DEMOCRACY AND THE CONDUCT OF WAR
EXECUTIVE DUPLICITY IN IMPOSING THE WAR POLICIES
If it be contended that the war, having once commenced, the President of the United States may direct it to the accomplishment of any object he pleases, without consulting and without regard to the will of Congress, the [Constitutional] convention will have utterly failed in guarding the nation against the abuses and ambitions of a single individual. Either Congress or the President must have the right of determining upon the objects for which a war shall be prosecuted. There is no other alternative. If the President possess it ... where is the difference between our free government and that of any other nation which may be governed by an absolute czar, emperor or king ? ... It is the privilege of the people in their primary assemblies, and of every private man, however humble, to express an opinion in regard to the purposes for which the war should be continued.Henry Clay, in speech on the Mexican War, Nov. 13, 1847.
THE obligation of the chief executive of a democracy, to comport his acts and policies with previous promises and pronouncements, had been many times acknowledged by President Wilson. For example, on one occasion he spoke as follows :
I set myself this very strict rule ... that I am not at liberty to urge upon Congress, in messages, policies which have not had the organic consideration of those for whom I am spokesman. For that reason, you see, I am by my own principles shut out, in the language of the street, from starting anything. I have to confine myself to those things which have been embodied as promises to the people at an election. That is the strict rule I set for myself, (Speech to delegation of suffragists, White House, Dec. 8, 1913.)
But not one of the salient war policies of Wilson ever had the organic consideration of those for whom he was spokesman. Not one was embodied as a promise to the people at an election.
Nor can this be excused on the plea of sudden and unforeseen contingency. The 1916 election occurred only five months before war was declared. During the campaign the question of war was constantly before the people. It was inevitable that, in case of war, the question of conscription should arise. But the question of conscription was not given organic consideration in the Democratic Convention of 1916.
Do not imagine that the question of conscription was overlooked in that period. Wilson did not overlook it. He pronounced against the policy. Early in the year he had told the people : Every true believer in democracy believes that it is upon the voluntary action of the men of a great nation like this that it must depend for its military force. (Milwaukee, Jan. 31, 1916.) And in his Memorial Day address : America does not want anything but the compulsion of the spirit.
If the President experienced a change of mind upon this vital policy later, would not democratic ethics require him at once and publicly to acknowledge the fact ? But not until the night of April 2, while in the actual delivery of the war message, did the American public, or any part thereof, learn that the President would favor conscription.
What other conclusion is possible except that the President was well aware that the idea of conscription was repugnant to the masses of the people; that a proposal, at an earlier juncture, to conscript Americans would jeopardize the plan to go into the war itself; that he purposefully kept the people and Congress in the dark, knowing that the longer he waited the better chance he would have to impose the policy ?
After the President came out for conscription, it was still not too late, in the opinion of various members of Congress, to procure a form of organic consideration of the proposal. Bills were introduced providing for an advisory referendum on conscription. But the President was not for organic consideration, now, and all such measures were smothered.
Likewise, the public was misled as to the extent to which the Administration contemplated coöperating with the Entente governments.
The President had pronounced definitely against entangling alliances, and indeed, against alliances of any kind with any nation. He had declared that we had no interest in the outcome of the European quarrel. He had even declared, in effect, that the aims and purposes of Germany were as clean as those of England. By a hundred such pronouncements he had created the assumption that, should America be drawn into the war, it would participate independently and only to a limited degree, and with the single purpose of protecting American commerce and passengers in actual transit through the zone of submarine warfare.
In the last days before the war, the Administration actually took occasion to strengthen this assumption by causing the newspaper correspondents at Washington to send out reports that the government did not intend to become an ally of the Entente, but in case of a declaration of war would, in fact, confine its warfare to naval operations directed solely towards protecting American rights on the high seas immediately menaced by Germany and her allies.
Nothing whatever was said about a vast military crusade against autocracy, or anything of that sort. Nothing was said about sending an army overseas. Not even in his war message did the President hint at sending soldiers to France. Even in the war debates, the fact that the Administration planned to rush an army to France was hidden from the Senators and Congressmen themselves. The great American democracy went to war without a suspicion among the public at large that the Executivewhom they had reelected to keep them out of war, to save them from entangling alliances, and to protect them from conscription and every war terrorhad chosen to rush a great conscript army overseas and make America a partisan in the European chaos of competing and hostile ambitions!
No military reason can be urged as an excuse for this secrecy. The reason was political. To have admitted the truth before the declaration of war would have vastly increased public opposition to taking up the cudgels.
As with the draft, efforts were made to obtain a form of organic consideration of the project to send an army overseas. Bills were introduced, providing that no conscript be sent overseas without his consent. But all such bills were smothered at the dictation of the President. The President denied even the right of Congress to pronounce upon this question. American forces were sent overseas by Executive direction. Here, again, the public was misled. For, at first, the public was told that the American flag was going to France chiefly for its moral effect, and that our army overseas would be small. Only a little at a time, as our war autocracy fixed its hold more and more firmly upon the country, was the truth permitted to reach the people of America.
Farthest from the public mind had been the thought that the wishes of any other government could influence America to go to war. It remained for Lloyd George to tell us : We not only desired the entrance of the United States into the war; we solicited it. (Interview in Paris Matin, July 4, 1917.)
