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forbidden to "abridge" the freedom of speech or of the press. They were therefore recognized as existing rights. Hence it has been argued that the correct interpretation of the words must be found in the common law. In the opinion of the most prominent English jurists, however, the common-law freedom of the press is in substance merely freedom from a censorship, while in the United States the idea has always been given in fact and in law a far wider range. Cooley defines it as meaning that everything can be published which does not injure public morals or private reputation in a way punishable according to the principles of the common law. There is no responsibility for publication only in those cases which for various reasons are recognized as "privileged." Even proof of the truth of the alleged libel does not always assure immunity from punishment. In civil cases it is always sufficient; but if the complaint is a criminal one, the motive of publication must have been justifiable. In cases of the latter kind, the jury in many states decides not only questions of fact but also questions of law. In some states this principle extends to all actions for libel and slander. Juries always decide the questions of fact. That attacks against the government ought not to be punished as libels has been generally recognized, since the "sedition law," passed during the presidency of John Adams, was condemned by public opinion with great decision and bitterness as unconstitutional. Even attacks upon the form of the state cannot be punishable as long

immunities of citizens of the United States." In my opinion this clause cannot be given so comprehensive an interpretation. Compare § 82. See, also, U. S. vs. Cruikshank, 92 U. S., 542.

1 See Cooley, Constitutional Limitations, 425, 426; and Principles, 275 et seq. A distinction must be drawn between cases of conditional and unconditional privilege.

as the change is sought in a constitutional way. In case of plans for the violent subversion of the government or the state, seditious publications can, however, be produced before the criminal judge as part of the res gestæ.

$76. THE RIGHT TO ASSEMBLE AND TO PETITION. These rights are likewise guarantied in all the state constitutions. In them, as well as in the federal constitution, the former right is subject only to the condition that the people assemble "peaceably." Public authority can, therefore, interfere with a public meeting under no cir cumstances, unless a violation of law has become an accomplished fact. This right has never been in danger in the United States. The right of petition, on the contrary, during many years, occasioned the most heated contests in congress. This aroused much of the opposition of the free states to the steady, reckless and domineering advance of the slave-holding interests.

877. "THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS shall not be infringed" (second amendment); because a well-regulated militia is necessary to the security of a free state. It has therefore been argued that the constitutional provision refers only to arms necessary or suitable for the equipment of militia; although it must not be inferred from this that the right is restricted to those citizens who belong to the militia. As to whether or no the bearing of other arms can be forbidden, judicial decisions are far apart. It is, however, generally admitted that the secret carrying of arms can be prohibited.

$ 78. SLAVERY is prohibited throughout the entire domain of the Union by the thirteenth amendment. So, too, is "involuntary servitude," except as a punishment for crime, after due conviction.'

I pass over all other provisions relating to slavery, as they have now only an historic interest.

§ 79. CONTRACTS. No state shall pass any "law impairing the obligation of contracts" (art. I., sec. 10, § 1). This provision, unlike those in the first two amendments, relates wholly to the states. It does not follow, however, that congress may pass such laws. Here, as in all cases, the principle obtains that it has only the powers which are granted it by the constitution. The claim of an express grant of power to pass such laws can scarcely be made. Unquestionably, congress can as little impair the obligation of contracts as a state. If the federal government wishes, however, to violate any of its contracts, there will often be practically no legal remedy for this; for the right of suit against the United States exists only so far as they establish it by law. But as to claims for money under such contracts, the right to sue is granted. The court of claims has jurisdiction of all claims founded on a federal law, upon an order of an executive department or upon a contract, express or implied, with the government of the United States, and also of all claims referred to it for decision by either house of congress. But the obligations incurred under contracts are not always of such a kind that in case of non-performance the injured party can give his suit the form of a claim for money, or that damages in money can atone for his real damages. The proceedings under this constitutional provision in the federal and state courts furnish a mass of proofs of this. If these are studied more closely the student is inclined to regard it as, on the whole, a matter of good fortune that the prohibition is not expressly extended to the United States. If it had been, the labyrinth of judicial decisions, through which it is scarcely possible to thread one's way now, would probably be still more extensive and confusing. This apparently 1J. P. Bishop, Contracts, St. Louis, 1878.

simple clause, which was hardly mentioned in the debates over the adoption of the constitution, has proved to be one of the most important, has given occasion to as many legal controversies, perhaps, as all the rest of the constitution put together, and has laid the heaviest tasks upon judicial brains. Becoming complete master of the whole matter involved would be the task of a life-time, and the trouble taken would be ill repaid; for the decisions vary in manifold ways, and cut across each other at every imaginable angle. Indeed, a number of recent decisions let it seem quite possible that the very ground lines of constitutional law on this question, once supposed to be irrevocably and firmly drawn, will by and by be twisted into a radically different outline. I must therefore renounce the attempt to state, even in the most general way, what the actual constitutional law on this point is. I do so with the less hesitation because most of the questions involved scarcely come within my idea of the public law, although they form an important part of constitutional law, and are therefore, as a rule, treated in great detail in American books. I shall simply note as briefly as may be those points which are really of especial importance from the stand-point of public law.

As the constitution speaks simply of contracts, all kinds of contracts come under the provision-executed and executory, express and implied. The word covers, in fact, not only contracts between private persons, but also those between a state and private persons. On both these fundamental principles there is no difference of opinion. This is a scanty gain, however, for the importance in public law of these principles depends wholly upon the definition of the word "contract." Giving the word the narrowest possible meaning would have resulted in no difficulty worth notice. But the supreme court has given

the word a scope far beyond what is understood by it in ordinary speech. It is generally admitted that laws are not contracts; but contracts may be entered into by the state under the form of laws, and legislative donations to private persons, which come under the head of "grants," are contracts within the meaning of the constitution." Upon these two statements rests the whole significance in public law of this clause of the constitution. Their consequences reach to the very root of the whole body of constitutional law and involve the question of the political character of the constituent members of the Union. The legislative power of the states within their constitutional sphere is limited by this interpretation of the contract-clause in a way which, in the opinion of many, is absolutely incompatible with the existence of the autonomy of the states. All acts incorporating private corporations by general or special laws and all charters are contracts. In every such contract the state surrenders pro tanto its legislative will. A legislature binds all future legislatures as to the entire extent of the "contract." The provisions which are not in the proper sense of the word essential to the accomplishment of the object, but serve only to advance it, cannot be changed by the state alone any more than the essential provisions can be; for the constitution forbids not only the annulment, but every impairment of contracts. The state retains only the

1 Fletcher vs. Peck, Cranch, VI., 87, 137; Providence Bank vs. Billings, Peters, IV., 560.

2 Charters of municipal corporations are not "contracts" (Dartmouth College vs. Woodward, Wheaton, IV., 659, 694). Privileges granted them in the charter, such, for instance, as a ferry franchise, can be again withdrawn by the legislature. These privileges would be inviolable if granted to a private corporation. East Hartford vs. Bridge Co., Howard, X., 510.

3 Planters' Bank vs. Sharp, Howard, VI., 327. If, for instance, a state in incorporating a bank has agreed not to tax it beyond a cer