METHODS OF Constitutional Construction THE SYNTHETIC METHOD ILLUSTRATED ON THE FREE SPEECH CLAUSE OF THE FEDERAL CONSTITUTION THEODORE SCHROEDER Author of Free Speech for Radicals, " Obscene " Literature and Consti- tutional Law, Compiler Free Press Anthology, Etc., Etc., Etc. WITH THRBB SUPPLEMENTS BEARING ON THB RIGHTS OF REVOLUTIONISTS BY JAMES MILL, J. L. DuLOLMB AND JOHN CARTWRIOHT FREE SPEECH LEAGUE 50 EAST 59th STREET NEW YORK CITY 1C CONTENTS Page Foreword, by T. S. 5 Methods of Constitutional Construction, by T. S. 7 Foreword to Appendixes, by T. S. 41 James Mill. (Biog. note by T. S.) 45 On Liberty of the Press, by James Mill 47 J. L. De Lolme. (Biog. note by T. S.) 77 Right of Resistance, by J. L. De Lolme 78 John Cartwright. (Biog. note by T. S.) - - 85 Resistance and Armsbearing, by John Cartwright 87 284671 FOREWORD "DEAR SIR: "We are returning to you under separate cover the interesting article we had the pleasure of receiving from you, with regret that we cannot use it. "In passing perhaps it would not be out of the way to suggest that it gives the impression that its author, like the judges it is aimed at, has allowed himself to be carried away by prenatal-predisposi- tions." Thus wrote the "Editor in chief" of a prominent law review in returning the manuscript which is here- inafter published. Among those who are displeased or disappointed with the conclusion of the following essay there will be those inclined to echo the sentiment of this editor and obtuse enough to complacently con- sider this an adequate disposition of the whole dis- cussion. I frankly accept the implied criticism of my ability to make any essential phase of my meaning clear to any such minds. I do not claim exemption from predispositions. With all of us reasoning is admittedly but an effort to justify our predispositions. But I do make con- scious effort (here perhaps I may justly claim to differ from some lawyers) toward habitually found- ing my predispositions upon a confidence in the scientific method and its impersonal results rather than upon attachment to concrete doctrines of ad- vantage to self, to friends, or class. Of course it may be that in this effort I have failed utterly. Even so, it is hoped that I can make it clear to some readers that I am not merely pitting my predispositions against those of others or my personal desires as such, against the personal desires of others. The challenge of the following essay is that every predisposition be submitted to the check and justi- FOREWORD fication of the scientific method, and here I have merely tried to point out the requirements of that method as applied to some legal problems. How- ever much the readers will dislike the conclusions ar- rived at, I hope that those of mature intellect will devote themselves to discrediting the scientific method in general, or to discrediting my conception of it. Everything else is irrelevent. Those who feel themselves in possession of a law- less power and who are therefore beyond the need for justifying their conduct, and those who are too indolent or too dull to do so will of course be con- tent to ignore the issue I am most anxious to pre- sent, namely: the value of synthetic method of con- stitutional construction. THEODORE SCHROEDER. METHODS OF CONSTITUTIONAL CONSTRUCTION The mental operations by which our constitutional liberties receive "construction" are naturally classi- fied into three distinct categories, viz : the analytic, the historic and the synthetic processes. As applied to constitutional law, these three categories embody the essentials of the scientific method and it is of the highest importance to the progress of juridical sci- ence that lawyers and judges acquire a clearer idea of its requirements. From a time long antecedent to that in which Englishmen executed forty judges for their unright- eous judgments, lawyers and courts have been ob- jects of suspicion and contempt in minds uninflu- enced by the sophistry of our legalolatrists. My conviction is firm that our laws and courts will con- tinue to receive such disrespect until there is a better understanding of both the cause and the cure of the malady. The purpose of this paper is to point these out. Psychologists inform us that all reasoning is but an attempt to justify our predispositions. Space limits here preclude a psychogenetic study of predis- positions. It is enough to say that judges are not free from them nor is society exempt from their evil influence. I think I may safely add that the predom- inating judicial predisposition is never a singleness of devotion to clearly-conceived requirements of the scientific method. As sympathy or interest inclines them toward the aspirations of the masses or the pre- tensions of the mighty, judges are necessarily pre- 7 METHODS OF CONSTITUTIONAL CONSTRUCTION disposed in favor of either a government from out of the people or a government from over the people. Thus lawyers and judges become definitely arrayed in two groups of conflicting predispositions the lib- eral and the strict constructionists. The more intel- ligent will be conscious of their status and more or less consistent in their adherence to the standards of their group and will be most plausible in defending their predispositions. They will, indeed, do almost anything except make a thorough introspection as to the source or nature of these predisposing influences or definitely adopt the scientific method for checking them. Despite an ostentatious display of the "judicial temperament" the legal scientist sees plainly the na- ture of the predisposition in the conspicuous absence of the factors by which well disciplined minds con- sciously impose upon themselves the check of the sci- entific method. In the hope of increasing both the inclination and the capacity for using the scientific method I will proceed to elucidate it and illustrate its use. Perhaps I should remind the reader that the first requisite to the scientific method is confidence in its results, no matter how these may conflict with our desires or interests. THE ANALYTIC METHOD OUTLINED The analytic method is based upon the assumption that the constitution declares general principles or that in its guarantees of liberty it implies general criteria of liberty which are to operate as a control- ling restraint upon the conduct of all public func- tionaries. Hence the object of the analytic method is to ascertain from the actual wording of the consti- tution and by a strictly deductive process, the exact meaning and application of its implicit or explicit general principles upon any particular piece of legis- lation or specific official act. If we are not to encour- age judicial lawlessness, this means that the criteria of constitutionality must be both general and certain METHODS OF CONSTITUTIONAL CONSTRUCTION and, for the purpose of the analytic method, must be derived exclusively from the very words of the con- stitution and not dogmatically forced into it. This is a distinction which some courts have declared to exist, 1 but heretofore the proper implication of the distinction between reading from and reading into the constitution has usually been ignored in the ju- dicial cerebrations. Furthermore, failing to under- stand and apply the scientific method, our judges also fail to check their unreasoned emotional predis- positions and so have practically reduced our consti- tutional liberty to a matter of mere uncontrolled ju- dicial whim. The intelligent observer sees in their dogmatic reference to the constitution nothing more than a transparent pretext to justify the judicial prejudice. Elsewhere I think I have demonstrated this to be a fact with reference to our constitutional guarantee of unabridged "freedom of speech and press." 2 This situation is equally apparent upon other subjects and is shown by the judicial opinions which devote themselves to a discussion of what the judge thinks the constitution ought to be rather than what its f ramers meant to make it. These defects in intellectual process are equally apparent and quite as uniformly present whether the immediate effect is to uphold or to deny a particular right claimed. It is an intellectual shortcoming not called into existence by the necessities of either the liberal or the strict constructionist, as such, but aris- ing from the inadequate intellectual development of our judges. Under such circumstances, even when a claim of liberty is sustained by judicial dogmatism nothing whatever has been gained for general liberty. So far as constitutional law is concerned, dog- matic liberty is liberty by permission, a mere phase of slavery, because the next judicial dogmatist, i State vs. Payne, 29 Pac. Rep. 787; McCluskey vs. Cromwell, 11 NvY, (1 Kern.) 593-602. 