XV
OTHER LEGISLATION AFFECTING INDIVIDUAL RIGHTS
Legislation concerning freedom of speech and its limitations, the law of slander and libel, hardly exists in America, except only the efforts of newspapers to be free of the consequences of libels published by them, provided they publish a retractation; and the efforts of the people to protect their reputation and right to privacy, as by laws like that of the State of Pennsylvania prohibiting ridiculous or defamatory cartoons, even of persons in public life; and the legislation already attempted in some States to prohibit the use of a person's likeness for advertising purposes, or to protect them from the kodak fiend, or even to establish a general right to privacy as to their doings, engagements, social entertainments, etc., when they are of no legitimate interest to the public. Legislation in these directions has, however, only made a beginning.
The newspaper-libel laws usually provide that the retractation shall be a defence to a libel suit, at least if published in as large a type and in as conspicuous a manner as the original article complained of; sometimes they only provide that in such cases the newspaper shall be relieved of all but actual damages. The wisdom of such legislation is questionable, as the old adage runs: "A lie will travel around the world while the truth is putting on its boots"; moreover, it is questionable whether they are not class legislation in extending to a certain form of business or a certain trade a protection which is not extended to others. There has been much legislation preventing the advertising of patent medicines, immoral remedies, divorce advertisement, and such matters. Some newspapers have objected to it, but the right of freedom of the press does not include the right to the use of the mails, and the papers containing the objectionable advertisements may constitutionally be seized or denied delivery, just as convict-made goods may be denied circulation in interstate commerce, by act of Congress, not, of course, of the States. Mr. Gompers, of the American Federation of Labor, has complained that the injunction of their so-called "unfair list" is an interference with the freedom of the press, and I presume would claim that an injunction against urging, or combining to urge, by oral argument, the members of the various unions throughout the country to boycott a certain person, would be an interference with the right of freedom of speech, and that therefore if the courts did not so decide, the laws should be changed by statute. This, also, would seem open to the objection of class legislation if extended only to speech or publication in industrial disputes. It should be noted, however, that the broad principle of freedom of speech by all persons and at all places is first adopted in the American constitutions, freedom of speech in England in its historical principles extending only to freedom of speech in the House of Parliament, and the right of assembly and petition at a public meeting; freedom of the press, however, is the same constitutional principle in both countries, but only extends to the right to publish without previously obtaining the consent of any censor or other authority, and the person publishing still remains responsible for all damages caused by such act. It is this part of the law which Mr. Gompers would alter, or rather make absolute; so that any notice or threat could be printed and circulated even when a component act of a conspiracy.
By a recent act of Congress the right of freedom of speech does not extend to anarchistic utterances, or speeches or writings aimed against order, the established government, and inciting to assassination or crime. Such laws are barely constitutional as applied to United States citizens. The unpopularity of the alien and sedition laws under the administration of John Adams will be remembered. Since their repeal, no attempt at a law of government libel has been made; very recently, however, where certain gentlemen, mostly holding important government offices, were charged with having made money out of the Panama Canal purchase, the weight and influence of the administration was given to the attempt to indict them and bring them to the courts of the central government at Washington for trial. This attempt, however, failed in the courts, as, in the Wilkes case, it had failed more than a century before at the bar of public opinion.
But the law is, of course, much stronger as to persons not citizens. That is to say, no one has any right to immigrate into this country, and therefore intending immigrants may be kept out by legislation if they are anarchists, socialists, or, indeed, hold any opinion for the moment unpopular with Congress. The attempt has so far, however, not been made to keep out any but violent anarchists, and, of course, persons who are diseased, of immoral life, or likely to become a public charge. And the attempt to keep them under the hand of the central government for years after they have taken their place for good or ill in the State body politic has recently failed in a monumental case vindicating anew the Tenth Amendment.
