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confederation. The new government instituted by the constitution was revolutionary, just as the prior confederacy was revolutionary. It was so with the states themselves; not one among them possessed at the time of the adoption of the constitution a government which was the legitimate successor of the prior provincial government. By every one of them not only had subjection to the British crown been cast aside, but the ties which bound the new system to the old had been more or less completely ruptured. The guaranty of the constitution is not, therefore, a guaranty of legitimacy of succession of the exist ing state governments. Nor has it ever been pretended that such succession was guaranteed. In numerous states, constitutions have been subsequently amended by calling conventions and submitting the result to the popular vote, though the old constitutions did not provide for this mode of amendment. In no one of these cases, however, has the authority of the de facto government, thus instituted, been questioned; nor has it ever been claimed that the Federal government could step in and prohibit this breach of legitimate succession.1 It is true that it has been held that when there is an attempt to overthrow by force the legal government of a state when in the due exercise of its functions, the government of the United States, when called upon under the constitution to intervene, will be bound so to intervene; and that the judiciary will follow the executive in recognizing the continuing authority of such state government. The recognition by the executive in such case, of the titular government, will bind all the departments of the United States government. But so does the recognition of a de facto government; and there is no state government that is not more or less remotely de facto.3

1 Supra, § 369.

2 See Luther v. Borden, 7 How. 1; Texas v. White, 7 Wall. 700; Gunn v. Barry, 15 Wall. 610.

3 The "reconstruction" governments in several of the southern states were, it was maintained, retained in power for several years in antagonism to the votes of a majority of the people, by the action of returning boards. The inau

guration of Governor Hampden, of South Carolina, in 1876, was in the teeth of the certificate of the returning board declaring his opponent to be elected; and so far as titular succession was concerned Governor Hampden's title was revolutionary. The president of the United States (Mr. Hayes), refused, however, to give the support of the Federal arms to Governor Chamberlain,

But may sustain reconstruction after civil government is

§ 552. When, however, the civil government of a state has been suspended, then congress may intervene, so it has been held, and construct for such state a republican government de novo. It is on this principle that what are called the reconstruction governments suspended. of the south, instituted, at the close of the late civil war, under the authority of congress, may be sustained. The only governments that were then existing in those states were provisional and military. This conflicted with the guaranty before us; and, under this guaranty, congress, so it was held, could constitutionally establish in the states in question constitutions which should be in their character republican.1


553. By the third clause of the sixth article of the constitution it is provided that "no religious test shall

No religi

ous test of office, nor establish

ment of re ligion permitted.


ever be required as a qualification to any office or public trust under the United States;" and by the first amendment it is further provided that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As to these limitations the following points are to be ob served:

1st. They only relate to the Federal government; though similar provisions exist in the constitutions of most of the


2d. They do not preclude prosecutions for blasphemy, though this, in jurisdictions where these or similar provisions are in force, is, not because Christianity is an established religion, but because it is an indictable offence to insult any prevalent religious belief. And in all cases the right of freedom of argumentative discussion is reserved.2

who held the technical title, and this led to Governor Chamberlain's withdrawal and a consequent submission throughout the state to Governor Hampden. Governor Hampden was from that time recognized as governor of South Carolina by the Federal govern

ment, as well as by the courts and executives of other states when questions of extradition came up. See Appleton's Cyclo., 1877, p. 696.

1 See infra, §§ 593-6.

2 Whart. Crim. Law, 8th ed., § 1605.

3d. They do not vacate the rule that witnesses and public officers are to be sworn on the Bible, since to this rule the exception is universally admitted that the form of oath the party deems most binding is that by which he is to be sworn.

4th. They do not prevent the exemption of the property of religious societies from taxation.

5th. They do not render unconstitutional legislation prohibiting public labor on Sunday even by persons who conscientiously hold to another day as the Sabbath.1

6th. They do not preclude the prohibition by congress of polygamy in a territory by a majority of the population of which polygamy is regarded as a religious privilege.


7th. They do not preclude the appointment of chaplains, and the proclamation of fast and thanksgiving days.3


to be

§ 555. It is next provided that congress shall "make no law abridging the freedom of speech or of the press." Freedom of This is to be regarded as merely an annunciation of speech not a familiar common law rule that the right of speak- abridged. ing and publishing is one of the primary prerogatives of freedom. The same provision exists in the constitutions of most of the states, and has therefore been subject to frequent adjudication. It is agreed on all sides that it does not preclude suits for slander nor prosecutions for libel. The sedition law, passed during the administration of John Adams, was the basis of several prosecutions for libel, in which the constitutionality of this law was affirmed; and although the impolicy of this law may be conceded, and

1 Whart. Crim. Law, 8th ed., § 1431a. Com. v. Hyneman, 101 Mass. 30; Com. v. Has, 122 Mass. 40; Specht v. Com., 8 Barr, 312; though see, contra, Cincinnati v. Rice, 15 Ohio, 225.