2 "Obscene" Literature and Constitutional Law, Chap. 10, entitled "Judicial Dogmatism on Freedom of the Press." 9 METHODS OF CONSTITUTIONAL CONSTRUCTION through a like exercise of arbitrary power, has equal authority for the contrary conclusion. The casual suspense of despotism is not a destruction of despotic principles or power. The former depends on the vir- tue or caprice of tyrants, political, economic, judicial. The latter depends upon the intelligence and force at the command of the governed. Judicial "discretion" is not inherently different from judicial caprice. Government by a judiciary unrestrained by clear and unequivocal general principles, is in fact a lawless government; its activities embody every evil element of despotism acting against law.^Ail liberty by per- mission is despotism no matter how well the formali- ties of law and democracy seem to be observed, nor how well we are trained to humble prostration of in- tellect before the idol-precedents established by our legalolatrists. THE HISTORICAL METHOD OUTLINED When it seems to justify some predisposition, our courts say that the "constitution should be read in the light of its history and of the understanding of the whole American people when the grant was made." 3 This shows that the judges realize some connection between historical events and constitutional construc- tion, but the use they make of this knowledge only betrays the crudity of their notions as to the nature of that relation. In the first place, it is absurd to talk of a consensus of opinion among the "whole American people." The American people as a whole had but few and crude ideas about problems of lib- erty and the leaders were frankly divided in their opinion upon the province of government as well as upon the guarantees for protecting liberty which should be incorporated into the constitution. Of course, in the language used each contestant hoped that future generations would see his own predisposi- a Gibbons vs. Ogden, 9 Wheat 1 ; 6 Law Ed. 1 ; see also Scott vs. Sanford, 19 Howard, 393. 15 Law Ed. 691. Reynolds vs. U.S., 98 U.S., 162; Boyd vs. U.S., 116 U.S., 616-622-625; Carolina vs. U.S., 199 U.S., 437. 10 METHODS OF CONSTITUTIONAL CONSTRUCTION tions, although sometimes necessity for compromise may have made the language designedly vague. At all events, it is manifestly ridiculous to talk about "the whole American people" at that time as having the same opinion about constitutional liberty. A clearer conception of the historical method as applied to constitutional construction would have compelled the courts to see that some of its provisions represent a compromise between conflicting theories of gov- ernment and liberty, though usually they represent a decisive victory of one of the contesting factions. Rightly to understand the historical method means to enquire into those issues of principle which were the essence of the antecedent agitation, which conflicts our constitutions were designed to decide. The fact that this method of contrasting pre-revolu- tionary contentions as a means of constitutional in- terpretation has never been judicially used, shows the want of understanding by which our courts are habitually hampered. Such defective conception as to method makes it easy for our courts to refer to history and quote some historic opinion as a precedent to justify what- ever predisposition is controlling the momentary whim of the judicial mind. When a court wishes to justify a cherished preconception in one case, it may quote approvingly Jefferson's resolution on tolera- tion passed by the Virginia Legislature. 4 In anoth- er case, when the same court wishes to abridge free- dom of utterance, it will unhesitatingly repudiate the above by approving Blackstone's contrary concep- tion of toleration. 5 Now they overlook the fact that there was great need to "uncannonize Blackstone" as Jefferson wrote. 6 To those who know no more * Reynolds vs. U.S., 98 U.S., 163. 5 Patterson vs. Colorado, 205 U.S., 454; 4 BL Com. 151. "Liberty of the press consists of printing without any previous license, subject to the consequences of the law." King vs. Withers, 3 Terra Reports 430. This was the conception of liberty of the press which always obtained among tyrants after 1694, when the licensing act was re- pealed. It is this conception which our supreme court endorses. e Letter 104 to Judge Taylor, June 17, 1817, edition of 1829. 11 METHODS OF CONSTITUTIONAL CONSTRUCTION about the scientific method than do such judges, and to those who have predispositions similar to those held by them, these two irreconcilable definitions of intellectual freedom will seem equally plausible and conclusive and the mind will remain utterly uncon- scious of the existence of any conflict. THE SYNTHETIC METHOD OUTLINED By the synthetic method of constitutional con- struction is meant the co-relation of all constitutional provisions which define and restrict governmental authority. The synthetic method is based upon the assumption that each of these limitations and guar- antees is a part of a general idea of liberty and that only by understanding each part in its relation to all other parts may we arrive at an all-inclusive general- ization thereafter to be applied deductively and de- cisively to each concrete problem of freedom and to each separate constitutional guarantee of a partial or particular liberty. I believe that our courts without exception have utterly failed to show the least acquaintance with synthetization as a method of constitutional construc- tion. Our judges are far removed from even a speaking acquaintance with the scientific method for developing a general concept of liberty. Conse- quently they lack the means of acquiring a practical working criterion for determining the constitutional limits between liberty and the police power with the result that they do much worse than merely dogma- tize or to attempt some crude empiric inductions about it. The courts tell us that the limits of liberty and the police power have not been defined and are in their nature indefinable. 7 Thus our courts undertake authoritatively to make their own intellectual bank- ruptcy the limit of the intellectual evolution of the race. It is pathetic but apparently inevitable that Tin re License Cases, 46 U.S., 504-583-592; 12 Law Ed. 256. Comm. vs. Alger, 7 Cush, 53-85. Leavenworth vs. Miller, 7 Kas. R. 501; Reeves vs. Corning, 51 Fed. Rep. 774-785. 12 METHODS OF CONSTITUTIONAL CONSTRUCTION such men should so largely determine the destiny of human society in thus stifling the development of a rational conception of liberty. In concluding this es- say I will indicate tentatively the criteria of the lim- its of liberty and the police power. THE SCIENTIFIC METHOD PRACTICALLY ILLUSTRATED Having now outlined the requirements of the sci- entific method, I shall illustrate somewhat briefly how this method may be applied in the interpretation of the free speech clause of the Federal Constitu- tion. 8 I select this because it seems to me the more fundamental of our liberties and for the further rea- son that I can make this illustration more brief than I could any other by occasionally pointing to some published essay of mine for greater elaboration. I have tried to analyze the words of the first amend- ment 9 to show that freedom of utterance is abridged whenever a man is punished for the mere psychologic offence of expressing his thoughts, that is, whenever he is suppressed or punished except on the basis of an ascertained, actual and material injury or the im- minent danger thereof according to the known laws of the physical universe. This standard would per- mit the fruitless advocacy of every disapproved doctrine even including treason. Especially because of the clearness of the constitutional language in this clause it has seemed to me that the results of the analytic process are conclusive, and yet they do not satisfy all the requirements of the scientific method. While persisting in doubts founded upon con- servative predispositions, the result thus attained may be checked by the historic method, as I have in- 8 For an abstract statement of the scientific method see: American Law Review, June, 1908, reprinted in Chap. 18 of "Obscene" Litera- ture and Constitutional Law. See also: Interstate Commerce, Em- ployers' Liability and the Supreme Court, in Government, June, 1908. Vol. 68, Central Law Journal, pp. 227, 234,, Mch. 26, 1909; re- vised in Free Speech for Radicals, Chap. 4. Again in "Obscene" Lit- erature and Constitutional Law, Chap. 8. 