tors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."

9. The criminal concept most liable to abuse, viz; that of treason, cannot be fixed by the government. The constitution itself defines it as the "levying of war against the United States, or adhering to the enemies of the United States, giving them aid and comfort." Nor can the government so fashion the rules of evidence in a trial for treason as to secure an easy conviction nor attach a penalty to the crime which may fall upon innocent persons. The constitution requires the testimony of two witnesses to the same overt act or confession in open court in order to conviction, and ordains that no attainder of treason shall prevent inheritance of property from or through the attainted person, or work the forfeiture of the real estate belonging to the attainted person longer than during his or her life.1

10. The government cannot authorize the imposition of excessive fines or the infliction of cruel or unusual punishments; 2 i.e. the criminal legislation of Congress upon the subjects assigned to it by the constitution must, in the fixing of penalties, follow the precedents of the common law.

II. If the constitution had created no express immunity of the individual against governmental power in respect to the liberty of opinion and its expression, it must certainly have been inferred as existing within those parts of the United States enjoying the federal system of government, i.e. within the commonwealths, from the fact that the constitution confers no power upon the government to make the free exercise of opinion and its expression by the individual either a crime, or a misdemeanor, or a tort. The constitu

1 Constitution, Art. III, sec. 3, § 1, 2; Ex parte Bollman & Swartwout, U. S. Reports, 4 Cranch, 75; Bigelow v. Forrest, U. S. Reports, 9 Wallace, 339. 2 Constitution, Amendments, Art. VIII.

tion, however, makes the principle doubly sure by giving expression to the immunity. It ordains that Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances; or respecting an establishment of religion, or prohibiting the free exercise thereof.1 These restrictions require a little more minute treatment, since they, in some respects, go beyond the wellunderstood principles of the common law.

First. The freedom of speech and of the press. Since the constitution confers, neither expressly nor impliedly, any power upon the general government to control these subjects, except in the provisions authorizing the making of all needful rules and regulations respecting the territory or other property belonging to the United States, it must be concluded that this immunity is complete, within the commonwealths, as against the general government; i.e. the general government can infringe it neither by way of censorship or prevention nor by way of punishment for its use or abuse. Nevertheless the Congress did, in the year 1798, pass an act for the whole United States, making the writing, printing, uttering or publishing of any false, scandalous and malicious writing or writings against the government of the United States a crime punishable by fine and imprisonment;2 and several persons were tried and convicted under this act.3 This was one of the most unpopular statutes which the Congress ever enacted. Its constitutionality was doubted by a very large proportion of the citizens of the country. It evoked the noted Kentucky and Virginia resolutions.1 was allowed to expire in 1801, without any attempt to renew it. It certainly cannot be defended except from the stand

1 Constitution, Amendments, Art. I.

2 United States Statutes at Large, vol. i, chap. lxxiv, sec. 2, pp. 596–7.

It

3 Cooper's Case, Wharton's State Trials, 659; Haswell's Case, Ibid., 684; Callender's Case, Ibid., 688.

4 Elliot's Debates, vol. iv, pp. 528 ff.

point of the extraordinary or war powers of the govern ment. It is true that war with France threatened, but it was hardly so imminent as to justify the assumption of war powers; still, the Congress is the body in our system which has the power of ultimately determining that question.1

In the district of Columbia, in the territories, and in places within a commonwealth the jurisdiction over which shall have been ceded by the commonwealth to the general government, this immunity is far less extensive than in those parts of the United States enjoying the dual system of government. The general government is vested by the constitution with general as distinguished from enumerated powers in the above-mentioned district, territories and places.2 The rule of interpretation as regards such powers is, that what is not denied is granted. The general government may, therefore, control the expression of opinion within these places, in so far as the government is not restrained therefrom by some provision of the constitution. The restriction contained in article the first of the amendments is expressed in general language. It is not limited to the commonwealths, as to the scope of its action. This restriction upon the power of the government extends therefore to the district, the territories and other places subject to the exclusive jurisdiction of the general government. The question then is whether in such parts the immunity is, as in the commonwealths, total or, for the reasons just cited, less than total. In seeking the reply to this question we must certainly be allowed to assume as point of departure that this restriction was not intended to prevent the government of the United States from introducing and administering the law of slander and libel for the protection of individual reputation in these parts. The common law never held the freedom of speech and of the press to be in any measure infringed by

1 Constitution, Art. I, sec. 8, § 11.

2 Ibid., Art. IV, sec. 3, § 2.

this law; and the common law is the great source from which we draw the principles of interpretation of all provisions of our constitutions relating to private rights and immunities. If such power be not conceded to the general government, then these parts and places would be without any law of slander and libel, which would be an unendurable condition in a society professing to exist under the reign of law. It would inevitably lead to the re-establishment in practice of the duel self-help-for the maintenance of personal honor and character. I hold, therefore, that the restriction can only mean that the general government shall create no unusual law of slander and libel in those parts of the United States subject to its exclusive jurisdiction, but must follow, in respect to these subjects, the general principles of our jurisprudence as derived from the common law; i.e. for example, the government shall not make criticisms upon itself or upon the public character of its officials slander or libel, nor undertake by way of censorship and prevention to prohibit the utterance or publication of anything. This I take to be the extent of the immunity guaranteed by the constitution to the individual against the government in those parts of the United States subject to the exclusive jurisdiction of the general government. The immunity is in such. parts, therefore, not total, as in the commonwealths, for the simple reason that in the commonwealths the law of slander and libel is fixed and administered by the commonwealths, while in these other places, where the dual system of government does not prevail, the general government must fix and administer that law.

Second. The freedom of assembly and of petitioning the government for the redress of grievances. Here again the distinction must be made between those parts of the United States enjoying the dual system of government, vis; the commonwealths, and those parts subject to the exclusive jurisdiction and authority of the general government.

Within the commonwealths this immunity is almost total. The general government can exercise no powers whatsoever in regard to the assembling of persons within a commonwealth, unless the assembling be for a treasonable purpose, simply because the constitution does not confer upon the government any such powers; and the principle of interpretation which must be applied in determining the extent of powers possessed by the general government within the commonwealths is that what is not granted by the constitution is denied, is reserved either to the commonwealths or to the people.1

On the other hand, the grant of general powers, as distinguished from enumerated powers, in the government of those parts of the United States not under the dual or federal form, must be interpreted, as I have above maintained, upon the principle that what is not denied is accorded. This principle of interpretation would allow the general government to limit the immunity in question, as to such parts, by laws distinguishing between a peaceable and a riotous assembly, forbidding the latter and permitting only the former. In such parts the immunity against the general government is therefore not so complete as in the commonwealths. reason for this is obviously the same as in the case of the freedom of speech and of the press. From whatever place the petition may come, however, the duty of the government to receive, hear and give answer to the prayer is the

same.

The

Third. The freedom of religion and worship. Here again the same distinction is to be made between those parts of the United States in which the federal system of government prevails, and those parts subject to the exclusive authority of the general government.

In the former this immunity is total against the general

1 Constitution, Amendments, Art. X; The Collector v. Day, U. S. Reports, 11 Wallace, 113.