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other; another, where it creates an ecclesiastical estab lishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honors, trusts, emoluments, privileges, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Roman Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honors, trusts, em pluments, privileges, and immunities.
§ 444. Probably, at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
§ 445. The next clause respects the liberty of speech, and of the press. That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any reasonable man. That would be, to allow every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen. A man might then, out of mere malice or revenge, accuse another of infamous
crimes; night excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn his domestic peace, and embitter · his domestic affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; might prejudice all the civil, political, and private rights of another; and might stir up sedition, rebellion, and even treason, against the government itself, in the wantonness of his passions, or the corruptions of his heart. Civil society could not go on under such circumstances. Men would be obliged to resort to private vengeance to make up for the deficiencies of the law. It is plain, then, that this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, property, or personal reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the government. It is in fact designed to guard against those abuses of power, by which, in some foreign governments, men are not permitted to speak upon political subjects, or to write or publish any thing without the express license of the government for that purpose.
§ 446. A little attention to the history of other coun tries, in other ages, will teach us the vast importance of this right. It is notorious, that, even to this day, in some foreign countries, it is a crime to speak on any subject, religious, philosophical, or political, what is contrary to the received opinions of the government, or the institutions of the country, however laudable may be the design, and however virtuous may be the motive. Even to animadvert upon the conduct of public men, of rulers, or of representatives, in terms of the strictest truth and courtesy, has been, and is, deemed a scandal upon the supposed sanctity of their stations and characters, subjecting the party to grievous punishment. In some countries, no works can be printed at all, whether of science, or literature, or philosophy, without the previous approbation of the government; and the press has been shackled, and compelled to speak only in the timid language, which the cringing
courtier, or the capricious inquisitor, has been willing to license for publication. The Bible itself, the common inheritance, not merely of Christendom, but of the world,. has been put exclusively under the control of government; and has not been allowed to be seen, or heard, or read, except in a language unknown to the common inhabitants of the country. To publish a translation in the vernacular tongue, has been in former times a flagrant offence.
§447. There is a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such, that, like the King of England, it could do no wrong, and was free from every inquiry, and afforded a perfect sanctuary for every abuse; that, in short, it implied a despotic sovereignty to do every sort of wrong, without the slightest accountability to private or public justice. Such a notion is too extravagant to be held by any sound constitutional lawyer, with regard to the rights and duties belonging to governments generally, or to the state governments in particular. If it were admitted to be correct, it might be justly affirmed, that the liberty of the press was incompatible with _the permanent existence of any free government. Mr. Justice Blackstone has remarked, that the liberty of the press, properly understood, is essential to the nature of a free state; but that this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter, when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press. But, if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done before, and since the Revolution, (of 1688,) is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of
peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will o individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is anv restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the dis "minating, or making public of bad sentiments, destructive of the ends of society, is the crime, which society corrects. A man may be allowed to keep poisons in his closet; but not publicly to vend them as cordials. And, after some additional reflections, he concludes with this mem orable sentence: "So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press."
§ 448. The remaining clause, secures "The right of the people peaceably to assemble and to petition for a redress of grievances,' a right inestimable in itself, but often prohibited in foreign governments, under the pretence of preventing insurrections, and dangerous conspir acies against the government.
§ 449. This would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions. It is impossible, that it could be practically denied, until the spirit of liberty had wholly disappeared, and the people had become so servile and debased, as to be unfit to exercise any of the privileges of freemen.
§ 450. The next amendment is, "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia, The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs ɔf ambitious men.
§ 451. The importance of this article will scarcely be
doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.
§ 452. The next amendment is, "No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war, but in a man ner to be prescribed by law." This provision speaks for itself. In arbitrary times it has not been unusual for military officers, with the connivance, or under the sanction of the government, to billet soldiers upon private citizens, without the slightest regard to their rights, or comfort
§ 453. The next amendment is, The enumeration n the Constitution of certain rights shall not be construed to deny, or disparage others retained by the People."