13 METHODS OF CONSTITUTIONAL CONSTRUCTION dicated. This I have also done elsewhere and I be- lieve I have justified the conclusion already stated. 10 Perhaps there the issues were not as exhaustively treated as they might have been, yet the process is clearly enough illustrated. Especially important in this connection is the declaration of the Continental Congress (which I had not then seen) in which it is said that freedom of the press must be maintained as a means "whereby oppressive officials are shamed and intimidated into more honorable and just modes of conducting affairs." 11 Likewise, I then over- looked the fact that the United States Supreme Court had once endorsed as authoritative that fine statement of Jefferson's as embodied in Virginia's Act of Toleration, in which it is said that "it is time enough for the rightful purpose of government for its officers to interfere when principles break out into overt acts against peace and good order. 12 This criterion of the limits of toleration is applicable to every possible case of freedom of speech and press but it is hardly to be expected that the Supreme Court will adhere to it when in some future case it shall come into conflict with its preconceptions. Our courts are not yet controlled by principle, or only when in their narrower vision the expedience of par- ticular results caribe justified by principles. There is another check, perhaps only a subdivision of the historic method, which can also be applied. The academic defences of intellectual freedom can be separated into two classes those which only advo- cate more freedom than was contemporaneously con- ceded and those defences which are for an una- bridged freedom of utterance. But even the former will confirm our result if we do not confuse the de- mand for larger liberty with that for unabridged freedom. If we ignore the dogmatic exceptions 10 Central Law Journal, Mch. to June, 1910; "Obscene" Literature and Constitutional Law, Chap. 11. "Address to the inhabitants of Quebec, Oct. 28, 1774; Journal of Continental Congre*9, Vol. 1, p. 108, edition of 1904. Reynolds vs. U.S., 98 U.S., 163. 14 METHODS OF CONSTITUTIONAL CONSTRUCTION which the various authors make, and generalize the reasons or the particular criteria of freedom offered in support of a partial or larger liberty, we will find even here the budding conceptions through which the idea of unabridged freedom of utterance must develop. The reasons urged and the criteria offered for unabridged intellectual liberty upon one subject are not fundamentally different from those which must be applied to secure toleration for every opin- ion on every subject. An author may regret or even repudiate the consequences, but it is nevertheless true that the arguments and criteria furnished to secure freedom of religious discussion are usually just as applicable to political or sex discussion and to the criticism of our courts and government. Thus all the arguments presented for a growing intellectual liberty 13 by exhibiting the living thoughts which de- termined the intention and action of the men who framed our constitution, lend us assistance towards finding general criteria for unabridged intellectual opportunity. This in turn becomes a factor in the criteria of general liberty. It is in this way that we can test our working hypothesis first derived by the use of the analytic method. It is only by this method that our judges will be able to check their own pre- dispositions and lust for power. It seems to me that even this brief outline of the historical method which is but a part of the required checks for a thorough method of constitutional con- struction is enough to show us how far short our courts have fallen even when they had some glimmer of the true process. CONCERNING THE SYNTHETIC PROCESS In illustrating what I mean by the synthetic meth- od I believe I can show that our judges have not even dimly conceived either the possibilities or the process is These are moderately well re-stated in Chap. 5 of "Obscene" Lit- erature and Constitutional Law. For more elaborate original state- ments see Free Press Anthology. 16 METHODS OF CONSTITUTIONAL CONSTRUCTION by which alone the best intellectual results can be ob- tained. Thus far it has been briefly indicated how, by improving on the old methods, the conclusion may be justified that unabridged freedom of speech and press means that no one shall be hindered in or punished for expressing his sentiments about any subject so long as no actual or material injury has resulted, and even then no punishment shall follow from the sentiments as such, but shall be inflicted solely on the basis of proven actual and material in- jury. Because of the nature of the method herein- before used, the criteria of intellectual freedom were necessarily stated in general terms and without ap- plication to concrete problems or a consideration of the related guarantees of liberty. This will now be done. Although this synthetizing process is the least known to the legal profession, yet it is the most important check which can be applied for the con- firmation or destruction of the criteria of freedom heretofore indicated. THE FOURTEENTH AMENDMENT AND CERTAINTY First, then, let us see what bearing the "due pro- cess of law" clause has upon the construction of the free speech clause. So far, apparently our courts have not even dreamed of any connection. In prac- tically all prosecutions for circulating prohibited ideas, the test of criminality has been and is the prob- lematic, speculative and prospective psychologic ten- dency of an accused idea upon some mere hypotheti- cal reader of the future. Because of the uncertainty of this criterion of guilt, endless opportunity for op- pression was offered to the evil-disposed members of spy-societies and of the judiciary. Every one familiar with this chapter of the struggle for free- dom against the varying methods for constructing treasons, knows how frequent were the complaints against uncertainty in the criteria of guilt. In the stormy days of George III declamatory patriots 16 METHODS OF CONSTITUTIONAL CONSTRUCTION used to describe this judge-made law of treason somewhat in the way that Johnson defines network, as "a thing reticulated or decussated, with interstices between the intersections." But uncertainty in the criteria of guilt was also the cause for complaint as to other than intellectual crimes, and from the necessity for a remedy against all the evils of uncertainty, arose the maxim, ubi jus incertum ibi jus nullum. About a century ago, Mence, in his valuable book on "Libel," while writing about the words "per legem terrae" said: " What- ever else it may or may not mean, in this place there can be no doubt but that it must mean the then known, accustomed and established law of the land, so opposed to any uncertain and unknown rule." 14 Such contentions would usually be connected with Coke's statement that all judgments against Magna Chart a are void. 15 Elsewhere I have quite exhaustively discussed un- certainty in criteria of guilt as violative of the guar- antees of "due process of law" 16 and yet I cannot re- frain from giving some additional references to books where some phase of the subject is mentioned. 17 / There cannot be "due process of law" unless there is "law."] In any case where all the facts are known there can be no "law" unless the criteria of guilt are so certain that men of ordinary intelligence cannot err nor reach conflicting conclusions as to their crim- inality. If this conception of law and due process of law is now co-ordinated with our guarantee of una- i* Mence on Libel, p. 312. 152 Coke's Institutes, 527, 77, 87. is "Obscene" Literature and Constitutional Law, Chaps. 18 to 21. IT Lord Camden, quoted in Words and Phrases, vol. 3, p. 2069; Lord Andover in a speech in 1640, quoted in the Freedom of Speech and Writing, p. 94; Fortesque's Preface to his Report, pp. 3-4; John Locke, quoted in Observations on the Nature of Civil Liberty, pp. 37-8; John Cartwright, in the English Constitution Produced, etc., pp. 136-7, 143, 276; Rev. C. C. Colton, in "Lacon," p. 83. Ed. of 1832; "The First American Democrat;" Blackstone's Com., Book III, Chap. 8; Sir Thomas Burdette to his constituents (1810) p. 15; 4 Parlia- mentary History, 115, 117, 118; U.S. vs. Lamkin, 73 Fed. Rep. 463; Justice Brown of U.S. Supreme Court, 34 Am. Law Review, 322. 