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.60

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," I 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,

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.62

"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.

64

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, 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, 1 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 ff., 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 .. ,68 "the great danger . . . that men will be fined and im

prisoned, 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.