-control of the reactionary craft-unions compels them to become members of these craft-unions, they shall also join an industrial organization, if one exists. In districts where there are no industrial unions, our members shall take steps to organize one.

“To labor and labor alone is industry responsible. Without the power of labor, industry could not function. The need of the hour is that labor recognize the necessity of organization and education. This cannot be achieved by attempting to influence the leaders of the labor movement, as has been clearly shown by the actions of the recent convention of the American Federation of Labor. It can only be done by getting the workers on the job to come together and discuss the vital problems of industry. * * *

“We suggest that some plan of labor organization be inaugurated along the lines of the Shop Steward and Shop Committee movements. These committees can serve as a spur or check upon the officials of the unions; they will necessarily reflect the spirit and wishes of the rank and file, and will educate the workers on the job in preparation for the taking over of industry.”

The organization of the communist labor party in Chicago was the outgrowth of the socialist Left Wing conference held in New York City June 21-24, 1919- Lloyd, Carney and England were delegates to this conference. Lloyd was elected chairman, and July 17, 1919, sent his check for $650 as a contribution to help defray the expenses of this meeting. Between seventy-five and eighty delegates attended. The conference elected a national executive council consisting of nine members, none plaintiffs in error here. This Left Wing conference adopted a program of activities and named The Revolutionary Age as the official newspaper of the Left Wingers. They adopted a resolution, urging all revolutionary socialists to send delegates to the socialist convention at Chicago, and to be prepared to form a new party if the national executive committee of the socialist party did not re-instate all suspended and expelled members. The national executive committee was instructed to draft and cause to be printed the “Left Wing Manifesto.” Benjamin Gitlow, a prominent delegate to this conference and a member of the national executive council, caused to be published in The Revolutionary Age, dated July 5, 1919, this manifesto. Sixteen thousand copies of this issue were printed. We re-produce the title page of this issue of The Revolutionary Age, which publication was received in evidence as State’s exhibit 38.

The Left Wing manifesto covers twenty-five pages of the printed abstract. It reviews the rise of socialism, condemns the socialist party and moderate socialism for confining its advocacy of the reformation of government to constitutional amendments brought about by the exercise of the elective franchise, and declares that method wholly inadequate to accomplish the purposes of the Left Wing, and asserts that the reformation can be brought about only by a revolution of the proletariat, a term used in modern jargon to designate all the unpropertied people in a modern State. It condemns the American Federation of Labor for its support of the government. We quote from the manifesto:

“The world is in crisis. Capitalism, the prevailing system of society, is in process of disintegration and collapse. Out of its vitals is developing a new social order, the system of communist socialism; and the struggle between this new social order and the old is now the fundamental problem of international politics. * * *

“But socialism itself is in crisis. Events are revolutionizing capitalism and socialism—an indication that this is the historic epoch of the proletarian revolution. * * * Capitalism cannot reform itself; it cannot be reformed. Humanity can be saved from its last excesses only by the communist revolution. There can now be only the socialism which is one in temper and purpose with the proletarian revolutionary struggle. There can be only the socialism which unites the proletariat of the whole world in the general struggle against the desperately destructive imperial-isms—the imperialisms which array themselves as a single force against the onsweeping proletarian revolution. * * *

“The class struggle is the heart of socialism. Without strict conformity to the class struggle, in its revolutionary implications, socialism becomes either sheer Utopianism, or a method of re-action. * * *

“The socialism which developed as an organized movement after the collapse of the revolutionary First International was moderate, petty bourgeois socialism. * * *

“This moderate socialism initiated the era of ‘constructive’ social reforms. It accepted the bourgeois State as the basis of its activity and strengthened that State. Its goal became ‘constructive reforms’ and cabinet portfolios—the ‘co-operation of classes,’ the policy of openly or tacitly declaring that the coming of socialism was the concern ‘of all the classes,’ instead of emphasizing the Marxian policy that the construction of the socialist system is the task of the revolutionary proletariat alone. In accepting socialreformism, the ‘co-operation of classes,’ and the bourgeois parliamentary State as the basis of its action, moderate socialism was prepared to share responsibility with the bourgeoisie in the control of the capitalist State, even to the extent of defending the bourgeoisie against the working class and its revolutionary mass movement. * * *

“Evading the actual problems of the revolutionary struggle, the dominant socialism of the Second International developed into a peaceful movement of organization, of trades union struggles, of co-operation with the middle class, of legislation and bourgeois State capitalism as means of introducing socialism. * * *

“This development meant, obviously, the abandonment of fundamental socialism. It meant working on the basis of the bourgeois parliamentary State, instead of the struggle to destroy that State; it meant the ‘co-operation of classes’ for State capitalism, instead of the uncompromising proletarian struggle for socialism. Government ownership, the objective of the middle class, was the policy of moderate socialism. Instead of the revolutionary theory of the necessity of conquering capitalism, the official theory and practice was now that of modifying capitalism, of a gradual peaceful ‘growing into’ socialism by means of legislative reforms. * * *

“When the economic and political crisis did develop potential revolutionary action in the proletariat, the dominant socialism immediately assumed an attitude against the revolution. The proletariat was urged not to make a revolution. The dominant socialism united with the capitalist governments to prevent a revolution.

“The Russian revolution was the first act of the proletariat against the war and imperialism. But while the masses made the revolution in Russia, the bourgeoisie usurped power and organized the regulation bourgeois parliamentary republic. This was the first stage of the revolution. Against this bourgeois republic organized the forces of the proletarian revolution. Moderate socialism in Russia, represented by the mensheviki and the social revolutionists, acted against the proletarian revolution. It united with the Cadets, the party of bourgeois imperialism, in a coalition government of bourgeois democracy. It placed its faith in the war ‘against German militarism/ in national ideals, in parliamentary democracy and the ‘co-operation of classes.’

“But the proletariat, urging on the poorer peasantry, conquered power. It accomplished a proletarian revolution by means of the bolshevik policy of ‘all power to the soviets/—organizing the new transitional State of proletarian dictatorship. Moderate socialism, even after its theory that a proletarian revolution was impossible had been shattered by life itself, acted against the proletarian revolution and mobilized the counter-revolutionary forces against the soviet republic,—assisted by the moderate socialism of Germany and the allies. * * *

“There is, accordingly, a common policy that characterizes moderate socialism, and that is its conception of the State. * * *

“Revolutionary socialism, on the contrary, insists that the democratic parliamentary State can never be the basis for the introduction of socialism; that it is necessary to destroy the parliamentary State, and construct a new State of the organized producers, which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the proletariat.

“The proletarian revolution in action has conclusively proven that moderate socialism is incapable of realizing the objectives of socialism. Revolutionary socialism alone is capable of mobilizing the proletariat for socialism, for the conquest of the power of the State, by means of revolutionary mass action and proletarian dictatorshi