agents" of the past generation constituted a national disgrace which the most stringent congressional regulations could not wholly obviate. Occasionally, as in U. S. v. Fairchild, 25 Fed. Cas. No. 15067, the pension agent was a lawyer. More often, as in U. S. v. Van Leuven, 62 Fed. 52, he was not. In either event it is within the power of the American bar to see that his successor does not appear. Its attitude is well represented by a recent statement of attorney Thos. Marshall, chairman of the legal advisory board of district No. 75 (Chicago), who said:

"The American Bar Association states that certain claim agents and pension lawyers are using the war-risk insurance act as a source of business. Claimants under that statute are said to need no paid attorney, but, we are told, substantial fees have been paid to lawyers. The man who would take a substantial fee for such service should be publicly branded.

"The United States Treasury Department and the special committee for war service of the American Bar Association ask us to enlist such forms of publicity available, so no one needing aid need seek it of such persons. suggest you request anyone in the seventy-fifth district. having such experience to advise me in the premises.

I

"The sorrowing kinsfolk of those who have made the great sacrifice must not be made the prey of commercially minded men, and the lawyers of this town, I am very sure, stand ready to do what is necessary under this statute."

Insurance that Does Not Insure.

I

N the early stages of life insurance in the United States policies were a mass of conditions, qualifications and restrictions drawn with the utmost of legal cunning to keep the word of promise to the ear and break it to the hope. It is very doubtful whether the business would have survived had not the courts saved it from itself by a vigorous construction of policies which frustrated many of the attempts to exchange an illusory liability for a substantial premium. That period seems wholly to have passed. Life insurance policies are now plain and straightforward contracts quite devoid of limiting conditions, and the man who answers truthfully the questions in the application and pays his premiums may ordinarily feel certain of leaving behind him an asset and not a law

supper

suit. But other forms of insurance have not followed this reformation of the life companies, and even the standard policies permit them a number of wholly unjustifiable limitations. Taking a case at random from among hundreds, in Lundberg v. Interstate Business Men's Acc. Assoc., 162 Wis. 474, it appeared that a person insured against accident went out hunting and fishing on a lake near his home. Shortly before the hour he was seen rowing toward the boat landing. In a few minutes a shot was heard, and the insured was found. dead from a bullet wound, and his rifle recently discharged was found lying in the bottom of the boat pointing toward him. There could be no doubt as to the fact of an accidental death, but his policy contained an "eye-witness" clause, and recovery was accordingly denied because no one saw the accident. It is argued of course that in all such cases the insured agreed to the provision which prevented recovery. That is a sufficient reason for the courts, which do not make law. It is no justification for the failure of the legislature to class those contracts with the one involving three shells and a pea. It is perfectly well

known that the average purchaser of insurance does not and cannot weigh and understand the practical effect of the conditions to which he "agrees." He buys accident insurance, which to him is insurance against accidental injury. The "eye-witness clause" and the "visible injury clause" might as well be in Greek so far as he is concerned. He is as a rule neither physician nor metaphysician, and it would require a combination of both to unravel the customary clause about death "resulting directly or indirectly, in whole or in part" from causes other than accident. The business of selling contracts to the general public is so fruitful of misunderstanding, to put it mildly, that no contract should be allowed thus to be offered which will not readily be understood by the average man.

Extend the Juvenile Court System.

THE HE juvenile court system has so thoroughly vindicated itself in practice as to have become an established institution, subject only to the occasional and sporadic criticism from which nothing of human origin is exempt. It was naturally enough first established in the larger cities and has thus far not been extended beyond those limits. But the conditions which gave rise to modern methods of dealing with juvenile crime exist, albeit to a less degree, in rural communities. The problems of juvenile life in a small village are in many ways as serious as those of the city. The lack of legitimate means of recreation in such a village to absorb the energies of the average small boy is a fruitful source of juvenile rowdyism. When this culminates in some serious depredation on property there is an entire lack of official machinery for the proper handling of the case. If the boy's parents are reputable and influential, the local justice of the peace is ordinarily moved to discharge the youthful culprit, and an incipient criminal thereby escapes without discipline other than the fright involved in his arrest. On the other hand, if the justice is inclined to severity he must commit the boy to jail or a reformatory which may be no better than a jail or send him to a higher court which is likewise limited. While the judicial features of the law could well be administered by any court of general jurisdiction, some additional expense for probation officers will of course result. But, ignoring for the moment all considerations higher than that of expense, no expenditure of public money is based on sounder economy than that which is used in checking at the fountain head the tendency to crime. Tribulations of the Peacemaker.

