New-York tribune., 1918-04-26
''Masses'' Jury,
After Six Hours,
Fails to Agree
Members Locked Up al
knickerbocker Hotel
for the Night

The jury before which Max East.
man, Floyd Dell, Merrill Rogers and
Art Young, of "The Masses" have beer
on trial in the United States District
Court, had been unable to reach ar
agreement at 1850 last night. afte,
more than six hours of discussion anf
was sent to the Hotel Knickerbocke,
Tor the night. 1t was said that there
appeared to be no immediate prosne.
of verdict
The four defendants are charred
with conspiracy to Distract recruiting
ana enlistment. They have been on
trial before Judge Augustus n. Hand
TOT nlne days. Several questions Wee
asked by Jurors after Judge Hand had
know whether come could be found
guilty and others acquitted; another
whether conspiracy could be establish d
by clrcumstantial evidence. and still
another whether a verdict could he
brought against persons "who in time
OF war write articles against the gov.
ernment."
Judge Defines Free Speech
Ipi1 ing 10 Ine last question
Judge Hand said that people had the
right of free speech and expression oi
opinion unless such expressions inter.
fere with the work Of the government
ana are the outcome of a conspiracy
OF TWO or more persons to accomplish
that end"
:. In his charge Judge Hand said that
IL was not necessary to produce a writ
ten agreement between conspirators to
prove a conspiracy, or even to have the
testimony of eye or ear witnesses. A
conspiracy could be proved by circum
stantial evidence, re said.
Let US suppose, for instance" he
sald. that two or more persons agreed
TO break up recruiting meeting in a
certain quarter of the city of New
York where there were French people
IN the majority. Suppose these per-
sons should send brass band there
to play the 'Marseillaise.' knowirq
the effect would be to bestir the
French against enlisting under our
flag. Suppose another band was sent
70 another part of the locality where
TINS meeting was with instructions to
play The Star Spangled Banner to
cause the officers of the law to think
mere was no d'sloyalty but patriotism
behind the movement
Any person executing that plot
would be guilty of the conspiracy. and
all OF them who could be apprchended
would be liable to punishment. even
though the circumstances | have de-
scrl6ed, meaning the playing of the
bands, would be the only proof linked
with the intent"
Almost the entire day was taken up
with arguments to the jury by Mr..
Hillquit and Dudley Field Malone on
behalf of the defendants and by Mr..
Barnes for the government.
Mr. Malone justified the utterances
OF "The Masses" by declaring that
just before Amcrica's entry into the
war "the country was full of pacifsts. :"
Mr.. llillquit attempted to show the
lack of any motive on the part of the
defendants to create a conspiracy.
These defendants" said Mr.. Hillquit,
"comc to you and say: we believe
now that this war is being fought for
democracy. But at the time that these
articles were written President Wilson
had not made known the worthy aims
of our entry into the war, which he
has done since that time. We accent
the war as fact. but we will not sur
render our constitutional rights Of
opinion and freedom to express that
opinion. Not for one day, not for one
hour. will VIC surrender these rights.
for the government is founded upon the
very principle of freedom Of speech"