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Yale Law School Faculty Scholarship
1-1-1922
Comment on People v. Gitlow
Arthur Corbin
Yale Law School
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Corbin, Arthur, "Comment on People v. Gitlow" (1922). Faculty Scholarship Series. Paper 2899.
http://digitalcommons.law.yale.edu/fss_papers/2899
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YALE LAW
LAW JOURNAL
JOURNAL
YALE
made by
by X
X in
in person
person or
or by
by an
an agent
agent who
who represents
represents X and
and his
his associated
associated
made
manufacturers.
manufacturers.
It may
may be
be admitted
admitted that
that judgment
judgment should
should go
go against
against the
the defendant
defendant
It
. in
in case
case he
he approached
approached McLachlan
McLachlan with
with the
the purpose
purpose and
and intent
intent of
of causing
causing
contract with
with the plaintiff.
plaintiff. In
In the
the instant
instant case
case
the latter
latter to
to break
break his contract
the
no such
such purpose
purpose or
or intent
intent was
was proved.
proved. Mere
Mere knowledge, however,
however,
no
on the
the part
part of the defendant,
defendant, that
that compliance
compliance with
with his request
request would
would
on
probably cause
cause McLachlan
McLachlan to
to break
break his
his contract,
contract, is not
not enough
enough to
to make
make
probably
the defendant
defendant guilty
guilty of
of a tort.
tort. The
The defendant's
defendant's duty
duty to
to the plaintiff
plaintiff
the
is surely
surely no
no greater
greater than
than his
his duty
duty to
to society,
society, and
and itit is
is well
well established
established
is
that one is
is privileged
privileged to
to sell
sell goods
goods to
to another
another even though
though he
he knows
that
16
Thus
that the
the buyer
buyer intends
intends to make
make an illegal use
use of the goods.
goods.16
Thus
that
~t has
has been
been held that
that it
it is
is not
not illegal
i.1legal to sell
sell liquors to A merely
merely because
because
it
the seller
seller "knows"
"knows" that
that A intends
intends to use
use them
them in
in breach
breach of the criminal
criminal
the
law; the
the sale
sale to
to A not being
being in itself
itself forbidden, it
it becomes
becomes unlawful
unlawful
law;
only when made by the seller
seller "with
"with a view"
its subsequent illegal
illegal
view" to its
17
A.17
use by A.
defendant was guilty of no breach
seems, therefore,
therefore, that the defendant
breach of
of
It seems,
the plaintiff's
plaintiff's "property
"property right
right in the
the contract."
contract." He
He had
had "just cause"
cause"
the
statement to McLachlan,
McLachlan, such cause consisting
consisting in
in his
his desire
for his statement
sufficient
economic advantages.
advantages. Such
Such cause
cause may cease
cease to be just and
and sufficient
for economic
breach
if accompanied
conscious purpose
purpose and
and intent to induce a breach
accompanied by a conscious
of contract. The defendant
defendant may have had such a purpose
purpose and
and may
have covertly
covertly threatened a strike1Ss in order
order to attain this end; but
but
judgme>lt should not go against him when there
there has been no finding
judgment
by the court that either fact existed.
A. L. C.
Gitlow (1922)
In People
In
People v. Gitlow
(1922) 234 N. Y. 132, 136 N. E.
E. 317, the New
York Court of Appeals had occasion
occasion to interpret and apply the state
statute making "advocacy
"advocacy of criminal anarchy" a felony. The statute
government
defines "criminal
organized government
anarchy" as "the doctrine that organized
"criminal anarchy"
should be overthrown by force or violence, or by assassination ...... . .,,
or by any unlawful means."
means." The defendant, a "left wing socialist,"
government
plainly advocated in print the overthrow of the existing government
establishment in its place by
in this country by the mass strike and the establishment
revolution of a dictatorship of the proletariat. The court wasted no time
constitutionality of the statute; and the majority
on the question of the constitutionality
crime of great magnitude,
in
should be true in
misdemeanors, and it should
such as murder;
murder; but it is true of misdemeanors,
of contract.
torts and
and breaches of
of mere torts
cases of
179 Mass.
8W8, (1901)
(19Ol) 179
E. 818,
Mass. 2II,
211, 30 N. E.
(1892) 156
156 Mass.
Johnson (I8g2)
'Graves
17
Graves v. Johnson
53, 60
6o N. E.
E. 383.
itself
even though the strike itself
strike may
may be unlawful even
"threat" to strike
' That
That aa "threat"
18
2o HARV.
HARV.
