420 HARVARD LAW REVIEW testation of existing policies is easily transformed into forcible resistance, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation with direct incitement to violent resistance is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom, and the purpose to disregard it must be evident when the power exists." The Circuit Court, in overruling Learned Hand and in dissolving the injunction,^^ laid down the seemingly unsound proposi- tion that he who utters words at any time or place with the specific intent to cause a violation of the Espionage Act, is criminally liable therefor.^* In attempting to further strengthen its position the court stated that it was powerless to reverse the decision of the postmaster unless he was clearly wrong. It is true that decisions of administrative boards or officers are final as to questions of fact, and reversible by the courts only when clearly wrong.^^ But to exclude matters from the mails on the grounds that they are criminal attempts in violation of the Espionage Act, as it originally stood, calls for a construction of the statute, which is a judicial question, clearly reviewable by the courts and reversible unless clearly right.^" In no case was the law of criminal attempts considered, and in only a few were the ordinary established rules of construction applied. During the Civil War, when a real menace to personal liberty presented itself, the judges fearlessly applied the law.^^ Today there are convictions; on appeal the government confesses error without opinion j^^ and those who cannot appeal go to jail, some rightfully, others perhaps wrong- fully. The decisions are permeated with a laudable spirit of loyalty, but true patriotism consists as much in protecting the legal and constitu- tional rights of individuals as it does in giving the government an un- divided and whole-hearted support.^ Injuries by Trespassing Animals. — In the simple conception of liability that refers everything to the human will, one is held legally upon a legal transaction, in which he willed liability, or because of a ■wrongful act, in which he willed something culpable. But liability at one's peril for situations dangerous to the general security, without
- ^ 246 Fed. 24.
i« The decision of the Circuit Court was so interpreted and followed by Judge Learned Hand in United States v. Nearing, 252 Fed. 223, and in United States v. Eastman, 252 Fed. 232. 19 United States v. Ju Toy, 198 U. S. 253. See 32 Harv. L. Rev. 433. 20 ciiin You V. United States, 208 U. S. 8; Gonzales v. Williams, 192 U. S. i; Gegiou V. Uhl, 238 U. S. 620. See 32 Harv. L. Rev. 433. " See Ex parte Merryman, supra; Ex parte Milligan, supra. 22 See Baltzer v. United States, U. S. Supreme Court, October Term, 1918, No. 320; Head ». United States, Ibid., No. 321; Kornmann v. United States, 7WJ., No. 548. '^ See Zechariah Chafee, Jr., "Freedom of Speech," 17 New Republic, No. 211, 66.
