Introductory Address by the Prosecutor
GENTLEMEN OF THE JURY: If my recollection serves me correctly, at the time you were examined as talesmen on your qualification as prospective jurors, practically everyone of you, gentlemen of the jury, assented to the statement that you had, at some time or other, served on a jury; so that you doubtless know the purpose of an opening statement in a case of this sort. It is not in any way to furnish evidence. The evidence will come from the mouths of the witnesses and the documents that will be offered for your inspection. But it is only proper in order that you may be assisted in knowing what the witnesses are talking about, that you should know the nature of the charge, and in a brief and concise way what the Government expects to submit to your consideration, that you may later decide the issue of facts submitted to you by the Court.
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.