by their government is the right of peaceable assembly. It is as necessary that the public mind, that spiritual force that guides and moves the body politic, shall be brought into direct communication with all its parts in order that it may avail itself of the experience and know the needs of all members of the state as it is that the human brain shall have such relations with its various parts and hold in contemplation the experiences of all of the organs of the body relative to the environment in which it has lived. Otherwise neither could arrive at judgments useful to the organism which it would serve. True government must be the rational product of social experience. This experience can come from the people only. Those political devices erected to conserve the general welfare must be wrought out by the mature. judgment of the political people. To this end popular assemblies are indispensable and the right of peaceable assembly a prerequisite of freedom.

So far as is known to the writer, this right has never been questioned in this country. As if absolutely to preclude it ever being questioned, guaranties were incorporated in many of our early constitutions,3 and have since come to occupy a place in nearly all.*

2 There have been some attempts to prevent peaceable assembly, but these attempts have not, so far as is known to the writer, been sustained as resting on right.

3 Del., 1792, I, 16; Ky., 1792, XII (Poore, 655), 1799, X, 22; Mass., 1780, XIX; N. H., 1784, I, 32; 1792, I, 32; N. C., 1776; Dec. of R., XVIII; Ohio, 1802, VIII, 19; Penn., 1776, Dec. of R., XVI; 1790, IX, 20; Tenn., 1796, XI, 22; Vt., 1777, I, 18; 1786, I, 22; 1793, I, 20; Va., 1782, III, 16.

4 U. S. Const., Am. I; Ala., 1819, I, 22; 1865, I, 26; 1867, I, 27; 1875, I, 26; Ark., 1836, II, 20; 1864, II, 20; 1868, II, 4; 1874, II, 4; Cal., 1849, I, 10; Colo., 1876, II, 24; Conn., 1818, I, 16; Del., 1831, I, 16; Fla., 1838, I, 20; 1865, I, 20; 1868, I, 11; Ga., 1865, I, 7; 1868, I, 5; Ill., 1818, VIII, 19; 1848, XIII, 21; 1870, II, 17; Ind., 1816, I, 19; 1851, I, 31; Ia., 1846, I, 20; 1857, I, 20; Kans., 1855, I, 3; 1857, B. of R., 18; 1858, I, 3; 1859, B. of R., 3; Ky., 1850, XIII, 24; Me., 1820, I, 15; Mich., 1835. I, 20; Miss., 1817, I, 22; 1832, I, 22; 1868, I, 6; Mo., 1820, XIII,

But under the practices that prevailed in Europe during the latter part of the eighteenth century, such a guaranty in itself would be of little avail. The mere fact of congregation, or aggregation, of people, would be to no purpose for political ends. Communication is necessary. The right to express thought and feeling in oral or written form is essential; therefore the further guaranties of free speech and a free press. To those who have never lived in a land where the government exercised censorial functions, such provisions may seem superfluous, as being only a formal recognition of natural rights. But the colonists themselves had not always been free to speak and write what they thought; England, at the very time of our disaffection and for years preceding it, had been wrought to a fever heat by the persecutions of Wilkes, the prosecution of Wheble, Thompson, et al.; and although for decades the rights

3: 1865, I, 8; 1875, I, 29; Neb., 1866, I, 4; 1875, I, 19; Nev., 1864, 1, 10; N. J., 1844, I, 18; N. C., 1868, I, 25; 1876, I, 25: Ohio, 1802, VIII, 19; 1851, I, 3; Ore., 1857, I, 27; Penn., 1838, IX, 20; 1873, I, 20; R. I., 1842, I, 213 S. C., 1868, I, 6; Tenn.. 1834, I, 23; 1870, I, 23; Tex., 1865, I, 19; 1866, I, 19; 1868, 1, 19; 1876, I, 27; W. Va., 1872, III, 16; Wis., 1848, I, 4.

5 Under George II, the abuses of government became such as to stir up the press to opposition. A freedom of press was indulged in that was theretofore unknown. Says May (Const. Hist., of Eng., Vol. II, p. 247, Ed. London, 1889), commenting on the situation, "Lord Bute was the first to illustrate its power. Overwhelmed by a storm of obloquy and ridicule, he bowed down before it and fled. He did not attempt to stem it by the terrors of the law. Vainly did his hired writers endeavor to shelter him; vainly did the king uphold his favorite. The unpopular minister was swept away; but the storm continued. Foremost among his assailants had been the 'North Briton,' conducted by Wilkes, who was not disposed to spare the new minister, Mr. Grenville, or the court.

"On the 23d of April, 1763, appeared the memorable number 45 of the North Briton,' commenting on the king's speech at the prorogation, and upon the unpopular peace recently concluded. It was at once stigmatized as an audacious libel, and a studied insult to the king himself; * * * But, however bitter and offensive, it unquestionably assailed the minister rather than the king. ** A verdict was obtained

*

of free speech and free press had been accorded in America, yet the possibility of a government assuming to restrain the freedom of its people in this respect demanded that such limitations be imposed on those in power as to make restraint of this kind usurpation. Thus the first State constitution of Pennsylvania, 1776, provided that "The people have a right to freedom of speech and of writing and publishing their sentiments." The Constitution of Virginia, adopted the same year, affirmed that "the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic government." The provision of the Pennsylvania constitution above quoted was incorporated in the early constitutions of Vermont-17778 and 1786;" and the people of Massachusetts, 1780, inserted among their constitutional guaranties "The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in the commonwealth."10 This security was also adopted by New Hampshire, 1784.11

against Wilkes for printing and publishing a seditious and scandalous libel. At the same time the jury found his 'Essay on Woman' to be an obscene and impious libel.' But the other measures taken to crush Wilkes were so repugnant to justice and decency that these verdicts were resented by the people."

