New-York tribune., 1921-01-23

amendment and to have gone for its
1us'l1ication to an earlier common law
which existed in the colonies before
the commonwealth. This Interpreted
1ree speech to mean the right to speak
with no previous censorship, but with
whatever rigors of punishment the in
tenuons OF that speech seemed to de-
serve. This marks the admission of
the factor of intention into Judgment
through which the g,eatest number Of
CONVICTIONS were obtained under the
espionage set.
Chatee says of this eighteenth CEN
tury definition that it was English and
contemplated an English view of gov
ernment-that Is, that the governing
class was the master, and therefore it
was sedltious to criticize it. The Amer
lean view, the republican view, held
that the governing class was the scrv-
ant OF the people, and thus might be
freely criticized. So greatly had the
colonies suffered under this common
law of seditious libel that they did
not deem it necessary to abolish it by
edict. They presumed OH the First
Amendment, with its assertions of the
rights of petition, press, speech and
assembly, to nullify it.
In their reaction from the tyranny
of laws which invaded the remotest
intentions Of speech, the founders of
the commonwealth held no crimes of
speech to exist between the state crime
OF treason and the civil crime of in
citing to riot. No utterance, however
subversive. was punishable unless it
urged immediate violence, and then it
fell within the compass of the criminal
law for melting to riot. Indeed, Ben
jamin Franklin even questioned the
wisdom Of civil libel laws--but then
he might be regarded as holding the
extreme views on the freedom Of the
press natural in a newspaper owner.
Created New Crimes
But the circumstances Of our late
war with foreign power created a
fear that this gap was our vulnerable
place; it brought about a widespread
| anxiety to bridge it with some defini-
tion of crime that should cover enemy
| activities falling within the compass
reither Of treason nor incitement to
riot. This brought into existence the
espionage act of 1917. First designed
to protect military and civil designs
cf ho 1ofo la %
satisfy the zeal of those at home to get
into the war. The amended espionage
law of 1918 created whole list of new
crimes and brought the remotest inten-
tion of speech within the censure Of
the court. The confusion caused by
this was that it took the judgment of
an act out of the carefully charted way
of specific evidence and legal procedure
and threw it into the chaotic realm OF
conjecture. Judge, jury and prosecut-
ing attorney conjectured the remotest
intention of the defendants speech,
aud ultimately penalized not speech,
but thinking. It based the judgment
of crimes on psychological inferences
and as the psychology of the time was
notably insecure and as every one was
an amateur at this game of mental
checkers, it "threw upon the law ma
chinery Of the Federal government a
great burden which it was ill-adapted
to bear" Inevitably, too, every form of
unpopular thinking could be dragnet-
ted into this wide sweep Of war prose
cutions-and was. Under guise of
war prosecution every community dealt
with it's unpopular minorities in an ar
bitrary fashion, forgetting the con-
tentions Of the founders Of the gov
ernment that government derives its
vigor from the free expression of un-
popular minorities.
7 This conception had survived the
/ Civil War, with its bitter internal con
/ ficts. Lincoln had seen to that. when
/ the disloyal prc5s was curbed BY
Burnside and his subordinates they
received sharp telegeams OF revocation
( from Lincoln" In the area under mar
I tial law there were arbitrary arrests
/ but Lincoln was notably resourceful
/ in the use OF the pardon.
The Incident Of 1898
The cycle is complete witr the re-
vival of the old crime Of seditious
libel. There seems an exact parable
Of the present situation in the his
torical episode of 1898. The United
States, then on the eve Of war with
France, experienced the same feveree
panic as in the present instance, ant
in that excitement passed the alier
and sedition laws. They were far les
stringent than the present sedition act
The maximum penalty was fine o
$4,000 and two yeals' imprisonment
and truth constituted a defense.
When the excitement died down 9TH
sedition act was bitterly resented q
invading the liberty of the press. 1t
constitutionality was assailed on tina
ground by Jefferson, who pardoned al
prisoners when he became President
Congress eventually repaid all fines
and the popular Indignation at the &C
wrecked the Federalist party"
Whether the reversal OF many o
the espionage act decisions may b