Page:Harvard Law Review Volume 32.djvu/1008

972 972 HARVARD LAW REVIEW stitutional guarantees, we have gone much farther than in any other war, even in the Civil War with the enemy at our gates.^^ Un- doubtedly some utterances had to be suppressed. We have passed through a period of danger, and have reasonably supposed the danger to be greater than it actually was, but the prosecutions in Great Britain during a similar period of peril in the French Revolu- tion have not since been regarded with pride. Action in proportion to the emergency was justified, but we have censored and punished speech which was very far from direct and dangerous interference with the conduct of the war. The chief responsibility for this must rest, not upon Congress which was content for a long period with the moderate language of the Espionage Act of 191 7, but upon the officials of the Department of Justice and the Post-office, who turned that statute into a drag-net for pacifists, and upon the judges who upheld and approved this distortion of law. It may be questioned, too, how much has actually been gained. Men have been imprisoned, but their words have not ceased to spread.^^ The poetry in the Masses was excluded from the mails only to be given a far wider circulation in two issues of the Federal Reporter. The mere publication of Mrs. Stokes' statement in the Kansas City Star, " I am for the people and the Government is for the profiteers," Majesty in Council power "to issue regiilations." A very wide scope is given to this power by the House of Lords in Rex v. Halliday, [1917] A. C. 260, Lord Shaw of Dun- fermline dissenting. See3i Harv. L. Rev. 296. Regulation 27 of the Orders in Council makes various forms of speech, writing, etc., offenses. Regulation 51 A provides for the seizure of publications on warrant, and Regulation 56 (13) for the punishment of press offenses. See PuUing, Defense of the Realm Manual, revised monthly. These regulations have been construed in Norman v. Mathews, 32 T. L. R. 303, 369 (1915); Fox V. Spicer, 33 T. L. R. 172 (1917); Rex v. Bertrand Russell, supra, note 128. The practical effect has been to establish an administrative censorship. H. J. Laski, Authority in the Modern State, ioi. ^** J. F. Rhodes, History of the United States, HI, 553, IV, 245-253, 267 note, 467, 473, VI, 78, 96. For Lincoln's refusal to allow General Bumside and his subor- dinates to suppress the Chicago Times and other newspapers of Copperhiead tendencies in Illinois, Indiana, and Ohio, see also Official Record of the Rebellion, Series II, Vol. V, 723, 741; Series III, Vol. Ill, 252. The case oiEx parte Vallandigham, i Wall. (U. S.) 243 (1863), is sometimes supposed to support the imlimited exercise of the war power to restrict speech. See Ambrose Tighe in 3 Minn. L. Rev. i (1918). The decision merely holds that the writ of certi- orari does not lie to a military tribimal. Nothing is said as to the existence of some other remedy such as habeas corpus, or an action for false imprisoimient. Ex parte Vallandigham, 28 Fed. Cas, 874 (1863), lends support to Mr. Tighe. The treatment of Vallandigham is considered illegal by Rhodes, op. cit., IV, 245-52. 1* Cf. a similar experience of the Emperor Tiberius, Tacitus, Annals, IV, c. 35.