(19o7) 20
Litigation (1907)
in Labor
Labor Litigatiol~
Crucial Issues
Issues il~
Smith, Crucial
not be, see
see Smith,
would not
would
273.
L. REV.
REV. 253, 273.
L.
use is
is aa crime of great magnitude,
the illegal
illegal use
true in
in case
case the
not be
be true
16This
This may
may not
1.
HeinOnline -- 32 Yale L.J. 178 1922-1923
COMMENTS
179
of the court held that the defendant
defendant was properly convicted of the
felony therein defined. Pound and Cardozo, JJ., dissented on the
ground that what the defendant
defendant advocated
advocated was not "anarchy,"
"anarchy," inasmuch
as he proposed a substituted form of organized
organized government. They did
not doubt that the defendant
defendant was guilty of advocating the use of illegal
means or that the "mass
"mass strike" necessarily involves the use of force.
The contention
contention of the dissenting judges seems sound if we accept a
definition
permanent destruction
destruction of all
definition of anarchy
anarchy that involves the permanent
organized
submitted that the court would not
organized government;
government; but it is submitted
be
anarchy" was
b'e justified
justified in adopting such a definition. "Criminal
"Criminal anarchy"
defined
legislature; and
~nd it was advocacy of anarchy as thus
defined by the legislature;
defined
defined that was made a felony, not anarchy as defined by philosophers
and jurists. The legislature defined
defined it as "the doctrine that organized
government should be overthrown by force."
force." By the most reasonable
government
interpretation
interpretation of this, it seems that the legislature made it a felony
advocate the violent overthrow
government as it exists
organized government
to advocate
overthrow of organized
now or at the time of such advocacy. The statute says nothing about
disorganization that is to exist among the
the sort of organization
organization or disorganization
ruins. It
It is not necessary, in order to approve the decision, to agree
with the majority of the court that a proletarian
proletarian dictatorship is not an
an
organized
government.
We
may
grant
it to be such. Were
organized government.
Were such
such a
statute
anarchy" to advocate
statute in force in Russia, it would be "criminal
"criminal anarchy"
the violent overthow
of
the
present
soviet
government
overthow
present
government even though the
purpose is to establish a constitutional
republic
or a pure
pure democracy
democracy
constitutional
in its place. A revolutionist still has to bear the customary
of
customary risks of
his profession.11
Now that a "sale"
"sale" of a cable transfer
exchange has been defined
transfer of e..'Cchange
as an executory
agreement
for
future
action
similar to a contract
to
executory agreement
contract to
manufacture
personalty
for
another,'
the
amount
recoverable
for
a
another/
recoverable
manufacture
failure to perform
should
no
longer
remain
in
doubt.
Is
the
purchaser
perform
longer
purchaser
entitled,
of
entitled, beside his right to damages, to the alternative remedy of
rescission? The transaction
of
transaction should be distinguished
distinguished from the sale of
a foreign draft
draft22 which is subsequently
subsequently dishonored. In such a case
the recovery is limited, in addition
amount
addition to interest
interest and charges, to an
:m amount
which would have purchased
the rate of exchange
exchange prepurchased a good bill at tb:e
vailing at the date of dishonor.33 In ordinary
ordinary contracts
contracts the plaintiff
may rescind after a substantial breach provided the status
status quo of the
may
'embership
in the Industrial Workers of the World is per se a crime. People
Membership in the Industrial Workers of the World
is per se a crime. People
(1922, Calif. App.)
Pac.'381.
v. Roe (1922,
App.) 209 Pac.
'381.
'Equitable Trust Co. v. Keewe (1922) 232 N. Y. 290, 133 N. E. 894.
1 Equitable Trust Co. v. Keel/,e (1922) 232 N. Y.290, 133 N. E. 894.
'2 For
distinction between
between a purchase of a draft and of a cable
For the
the distinction
cable transfer, see
COMMENTS (1922)
COMMENTS
(1922) 31
31 YALE LAW JOURNAL,
JOURNAL, 416.
Pompe (I86O,
s.) 537; Daniel, Negotiable
Negotiable Instrut•'Suse
Suse v. Pompe
(1860, C. P.) 8 C. B. (N. s.)
Instruinents
1913) sec.
lIImts (6th
(6th ed.
ed. 1913)
s"ec. 1445. For a discussion of damages in the case of the
dishonor
drafts, see
see COMMENTS
(1921) 31 YALE
YALE LAW
JOURNAL, 198.
dishonor of
of foreign
foreign drafts,
COMMENTS (1921)
LAW JOURNAL,
198.
1
HeinOnline -- 32 Yale L.J. 179 1922-1923