prohibit the States from exercising their historic and traditional sovereign powers; nor (3) does it in or by any sentence or any word exclude or negate or supersede or nullify a State's Sovereign police powers; nor (4) does it in or by any sentence or any word manifest clearly or even unclearly any intention to assume complete and exclusive jurisdiction of the subject matter, viz, the crime of sedition. These facts alone are sufficient to demonstrate the utter untenability of the majority opinion which, with nothing to support it, holds that the state police power has been superseded, abridged, and destroyed.

But we shall pile Pelion upon Ossa. What was the law prior to the Smith Act (as established in the State Courts and by decisions of the Supreme Court); what were the conditions which caused its passage; what were the mischiefs it sought to remedy; and what are the dire results which will inevitably flow from the majority opinion?

Discussing these seriatim, we shall first consider the Smith Act and the prior decisions of the Supreme Court of the United States in analogous cases.

Section 2 (a) (1) of the Smith Act, as amended, makes it unlawful "to knowingly or wilfully advocate *** or teach the duty, necessity, desirability, or the propriety of overthrowing or destroying any government in the United States [changed by the Amendment of June 25, 1948, to read "the government of the United States or the government of any state] by force or violence, * * *” Section 2 (a) (3) makes it unlawful "to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States [changed to read “the government of the United States or the government of any state] by force or violence ***”

The language and meaning of the Smith Act are absolutely clear. The majority opinion asserts that in spite of the clear language of the Smith Act, and even though it never said so, Congress clearly intended to supersede and suspend the Pennsylvania Sedition Act. The question that will instantly arise in everyone's mind is this—if that was the Congressional intent in a matter which concerns the very existence of our Country, why didn't Congress clearly and plainly say so? If the language or intent or meaning or effect of an Act is not explicit or clear, the intention of Congress is to be gathered not only from a consideration of the language of the Act but also by examining the prior law upon the subject; the conditions or circumstances which caused the enactment or change; the mischief, if any, to be remedied; the goal or objectives to be attained; and the results which will likely flow from a construction contended for by each of the parties involved. (Cf. United States v. C. I. O., 335 U. S. 106, 112; Martin Estate, 365 Pa. 280, 74 A. 2d 120; Phipps v. Kirk, 333 Pa. 478, 5 A. 2d 143; Orlosky v. Haskell, 304 Pa. 57, 66, 155 A. 112; Williamson's Estate, 368 Pa. 343, 355, 82 A. 2d 49.

At the time of the passage of the revised Smith Act on June 25, 1948, which punished (as we have seen) any person who "knowingly or wilfully advocates *** overthrowing or destroying the government of the United States. or the government of any state *** by force or violence ***", Congress knew the following facts which are very important in determining whether it intended to preempt the field and suspend all State legislation designed to protect our Country from its mortal enemies.

1. State sedition and treason laws were nothing new; they had existed for over 100 years. Congress knew that in spite of the fact that the Constitution of the United States gave it, in Article III, 3 (2), the power to punish treason, forty-seven (47) Sovereign States of the United States of America, vitally and patriotically concerned with the safety of their citizens, the security of our Country and the preservation of their State and Country's Governments, have a Constitutional provision or had passed laws (as early as 1818) punishing the crime of treason.2 Congress also knew that thirty-seven (37) Sovereign States had over a long period of years passed statutes defining and punishing sedition, syndicalism, and other activities aimed at the overthrow of our government by force. All of these State statutes throughout our entire Country will be superseded and suspended or invalidated, if the majority opinion in this case is sustained by the Supreme Court of the United States.

2 Federal Bar Assn. Journal, Vol. 9, p. 71 (1947).

3 Annual Report of the Committee on Un-American Activities for the year 1949; House Report No. 1950, Union Calendar No. 727, 81st Congress, 2nd session, page 30.

