Page:Harvard Law Review Volume 32.djvu/981

945 FREEDOM OF SPEECH IN WAR TIME 945 value for the inclusion and exclusion process.^*' Nearly every free speech decision, outside such hotly litigated portions as privilege and fair comment in defamation, appears to have been decided largely by intuition. Fortunately Justice Holmes has not left us without some valuable suggestions pointing toward the ultimate solution of the problem of the limits of free speech/^ and still others are contained in Judge Learned Hand's opinion in Masses v. Patten}^ To these we shall soon return. For the moment, however, it may be worth while to forsake the purely judicial discussion of free speech, and obtain light upon its meaning from the history of the constitutional clauses and from the purpose free speech serves in social and poHtical Hfe. If we apply Coke's test of statutory construction, and consider what mischief in the existing law the framers of the First Amend- ment wished to remedy by a new safeguard, we can be sure that it was not the censorship. This had expired in England in 1695,^ and in the colonies by 1725.** For years the government here and in England had substituted for the censorship rigorous and repeated prosecutions for criminal hbel or seditious Hbel, as it was often called, which were directed against political discussion, and for years these prosecutions were opposed by Hberal opinion and popular agitation. Primarily the controversy raged around two legal contentions of the great advocates for the defense, such as Erskine and Andrew Hamilton. They argued, first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction. The real issue, however, lay much deeper. Two different views of the relation of rulers and people were in conflict.^^ According to one view, the rulers were the superiors of the people, and therefore must not be subjected to any censure that would tend to diminish their authority. The people could not make adverse criticism in newspapers or pamphlets, but only through their lawful represent- atives in the legislature, who might be petitioned in an orderly manner. According to the other view, the rulers are agents and
 * " See note 29, supra.
 * ^ Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919).
 * 244 Fed. 535 (S. D. N. Y., 191 7); reversed in 246 Fed. 24 (C. C. A. 2d., 1917).
 * Macaulay, History of England, Chap. XIX.
 * C. A. DuNiWAY, Freedom of Speech in Massachusetts, 89, note.
 * 2 Stephen, History of the Criminal Law, 299.