Harvard Law School - Yearbook (Cambridge, MA)

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down from che tops of our culture even to the level of the police courts and the lower reaches of magistracy. At the top levels of our culture he made a contribution com- parable to that of Roger Baldwin in the operational field. I would be less than frank, however, if I did not add that Chafee has had an amusing blind spot when appraising the alleged need of societal protection against obscenity. Judge Cardozo-it la Chafee-could not be scared by revolutionary writings but in ascetic fashion shied off from ideas touch- ing on sex. On the other hand, Judge Wool- sey gayly allowed Joyce's Ulysses free circulation, but with sternness plus fear slapped down a meager impotent magazine talking revolution in general terms. These varying areas of timidity in the human race, even among the bravest, have always amused me. Chafee amuses me greatly. But this is only a minor blind spot, it seems to me, in comparison to the great contri- bution made single-handed by Chafee. In all frankness I have, in an inverted sense, a much more severe criticism. Why did he never teach at the Law School the subject matter of his great contribution to the law and our folkway? Can't we even now get this bender of our folkways to teach at his Law School the problems of The First Free- dom, which he now teaches at Harvard College. Our gamble that truth wins out in conflict of thought should long ago have had Page six a position of importance for future legal luminaries, at least as important as the study of negotiable instruments , one of the professor's pets. The negotiability of ideas -man's most precious commodity-touches on more than an act of faith, particularly in this era of expanding quantity and quality of negotiation of ideas. Why can't we get Chafee to start a course dealing with the printing press, the silver screen and the ether waves? Such instruction might bring into sharper reality the Chafee philosophy and also educate some future practising disciples. Such a course would deal with postal powers, the regulatory concepts of the Federal Com- munications Commission, the monopolies of the Associated Press, the giants of Holly- wood, world shortages of newsprint, et cetera, et cetera. It need not be pure philosophy-which at best is a means to an end. Above all it might bring some new vision, for example, to our attempts to control communism by inviting individuals to step up to the public counter and ask for the privilege of registering as pariahs and treasonable folk. I envy Chafee his contribution to our society and his deserved reputation in the field of his writings as distinguished from the field of his teaching. But we might by now have had wiser leadership throughout the nation if Chafee had taught at Harvard Law School courses on Civil Liberties. Hun-

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Uzrce vfififreciafivns Dean Roscoe Pound I DEEM it a privilege to be allowed to join in the tribute to Professor Chafee in the ded- ication to him of the Harvard Law School Year Book for 1951. Born, bred, and educated in the state and city of Roger Williams, he might have been predisposed to become a leading advocate of freedom of belief, opinion, speech and writ- ing. Trained in law in the common-law atmosphere of the Harvard Law School he might well have been expected to stand for effective maintaining of the guarantees of the bill of rights in times of war and post- war reconstruction when experience has shown that these guarantees are peculiarly needed and exceptionally liable to infringe- ment. In his student days in the law school he took special interest in equitable relief against defamation and injuries to personality and the connection of the problems of equity jurisdiction in such cases with constitutional and political questions as to freedom of speech. Prosecutions under the Espionage Act during and after the first World War led him to study the whole subject from every side, legal, constitutional, political, historical and philosophical. Beginning with an out- standing article, Freedom of Speech in War Times, 32 Harvard Law Review 932 Q1919j , a succession of books, Freedom of Speech f1920j, The Inquiring Mind Q1928j, Free Speech in the United States Q1941j, and Government and Mass Communications 119471 have made him our leading authority on law and free belief, opinion, writing and speaking. Nor has his scholarly scrutiny stopped there. During the first World War he began to inquire into methods of prose- cution in enforcement of the Espionage Act and like legislation, and his article, A Con- temporary State Trial, 33 Harvard Law Review 747 C1920j, followed by his mas- terly report, Lawlessness in Law Enforce- ment, made significant contributions to the history of American law which must some- day be written. As a result of the article in the trial of Jacob Abrams, Professor Chafee, Professor fnow Mr. Justicej Frankfurter, Professor Francis B. Sayre, Edward B. Adams, Librarian of the Law School, and I, who had signed a petition to President Wilson for the pardon of Abrams Qwhich was grantedj were tried before the Visiting Committee on May 9, 1921, and were acquitted. He has stood for freedom under law for a generation. Now as University Professor he is free to bring his lifelong interest in freedom to a full all-around development in a book which will stand among the great treatises which are the glory of the Harvard Law School. Morris L. Ernst I LEAVE to others the happy chore of list- ing, appraising and praising the important writings of Zechariah Chafee in the field of civil liberties. I assume there can be little dis- agreement that Chafee has substantially affected our national thinking, and even our national policy with respect to the folly of man's fear of ideas. Further, there can be little doubt but that Chafee, among all the non-bench writers of our generation, has had greater impact on our oft hysterical and censorial thinking than any other lawyer. For such services he is well entitled to the honorary degree of Defender of the Faith . During the past decades our folkway has been frightened by the advancing power of trade unions, the secret underground activi- ties of foreign governments, and the very in- digenous and somewhat New Englandish fear of sexual excitement. On the first two generic levels all of us who acted as advisors or even courtroom barristers, could not have operated with success without the collations of mate- rial contained in the Chafee bibles . His fortitude and wisdom on these levels acted as spiritual guides for all of us in the ranks, and the quality of his selfless spirit seeped Page five

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dreds of students might now, as practising lawyers, find that protection of ideas is as exciting a part of the law-game as protection of property. I O 9 Archibald Macleish WHEN a great lawyer is also a great hu- manist it's hard not to write of him as a great man. Zech Chafee wouldn't care for the epithet, but it may well be too late for him to protest. History has glanced at him and history has a way of calling those she looks at by the names that please her. If Zech had stuck to Bills and Notes he would have had his portrait in Langdell and the lively gratitude of generations of Law Students but his Yankee modesty would not have been troubled otherwise. It was when he began to think and then to write and finally to act in defense of the rights of men to be men-of the right of an individual to be an individual-that the first of the muses memorized his name for her chronicles. For he was born-or rather he grew up-into a time in which the defense of the right of an individual to be an individual was a notable, not to say an astonishing thing. People, although they talked about freedom, and made wars for freedom, had ceased to believe in freedom. Particularly the freedom of an individual to be an individual. Free- dom to think as nobody else thought, or as nobody but a very few thought, was con- sidered dangerous if not downright treason- able. People who thought in that way were pinks if they were not actually reds and therefore fair game for any newspaper pub- lisher with the Constitution and his circula- tion to maintain. To say nothing of any politician who wanted to get, or to stay, elected. For a lawyer then, particularly a lawyer who was also a Professor, more par- ticularly a lawyer who was also a Professor at Harvard-for such a man to begin to think and to talk and to act in defense of the right of an individual to be an individual was to ask for trouble and therefore, con- sidering the quarter from which the trouble threatened, to ask for fame. Zech has, of course, other claims. He is not only the prin- cipal defender of the freedom of the human mind in this country-which means, things being what they are, in the world. He is also a man who cares about the human mind- about what comes out of it-about its ca- pacity, its inventiveness, its forms, its reasons, its aspirations, its fantasies. Which is another way of saying that he is a civilized man in a time when not many men are eivilized.- I don,t know how you can add Zech Chafee up-sound scholar, lucid writer, devoted cit- izen, cherished friend, courageous man- without using the adjective which will em- barrass him. If he is not, quite simply, a great American then words have lost their mean- ing. Page seven