17 METHODS OF CONSTITUTIONAL CONSTRUCTION bridged liberty of utterance, then we must conclude that no form of speech (including printing) can be penalized merely on the basis of a jury speculation about the prospective psychological tendency of the idea upon a hypothetical future reader. In other words, if we construe freedom of speech as a sub- division of that general liberty which, in order to pre- clude all arbitrary power, in all cases requires abso- lute certainty in the criteria of guilt, then we again conclude that such freedom of speech and press is abridged if any mere psychological offence is pun- ished. As was said before, the criteria of guilt must include actual and material injury resulting from the dissemination of an idea. Guilt can never be constitutionally predicated upon an uncertain specu- lation about the uncertain and problematic tendency of an idea upon a future hypothetical reader and actor. DUE PROCESS OF LAW AND EQUALITY The one essence of "law" and "due process of law" which has most often received judicial sanction is the proposition that there can be no "law" without equal- ity as to all persons who are similarly situated with reference to the state or society. Thus Jeremy Bentham made equality one of the tests for deter- mining the existence of freedom of utterance in rela- tion to government. According to him, liberty exists if "at the hands of persons exercising the powers of government a man shall have no more to fear from speaking and writing against them, than from speak- ing and writing for them." 18 At about this same time James Mill also wrote his celebrated essay on "Liberty of the Press" and in the pages devoted to a discussion of equality of intellectual opportunity, he said: Freedom of discussion means the power of presenting all opinions equally, relative to the sub- ject of discussion; and of recommending them by any medium of persuasion which the author may "The Liberty of the Press, (1821) pp. 23 to 55. 18 METHODS OF CONSTITUTIONAL CONSTRUCTION think proper to employ. If any obstruction is given to one sort of opinions, not given to the delivering of another; if any advantage is attached to one sort of opinions, not attached to the delivery of another, so far equality of treatment is destroyed, and so far the freedom of discussion is infringed; so far truth is not left to the support of her own evidence ; and so far, if the advantages are attached to the side of error, truth is deprived of her chance of prevailing. To attach advantage to the delivering of one set of opinions, disadvantage to the delivering of another, is to make a choice." 1 It should be added that this equality must be maintained even as between sub- jects that are unrelated, as mathematics and religion. Freedom is as much abridged if we suppress all opin- ions upon a given subject as when we suppress the the disapproved opinion in relation thereto. This brings us to a special application of Herbert Spen- cer's formula of freedom which is that it consists in the greatest liberty consistent with an equality of liberty. I wish to digress from the discussion to note that Spencer's formula does not permit of applica- tion to cases wherein it becomes necessary to balance mere psychic factors against the material things of life, because in such a case there is no common yard- stick by which equality can be measured. In the absence of actual and material injury, if we punish the publication of falsehood about any par- ticular subject, then we must punish all falsehood pertaining thereto. This, however, can have no ap- plication to cases wherein the truth or falsity of a statement is purely speculative or transcendental so that the exact sciences do not yet furnish inerrant standards. The rule of equality is denied whenever we penalize unmerited praise of any given institu- tion without also penalizing the unmerited blame, and vice versa. Likewise, the rule of equality is vio- iOn Liberty of the Press, by James Mill in supplement to sixth edition of Ency. Britannica, 1821; reprinted by the Free Speech League, 1912, with introduction by Theodore Schroeder, see p. 27. See also appendix hereto. 19 METHODS OF CONSTITUTIONAL CONSTRUCTION lated if we permit impassioned praise without per- mitting equally impassioned denunciation of govern- ment or its officials, etc., etc. Construing together this aspect of "due process of law" and the free speech provisions of our constitu- tion again we must conclude thaFfreedom of speech is abridged whenever the greatest equal intellectual opportunity or right is not maintained. We must have even an equal right to be wrong. In other words, the just or unjust praise, merely as such, or the passionate or dispassionate denunciation of pub- lic officials, laws, governments or revolutions, cannot be penalized without violating the equality guaran- teed by our Constitutions. Since in these respects the maintenance of equality has never been possible under any kind of censorship, therefore no statute whatever of this character and upon this subject can be passed without violating the Constitution. THE SIXTH AMENDMENT We may now proceed to relate our interpretation of freedom of speech to that provision of the Consti- tution which guarantees that persons accused of crime "shall be informed of the nature and cause of the accusation." This means that the accused must be informed not only of the facts claimed to have offended, but also the law, the criteria of guilt, by which those facts must be adjudged criminal. In other words, he must be "informed by the law as well as by the complaint what acts or conduct are pro- hibited and made punishable." "In a criminal statute, the elements constituting an offence must be so clearly stated and defined as to reasonably admit of but one construction. The dividing line between what is lawful and unlawful cannot be left to con- jecture."' Therefore if we interpret the free speech guaran- tee in relation to the Sixth Amendment to the Fed- 20 U.S. vs. Capital Traction Co., 34 App. Cases, D.C., 592. Czarra vs. Medical Supers., 25 App. Cases, D.C., 443, and cases cited. 20 METHODS OF CONSTITUTIONAL CONSTRUCTION eral Constitution, we arrive at the same conclusion as when we connected it w'"\ the Fourteenth Amend- ment, namely: no spread f ideas can be penalized by making the criteria of guilt a mere speculation about an unrealized psychologic tendency. In- deed, the meaning and almost the identical words might be used here which were used in the corre- sponding occasion herein-above, in stating the argu- ment or conclusion against uncertainty implied in "due process of law." EX POST FACTO LAWS AND FREE SPEECH Clearly related to this problem of the uncertainty in the criteria of guilt where guilt depends upon the psychologic tendency is the evil of ex post facto legislation. When tyrants made no pretence to de- cency there was no hesitancy about passing laws after the fact to punish some "undesirable citizen" whose conduct did not come ^vl^hin the letter of any existing prohibition* At present one might almost suspect that new methods had been cunningly de- vised to accomplish the same result without frankly affirming the propriety of creating criteria of guilt ex post facto. If legislatures are prohibited from directly enacting ex post facto laws they cannot be allowed to accomplish the same end indirectly, merely by the device of leaving uncertain the criteria of guilt and thus delegating to the courts a seeming authority for creating ex post facto standards of judgment at the trial of the accused. The abuses by ex post facto criteria of guilt were always most con- spicuously manifested in cases of political offenders including such as were accused of seditious libel. Thus an act of 25 Edward III provided that "if any other case, supposed treason, which is not above specified, doth happen before any justices, the jus- tices shall tarry without any going to judgment of the treason, till the cause be showed and declared before the King and his Parliament whether it ought 21 METHODS OF CONSTITUTIONAL CONSTRUCTION to be judged treason or other felony." 21 This much praised legislation was evidently designed to take from the courts the power to create ex post facto cri- teria of guilt and vest that solely in king and parlia- ment. The American constitutions intended to de- stroy that authority even as to the legislative body. Unquestionably the idea was to destroy the last pos- sibility of punishing according to ex post facto standards of guilt. What congress cannot do di- rectly it cannot do indirectly by handing back to courts the pernicious power which had already been taken from them. The purpose of this guarantee of liberty w r as to destroy forever the evil of such tyran- nous authority, and not merely to take it from the legislative branch in order to place it with the judi- ciary. Lord Holt, in writing of seditious libel, said that the offence was necessarily left as uncircum- scribed as the natural possibility of the injury. "The enactment of the law [in cases of libel] is contained in the punishment of the offence." 