
    UNITED STATES ex rel. ABERN v. WALLIS, Commissioner of Immigration.
    (District Court, S. D. New York.
    October 19, 1920.)
    1. Aliens <&wkey;53 — Membership in Communist Party ground for deportation..
    The manifesto and programme of the Communist Party, for the overthrow of the present system of government by mass strikes and the substitution of .communist rule, even if not directly advocating force and violence, do not exclude the use of such means, so that the holding of the Department of Labor that the party is an organization for the overthrow of the government by force and violence, membership in which is ground for deportation of an alien, will not be set aside on application for habeas corpus.
    2. Aliens &wkey;>54 — Denial of violent intent by member of Communist Party does not prevent deportation.
    A denial by a member of the Communist Party of intention to use force or violence for the overthrow of the government does not prevent, deportation of that member, if the programme of the party fairly supports a finding that the party advocated the use of force and violence.
    3. Aliens <&wkey;53 — Improbability of success of violent organization does not prevent deportation.
    If the ultimate purpose of an organization is the overthrow of the government by force and violence, its alien members can be deported, though there is no apparent possibility of such overthrow in the immediate future.
    Habeas Corpus. Proceeding by the United States, on the relation of Martin Abern, against Frederick A. Wallis, Commissioner of Immi-gratiou at the Port of New York.
    Writ dismissed.
    Charles Recht, of New York City (T. Jefferson Healy, of counsel), for relator
    Francis G. Caffey, U. S. Atty., of New York City (Earl B. Barnes and Theodor Megaarden, Asst. U. S. Attys., both of New York City, of counsel), for respondent.
   KNOX, District Judge.

A careful perusal of this record does not convince me that the conclusion reached herein by the Department of I,abor is so clearly untenable as to warrant me in sustaining the relator’s writ. I realize with regret that I must, in consequence, place myself, with respect to severai important particulars, in disagreement with Judge Anderson, who in Colyer et al. v. Skeffington, as reported in 265 Fed. 17, rendered an elaborate and able opinion to the effect that an alien’s mere membership in the Communist Party of America does not subject him to deportation.

Notwithstanding, I am of opinion that the manifesto and programme of the Communist Party, together with other exhibits in the case, are of such character as to easily lead a reasonable man to conclude that the purpose of the Communist Party is to accomplish its end, namely, the capture and destruction of the state, as now constituted, by force and violence. Since the party has seen fit to use words of general application, which in their popular and ordinary sense may fairly import, and which are appropriate to the use of, force and violence, and which have been found to have that meaning, there is no obligation upon the court to refine and construe the language so as to , reach a different result. If force and violence be not within the contemplation of the party, it would be a simple matter to have the absence of such thought clearly appear. As it is, the language 'used would seem designed to mean all things to all men, and to be fairly susceptible of meaning, even though it does not unequivocally declare in favor of, force and violence. The manifesto asserts that there is at the present time a—

“tendency of the workers to start mass strikes — strikes which are equally a revolt against the bureaucracy of the unions and the capitalists. The Communist Party will endeavor to broaden and deepen these strikes, making them general and militant, developing the general political strike. The Communist Party accepts as the basis of its action the mass struggles of the proletariat, engaging directly in these struggles and emphasizing their revolutionary implications.”

Under the head “Political Action,” the following statements appear:

“The proletarian class struggle is essentially a political struggle. It is a political struggle in’ the sense that its objective is political — the overthrow of the political organizations upon which capitalist exploitation depends, and the introduction of a proletarian state power. The objective is the conquest by the proletariat of the power of the state. Communism does not propose to ‘capture’ the bourgeois parliamentary state, but to conquer and destroy it. As long as the bourgeois state prevails, the capitalist class can baffle the will of the proletariat. * * * The conquest of the power of the state is accomplished by the mass power of the proletariat. Political mass strikes are a vital factor in developing this mass power, preparing the working class for the conquest of capitalism. The power of the proletariat lies fundamentally in its control of the industrial process. The mobilizing of this control against capitalism means the initial form of the revolutionary mass action that will conquer the power of the state.”

The party, according to its programme, thinks it necessary that the proletariat organize its own state for the coercion and suppression of the bourgeois state. Part of the programme of the party is as follows:

“The Communist Party is the conscious expression of the class struggle of the workers against capitalism. Its aim is to direct this struggle to the conquest of political power, the overthrow of capitalism and the destruction of the bourgeois state. The Communist Party prepares itself for the revolution in the measure that it develops a program of immediate action, expressing the mass struggles of the proletariat. These struggles must be inspired with revolutionary spirit and purposes. The Communist Party is fundamentally a party of action. It brings to the workers a consciousness of their oppression, of the impossibility of improving their conditions under capitalism. The Communist Party directs the workers’ struggle against capitalism, developing fuller forms and purposes in this struggle, culminating in the mass action of the revolution.”

In the application of the Communist Party for membership in the executive committee of the Communist International, the international secretary of the Communist Party of America uses this language:

“The Communist Party realizes the immensity of its task. It realizes that the final struggle of the Communist Proletariat will be waged in the United States, our conquest of power assuring the world Soviet Republic. Realizing all this, the Communist Party prepares for the struggle. Long live the Communist International! Long live the World Revolution!”

