4i8 HARVARD LAW REVIEW any statute which tends to limit liberty of expression ought to be construed in the light of the freedom-of-speech clause, so as not to restrict utterances any more than the actual words of the statute require. Furthermore, the Espionage Act is a criminal statute, and it is a well- established rule of construction that criminal statutes be strictly con- strued. Yet some courts have included all men within the ages of i8 and 45 as part of "the military and naval forces of the United States." ^ Certainly the same courts would balk at holding such men, not actually in the military service, as subject to court-martial and military law and hence deprived of the right of trial by jury.* So, too, the words "re- cruiting and enlistment service" have been construed to include con- scription under the Selective Service Act.^ Congress was aware of the Draft Law at the time of the passage of the Espionage Act, and had it meant an interference therewith to be a crime under the Espionage Act, it should have said so. The statute imposes a penalty for the wilful utterance of false state- ments. Such, it is submitted, means wilful false statements of facts. "This is a capitalists' war " ^ — "The Government is for profiteers"^ — "The Selective Service Act is unconstitutional"* — are clearly state- ments of opinions. The causes of the war cannot be proven as facts. Yet some courts seem to think so, for the President's address to Congress recommending a formal declaration of war for the reasons therein set forth, was admitted in evidence to prove the falsity of a defendant's utterances.^ To follow this to its logical conclusion would brand as seditious all utterances at variance with the statements of those in governmental positions and adverse to their war policies, and yet allow all criticisms, honest or vicious, in favor of waging a more vigorous war. The convictions under the Espionage Act have been for attenjipts to cause its violation; attempts by wilful false statements to interfere with the operation of the military or naval forces, or to cause insubor- dination or mutiny, or for attempting wilfully to obstruct the recruiting and enlistment service. Attempts, to be punishable, must come danger- ously near success and yet fall short of it.^" The purchase of a gun or ' United States v. Sugannan, Dep't of Justice, Bulletin No. 12; United States v. Kirchner, Ibid, Bulletin No. 69; United States v. Stokes, supra. Contra, United States V. Ves Hall, 248 Fed. 150; United States v. Frerichs, Dep't of Justice, Bulletin No. 85; United States v. Hitt, Ibid., Bulletin No. 53; United States v. Brinton, Ibid., Bulletin No. 132.
- The fifth amendment of the federal Constitution guarantees trial by jury to all
those not in the mihtary or naval forces of the United States.
- United States v. Hitt, supra; United States v. Stokes, supra; United States v.
Waldron, Dep't of Justice, Bulletin No. 79. Contra, United States v. Brinton, supra. Cf. Babbitt v. United States, 16 Ct. CI. 202, 213; Lanahan v. Birge, 30 Conn. 438, 443. « United States v. Pierce, Dep't of Justice, Bulletin No. 52. ^ United States v. Stokes, supra.
- United States v. Kirchner, supra.
' United States v. Stokes, supra. " See Joseph H. Beale, Jr., "Criminal Attempts," 16 Harv. L. Rev. 491, SOI.
