and at no place had these qualifications ever been the same as those required for citizenship. Requirements of age, sex, property, religious belief, and education had always excluded a large majority of citizens from the suffrage in various states (18).

§ 96. Relation of suffrage limitations to congressional representation. As stated in § 93 above, the Fourteenth Amendment, section 2, requires Congress to reduce proportionately the representation of states that deny the suffrage to adult male citizens for other reasons than participation in crime. In recent years various suffrage qualifications have very much reduced the numbers of electors in several states, but it is argued that the suffrage is not really denied to a person when a qualification is imposed that can be rather easily met. A requirement that a voter register, for instance, would scarcely be called a denial of the suffrage to those who did not choose to register. Similarly it is argued that the requirement of ability to read and write, or the payment of a small poll tax, or perhaps the requirement of a small property qualification can in the main be so readily met that it does not amount to a denial or abridgement of the suffrage in the sense of the Fourteenth Amendment. There is enough strength in this position to leave the matter in genuine doubt, but this argument could scarcely be applied to such a requirement as the one discussed above, discriminating in favor of persons whose ancestors could vote on a certain prior date. Such disability is as permanent as race or color itself.

(18) Minor v. Happersett, 21 Wall. 162.

SECTION 4. MISCELLANEOUS POLITICAL RIGHTS.

§ 97. Republican form of government, invasion, and domestic violence. "The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or executive (when the legislature cannot be convened) against domestic violence" (19).

It has been suggested that a republican form of government in this provision is intended to be distinguished from monarchical forms on the one side and those of pure democracy on the other, the government by chosen representatives being the principal distinguishing mark (20). If a state chooses to establish and use the initiative and referendum largely in legislation, would such a government be republican? The affirmative answer can scarcely be doubted (20a). A local referendum upon various questions like liquor selling or the issue of bonds has often been upheld.

Where there are competing governments in the same state it rests with the political departments of the United States to decide which one is legitimate and the courts will not revise this determination (21).

§ 98. Freedom of speech and press. "[Congress shall make no law] abridging the freedom of speech or of the press' (22).

(19) Const., Art. IV, sec. 4.

(20) Cooley, Constitutional Law, 213.

(20a)

Pacific Sts. Co. v. Oregon, 223 U. S. 118.

(21) Luther v. Borden, 7 How. 1.

(22) Const., Amend. I.

This provision "does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputations" (23). The liability of private individuals for defamatory spoken or written utterances is dealt with fully in the article on Torts, Chapter VIII, contained in Volume II of this work. Congress may forbid the circulation in the mails of obscene matter or of lottery advertisements. These constitutional provisions are designed to secure such freedom of public and private discussion, especially in regard to political matters, as may be necessary for the proper formation of public opinion. It does not protect utterances injurious to well recognized private rights or to the public order and welfare (23a).

§ 99. Right of assemblage and petition.. "[Congress shall make no law abridging] the right of the people peacefully to assemble, and to petition the government for a redress of grievances" (24).

Neither in terms nor in spirit does this provision prevent the government forbidding disorderly assemblages, or those at improper times or places.

§ 100. Right to bear 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" (25).

This provision and similar ones in the state constitutions refer only to such keeping and bearing of arms as

(23)

Robertson v. Baldwin, 165 U. S. 275, 281.

(23a) See, as to injunctions, Gompers v. Buck's Stove Co., 221 U. S. 418; Marx Co. v. Watson, 168 Mo. 133; Lindsay v. MoLt. Fed. Labor, 37 Mont. 264.

(21) Const., Amend. I.

(25) Const., Amend. II.

may be necessary to preserve liberty. It does not prevent the prohibition of weapons usually employed in private affrays, nor the prohibition of carrying concealed weapons altogether (26).

(26) State v. Workman, 35 West Va. 372.

§ 101.

CHAPTER V.

PERSONAL AND RELIGIOUS LIBERTY.

Constitutional history of slavery in United States. When the Constitution was being framed in 1787, slaves and their labor were of sufficient importance to the southern states to make the existence of slavery a source of disagreement in the Philadelphia convention, and several important clauses of the completed instrument bear witness to the influence of these controversies. Probably some natural feeling of repugnance excluded the words "slave" or "slavery" from the original Constitution and its early amendments, but in several places the institution was obviously referred to by circumlocutions. (See Article I, section 2, §3; section 9, §1; Article IV, section 2, § 3.)

By the Missouri compromise of 1820, by which Missouri was admitted to the Union, Congress forbade the existence of slavery in any of the territories north of 36° 30' north latitude. The Constitution gave the United States no control over slavery as a domestic institution within a state, and the political controversies over the institution, that marked the generation between 1820 and the Civil war, raged about the policy and power of Congress to prohibit its existence in territory not yet admitted into the Union, and the recovery of fugitive slaves