New Britain herald., 1921-01-31
Court Divides, c to 5


 their nationality.
 Court Divides, c to g. The court divided 6 to 3. Justices Day. Pitney and McReynolds dissent ing.
 Mir. McReynolds added to the dis senting opinion strong appreciation of Judge Landis' sentiments as mere ly showing his detestation of tho "Hunnish warfare which was being backed by compatriots in America" under our too indulgent laws.
 The majority opinion held that the affidavit of prejudice filed by Berger against Judge 1>andis was sufficient to have caused his with drawal from the case and that Judge Landis himself was not Justified in passing upon the affidavit.
 Justice Day who filed a dissenting opinion. held however that the mere filing of an affidavit should not be accepted as sufficient evidence of the unfairness of the judge. The Berger affidavit should not be taken at face value" he said. because the facts therein had been made solely on "in- formation and belief and no at- tempt was made to substantiate them.
 hlstory or CaSC.
 Next to that of Eugene Y. Debs. tho case of Victor Berger. publisher of the Milwaukee Leader. socialist paper, attracted moro attention than any other brought by tho government un- der the wartime espionage act Ber- ger waa accused of disloyalty and was convicted at Chicago on January s. 1919. Subsequently h1 was twice denied seat in the house of renre- sentatives by that body and the third time he offered for reelection he was defeated.
 Four other leaders of the socialist party were convicted with the Mil waukee publisher. They were Adolph Germer. secretary of the national so- cialist party; William F. Kruse, edi- tor of the Young Socialist Irwin St. John Tucker. writer and speaker. and J. Louis Engdahl. editor Of the Amer ican Socialist. Sentences ranging from ten to twenty years were imposed by Federal Judge kenesaw Mountain Landis.
 The five defendants were charged specifically with having conspircd to obstruct recruiting and interfere with the successful prosecution of the war against Germany through the deliv- cry of speeches and the circulation of articles intended to cause 'insubor- dination. disloyalty and refusal of duty among the naval and military forces of the United States. Numer- ous articles written by Berger for the Leader were presented as evidence against him.
 Ousted From Congress.
 movement to bar Berger from the seat in congress, to which he had just been elected from a Milwaukee dis trtct, was at once started. Representa- tive Mann. former republican leader. being one of the few influential mem- bera of tho house who camo out in behalf of the socialist editor. A new election having been ordered. Berger was again returned and again tho house voted to bar him, BPS to 6, within an hour after he had present cd himself to be sworn in.
 His Paper Barred.
 The Milwaukee Leader in the meantime was sharing the troubles of its editor. Barred from the mails un- der an order of Postmaster Burleson. the paper sought a mandamus in the federal courts to have it's privileges restored. Tho writ was refused and the case was carried by successive stages to the supreme court. During the course of the litigation Berger of fered to change the entire policy of his paper if the post office department would withdraw it's order. explain ing that he owed this sacrifice to those who had invested their money in the publication at his behest.
 Beforo Supreme Court.
 The appeal of Berger and his fellow party members came to the supreme court on a "certificate" which was is- sued when they alleged that they had not been given a fair trial because of "personal bias and prejudice" on the part of Judge Landis Alleged re- marks made by Judge Landis on the occasion of passing sentence in somewhat similar case were quoted as showing that he viewed with disfavor all persons of German or Austrian birth. Judge Landis denied the ac- curacy of the quotations and declared that what he had said had been di- rected to the individual with whom he waJ then dealing.
 Attorneys for Berger in arguing the appeal contended that the govern ment's construction of tho espionage act was violation of the constitu-