whether it has not

will consider whether it contains a fair discussion a manifest tendency to create disaffection in the country and prevent men enlisting into the army whether it does not tend to induce the soldier to desert from the service of his country. And what considerations can be more awful than these? . .

"The House of Parliament is the proper place for the discussion of subjects of this nature It is said that we have a right to discuss the acts of our legislature. That would be a large permission indeed. Is there, gentlemen, to be a power in the people to counteract the acts of the parliament, and is the libeller to come and make the people dissatisfied with the government under which he lives? This is not to be permitted to any man, it is unconstitutional and seditious."

The same desire to nip revolution in the bud was shown by the Scotch judges who secured the conviction of Muir and Palmer for advocating reform of the rotten boroughs which chose the House of Commons and the extension of the franchise, sentences of transportation for seven and fourteen years being imposed.6

"The right of universal suffrage, the subjects of this country never enjoyed; and were they to enjoy it, they would not long enjoy either liberty or a free constitution. You will, therefore, consider whether telling the people that they have a just right . . . to a total subversion of this constitution, is such a writing as any person is entitled to compose, to print, and to publish.”

In the light of such prosecutions it is plain that the most vital indication that the popular definition of liberty of the press, unpunishable. criticism of officials and laws, has become a reality, is the disappearance of these doctrines of bad tendency and presumptive intent. In Great Britain they lingered until liberalism triumphed in 1832, but in this country they disappeared with the adoption of the free speech clauses. The French press law no longer recognizes indirect provocation to crime as an offence.63

62 2 MAY, CONSTITUTIONAL HISTORY, 38-41, on the trials of Muir and Palmer. Fourteen years appears to have been the longest sentence for sedition imposed in Scotland during the French wars. Four years was the longest in England. See note 120, infra, for sentences under the Espionage Act.

63 A. ESMEIN, ÉLÉMENTS DE DROIT CONSTITUTIONNEL, 6 ed. 1145, 1149; Ernst Freund in 19 NEW REPUBLIC 14 (May 3, 1919). The crime of délit d'opinion no longer exists. Under the Republic one can lawfully express monarchical opinions and attack the Constitution. Formerly, indirect incitement was unlawful. During the reaction after the assassination of the Duc de Berry, the law allowed procès de tendance, by which a newspaper could be suppressed if "l'esprit résultant d'une succession d'arti

The revival of those doctrines is a sure symptom of an attack upon the liberty of the press.

Only once in our history prior to 1917 has an attempt been made to apply those doctrines. In 1798 the impending war with France, the spread of revolutionary doctrines by foreigners in our midst, and the spectacle of the disastrous operation of those doctrines abroad, 64- facts that have a familiar sound to-day-led to the enactment of the Alien and Sedition Laws.65 The Alien Law allowed the President to compel the departure of aliens whom he judged dangerous to the peace and safety of the United States, or suspected, on reasonable grounds, of treasonable or secret machinations against our government. The Sedition Law punished false, scandalous, and malicious writings against the government, either House of Congress, or the President, if published with intent to defame any of them, or to excite against them the hatred of the people, or to stir up sedition or to excite resistance of law, or to aid any hostile designs of any foreign nation against the United States. The maximum penalty was a fine of two thousand dollars and two years' imprisonment. Truth was a defense, and the jury had power to determine criminality as under Fox's Libel Act. Despite the inclusion of the two legal rules for which reformers had contended, and the requirement of an actual intention to cause overt injury, the Sedition Act was bitterly resented as invading the liberty of the press. Its constitutionality was assailed on that ground by Jefferson, who pardoned all prisoners when he became President,66 and popular indignation at the Act and the prosecutions wrecked the Federalist party. In those prosecutions words were once more cles serait de nature à porter atteinte à la paix publique." — In the same way the New York post-office objected to the general tenor and animus of the Masses as seditious without specifying any particular portion as objectionable, although the periodical offered to excerpt any matter so pointed out. Masses Pub. Co. v. Patten, 244 Fed. 535, 536, 543 (1917).

64 Events leading up to these statutes are narrated in the standard histories and also in FRANCIS WHARTON, STATE TRIALS OF THE UNITED STATES, 23.

65 Act of June 25, 1798, I STAT. AT L., 570; Act of July 14, 1798, I STAT. AT L., 596. 66 For references to the Sedition Act in Jefferson's letters, see the edition of PAUL LEICESTER FORD, VII, 245: "The object of that, [the bill] is the suppression of the whig presses; VII, 246; VII, 266, on unconstitutionality; VII, 283, "The alien and sedition laws are working hard;" VII, 289, 311, 336, 350, 354, 355, 356, on popular opposition to the acts; VII, 367, 371, 483, on continuation of Sedition Law by Congress; VIII, 54, 56 ff., 308 f., on unconstitutionality and pardons; IX, 456, on dismissal of prosecutions.

made punishable for their judicially supposed bad tendency, and the judges reduced the test of intent to a fiction by inferring the bad intent from this bad tendency.67 Whether or not the Sedition Act was unconstitutional, and on that question Jefferson seems right, it surely defeated the fundamental policy of the First Amendment, the open discussion of public affairs. Like the British trials, the American sedition cases showed, as Professor Schofield demonstrates,68 "the great danger . . . that men will be fined and imprisoned, under the guise of being punished for their bad motives or bad intent and ends, simply because the powers that be do not agree with their opinions, and spokesmen of minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of the protection of the law against a hostile, arrogant majority." When the Democrats got into power, a common-law prosecution for seditious libel was brought in New York against a Federalist who had attacked Jefferson. Hamilton conducted the defense in the name of the liberty of the press.69 This testimony from Jefferson and Hamilton, the leaders of both parties, leaves the Blackstonian interpretation of free speech in America without a leg to stand on. And the brief attempt of Congress and the Federalist judges to revive the crime of sedition had proved so disastrous that it was not repeated during the next century.

