VI
The pluralistic approach to loyalty is, however,
hardly representative in the world of the twentieth
century; and in the United States, it is a fact honored
both in the observance and in the breach.
Allegiance was defined by Blackstone as the tie
which binds every subject to be true and faithful to his
sovereign, in return for that protection which is afforded
him; and truth and faith to bear of life and limb, and earthly
honor; and not to know or hear of any ill intended him,
without defending him therefrom
(Commentaries on the
Laws of England [1765-69], Book IV, Ch. 1).
Blackstone noted that treason was a general term used
by the law to denote not only offenses against the king
or the government but also an act of disloyalty even
as between private persons, between whom there is
a natural, a civil, or even a spiritual relation. He cited
as examples a wife killing her husband, a servant killing
his master: “these, being breaches of the lower alle-
giance, of private and domestic faith, 'were formerly'
denominated
petit treason. But when disloyalty so
rears its crest, as to attack even majesty itself, it is
called by way of eminent distinction,
high treason...”
(ibid.). Blackstone found that the common law knew
seven kinds of high treason. One kind was to “compass
or imagine” the death of the king, or of his queen,
or of their heir. Written or printed words could be
compassing the death of the sovereign and constituted
an overt act sufficient to be treason. By statute of
George III, the use of any words to excite people to
hatred and contempt of the king or “government and
constitution” was made a high misdemeanor. Laws and
prosecutions were especially directed at words which
may have a “tendency” to cause disloyalty among men
in the armed forces. The “bad tendency” doctrine as
applied to publications and speech lingered in Great
Britain until 1832.
In the United States the bad tendency doctrine was
supposed to have disappeared with the adoption of the
First Amendment in 1791. Yet in 1798 Congress
enacted the infamous Alien and Sedition Laws, which
punished false, scandalous, and malicious writings
against the government, Congress, or the President, if
published with intent to defame, or to excite hatred
against them, or to stir up sedition. Jefferson attacked
these laws as unconstitutional, and when he took office
as President in 1801, pardoned all who were prisoners
under these laws.
The two world wars revived the spirit, if not the
letter, of these laws and of the common law doctrines
of treason and sedition. The Espionage Act of 1917
made it an offense to attempt to cause “disloyalty”
in the armed forces, and the Sedition Act of 1918 made
it a crime to utter or publish any disloyal language
intended to cause contempt for the American form of
government, or the Constitution, or the flag, or the
uniform of the Army or Navy. The latter act was
officially defended on the ground that without it loyal
people would take matters into their own hands and
punish persons for making disloyal remarks—men had
to be sent to prison for terms of many years in order
to protect them from mob violence! Some school
boards and state legislatures prohibited the teaching
of the German language—in the interests of Ameri-
canism and loyalty; and school textbooks were carefully
screened by censors charged with the duty to expose
disloyal utterances. As Attorney General from 1919 to
1921, Alexander Mitchell Palmer became notorious for
the so-called Palmer Raids, which involved zealous
prosecutions of persons, especially aliens, suspected of
disloyalty. Socialists lost their elected seats in the New
York State Legislature during World War I. There was
also eager prosecution under state laws—it is estimated
that in 1919-20 some three hundred persons were
imprisoned for violation of state sedition and syndical-
ist statutes (R. K. Murray, p. 234).
The record for the period of World War II was not
as grim. Under federal anticommunist laws in effect
since 1940, twenty-nine communists went to prison as
co-conspirators to violate the Smith Act of 1940, and
only one went to prison as a member of the party.
Many laws were used against the party, but an equally
great armory of legal defenses was used to protect
it and its leaders and members.
The most shocking action was taken against 112,000
Japanese-Americans, two-thirds of them American citi-
zens (Nisei), living in the Pacific coast states, who were
taken from their homes under an evacuation order in
1942, though no person of Japanese descent had been
charged with any disloyal act.
The Korean War (1950-53) was, however, largely
coincidental with the so-called McCarthy period
(1950-54), when the search for persons suspected of
disloyal intentions became a witch-hunt, which seemed
to revive the common law idea that it was treasonable
merely to “compass or imagine” an act against Ameri-
can interests or institutions, or what Senator Joseph
R. McCarthy construed as a disloyal subversive,
communist, or un-American act. In addition to con-
ventional criminal law prosecutions, there were federal
and state hearings, employment security checks, loyalty
oaths, blacklistings of members of “front” orga-
nizations, legislative enactments, administrative pro-
ceedings (e.g., by the Subversive Activities Control
Board), grand jury investigations, registration require-
ments, listings of organizations—allegedly subversive—
by the Attorney General and the House Un-American
Activities Committee, restrictions on the right to pass-
ports, and prosecutions for perjury and making false
statements or affidavits. The McCarthy period did not
generate an intensified patriotic fervor; it generated
mutual suspicions which affected obscure men and
persons holding the highest positions and rocked
churches no less than labor unions.
While relaxation of tensions between the United
States and the U.S.S.R. and the introduction of plural-
ism into the communist world—polycentrism—have
greatly reduced pressure for sustaining the spirit of
McCarthyism, support for loyalty tests continues, and
the forces behind them score occasional successes as,
for example, the loyalty requirement in the Medicare
Act (1966). Decisions of the Supreme Court of 1966
to 1971 have made enforcement of loyalty oaths and
affidavits well-nigh impossible. The Court's decisions
in cases involving legislative committee hearings, the
Smith Act and other anticommunist statutes, and the
Subversive Activities Control Board have greatly nar-
rowed the range of constitutionally valid legislation
aimed at exposure or punishment of allegedly disloyal
Americans (for cases see Konvitz,
Bill of Rights Reader,
5th ed., 1972, and
First Amendment Freedoms, 1963).