The manifesto of the Communist International indicates “The Way of Victory” as follows:

“The revolutionary era compels the proletariat to make use of the means of battle which will concentrate its entire energies, namely, mass action, with its logical resultant, direct conflict with the governmental machinery in open combat. All other methods, such as revolutionary use of bourgeois parlia-mentarianism, will be of only secondary importance.”

The same manifesto of the Communist International says that—

“Seizure of political power by the proletariat means destruction of the political power of the bourgeoisie.”

It continues:

“The organized power of the bourgeoisie is in the civil state, with its capitalistic army under the control of bourgeois junker officers, its police and gendarmes, jailers and judges, its priests, government officials, etc. Conquest of the political power means not merely a change in the personnel of ministries, but annihilation of the enemy’s apparatus of government; disarmament of the bourgeoisie, of the counter-revolutionary officers, of the White Guard; arming of the proletariat, the revolutionary soldiers, the Bed Guard of workingmen ; displacement of all bourgeois judges and organization of proletarian courts; elimination of control by reactionary government officials and substitution of new organs of management of the proletariat. Victory of the proletariat consists in shattering the enemy’s organization and organizing the proletarian power; in the destruction of the bourgeois and upbuilding of the proletarian state apparatus. Not until the proletariat has achieved this victory and broken the resistance of the bourgeoisie can the former enemies of the new order be made useful, by bringing them under the control of the communist system and gradually bringing them into accord with its work.”

The relator says that the Communist Party of America programme is in accord with that of the Third International. It says that each country shall adopt the methods that are best possible to obtain political power. It does not bind itself to an international agreement so far as tactics are concerned. The relator’s construction of the paragraph last above quoted is that, when the proletariat has control, it may abolish the organizations of the so-called capitalistic state, and establish in their places those forms which are best possible for proletariat success. It would thus seem to be fairly inferable that the tactics set forth in the manifesto of the first congress of the Communist International, from which the last-mentioned quotation was taken, are in reality in store for us at such time as the communists believe they possess the force to make such tactics successful.

It is only fair to the relator to quote the following words from his examination:

“Q. What do you mean by ‘open combat’? A. As I am doing hero. I am using all legal means to protect myself.
“Q. Do you believe that ‘open combat’ means conflict at arms? A. No; that is ridiculous.”

The difficulty with this denial, so far as the present proceeding is concerned, is that it is not the interpretation of the relator which is to control the decision, but the interpretation which may fairly be placed upon the entire record by those who^ are charged with the duty of determining the purpose and object of the Communist Party.

It is suggested by counsel for the relator that communism, an abstract human idealism, is on trial in this proceeding. With such statement I cannot agree. With the theory of communism this court, while thoroughly disagreeing therewith, has, for present purposes, no fault to find with those who entertain a belief in its principles and who seek by legitimate means to bring it about. If those who support the Communist Party in its present declaration of principles hope for success — and I must assume that they have such hope — I cannot do otherwise than conclude that they must contemplate the employment of force and violence. In other words, I am unable to perceive how the expropriation of private property can be accomplished'without the employment of forbidden instrumentalities. I say this because of the fact that up to the time of the capture and destruction of the present government its officers will be, as they now are, charged with the protection of property rights, and I cannot imagine that such officers and those whose property the Communists hope to take, will meekly capitulate the moment the Communists demand a transference to them of all such rights. Should such a transfer be demanded and refused, could it for a moment be supposed that the Communists, if they considered their strength sufficient, would hesitate and seek peaceful means of persuasion? It seems to me that they would unquestionably exert whatever coercion and employ whatever force and violence was necessary to the achievement of their success.

It may, of course, be suggested that some regard should be had for the imminence of such a possibility, and I am free to say that from the party’s organization, as appears in the record, such possibility is not of the immediate future. The act of Congress, however, under which this proceeding was instituted, provides for the deportation of aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force and violence of the government of the United States. It will thus be observed that the question here is not one of degrees of imminence of overthrow by force and violence, but rather whether that is the ultimate purpose of the organization.

Counsel for the relator in his brief makes this statement:

“We are opposed to violence. We dread it. We hope to end all wars, all greed, all carnage. We are in that sense pacifists, if you please; but we are no fools. We know our history, and we know the temper of the ruling classes. There shall, there unfortunately will, be violence. We shall not invite it. If we must meet it on the road to our goal, we shall not avoid it. But we are no more advocating or preaching violence than the policeman who is setting out to recover fortunes stolen from their rightful owners by a band of armed pirates.”

With counsel’s concluding statement I must disagree. In what precedes, however, he has, I think, clearly set forth what, if need be, will be, and to that extent concedes that which the Department of Labor held to be contemplated by and fairly inferable from the party’s purpose and platform.

I shall dismiss the writ. I will, however, stay relator’s disposition, and admit him to bail, pending an appeal from the order to be entered herein.  