The general conspiracy section of the United
States laws, Sec. 37 of the Criminal Code, in plain English is
this: When two or more conspire to commit any offense against
the United States and one or more of such persons does any act
toward the accomplishment of the conspiracy--what we call an overt
or outward act--then the act is complete and that is a conspiracy.
Conspiracy simply means two or more persons acting in an unlawful
agreement; that is to say, a conspiracy is two or more persons
acting in concert in an unlawful plan, either to accomplish something
lawful by unlawful means, or to accomplish something unlawful
by lawful or unlawful means. If any one of the persons does any
act looking toward the accomplishment of the conspiracy, whether
he finally succeeds or not, the crime is complete by the commission
of the so-called "overt act."
The selective draft law was passed on May
18, 1917, and on the same day the President duly affixed his signature
to a proclamation fixing June 5th, 1917, between the hours of
7 A. M. and 7 P. M., as the date on which people should register
as provided by Section 5 of that law. This is section 5 of that
law: That all persons between the ages of 21 and 30, both inclusive,
are subject to registration except officials and members of the
regular army, the navy, the national guard while in the active
service of the United States. In other words, all male persons,
whether they are citizens or declarants, or aliens, between those
ages, are required by that act to register. Some of them may not
be subject to draft. For example, a man born in Germany who has
taken out his first papers but has not yet completed his citizenship,
under the law could not be drafted; but at any rate he must register,
because he is a male person between the ages of 21 and 30, both
inclusive, and is not a member of the exempt classes.
In addition to that, Section 332 of the
U. S. Criminal Code says that anyone who directly commits an act
or who aids, abets, counsels, commands, induces or procures its
commission is a principal. So that you will see at a glance that
if you go out and kill a man you are a principal, you have committed
the act directly. On the other hand, if you committed that pursuant
to my persuasion or inducement or assistance I am an aider, or
an abettor, what was formerly known at common law as an accessory
before the fact. And by this statute he, too, is made a principal.
So that the man procuring the killing is just as guilty in the
eyes of our law as the man who fired the shot. So that the indictment
in this case charges the two defendants Emma Goldman and Alexander
Berkman, and a lot of other people whose names are unknown to
the grand jurors, entered into an unlawful agreement or conspiracy
that a lot of people of conscriptable age, other than those exempted
by reason of service in the army, should willfully disobey the
sections of the Act requiring them to register, and that the conspiracy
further required that these people and the unknown people should
aid and abet and assist and counsel and advise, and assist persons
to willfully disobey the command to register--though the law provides
that it is the duty of everybody to register, all male persons
in the United States other than members of the army, etc., to
register in the precincts where they shall have their permanent
abode. Whether or not the conspiracy was accomplished makes no
difference; but the Government will prove to your ample satisfaction
that these persons were component parts of an unlawful conspiracy
of two or more persons to induce people of conscriptable age liable
to register to disobey the law passed by Congress, signed by the
President, and in the pursuance of which law the President of
the United States duly issued his proclamation; and to accomplish
that conspirative act the indictment charges that on the 18th
day of May, on the very eve of the day when the President affixed
his signature to the bill, this defendant Emma Goldman, at the
Harlem River Park Casino, in the City of New York, delivered an
address which was an overt or outward act looking to the accomplishment
of their unlawful designs.
Further, to accomplish the object of the
conspiracy, that the defendant Alexander Berkman on the 1st day
of June, in New York City, published or caused to be published
a magazine known as THE BLAST, about which some of you were questioned
by Mr. Berkman. The magazine itself, the June issue, will be offered
in evidence. That on or about the 2nd day of June, a companion
magazine known as MOTHER EARTH, or a copy thereof, was handed
by Miss Goldman to an Herald reporter by the name of Haggerty,
who will be called as a witness before you. That further to accomplish
the object of the conspiracy on the 4th day of June, on the eve
of the registration, these two defendants, in the Hunts' Point
Casino, in the Borough of the Bronx, New York City, both delivered
addresses, outward acts looking toward the accomplishment of their
unlawful designs and plans.
That, gentlemen, is in brief a statement
of the Government's case. So that the Government will prove to
your satisfaction that at 20 East 125th St., New York City, each
of them ran a publication there, Berkman's known as THE BLAST,
Miss Goldman's as MOTHER EARTH; that both published a June number
which we claim is highly offensive to law and order, and which
we claim further was directly published for the purpose of procuring
people willfully to set themselves above the provisions of the
Draft Act of May 18th. We will show that these two people were
at all times in active unison and accord; that they sent out through
the mails and otherwise literature tending to the result of resisting
by every means in their power the laws of the United States duly
enacted by the representatives of the people.
The Government will prove further that these
people at public meetings have done their very best to inflame
the populace to such an extent that it will defy the laws of the
United States in every particular; that all these acts together
constitute not only a conspiracy but a violent attempt made by
these two disturbers of law and order to induce people wilfully
to refuse to register, although the Congress of the United States
have decreed that people must register as provided in that act
of May 18, 1917.
There is no occasion for further comment at this time. The facts will speak for themselves. The articles and the speeches made by the defendants will speak for themselves. But bear in mind, gentlemen, at all times, that the charge is this: That these two people were in an unlawful agreement that certain people should wilfully refuse to register, that they should assist in every way and counsel and induce people of conscriptable age in every way wilfully to fail and refuse to register in defiance of the laws of the United States, and to further their unlawful designs they committed many outward acts tending toward the breach of the peace and tending toward the accomplishment of their wicked design.
THE COURT: Before the examination of witnesses
is begun, the program will be this: As to any particular witness
produced by the Government, one of the defendants only will offer
any objections. That objection will be noted on behalf of both
defendants. If the Court rules against the defendants, the defendants
from now on will be required to take an exception. But an exception
taken by one will be for the benefit of both. So that, for instance,
witness number one would be objected to by the defendant Berkman
or Goldman, whichever they may choose; witness number two the
other defendant. But there would not be objections by both defendants
at the same time, which would only tend to confusion. The other
method that I have suggested, and which I have the discretion
to require, will safeguard the rights of both defendants, because
both the objection and the exception, if such there be, will be
for the benefit of both defendants. Now you may call your first
witness.
The prosecution proceeds to present the
case of the Government through its witnesses.
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