Where breach of the negative involves a damage by itself apart from or over and above breach of the affirmative, it can be no objection to enforcement of that negative that it may tend to enforce an affirmative that ought to be performed. Mutuality of performance is a doctrine of equity for the protection of defendants by insuring to them when performance is exacted of them that they get the counter performance due them. If they obstinately refuse to avail themselves of the opportunity to have all that the contract calls for, by remaining idle when enjoined from breaking the negative covenant, they ought not to be heard to complain. Great hardship upon plaintiff, as, for example, in Tribune Ass'n v. Simonds, supra, may properly move the court to attach little weight to the possibility that the defendant, by doing nothing, may perform part of the contract with no equivalent. Eastman Kodak Co. v. Warren 96 involved a covenant not to enter the service of a competitor within two years after termination of the employment. The covenant was not at all necessary for protection of the covenantee, and employees to do the kind of work in question were readily procurable. In substance the case is like Sternberg v. O'Brien,97 and was so decided. Roper v. Pryor 98 is more doubtful. It does not appear that plaintiff had any interest in enforcement of the negative beyond holding defendant to his promise. In Clark Paper Co. v. Stenacher,99 on the other hand, if defendant was permitted to break his covenant and enter the service of a competitor, his knowledge of plaintiff's customers and trade methods, and the confidential information he had acquired, involved serious possibilities of injury. Hence the case is like Salomon v. Hertz,100 and was so decided. Rowe v. Toon 101 was a suit to enjoin breach of a covenant not to compete with a business which defendant had sold to plaintiff. It differs in this respect from Roper v. Pryor, supra, where defendant had been plaintiff's clerk, and the injunction was rightly granted. In White Marble Lime Co. v. Consolidated Lumber Co.102 a lumber company agreed to sell wood slabs to a lime company "so far as the production of their mill may enable them to do so." Afterwards, finding a higher price could be obtained elsewhere, they contracted to sell the slabs produced at their mill to a chemical company. The case differs from Donnell v. Bennett 103 in that the chemical company and the lime company were not competitors. Hence the implied negative had no separate significance. Because of the limited supply, uncertainty of the market, and necessity of such fuel to plaintiff's business, the decree enjoined sale to the chemical company, expecting thus to enforce specific performance without requiring the supervision of the court. HARVARD LAW SCHOOL. (To be continued) Roscoe Pound. 103 22 Ch. D. 835 (1883). HARVARD LAW REVIEW Published monthly, during the Academic Year, by Harvard Law Students SUBSCRIPTION PRICE, $3.00 PER ANNUM. . 50 CENTS PER NUMBER Editorial Board CLOYD LAPORTE, President ROLLA D. CAMPBELL WILLIAM E. MCCURDY JAMES L. MOORE GEORGE F. LUDINGTON, Treasurer SIGURD UELAND, Note Editor REUBEN OPPENHEIMER, Book Review Editor JOSEPH D. PEELER THE ESPIONAGE ACT AND THE LIMITS OF LEGAL TOLERATION." - The sharp discussion which has been aroused by the numerous convictions under the Espionage Act of 1917 1 is much clarified by such a preliminary statement of the precise issues involved as that of Hand, J., in the case of Masses Pub. Co. v. Patten.2 False statement of fact apart, the statute speaks only of crimes and "attempts." Expressions of opinion and exhortations to be punishable must therefore contain the ingredients of an attempt, namely: 1. A specific intent to commit the substantive crime; 2. A certain proximity to success. No doubtful question of constitutional law is involved. The controversy becomes one as to definitions of criminal attempts, and reduces itself primarily to criticism of charges to the jury in the district courts. Since a trial judge must act unaided in the first instance, it is impracti • An article taking the other view will appear in the February number. - Ed. 1 Act of June 15, 1917, c. 30, Title I, § 3; 40 U. S. STAT. AT L., 219. 2 244 Fed. 535 (S. D. N. Y., 1917). He says "It must be remembered at the outset that no question arises concerning the war power of Congress. It may be that the fundamental personal rights of the individual must stand in abeyance, even including freedom of the press . . . though that is not the question. Here is presented solely the question of how far Congress. has up to the present seen fit to exercise a power which may extend to measures not yet even considered but necessary to the existence of the state as such." 3 The term "attempt" is used to include attempts by words alone, i. e., “incitements." It is believed to be unquestioned that punishment for incitement is not prohibited by the First Amendment. See infra, note 16. 5 cable for the upper court subsequently to demand adherence to a single rigid formula or set of words. It is submitted that there is nothing damning per se in the use of such expressions as "inferred" or "presumed" intent. All facts must be inferred from the evidence presented. Such a "presumption" is legitimate, provided the jury understand that it is not conclusive, and is one of fact not law. Nor is there anything inherently vicious in the use of "natural tendency and reasonably probable effect" in defining the degree of proximity to success necessary to constitute an attempt. The charge in the Debs case made use of similar expressions. It was affirmed by a united court, and Justice Holmes in delivering the opinion specifically approved of the charge.' 8 When we turn to convictions under the Espionage Act as amended May 16, 1918,10 new issues are involved: first, of interpretation; second, of constitutionality. Obviously Congress intended to increase the field of criminal utterances. How has it done so? 1. By adding new substantive offenses. 