The New York herald., 1921-05-29

endangered its safety"
We imprison lunatics not as a pun
islment but for the safety OF the un-
fortunate person himself and OF society
generally. When the Congress in the
discharge OF its duty to promote the
general welfare has declared war and
has provided for tho raising and sup
porting of an army and navy. a physi-
cal Interference with the operations of
the constituted authorities would, Of
course, constitute rebellion would bring
into operation tho power to suspend the
privilege OF the writ OF habeas corpus.
and the same result would follow public
addresses, newspaper and pamphlet puo-
lications tending to prevent the carry
ing out OF the policy OF the Government;
but when we go beyond that and assume
to punish the persons who have COM
mitted no other offence than the enter
tairiing OF opinions contrary to the war
policies OF the Government we have
proceeded beyond the necessities of the
war; beyond the powers conveyed In the
Constitution as originally designed.
As the power to suspend the privilege
Of the writ OF habeas corpus Is the only
power necessary to the carrying out of
the war powers, In 50 far as these have
relation to the liberty of speech and of
the press, 1t must be entirely obvious
that the modern effort to punish men for
holding seditious views and expressing
them. In so far as the Congress is con-
cerned, is wholly without warrant in the
Constitution Of the United States. 1t
not only has not delegated the power to
define and punish crimes generally lin
iting this to "piracies and felonies COM
mitted upon the high seas and offences
against the law Of nations" but 1t has
carefully defined treason. limiting tho
power Of the Congress even In the mat
ter Of punishment.
Madison in the Fcderdlst says that
''as treason may be committed against
the United States the authority OF the
United States ought to be enabled to
punish 1t. But as newfangled and arti-
fetal treasons have been the great en-
gines by which violent factions, the nat
ural offspring of free government, have
usually wreaked their alternate malig-
nifty upon each other the convention
have with great judgment opposed
barrier to this particular danger by IN
serting constitutional definition OF the
crime, fixing the proof necessary for O
conviction Of It, and restraining the Corr.
gross, even IN furnishing It. from extend
Ing the consequences Of guilt beyond the
person Of the author
If we look to the matters which were
known to the makers Of the Constitution,
we shall see that the defining of treason
was intended to limit crimes against the
United States: that it was the purpose,
by providing definition of treason, to
exclude all other offences against the
Government not particularly enumer-
ated. Lord Hale. In his pleas of the
Crown in speaking of the statute of
the Gath Of Edward III, upon which
our dednition of treason is founded, says
that we should be mindful 'how dam
gerous 1t Is to depart from tho letter of
that statute. and to multiply and en-
hance crimes into treason by ambiguous
and general words. such as accroach-
ment OF royal power, subvert1ng funda-
mental laws, and the like and Black
stone says that between the reign OF
Henry ~. and Queen Mary, and particu-
larly in the bloody reign OF. Henry VIII.
the spirit OF inventing new and strange
treasons was revived; among which we
may reckon the offences Of clipping
money; breaking prison or rescue. when
the prisoner IS committed for treason;
burning houses to extort money steal
Ing cattle of Welshmen; counterfeiting
foreign coin: execrations against the
King, calling him opprobrious names in
public writing; counterfeiting the sign
manual or .signet: refusing to abjure the
Pope; dehowering or marrying, without
the royal license, any OF the Kings chill
dren. sisters. aunts, nephews or nieces:
bare solicitation of the chastity OF the
queen or princess. or advances made by
themselves; marrying with the King by
a woman not a virgin, without previously
discovering to him such her unchaste
life; Judging or believing (manifested by
overt act) the King to have been law
fully married to Ann of Give derogat-
ing from the Kings royal style and title
inpugning his supremacy and assem-
bling riotously to the number OF twelve,
and not dispensing upon proclamation,
all which ncwfangled treasons were to-
tally abrogated by the statute. which
once more reduced all treasons to the
standard of the statute OF 25th Edward
H."
1t was the purpose of the Constitution
TO prevent the defining and punishment
OF matters OF the above character as
treason. and It is a rule OF recognized
force that what may not be done di-
rsctiy cannot be accomplished byandirec-
ton (ClarlSe VS.. Clarke. 178 u. s., 1856,
1870. Treason" says Hamilton. lis
crime levellcd ut the immediate being
of society,"" and the Constitution having
defined what shall constitute TREASON
against the United States has excluded
from the legislative power Of the Con-
gress all crimes levelled at the imme-
date being of society which are not in
cluded within the definition or tho spe-
cihc enumerations. Treason against the
individual States may no doubt be made
to include matters which 60 to the life
of the State, II not limited by their
constitutions. but so far as the United
States are concerned, entirely independ-
ent of the First Amendment. there Is no
power to define as a crime and to pun
iah any expressions OF individual opir-
ion, whether by word of mouth or
through the press. The power to SINS
pend the privilege OF the writ of habeas
corpus provides for any emergency GO
ing to the life OF the nation. ansl beyond