placed on a lofty plane. To-day, however, no such intense public sentiment has been aroused. But the discussion has assumed the aspect of a manifestation of impatience with our Courts which reminds one of the recall of judges and decisions. The advocacy of such views by a minority of intellectuals is sometimes potential in producing discontent. It may do harm unless considered and fairly discussed, particularly by responsible bodies of lawyers.

The rights embodied in the great charters of our liberties have originally been asserted in connection with an actual incident in civil administration or legal procedure. That was so, for instance, in the case of the great writ of habeas corpus. Magna Carta and the Bill of Rights did not spring into being full-panoplied, and without antecedent history. On the contrary, they were the result of struggles, at long intervals and under varying circumstances, with the executive and legislative power of the State. Their guaranties always related to actual and concrete cases, and they were frequently occasioned by very homely and intrinsically unimportant episodes. When a right was secured, however, there resulted not alone a high sounding phrase, calculated to inspire lofty and patriotic sentiment, but the right asserted and the remedy guaranteed acquired a vitality based on actual and frequently painful experience. There was thus forthwith embodied a concept which needed no schoolman to explain to the people. Justice Holmes has very aptly said that "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not sim

ply by taking the words and a dictionary, but by considering their origin and the line of their growth." (Gompers v. U. S., 233 U. S., 604, 610.)

Our Constitution was conceived in this practical spirit. It must be applied in the same spirit. The question whether it has been violated must be settled by visualizing a real controversy, tried out according to time honored methods of procedure. If we idealize such a right as the freedom of speech and apply an academic test to the verdict of a jury or a charge of a Court we may easily find material for discontent, and it will be but one step further for an enthusiast or a theorist to conclude that the palladium of our liberties is imperilled. Thus in the Abrams, Schaeffer and Pierce cases, where the Supreme Court refused to set aside verdicts of guilty for violations of the Espionage Act, a Harvard Professor of Law charged the Supreme Court with being "careless in its safeguarding of the fundamental human need of freedom of speech" and reached the despairing conclusion that the decisions reduced the "great principle behind" the First Amendment "almost to a pious hope." This attitude of mind has led this same author to make an extended adverse criticism of the decision of the Court in the Abrams case, in a chapter1 filled with extraneous matter which would be inadmissible in any actual trial. But decisions upon violations of the Espionage Act, must have applied to them the tests not different from those in cases having less historical significance. In the case of Schaeffer,2 indicted for a violation of the Espionage Act, Justice Brandeis (Justice Holmes concurring), said that the decision of the majority of the Court sub

1 Chapter III, entitled "A Contemporary State Trial of Freedom of Speech," by Zachariah Chafee, Jr., Professor of Law in Harvard University. 2 251 U. S., 466.

jected "to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing of the war." But Justice Clark while he joined in the dissent, expressed what seems to me the more correct view, that the decision did not involve "a great peril either to the maintenance of law and order and governmental authority, on the one hand, or to the freedom of the press on the other."

The extreme contention of the present day critics of the Espionage Act is that since the common law doctrine of seditious libel which condemns all writings tending to bring into contempt the Church, the State, the officers of government, or the administration of the law, has been prohibited by the First Amendment, it must likewise follow that a person cannot be condemned for the "bad intent" of a statement or a writing, except where there is an actual incitement to crime with a prospect of being successful.

This theory, it will be admitted, will go far toward depriving the government of the power of self-protection in times of stress. If prosecution for seditious libel were resorted to, as it has been in other countries, to sustain a dynasty or to prevent an impairment of the sanctity of the divine right of kings, we will all agree that anything resembling a power to cause such a repression would be contrary to the spirit of our institutions. Nor will it be seriously contended that criticism or abuse of even the President of the United States falling short of what would justify a suit for libel, could be penalized by Act of Congress. But that the "bad intent" of a writing. is only to be inferred from its contents, its tendency to

produce disorder or crime, or the violent overthrow of our government, and the clear and present danger that it will be successful, is the proposition that seems now to be maintained by some of those who are criticizing the recent decisions of the Supreme Court on the Espionage Act.

The case of Schenck v. The United States was decided in 1918 by a unanimous Court, Justice Holmes writing the opinion. The prosecution was on an indictment for circulating a document the clear purpose of which was to incite to a violation of the Conscription Act. But it was claimed that what was said was in important parts what had been said by well known public men, and the Court admitted that in

"many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger, that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree When a nation is at war many things that might be said in time of peace will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

3 The discussion is confined chiefly to the decisions under Sections 3 and 4 of Title I. I do not deal with Censorship or Exclusion from the Mails or with Interstate Commerce.

4 249 U. S., 47, 50.

Justice Holmes adds, and these words are to be remembered in connection with his subsequent dissent in the Abrams and other Espionage cases:

"The Statute of 1917, in Sec. 4, punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime."

The Schenck case was followed by the Frohwerk case where there was an indictment for conspiracy to violate the Espionage Act in inducing by newspaper publications a refusal to do military duty. Justice Holmes, writing the opinion said that the First Amendment "cannot have been, and obviously was not, intended to give immunity for every possible use of language." He added:

"We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."

The Debs case was a prosecution for an obstruction of the recruiting and enlistment service. Justice Holmes, writing the opinion of a unanimous Court, approved, at least by implication, a charge to the jury that they could not find against the defendant "unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind." It will be observed that this charge does

5 249 U. S., 204, 205.

6 249 U. S., 211.