Eugene Debs, The Debs Decision, Scott Nearing, 1919, Part 5-6

History’s Great Speeches

5. DEBS TALKS TO THE JUDGE
The jury found Eugene Debs guilty and on Saturday morning the judge pronounced sentence. Before the sentence was given, Debs had another opportunity to tell someone about Socialism—this time it was the judge.
Debs never loses a chance. When the clerk asked him whether he had anything to say he made another Socialist speech. Said he:
"Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest of earth. I said then, I say now, that while there is a lower class, I am in it; while there is a criminal element, I am of it; while there is a soul in prison, I am not free. ...
"If the law under which I have been convicted is a good law, then there is no reason why sentence should not be pronounced upon me. I listened to all that was said in this court in support and justification of this law, but my mind remains unchanged. I look upon it as a despotic enactment in flagrant conflict with democratic principles and with the spirit of free institutions.
"Your Honor, I have stated in this court that I am opposed to the form of our present Government; that I am opposed to the social system in which we live; that I believed in the change of both—but by perfectly peaceable and orderly means.
"Let me call your attention to the fact this morning that in this system five per cent. of our people own and control two-thirds of our wealth, sixty-five per cent. of the people, embracing the working class who produce all wealth, have but five per cent. to show for it.
"Standing here this morning, I recall my boyhood. At fourteen, I went to work in the railroad shops; at sixteen, I was firing a freight engine on a railroad. I remember all the hardships, all the privations, of that earlier day, and from that time until now, my heart has been with the working class. I could have been in Congress long ago. I have preferred to go to prison. The choice has been deliberately made. I could not have done otherwise. I have no regret.
"In the struggle—the unceasing struggle—between the toilers and producers and their exploiters, I have tried, as best I might, to serve those among whom I was born, with whom I expect to share my lot until the end of my days.
"I am thinking this morning of the men in the mills and factories; I am thinking of the women who, for a paltry wage, are compelled to work out their lives; of the little children who, in this system, are robbed of their childhood, and in their early, tender years, are seized in the remorseless grasp of mammon, and forced into the industrial dungeons, there to feed the machines while they themselves are being starved body and soul. I can see them dwarfed, diseased, stunted, their little lives broken, and their hopes blasted, because in this high noon of our twentieth century civilization, money is still so much more important than human life. Gold is god and rules in the affairs of men. The little girls, and there are a million of them in this country—this, the most favored land beneath the bending skies, a land in which we have vast areas of rich and fertile soil, material resources in inexhaustible abundance, the most marvelous productive machinery on earth, millions of eager workers ready to apply their labor to that machinery to produce an abundance for every man, woman and child—and if there are still many millions of our people who are the victims of poverty, whose life is a ceaseless struggle all the way from youth to age, until at last death comes to their rescue and stills the aching heart, and lulls the victim to dreamless sleep, it is not the fault of the Almighty, it can't be charged to nature; it is due entirely to an outgrown social system that ought to be abolished, not only in the interest of the working class, but in a higher interest of all humanity.
"I think of these little children—the girls that are in the textile mills of all description in the East, in the cotton factories of the South—I think of them at work in a vitiated atmosphere. I think of them at work when they ought to be at play or at school; I think that when they do grow up, if they live long enough to approach the marriage state, they are unfit for it. Their nerves are worn out, their tissue is exhausted, their vitality is spent. They have been fed to industry. Their lives have been coined into gold. Their offspring are born tired. That is why there are so many failures in our modern life.
"Your Honor, the five per cent. of the people that I have made reference to, constitute that element that absolutely rules our country. They privately own all our public necessities. They wear no crowns; they wield no sceptres, they sit upon no thrones; and yet they are our economic masters and our political rulers. They control this Government and all of its institutions. They control the courts.
"The five per cent. of our people who own and control all of the sources of wealth, all of the nation's industries, all of the means of our common life—it is they who declare war; it is they who make peace; it is they who control our destiny. And so long as this is true, we can make no just claim to being a democratic government—a self-governing people.