In 1790 Congress enacted an Act defining and punishing treason.* In 1861 Congress passed the Sedition Conspiracy Act.5 Never once has the Supreme Court of the United States held that the congressional act punishing treason or the congressional act punishing sedition preempted the field or superseded and nullified state acts punishing these crimes, or prohibited states from thereafter passing complementary statutes punishing these crimes. While this is not conclusive it is certainly persuasive that Congress did not intend by the Smith Act to supersede and invalidate the mass of state legislation punishing treason, sedition, criminal anarchy, etc., some of which has been in existence for 100 years. Furthermore, twenty-six (26) States have passed laws which expressly or in effect deny state employment to persons who teach or advocate the overthrow of government by force or violence, or who print or sell documents advocating such doctrines, or who organize groups aimed at overthrowing the government." If the majority opinion prevails, isn't it clear as crystal that all these State laws will be superseded and suspended or invalidated by the Smith Act; and if so, what will it cost the States in the way of damages and other remedial actions? And if the majority opinion prevails, what will happen to all the traitors and dangerous criminals who have been convicted under state acts and whose sentences have not been finally determined, as well as those who are now in state jails serving sentences for violating state treason or sedition or similar laws? And most important of all, what will happen to the security of our Country when the patriotic efforts of all state legislatures, district attorneys, and Courts and of all patriotic citizens anxious to catch and punish traitors, are rejected, and the existence of our State and Nation is left exclusively to the slow processes of our sometimes apathetic or inept Federal Government? 2. The Smith Act is patterned after and is almost identical with the New York Statute punishing sedition, the constitutionality of which had been sustained in the famous case of Gitlow v. New York (268 U. S. 652 (1925)), which was cited with approval by the Supreme Court of the United States as recently as 1951 in Dennis v. United States (341 U. S. 494).

3. Congress also knew that due to public statements and tidal waves of proRussian propaganda issued since 1933 by some of the highest officials of our Government in Washington, the true nature and the real aims and objectives of communism were so diluted and distorted that for many years they were hidden from the Congress as well as from the American people. Communism by its teachings and by its acts and deeds is our mortal enemy. Marxist communism, as interpreted, promulgated, and established by Stalin, teaches, advocates, plans, and plots (a) a world revolution by and for the proletariat; (b) the overthrow and capture of every Government in the world by sabotage, force, and violence; and (c) the dictatorial, ruthless, atheistic rule of every Country by ukase and force for the (pretended) benefit of (a tiny percentage of) the proletariat known as Communists.

4. Moreover, Congress at the time it passed the revised Smith Act in 1948 knew more than this. It knew that despite the activities of our wonderful FBI' communists had infiltrated into many key positions (a) in the State Department, and (b) in many other departments of the Federal Government; it knew that important documents and atomic and other vital secrets had been stolen by or for the communists, thus jeopardizing the safety of our Country; it knew even then that the Federal Government had in many instances failed to protect our Country from the insidious and treacherous acts of communists; and most important of all, it knew that the Federal Government, even if it were willing, had demonstrated that it was unable alone to cope with this hidden octopusian menace to our Country. Congress further knew that our Country needed, in order to combat the widespread and occult perils of communism, the help not only of the FBI and of all Federal district attorneys and all officials in every Federal department and agency of Government, but it also needed the active assistance and cooperation of all States, and all State Courts, and all State officers and agencies, as well as the enthusiastic help of every patriotic American citizen. Congress also knew that juries are sometimes fooled or duped by false testimony or by clever lawyers and thus acquit

18 U. S. C., §§ 1 and 2.

618 U. S. C., § 6.

Annual Report of the Committee on Un-American Activities for the year 1949; House Report No. 1950, Union Calendar No. 727, 81st Congress, 2nd session, page 45.

The American people have been shocked by recent revelations showing the extent to which FBI warnings about Communists were ignored by former heads of the Federal Government.

those who are guilty of grave crimes, and it would certainly be wise to have State officers, State Courts, and State juries give to our Country additional help and protection against those who are attempting to destroy our Government. 5. Congress also knew that the States had passed statutes on many subjects and in many analogous fields over which the Constitution gave power to Congress; and that these statutes had nevertheless been sustained by the Supreme Court of the United States. For example, State Sedition acts had been sustained by the Supreme Court; State acts which regulated or taxed Interstate Commerce had been sustained; State acts pertaining to counterfeiting (although Congress alone had power to coin money and regulate the value thereof) had been sustained; and State acts restricting or regulating labor activities had been sustained under the State's police power even though the Wagner Act, the Taft-Hartley Act and other labor legislation had seemingly preempted the field. Moreover, Congress has enacted statutes punishing the same or similar criminal acts as has the State of Pennsylvania involving firearms, narcotic drugs, explosives, blackmail, conspiracy against rights of citizens, counterfeiting of coins, embezzlement, kidnapping, homicide, prostitution, burglary, wrecking of trains, train robbery, bank robbery, sabotage, treason, lotteries, obscene books and pictures, false and fraudulent bank entries, bribery, violation of election laws, and other crimes, too numerous to mention. Notwithstanding Congressional legislation on these criminal offenses, state prosecutions and indictments under similar state laws have always been sustained.