The drafting of the State militia organizations into the national service, and, the obligatory employment of the militiamen abroad, is another illustration of the Presidents ease at reversal and his contempt for his own interpretations of the Constitution. During his preparedness tour, while urging public support for an increase in the regular army, the President repeatedly discounted the value of the National Guard, explaining that the Constitution prohibited him from calling on it except in case of actual invasion. At New York, for example, January 27, 1916, he said :
Under the Constitution ... only upon occasion of actual invasion has the President of the United States the right to ask these men [members of the National Guard] to leave their respective States.
But this did not prevent him from writing into his Conscription Bill the following words :
The President ... is hereby authorized ... to draft into the military service of the United States, organize and officer ... any and all members of the National Guard and of the National Guard Reserves, and said members so drafted into the military service of the United States shall serve therein for the existing emergency.
The law was passed in this form. The President immediately, by proclamation, drafted the National Guard, in its entirety, and within a few weeks various units thereof were on their way, under compulsion, to France. The Constitution had not been amended, meanwhile, and no other formalities had occurred than those set forth above.
The American people had been in the habit of expressing their honest opinions freely, without persecution or punishment. How many of us had any inkling that, after war was declared, we might speak of the war only in terms of approval ?
How many had any idea that we would be suffered to mention the President of the United States only in adulation ?
How many would have supposed that it would become a crime to quote our own school textbooks against England ? How many would have thought that every word spoken of our enemies must be charged with execration ?
How many imagined that they would be prohibited from putting forth any efforts towards peace, or mentioning terms of peace except as a question to be determined exclusively by one man in all our hundred millions ?
How many would have believed that a public endorsement of principles for which Woodrow Wilson assumed to stand before the warand upon which he gained reëlectionwould have swiftly and surely landed the offender in prison ?
President Wilsons declamations on free speech, both before and after we entered the European war, are too numerous and well remembered to require quotation. While the Espionage Act was in the balance he wrote to Arthur Brisbane saying that he could imagine no greater disservice to the country than to establish a censorship that would deny to the people of a free republic their indisputable right to criticize their own public officials, and definitely promised : I shall not expect or permit any part of this law to apply to me or any of my official acts or in any way to be used as a shield against criticism.
Nevertheless, under the Espionage Act, numerous persons were prosecuted and imprisoned for no other cause than criticism of President Wilson.
A study of each Presidential deception of this character reveals the fact that its aim was to concentrate all power and all discretion in the hands of one Woodrow Wilson. Here again the policy of the President is a contradiction of his stand while campaigning for reëlection :
If I understand the life of America, the central principle is this, that no small body of persons, however influential, shall be trusted to determine ... the policy of America.(Address before Associated Advertising Clubs of the World, Philadelphia, June 29, 1916.)
The Constitution does not hold that this principle may be set aside in time of war. Nor do the great interpreters of democracy. Nor did Woodrow Wilson himself. On the other hand, the President particularly called attention to the democratic necessity for preventing the control in a few hands of a nation at war; to wit :
I should say that it was not inconsistent with the traditions of the country that the people should know how to take care of themselves; but it is inconsistent with the traditions of the country that their knowledge of arms should be used by a governmental organization which would make and organize a great army subject to orders to do what a particular group of men might at the time think it was best to have them do.
That is the militarism of Europe, where a few persons can determine what an armed nation is to do.
That is what I understand militarism to be.(Statement made to a committee from the American Union Against Militarism, White House, May 9, 1916.)
In other words, the policy which President Wilson insisted that he be allowed to follow in 1917 and 1918 is precisely the policy which he defined as militarism in 1916.
DEMOCRATIC CZARISM IN WAR-TIME
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power and proneness to abuse it, which predominate in the human heart, is sufficient to satisfy us of the truth of this position. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates, but let there be no change by usurpation, for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.George Washington, in his Farewell Address.
IN the first session of the war Congress, all legislation that passed was either approved by the President or written at his direction. Although not quite all of the Presidents programme went through, the powers which he procured in that sessionpowers everywhere bristling with the most drastic repressive provisionswere far greater than those ever voted to or exercised by any previous American Executive. At the conclusion of that session, the President of the American republic in the name of a war for democracystood out as the most unrestrained autocrat to be found in any great country in the world.
These extraordinary powers were not procured without a constant, and sometimes bitter, struggle with Congress, in which at times the President was opposed even by his own party leaders. The struggles over conscription, the embargo, censorship, and food-control, were especially closely contested. At the beginning, the House Military Affairs Committee actually recorded an adverse vote against conscription. Chairman Dent, Speaker Clark, and majority-leader Kitchin all opposed it, and the latter informed the President that, if an immediate vote were taken, the House as a whole would reject the proposition. On behalf of this and other bills, the President made repeated visits to the Capitol, an unusual proceeding. The President was forced to put the Conscription Bill in the hands of a Republican to be piloted through; in fact, it was due to the rallying of the Republicans that the bill went over.
In a statement to the public on behalf of the Food-Control Bill, the President admitted that these powers [which he asked for] are very great. Senator Owen offered an amendment to this bill, creating a joint committee to supervise the financial conduct of the war. The President contested the point, declaring in a letter to Mr. Lever (July 23, 1917): I could only interpret the final adoption of Section 23 as arising from a lack of confidence in myself. Which quite astonished various of the national legislators. Said Senator Hardwick (Aug. 6) :
It is incomprehensible to me how any one anywhere could oppose a proposal to have Congress share with him [the President] responsibility for war expenditures.
