Page:Harvard Law Review Volume 32.djvu/455

419 NOTES 419 poison with the intent to kill is not a punishable attempt at murder." The sin of discharging a gun with the intent to kill a man a thousand miles away is as great as the sin of shooting at one within range and missing, yet the former has no legal cognizance. If writing a letter from Alaska to a firm in San Francisco requesting a shipment of liquor to Alaska, the importation of which into said territory is a crime, is not an attempt to commit the crime until the liquor is brought near the borders, headlands, or waters of Alaska,^^ it is hard to see how addresses made before a woman's club or at a distance from army cantonments, can be held to be attempts to cause insubordination and mutiny in violation of the Espionage Act.^^ So, too, pubUcations to the effect that this is a capitalists' war, or that the government is for profiteers, though such papers are likely to reach army cantonments and are sure to be read by those at home who are subject to call, can scarcely be held to be attempts.^^ Assuming the statements to have been false statements of facts, and assuming their utterers to have intended to cause a viola- tion of the law, the question should have been how dangerously near success did the attempts come. True, the boys in the service at home and abroad might be cheered by a universal enthusiastic sentiment at home, but how many would ever hear or listen to such statements of a minority, much less be influenced by them? How many wives, mothers, fathers, sisters, brothers, or sweethearts would on such talk encourage their own male relatives to violate the law? The line is not an easy one to draw; each case must be decided upon its own merits. But it seems that so long as the words do not tend directly, using the objective standard, to cause insubordination or mutiny, do not tend directly to obstruct the recruiting and enlistment service, or directly to interfere with the opera- tion of the military and naval forces, that an attempt to violate the statute has not been committed. This was the view taken by the court in United States v. Schutte ^^ and by the lower court in Masses Publica- tion Co. V. Patten}^ In the latter case the postmaster excluded the plain- tiff's pubHcation from the mails on the grounds that it was in violation of the Espionage Act. The plaintiff sought to enjoin the postmaster from so doing, and in granting the injunction Judge Learned Hand said: "Political agitation may in fact stimulate men to break the law. De- " These are considered mere preparations and not attempts. See People v. Murray, 14 Cal. 159; Commonwealth v. Kennedy, 170 Mass. 18, 48 N. E. 770. See also 16 Harv. L. Rev. 491. ^ United States v. Stephens, 12 Fed. 52. " Cf. United States v. Stokes, supra; United States v. Schutte, 252 Fed. 212; Masses Pub. Co. v. Patten, 244 Fed. 535, overruled in 246 Fed. 24. ^* In United States v. Stokes, supra, the court said: "There are the mothers, fathers, wives, sisters, brothers, sweethearts and friends of these men (men in the service and those registered for the draft), in fact all the complex life of communities which, in the aggregate, with others of like nature, make up the life and physical forces of the nation. If the statement made in this letter and the resulting attitude therein voiced should meet with credence and acceptance by any appreciable number of its readers, coiild they fail to produce a temper and spirit that would interfere, tend naturally and logically to interfere, with the operation and success of the miUtary and naval forces of the United States? " ^ 252 Fed. 212. " 244 Fed. 535.