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and Hamilton prevailed in the early decisions of the Court, and in practice they have been acquiesced in. If, as I have said, the views of Mr. Jefferson and other political philosophers of whom he was the leading exponent, had been represented in the Court in the early days, we might have witnessed a disturbance of the balance of powers between the three departments of the federal government, and between the federal government and the several states. What has given stability to the decisions to the Supreme Court has been the long-continued acquiescence of the people. If they had been at variance with their wishes, the way was open, by amendment, to set them aside.

Here then is the interesting feature of our constitutional government. To say that it has bound us by rigid and unyielding shackles is to fail to consider our political history; for from the foundation of our government in the interpretation of our Constitution powers in the federal government were to be implied—the doctrine of strict construction of its language was rejected from the beginning.

But I have, I think, said enough to show you that there is a field of professional activity in our country of the most majestic character into which lawyers of other countries are rarely asked to enter. Questions of constitutional law arise not alone in the federal courts but under the construction of the constitutions of the forty-eight different states, for each of them imposes limitations similar to those contained in the Federal Constitution, with a result that there is a great volume of so-called constitutional law peculiar to the legal literature of our country. It focuses upon problems of government, and broadly speaking, even upon ques

tions of political policy. And thus, American lawyers are frequently called to exercise qualities of statesmen; and more, therefore, than is common in other countries, are they required to cultivate an interest in public affairs and participate in the councils of government. Of this function of the American lawyer, Mr. Wilson has said:

"For the notable, I had almost said fundamental, circumstance of our political life is that our courts are, under our constitutional system, the means of our political development. Every change in our law, every modification of political practice, must sooner or later pass under their scrutiny. We can go only as fast as the legal habit of mind of our lawyers will permit. Our politics are bound up in the mental character and attitude, and in the intellectual vigor and vision aof our lawyers. Ours is so intensely and characteristically a legal polity that our politics depend upon our lawyers. They are the ultimate instruments of our life."

And Rufus Choate said that lawyers had "shared in the dignity of founders of states, of restorers of states, of preservers of states. I said, and I repeat, that while lawyers, and because we are lawyers, we are statesmen; we are by profession statesmen."

Ladies and Gentlemen, in conclusion I want to say that we come from almost every state in the Union. We are going back imbued with the value of the institutions of your fathers and our fathers, inspired to do what we can to elevate our system of law and its administration, to the end that every individual, despite his station in life, shall have a ready means to procure equal justice in the courts.

XIII

FREEDOM OF SPEECH AND THE ESPIONAGE ACT*

Mr. President and Members of the Association:

Among the rights connoted by the term Anglo-Saxon Civil Liberty none is more vital to our institutions than that which prohibits our National Legislature from making any law "abridging the freedom of speech, or of the press." This clause was not at first contained in the Constitution because the framers, and particularly Hamilton, thought it related to a matter regulated by common law and that the power to deal with it had not been delegated. But the demand of the State Conventions could not be resisted, and the provision became a part of the first of the ten amendments.

Many of the prohibitions of these amendments, usually referred to as the Bill of Rights, have never been resorted to. They have stood as mute, if glorious, testimony of guaranties extorted by our race from its rulers during centuries of contest and struggle; and they have served as a potential agency warning against encroachment by the state upon the rights of the individual. Thus, seldom has any attempt by any department of our government been made to place a limit upon the freedom of oral or written expression. The first attempt, at a

* Address delivered before the New Jersey State Bar Association at its annual meeting at Atlantic City, N. J., June 18, 1921. Reprinted in the New Jersey Law Journal for August 1921 and the American Law Review for September-October 1921.

time of supposed national stress, led to the passage of the Sedition Law of 1798, which, with the Alien Law, met such a storm of opposition as to lead to the disastrous defeat, indeed to the disintegration of the Federalist party. The agitation against these laws undoubtedly involved a warning against any invasion of the right of free speech. But scrutiny of the proceedings of the legislatures of the several states, notably the extraordinary debate in the House of Delegates of Virginia; the able and exhaustive report to the House of Delegates of Virginia written by Mr. Madison, in reply to resolutions passed by the legislatures of other states; the Kentucky resolutions of 1798 prepared by Mr. Jefferson, and other contemporary evidence, must convince the candid student of history that the defeat and destruction of the Federalist party were due, not so much to the contention that a violation of the First Amendment was threatened, as to the view, then regarded as of far greater importance, that the states had not delegated to the federal government the power to legislate upon the subject at all. It was the first great political battle involving the question of implied powers.

Since 1798 and until the passage of the Espionage Act of 1917, there has been no Federal Statute dealing anew with the general subject of seditious utterances, and there have been in that period few if any decisions by the Supreme Court of vital importance in cases in which the protection of the First Amendment has been invoked. And yet we have passed through the great crises caused by the War of 1812, the Mexican War, which evoked much just criticism of the government, the Civil War, in which it finally became necessary to resort to the draft and there was much vocal "copper

head" sentiment, and the Spanish War. There have been virulent and unfounded attacks made upon the personal and political character of such great Presidents as Washington and Lincoln, and in the heat of our frequently recurring Presidential elections, administrations have been subjected to criticism sometimes verging closely upon seditious libel. But at no time has a great constitutional struggle upon the subject of free speech, like that caused in England by the Wilkes case, agitated the American people.

This is a remarkable evidence either of the efficacy of the First Amendment as a warning against undue aggression, or of the fact that the traditions of our race and the rules of common law were such that constitutional protection was not necessary.

But it is now asserted that the Espionage Act of 1917, as interpreted by the Supreme Court, has permitted encroachments upon the right of free speech, which are a menace to our liberties. This discouraging conclusion is maintained by a school of writers who build upon views expressed in dissenting opinions by Justices Holmes and Brandeis. Periodical writers and publicists of socalled liberal tendencies have sought to arouse public interest upon the subject. But fortunately practical statesmen of the day do not seem to be apprehensive. When the same subject was under discussion in 1798 it attracted the attention and enlisted the services of great statesmen like Hamilton, Jefferson and Madison and that remarkable group of lawyers and legislators who then sat in the Virginia House of Delegates, the Legislatures of Pennsylvania, New York, Massachusetts and other States, and the Federal Congress; and naturally, the debate was

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