Senator LaFollette introduced a resolution declaring that Congress has complete authority under the Constitution to state the objects of the war. It was smothered, with the approval of the President.
On every important point of conflict with Congress the President ultimately won, and at the end of that first session he was able to announce that what he called the warmaking branch of the government, meaning himself, has been abundantly equipped with the powers that were necessary to make the action of the nation effective. This was an expression of satisfaction, from which it was to be expected that the Executive Department not only would confine its activities within the limits set by the legislation referred to, but also that it would refrain from demanding any notable enlargements of power at the following session.
The Executive Department, however, at once proceeded (to employ the words of Senator Hiram Johnson) to do what it wished to do, law or no law, authority or no authority.
Moreover, when the second war session convened, it sought from Congress grants of power so sweeping as to be undefinable, except in a general waylimited neither by Congress itself, by the Constitution, by the rights of States or of individuals, nor by any other means except the will of the individual occupying the White House.
What the Administration asked of the second war sessionand the manner of its askingis the best evidence that it had been unwilling to wait for legal additions to the extraordinary powers already voted, and was then following a course of lawless usurpation in domestic affairs.
In urging the passage of the Passport Act, Attorney-General Gregory wrote (Apr. 12, 1918) that there is no law, providing for the control of departures from or entries into the United States by persons other than those who are alien enemies. But the Executive Department had for many months been actually preventing the departure from the United States of not only men of draft age, but of every one else excepting persons whose business had been particularly examined into and approved by it.
During the efforts of the Administration to procure the enactment of what was in that period known as its Sedition Bill, Attorney-General Gregory declared (Official Bulletin, Apr. 19, 1918), that Not all unpatriotic utterances subject the author to criminal prosecution. But unpatriotic utterances of every kind were at that time actually subjecting the authors thereof to criminal proceedings under the Espionage Act.
The President took over the railroads of the country, December 26, 1917. In February, 1918, we find him urging the passage of a bill to legalize this action. March 2, 1918, we discover Federal Judge Walter Evans, at Louisville, Kentucky, handing down a decision containing the words : We can find no statute authorizing the control of the railroads under the Treasury Department nor by the Director General of the railroads. During the discussion of the Railroad Bill in Congress, it was repeatedly admitted that the President had overstepped his authority in the means by which he had assumed control of the roads.
During the second war session, efforts were made by Administration supporters, although not with the open approval of the President, to put through a law prohibiting strikes in any industrial plants holding war contracts, as had already been provided for in plants operated directly by the government. Although no such law was enacted, the President and his subordinates repeatedly prohibited strikes in such industries, and, through threats and coercion, the right to strike was in practice taken away by the Executive power.
September 13, 1918, the President addressed a letter to striking workmen at Bridgeport, Connecticut, ordering them to return to work, threatening all with blacklisting, and threatening all of draft age with the revocation of any deferred classification based on their usefulness in war production. The strikers returned to their jobs. February 17, 1918, the President addressed a telegram to the general president of the United Brotherhood of Carpenters and Joiners of America, telling the latter significantly that, unless he advised the men whom he represented to return to work, he was giving aid and comfort to the enemy. The official advised his men to return to work. Similar tactics were employed by officials of the Fuel and Food Administrations, the Presidents Mediation Commission, and other subordinates of the President, as a means to preventing or breaking strikes.
I mention only a few signal instances of a policy that was generally followed. Even the legality of the work or fight regulations of the army was questioned, and a work or fight clause was placed in the new Conscription Bill, with the avowed purpose of legalizing the Executive manipulation of the existing law. The clause, however, was stricken out, but the work or fight policy was not abandoned. In a report on the Administrations proposals to amend the draft law, giving greater power over draft registrants, March 13, 1918, six members of the Senate Military Affairs Committee declared the powers sought for unheard of, and argued that the proposal would subject to the arbitrary will and authority of those in control of the nations military power the 9,000,000 men registered; also :
If Congress is prepared to deliver the bodies of these 9,000,000 men into the hands of the military authorities without condition or limitation, then it should pass this joint resolution; if not, it should be defeated.
In urging the passage of the Food-Control Bill, Mr. Hoover sought to create the impression that its primary purpose was to protect both the producer and consumer from speculators. That it did not accomplish this purpose satisfactorily was virtually admitted by Hoover himself eight months later, when engaged in an effort to procure an enlargement of his powers. In a statement issued February 21, 1918, Hoover admitted that the [price] margins between the farmer and the consumer in many localities were never wider than to-day.
In a letter to the President, July 10, 1917, intended to influence Congress and the public in favor of the Food-Control Bill, Hoover wrote :
It is absolutely vital that we shall protect the farmer from a slump in prices this year due to a glut. ... Unless some strong and efficient government action is immediately settled and brought into play, the American producer will face a slump in wheat.
The strong and efficient government action was soon settled. That is, the Food-Control Bill was passed. But, instead of preventing a slump in wheat, the passage of the bill was manipulated to cause it. One of the first steps of the President was to fix the price of wheat. The figure fixed by the President was $1.05 per bushel lower than it had been at the very time that the President, Hoover, and others, were asserting that a primary purpose of the bill was to protect the wheat farmer from a slump in prices !
Naturally, there was great dissatisfaction among the farmers, and so many refused to market their wheat that the great mills of the country were reported as threatened with a shut-down at the busiest season of the year.
