COMMONWEALTH vs. MARGARET GILBERT (and a companion case against the same defendant).

QUA, C.J. Decision in these cases and in the case of Commonwealth v. Hood, post, 76, also decided this day, has been withheld until now because of the pendency before the Supreme Court of the United States of the case of Pennsylvania v. Nelson and our expectation that the decision

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in that case would throw light upon the action we should take in our Gilbert and Hood cases. That expectation has, we think, now been realized by the ruling of the Supreme Court in Pennsylvania v. Nelson, 350 U.S. 497, the opinion in which is dated April 2 of this year.

Both of the indictments now before us were returned by the grand jury in September, 1951. They are similar in form except as presently to be indicated. They charge the defendant and another person who, so far as appears, has not yet been brought before the court and whose name is not disclosed by the record with conspiring with two other named persons "to advocate, advise, counsel and incite the overthrow by force and violence of the government of . . . [first indictment, the Commonwealth of Massachusetts; second indictment, the United States of America] by speech, exhibition, distribution and promulgation of certain written and printed documents, papers and pictorial representations." Both indictments seem to have been framed to charge conspiracy to violate G. L. (Ter. Ed.) c. 264, Section 11, as appearing in St. 1948, c. 160, Section 1, [Note 1] which defines crimes substantially in the terms of these indictments. If, however, as has been suggested in argument, these indictments should be regarded as indictments for conspiracy to commit common law offences, the result of the cases would be the same, and

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we therefore forbear discussion as to whether there is still a common law crime of sedition of the type charged.

Both cases are reported to us by a judge of the Superior Court before trial and without any rulings by him on the questions of law involved. G. L. (Ter. Ed.) c. 278, Section 30A, inserted by St. 1954, c. 528.

We deal first with the indictment charging a conspiracy directed against this Commonwealth. In Pennsylvania v. Nelson, 350 U.S. 497, the defendant had been convicted under the Pennsylvania statute only with respect to sedition against the United States and not with respect to sedition against the State. Commonwealth v. Nelson, 377 Pa. 58. The Pennsylvania statute, like our own, attempted to deal with sedition directed against the nation as well as with sedition directed against the State. The Supreme Court of the United States at the outset of its opinion stated in effect that all that was before it for review was the precise holding of the Supreme Court of Pennsylvania. The reasoning of the opinion, however, seems to us to carry implications beyond the case of a State prosecuting for sedition against the United States and in substance to decide that the Smith act, now U. S. C. (1952 ed.) Title 18, Section 2385, taken in connection with the general criminal conspiracy provisions of U. S. C. (1952 ed.) Title 18, Section 371, the internal security act of 1950, U. S. C. (1952 ed.) Sup. II, Title 50, Sections 781 et seq., and the communist control act of 1954, 68 U.S. Sts. at Large, 775, indicates an intent on the part of Congress to occupy exclusively the field of sedition at least where the offence charged is a Federal crime of the type of that charged in that case, even though alleged as a conspiracy against the State. It would serve no purpose to recite the reasoning of the Supreme Court here further than to remark that it rests upon three principal grounds, (1) that "[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," (2) that "the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same

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subject," and (3) that enforcement of the State sedition acts "presents a serious danger of conflict with the administration of the federal program."

Apparently the Supreme Court found all three grounds present in the Pennsylvania case. We think that court would find the same three grounds present in the first of the cases now before us, whether the indictment is laid upon that part of G. L. (Ter. Ed.) c. 264, Section 11, relating to the overthrow of government by force and violence or upon some principle of the common law proscribing the same conduct. The indictment charges the defendant here with substantially the same acts as those forbidden by that part of the Pennsylvania statute involved in the decision of the Supreme Court. The record before us discloses the indictment in the terms hereinbefore described, a very elaborate motion for a bill of particulars and in reply thereto the specifications of what the Commonwealth would attempt to prove against the defendant, if the case went to trial. These include membership in the Communist Party, advocacy of the principles of Marxism-Leninism and of violent overthrow of the government of the Commonwealth, the holding of "cell meetings" and "secret pro-cell" meetings to study and promulgate communist literature and the methods to be used for the victory of communism, including the idea that the working class must shatter the State machinery, that the party seize control, destroy parliamentary government, and establish the dictatorship of the proletariat, and to learn the technique and methods for violent revolution. It is alleged that at such meetings a coconspirator would advocate that the workers of the United States must be armed to carry out an armed revolt in the United States, that the government should be overthrown by force to establish the dictatorship of the proletariat, and that the defendant was to assist in raising money to further the objects of the Communist Party. Although all these things and more in the same line are specified as pertaining to the conspiracy to overthrow the government of this Commonwealth, it is evident that they are the familiar paraphernalia

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of communist agitation for the overthrow of government in general, and cannot be directed separately and exclusively against the government of this Commonwealth. They fall within the purview of the Smith act which by its terms is directed against propaganda for the overthrow not only of the government of the United States, but of the government of the States as well. If the field in which was set the indictment in Pennsylvania v. Nelson has been exclusively occupied by the Federal government, it seems an inescapable deduction that the present indictment also invades the exclusive Federal field.

We do not wish to be understood as saying that there can never be any instance of any kind of sedition directed so exclusively against the State as to fall outside the sweep of Pennsylvania v. Nelson. If it is to be said that there can never be such an instance, it must be said elsewhere. We now say as to this first case that the nature of the accusation as disclosed by the indictment and the specifications seems to us to bring it within the scope of that decision.

The second case, in which the indictment and the specifications are substantially the same, except that the conspiracy is alleged to be to advocate the overthrow by force and violence of the government of the United States, is even more clearly within the authority of Pennsylvania v. Nelson, where the evidence pointed only toward sedition against the United States.

In each case the defendant's motion to quash the indictment must be allowed.

So ordered.