of freedom of utterance is to what extent the questioned utterance has "the effects of force."

It is true that Holmes himself wrote an opinion in connection with the Gompers controversy, but its points of law are so restricted to procedure that its value to the subject of freedom of speech lies not in what the justice held but in what he said in an oft-quoted aside which runs:

The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.

Freedom of Speech as a Philosophical Question

It is thus that Justice Holmes has interpreted the privilege of open utterance. It is as a living institution born of experience that Justice Holmes seeks to protect the right of free speech. He does not stick the constitutional phrase up on a totem pole or make a fetish of it to be worshipped, but he preserves the right as one of the vital members of the living social organism.

All such institutions have their bounds. Holmes recognizes boundaries on three sides of the institution of freedom of speech.

On one side freedom of speech is bounded by the body of powers reserved to the state governments. Experience, so reasons Holmes, has led the national government to safeguard free speech. If the states have not learned the same lesson in that school and have not that guarantee in their constitutions and laws, then that is their matter, not the nation's. They are free to protect their courts as they like by actions for contempt, to restrain the talkativeness of their servants, and to punish sedition on an equal plane with the national government.

40 Gompers v. United States, 233 U. S. 604, 58 L. Ed. 1115.

On the second side free speech is bounded by private rights. Some of these, such as tort liability for libel, which Holmes recognized in Haynes v. Clinton Printing Co.,1 were well established before this jurist came into the field. Others such as the property rights of persons to be immune from injury by boycotts, conspiracies, or other "verbal acts," Holmes himself has had a part in outlining.

His third boundary line upon the institution of free speech is the nation's right of self-preservation. This is the foundation on which he bases sedition laws. And of sedition his philosophy is that this offense is nothing other than what Congress makes it, a statutory crime or attempt at crime, and so must be tested upon the same rules of evidence as any other crime or attempt at crime-arson, burglary, murder, or malicious mischief-that is, upon the test of the intent, the dangerousness of the act, and the nearness of its evil effects, not the test of how widely divergent are the prisoner's political and economic views from those of the majority represented on the jury.

As to this boundary line, the justice has something more than strictly judicial views if we go into his remarks outside of court. On the wisdom of sedition laws as a policy he has this commentary in a letter to the Harvard Liberal Club on January 12, 1920:42

With effervescing opinions as with the not yet forgotten champagne, the quickest way to let them get flat is to let them get exposed to the air.

And upon the susceptibility of courts to a hide-bound interpretation of constitutional rights, he had this to say in a speech, "Law and the Court," at a dinner of the Harvard Law School Association of New York on February 15, 1913:43

When twenty years ago a vague terror went over the earth and the word socialism began to be heard,

41169 Mass. 512, 48 N. E. 275.

42New Republic, Vol. 21, p. 250, January 28, 1920.

43 Speeches, p. 101; Collected Legal Papers, p. 295. See note 5, supra.

I thought and still think that fear was translated
into doctrines that had no proper place in the Con-
stitution or common law. Judges are apt to be
naif, simple-minded men, and they need something
of Mephistopheles. We, too, need education in the
obvious to learn to transcend our own convictions
and to leave room for much that we hold dear to
be done away with short of revolution by the or-
derly change of law.

In utterances such as these, Justice Holmes has given freedom of speech more than an institutional basis; he has given it a philosophical footing. He seeks to protect it because it gives a better way of getting at truth. But in that statement several steps are involved. He does not cry Truth for its own sake.

On the contrary he says:

I do not see any rational ground for demanding the superlative-for being dissatisfied unless we are assured that our truth is cosmic truth, if there is such a thing.**

I define the truth as the system of my (intellectual) limitations, and leave absolute truth for those who are better equipped. With absolute truth I leave absolute ideals of conduct equally on one side.45

I used to say, when I was young, that truth was the majority vote of that nation that could lick all others.... And I think that the statement was correct in so far as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view.46

But "Certitude," he adds there, "is not the test of certainty. We have been cocksure of many things that were not so." So true is this that "to have doubted one's own first principles is the mark of a civilized man."47

44"Natural Law," Collected Legal Papers, pp. 314-15.

45"Ideals and Doubts," 10 Ill. L. R. 2, Collected Legal Papers, p. 305.

46"Natural Law," Collected Legal Papers, p. 310. 47"Ideals and Doubts," see note 45, supra.

This experience of having seen hypotheses which had been so long accepted that they were a part of us go down in defeat before newer principles is the thing which Justice Holmes says lies beneath our guarantee of freedom of speech and press. This philosophical basis he expounded best in his dissenting opinion upon Abrams v. United States:48

Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. Such is the tone given to the law of the land by a seasoned philosophy of tolerance for every man's right to opinions.

48 See note 12, supra.

THE ECONOMIC BASES OF CRIME

EYLER SIMPSON

University of Texas

An examination of the literature and data of modern criminological science reveals in common with most hybrid sciences a difference of emphasis by the various schools with respect to causal relationships and the relative importance of the various antecedent factors operating to produce crime as a phenomenon of group life. That is to say that, whereas all scientific investigators in the subject recognize the multiplicity of causal determinants in the effection of crime, yet we find the several distinct schools marked by the preponderating influence which they assign to some particular element in the etiology of crime. Thus, the Italian school insists especially upon the individual factors in crime, the French school considers the role played by the physical environment as very important, the bio-sociological doctrine forms a synthesis of these two, and finally the socialists propose the economic conditions as very important or even decisive. This classification does not include, of course, all the approaches to the science (vide the statisticians) nor does it even include the most modern point of departure (see, for example, William Healey, The Individual Delinquent) but it at least serves to reveal the points at which a variance of opinion most logically appears.

"A crime is an act forbidden and punished by the law which is almost always immoral according to the prevailing ethical standards, which is usually harmful to society, which it is ordinarily feasible to repress by penal methods, and whose repression is necessary or supposed to be necessary to the preservation of the existing order." Accepting this definition of Parmelee's without discussion of its implications as offering a sufficient limitation of the term, it is the purpose of this article to point out some of the features of

1Maurice Parmelee, Criminology, New York, 1918, p. 32.