"I believe, your Honor, in common with all Socialists, that this nation ought to own and control its industries. I believe, as all Socialists do, that all things that are jointly needed and used ought to be jointly owned—that industry, the basis of life, instead of being the private property of the few and operated for their enrichment, ought to be the common property of all, democratically administered in the interest of all.
"John D. Rockefeller has today an income of sixty million dollars a year, five million dollars a month, two hundred thousand dollars a day. He does not produce a penny of it. I make no attack upon Mr. Rockefeller personally. I do not in the least dislike him. If he were in need, and it were in my power to serve him, I should serve him as gladly as I would any other human being, I have no quarrel with Mr. Rockefeller personally, nor with any other capitalist. I am simply opposing a social order in which it is possible for one man who does absolutely nothing that is useful, to amass a fortune of hundreds of millions of dollars, while millions of men and women who work all of the days of their lives secure barely enough for existence.
"This order of things cannot always endure. I have registered my protest against it. I recognize the feebleness of my effort, but fortunately I am not alone. There are multiplied thousands of others who, like myself, have come to realize that before we may truly enjoy the blessings of civilized life, we must reorganize society upon a mutual and co-operative basis; and to this end we have organized a great economic and political movement that is spread over the face of all the earth.
"There are today upwards of sixty million Socialists, loyal, devoted, adherents to this cause, regardless of nationality, race, creed, color or sex. They are all making common cause. They are all spreading the propaganda of the new social order. They are waiting, watching and working through all the weary hours of the day and night. They are still in the minority. They have learned how to be patient and abide their time. They feel—they know indeed—that the time is coming in spite of all opposition, all persecution, when this emancipating gospel will spread among all the peoples, and when this minority will become the triumphant majority and, sweeping into power, inaugurate the greatest change in history.
"In that day we will have the universal commonwealth—not the destruction of the nation, but, on the contrary, the harmonious co-operation of every nation with every other nation on earth. In that day war will curse this earth no more.
"Your Honor, I ask no mercy. I plead for no immunity. I realize that finally the right must prevail. I never more clearly comprehended than now the great struggle between the powers of greed on the one hand and upon the other the rising hosts of freedom.
"I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come to their own.
"When the mariner, sailing over tropic seas, looks for relief from his weary watch, he turns his eyes toward the southern cross, burning luridly above the tempest-vexed ocean. As the midnight approaches, the southern cross begins to bend, and the whirling worlds change their places, and with starry fingerpoints the Almighty marks the passage of time upon the dial of the universe, and though no bell may beat the glad tidings, the look-out knows that the midnight is passing—that relief and rest are close at hand.
"Let the people take heart and hope everywhere, for the cross is bending, the midnight is passing, and joy cometh with the morning. ...
"Your Honor, I thank you, and I thank all of this court for their courtesy, for their kindness, which I shall remember always.
"I am prepared to receive your sentence."
Whereupon the judge sentenced Eugene Debs to ten years in the West Virginia Penitentiary—the penitentiary at Atlanta being too crowded to receive him.

 
6. THE APPEAL
An appeal was taken to the Supreme Court of the United States and was argued on the ground that the Espionage Act was unconstitutional. No act was charged against Debs, except the Canton speech. In that speech he had simply stated what he had said a thousand times before, but the Court held that under the Espionage Act a man who made a speech, the probable result of which was to create mutiny or to hinder recruiting and enlistment—was guilty, providing that he did it knowingly and wilfully. The jury had to decide first, that he had done something, the probable result of which was to create mutiny or to hinder recruiting and enlistment, and then if he had done it, that it was done with intent, knowingly and wilfully. The jury had found Debs guilty under these circumstances.
Debs was an American, and as an American he relied upon a certain guarantee contained in the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peacefully to assemble and to petition the Government for a redress of grievances." Debs, as an American citizen, relied upon that guarantee, and his lawyers, in making the appeal, relied upon that guarantee.
