servants of the people, who may therefore find fault with their servants and discuss questions of their punishment or dismissal.

Under the first view, which was officially accepted until the close of the eighteenth century, developed the law of seditious libel. This is defined as "the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law."46 There was no need to prove any intention on the part of the defendant to produce disaffection or excite an insurrection. It was enough if he intended to publish the blame, because it was unlawful in him merely to find fault with his masters and betters. Such, in the opinion of the best authorities, was the common law of sedition.47

It is obvious that under this law liberty of the press was nothing more than absence of the censorship, as Blackstone said. All through the eighteenth century, however, there existed beside this definite legal meaning of liberty of the press, a definite popular meaning: the right of unrestricted discussion of public affairs. There can be no doubt that this was in a general way what freedom of speech meant to the framers of the Constitution. As Schofield says, "One of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press. Liberty of the press as declared in the First Amendment, and the English common-law crime of sedition, cannot co-exist."48 I must therefore strongly dissent, as would Professor Schofield, from the conclusion of Dean Vance in a recent article on the Espionage Act, that the founders of our government merely intended by the First Amendment "to limit the new government's statutory powers to penalize utterances as seditious, to those which were seditious under the then accepted common-law rule." 49 The founders had seen seventy English prosecutions for libel since 1760, and fifty convictions under that common-law rule, which made conviction easy.50 That rule had been detested in this country ever since it was repudiated by jury and populace in the famous trial of Peter Zenger,

46 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 353.

47 Ibid., 353, and Chap. XXIV, passim; Schofield, in 9 PROC. AM. SOCIOL. SOC., 70 ƒƒ., gives an excellent summary with especial reference to American conditions.

48 Schofield, Ibid., 76, 87.

49 W. R. Vance, in "Freedom of Speech and of the Press," 2 MINN. L. REV. 239, 259. 50 2 MAY, CONSTITUTIONAL HISTORY OF ENGLAND, 2 ed., 9, note.

the New York printer, the account of which went through fourteen editions before 1791.51 Nor was this the only colonial sedition prosecution under the common law, and many more were threatened.52 The First Amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.

It must not be forgotten that the controversy over liberty of the press was a conflict between two views of government, that the law of sedition was a product of the view that the government was master, and that the American Revolution transformed into a working reality the second view that the government was servant, and therefore subjected to blame from its master, the people. Consequently, the words of Sir James Fitzjames Stephen about this second view have a vital application to American law.53

"To those who hold this view fully and carry it out to all its consequences there can be no such offence as sedition. There may indeed be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitements to such offences, but no imaginable censure of the government, short of a censure which has an immediate tendency to produce such a breach of the peace, ought to be regarded as criminal."

The repudiation by the Constitutions of the English common law of sedition, which was also the common law of the American colonies,

51 17 How. ST. TR. 675 (1735). The fullest account of Zenger and the trial is given by LIVINGSTON RUTHERFORD, John Peter Zenger, New York, 1904. Rutherford's bibliography lists thirteen editions of the account of the trial before 1781. The Harvard Law School Library contains four of these (London, 1738; London, 1752; London, 1765; New York, 1770), and also an undated copy without specified place differing from any listed by Rutherford. See also the life of Zenger's counsel, Andrew Hamilton, by William Henry Loyd, in I GREAT AMERICAN LAWYERS, 1. The close relation between the Zenger trial and the prosecutions under George III in England and America is shown by the quotations on reprints of the trial and the dedication of the 1784 London edition to Erskine.

52 C. A. DUNIWAY, FREEDOM OF THE PRESS IN MASSACHUSETTS, 91, 93, 115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the grand jury on Blackstonian lines, "This Liberty means no more than a Freedom for every Thing to pass from the Press without a License." Ibid., 125.

53 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 300. The italics are mine. See also Schofield, 9 PROC. AM. SOCIOL. Soc. 75.

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has been somewhat obscured by judicial retention of the two technical incidents of the old law after the adoption of the free speech clauses. Many judges, rightly or wrongly, continued to pass on the criminality of the writing and to reject its truth as a defense,54 until statutes or new constitutional provisions embodying the popular view on these two points were enacted.55 Doubtless, a jury will protect a popular attack on the government better than a judge, and the admission of truth as a defense lessens the evils of suppression. These changes help to substitute the modern view of rulers for the old view, but they are not essential. Sedition prosecutions went on with shameful severity in England after Fox's Libel Act 56 had given the jury power to determine criminality. The American Sedition Act of 1798,57 which President Wilson declares to have "cut perilously near the root of freedom of speech and of the press," 58 entrusted criminality to the jury and admitted truth as a defense. On the other hand, freedom of speech might exist without these two technical safeguards. The essential question is not, who is judge of the criminality of an utterance, but what is the test of its criminality. The common law and the Sedition Act of 1798 made the test blame of the government and its officials, because to bring them into disrepute tended to overthrow the state. The real issue in every free-speech controversy is this - whether the state can punish all words which have some tendency, however remote, to bring about acts in violation of law, or only words which directly incite to acts in violation of law.

If words do not become criminal until they have an immediate tendency to produce a breach of the peace, there is no need for a law of sedition, since the ordinary standards of criminal solicitation and attempt apply. Under those standards the words must bring the speaker's unlawful intention reasonably near to success. Such a limited power to punish utterances rarely satisfies the zealous in times of excitement like a war. They realize that all condemnation

54 DUNIWAY, supra, Chap. IX; Commonwealth v. Clap, 4 Mass. 163 (1808); Commonwealth v. Blanding, 3 Pick. (Mass.) 304 (1825).