IT stands on the highest authority that the peacemaker will ultimately be blessed. But in the mundane affairs of life his is indeed a thankless task. In a recent West Virginia case (Bolyard v. Bolyard, 91 S. E. 529), it appeared that a wife had separated from her husband,

and was desirous of reconciliation. In aid of that desire a friend joined with the husband in a bond to the wife conditioned that the husband should treat her kindly and A reprovide for her necessities in a proper manner. union of the spouses was thereby brought about. But the second edition of the honeymoon waned even as had the original, and in a short time the wife sued on the bond. The court promptly exonerated the husband from liability on the ground that the marital relation precluded an action. But for the surety there was no kindly relic of

scientious performance of duty, in an ordinary case where there was no popular excitement to interfere with the ordinary routine of judicial investigation, the fallibility which inheres in every human judgment is plainly demonstrated. The case also serves to direct attention anew to the fact that no provision is made by law to compensate even inadequately one whom the state has unjustly punished. If the state by an honest error of its executive officers should erect a public building on private land, compensation would be made to the owner for the taking of his property. But if the state by an error of its judicial officers locks a man up in a prison cell for years, when the error is established it merely discharges him broken in health and estate, without even the apology made by the vigilance committee to the widow of a victim whose innocence was proven too late, "Madam, you've got the laugh on us." That human judgment is fallible is no argument in favor of inaction, for there is no likelihood that fallibility will be speedily transcended. It is how ever an argument of considerable force against the imposition of punishments from which there can be no release, and in favor of making provision for some reparation to the victims of the injustice which must occasionally occur.

SEDITION AND THE COURTS.

WAR legislation is a product of war times. It must be judged on the facts on which it is based, the principles it seeks to apply and by its application to the great emergency that confronts the country. A mass of such legislation, born of necessity and protective in its nature, has been placed on our statute books. Some of it has been the subject of violent criticism and insensate denunciation. The Conscription Act and the Espionage Act especially have been denounced as reactionary, as an attempt to abrogate personal rights and thwart the popular will, as a setting up of the government above the people, and making it the repository of an irresponsible power enforceable by an arbitrary will. Such criticism ignores the facts on which such legislation is based, the principles it seeks to apply and the true philosophy of free govern

ment.

Elihu Root recently declared before the Conference of Bar Associations that we cannot have a free democracy and a successful war at the same time; that we must therefore be prepared to surrender temporarily a measure of our liberties; that in a contest between democracy and autocracy, democracy cannot survive until autocracy has been destroyed. This utterance is in harmony with the true philosophy of free institutions. There is a wide and fundamental distinction between civil rights under a government and political rights in a government. Our political rights and political liberties are not absolute but are subject to limitations. As individuals we do not possess them, but only as members of the body politic, as associated citizens, whose will collectively expressed is the source of authority. Every government has the inherent right to uphold itself by the great law of selfpreservation and to that end it may, if necessary, require the surrender of every political right, and no loyal citizen will whine or cavil over such surrender when the tread of enemy armies echoes amid the desolations of war and

battalions of his fellow men are falling before the forces of despotism in the struggle to preserve a free civilization. It may be confidently said that none of the war legislation thus far enacted invades or abrogates a civil right under the government. The Trading with the Enemy Act, the Food and Fuel Conservation Act, the Coastwise Trade Act, the Transportation Priority Act and the Conscription Act have justified their beneficent spirit and purpose. Of these, only the Espionage Act and the Conscription Act have come before the courts and the constitutionality of the latter has been upheld in many jurisdictions and by the Supreme Court.

