and is contrary to liberty and that those who refuse to submit to it are heroes it incites disobedience to the statute. * *

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The cartoon entitled "Conscription" portrays a youth lying across the mouth of a cannon with his arms chained to the wheels of the gun carriage. "Democracy," in the form of a nude woman, is tied by her extended arms and her crossed feet to a wheel. And "Labor," crouched down on the gun carriage, a pitiable object, is fastened in like manner. A woman is on her knees on the earth at the side of the cannon in utter despair, with her head bent back and her arms uplifted, while a child lies neglected at her side. The counsel for the complainant admits in his brief that this cartoon "is a powerful argument against the conscription law. It says, in effect, that the youth of the land are by it forced into military service; that the law binds labor to military service as well; that it causes great agony and suffering to the womanhood of the country, and that the mothers of the country with children too small to be subject to the 'draft' pray to God that the draft law may be repealed before their children come to military age, and that democracy is trampled under foot by such a law. That is what this picture says." But that is not what it says to us. It seems to us to say, "This law murders youth, enslaves labor to its misery, drives womanhood into utter despair and agony, and takes away from democracy its freedom." Its voice is not the voice of patriotism and its language suggests disloyalty.

If counsel wished the court to understand that in his opinion the effect of the cartoon would not be to interfere with enlistment, we are not able to agree with him. That it would interfere and was intended to interfere was evidently the opinion of the Postmaster General. And this court can not say that he was not justified in his conclusion. * * *

It may be conceded that the language of the statute can not have one meaning in an indictment and another when the question arises respecting the exclusion of matter from the mail as containing that which violates the provisions of section 3 of title 1. If the magazine. is nonmailable under that section it may be that the editor has committed a crime in publishing it for which upon conviction he may be fined not more than $10,000 or imprisoned for not more than 20 years, or both. The district judge thought no crime had been committed and that the magazine was therefore mailable because the publication did not in so many words directly advise or counsel a violation of the act. He declared that

"If one stops short of urging upon others that it is their duty or their interest to resist the law it seems to me one should not be held to have attempted to cause its violation. If that be not the test, I can see no escape from the conclusion that under this section every political agitation which can be shown to be apt to create a seditious temper is illegal. I am confident that by such language Congress had no such revolutionary purpose in view."

This court does not agree that such is the law. If the natural and reasonable effect of what is said is to encourage resistance to a law and the words are used in an endeavor to persuade to resistance, it is immaterial that the duty to resist is not mentioned or the interest of the

persons addressed in resistance is not suggested. That one may willfully obstruct the enlistment service without advising in direct language against enlistments, and without stating that to refrain from enlistment is a duty or in one's interest seems to us too plain for controversy. To obstruct the recruiting or enlistment service within the meaning of the statute it is not necessary that there should be a physical obstruction. Anything which impedes, hinders, retards, restrains, or puts an obstacle in the way of recruiting is sufficient. In granting the stay of the injunction until this case could be heard in this court upon the appeal, Judge Hough declared that "It is at least arguable. whether there can be any more direct incitement to action than to hold up to admiration those who do act. Oratio obliqua has always been preferred by rhetoricians to oratio recta; the beatitudes have for some centuries been considered highly hortatory, though they do not contain the injunction 'Go thou and do likewise."" With this statement we fully agree. Moreover it is not necessary that an incitement to crime must be direct. At common law the "counseling" which constituted one an accessory before the fact might be indirect. See Wharton's Criminal Law (11th Ed.) § 266.

Bishop lays down the rule thus:

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"Everyman is responsible criminally for what of wrong flows directly from his corrupt intentions. If he awoke into action an indiscriminate power, he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what he might have foreseen would be the understanding, he is responsible." 1 Bishop on Criminal Law, § 641.

And in Regina v. Sharpe (3 Cox's C. C. 288) it is laid down that— "He who inflames people's minds and induces them by violent means to accomplish an illegal object is himself a rioter, though he takes no part in the riot."

In conclusion, we are satisfied that the publication involved contains no matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States in violation of section 2 of title 12. The Postmaster General's exclusion of the publication from the mails is not put on the ground that it contained any such matter. It is not so clear that the publication is free from matter which involves an attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States. The Postmaster General thought it contained matter objectionable on that ground, and a difference of opinion upon that phase of the matter is possible.

The question whether the publication contained matter intended. willfully to obstruct the recruiting or enlistment service is less doubtful. Indeed the court does not hesitate to say that, considering the natural and reasonable effect of the publication, it was intended willfully to obstruct recruiting. And even though we were not convinced that any such intent existed and were in doubt concerning it, the case would be governed by the principle that the head of a department of the Government, in a doubtful case, will not be overruled by the courts in a matter which involves his judgment and discretion and which is within his jurisdiction.

The order granting the preliminary injunction is reversed.

WARD, Circuit Judge (concurring). I think the sole ground on which the order of the Postmaster General can be sustained is that some parts of the August number of "The Masses" were intended to obstruct and do obstruct the recruiting or enlistment service of the United States. This involves a conclusion of fact to be drawn by him from the cartoons and text of this particular number. Advice to resist the law may be indirect as well as direct, and the conclusion of the Postmaster General in matters of fact, whether we agree with him or not, is final. I think it important, however, to say that not every writing the indirect effect of which is to discourage recruiting or enlistment is within the statute. In addition to the natural effect of the language on the reader, the intention to discourage is essential. Arguments in favor of immediate peace or in favor of repealing the conscription act do this indirectly. It is, notwithstanding, the constitutional right of every citizen to express such opinions both orally and in writing, and Congress can not be presumed to have intended by the Espionage Act to authorize the Postmaster General to exclude such articles written honestly and without the intention of advising resistance to the law. His authority in the premises depends exclusively upon the statute.