2. By making the willful expression of certain disloyal utterances criminal per se; and thereby apparently abandoning in such cases the requirement of proximity to success, and possibly also of specific intent which are necessary to constitute an attempt. In the main, district courts appear to have insisted upon the necessity of these elements since the amendment as before. But this as a matter of statutory construction seems unwarranted. And at least one notable exception exists. In United States v. Curran, Learned Hand, J., recognizes the change made in this respect." Nor, it is worth observing, did he seem to doubt the constitutionality of this change, which it was open to him to question. As yet the decisions are not numerous; but there have been a certain number in lower federal courts,12 and a case has at last come up for review by the Supreme Court.13 In that case the defendants were convicted for printing and distributing in New York City two leaflets, in violation of the Espionage Act, as amended May 16, 1918. The leaflets, after denouncing the government, appealed to Russian workers in America to cease to render assistance in the war, and to rise and prevent the intervention of America against the revolutionary government in Russia. Workers in munition factories were urged to cease the production of "bullets to murder their dearest"; and * See Wolverton, J., in United States v. Floyd Ramp, INTERP. OF War Stat. Bull. No. 66 (D. C. Ore., 1917). See Bean, J., in United States v. Equi, INTERP. OF WAR STAT. BULL. No. 172 (D. C. Ore., 1918). It is a question of degree, to be determined in each case upon the special facts of that case. See J. H. Beale, Jr., "Criminal Attempts," 16 HARV. L. REV. 491, 501. 8 United States v. Debs, INTERP. OF WAR STAT. BULL. No. 155 (D. C. N. D. Ohio, 1918). Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252 (1919). 10 Act of May 16, 1918; U. S. COMP. STAT., 1918, § 10212 c. 11 INTERP. OF WAR STAT. BULL. No. 140 (Dist. Ct. S. D. N. Y., 1918). "Mr. COTTON: Is not intent necessary in both these? The COURT: On the 3d count the intent to persuade is necessary. The utterance of the words themselves is sufficient in the other two, they being if uttered unloyal words." Idem, at p. 6. 12 The following is a list of reported cases on indictments under the amended Act: INTERP. OF WAR STAT. BULL. Nos. 131, 140, 143, 149, 155, 157, 168, 169, 172, 183, 185, 189, 191, 202. 13 Abrams v. United States, U. S. Sup. Ct., October Term, 1919, No. 316 (November 10, 1919). a general strike was advocated as the necessary "reply to the barbarous intervention" in Russia. The fourth count of the indictment charged, in the language of the Act, a conspiracy to advocate curtailment of production of munitions.14 The defendants claimed that the evidence was insufficient to support the verdict. The Supreme Court affirmed the conviction, Holmes and Brandeis, JJ., dissenting.15 The case restricts the issue to a narrow field. The facts render unnecessary an inquiry into the requirements of the statute as to the proximityto-success element.16 And the offense charged, though not an "attempt," was nevertheless under a clause of the statute which required a specific "intent. . . to cripple or hinder the United States in the prosecution of the war." The question of constitutionality seems therefore essentially the same as in cases of conviction under the original Act.17 Moreover there appear to have been no exceptions urged to the charge by the court below. The question of law before the Supreme Court was whether there had been sufficient evidence to sustain the verdict, the only doubt being as to the evidence of the necessary intent. It is urged in the dissenting opinion that manifestly the sole object of the leaflets was to stop American interference in Russia: that any hindrance of the United States in the conduct of the war was an indirect effect of their publication; one not desired for its own sake, not the "proximate motive" of the act; and that therefore the necessary intent to hinder was lacking. 99 19 It is true that a wanton and conscious disregard of the probability of hindering would not satisfy the specific intent to hinder, required by the statute. But surely the conscious disregard of the certainty of hindering does so.18 In other words, "when words are used exactly,' a man intends not only those consequences of his act which he desires for their own sake, but also those which he is conscious must inevitably result from his act, if the desired consequence is to be achieved.20 The first physical 14 The portion of the statute involved reads in part: "Whoever, when the United States is at war, shall willfully . . . advocate any curtailment of production in this country of any thing or things. necessary to the prosecution of the war with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, shall be punished," etc. U. S. COMP. STAT., 1918, § 10212 C. 15 See RECENT CASES, p. 474. 16 It is admitted in the dissenting opinion that the distribution of the leaflets broadcast in New York would have constituted a sufficiently dangerous proximity to success to satisfy the requirements of an attempt. 17 The constitutionality of the Act of 1917 has been repeatedly affirmed. Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249 (1919); Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252 (1919); Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. Rep. 191 (1919). 18 To illustrate: William Tell, instead of removing the apple from his son's head, unfortunately kills the youth. Strictly the killing is not intentional. There was a conscious disregard of dangerous possibilities, only. 2. Suppose that the target assigned him had been his son's heart, not the apple. He attains the target, and the son dies. Clearly the killing is intentional. Considerations of motive are of course immaterial. 3. The target is the apple, but it is placed directly over the son's heart. The apple is hit, and incidentally but inevitably the boy killed. Can defendant Tell be heard in logic or justice to plead that the killing was unintentional? 19 The quotation is from the dissenting opinion in the principal case. 20 If not, one who knocks A down in order to step across his body and strike B, |