95© HARVARD LAW REVIEW This, however, is perhaps a problem for the psychologist rather than the lawyer. The manner in which juries in time of excitement may be used to suppress writings in opposition to the government, if bad ten- dency is recognized as a test of criminality, is illustrated by the numerous British sedition trials during the French Revolution. These were after the passage of Fox's Libel Act. For instance, John Drakard was convicted for printing an article on the shameful amount of flogging in the army, utider a charge in which Baron Wood emphasized the formidable foe with whom England was fighting, and the general belief that Napoleon was using the British press to carry out his purpose of securing her downfall.^^ " It is to be feared, there are in this country many who are endeavoring to aid and assist him in his projects, by crying down the establishment of the country, and breeding hatred against the government. Whether that is the soiuce from whence the paper in question springs, I cannot say, but I advise you to consider whether it has not that tendency. You a retired merchant, but one, who was a contractor still active. They were none of them native to leisure, however, but men whose faces were bitterly worn and wearied out of all sympathy with a struggle they had individually surmoimted." Max Eastman, "The Triai of Eugene Debs," i Liberator, No. 9 (November, 1918), 9. This state- ment is, of course, by a friend of Debs, but if accurate, makes the method of jury selection a serious problem in the prosecution of radicals. The charge of Mayer, J., in United States v. Phillips, Bull. Dept. Just., No. 14, was so favorable to the defendant that, I am informed by an eyewitness, an acquittal was generally expected in the court-room, but the defendants were convicted. Another significant fact in sedition prosecutions is the well-known probability that juries will acquit, after the excitement is over, for words used during the excitement, which are as bad in their tendency as other writings prosecuted and severely punished during the critical period. This was very noticeable during the reign of George III. It is also interesting to find two juries in different parts of the country differing as to the criminal character of similar pubhcations or even the same publication. Thus Leigh Hunt was acquitted for writing an article for the printing of which Drakard was convicted. See note 61, infra. The acquittal of Scott Nearing and the conviction by the same jury of the American Socialist Society for publishing his book form an interesting parallel. Mayer, J., has decided that there is not such inconsistency in the two verdicts as to warrant a new trial. Bull. Dept. Just., No. 198.
- i 31 How. St. Tr. 495, 535 (181 1). Leigh Hunt was acquitted for writing the same
article. Lord EUenborough charged, 31 How. St. Tr. 367, 408, 413 (181 1), "Can you conceive that the exhibition of the words 'One Thousand Lashes,' with strokes under- neath to attract attention, could be for any other purpose than to excite disaffection? Could it have any other tendency than that of preventing men from entering into the army?" Compare with these two charges that of Van Valkenburgh, J., in United States V. Rose Pastor Stokes, Bxjll. Dept. Just., No. 106 (W. D. Mo., 1917), 985, infra.