Congress, with a full knowledge of all of the foregoing facts, passed the Smith Act in 1940 and the revised Smith Act in 1948.

In the light of all these facts, circumstances, and conditions and in the face of the decisions of the Supreme Court in analogous cases, how is it possible to assert, as does the majority, that Congress intended, although it never said or even suggested so in a single sentence or by a single word, (1) to supersede and to nullify or suspend all State legislation and all State statutes which protected our Country, and (2) to preempt the crime of Sedition and give to a Federal Government which had demonstrated its utter inability to solve or effectively deal with the problem and menace of Communism, the sole and exclusive right and power to defend our State and Country from the traitors within our ranks. If that had been the Congressional intent, we ask once again, isn't it unbelievable that Congress did not clearly and expressly and specifically say so in the Smith Act? The majority opinion fails to answer this question for the obvious reason that it cannot. But Members of Congress and the Attorney General of the United States are not so reticent. The author of the Smith Act-the highly respected and distinguished Congressman, Howard W. Smith, of Virginia, vigorously denies and refutes the majority's theory of supression. His letter is so clear, pertinent, and devastating that we quote it at length:

8

As I am the author of the Federal act in question, known as the Smith Act, I am deeply disturbed by the implications of this decision. May I say that when I read this opinion, it was the first intimation I have ever had, either in the preparation of the act, in the hearings before the Judiciary Committee, in the debates in the House, or in any subsequent development, that Congress ever had the faintest notion of nullifying the concurrent jurisdiction of the respective sovereign states to pursue also their own prosecutions for subversive activities. It would be a severe handicap to the successful stamping out of sub

8 This letter is part of the record in this case. It was submitted by the Attorney General of Pennsylvania (who protested the majority decision) as one of his reasons or grounds for a reargument of this case.

versive activities if no state authority were permitted to assist in the elimination of this evil, or to protect its own sovereignty. The whole tenor and purpose of the Smith Act was to eliminate subversive activities, and not assist them, which latter might well be the effect of the decision in the Commonwealth v. Nelson case.

I hope you will not think me presumptuous in taking this matter up with you, but you can readily understand how deeply disturbed I am about it.

Sincerely yours,

***

HOWARD W. SMITH.

In the "Brief for the United States" filed by the Attorney General in the case of Dennis v. United States (341 U. S., supra (1951)), the Attorney General devoted many pages to sustain his contention that the Smith Act was Constitutional because it was a part of a large mass of valid State and Federal legislation which punished sedition and subversive activities. He said, inter alia: "3. The other American statutes dealing with political extremism. It is significant to note that the Smith Act is part of a large body of legislation, both State and Federal, directed against political extremism. *** (a) State legislation. All or nearly all of the States have enacted legislation dealing with political extremism. This legislation takes a variety of forms, depending partly upon the time and circumstances of enactment. Some of the statutes date from the Civil War, others are a response to the alleged menace of the I. W. W. and to the violent anarchism which resulted in the assassination of President McKinley. Many of the state statutes date from 1917 and the Russian Revolution. However, since 1940, there has been enacted a considerable number of state statutes dealing either by name or by clear implication with Communism and Fascism. In the interest of brevity, we will not attempt to describe here this mass of state legislation.

"However, the more recently enacted state statutes reveal the evils anticipated by the American state legislatures from Communism and Fascism. Thus, in 1945, Illinois provided ***.

"This mass of state and Federal legislation reflects the Nation's awareness of the fact that the danger to free countries is not from direct and domestic insurrectionary movements, but from the more subtle alliance of domestic political groups with foreign governments with whose ideology they are sympathetic and whose policies they serve."

In the light of that letter from Congressman and former Judge Howard W. Smith and in the face of the brief of the Attorney General of the United States in the Dennis case, how is it possible for this Court to say that Congress "intended" to supersede and nullify State laws punishing Sedition?

If any possible doubt could possibly remain, it would be forever dissipated by the fact that the Federal Code of Crimes and Criminal Procedure of 1948, of which the Smith Act is now a codified part, expressly states in § 3231: "Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof."

Although no further confirmation is needed, we shall multiply the overwhelming proof and point out that the authorities further confirm the validity and constitutionality of the State Sedition Act.