Some of our wheat growers may be surprised, even at this late day, to know that the Administration was clothed with no authority to seize their wheat or even to fix the price thereof. In the hearings on the Food-Control Bill, Mr. Hoover assured Congress that the bill carried no authority to fix wheat prices. Several months later, testifying before the Sugar Investigating Committee of the Senate, he was forced to admit that the price had been fixed in violation of the law. When Senator Reed suggested that Hoover had been guilty of a criminal act, his excuse was : Whatever I have done has been done with the approval of the President. (Jan. 3, 1918.)
The Food-Control Bill carried a limited authority to fix food prices, but no authority to fix prices to the farmer. In his first public statement on behalf of that bill (May 19, 1917), the President pointed out that this limited authority was asked for not in order to limit the profits of the farmers, but only to guarantee them, when necessary, a minimum price.
The law gave a limited authority to seize food to prevent hoarding. But Section 6 specifically exempted farm products from seizure on such ground :
Sec. 6. ... Provided, however, that any accumulating or withholding by any farmer or gardener, cooperative association of farmers or gardeners, including live-stock farmers, or any other person, of the products of any farm, garden, or other land owned, leased or cultivated by him shall not be deemed to be hoarding within the meaning of this act.
September 13, 1917, Hoover admitted that he was helpless to force the farmers to sell their wheat. Nevertheless, before the 1917-18 winter was over, the Administration was seizing the wheat on the farms, as a means to breaking the wheat strike, and compelling the farmers to accept the Presidents price.
Hoover and his aides also repeatedly promised that the American householder would not be put on rations. In the hearings on the Food-Control Bill, Hoover assured Congress that he did not purpose fixing consumers rations, and that the law did not contemplate any such authority, nor should it. (June 19, 1917.) Section 10 of the bill, in fact, contained a clause intended to exempt householders from seizure of food stocks :
Provided, that nothing in this section, or in the section that follows, shall be construed to require any natural person to furnish to the government any necessaries held by him and reasonably required for consumption or use by himself and dependents.
But many Americans will not soon forget the system of rationing put into effect by Hoovers responsible aides, the espionage, the brutal invasions of homes, the prosecutions and threats of prosecutions, and at times the seizure of stocks of flour or sugar in ridiculously small amounts.
The history of the second war session of Congress is a history of successful efforts, on the part of the Executive, to wring from the legislative branch enlargements of power wrung from it in the first war session. Nearly every piece of war legislation of the first session was amended, and always to give the Executive greater power, never to limit it. The efforts of the President were constantly directed, with success, towards taking from the legislative branch of the government its constitutional powers, and towards concentrating these powers in himself, towards shutting out Congress from any part whatever in the war policy and programme, domestic or foreign, towards reducing it to the impotent position of having nothing left to vote upon except appropriations and more appropriationstowards placing the legislative power, the military, and the civil community, completely at the mercy of the Executive bureaucracy.
Due, evidently, to a realization that too great authority had already been voted the Executive, and that this authority had been abused, the second war session began with committee investigations of various phases of the conduct of the war, and with efforts towards retaining for Congress a modicum of control.
Although the investigations brought out some scandalous truths, revealing mismanagement and graft on a large scale, the President resented them, denounced them, and finally succeeded in throttling them.
In debating the powers demanded for the President in the Railroad Bill, Senator Underwood, one of Wilsons party leaders, issued a solemn warning, declaring that when Congress reaches the point where it is prepared to abandon constitutional limitations, and surrender government of law for government by a man, then danger is ahead for the people of the United States. (Feb. 20, 1918.)
In speaking on the War Finance Corporation Bill, Representative Longworth pointed out that No war lord in history, no kaiser, no czar, ever had such power. ... The mere transmittal to Congress of such a bill is illustrative of a danger every day growing in menace to the institutions bequeathed to us by our fathers. I mean the continuous reaching out of the executive branch of this government for more and more power. It is a danger not to be lightly passed over. (Mar. 16, 1918.)
The climax of the Presidents efforts for absolute power came with the bill introduced by Senator Overman, after floor-leader Martin and other Senators had refused to pilot it because of its autocratic features. In the beginning, the Overman Bill was hooted by both Democratic and Republican members. Even Senator Hitchcock, Wilsons most conspicuous and steady support throughout the war, asserted : It would mean nothing but an abdication by Congress of its law-making power. It is the most astonishing piece of legislation Ive ever heard of; while Senator Overman himself urged, on behalf of the bill : Now lets be done with it by passing a bill that will let the President organize things the way he wants, so he wont have to ask any more legislation from us.
In spite of all predictions to the contrary, the President whipped Congress into line in the end, and the Overman Bill became a law. Only one conceivable measure remained to render the Presidents conduct of the war and his control of the country practically absolute. That was to widen the draft ages to include all males between boyhood and senility, and to give over to the Executive power to draw upon them at his own discretion, and in unlimited numbers. In a typical protest against Wilsons Man Power Bill, Chairman Dent of the House Military Affairs Committee exclaimed passionately :
I am willing to vote for an army of 5,000,000. ... I would willingly vote for even more. But I will not vote for an indefinite proposition, a bill which says that a department may do as it wishes without check of any kind. Congress might as well be abolished.
Here, as elsewhere, the Executives wishes, in the end, were enacted into law.
