in a

offense in the cases was committed by publishing or distributing literature that contained unflattering remarks about the motives and justifications for American participation in the war or that covertly or directly encouraged or advised restraint from actions that would aid in its prosecution. In Abrams v. United States18 it was laid down by Mr. Justice Clarke for the majority that the only question before the court was whether "there was some evidence, competent and substantial, before the jury, fairly tending to sustain the verdict.' There was denunciation of the President as vehement as any journal devotedly dedicated to uncomplimentary shafts in that direction. The court, however, refrained from passing on the propriety of the convictions on the counts charging "disloyal, scurriland abusive language about the form of government of the United States," or language "intended to bring that government into contempt, scorn, contumely, and disrepute." Mr. Justice Clarke remarked that "a technical distinction may perhaps be taken between L. REV. 35, Godfrey Goldmark, "The Struggle for Higher Public Utility Rates Because of War-time Costs," 5 CORNELL L. Q. 227, A. Raymond Sanborn, "The Power of the Public Utilities Commissions to Alter Rates," 13 MAINE L. REV. I, and editorial notes in 20 COLUM. L. REV. 704, 5 Iowa L. B. 265, 18 MICH. L. REV. 806, 4 MINN. L. Rev. 526, 68 U. PA. L. REV. 280, and 26 W. Va. L. Q. 67.

ous

For a discussion of United Railroads v. San Francisco, 249 U. S. 517, 39 Sup. Ct. 361 (1919), 14 AM. POL. SCI. Rev. 60, holding that a statute forbidding two railroads to occupy the same street does not enter into a franchise as a promise on the part of the municipal grantor not to compete with the grantee, see 33 Harv. L. Rev. 576, 614. The effect on a contract with a city for reduced fares for workmen of a statute prohibiting discrimination is considered in 29 YALE L. J. 563. The retroactive effect of soldiers' and sailors' relief acts is discussed in 4 MINN. L. Rev. 353; the amendment of statutes of limitation, in 29 YALE L. J. 91; and the retroactive taking away of a right of action for wrongful death in another state, in 33 Harv. L. REV. 727.

"250 U. S. 616, 40 Sup. Ct. 17 (1919). See Zechariah Chafee, Jr., FREZDOM OF SPEECH (New York, Harcourt, Brace and Howe, 1920), Chapter 3, “A Contemporary State Trial", 33 HARV. L. Rev. 747, Edward S. Corwin, "Freedom of Speech and Press Under the First Amendment", 30 YALE L. J. 48, "Constitutional Law in 1919-1920, 14 AM. POL. SCI. Rev. 635, at pp. 655-658, M. G. Wallace, "Constitutionality of Sedition Laws", 6 VA. L. Rev. 385, John H. Wigmore, "Abrams v. United States: Freedom of Speech and Freedom of Thuggery in War-time and Peace-time", 14 ILL. L. REV. 539, and notes in 20 COLUM. L. REV. 90, 33 HARV. L. Rev. 442, 474, 14, ILL. L. REV. 601, 18 MICH. L. Rev. 236, 5 VA. L. Reg. n. s. 715, 29 Yale L. J. 337, and 30 Yale L. J. 68.

month earlier. Here a landowner who sought an injunction against taking earth from his land to repair the highway objected that the statute under which it was done "makes no provision for affording the owner an opportunity to be heard respecting the necessity or expediency of the taking or the compensation to be paid." After remarking that it was conceded that the taking was for a public use and that adequate provision was made for the payment of such compensation as may be awarded, Mr. Justice Van Devanter declares:

"Where the intended use is public, the necessity and expedi ency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment."

With respect to compensation he continues:

"But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial.... And where this mode is adopted due process does not require that a hearing before the viewers be afforded, but is satisfied by the full hearing that may be obtained by exercising the right to appeal."

These requirements were found to be satisfied by the procedure offered by the Virginia statutes. These had not been construed by the state court, but the only question was whether the landowner was sufficiently protected in his chance to get his appeal to the court from the decision of the supervisors on the award of the viewers. Mr. Bragg seemed to fear that his rights might be foreclosed without his knowledge if he were not present when the supervisors decided how much to pay him. But the court found that under such cir cumstances he was to be notified and was entitled to thirty days in which to appeal. It was assumed that if he were actually present at the supervisors' meeting, he had sufficient notice and that thirty days

determination of compensation must precede the actual taking was dismissed by saying:

"But it is settled by the decisions of this court that where adequate provision is made for the certain payment of the compensation without unreasonable delay the taking does not contravene due process of law because it precedes the ascertainment of what compensation is just."

It is to be remembered that Mr. Justice Van Devanter's general statements throughout the opinion are made with reference to an exercise of eminent domain by public, and not by private, authori

ties.

sibly be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow-a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with charges before this Court."

The concluding clause may refer to Mr. Justice Clarke's remark this particular outbreak of lawlessness, on the part of the defendant alien anarchists." That the difference of opinion among

on

the

judges goes back to a difference in fundamental faiths as to what is most important in the process of government is evident from the concluding paragraph of the dissenting opinion. Mr. Justice Holmes reveals not a little of what constitutional interpretation to the fundamental faiths of the judges when he says:

Owes

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. To allow opposition by speeeh seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time. has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against