55 Examples are: PA. CONS. 1790, Art. 9, § 7; N. Y. SESSION Laws, 1805, c. 90; N. Y. CONS., 1822, Art. VII, § 8; Mass. Laws, 1827, c. 107. See Schofield, op. cit., 95-99.

56 32 GEO. III, c. 60 (1792).

57 I STAT. AT L., c. 74, 596, Act of July 14, 1798.

WOODROW WILSON, HISTORY OF THE AMERICAN PEOPLE, 153.

of the war or of conscription may conceivably lead to active resistance or insubordination. Is it not better to kill the serpent in the egg? All writings that have a tendency to hinder the war must be suppressed.

Such has always been the argument of the opponents of free speech. And the most powerful weapon in their hand, since the abolition of the censorship, is this doctrine of indirect causation, under which words can be punished for a supposed bad tendency long before there is any probability that they will break out into unlawful acts. Closely related to it is the doctrine of constructive intent, which regards the intent of the defendant to cause violence as immaterial so long as he intended to write the words, or else presumes the violent intent from the bad tendency of the words on the ground that a man is presumed to intend the consequences of his acts. When rulers are allowed to possess these weapons, they can by the imposition of severe sentences create an ex post facto censorship of the press. The transference of that censorship from the judge to the jury is indeed important when the attack on the government which is prosecuted expresses a widespread popular sentiment, but the right to jury trial is of much less value in times of war or threatened disorder when the herd instinct runs strong, if the opinion of the defendant is highly objectionable to the majority of the population, or even to the particular class of men from whom or by whom the jury are drawn.59 It is worth our frank consideration, whether in a country where the doctrine of indirect causation. is recognized by the courts twelve small property holders, who have been through an uninterrupted series of patriotic campaigns and are sufficiently middle-aged to be in no personal danger of compulsory military service, are fitted to decide whether there is a tendency to obstruct the draft in the writings of a pacifist, who also happens to be a socialist and in sympathy with the Russian Revolution.600

59 "Under Charles II. [trial by jury] was a blind and cruel system. During part of the reign of George III. it was, to say the least, quite as severe as the severest judge without a jury could have been. The revolutionary tribunal during the Reign of Terror tried by a jury." I STEPHEN, HISTORY OF THE CRIMINAL LAW, 569.

60 "As to the jury . . . they were about seventy-two years old, worth fifty to sixty thousand dollars, retired from business, from pleasure, and from responsibility for all troubles arising outside of their own family. An investigator for the defense computed the average age of the entire venire of 100 men; it was seventy years. Their average wealth was over $50,000. In the jury finally chosen every man was a retired farmer or

This, however, is perhaps a problem for the psychologist rather than the lawyer.

The manner in which juries in time of excitement may be used to suppress writings in opposition to the government, if bad tendency is recognized as a test of criminality, is illustrated by the numerous British sedition trials during the French Revolution. These were after the passage of Fox's Libel Act. For instance, John Drakard was convicted for printing an article on the shameful amount of flogging in the army, under a charge in which Baron Wood emphasized the formidable foe with whom England was fighting, and the general belief that Napoleon was using the British press to carry out his purpose of securing her downfall.61

"It is to be feared, there are in this country many who are endeavoring to aid and assist him in his projects, by crying down the establishment of the country, and breeding hatred against the government. Whether that is the source from whence the paper in question springs, I cannot say, but I advise you to consider whether it has not that tendency. You a retired merchant, but one, who was a contractor still active. They were none of them native to leisure, however, but men whose faces were bitterly worn and wearied out of all sympathy with a struggle they had individually surmounted." Max Eastman, "The Trial of Eugene Debs,” 1 LIBERATOR, No. 9 (November, 1918), 9. This statement is, of course, by a friend of Debs, but if accurate, makes the method of jury selection a serious problem in the prosecution of radicals.

The charge of Mayer, J., in United States v. Phillips, BULL. DEPT. JUST., No. 14, was so favorable to the defendant that, I am informed by an eyewitness, an acquittal was generally expected in the court-room, but the defendants were convicted.

Another significant fact in sedition prosecutions is the well-known probability that juries will acquit, after the excitement is over, for words used during the excitement, which are as bad in their tendency as other writings prosecuted and severely punished during the critical period. This was very noticeable during the reign of George III. It is also interesting to find two juries in different parts of the country differing as to the criminal character of similar publications or even the same publication. Thus Leigh Hunt was acquitted for writing an article for the printing of which Drakard was convicted. See note 61, infra. The acquittal of Scott Nearing and the conviction by the same jury of the American Socialist Society for publishing his book form an interesting parallel. Mayer, J., has decided that there is not such inconsistency in the two verdicts as to warrant a new trial. BULL. DEPT. JUST., No. 198. 61 31 How. ST. TR. 495, 535 (1811). Leigh Hunt was acquitted for writing the same article. Lord Ellenborough charged, 31 How. ST. TR. 367, 408, 413 (1811), “Can you conceive that the exhibition of the words 'One Thousand Lashes,' with strokes underneath to attract attention, could be for any other purpose than to excite disaffection? Could it have any other tendency than that of preventing men from entering into the army?" Compare with these two charges that of Van Valkenburgh, J., in United States v. Rose Pastor Stokes, BULL. Dept. Just., No. 106 (W. D. Mo., 1917), 985, infra.