state taxation which falls indirectly on the federal borrowing power are satisfactorily explained on the economic ground that they have not hampered that borrowing power. There is ample economic justification for the cases which have restrained the states from laying discriminatory taxes on United States bonds. For the other restrictions which the Supreme Court has placed upon the states we must be content with political rather than with economic

reasons.

In choosing between competing political considerations, much depends on personal predilections. Two of Marshall's colleagues did not share his views that United States bonds must be exempt from state taxation. What Marshall's doctrine achieved was a protective tariff in favor of the infant industry of national credit. His fears that the nation might be destroyed if the view of the dissent had prevailed must be regarded as extravagant. But this does not question the fundamental wisdom of his judgment, particularly at the time when it was rendered. Congress plainly believes that the judgment is as sound to-day, since it demands the continuance of the protection which Marshall decreed. It is difficult to quarrel with the position that the powers of the nation shall be immune from the direct touch of the states. In determining the constitutionality of state taxation which falls directly on federal instrumentalities, we can readily forego nice analysis as to its economic effects. But an understanding of those effects is essential to a proper evaluation of the decisions which permit state taxation that falls indirectly on those same instrumentalities. Distinctions between direct and indirect effect which seem unsubstantial, when abstracted from the complete situation in which they play their part, are found to be useful implements for reaching desirable results. In permitting indirect encroachment on federal authority by the taxing powers of the states, the Supreme Court has been wise in its judgments. If its conclusions deserve more praise than does some of the reasoning by which they have been supported, the phenomenon is not peculiar to the particular problem which we have been considering.

The explanation of the unsatisfactory character of so much of the judicial reasoning here and elsewhere is easily discovered. Decisions which are dictated by the necessity of making a wise practical choice between competing considerations are seldom placed frankly

on that ground. Judges are loth to say: "We decide this particular case in this particular way because we think that this is the best way to decide it." Instead, they are prone to refer their judgment to some immutable principle inherent in the nature of things, or unalterably established by the authoritative judgments of their predecessors. In the realm of constitutional law, courts are fond of professing that it is not they that speak, but the Constitution that speaketh in them, even in settling such disputes as this study has chronicled, concerning which concededly the Constitution is silent. Where the Constitution is not wholly mum, it often speaks with such a still, small voice that only a bare majority of the court can hear its echo. Yet the judicial opinions seldom recognize the patent fact. So long as judges pose as automatons when they are in fact wise arbiters of public policy and practical expediency, they necessarily hide their wisdom under the bushel of a supposed constraining conceptualism, which confuses much that would otherwise be simple and clear. The wonder is that wisdom so generally finds its way and controls the actual adjudications which together make the law. This could hardly be, if doctrine played any such potent part in shaping the course of the decisions as the opinions of the judges would lead us to believe.

The judicial umpiring of the contests between the conflicting claims of the states and of the nation over the exercise of the taxing power has clearly not been controlled by any undisputed and compelling doctrine. That is why it has so greatly perplexed those who see in doctrine their only guide. To dispel the perplexity we must study the cases as practical adjustments of competing interests, each of which is entitled to a degree of consideration. The interest which will be accorded the preference in one situation may have to be determined in the light of the preferences which have been accorded in other situations. No single adjustment liveth to itself alone. In a federal system there must be reciprocal give and take between the whole and the several parts. It must often be impossible in particular instances to make an even apportionment of the giving and the taking. So it may be necessary to favor now one side, and now the other. The aim should be to strike as even a balance as possible in the whole account. This can never be done by pious invocation of some image which men choose to call "Sovereignty." It must be done, as it has been done, by applying human

intelligence to the enterprise of forecasting and evaluating the practical results from differing courses of action, and of choosing that course which leads to the result preferred. Marshall pursued a vain hope in thinking it possible to "measure the power of taxation residing in the State by the extent of sovereignty which the people of a single State possess and can confer on its government." We can, however, if we find it necessary, measure to a considerable degree the extent of sovereignty residing in the state, by finding what the official interpreters of the Constitution permit the state to do in the exercise of the power of taxation and of other governmental functions. "Sovereignty" is a way of stating results rather than a means of reaching them.

COLUMBIA UNIVERSITY.

Thomas Reed Powell,

FREEDOM OF SPEECH IN WAR TIME

NEVER

TEVER in the history of our country, since the Alien and Sedition Laws of 1798, has the meaning of free speech been the subject of such sharp controversy as to-day.1 Over two hundred

1 BIBLIOGRAPHICAL NOTE.-Important decisions under the Federal Espionage Act are printed in the various Federal and United States Supreme Court reports; the BULLETINS OF THE DEPARTMENT OF JUSTICE ON THE INTERPRETATION of War STATUTES (cited hereafter as BULL. DEPT. JUST.) contain many nisi prius rulings and charges not otherwise reported. The cases before July, 1918, have been collected by Walter Nelles in a pamphlet, ESPIONAGE ACT CASES, with certain others on related points, published by the National Liberties Bureau, New York. This has some state cases and gives a careful analysis of the decisions. The Bureau has also published WAR-TIME PROSECUTIONS AND MOB VIOLENCE, involving the rights of free speech, free press, and peaceful assemblage (from April 1, 1917, to March 1, 1919), containing an annotated list of prosecutions, convictions, exclusions from the mail, etc.; and "The Law of the Debs Case" (leaflet). Mr. Nelles has submitted to Attorney General Palmer "A Memorandum concerning Political Prisoners within the Jurisdiction of the Department of Justice in 1919" (MS. copy owned by the Harvard Law School Library). The enforcement of the Espionage Act and similar statutes is officially summarized in the REPORTS OF THE ATTORNEY GENERAL for 1917 (page 75) and 1918 (pages 17, 20-23, 47-57). A list of prosecutions is given with the results. See, also, Atty. Gen. Gregory's Suggestions to the Executive Committee of the American Bar Association, 4 AM. BAR ASSOC. JOURN. 305 (1918).

