not an absolute justification, especially not when the utterance is malicious. So the constitution of Illinois provides: "In all trials for libel, both civil and criminal, the truth when published with good motives and for justifiable ends will be a sufficient defence." The constitutions therefore do not seem to prevent directly the punishment of malicious attacks upon the government tending to degrade it or to create dissatisfaction."

§ 473. Fox's Libel Act.-At the very time of the American revolution, government prosecutions for libel in England gave rise to memorable constitutional struggles, which turned, however, entirely upon the respective provinces of court and jury in determining the libelous character of a publication, the criminality of libels not being questioned. The courts had uniformly ruled that the jury had to pass on the fact of publication, and that it was for the court to determine whether the character of the publication was libelous, while it was vigorously contended by those opposed to the government that the question of intent, and thereby the whole question of criminality of the libel, should be left to the jury. The latter contention finally prevailed in the passage of Fox's Libel Act

5 Art. II, § 4.

6 On the defence of truth the following note to the report of the case People v. Croswell, 3 Johns. Cas. N. Y. 337, 1804, is instructive:

"On the last day of the session of the Legislature in April, 1804, a bill entitled 'An Act relative to libels' was delivered to the council of revision, and at the next session of the legislature was sent back with the objections of the council. The principal objection is understood to have been, because the second section of the bill which allowed the truth to be given in evidence as a defence to an indictment for a libel upon any person holding an office of honor profit of trust, or being a candidate for any such office, made no discrimination in respect to the nature, tendency, or intent of the libel, and would there

fore authorise not only charges which were fit and proper for public information, but every delineation of private vices, defects or misfortunes, however indecent or offensive, and made no distinction between libels circulated from good motives and for justifiable ends, and such as were circulated for seditious and wicked purposes or to gratify individual malice or revenge. On February 12, 1805, the House of Assembly took into consideration the objections of the Council of Revision to the bill concerning libels, and, the question being put, it was lost by a large majority.

A new act of April 6, 1805, allowed the truth to be given in evidence, if published from good motives and for justifiable ends.

in 1792, which provided that in trials for libel the jury should give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required to find the defendant guilty merely on the proof of the publication by the defendant of the paper charged to be a libel, and of the sense ascribed to the same in the indictment or information."

The principle thus affirmed by Parliament in England had, as early as 1790, been embodied in the Constitution of Pennsylvania, in a clause providing that "in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases. The same principle has found its way into many, if not mcst, of the American constitutions.

$474. Prosecutions for seditious libel in America.-It thus appears that freedom of political discussion and criticism was sought to be secured, not by altering the substantive law of libel, but by providing for a popular control of its administration. That the principle of freedom of the press was not believed to be contrary to the punishment of seditious libel, was shown by the enactment by Congress, in 1798, of a sedition act punishing false, scandalous and malicious writings against the government of the United States with intent to defame it, to bring it into contempt and disrepute, to excite the hatred of the people, stir up sedition, or to create unlawful combinations. The accused was allowed by the provisions of the act to give evidence in his defence of the truth of the matter, and the jury were to determine law and fact. Several convictions were obtained under the act, but it was allowed to expire in 1801. In 1805, in Pennsylvania, a prosecution for libel was instituted against a person who had published : "Democracy is scarcely tolerable at any period. It is impossible not to discover the futility of this Government.

It is on its trial here, and its issue will be civil war, desolation, and anarchy." The indictment charged the accused with bringing into contempt and hatred the independence of the United States, the constitution of the commonwealth and of the United States, with intent to excite popular discontent and dissatisfaction against the scheme of policy instituted and on trial in the United States , to subvert republican

7 See Sparf v. United States, 156

U. S. 51, pp. 129-141.

*

8 See Wharton, State Trials.

institutions and free governments, to involve the United States and the Commonwealth in civil war, desolation, and anarchy, to procure by art and force a radical change in the principles and form of government without the free will, wish and concurrence of the people. The court charged the jury, that it was no infraction of the law to publish temperate investigations of the nature and forms of government, and that they must decide whether the defendant as a factious and seditious person with the criminal intentions imputed to him in order to accomplish the objects stated in the indictment, did make and publish the writing in question. The jury rendered a verdict of not guilty. This was probably the last prosecution for seditious libel instituted in this country, and the offense may be said to be practically obsolete.