THE WAR TERROR
The means of defense against foreign danger have always been the instruments of tyranny at home. Among the Romans, it was a standing maxim to excite war whenever a revolt was apprehended. Throughout all Europe, the armies, kept up under the pretest of defending, have enslaved the people. It is perhaps questionable whether the best concerted system of absolute power in Europe could maintain itself in a situation where no alarms of external danger could tame the people to the domestic yoke.James Madison.
AFTER our war declaration, the Conscription Bill embodied the first notable attack, directly involving American liberties, upon the document towards which our patriots of 1917-1921 professed such exaggerated reverence.
Conscription had been resorted to in America before, when, however, it had been contested energetically on constitutional grounds. But the fact that it had been resorted to before established no valid precedent, inasmuch as it had not been resorted to since the adoption of the Thirteenth Amendment : Neither slavery nor involuntary servitude, except as punishment far crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
In a test case, the United States Supreme Court (Jan. 7, 1918), declared the Wilson conscription law constitutional. Referring to the power vested in Congress to raise and support armies, Chief Justice White argued : As the mind cannot conceive of an army without the men to compose it, on the face of the Constitution the objection that it does not give the power to provide for such men would seem too frivolous for further notice.
But a moments thought is sufficient to reveal this dictum of the Chief Justice as too frivolous for further notice. The Constitution gives Congress power to raise and support armies, but only within all limits set by the other provisions of the Constitution. No power vested in Congress or any other authority under the Constitution carries with it a license to disregard any of the prohibitions thereof. Involuntary servitude is forbidden for all purposes and under all circumstances, except as punishment for crime, and if Congress cannot get sufficient men for a large army without involuntary servitude, it must be content to raise as large an army as it can within the means not forbidden it.
The decision of Americas august Supreme Court is not surprising, inasmuch as Chief Justice White conspicuously led the applause on the occasion of the Presidents war message, and was enthusiastically seconded by his associates. The childish reasoning of these eminent gentlemen is only evidence of their own prejudiced determination to bolster up an untenable cause. Under such circumstances, the layman is justified in feeling that he understands the meaning of the words involuntary servitude quite as well as any sophist masquerading in the black gown of a Supreme Court Judge. (To condemn our draft law, indeed, one would not need to go farther than the Presidents own word that Under the Constitution ... only upon occasion of actual invasion has the President of the United States the right to ask these men [militiamen] to leave their respective States.)
When, near the end of the War of 1812, a conscription bill was placed before Congress, Daniel Webster, on the floor of the House (Dec. 9, 1814), denounced it as in flagrant opposition to the spirit of the Constitution, and declared that the adoption of such a measure would oblige a free people to resist it even to the extent of insurrection :
That measures of this nature should be debated at all in the councils of a free government, is a cause for dismay. The question is nothing less than whether the most essential rights of personal liberty shall be surrendered, and despotism embraced in its worst form. ... I express the sentiments here as I shall express them to my constituents. ... With the same earnestness with which I now exhort you to forbear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their liberty.
The first amendment to the Constitution says: Congress shall make no law ... abridging the freedom of speech or of the press. But in the Wilson Sedition Law (afterwards known as the amended Espionage Act) we find the words :
... and whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous or abusive language about the form of government of the United States, or the Constitution of the United States, or the military, or naval forces of the United States, or the flag of the United States, or the uniform of the army or navy of the United States; or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the army or navy of the United States into contempt, scorn, contumely or disrepute ... or ... shall ... by word or act oppose the cause of the United Stares therein [in the war] shall be punished by a fine of not more than $10,000, or imprisonment for not more than twenty years, or both.
Any person competent to understand the meaning of the English language is competent to judge whether or not the above law abridges the freedom of speech or of the press. The Fifth Amendment says :
No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury; except in cases arising in the land or naval forces, or in the militia, when in actual service ... nor shall any person ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
Due process of law is a legal term comprehending an adequate hearing before a judicial tribunal. The provisions of the Trading with the Enemy Act, under which the Executive confiscated alien enemy property, without due process of law, and without compensation, as well as the internment of alien enemies by Executive whim, without presentment or indictment of a grand jury and without due process of law, constitute not only an abuse of treaty obligations and of international law (see Chapter XVII) but also a gross violation of the Fifth Amendment.
Article 3 of the Constitution says :
He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.
By implication, the above words prohibit the President from making any treaty without the advice and consent of the Senate, expressed in a two-thirds majority vote. Nevertheless, at the outset of our war, the President entered into certain arrangements, understandings, and compacts with the various Entente governmentsthe terms of which are unknown because kept a profound secretwithout the advice or consent of the Senate, and without even consulting that body or taking it into his confidence. Through his State Department, he entered into a written agreement with Japan, a version of which was published, without the advice or consent of the Senate. These arrangements, understandings, and compacts, if not technically treaties, are substantially so. If not in technical violation of the Constitution, they are an evasion of its provisions and an offense against its spirit.
Section 8 of the Constitution, indeed, seems to vest in Congress a general authority over the affairs of state, in peace as well as in war.
Congress can impeach the President, but the President cannot impeach Congress. There is nothing in the Constitution that gives the President authority to decide whether or not the army shall be sent to fight on another continent, to decide when the fighting shall begin, or under what conditions and terms it shall cease. The President is commander-in-chief of the military forces, but apparently the Constitution-makers intended that Congress should be commander-in-chief of the President.