The Espionage Act alone seems to have failed of its purpose. This act in so far as it denounces and provides for the punishment of sedition was a startling departure in our legislation. The Sedition Act of 1798 fell into such deep and deserved obloquy that Congress, until the passage of the Espionage Act, never ventured on the same ground. But the Sedition Act of 1798, passed in a time of peace, was conceived in partisan spirit, was intended to stifle political opposition and establish a party in perpetual power. petual power. The intent of the Espionage Act was to punish the utterances of the disloyal and the traitorous; to reach a class of creatures carrying on an insidiously disloyal and traitorous propaganda designed to impede and embarrass the government in its war operations. If such a law is not broad enough to cover its object, or if broad enough, is not executed so as to effect its purpose, then the government in the employment of means to conduct its operations is subject to the plots and machinations of its enemies and can exist only at their mercy. It is regrettable that in the application of this law, the courts, judges and juries, have not uniformly responded to the needs of the situation so as to give a construction to the law in harmony with the purposes for which it was enacted. As a result of the narrow construction given to the act by some of our federal courts, the enemy propaganda which is being conducted openly and notoriously in some sections of the country is permitted unmolested to disseminate its seditious poison.

A striking decision was that rendered by the district court for the district of Montana in the case of U. S. v. Hall, 248 Fed. 150. The charges made in the indictment were established by the evidence but the court directed the jury to acquit the defendant, taking the position that the acts charged and proven did not constitute a crime. It was charged that "at divers times, in the presence of sundry persons, defendant declared that he would flee to avoid going to war; that Germany would whip the United States, and he hoped so; that the President was a Wall Street tool, using the United States forces in the war because he was a British tool; that the President was the crookedest ever President; that he was the richest man in the United States; that the President brought us into the war by British dictation; that Germany had the right to sink ships and kill Americans without warning; and that the United States was only fighting for Wall Street millionaires and to protect Morgan's interests in England."

The Government sought a conviction under the provisions of the Espionage Act, which makes it criminal to "make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to pro

mote the success of its enemies," and also under that provision which makes it criminal "to cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty, in the military or naval forces of the United States" or to "wilfully obstruct the recruiting or enlistment service of the United States." Directing a verdict of acquittal the court said: "Having in mind the rule applicable to this motion for a directed verdict, the evidence would justify a finding that defendant did so make the declarations charged. But it would not support a verdict of guilty of any of the crimes charged. It appears the declarations were made at a Montana village of some sixty people, sixty miles from the railway, and none of the armies or navies within hundreds of miles, so far as appears. The declarations were oral; some in badinage with the landlady in a hotel kitchen; some at a picnic; some on the street; some in hot and furious saloon argument. Adverting to the crimes designated (1), false reports and false statements import reports and statements of facts, and not accused's opinions, beliefs, intentions, and arguments. Hence defendant's beliefs, opinions, and hopes are not within the statute. But his slanders of the President and nation are false reports and false statements, and are within the Espionage Act. While the act makes the (1) offenses substantive, they are of the nature of attempts, like in principle, and largely and to the extent indicated governed by the law of attempts. It is settled law that attempts are efforts with specific intent to commit specific crimes, which efforts fail, are apparently adapted to accomplish the intended crimes, and are of sufficient magnitude and proximity to the object of their operation that they are reasonably calculated to excite public fear and alarm that such efforts will accomplish the specific crimes if they do not fail. These slanders by defendant satisfy magnitude and apparent adaptation, but, in view of all the facts and circumstances in proof, neither the specific intent to interfere with nor proximity to the military and naval forces appears.. Nor does the evidence sustain the charge of 'wilfully obstructing the recruiting or enlistment service of the United States, to the injury of the service of the United States.' To sustain the charge, actual obstruction and injury must be proven, not mere attempts to obstruct. The Espionage Act does not create the crime of attempting to obstruct, but only the crime of actual obstruction, and when causing injury to the service. Whenever Congress intended that attempted obstructions should be a crime, it plainly said so, as may be seen in the statute making it a crime to attempt to obstruct the due administration of justice." This holding is predicated on the broad theory that the facts and circumstances did not justify a finding that the accused intended the natural and ordinary consequences of his acts. Intent therefore might not be inferred.

