966 HARVARD LAW REVIEW better illustration than in his charge. Furthermore, although Mrs. Stokes was indicted only for writing a letter, the judge admitted her speeches to show her intent, and then denounced the opinions ex- pressed in those speeches in the strongest language "^ to the jury as destructive of the nation's welfare, so that she may very weU have been convicted for the speeches and not for the letter. His decision makes it practically impossible to discuss profiteering, because of " the possible, if not probable effect" ^^^ on our troops, while a recent case in the Second Circuit ^^^ makes it equally perilous to urge a wider exemption for conscientious objectors because this tends to encourage more such objectors, a close parallel to the English im- prisonment of Bertrand Russell."^ Many men have been im- prisoned for arguments or profanity used in the heat of private altercation, and even unexpressed thoughts have been prosecuted through an ingenious method of inquisition.^^^ And although we are not at war with Russia, three men who opposed our interven- tion and compared our troops to the Hessians were condemned by Judge Clayton to imprisonment for twenty years. Judge Van Valkenburgh summed up the facts with appalling correctness in view of the long sentences imposed under the Espionage Act, when he said that freedom of speech means the protection of "criticism which is made friendly to the government, friendly to the war, friendly to the poHcies of the government." ^^° The United States Supreme Court did not have an opportunity to consider the Espionage Act until 19 19, after the armistice was 1'* Bull. Dept. Just., No. 106, p. 4 (W. D. Mo. igiy), passim, making use of Mrs. Stokes' declared sympathy with the Russian Revolution, an offense not punishable even under the 1917 Espionage Act, to show how dangerous it was for her to talk about profiteers. His vigorous denunciation of that Revolution, totally unconnected with the indictment, recalls Lord Kenyon's similar use of the massacres of the French Revolu- tion in Rex v. CutheU, 27 How. St. Tr. 642, 674 (1799). Utterances not covered by the indictment were also admitted in Doe v. United States, 253 Fed. 903 (C. C. A. 8th, 1918). 11' United States v. Rose Pastor Stokes, supra, p. 8. "7 Fraina v. United States, 255 Fed. 28 (C. C. A. 2d, 1918). "* Rex V. Bertrand Russell, Littell's Living Age, Feb. 15, 1919, p. 385. 1" United States v. Pape, 253 Fed. 270 (1918). A German-American who had not subscribed to Liberty bonds was visited in his house by a committee who asked his rea- sons and received a courteous reply that he did not wish either side to win the war and could not conscientiously give it his aid. He was thereupon arrested and held in con- finement imtil released by a district court. 1*° United States v. Rose Pastor Stokes, supra, p. 14. At least twelve persons have been sentenced for ten years, five for fifteen years, and twenty-one for twenty years.