The best discussion of the legal meaning of "Freedom of the Press in the United States" will be found in an article under that name by Henry Schofield, in 9 PUBLICATIONS OF THE AMERICAN SOCIOLOGICAL SOCIETY, 67 (1914). This volume is devoted entirely to "Freedom of Communication," and contains several valuable papers on different aspects of the problem. Other legal articles not dealing with the situation in war are: "The Jurisdiction of the United States over Seditious Libel,” H. W. Biklé, 41 AM. L. REG. (N. S.) I (1902); "Restrictions on the Freedom of the Press," 16 HARV. L.-REV. 55 (1902); "Free Speech and Free Press in Relation to the Police Power of the State," P. L. Edwards, 58 CENT. L. J. 383 (1904); “Federal Interference with the Freedom of the Press," Lindsay Rogers, 23 YALE L. J. 559 (1914), substantially reprinted as Chapter IV of his POSTAL POWER OF CONGRESS, Baltimore, Johns Hopkins Press, 1916; A. V. DICEY, THE LAW OF THE CONSTITUTION, 8 ed., Chap. VI; "Freedom of Speech and of the Press," 65 UNIV. OF PA. L. REV. 170 (1916); Joseph R. Long, "The Freedom of the Press," 5 VA. L. REV. 225 (1918).. Freedom of speech is discussed by Dean Pound as an interest of the individual in his "Interests of Personality," 28 HARV. L. REV. 445, 453 (1915); and as an alleged bar to injunctions of libel in his "Equitable Relief against Defamation and Injuries to Personality," 29 HARV. L. REV. 640, 648 (1916).

The situation in war is specifically treated in the following: "Freedom of Speech and of the Press," W. R. Vance, 2 MINN. L. REV. 239 (1918); “The Espionage Act

prosecutions and other judicial proceedings during the war, involving speeches, newspaper articles, pamphlets, and books, have been followed since the armistice by a widespread legislative consideration of bills punishing the advocacy of extreme radicalism. It is becoming increasingly important to determine the true limits of freedom of expression, so that speakers and writers may know how much they can properly say, and governments may be sure how much they can lawfully and wisely suppress. The United States Supreme Court has recently handed down several decisions upon the Espionage Act,2 which put us in a much better position than Cases," 32 HARV. L. REV. 417 (1919); "Threats to take the Life of the President," 32 HARV. L. REV. 724 (1919); "The Vital Importance of a Liberal Construction of the Espionage Act," Alexander H. Robbins, 87 CENT. L. J. 145 (1918); "Sufficiency of Indictments under the Espionage Act," 87 CENT. I. J. 400 (1918). The Espionage Act is one of the topics covered by Judge Charles M. Hough, "Law in War Time-1917," 31 HARV. L. REV. 692, 696 (1918). The issues involved in the current decisions are presented in nontechnical form by these articles: "Freedom of Speech," Z. Chafee, Jr., 17 NEW REPUBLIC, 66 (November 16, 1918); "The Debs Case and Freedom of Speech,” Ernst Freund, 19 NEW REPUBLIC, 13 (May 3, 1919); 19 ib. 151 (May 31). William Hard, "Mr. Burleson, Espionagent," 19 NEW REPUBLIC, 42 (May 10, 1919), and "Mr. Burleson, Section 4811⁄2 B,” 19 New Republic, 76 (May 17, 1919), reviews exclusions from the mails. "The Trial of Eugene Debs," Max Eastman, THE LIBERATOR (November, 1918), gives a defendant's impression of the operation of the act.

The history of freedom of speech in America has not yet been fully investigated', but CLYDE A. DUNIWAY, The Development of Freedom of the PRESS IN MASSACHUSETTS, Cambridge, Harvard University Press, 1906, is extremely useful. Much light is thrown on the problem by sedition trials in England, before our Revolution and during the French Revolution. The best account of these is in ERSKINE May, 2 CONSTITUTIONAL HISTORY OF ENGLAND, 2 ed., 1912, Chaps. IX-X, summarized by Charles A. Beard in 16 NEW REPUBLIC, 350 (October 19, 1918). See, also, 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, Chap. XXIV; and G. O. TREVELYAN, THE EARLY HISTORY OF Charles James Fox, for the Wilkes and Junius controversies.

The legal meaning of freedom of speech cannot properly be determined without a knowledge of the political and philosophical basis of such freedom. Four writings on this problem may be mentioned as invaluable: PLATO'S APOLOGY OF SOCRATES; MILTON'S AREOPAGITICA; the second chapter of MILL ON LIBERTY; and Walter Bagehot's essay, "The Metaphysical Basis of Toleration." The second chapter of J. F. STEPHEN, LIBERTY, EQUALITY, FRATERNITY, has an important critique on Mill. See, also, J. B. BURY, A HISTORY OF FREEDOM OF THOUGHT, the first and last chapters; GROTE, PLATO, Chap. VI; GRAHAM WALLAS, THE GREAT SOCIETY, 195-98; H. J. LASKI, AUTHORITY IN THE MODERN STATE, passim. For a caustic point of view, see Fabian Franklin, "Some Free Speech Delusions," 2 UNPOPULAR REV. 223 (October, 1914). The proper course in war is discussed by Ralph Barton Perry in a book review, 7 YALE REV. 670 (April, 1918). The difficulties of the problem as seen from actual experience on both sides are presented in VISCOUNT MORLEY'S RECOLLECTIONS.

2 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, BULL. DEPT. JUST., No. 194 (1919), is the leading case. See, also, Frohwerk v. United States, 249 U. S. 204,