A somewhat similar instruction was given by the court in Re Krafft, (N. J.) Bulletin of Interpretation of War Statutes No. 6, wherein the accused declared "I cannot see how the government can compel troops to go to France; if it was up to me I'd tell them to go to hell."

The government has no right to draft you and send you out of the United States. Any man who is a loyal American citizen will not buy a liberty bond. I am going to fight you fellows in your war work to a finish. I opposed the draft and registration and I do now. I will continue to use my influence against the draft.” It would be difficult to conceive language more seditious or a stronger set of facts warranting an inference of intent. The court directed a verdict of acquittal on the ground that there was no proof that enlistment service was actually obstructed by these utterances. It would seem that such contemptuous utterances as we find in the Hall and Hitt cases would reasonably warrant an inference of their too evident intent to influence men to avoid military service and that they are tantamount to advising men not to report for military service, an offense positively within the Espionage Act. In re Sugarman, (Minn.) Bulletin of Interpretation No. 12.

Decisions more or less in accord with the foregoing have been rendered by the district courts in the states of Washington and California.

Other courts have taken a contrary view of the proper construction to be given the statute and many convietions have been had for offenses much less grave in character than that in the Hall and Hitt cases. This conflict of opinion, raising a doubt as to whether there is sufficient law on the statute books for the punishment of disloyal and traitorous utterances, has been productive of the most deplorable results. Different sections of the country have reacted differently. In some states the popu lace has taken the law into its own hands. This is to be deprecated for it lowers the moral position of America. Attorney-General Gregory has said that "no greater wrong can be done to our soldiers in France than that of lynching Germans in America." Every such instance will be seized on by our enemies as justifying severe reprisals on our soldiers in the prison camps. But had there been no unpunished disloyalty and enemy activity these acts of lawlessness and mob outrage never would have occurred.

The Espionage Act has failed of its purpose not alone because of the narrow construction placed on it by some of the federal courts. It is not sufficiently broad in its scope. Perhaps it would be impossible to include in a single enactment every offense amounting to sedition because that crime, the forerunner of treason, has never been precisely defined. Sedition is rather the quality of an offense and is necessarily conjoined with many offenses. It may be fitly represented as a hydra united in a common body but branching out into a thousand heads. Of the seditious it has been said that "their aims are various, as the paths they take in journeying through life." Hence their crimes cannot be definitively reduced but definition must proceed from statutory acts of sedition.

The Espionage Act for instance makes no specific provision for the punishment of those who through disloyalty or kindred sentiment discountenance investments in liberty bonds or other securities of the United States or who seek to embarrass the Government in endeavoring to make sale of them. It does not provide for the punishment of disloyal slanders and libels of the government. In order to repair these defects, to remove all doubts, and beyond

ing the following statements: "You are fools to appear for the draft. If I were you I would not go.

pathizers carrying on their disloyal and traitorous work throughout the country, Congress has passed the Sedition

Act. This measure appears to be so framed that there can be no possible escape for one who might be disposed to assist the cause of our enemies by disloyal and seditious utterances. And it should remove all doubt in those states where convictions under the Espionage Act have been impossible, concerning the criminal character of the acts denounced. Its most important provision to this end reaches both actual and verbal sedition, and reads as follows: "And whoever when the United States is at war shall wilfully utter, print, write or publish any disloyal, profane, scurrilous, contemptuous or abusive language about the form of government of the United States or the Constitution 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 or the flag of the United States into contempt, scorn, contumely or disrepute, or shall wilfully utter, print, write or publish any language intended to incite, provoke, or encourage resistance to the United States or to promote the cause of its enemies, or shall wilfully display the flag of any foreign country, or shall by utterance, writing, printing, publication or language spoken, urge, incite, or advocate any curtailment of production in this country or of anything or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall wilfully advocate, favor, teach or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of the German Empire or its allies in the present war, or by word or act oppose the cause of the United States therein shall be punished by a fine of not more than $10,000 or imprisonment for twenty years or both."