22 That is pre- cisely the evil which by the prohibition against ex post facto legislation, it was sought to avoid. Now then, by co-relating this with our free speech provision we again come to the conclusion that un- abridged freedom of speech and of the press means impunity in the expression of every idea, as such, and freedom from punishment under any test of the psychologic tendency of the offending article. Con- sequently liberty of utterance is abridged if punish- ment follows upon any other condition than that of a proven actual and material injury. TREASON AND FREE SPEECH Again I remind the reader that we are not to be frightened away from the synthetic method merely because its results conflict with our emotional pre- dispositions. The necessity for checking our feel- 21 English Liberties, p. 64. " Holt on the Law of Libel, p. 37, edition 1816. For further dis- cussion of ex post facto legislation in this connection, see: "Obscene" Literature and Constitutional Law, Chap. 23. 22 METHODS OF CONSTITUTIONAL CONSTRUCTION ings makes this method indispensable for all who aspire to reach conclusions dispassionately. There are some other provisions of the Federal Constitution which have a very direct relation to the free speech clause. The two I now have in mind are also very intimately related to one another so that it is almost necessary that they be considered together. I refer to the provision that "treason against the United States shall consist only in levy- ing war against them, or in adhering to their enemies and giving them comfort." Mere preparation, such as might be useful in war or in resistance to govern- ment, but not followed by actual hostilities, is not treason, and to make this still more certain we have the second amendment which reads: "A well regu- lated militia being necessary to the security of a free state, the right of the people to bear arms shall not be infringed." I believe that these provisions have the most vital bearing of any part of the Constitution upon the problem of determining the meaning of free speech. Even though this language is plain, its obvious meaning has often been ignored by the courts. The obvious meaning can be reinforced here only by a mere outline of the historical method of interpreting these two constitutional clauses. This will also bring into plain relief the interpretation which it forces upon the guarantee for unabridged free speech. To begin with, let us look a little into the history of the struggle over constructive treasons and we at once get a new light on the constitutional definition of treason. The statute of 25 Edward IV was considered a great improvement upon the prior laws of treason because some effort was made toward defining the crime and to that extent it provided a check upon the lawlessness of the judiciary. For even this little relief, this was called the "benedictum parliamen- tum" However, this statute made express provi- 23 METHODS OF CONSTITUTIONAL CONSTRUCTION sion for punishing mental treason in whomsoever "doth compass or imagine the death of our Lord the King or our lady the Queen, or of their eldest son and heir." This reminds us that in the beginning all the abridgments of freedom of utterance were designed solely for protecting the aristocrats in the fruits of legalized injustice and vested wrongs. It would seem that this chief reason for a censorship having disappeared, the censorship itself should go under, but it does not. We have developed some new and sacred custodians of governmental beneficences. After securing some definition of the offence, the next step by which the advocates of greater liberty sought their end was an insistence that to constitute guilt "to compass and imagine the death of the king" that undesirable state of mind must be mani- fested by some overt act in execution of its design and of such a nature as was capable of producing actual and material injury to their majesties. The opponents of freedom insisted that the mere utter- ance of treasonable ideas was in itself an overt act of treason, and therefore an unexecuted treasonable conspiracy was treason. Under our Constitution a contrary view must prevail. 23 In England the view of tyrants usually prevailed. "Divers later acts of Parliament have ordained that compassing by bare words or sayings should be treason. * * * It was wont to be said that bare words may make a heretic but not a traitor without an overt act." 24 Whether or not mere words could be considered as overt acts was the dominant issue in this long controversy. Lord Coke was among those who maintained that mere words should not be con- sidered as overt acts. Although it was that contro- versy which our Constitutions were designed to settle, yet the constitutional definition of treason, * 23 Judge Sprague, in his instruction to the U.S. Grand Jury, Bos- ton, Mch. 1861 ; U.S. vs. Hanway, 1 Wall, Jr., 1392 Wall, Jr., 204. 24 English Liberties, (by Henry Care and William Nelson) p. 69. 24 METHODS OF CONSTITUTIONAL CONSTRUCTION standing alone, might still leave the way open for a construction which, by merely changing the name of the crime, could yet punish a treasonable utter- ance not acted upon. No doubt to close this door to a possible thwarting of the original purpose, the guarantee of unabridged liberty of speech and press was thought necessary. In view of those pre-revolutionary controversies, it is clear that our free speech amendment must be construed as an aid to the constitutional definition of treason, so as to preclude any punishment of mere treasonable utterance, as such, under any name whatever. If this were not so, then we would be accusing the framers of our Constitution of the im- becility of objecting only to the name by which the abridgment of freedom is designated instead of de- siring to protect freedom itself. Thus also, the syn- thetic method implies more generally that the criteria of punishability for any opinion in addition to its ex- pression must include some overt act must include actual and material injury or at least the intention to inflict such injury accompanied by some act which (according to the known physical laws, not according to speculations about mere psychic tendencies) were adequate to work such injury. 3< This brings us to the conclusion that the un- abridged freedom of speech guaranteed by the Fed- eral Constitution implies a guarantee of impunity even in the advocacy of resistance to our Government as a whole and by a necessary implication it guaran- tees impunity in the fruitless and harmless advocacy of lesser crimes. To those who have not considered the question, our conclusion may seem a little start- ling, and on account of this adverse predisposition it becomes desirable to inquire a little deeper into the reasons and precedents supporting it. Of course, ideal freedom and justice exist no- where. Even the modern relatively more refined conceptions of freedom and justice, imperfect as they must be, are still in the making and are of recent 25 METHODS OF CONSTITUTIONAL CONSTRUCTION date. In consequence of this the precedents are so uniformly on the side of tyranny that doubtless many will be surprised to find any precedents which will furnish even a little support for a doctrine of liberty so antagonistic to those unreasoned predispo- sitions toward flag-idolatry which we develop in our schools by the hot-house method, and which we mis- call patriotism. Yet such precedents do exist. THE CASE OF REV. HENRY SACHEVERELL Dr. Sacheverell was impeached before the House of Lords in 1710. This, it will be remembered, was not long after the revolution of 1688. The language of his sermon, which was the chief item of the indict- ment against him, was restated thus: "That the grand security of our government and the very pil- lars upon which it stands is founded upon the steady belief of the subject's obligation to an absolute and unconditional obedience to a supreme power in all things lawful and the utter illegality of resistance upon any pretext whatsoever." In the course of the trial Sir John Holland (p. 115) thus denounced the doctrine of non- resistance: "The doctrine of unlimited