The purpose of President Wilsons struggle for unlimited power became more and more clearto carry on war when, where, and how he pleased, for as long as he pleased, for such ends as pleased him; to employ the entire military power of the nation, its police power, its industrial power, every power of whatever kind possessed by it, the flesh and blood and wealth of 105,000,000 people, for objects defined and limited only by himself, changeable only by himself, known only to himself.
To attain this end it was necessary to reduce not only Congress to submission, but the masses also.
To make war in Europe as Woodrow Wilson wished to make war, it was necessary, in the words of Senator Hiram Johnson, first to make war on the American people. (Speech against Sedition Bill, Apr. 24, 1918.)
It was not, of course, within the power of any one man alone to impose such a despotism upon America. But it was within the power of one man, backed by a minority in control of the finances of the country, the press, and the public offices.
Our war Terror began during the critical weeks of March, 1917, and was unquestionably helpful in dissipating the efforts towards a united expression of real public opinion against entering the war. The Terror of those first days took the form chiefly of personal assaults, invasions of private homes, threats, mobbings, raiding of public halls, breaking up of meetings and demonstrations, by private persons or mobs, led or instigated by members of the official or semi-official bodies.
Soldiers of the regular army and of the militia, also, organized in squads, under the command of non-commissioned officers, conducted regular raids to break up public meetings, on the streets as well as in halls, wrecked offices of organizations working against war, and in a number of cases invaded private homes. This outrageous misuse of the uniform could not have been carried as far as it was carried without the approval of responsible military officers, and the tacit consent of the Federal Administration.
Except for its pursuit of alien enemies, the part of the Federal government in the Terror became more or less open only with the passage of the war legislation. In procuring the enactment of such repressive legislation as passed the first session of the war Congress, the President and his supporters had given the fullest assurances that there was no intent to override constitutional rights. At the beginning, therefore, here and there was found a judge so artless as to interpret the Constitution as it had always been interpreted, and to lay down the law strictly as it readand here and there was found a patriotic newspaper so lacking in logic as to suggest mildly that the Constitution was still in force until abolished by the specific means set forth in the document itself.
A police judge of New York sentenced a young man to ninety days in the workhouse for distributing extracts from the Constitution and the Declaration of Independence, in which emphasis was placed upon certain passages. The case was appealed to the Supreme Court of the State, the young man was freed, and the Supreme Court Justice (Hendrick) set forth the rights of the people in part as follows :
Aliens have the right to criticize the law the same as citizens. ... Every one in this country has the right to criticize the government and the laws that exist, and has the right to agitate for the repeal of a law so long as those acts are not accompanied by violence or statements which might be interpreted as inciting other people to break the law. ... We still have free speech and a free press in the United States.
But this sort of foolish honesty was frowned down. It was expedient that Terror be imposed, law or no law, Constitution or no Constitution. In a letter to Congressman Currie, April 12, 1918, Attorney-General Gregory complained that the clause in section 3 of the Espionage Act, aimed to prevent obstruction of enlistment and recruiting, has been the only weapon with which the government could attack this dangerous evil [disloyal utterances]. This situation obtained until the so-called Sedition Act became a law, thirteen months after the declaration of war.
Americans are more or less aware, however, of what actually happened. Disloyal utterances were, in fact, attacked. All disloyal utterances were attacked. No utterance of disloyalty was permitted to pass. In the campaign against disloyalty, every legal safeguard, Federal, State, and local, intended to protect personal liberty against official outrage, was ridden down. It may be imagined that this lawless Terror was due to an over-zealous patriotism of State and local officials, or even to a spontaneous rising of popular anger against disloyalty. It will be of importance, then, to read this description of the situation, written by Attorney-General Gregory himself :
To meet these demands [of the war upon the Department of Justice] we have been compelled to increase many fold the personnel of certain branches of the work, and to encourage the organization of patriotic bodies, and to secure the coöperation of these bodies, as well as that of national, State, county, municipal, and private organizations, on a hitherto unprecedented scale.
One patriotic association has a membership of over 200,000, with branches in over 1,100 cities and towns; it is truly national; it keeps tens of thousands of individuals under observation; it reports disloyalty and other violations of law to the official representatives of the Department; it develops the facts involved in hundreds of thousands of complaints; and it does all this and much more at its own expense, with little publicity. ... It is but one of several such bodies, and when to their membership is added that of the various State Councils for national defense, the State, municipal and county constabulary, and the various other intelligence agencies, which are coöperating in the performance of the duties involved, the United States marshals and their deputies, the agents of the investigating bureau of the Department of Justice, and individuals who are lending their assistance, the number of men assisting the government in this capacity aggregates several hundred thousand.
The Bureau of Investigation of the Department of Justice works in close coöperation with the Intelligence Service of the other branches of the government. If it were possible to give details, the public would be amazed at the success of the results secured. This country was never so thoroughly policed in its history, and it is doubtful if any nation in the world is to-day more carefully guarded than the United States.(Statement in Official Bulletin, Apr. 19, 1918.)
From which it is clear that the Federal government was in active control of the situation in every State, city, county and community in America; that the system of espionage was organized by it throughout; that the Federal government not only formed but directed the work of such patriotic bodies as were classified as unofficial; that no policy of lawlessness against disloyalty could have been effective in any community without the approval of subordinates of Mr. Gregory; that every agency of Terror, of whatever kind, even to the lynching parties of the night, must have worked either under the direction, or with the connivance, of Federal officials; that, therefore, Terror must have been a policy, planned by the Federal government, worked out by the Federal government, imposed by the Federal government, directed by the Federal government.
