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politically disturbing, or are generally reprobated by the moral sense of civilized communities. Thus, in this case, it was held that polygamy might be declared illegal and criminal, though declared proper and even meritorious by the Mormon Religion.

In Davis v. Beason12 the subject was again considered, the court saying: "It was never intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his beliefs on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.”

Under provisions of the state constitutions prohibiting the creation of state religious establishments, the appropriations of money for sectarian purposes, and in general the infringement of religious liberty and equality, many cases have arisen in which American doctrines of Church and State have been discussed. A consideration of these cases will not be appropriate in this treatise, but it may be said that a peculiarly valuable examination of the doctrines governing the attitude of the courts in dealing with property claimed by two or more contesting religious bodies, is that contained in the opinion of the Supreme Court in Watson v. Jones.13

§ 450. Freedom of Speech and Press.

The prohibition laid upon Congress by the First Amendment that it shall make no law "abridging the freedom of speech, or of the press" has given rise to very few pronouncements by the Supreme Court, and in no instance, indeed, has the constitu

12 133 U. S. 333; 10 Sup. Ct. Rep. 299; 33 L. ed. 637.

13 13 Wall. 679; 20 L. ed. 666.

tionality of an act of Congress been seriously questioned upon this ground before that tribunal.

In United States v. Williams14 the provision of the Immigration Act of March 3, 1903, for the exclusion of aliens holding anarchistic beliefs was indeed questioned on the ground that freedom of speech and press was infringed, but the court dismissed the point with the observation that while it is true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled therefrom, he is cut off from speaking or publishing in this country, yet the right freely to speak or publish is not infringed, for the one claiming the right "does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law." The question thus became simply one of the right to exclude. As to this the court had no doubt in the premises of the power of Congress.

In Ex parte Jackson15 the court after holding that sealed matter in the mails may not be opened and examined, except upon a proper search warrant, go on to observe that as to printed unsealed matter, their transportation in the mails may not be so interfered with as to violate the freedom of the press, because unfettered circulation of printed matter is as essential to the freedom of the press as is the liberty of printing. Therefore, it is declared, if printed matter be excluded from the mails, its transportation in other ways may not be forbidden by Congress.16

And in Ex parte Rapier17 the court say with reference to the exclusion of lottery tickets, and advertisements thereof from the

14 104 U. S. 279; 24 Sup. Ct. Rep. 719; 48 L. ed. 979. 15 96 U. S. 727; 24 L. ed. 877.

16" Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress."

17 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93.

mails: "The circulation of newspapers is not prohibited, but the government declines to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matter condemned by its judgment, through the government agencies which it controls."

In

The main purpose of the constitutional provisions of the First Amendment has been declared to be "to prevent all such previous restraints upon publications as had been practised by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” 18 the case in which this doctrine is declared, the court held unfounded the claim of a right under the First Amendment to prove the truth of statements contained in certain publications which had by the lower court been held to constitute a contempt of the court.

It would thus appear that the prohibition of the First Amendment relative to the abridgment of freedom of speech or press not only leaves to the federal courts the authority to grant relief to persons libeled or slandered, and to punish for contempt the publication or utterance of statements reflecting upon its own dignity or calculated to interfere with the proper and efficient administration of justice and the execution of its writs, but that it preserves, or at least does not restrict the power of Congress to declare criminal and provide punishment for the publication or open advocation of doctrines or practices calculated to destroy or interfere with the exercise of its constitutional powers.

18 Patterson v. Colorado, 205 U. S. 454; 27 Sup. Ct. Rep. 556; 51 L. ed. 879, citing Com. v. Blanding, 3 Peck, 304; Respublica v. Oswald, 1 Dall. 319. Justice Harlan dissenting, says, "I cannot assent to that view, if it be meant that the legislature may impair or abridge the rights of a free press and of free speech wherever it thinks that the public welfare requires that to be done."

§ 451. Seditious Libel.

Thus it would seem beyond question that Congress may define and punish seditious libel, provided the prohibition extends to acts which clearly tend to sedition. The famous Sedition Act of 1798, never came before the Supreme Court, but was upheld as constitutional by three federal judges; and by those criticising it, the argument rather was that the act was too broad, than that seditious libel, properly defined, might not be punished.20

19

$452. The Right Peaceably to Assemble and Petition.

By the First Amendment the right of the people is guaranteed "peaceably to assemble, and to petition the government for redress of grievances." Almost the only discussion of this provision. by the Supreme Court is that contained in the opinion in United States v. Cruikshank21 in which it is said: "The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In

19 Trial of Matthew Lyon, Wharton's St. Trial, 333; Trial of Thomas Cooper, Ibid. 569; Trial of J. F. T. Callender, Ibid. 688; Trial of Anthony Haswell, Ibid. 684.

20 The act of 1798 (July 14) provided: "If any person shall write, print, utter, or publish any false, slanderous, and malicious writing or writings against the government of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage, or abet any hostile designs of any foreign nation against the United States, their people or government." such person shall, on being convicted, be punished, etc. The questionable feature of this law is thus seen to be that it declares criminal not only publications which are seditious, but those which defame the government or its chief officials. For an excellent discussion of this law, as well as of the general subject of seditious libel, see the article "The Jurisdiction of the United States over Seditious Libel" by Mr. Bikle in The American Law Register, Vol. L, 1 (Jan. 1902).

21 92 U. S. 542; 23 L. ed. 588.

fact, it is and always has been one of the attributes of citizenship under a free government. It derives its source' to use the language of Chief Justice Marshall in Gibbons v. Ogden (9 Wh. 1, 6 L. ed. 23) 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It is not, therefore, a right granted to the people of the Constitution. The government of the United States found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, subject to state jurisdiction. The particular Amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the Amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States."

The court go on to observe, however, that: "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of and guaranteed by the United States."

§ 453. The Right to Bear Arms.

By the Second Amendment it is provided that " a well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

In Presser v. Illinois22 was questioned the constitutionality of a section of the military code of a State forbidding bodies of men to associate together or parade or drill with arms in cities and towns unless authorized by law. The court, however, held that so far as the Second Amendment to the federal Constitution was concerned, there was no objection to this provision for the 22 116 U. S. 252; 6 Sup. Ct. Rep. 580; 29 L. ed. 615.

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