unconditional passive obedience was first invented to support arbi- trary and despotic power and was not promoted or countenanced by any government that had not de- signs sometime or other of making use of it." This makes the desirability of resistance at any particular time a matter of expediency and therefore a subject proper and necessary for discussion with equal free- dom as between the friends and opponents of resis- tance. The Bishop of Norwich (p. 518) in giving his reasons for voting for the impeachment, said: "It is a maxim in politics that all governments are best supported by the same methods and counsels upon 25 HowelFs, State Trials, Vol. 15, p. 1. See also numerous pamphlets published on Dr. Sache verell's case. 26 METHODS OF CONSTITUTIONAL CONSTRUCTION which they are founded." As applied to the case at bar and to the American Government, that means: A relatively free government founded upon a revo- lution is best supported against a relapse into des- potism by cherishing the right of revolution even against itself. It also reminds us forcibly that a government having revolution as its origin cannot consistently nor properly suppress advocates of the expediency, timeliness or morality of another revolu- tion. During the course of the debate the English revo- lution was defended by Dr. William Talbot, Bishop of Oxford, in these words: "If it be utterly unlaw- ful to resist in any case whatever, even that of a total subversion of the constitution and laws, then there is no distinction of governments, of absolute, I mean, and limited ; or if there be a distinction it is a nominal one without any real difference. For what differ- ence is there between princes governing arbitrarily without law, and governing arbitrarily against law? Betwixt having no laws at all and having precarious laws that depend entirely on the will of the prince whether he will observe one of them or subvert them all; and if he does the people cannot help them- selves." (p. 499.) King James, in his speech to Parliament in 1609, said: "A king leaves [ceases] to be a king and de- generates into a tyrant as soon as he leaves off to govern by law; in which case the king's conscience may speak to him as the poor woman to Philip of Macedon, either govern by law or cease to be king." So then the preaching of the doctrine of absolute non-resistance was adequate to impeach because of a recognition by the House of Lords that the preserva- tion of the right to revolt was essential to maintain even that smaller measure of liberty under the law which was then demanded. On such contentions the impeachment was voted. 27 METHODS OF CONSTITUTIONAL CONSTRUCTION THE CASE OF HUGO SPENCER AND SON Among the precedents cited in support of Dr. Sacherverell's impeachment was the resolution of Parliament in relation to the two Spencers. In the reign of Edward II an act of Parliament was passed to exile Hugo Spencer and his son and thereunder they were banished. In article one of this act it was charged that they had "affirmed and published in writing that homage and oath of allegiance were due more by reason of the crown than by reason of the person of the king, and that if the king did not de- mean himself according to reason in the exercise of his government, his subjects might remove him, and since that removal could not be by course of law, they might therefore remove him by force." A subsequent Parliament repealed this act of ban- ishment and the king was deposed by force. This later act of Parliament gives us the highest prece- dent for the proposition that our several constitu- tional guarantees were designed to acknowledge the right of ultimate resistance and consequently the right openly and frankly to defend the proposition that at any particular time resistance was or is justi- fiable and necessary. It was not the purpose of our revolutionary ancestors to penalize mere revolu- tionary utterances. Later it will be shown that the idea behind this proposition was that if the right to resistance was freely conceded, then actual resistance would seldom become necessary. Of course, when hostilities are actually begun, then all must take the fate of war, since no abstract principles of liberty or of right will ever restrain the combatants. THE RIGHT TO CARRY ARMS Thus far we have examined the significance of the free speech clause in relation to the constitutional definition of treason and have again reached the con- clusion that unabridged free speech means the right 28 METHODS OF CONSTITUTIONAL CONSTRUCTION to advocate treason (or lesser crimes) so long as no overt criminal act is induced as a direct consequence of its advocacy. We must inquire how far this con- clusion is confirmed by the constitutional guarantee to carry arms. Again the obvious import is to promote a state of preparedness for self-defense even against the inva- sions of government, because only governments have ever disarmed any considerable class of people as a means toward their enslavement. It remains to ask how this view is supported by the historic conflicts preceding our American Revolution. Our revolution only extended the principles of freedom of the English revolution of 1688. At that time, to preclude the government from going into rebellion against the people and to check its power, the revolutionists planted themselves firmly upon these propositions: (1) The illegality of raising money for the use of the Crown without grant of Parliament; (2) The illegality of the power claimed by the king to suspend laws or the execution of laws; (3) The illegality of a standing army without consent of Parliament. Here, as in the case of Magna Charta or our Amer- ican revolutions, parchment liberties are not long respected unless backed up by an adequate public opinion and physical force. So these restrictions like the others were ignored when in the contest for pow- er this seemed desirable. Let us not forget that it has always been merely a contest for power rather than for principles, though the latter sometimes fur- nished the pretext behind which the lust for power was bulwarked. Thus it happened that often the precedents and principles of liberty were promoted even bv tories. 26 In the English Bill of Rights dated Feb. 13, 1688, among the grievances charged and to be eliminated z The Revolution of 1688: The Origin of its Principles. The Month- ly Law Magazine, July 1838, Vol. 2, No. 6, p. 161; Aug. 1838, Vol. 9, No. 7, p. 321; Sept. 1838, VoL 2, No. 8, p. 477. 29 METHODS OF CONSTITUTIONAL CONSTRUCTION was the "keeping a standing army within the kingdom in time of peace without consent of parlia- ment," which supposedly represents the people. An- other complaint was that of "causing several good subjects, being protestants, to be disarmed and em- ployed contrary to law." 27 If we are to erect this complaint against disarming part of the people into a general principle, it must be that in order to main- tain freedom we must keep alive both the spirit and the means of resistance to government whenever "government is in rebellion against the people," that being a phrase of the time. This of course included the right to advocate the timeliness and right of re- sistance. The reformers of that period were more or less consciously aiming toward the destruction of govern- ment from over the people in favor of government from out of the people, or as Lincoln put it, "gov- ernment of, for and by the people." Those who saw this clearest were working towards the democratiza- tion of the army by abolishing standing armies and replacing them by an armed populace defending themselves, not being defended and repressed by those in whose name the defence is made. 28 Upon these precedents, others like them, and upon general principles reformers like DeLolme and John Cartwright made it plain that the right to resist gov- ernment was one protected by the English Constitu- 27 Rapin's History of England. 28 Examine: Andrew Fletcher of Saltoun, A Discourse of Govern- ment with Relation to Militia; A Discourse on National and Consti- tutional Force, (1757); Cartwright's "A Bill of Free and Sure Defence for Constitutional Revival of County Power; Constitutional Maxims; The British Constitution Vindicated, and Indefeasible Hereditary Right, Unlimited Passive Obedience and Non-Resistance Examined by Scripture and History and Proved to be Absurd, etc., etc., Anony- mous, London, 1716; Sir William Jones on The Legal Means of Sup- pressing Riots; Cartwright's Defence of the Constitutional Right to Organize a Revolution will be annexed as a supplement hereto, and in that connection should be read Thomas Jefferson's letter to Cartwright commending the latter's book, and Jefferson's plan for the military forces of Virginia. 