The New York herald., 1921-05-29
Freedom of Speech in Novel Light
No Federal Power to Punish Abuse of the Privilege;
but the Habeas Corpus Writ Can Be Suspended
BY BENJAMIN S. DEAN.

had been IN consultation with Thomas
Paine, author OF Common Sense" and
OF many other well known political
pieces" and had secured his pen to
comment from time to time on mill
tary transactions. so as to place in
proper point Of view the bravery, good
conduct and soldiership OF our officers
and troops when they deserve applause.
and to do the same on such conduct Of
our civil officers or citizens as act con-
epicuously for the service Of their coun-
Try" This arrangement. Mr.. Morris tells
US, was made with the approval OF
George Washington, Gouverneur Morris
and Robert r. Livingston. and was to be
known only to these. lest the publica-
tions might lose their force If It were
known that the author Is paid for them
by Government"
The Importance of the press as a mill
tary factor was obviously understood by
these men. who were conspicuous In the
making Of the Constitution OF the United
States; they understood it's value in do
veloping and maintaining public senti-
ment. and they were equally cognisant
Of its dangers II wielded against those
in power. but we shall look in vain in
the Constitution, as 1t received the sig
nature of George Washington and was
submitted to the ratification Of the peo-
pie, for any mentiop Of the freedom OF
speech or of the press, or Of any purpose
to limit it, exceptas this power is neces-
sariIy involved in the authority to sus-
pend the privilege Of the writ OF habeas
corpus" when Elm cases Of rebellion or In
vasion the public safely may require It."
But It gives no power to punish except
for crimes ascertained by law and cstab-
lished before turies as provided by the
Constitution. "The ulustrious men who
framed that instrument" say the court
in Elk parte Milligan (71 u. S.. 2, 126)
were guarding the foundations Of civil
liberty against the abuses Of unlimited
power; they were full OF wisdom. and
the lessons Of history informed them
that a trial by an established court, as
sisted by an impartial jury, was the only
sure way Of protecting the citizens
against oppression and wrong. Knowing
this. they limited the suspension to one
great right, and left the rest to remain
forever inviolable."
These men did not declare for the
liberty of speech or of the press in d.
rect language. for. as Hamilton says in
the Federolist, why declare that things
shall not be done where there Is no
power to do? Why. for instance, should
it be said that the liberty OF the press
shall not be restrained, when no power
Ii given by which restrictions may be
imposed?" But they had provided for
A. - no
Its Fifth Article whenever the Congress
or the legislatures Of two-thirds OF the
States should make application therefor,
involving. OF course, the right peaceably
to assemble, for "the very idea OF a
government republican In form implies
right on the part of its citizens to
meet peaceably for consultation In re-
spect to public affairs and to petition
for q redress Of grievances" to use the
language Of the United States Supreme
Court In United States VS.. Cruickshank.
and nothing was added to this by the
First Amendment. except to make this
right Of assembly and to petition Con-
gress a national instead OF a State
right. without in any manner inpairing
that fundamental right in the citizens Of
the several States.
The declared purposes OF the Constitu-
ton. the provision for trial by Jury and
many other fundamental rights and the
failure to deny to tho States those other
powers which deal with the liberties or
the people were equivalent to the inclu-
sion OF those safeguards In the Federal
Constitution which time had demon
etrated werc essential to the preserva-
ton Of the rights of man Not one OF
these safeguards can the President or
Congress or the judiciary disturb, except
the one concerning the writ OF haoeas
corpus" say the court in Elk parte
Milligan, and adds
II is essential to the safety OF every
government that, in a great crisis. lisc
tho ono we have Just passed through,
there should be a power somewhere OF
susrending this writ of habcas corpus.
In every war. there are men OF pre-
viousiy good character. wicked enough
TO counsel their fellow citizens TO re-
sist the measures deemed necessary by
a good government to sustain It's just
authority and overthrow It's enemies;
and their influence may lead to dan
gerous combinations.
In tho emergency of tho times. an I'M
mediate public Investigation according
10 law may no. be possible: and yet
the peril 20 tho country may be too
Imminent 10 suffer such persons 70 so
at large. Internationally there Is then
an cxigency which demands that tho
government. II II should SEQ TT In tho
exercise OF a proper discretion 70 make
arrests, should not be required 20 pro-
duce the person arrested In answer TO
writ OF habcas corpus. The Conssi-
tuition goes no farther.
Again the cpurt say In the same
case:
II Il was dangerous. "a the distracted
condition of affairs. to leave Aiiligan
unrestrained OF his liberty. because
"he conspircd against tho Government.
afforded aid and comfort to rebels. and
melted tho people to insurrectlon." tho
law said arrest him. confine him clos sly.
render him poweriess 10 do further
mischief: and then present his case TO
ths grand jury of the district with
proofs of his guilt.
Clearly the power 20 suspend the priv
.Iege OF the writ OF habeas corpus IL the
power TO suspend. during the emergency
growing out OF a rebellion or invasion,
al, of the other rights and privileges
OF citizens OF the United States within
the territory IN rebellion II is the power
10 suspend tho liberty of speech and OF
the press, but Il Is not a power TO
punish for an abuse OF that liberty.
-sThe power OF punishment" say tho
court in the Milligan case. ''is alone