Page:Harvard Law Review Volume 32.djvu/987

951 FREEDOM OF SPEECH IN WAR TIME 951 will consider whether it contains a fair discussion — whether it has not a manifest tendency to create disaffection in the country and prevent men enlisting into the army — whether it does not tend to induce the soldier to desert from the service of his coimtry. And what considera- tions can be more awful than these? ... "The House of Parliament is the proper place for the discussion of subjects of this nature ... It is said that we have a right to discuss the acts of oiu- legislature. That would be a large permission indeed. Is there, gentlemen, to be a power in the people to counteract the acts of the parliament, and is the libeller to come and make the people dis- satisfied with the government under which he lives? This is not to be permitted to any man, — it is unconstitutional and seditious." The same desire to nip revolution in the bud was shown by the Scotch judges who secured the conviction of Muir and Pahner for advocating reform of the rotten boroughs which chose the House of Commons and the extension of the franchise, sentences of trans- portation for seven and fourteen years being imposed.®^ ''The right of universal suffrage, the subjects of this country never enjoyed; and were they to enjoy it, they would ndt long enjoy either liberty or a free constitution. You will, therefore, consider whether telling the people that they have a just right ... to a total subversion of this constitution, is such a writing as any person is entitled to compose, to print, and to publish." In the light of such prosecutions it is plain that the most vital indication that the popular definition of liberty of the press, un- punishable criticism of oflEicials and laws, has become a reality, is the disappearance of these doctrines of bad tendency and presump- tive intent. In Great Britain they lingered until liberalism tri- umphed in 1832, but in this country they disappeared with the adoption of the free speech clauses. The French press law no longer recognizes indirect provocation to crime as an offence.^' Fourteen years appears to have been the longest sentence for sedition imposed in Scotland during the French wars. Four years was the longest in England. See note 120, infra, for sentences under the Espionage Act. '^ A. EsMEiN, fiL^MENTS DE Droit Constitutionnel, 6 cd. 1145, 1149; Emst Freund in 19 New Republic 14 (May 3, 1919). The crime of delit d' opinion no longer exists. Under the Repubhc one can lawfully express monarchical opinions and attack the Constitution. Formerly, indirect incitement was unlawful. During the reaction after the assassination of the Due de Berry, the law allowed proems de tendance, by which a newspaper could be suppressed if " I'esprit risultant d'une succession d'arti^
 * 2 May, Constitutional History, 38-41, on the trials of Muir and Palmer.