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5. UNITED STATES v. SUGARMAN.

(District Court of the United States, District of Minnesota, Second Division, 1917. 245 Fed. 604.)

Mr. Stedman Now comes the defendant, Abraham L. Sugarman, in person and by his attorneys, and moves the court to direct the jury to return a verdict of not guilty, and for reason thereof assigns as follows:

First, that the indictment does not state an offense; second, that the evidence is insufficient and not of sufficient weight or character to justify submitting the case; third, that the evidence does not sustain the alleged crime charged in the indictment.

BOOTH, District Judge. The motion is a rather broad one, and the argument has naturally taken a somewhat broad scope. The motion, I take it, in its present form practically covers the same ground as the demurrer that was interposed to the indictment, and the motion to quash the indictment, and also the more limited motion to direct a verdict for lack of evidence to go to the jury.

It is insisted by counsel for the defendant not only that the indictment does not state facts sufficient in law to constitute an offense, but also that, under the evidence as disclosed on the part of the Government, a good indictment can not be drawn under section 3 of the espionage law (Act June 15, 1917, c. 30, 40 Stat. 217) to cover the facts disclosed. These questions as to whether the indictment states facts in sufficient form, and whether the facts stated are sufficient in law, are somewhat intimately connected and have been argued more or less together, so that they may be properly treated more or less together.

The indictment is drawn under section 3 of the so-called Espionage Law, Act of June 15, 1917, and so far as this case is concerned, that section reads as follows:

"Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States shall be punished.'

Now, the indictment drawn under that section is substantially as follows: That on the 24th of July, 1917, the United States being then and there at war, Abraham L. Sugarman, in the county of Sibley, State and district of Minnesota, and within the jurisdiction of this court, did willfully attempt to cause insubordination, disloyalty, mutiny, and refusal of duty in the military forces of the United States, by then and there urging, counseling, and advising a number of young men (named) not to report when ordered so to do by military authorities of the United States for military service, they, the said young men, being the persons who had theretofore registered for service in the military forces of the United States in accordance with the act of Congress of May 18, 1917 (40 Stat. 76), and the rules and regulations promulgated by the President. Now, the ordinary tests for sufficiency of an indictment as to form are that it shall be sufficiently definite to acquaint the defendant with what charge he has to meet upon the trial, and also sufficiently definite and certain so that if he either is convicted or acquitted he may thereafter plead the judgment in any other prosecution that may be brought against him for the same offense; and, third, that the court may be acquainted with what is charged, so that it may determine whether or not the facts, if they are proven, constitute an offense in law within the statute under which the indictment is drawn.

Now, it seems to me, applying those tests to this indictment, that as to the formal requisites it is sufficient; it acquaints the defendant with the time and place of the offense; it acquaints him with the fact that it is claimed that then and there he attempted to cause insubordination, disloyalty, mutiny, and refusal of duty in the military. forces of the United States; and it acquaints him with how it is claimed that was done, by urging certain young men there not to report for military duty, and that these young men were men who had been registered under the act of Congress. *

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There is a further question raised by this motion, and that is as to the status of these men in whom it is claimed this attempt was made to produce disloyalty and refusal of duty. The indictment alleges that these men had registered. It also alleges that an attempt was made to cause disloyalty and refusal of duty in the military forces of the United States. The evidence shows that the young men in question, named in the indictment, had registered. It also shows that they had received their serial numbers under the draft act. The indictment does not allege that to be the case, but the proof shows it, and no point is made that the indictment does not state that particular fact. And, of course, the date of making the drawing is an historical fact of which the court would take judicial notice without proof.

Now, the defendant claims that these men were not in actual military service, but the Government contends that the men were in the military forces of the United States, and that is the most important question that is raised by this motion. I am sorry that I have not had an opportunity myself to investigate more thoroughly this question. It is, I think, a very important question, and so far as I know has not yet been passed upon under the present law. The section itself reads:

"Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States shall be punished."

It doesn't use the language "In persons in the military service of the United States." And the question arises whether those two expressions are synonymous, whether the "military forces of the United States" may not be broader in scope than "persons in the actual military service of the United States." This word "forces" is used in a number of places in the statutes of the United States. It is also found in the Constitution of the United States. In section 8 of article 1 of the Constitution of the United States, enumerating the powers of Congress, amongst others, are these: "to raise and support armies; to provide a navy; to make rules for the governing and regulation of the land and naval forces." Now, whether the words "land and naval forces" there are exactly synonymous with the words "army and navy," is a question that might well bear close investigation. In chapter 187, volume 30, Statutes at Large, page 361 (Comp. St. 1916, § 1714), which was the act providing for the raising of the army for the Spanish-American war, we find this language:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all able-bodied male citizens of the United States and persons of foreign birth who shall have declared their intention to become citizens of the United States under and in pursuance of the laws thereof, between the ages of eighteen and forty-five years, are hereby declared to constitute the national forces, and, with such exceptions and under such conditions as may be prescribed by law, shall be liable to perform military duty in the service of the United States."

So far as I am advised, this section has not been repealed. Now, it seems to me there is a clear distinction between the expression "national forces," as used there, and persons in the actual military service of the United States. In the National Defense Act, which was passed in June, 1916, we find this language, in section 111 (Comp. St. 1916, § 3045):

"When Congress shall have authorized the use of the armed land. forces of the United States for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war, unless sooner discharged, any