These provisions declare the most heinous offenses, less than treason, in a time of war. They denounce and punish an attack upon: 1. The form of government. 2. The Constitution. 3. The military or naval forces. 4. The flag. 5. The uniform.

The prohibition against uttering, printing, writing or publishing any disloyal, profane, scurrilous, contemptuous or abusive language about the form of government has given rise to apprehensions that the Government is setting up a doctrine of lèse-majesté. But the provision has nothing to do with the conduct of the Government, it has nothing to do with the manner in which the President, his cabinet, or Congress execute the Constitution and laws of the United States. It does not make legitimate criticism of any officer or any department of the Government in the execution of the laws or in the prosecution of the war a crime. The fundamentals of our Government, its form and its Constitution no one should be permitted contemptuously to vilify and traduce.

Under the provisions of this act the mere question of intent cannot create a legal defense by law which the defendant need only make by any testimony which he might invoke, regardless of the effect of his words. In the construction of an intent with reference to seditious words the narrow legal definition of the intent necessary to constitute an offense under a seditious act would not be strictly applicable. A man may undertake to explain his acts but where he with deliberation uses an expression

tending to bring contempt on the Constitution, or the government, or the flag, or the uniform of a soldier, there cannot be the vestige of a doubt that he intended to effect his utterance and that he did it wilfully.

The Sedition Act gives the Department of Justice plenary power and makes possible the complete extirpation of sedition in any and all of his protean forms. It is a drastic law but drastic only to the disloyal. Its necessity dispels some cherished illusions. It would seem that in a free Republic, every inhabitant, whether by birth or choice, enjoying the protection of its benignant laws, would by the very nature of his constitution be a loyal creature and feel under a moral necessity to express his devotion to the country. "He who is not for me is against me." Loyalty must be not only a state of mind but a statement of the mind. The latter is the spirit that giveth life. This Act is impressive evidence that our national spirit is not dead or decaying and that the past sanctions of our political faith hold their powers. And it as impressively witnesses the mighty forces lodged in the spiritual constitution of a government of and by the people determined to the uttermost to protect and preserve itself. O. E.

LEGISLATIVE PURITANISM.

WHEN the accidents of dynastic succession place a child upon the throne, it is customary to appoint a regent to save the nation from his youthful indiscretions. But King Populus, the youngest of monarchs, reigns unchecked save for an occasional fatherly admonition from the courts, and we, his subjects, must reconcile ourselves as best we can while he learns from experience. Conscious of his adolescence, he gives ear to first one and then another set of advisers, and enacts their hobbies into law. Just now he is listening rather too credulously to those well meaning fanatics whose formula for Utopia is to forbid by law anything and everything of which they do not personally approve. The spirit of pharisaism has survived the self complacent ecclesiasts from whom it takes its name. The desire to make clean the outside of the vessel in order to hide the inward corruption did not die when the Divine Teacher pierced it with the shaft of His scorn. It still lives to give point to the proverb "Beware of the man with no small vices." The exemplars of these two tendencies, changed only in name, are still busily working for laws to regulate their neighbors' lives. To some extent they have enlisted so much of the support of the Church as to cast an appearance of sanctity on their efforts, the custodians of sacred things apparently forgetting that the Ark of the Covenant was lost when it was taken into battle without Divine authority.

In some measures, as in the case of the prohibition laws, the spirit of intolerant interference with personal liberty is concealed by the fact that very real suffering to the innocent does in some instances result from the practice sought to be prohibited. But there are other "reforms" pressed with the same zeal in which this element is so wholly lacking that the pharisee stands naked in his officious complacency. It is the present purpose to refer to a few of these as they are reflected in recent statutes and decisions.

For a small beginning, take the statute upheld in Trus