sanctioned by what any particular sect may designate as religion."65

66

This amendment does not prohibit legislation against polygamy. Neither does it prohibit laws against blasphemy;" but the laws of blasphemy must not be so administered as to prevent freedom of discussion and argument, decently conducted on fundamental points of religion. The law knows no heresy, and will not decide theological disputes, or questions of ecclesiastical government except as they involve property rights."s Congress may appropriate money for the aid of a hospital, even if such hospital is under the control of a religious order."

§ 235. Freedom of speech.-No general grant of freedom of speech is to be found in English legal history, either in the Magna Charta, the Petition of Rights, or Bill of Rights. Such a privilege is however necessary under a free government, and a provision granting it was inserted in the first amendment to the United States Constitution. Any misuse of this privilege, however, such as the use of blasphemous, indecent or slanderous words, will not be protected by this amendment. This provision is for the protection of American citizens, it does not prohibit the exclusion of alien anarchists from the country.70 Nor is an act of Congress prohibiting solicitations for political campaign purposes in public buildings, unconstitutional under this section."1

§ 236. Freedom of the press. Of all the civil rights mentioned in the Bill of Rights in the United States Constitution the freedom of the press was the last to be secured by the Anglo-Saxon race. Until nearly the close of the seventeenth century the idea of a free press seems to have been almost unheard of; it did not form one of the grounds of controversy between the Stuarts and the people of England; it was not mentioned in either the Petition of Rights in 1628 or the Bill of Rights

❝ Davis v. Beason, 133 U. S. 333. es Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333.

67 Vidal v. Girard's Executors, 2 Howard, 127.

es Watson v. Jones, 13 Wallace,

679, 729.

295.

Bradfield v. Roberts, 175 U. S.

TO United States v. Williams, 194 U. S. 292.

"United States v. Newton, 20 D. C. 227.

in 1689. The Long Parliament, in spite of its reform in other directions, continued the censorship of the press. "These proceedings called forth the 'Areopagitia' of Milton, in which he branded the suppression of truth by the licenser as the slaying of an 'immortality rather than a life,' maintained that 'she needs no politics, no stratagems, no licensings to make her victorious,' and nobly but ineffectually pleaded for the liberty to know, to utter, and to argue freely according to conscience, above all other liberties." "72

After the restoration of the Stuarts the freedom of the press was restricted by a series of "Licensing Acts," the last of which expired in 1693. An attempt to renew it in 1695 failed. "It is a noteworthy fact that a striking example of the predominance of the practical, as contrasted with the theorizing spirit in English politics, that this emancipation of the press, which Macauley did not hesitate to declare, has done for liberty and for civilization more than the Great Charter or the Bill of Rights, attracted scarcely any attention at the time and was justified by the Commons in conference with the Lords, without any reference to the great principle involved, and solely on questions of detail concerning the abuses and inconvenience incidental to the censorship." Since 1693 the press of England has been theoretically free, but was, for a considerable period thereafter, subject to Government control in various indirect ways.

74

In the United States Constitution the right of freedom of the press is given in the most absolute and unqualified manner. This freedom is, however, subject to the provisions of the law against the publication of indecent or libelous matter. Freedom of the press includes the right of freedom of transmission through the mails. This, too, is subject to certain necessary restrictions, such as those against fraudulent or obscene matter.76 Congress may also prohibit the mailing of newspapers containing advertisements of lotteries."

75

72 Taswell Langmead's English S. 281. Constitutional History, p. 794.

13 Id., p. 796.

74 Robertson v. Baldwin, 165 U.

75 In re Jackson, 96 U. S. 727.

7 Harmon v. United States, 50

Fed. Rep. 921.

§ 237. Right of assembly.-"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. The very idea of government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances."78

No attempt has ever been made to restrict the right of petition in this country except during the controversy over slavery, when several efforts were made to prevent petitions on the question of slavery being considered by Congress.79

§ 238. Bearing arms.-"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."80

81

Citizens of the United States, however, have no right to associate together to drill or parade with arms, independent of any act of Congress or of a State Legislature authorizing them so to do. This amendment gives the citizens of the United States a much more complete right in this respect than had ever been secured by the citizens of England, as will be seen by comparing this amendment with the seventh section of the English Bill of Rights. (1689): "That the subjects that are Protestants may have arms for their defense suitable for their conditions, and as allowed by law." Blackstone says that this right of the subject to carry arms proper for his defense "is a public allowance under due restrictions of the natural right of

resistance and self-preservation, when the sanction of society and laws are found insufficient to restrain the violence of apprehension."

This right to bear arms is not infringed by a law prohibiting the carrying of concealed weapons.82

§ 239. The quartering of soldiers.-"No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."83 The forerunner of this amendment may be found in the Petition of Rights (1728). Among the grievances there complained of it is set forth: "And, whereas, of late great companies of soldiers and mariners have been dispersed into divers countries of the realme, and the inhabitants against their will have been compelled to receive them into their houses and there to suffer them to sojourne against the lawes and customes of this realme, and to the great grievance and vexacion of the people." And among the remedies prayed for was "that your Majestie would be pleased to remove the said souldiers and marriners, and that your people may not be soe burthened in tyme to come."

This quartering of soldiers was also one of the evils protested against in the Declaration of Independence. "For quartering large bodies of armed troups among us."s

§ 240. Search Warrants.-"The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but on probable cause, supported by oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized. ''85

This provision was mainly directed against what was known in English law as general warrants, i. e., warrants authorizing the searching of all suspected places and the arrest of all suspected persons. This class of warrants had been declared illegal in England in the case of Money v. Leach a half century prior

82 Robertson v. Baldwin, 165 U. S. 281.

83 United States Constitution, Amendment III.

$ Declaration of Independence,

16th paragraph.

States Constitution,

85 United Amendment IV.

3 Burr, 1742.

to the adoption of the United States Constitution; and this amendment was an affirmation of common law principles. The United States Supreme Court thus refers to the protection furnished by this amendment:

87

"The genius of our liberties holds in abhorrence all the irregular inroads upon the dwelling houses and persons of the citizen, and with a wise jealousy regards them as sacred, except when assailed in the established and allowed forms of municipal law.”ss All the facts necessary to be proved to constitute probable cause must be substantiated by oath or affirmation.89 The question as to whether a seizure or search is unreasonable is a judicial and not a legislative one. This guarantee extends to sealed packages in the United States mail and they can only be seized and opened under a warrant regularly issued."1

93

90

This amendment applies to criminal cases only. It has no application to process for the recovery of debts where no search warrant is used, nor to searches and seizures to aid in the collection of revenue."4 Persons cannot be compelled to produce books to be used against them in criminal proceedings or in suits for the recovery of penalties."5

$241. Rights of persons accused of crime.-"No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put into

605, 23 Fed. Cases, No. 13, 548.

23 Ex parte Burford, 3 Craneh, 448; Murray v. Hoboken L. & I. Co., 18 Howard, 272.

Ex parte Meador, 1 Abb. (U. S.), 217 Fed. Cases, No. 9, 375; Stanwood v. Green, 2 Abb. (U. S.), 184, Fed. Cases, No. 13, 301; United States v. Distillery, 6 Bissell, 483, Fed. Cases, No. 14066; Ex parte Strouse, 1 Sawry, 605, Boyd v. United States, 116 U. S. 634.