30 METHODS OF CONSTITUTIONAL CONSTRUCTION tion. 29 DeLolme's book is known to have had great influence with the makers of our constitutions, and Cartwright's argument was endorsed by Thomas Jefferson in a letter to the author. THE RIGHT TO PETITION Of course the aristocrats were going to the other extreme in defence of their evil advantage. They made it a crime to argue against hereditary rights even though no direct and specific reflections upon a government were made. 30 This because "everything is criminal which interrupts the established order of society/' 31 They argued that "wantonly to defame and indecorously to calumniate the economy, order and constitution of things which make up the gen- eral system of law and government of the country" was a crime because this discredited the authority by which they secured for themselves personal advan- tage. So they said: "No government could support itself if a demagogue could come forward every year and call a meeting to petition government to dissolve itself." Thus spake Lord Holt 32 in justification of the very antithesis of all that the libertarians already quoted contended for. Our American revolution and constitutions decided that conflict in favor of the former doctrine and therefore our constitution pro- vides a guarantee for "the right of tlie people peace- ably to assemble and to petition the government for a redress of grievances." Recent American legislation with the aid of the courts has re-estab- lished a worse doctrine than any I have quoted as obtaining formerly in England. 33 2DeLolme, The English Constitution, p. 213, Bohn Edition, 1853; John Cartwright, The English Constitution Produced, pp. 350, 111, 104, Edition of 1823. so Reg. vs. Bedford, 11 State Trials, 121, Gilb. Rep. K.B. 297. 8i Holt's Law of Libel, p. 42, Edition of 1816, etc. 32 Holt quoted in Mence on Libel, 167, etc. Holt pp. 81, 85 16th Edition. 83 People vs. Fox. 127 Pac. Rep. 1111, and generally decisions under anti-anarchist laws, rout, disorderly conduct, etc. 31 METHODS OF CONSTITUTIONAL CONSTRUCTION CONSTITUTION AND DECLARATION OF INDEPENDENCE The blindness and lawlessness of some of our courts suggest an urgent necessity for at least a lit- tle more searching of the records for the confirma- tion of our theory as to the meaning of unabridged freedom of utterance. This brings us to an examina- tion of American records and here I may say that the judicial dogmatism by its blind reversion to the precedents of English tyrants is of no aid except to- ward a measuring of the judicial intellect. "The words of the constitution should be given the meaning they were intended to bear when the instru- ment was framed." 34 Especially in determining the right of revolutionists to express their minds this compels us to look into the sentiments of our revo- lutionary forefathers for "It is always safe to read the letters of the constitution in the spirit of the Dec- laration of Independence. No duty rests more im- peratively upon the courts than the enforcement of those constitutional provisions intended to secure the equality of right which is the foundation of free gov- ernment." 35 But the Declaration of Independence affirms that "whenever any form of government becomes destruc- tive of these ends [liberty, justice, etc.,] it is the right of the people to alter or to abolish it," and this was their justification for the forcible resistance which was then used. Construing the right to carry arms and the constitutional definition of treason in the spirit of the Declaration of Independence, we must conclude that these are but attempts to preserve equally the means of resisting with the means of up- holding government. Then co-ordinating this con- clusion with the meaning of the free speech clause, we conclude that it was designed to maintain an equality of intellectual opportunity between those * Scott vs. Sandford, 19 How. 393; 15 Law. Ed. 52691. "' Gulf E. & St. F. Rjr. vs. Ellis, 165 U.S., 160. 32 METHODS OF CONSTITUTIONAL CONSTRUCTION who might wish to uphold and those who would over- throw the government. 38 THE CONTINENTAL CONGRESS ON FREE SPEECH By reading the century-old arguments in support of this view of free speech, we see that the demand for it was made in the belief that the best way to avoid a revolution was to allow full intellectual free- dom for its promotion because this would best warn corrupt officials and induce their reform. So free- dom to advocate revolution is the best way to avoid all unnecessary revolution. Such, I believe, was the plainly expressed opinion of the Continental Con- gress when considering the subject of the freedom of the press. It is worth while to quote again their ex- plicit language as to the purpose of mental free- dom. 37 "The last right we shall mention, regards the free- dom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal senti- ments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officials are shamed or intimi- dated into more honorable or just modes of conduct- ing affairs." The same conclusion as to the meaning of freedom of speech is conclusively pointed out by the Virginia legislature and later approved by the Federal Su- preme Court. The legislative resolution was drawn by Thomas Jefferson to ensure religious toleration and by defining specifically the limits of religious tol- eration it furnished general criteria by which to de- termine the limits of every other kind of toleration. s For the arguments of the time in support of this view of the right see: James Mill on the Liberty of the Press, also Jeremy Bentham, quoted above. 3T Address to the Inhabitants of Quebec, Oct 28, 1774, Journal of the Continental Congress, Vol. 1, p. 108, Ed. of 1904. 33 METHODS OF CONSTITUTIONAL CONSTRUCTION Here is the language of the resolution: "To suffer the civil magistrate to intrude his power into the field of opinion, or to restrain the profession or propaga- tion of principles, on supposition of their ill tendency is a dangerous fallacy which at once destroys all lib- erty because he, being of course judge of that ten- dency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own. It is time enough for the rightful purpose of civil government for its officials to interfere when princi- ples break out into overt acts against peace and good order." The celebrated Dr. Benjamin Rush was famous among the signers of the Declaration of Independ- ence, and until his death was treasurer of the United States Mint. In 1787, the same year in which he sat as a member of the convention of Pennsylvania for the adoption of the Federal Constitution, he express- ed his views about the establishment of a postal sys- tem, in which he furnished an interesting sidelight on freedom of the press as understood by our revolu- tionary forefathers. Concerning the Postoffice, these are his words: "For the purpose of diffusing knowledge, as well as extending the living principle of government to every part of the United States every state, city, county, village and township in the Union should be tied together by means of the postoffice. This is the true non-electric wire of government. It is the only means of conveying heat and light to every individu- al in the federal commonwealth. ' Sweden lost all her liberties,' says the Abbe Raynal, because her citizens were so scattered that they had no means of acting in concert with each other.' It should be a constant in- junction to the postmasters, to convey the news- papers free of all charge for postage. They are not only the vehicle of knowledge and intelligence, but as Reynolds vs. U.S., 98 U.S., 163. 34 METHODS OF CONSTITUTIONAL CONSTRUCTION the sentinels of the liberties of our country." 