Over and against that guarantee was the Espionage Act passed originally in 1917—June 15th—and amended June 16, 1918.
The language of the original act was as follows:
(Title I, Sec. 3.) "Whoever, when the United States is at war, shall (1) wilfully 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 promote the success of its enemies, and whoever, when the United States is at war, (2) shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall (3) wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."
The Amended Act was far more drastic:
"Whoever, when the United States is at war, shall wilfully 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 promote the success of its enemies, or shall wilfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever, when the United States is at war, shall wilfully cause, or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, 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 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 enemy, or shall wilfully, by utterance, writing, printing, publication or language spoken, urge, incite or advocate any curtailment of production in this country of any thing 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, teach, defend, 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 any country with which the United States is at 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 not more than twenty years, or both." ...
There you have two pieces of legislation. On the one hand, the Constitution provides immunity, and on the other hand, the Espionage Act provides a penalty for the expression of opinion.
The Supreme Court on the 10th of March handed down its decision. The decision was read by Justice Holmes and concurred in by the entire court. 
7. THE SUPREME COURT DECISION
The substance of the decision is contained in the following sentences:
"The main theme of the speech was Socialism, its growth and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct recruiting service, and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech."
Justice Holmes concludes, after a review of the case, that the immunity, under the First Amendment, did not protect the speech. In that argument, he referred to a decision which had been handed down on the 3rd of March known as the Schenk Case—another Espionage Act case—in which this point concerning the immunity under the First Amendment was stated at length by Justice Holmes in this language:
"We admit that in many places and in ordinary times, the defendants would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
That is the Debs decision. That is the method in which the Supreme Court handled the popular liberties guaranteed under the First Amendment. The Court might have thrown the Espionage Act out under the First Amendment as it threw out the Child Labor Law. The Court might have ruled this act unconstitutional. The Court did not decide that Congress had no right to pass the Espionage Act. The Court did decide that since Congress had passed the Espionage Act, Debs had no right to make his speech. What are the implications of this position of the Supreme Court? "Congress shall make no law abridging the freedom of speech," says the Constitution. Congress passed a law abridging the freedom of speech, and the Supreme Court holds that the Courts, in interpreting the Constitution, must bear in mind the law that Congress has passed. We had thought that the Constitutional guarantee was superior to any law that Congress might pass, but the Court specifically holds in the Schenk Case that if "the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Then the First Amendment affords no protection.
Congress is made the arbiter. Congress now decides what may be said and what may not be said.
This means that the Constitution does not guarantee personal liberty. Speech is free, if you keep within the laws passed by Congress, not otherwise. "Congress shall make no law abridging the freedom of speech," declares the Constitution. Speech is free, says the Court, if you obey the laws passed by Congress. What is the result? If the United States enters the League of Nations as a constituent part of it, and if the League of Nations carries on a series of minor wars, this country will be at war perhaps for fifty years, and during that time free speech will be banned under this decision of the Supreme Court; during that time the Espionage Act will operate; there will be no free speech in the United States.
Congress—under this decision—might pass a law making it a crime to advocate the establishment of industrial democracy in the United States, and from the time that law was passed, any man who advocated industrial democracy in the United States would have no immunity under the First Amendment.
Congress might pass a law making it a crime to demand that the Courts of the United States be abolished, and from that time no person could advocate the abolition of the United States Courts without violating the law.
Congress might make it a criminal offense to criticize the President and from that day forward no person could criticize the President without violating the law.
This decision makes Congress, not the Constitution, the arbiter of the limits of freedom of expression; therefore, we must conclude that neither the Courts of the United States, nor the Constitution of the United States can be relied upon to guarantee the American people the right of free speech. Thus, freedom of discussion is ended. Democracy in the United States is dead. The Supreme Court on the 10th of March, in the Debs' case, wrote its epitaph.
A little thought will reveal the seriousness of the situation. A little reflection will show the position in which the American people find themselves, with regard to personal liberties, since the tenth of March, 1919.