Gilbert v. Minnesota (254 U. S. 325) is analogous to and in principle controls the instant case. In that case a statute of Minnesota made it unlawful to discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota, and by another section unlawful for any person to teach or advocate that the citizens of Minnesota should not assist the United States in carrying on war with its public enemies. The statute was sustained as an exercise of the police power and also as a legitimate measure of cooperation by the State with the United States. It was held not to be in conflict with the federal war power nor with the Constitutional right of free speech. It was argued that Congress had the exclusive power to declare war and to determine among other things the conditions of enlistment; and consequently, just as here, it was contended the states had no such power, especially as their acts might run counter to what Congress or the army or navy might consider the wisest and most effective means of securing support from all the citizens. The minority opinion in that case held, as does the majority opinion in this case, that the state statute was inconsistent with the law of the United States and a cause of real embarrassment and danger to the Federal Government and consequently unconstitutional. All of these arguments or contentions were rejected by the majority which in its opinion said (page 328): "Undoubtedly, the

United States can declare war and it, not the States, has the power to raise and maintain armies. But there are other considerations. The United States is composed of the States, the States are constituted of the citizens of the United States, who also are citizens of the States, and it is from these citizens that armies are raised and wars waged, and whether to victory and its benefits, or to defeat and its calamities, the States as well as the United States are intimately concerned. * * * from the contention that it encroaches upon or usurps any power of Congress, there is an instinctive and immediate revolt. Cold and technical reasoning in its minute consideration may indeed insist on a separation of the sovereignties and resistance in each to any cooperation from the other, but there is opposing demonstration in the fact that this country is one composed of many and must on occasions be animated as one and that the constituted and constituting sovereignties must have power of cooperation against the enemies of all. *** The same view of the statute was expressed in State v. Holm (139 Minnesota, 267) where, after a full discussion, the contention was rejected that the Espionage Law of June 15, 1917, abrogated or superseded the statute, the court declaring that the fact that the citizens of the State are also citizens of the United States and owe a duty to the Nation, does not absolve them from duty to the State or preclude a State from enforcing such duty. The same act,' it was said, 'may be an offense or transgression of the laws of both' Nation and State, and both may punish it without a conflict of their sovereignties. Numerous cases were cited commencing with Moore v. Illinois (14 How. 13) and terminating with Halter v. Nebraska (205 U. S. 34).

"The latter case is especially pertinent in its sentiment and reasoning. It sustained a statute of Nebraska directed against the debasement of the National flag to trade uses against the contention that the flag being the National emblem was subject only to the control of the National power. In sustaining the statute it was recognized that in a degradation of the flag there is a degradation of all of which it is the symbol, that is, 'the National power and National honor' and what they represent and have in trust. To maintain and reverence these, to 'encourage patriotism and love of country among its people,' may be affirmed, it was said, to be a duty that rests upon each State, and that 'when, by its legislation, the State encourages a feeling of patriotism towards the Nation, it necessarily encourages a like feeling towards the State.'

"And so with the statute of Minnesota. An army is an instrument of government, a necessity of its power and honor, and it may be, of its security. An army, of course, can only be raised and directed by Congress, in neither has the State power, but it has power to regulate the conduct of its citizens and to restrain the exertion of baleful influences against the promptings of patriotic duty to the deteriment of the welfare of the Nation and State. To do so is not to usurp a National power, it is only to render a service to its people, as Nebraska rendered a service to its people when it inhibited the debasement of the flag.

"We concur, therefore, in the final conclusion of the court, that the State is not inhibited from making 'the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.'

"The statute, indeed, may be supported as a simple exertion of the police power to preserve the peace of the State. *** 'It is simply a local police measure, aimed to suppress a species of seditious speech which the legislature of the State has found objectionable.'"

It is apparent that there is far less justification in the instant case for the majority theory of supersession that there was for the minority view in Gilbert v. Minnesota. All of Nelson's arguments in this case and all of the theories of the majority were, we repeat, rejected by the Supreme Court in Gilbert v. Minnesota. Moreover, the Supreme Court cited with approval the Holm case, supra, which sustained a state statute dealing with Espionage and rejected the contention that the Espionage Law of 1917 abrogated or superseded a state statute, and specifically held that the citizens of each state owe a duty to the state as well as to the nation and that nothing precluded a state from enforcing such duty since our sovereign federal government needed the cooperation of its constituent sovereignties against the enemy of all. Moreover, as the Supreme Court there said, the same act may be an offense or transgression of the laws of both the nation and the state and both may punish it without a conflict of their Sovereignties.

It is to be noted that the state statute in the Gilbert case was sustained both as a legitimate measure of cooperation by the state with the United States