Custom and public sentiment have come to sanction the widest latitude of criticism of the government, although in most cases it must be impossible to make out, by legal proof, the truth of general charges against a statesman or official or his administration. Where the criminal law is codified, the definition of libel often fails to cover sedition and comprehends only the defamation of individuals, 10 The most ample freedom of discussion of public affairs is now generally understood to be guaranteed by the free iom of speech and of the press, and the long continued practice of toleration may be accepted as sufficient warrant for modifying the interpretation of the express constitutional guaranty to that effect.

§ 475. Attacks upon government in general--Anarchism.— A proposition to forbid and punish the teaching or the propagation of the doctrine of anarchism, i. e., the doctrine or belief that all established government is wrongful and pernicious and should be destroyed, is inconsistent with the freedom of speech and press, unless carefully confined to cases of solicitation of crime, which will be discussed presently. As the freedom of religion would have no meaning without the liberty of attacking all religion, so the freedom of political discussion is merely a phrase if it must stop short of questioning the fundamental ideas of politics, law and government.

Respublica v. Dennie, 4 Yeates, 267, 1805.

10 Illinois Criminal Code, § 177, New York Penal Code, § 242.

Otherwise every government is justified in drawing the line of free discussion at those principles or institutions, which it deems essential to its perpetuation,-a view to which the Russian government would subscribe.11 It is of the essence of political liberty that it may create disaffection or other inconvenience to the existing government, otherwise there would be no merit in tolerating it. This toleration, however, like all toleration, is based not upon generosity, but on sound policy; on the consideration, namely, that ideas are not suppressed by suppressing their free and public discussion, and that such discussion alone can render them harmless and remove the excuse for illegality by giving hope of their realisation by lawful means.

§ 476. Incitement to crime and violence.-Freedom of speech finds, however, its limit in incitement to crime and violence. By the principles of the common law, the procurement of crime is in itself a criminal act,12 and a conspiracy to commit a crime is criminal though the end is never accomplished or even undertaken.13 The prohibition of acts punishable at common law is of course within the constitutional power of the state governments. Therefore a statute may validly forbid all speaking and writing the object of which is to incite directly to the commission of violence and crime. Such was found to be the character of the utterances of the anarchist leaders in Chicago, who were convicted in 1887.14 In the anarchistic propaganda it is not easy to draw the

11 Lord Holt expressed the principle of intolerance when he said: "If people should not be called to account for possessing the people with an ill opinion of the government no government can subsist. For it is very necessary for all gov ernments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to produce animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it is punished." Rex v. Tutchin, Holt, p. 424, Bishop I, Sec. 456. Com

line between discussion or agitation that must or should be tolerated and methods that are or may be made criminal. It is generally conceded that the state may forbid incitement to crime, and incitement not addressed to a specific person nor aimed against a specific person may be brought within the prohibition of the law and the law may go so far as to treat the glorification of crimes that have been committed as contrary to public order and decency; but the doctrine that crime may under given conditions become justifiable or that it may have a tendency to arouse the public conscience should not in itself be held to constitute a crime. It is clear that an exposition of social wrong or injustice must be allowed, nor can the necessary liberty of agitation be said to be overstepped by appeals to sentiment rather than to reason; and if it is said that appeal to sentiment is appeal to passion and may lead to disorder and violence, it must be answered that this was always the plea upon which political agitation was formerly suppressed. Not even the fact that an adherent of the doctrine commits a crime is conclusive that the teaching of the doctrine amounts to incitement;15 for the crime may as well have been induced by a morbid brooding over conditions which are the cause of social discontent, and some of the most notable of recent anarchist crimes must probably be accounted for on the latter theory.

§ 477. Anarchists' cases. While thus far the anarchist propaganda has not yet been judicially examined with reference to constitutional liberty of speech, yet the range of necessary toleration above set forth has uniformly been respected in adjudication as well as (until the statutes of 1902 below set forth) legislation. In the Chicago anarchists' case,16 the Supreme Court of Illinois naturally required proof of actual incitement, for that was a case of prosecution for conspiracy to murder; the legislation which followed undertook to punish speeches or publications advising, encouraging or inciting the destruction of lawful power or authority,17 but the act was repealed in 1891 without having received authoritative interpretation, and it is therefore left to con

15 Stephen Hist. Criminal Law II, 360. "It is one thing to write with a distinct intention to produce disturbances, and another to write vio

lently and recklessly matter likely to produce disturbances."

16 Spies v. People, 122 Ill. 1, 1887. 17 Act June 16, 1887.