These were but the first of a series of prosecutions instituted against the persistent Wilkes. Williams, one of his printers of "No. 45,' was also sentenced to the pillory; this was the occasion for another popular demonstration, which resulted in a popular subscription of $1,000 in his behalf. R. Thompson, of "The Gazetteer, and New Daily Advertiser," and R. Wheble, of the "Middlesex Journal," were prosecuted, 1771, for printing debates of Parliament. The printers of six other newspapers fell into like disfavor, and official persecutions of a repressive character became so common as to work up the people almost to a point of insurrection.

• Const. 1776, Dec. of Rights, XII.

7 Const. 1776, Bill of Rights, 12.

8 Const. 1777, II, 32.

Const. 1786, I, 15.

10 Mass. Const., 1780, I, 16. 11 N. H. Const., 1784, I, 22.

In several of the new State formations during the revolutionary period, guaranties against their own government was scarcely thought of. Some are entirely devoid of a bill of rights, and had they remained independent it is probable that such provisions would at first have been less frequently employed.12 The organization of a federal government, however, revived the fear of governmental encroachments that had darkened the history of England and other European nations. The States adopting the federal constitution demanded additional guaranties,13 and first among these is found the guaranty that "Congress shall make no law abridging the freedom of specch or of the press, or of the right of the people peaceably to assemble."14

* * *

The federal government, having been restrained, it only remained for the people of the several States in framing their various constitutions, to impose such limitations there as they thought necessary. In Pennsylvania, 1790, the limitations relative to free speech and free press took the following form: "That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof.15 The free communication of thoughts

12 The constitution of the United States, as it left the constitutional convention, contained very few of the guarantees commonly found in a bill of rights. The necessity for such provisions seems to have been little felt by the delegates.

13 In the contest between the parties favoring and opposing the adoption of the federal constitution, the lack of guarantees for the freedom of the citizen against repressive acts on the part of the general government appealed to the people with such force that it was only after an understanding was had that such guaranties would be adopted as amendments that the federal scheme finally became operative

14 Const. of the U. S., Am. 1.

15 This may be directly attributable to the agitation concerning Wilkes, Wheble, Thompson, et al. No one was more thoroughly impressed with the necessity of such a guaranty than Franklin.

916

and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.' In Kentucky17 (1792, 1799 and 1850), Delaware18 (1792 and 1831), Ohio1o (1802), Indiana20 (1816) and Illinois21 (1818 and 1848) these guaranties took the same form. In others the special privilege granted to "persons who undertake to examine the proceedings of the legislature or any branch of government," was eliminated, and only the more general guaranty expressed, that "every citizen may freely speak, write or publish his sentiments on all subjects, being responsible for the abuse of that liberty.22 Or, that "the free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write or print on any subject, being responsible for the abuse of that liberty.23 In nearly all some form of limitation is at present found. These guaranties, however broad and sweeping they

16 Penn. Const. 1790, IX, 7.

17 Ky. Consts. 1792, XII; 1799, X, 7; 1750, XIII, 9. 18 Del. Consts. 1792, I, 5; 1831, I, 5.

19 Ohio, Const., 1802, VIII, 6.

20 Ind. Const., 1816, I, 9.

21 Ill., Consts., 1818, VIII, 22; 1848, XIII, 23.

22 Ala., 1819, I, 9; 1865, I, 5; 1867, I, 6; 1875, I, 5; Cal., 1849, I, 9; Colo., 1876, II, 10; Conn., 1818, I, 5; Fla., 1838, I, 5; 1865, I, 5; 1868, I, 10; Ga., 1865, I, 6; 1868, I, 9; Ill., 1870, II. 4: Ind., 1851, I, 9; Kans., 1855, I, 11; 1857, B. of R., 7; 1858, I, 11; 1859, B. of R., 11; Ia., 1846, I, 7; 1857, I, 7; La., 1852, 106; 1845, 119; 1864, 111; 1868, I, 4; Me., 1820, I, 4; Md., 1864, B. of R., 40; 1867, B. of R., 40; Mich., 1835, I, 7; Minn., 1857, I, 3; Miss., 1817, I, 6; 1832, I, 6; 1868, I, 4; Mo., 1875, II, 14; Neb., 1866, I, 3; 1875, I, 5; Nev., 1864. I. 9; N. J., 1844, I, 5; N. Y., 1821, VII, 8; 1846, I, 8; Ohio, 1851, I, 11; Ore., 1857, I, 8; Penn., 1776, B. of R., XII; S. C., 1868, I, 7; Tex., 1845, I, 5; 1866, I, 5; 1868, I, 5; 1876, I, 8; Vt., 1777, I, 14; 1786, I, 15; 1793, I, 13; Va., 1870, I, 14; Wis., 1848, I, 3.

23 Ark., 1836, II, 7; 1868. I, 2; 1874. II, 6; Ill., 1818, VIII, 22: 1848, XII, 23; Ind., 1816, I, 9; Ky., 1892, XII; 1799. X, 7: 1850, XIII, 9; La., 1812, VI, 21; Mo., 1820, XIII, 16; 1865, I, 27; Penn., 1790, IX, 7: 1838, IX, 7; 1873, I, 7; Tenn., 1796, XI; 187, I, 19; 1834, 1, 19.