The President himself gave the Terror signal in his Flag Day address : Woe be to the man or group of men that seeks to stand in our way. ... And the vast organization which Mr. Gregory describes, and which is so reminiscent of Russia in the days of the Czar, proceeded to administer the woe, law or no law, authority or no authority.
But Mr. Gregorys list of the instruments of Terror is not complete. The courts of the country belong to the list; the Terror would have been impossible without them. America heard no more such pronouncements as that of Justice Hendrick. Judges who did not become quickly subservient were disciplined. In one case a judge was actually impeached for appearing as a character witness for a man accused of disloyalty.
Pretending to interpret the law, we find a Federal judge announcing from the bench : Persons expressing opposition to policies of the government, whether aliens or not, should be indicted. (Rose Pastor Stokes case.) We find another eminent judge advocating mob violence from the public platform.
Judges habitually made patriotic speeches from the bench, habitually refused to listen to any argument involving the constitutional rights of persons prosecuted for disloyalty, habitually refused to protect the rights of the accused from violation by police or mobs, habitually fixed excessive bail, habitually misrepresented the law in instructing juries, habitually incited juries against the defendants, habitually imposed harsh punishments.
A few salient acts of Mr. Gregory himself, and other cabinet heads, at the beginning, gave the cue to all Terrorists. In the month following the declaration of war, the government refused passports to a committee of Socialists who wished to attend a Socialist peace conference at Stockholm, a neutral capitaland Mr. Gregory threatened the committee with prosecution if it took part in any conference of the kind anywhere. So America received its first formal notification that terms of peace were to be left to the President alone, and were not even to be discussed except in the form of parroting the Presidents phrases.
On the day the Espionage Act went into effect, the Postmaster-General ordered the suspension of the greater part of the unpatriotic press. So America received its first formal notice that no question either of peace or of war was to be discussed through the printed page except in a manner satisfactory to the Administration.
During the first few weeks of the war, an organization known as The Peoples Council on Democracy and Terms of Peace assumed notable proportions throughout the country. On the announcement that it intended to enter the political field and to send pacifists to Congress, the Administration proceeded vigorously against it. Conventions were invaded, broken up, or prevented, by police and military, and leaders were placed under arrest. The movement was reduced to inactivity solely by the iron heel. So America was notified that the people were not to be permitted to express their wishes even at the pollsthat political liberty was to be suspended for the period of the war.
Another unpatriotic organization of national scope, the Industrial Workers of the World, was assailed in its entirety as a conspiracy to violate the Espionage Act. Thousands of members were jailed simultaneously. The simple possession of a membership card was treated as justifying the most extravagant brutalities. The avowed purpose of the hunt was to extirpate the organization, root and branch. More than one hundred leaders thereof were assembled before one court, convicted after a grossly unfair trial, and sentenced to prison terms running up to twenty years. One of the most hideous outrages of Americas war despotism was the systematic destruction of the means of defense of accused Industrial Workers, through the arrest as co-conspirators of persons who attempted to hire lawyers, collect money, or in any way assist in, or prepare for, the legal defense of the accused. Scores of such persons were jailed and thousands of dollars of defense money were seized and held. So America was notified that neither laws nor constitutions were to be allowed to stand in the way of crushing out all opposition to the incumbent of the White Houseeven to stamping out all organizations whose principles might at some future date bring them into conflict with his plans.
Hand in hand with the policy of nipping in the bud all opposition of whatever kind, went the policy of compelling cooperation. Military conscription, of course, was the centre of the scheme. The power of conscription was applied with singular ruthlessness. A price of $50 was placed upon the head of each and every American within the prescribed ages who failed to register or who evaded service at any stage. So cupidity became a motive in a country-wide slacker hunt which never ended.
In the beginning, it was the policy to throw every suspected slacker in jail for a period of days, without permitting him to communicate with his relatives or an attorney, or to procure the evidence that might free him. Later, America was presented with a spectacle of gigantic slacker raids, in which squads of police, soldiers and citizens, violated the homes of the people and dragged them to jail by the thousands. In denouncing such raids on the floor of the Senate (Sept. 5, 1918), Senator Hiram Johnson said that it was like a chapter from the French Reign of Terror, when the law of suspects was in full swing and the prisons were crowded with innocent victims :
No man would have said it were possible in our country. ... The very purpose, according to my idea, of this kind of proceeding, is the purpose that has ever attended this kind of thing the world overterrorismthe same sort of terrorism that makes it impossible to-day for any newspaper in this land to print what it desires; the same sort of terrorism that makes it a crime for any citizen in this nation, loyally, legitimately and honestly to speak his sentiments upon the rostrum or to his neighbors. ... Was ever any such presentation made in any government under the sun that made a pretense of freedom ?
The cruel and unusual punishments meted out by the drumhead courts were a part of the Terror also. Not all the slackers were sent to prison; there were too many of them. But terrible examples were frequently made. Defiant slackers were given thirty years and even life imprisonment. After the fighting was over, Senator Chamberlain revealed the fact that 15,000 of our young men had become victims of army courts-martial. Wholesale and almost unbelievable brutality visited upon young conscripts, in camps and guardhouses overseas, was admitted by responsible officers.