2 U. S. v. Reynolds, 98 U. S. 145.

That a school board may exclude the Bible as a devotional book in the public schools, see Board of Education v. Minor, 23 Oh. St. 211. That it may compel such reading, see Donahoe v.

Richards, 38 Me. 376; Spiller v. Woburn, 12 Allen, 127.

The establishment of chaplaincies in army and navy has not been regarded as establishing any form of religion. The chaplains are officers in service, and are selected as a rule from no specific church. ·

4 See reports in Whart. State Trials, 336 et seq.

it was ultimately repealed, no one now would doubt that it is within the power of the Federal government to enact laws making treasonable libels punishable. That this power exists in the states must be also conceded; and not only seditious libels, but libels on executive, on judiciary, and on legislature, federal or state, have been repeatedly held to be indictable. But mere criticism, no matter how condemnatory, of the action of public men or of public bodies, is not under a republican system properly subject to criminal prosecution. Not only is there no Federal statute now making such publications indictable, but such criticism is protected in almost all the states by constitutional prescription. Nor is it likely that a Federal statute making such criticism indictable would be held constitutional in the Federal courts.3 § 556. By the remaining clause of the first amendment, it is declared that congress shall make no law abridg ing "the right of the people peaceably to assemble guaranteed and to petition the government for a redress of grievances." This, also, is a prerogative of the people recognized in all liberal commonwealths. At the same time the prerogative does not protect the authors and publishers of a scandalous or seditious petition from prosecution.*

Right of petition

I Whart. Crim. Law, 8th ed., §§ 1611, et seq. Laws prohibiting publications as to lotteries do not conflict with the above guaranties; Hart v. People, 26 Hun, 396. Nor do laws prohibiting Federal officers from contributing or exacting money for political purposes. Curtis, ex parte, 106 U. S. 171.

2 See Cooley, Const. Lim., 536-7. Ibid. See Resp. v. Dennie, 4 Yeates, 270, and cases in Whart. Crim. Law, 8th ed., §§ 1611 et seq.

Mr. Calhoun, in his report on the circulation of abolition petitions (Feb., 4, 1836, 5 Calhoun's Works, 190), took the ground that congress had no constitutional power to prohibit the transmission of documents through the mail.

the transmission of indecent matter through the mail, see U. S. v. Bott, 11 Blatch. 346; U. S. v. Heyward, Clifford, J., Cir. Ct. Mass., 1877; Bates v U. S., 11 Biss. 70, and hence Rev. Stat., § 3893, is held constitutional. It was ruled by the U. S. Circuit Court in Louisiana, however, in January, 1884, that Rev. Stat., § 3894, prohibiting the transmission of letters concerning lotteries or gift concerns, and imposing a penalty on the sending of such letters, does not prevent the transmission and reception of such correspondence through the agency of a bank.

4 See Whart. Com. Law, 8th ed., §§ 1636 et seq.; Benton's Thirty Years View, i. 135, ii. 32-36; U. S. v. Cruikshank, 92 U. S. 542, 552, Waite,

That congress has power to prohibit C. J.

Right to not to be infringed.

bear arms

557. The second amendment is as follows: "A wellregulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The last portion of this clause is to be qualified by the first. The right of all persons to keep and bear arms everywhere, and for all purposes is not affirmed; all that is affirmed is that the right of keeping and bearing arms in view of militia training and service shall not be infringed. Hence, statutes forbidding the bearing of concealed weapons have been held constitutional.1


§ 558. The third amendment provides that "no soldier shall in time of piece be quartered in any house without Quartering the consent of the owner; nor in time of war, but soldiers in a manner to be prescribed by law." On this limitation there have been no adjudications, nor has there ever been an occasion to require such adjudication. When, however, martial law is established, this limitation is suspended."




and general



XXVII. UNREASONABLE SEARCHES AND GENERAL WARRANTS. 560. By the fourth amendment "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." This clause bears the impress of the controversy as to general warrants which agitated England during the Grenville ministry, and which, to the colonists, had associated the claim of the British executive to issue general warrants with the claim to arbitrarily tax the colonies. The limitation above given is substantially a codification of Lord Camden's ruling

1 Wright v. Com., 77 Penn. St. 470; Andrews v. State, 3 Heisk. 165; State v. Clayton, 41 Tex. 410; Walls v. State, 7 Blackf. 572; Owan v. State, 31 Ala. 387; Wilson v. State, 33 Ark. 557, and other cases cited Whart.

Crim. Law, 8th ed., § 1557; see contra,
Bliss v. Com., 2 Litt. 90.

2 See supra,

§ 37.

3 See Rule of Court, in re, 3 Woods, 502.

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