Connected in most people's mind with the right of privacy is the right of a person to keep his house and his private papers to himself; but it bears no relation whatever to the very new-fangled notion of a general right to privacy. The two principles are that an Englishman's house is his castle. His home, even though it be but one room in a tenement, may not be invaded by anybody, even by any government official or authority (except, of course, under modern sanitary police regulation), without a written warrant specifying the reason for such invasion, some offence with which the man is charged, and some particular document or paper, or other evidence of which they are in search. The principle against general warrants—that is, warrants specifying no definite offence or naming no particular person—was established in Massachusetts in Colony times, and the principle taken over to England and affirmed by Lord Camden—one of the two or three celebrated examples where we have given a new constitutional principle back to the mother country. Now, closely connected with this is another principle that a man shall not be compelled to testify in a criminal matter against himself, or that, if so compelled by statute or official, he shall then forever be immune from prosecution for any crime revealed by such testimony; the wording of the earlier constitutional provisions was "in a criminal offence," but by modern, more liberal interpretation, it has been extended to any compulsory testimony, whether given in a criminal proceeding or not. This, with the principle protecting a man's private affairs from inquisition, is expressed in our Fourth and Fifth Amendments, the former prohibiting unreasonable searches and general warrants, and the latter providing that no one shall be compelled in any criminal case to be a witness against himself, nor deprived of property without due process of law, and it has reasonably been argued that an inquisition into a person's business or book of accounts is such deprivation of his property without due process of law, at least when applied to a natural person. I find no legislation limiting these important principles, but on the contrary the tendency in modern statutes and modern State constitutions is to extend and generalize them. Of such is the famous clause of the recent constitutions of Kentucky and Wyoming that "absolute arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority." In view of the frequently successful efforts of trust magnates and others to escape indictment or punishment by some enforced revelation of their affairs given after a criminal proceeding has has been commenced or before a grand jury, legislation is now strongly urged to withhold them immunity in such cases. This would relegate us to the early state of things where they would simply refuse to answer, so that it may be doubted if, on the whole, we should gain much. The right of an Englishman not to criminate himself is too cardinal in our constitutional fabric to be questioned or to be altered without subverting the whole structure. Practically it would seem as if a little more intelligence on the part of our prosecutors would meet the evil. Corporations themselves are never immune; and unless the wicked official actually slept with all the books of the corporation under his pillow, it would be hard to imagine a case where some corporate clerk or subordinate officer could not be subpoenaed to produce the necessary evidence. Indeed, as has been well argued by leading American publicists, the sooner the public learns to go behind the figment of the corporation, the screen of the artificial person, into the human beings really composing it, the quicker we shall arrive at a cure for such evils as may exist. Legislation punishing or even fining an offending corporation is in the last sense ridiculous. It is necessarily paid by the innocent stockholders or the public. There is always some one person or a number of persons who have done or suffered the things complained of; after all, every act of the corporation is necessarily done by some one or more individuals. We must get over our metaphysical habit of treating corporations as abstract entities, and again recognize that they are but a definite number of natural persons bound together only for a few definite interests and with real men as officers who should be fully responsible for their actions. Indeed, it ought to be simpler to detect and punish offenders than in the case of mere individuals unincorporated, for the very fact that a corporation keeps books and acts under an elaborate set of by-laws and regulations gives a clew to its proceedings, and indicates a source of information as to all its acts. One clerk may therefore reveal, and properly reveal, books and letters which shall incriminate "those above"; one employee may show ten thousand persons guilty of an unlawful combination, and properly so. There is no reason why he should not, and the nine thousand nine hundred and ninety-nine others deserve, and are entitled to, no immunity whatever from his revelation.
The religious rights, although for the most part peculiar to the American Constitution, adopted by us, indeed, as a result of the history of the two or three centuries preceding in England, but hardly in any particular a part of the British Constitution, were by the reason of our very origin so strongly asserted and so highly valued with us that no legislation has been found necessary on the subject. Perhaps the sole important instance in which the question has come up has been that of instruction in the public schools and the use of the money raised by common taxation for special religious purposes. Very generally the latter is forbidden in our State constitutions, the Federal Constitution by the First Amendment merely protecting the right from the action of Congress. Owing to decisions of the Supreme Court, in the South it has become possible to divide school appropriations between schools for whites and blacks, and it is presumable that the same thing might be done as, for instance, between Roman Catholics and others, and something of the sort has, I believe, been done with the appropriations for the education of Indians.
The few statutes we find upon this matter tend to still further extend and liberalize religious rights. Almost universally now a man is not forbidden from testifying or being a witness by reason of his belief or disbelief, even when he is an atheist. The latter law is not, however, quite universal. He must, in some States, believe at least in the existence of God, or of a future state of reward or punishment. Mormons, at one time, claimed the right to practise polygamy as a part of their religion guaranteed to them by the Constitution; the contention did not prevail; on the contrary the Mormon States were made to submit to an enabling act under which they bound themselves to adopt State constitutions providing for all time against polygamous practices. Such a treaty is not, of course, binding upon a sovereign State unless Mormonism be deemed inconsistent with a republican form of government; so that Utah, for instance, has probably the right to re-establish Mormonism to-morrow so far as the Federal Constitution is concerned. Whether it would be permitted by a strenuous president having public sentiment at his back may indeed be questioned. In like manner, Christian Science practitioners have invoked the constitutional right of religious belief against the common law requiring that those offering themselves to practise medicine should be reasonably skilled in their trade. Legislation permitting Christian Scientists to practise freely has been attempted in nearly all the States, but has not, so far as I am informed, succeeded in any, although a good many States have adopted statutes extending the right to osteopaths. Under the common law of England, re-established in Massachusetts by a famous decision[1] twenty years ago, a person holding himself out as a surgeon or medical practitioner, who is absolutely uninstructed and ignorant, is guilty even of criminal negligence, and responsible for the death of his patient, even to the point of manslaughter.
[Footnote 1: Commonwealth v. Pierce, 138 Mass. 165.]