At home, the draft law was abused to facilitate the induction of pacifists into the military organization, where they could be better controlled. As, through Terror, the war despotism fixed its grip more and more firmly upon the throat of the nation, the law was abused again to compel workmen to concentrate in the war industries. While the purpose to conscript labor was denied, conscription of labor was put into operation on a larger and larger scale. Only the early ending of the war prevented the system from being put into general practice.
The policy of forced coöperation extended throughout every phase of the war activities. The law required the public to coöperate in a multitude of ways, but forced coöperation was applied as a policy even in the fields that were legally prescribed as voluntary. Federal espionage was applied to persons who refused to sign the voluntary food pledge cards. Federal espionage was applied to persons who refused to subscribe to voluntary funds. The world looked on in grim humor while the great democracy of the western hemisphere compelled the people to subscribe to its Liberty Bonds !
The Presidents dictum : Woe be to the man or group of men who seeks to stand in our way, was echoed by persons of power and eminence in every walk of life. It was interpreted by them, unrebuked, to mean that there was to be an open season for pacifists. The Vice-President, two ex-Presidents, Senators, governors of States, presidents of famous colleges, ministers of the gospel, and eminent judges, joined in violent denunciations of every form of disloyalty, and voiced suggestions of punishment that can only be interpreted as deliberate incitement to lawless proceedings. The heads of the Presidents departments themselves gave the cue; their immediate subordinates set the styles. The hundreds of thousands of members of the propaganda machine and the Terror machine passed the word.
And the open season for pacifists came to pass. Cowards were in clover. Gangs of self-constituted police, prosecutors, judges, and executioners, were let loose in every State. Murder became heroism, if only patriotism was named as the motive. To dissent in any regard from the programme of the Administration meant to suffer as a pro-German and a traitor. It became impossible even to protest against the Terror itself. An opposition political party became as much a practical impossibility as it was in Mexico in the days of Diaz. Socialist candidates who dared appear before the people were indicted under the Espionage Act. Councils of defense terrorized farmers to stop the spread of a political organization known as the Non-partisan League. Even the right to choose ones own vocation was denied. When the work-or-fight regulation could not be applied, and where no special State law had been enacted, councils of defense at times undertook to tell citizens what work they should engage in.
They were not councils of defense, but councils of terror. In the newspapers, from day to day, were paraded a long list of outrages, perpetrated by members of these bodies, or at their instigation. Even freedom of conscience, enjoyed in silence, was not tolerated; for those who failed to proclaim their loyalty in words, and to back those words with voluntary contributions, were listed and persecuted in their business relations or private lives. The Terror extended to the halls of Congress. The rights of a Senator were so far forgotten that he was officially threatened with expulsion, and unofficially with hanging. It became dangerous and inexpedient for him or for any other Senator or Representative to express any general opposition to the policies of the ex-college-professor who had termed himself a mere servant of the peoples representatives.
It is impossible here to present an adequate picture of the American war Terror. The present effort is to point out merely the responsibility, the purpose, and the effects. The primary responsibility of the Federal government cannot be evaded. The final item of proof is the fact that crimes of Terror were never punished. After an outrage, if the authorities put any one in jail, it was almost invariably the victim, not the criminals. The bands of masked assassins themselves were the agents of the American autocracy as directly as the Russian Black Hundreds were the agents of the Czar.
 This lawlessness, inspired and stimulated by our government and our best people for war purposes in 1917 and 1918, was a major cause of the long period of civil violence following the war, so solemnly and gravely deprecated under the name of the spirit of lawlessness by some of the very eminent persons who were responsible for it.
But the President issued a magnificent manifesto against mob violence. Yes, after looking passively on for seventeen months ! When the President issued his manifesto (July 26, 1918), the Terror had accomplished its purpose. The people had been reduced to submission. The country was under control. Congress was also under control.
This disgraceful evil [mob violence], said the President in his manifesto, cannot live where the community does not countenance it. Under the circumstances that existed, it could not possibly have lived where the Federal government did not countenance it. But by July, 1918, the President was ready to pretend that he had never approved of it, and to order it discontinued. The President now held in his hands every power that he coveted. Having made successful war on the American people, he was in a position to make war as he wished in Europe. So disorderly terror gave place to orderly absolutism.
Apologists for Americas situation at the end of 1918 will suggest that similar conditions obtained in the other countries at war. If it were true, that would be no justification. But it was not true. In England, France, and other countries, extra war-time powers were exercised, not by a single man, holding office for four years, regardless of the approval of the country or of Congress, but by a cabinet, whose existence from day to day depended upon the continued support of the legislative body.
In no European country were free speech and a free press so ruthlessly stamped under foot. The writings of Lichnowsky, Harden, and the press attacks upon the Kaiser, prove that freedom of discussion in the enemy countries existed to an extent unknown in the United States.
For the autocracy that was imposed upon America in 1917 and 1918 there is no palliation in the fact that the President was elected, that the Congress which yielded to him was elected. Since they were elected on their promise to do the diametrically opposite thing, their offense is as great as if they had overturned an existing Constitutional government by a military coup, and installed themselves in power to carry out policies which the people had pronounced against.
In no modern country can autocracy sit in the saddle as autocracy. It must masquerade as democracy. So the machinery of deceit is set up. And for those who cannot be deceived there must be Terror.
No one had the temerity to defend the system under which America found itself at the end of 1918 on any other ground than that the end justified the means. The means themselves tend to throw suspicion upon the ends. What are the ends ?