The lesson of the prosecutions for sedition in Great Britain and the United States during this revolutionary period, that the most essential element of free speech is the rejection of bad tendency as the test of a criminal utterance, was never more clearly recognized than in Jefferson's preamble to the Virginia Act for estab

67 Schofield, 9 PROC. AM. SOCIOL. Soc. 86. The four reported prosecutions are in WHARTON'S STATE TRIALS, Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800).

68 Schofield, op. cit., 91, and 92, note.

69 People v. Croswell, 3 Johns. Cas. 337 (1804). New York had then no constitutional guarantee of liberty of the press, but Hamilton urged that under that right at common law truth was a defense and the jury could decide on criminality. He defined liberty of the press as "The right to publish, with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals." See Schofield, op. cit., 89 ff., for criticism of this definition as not in the common law and as too narrow a definition of the conception of free speech. However, it is embodied in many state constitutions and statutes. Two out of four judges agreed with Hamilton.

lishing Religious Freedom.70 His words about religious liberty hold good of political and speculative freedom, and the portrayal of human life in every form of art.

"To suffer the civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own;"

Although the free speech clauses were directed primarily against the sedition prosecutions of the immediate past, it must not be thought that they would permit unlimited previous restraint. They must also be interpreted in the light of more remote history. The framers of those clauses did not invent the conception of freedom of speech as a result of their own experience of the last few years. The idea had been gradually molded in men's minds by centuries of conflict. It was the product of a people of whom the framers were merely the mouthpiece. Its significance was not fixed by their personality, but was the endless expression of a civilization." It was formed out of past resentment against the royal control of the press under the Tudors, against the Star Chamber and the pillory, against the Parliamentary censorship which Milton condemned in his "Areopagitica," by recollections of heavy newspaper taxation, by hatred of the suppression of thought which went on vigorously on the Continent during the eighteenth century. Blackstone's views also had undoubted influence to bar out previous restraint. The censor is the most dangerous of all the enemies of liberty of the press, and cannot exist in this country unless made necessary by extraordinary perils.

Moreover, the meaning of the First Amendment did not crystallize in 1791. The framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but

70 Act of December 26, 1785, 12 HENING'S STATUTES AT LARGE OF VIRGINIA (1823), c. 34, page 84. I REVISED CODE OF VIRGINIA (1803), c. 20, page 29.

Another excellent argument against the punishment of tendencies is found in PHILIP FURNEAUX, LETTERS TO BLACKSTONE, 2 ed., 60-63, London, 1771; quoted in State v. Chandler, 2 Harr. (Del.) 553, 576 (1837), and in part by Schofield, op. cit., 77. 71 I KOHLER, LEHRBUCH DES BURGERLICHEN RECHTS, § 38.

"liberty of speech" is no more confined to the speech they thought permissible than "commerce" in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787. Into the making of the constitutional conception of free speech have gone, not only men's bitter experience of the censorship and sedition prosecutions before 1791, but also the subsequent development of the law of fair comment in civil defamation,72 and the philosophical speculations of John Stuart Mill. Justice Holmes phrases the thought with even more than his habitual felicity." "The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil."

It is now clear that the First Amendment fixes limits upon the power of Congress to restrict speech either by a censorship or by a criminal statute, and if the Espionage Act exceeds those limits it is unconstitutional. It is sometimes argued that the Constitution gives Congress the power to declare war, raise armies, and support a navy, that one provision of the Constitution cannot be used to break down another provision, and consequently freedom of speech cannot be invoked to break down the war power.74 I would reply that the First Amendment is just as much a part of the Constitution as the war clauses, and that it is equally accurate to say that the war clauses cannot be invoked to break down freedom of speech. The truth is that all provisions of the Constitution must be construed together so as to limit each other. In war as in peace, this process of mutual adjustment must include the Bill of Rights. There are those who believe that the Bill of Rights can be set aside in war time at the uncontrolled will of the government.75 The first ten amendments were drafted by men who had just been through a war. Two of these amendments expressly apply in war.76 A majority of the Supreme Court declared the war power of Congress to

72 Schofield, op. cit., is valuable on the relation of fair comment to free speech. See also Van Vechten Veeder, "Freedom of Public Discussion," 23 HARV. L. REV. 413 (1910).

73 Gompers v. United States, 233 U. S. 604, 610 (1914).

74 United States v. Marie Equi, BULL. Dept. Just., No. 172, 21 (Ore., 1918), Bean, J. 75 Henry J. Fletcher, "The Civilian and the War Power," 2 MINN. L. REV. 110, expresses this view. See also Ambrose Tighe, "The Legal Theory of the Minnesota 'Safety Commission' Act," 3 MINN. L. REV. I.

76 Amendments III and V.