39 JEFFERSON FOR REVOLUTIONISTS In Reynolds vs. U.S., already quoted, the United States Supreme Court in speaking of intellectual lib- erty referred to Thomas Jefferson as "the acknowl- edged leader of the advocates of the measure" for freedom of utterance and "his words are an authori- tative declaration of the scope and effect" of the first amendment. It will be observed that Jefferson's criteria as to constitutional freedom of utterance very clearly point to the doctrine that this shall include freedom for the fruitless advocacy of revolution and implied- ly all lesser disturbances of peace and good order. It is important, however, that this shall not be left to mere inference from the general language used in the criterion offered. Because the immediate occasion for the language used was religious toleration, it might be argued that Jefferson would perhaps have changed his mind had he contemplated the applica- tion of his general language to the subject of rebel- lion. This then raises a question as to Jefferson's at- titude towards revolutions in general and the tolera- tion of their promoters. Fortunately, here we are again able to quote his explicit language which leaves no room for doubt or argument. In a letter to James Madison written in 1787, on the subject of re- bellion, Jefferson said: "I hold that a little rebellion now and then is a good thing and as necessary in the political world as a storm is in the physical * * An observation of this truth should render honest republican governors so mild in their punishment of rebellions as not to discourage them too much. It is a medicine necessary for the sound health of gov- ernment." 40 3 Principles and Acts of the Revolution by Niles, 235. Ford's Edition of Jefferson's works p. 362-363 ; see also his letter to Mrs. John (Abigal) Adams, Feb. 22, 1787, vol. 4, p. 370. 35 METHODS OF CONSTITUTIONAL CONSTRUCTION That the rebellion here referred to was not a blood- less one appears from Jefferson's letter to Stephen Smith, Nov. 13, 1792. 41 "Can history produce an instance of rebellion so honorably conducted [referring to Shay's rebellion] ? I say nothing of its motives; they were founded in ignorance, not wickedness. God forbid that we should ever be twenty years without such a rebellion * * * What country before ever existed a century and a half without a rebellion, and what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts ; pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." These letters, it must be remembered, were writ- ten before the passage of the Alien and Sedition Law. In the campaign of 1799-1800, Jefferson went before the people on the issue of the constitutionality of the Alien and Sedition Law and won a signal vic- tory upon the very issue of his interpretation of free- dom of speech. Here then, is the view of the Ameri- can people as a whole, voting on the very issue of the interpretations of the free speech amendment to the constitution and very soon after the adoption of that amendment. This, Jefferson's pardon of all convicts under that law 42 and the resultant action of Congress in returning the fines which had been paid thereunder, following as that did, the almost con- temporary mandate of the people, give for our in- terpretion of free speech, the highest sanction that any conclusion of constitutional interpretation ever had. TOWARD THE BROADER SYNTHESIS Thus the application of the synthetic method of constitutional construction has quite irresistibly led nd. 1778. 103 RESISTANCE AND ARMSBEARING Legislators, in that case, are properly, and with the greatest aggravation, REBELS/' 27 28. Volunteer Corps raised, embodied, armed, clothed, officered and disciplined under any authority or influence, or regulated by any rules, other than the true principles and regulation of the County Power, are unconstitutional, unwarrantable and dangerous; as liable to be rendered subservient to the interests of the court instead of the country. 29. Yeomanry Corps composed of the dependent tenantry, tradesmen or partisans of men in power, which has, deservedly, obtained for them the appella- tion of the Body Guard of the Boroughmongers, are peculiarly to be reprobated; as the never-to-be-for- gotten Manchester Massacre hath deeply engraven on every patriot heart. In Support of the second element of the Constitu- tion, enough has now been advanced. A. Considering existing circumstances, in which the Army List is a large volume, and that, although every one can talk of the Sheriff and his County Power, no one ever saw that power, or can see even its picture, except in Sir William Jones's Legal Means of Suppressing Riots'' or in "England's JEgis" or your "Bill of Free and Sure Defence"; considering, I say, these circumstances, I shall, in the course of our conversations, have various questions to ask relative to this Element of our Polity, in which is found its physical strength. C. I shall at all times l?e ready to discuss with you whatever belongs to it. For the present it may be best to proceed in our course: but NEVERTHELESS I must remark, that the foregoing element fully an- swers Mr. Canning, when, with a Standing Army at his back, and the Manchester Body Guard of the Borough-mongers at his beck, he, more like a low- minded protected bully, than an Englishman of a (") John Locke; Two Treatises of Government, book 8, sect. 219, p. 343. 104 RESISTANCE AND ARMSBEAR1NG lofty and generous spirit, puts this taunting ques- tion to the patriot Reformers: "Do you mean to pre- vail by reason, or by compulsion? If," says he, "by reason, then reason is as GOOD out of doors as in" Note well, my friends, the complicated Jesuitical insult! "Reason is as good out of doors as in," says Mr. Canning. Were this, in an honest sense, true, England had been fairly represented, ere a thousand millions of her money had been profligately squan- dered for quashing Reform at home, and crushing Liberty in France! Were this flippant assertion true, such a revolution in England's landed property, and such a ruin of her farmers as no country ever before saw, would not now be near its final accom- plishment, as we see before our eyes! But was not, on the contrary, this "good" this unanswerable "reason out of doors," always frustrated by the gag- ging bills, the libel bills, the suspending bills, and the indemnity bills of Mr. Canning and his indoor asso- ciates? Did they "prevail by reason or by compul- sion?" How monstrous, then, the assertion! How unmanly the sneer, from one who, for thirty years past, has never heard the voice of "reason out of doors," when it spoke of Rights and Liberties, with- out stopping his ears, and skulking behind a merce- nary army to defend him against it ! If "reason" Mr. Canning, be "as good out of doors as in," then why, good Sir, shall not "compulsion" be so likewise? It was "compulsion out of doors" that persuaded the perjured John to sign Magna Charta. It was "Compulsion out of doors" that de- throned the second Edward and the second Richard, for deeds of folly and mischief. It was "compulsion out of doors" that put an end to tyrannical exactions of prerogative by Charles the First. It was "com- pulsion out of doors" that chased from the throne, and freed England from the tyranny of his bigoted son James. What did not "compulsion out of doors" do for our kindred of Anglo- America? What is it not now 105 RESISTANCE AND ARMSBEARIKG doing for all South America, Mexico, and heroic Greece? Hath it not gloriously triumphed in Spain and Portugal? Then, I pray you, Mr. Canning, to give us a "reason, 3 ' why, since our Constitution so amply provides the means of "compulsion out of doors" and therefore commands it when necessary why, I pray you, should "reason out of doors," when addressed to usurping Oligarchs, not prove so very "good" in their estimation as you say why, I pray you seeing that our same CONSTITUTION had re- quired every man to be armed, and the aggregate to be organized in aCounty Power, as an infallible shield against oppression, and as means of Resistance by physical force to Tyranny by physical force, shall we not have back that shield ; that so, when necessary, we may apply a little of that same wholesome consti- tutional "compulsion," before the Boroughmongers shall have pillaged the Nation of its last shilling, and riveted around its neck a worse than Algerine yoke? As a preliminary to what is to be offered in support of the Third Element of the Constitution, it is neces- sary that we wholly divest ourselves of all ideas gen- erated or contracted by the presence of an unconstitu- tional Legislature de facto, imposed on us by the legislative revolution, and the other usurpations ef- fected by the Norm.an tyrant, who contrived not only to supersede the Wittenagemote of our Anglo-Saxon ancestors, but to lay a broad basis for succeeding ag- gravations of that great mischief; for it is the Wit- tenagemote that we must contemplate as our only proper Legislature de jure; without a recovery of which, it is manifest we cannot recover "that ancient Constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman" 29 (") Blackstone's Commentaries, Vol. 4, p. 420, 12th Ed., by Christ- ian, 1795. 106 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. " 1967 5 8 IN 9 2001 OCT27'67-4ffM LOAN DEC 4 ' 6 General Library < r>rrp> University of California W Berkeley