cessity, will depend largely upon the condition of public sentiment, its mere fitness and propriety being the only standard of right and wrong. We must therefore expect to find contradictory conclusions upon this question of necessity. In Pennsylvania it is not considered a work of necessity for a barber to shave his customers on Sunday,' while in Indiana it is deemed to be a question of fact, to be determined by a jury. In some States the running of railroad trains and the operation of street railroads are held to be necessary. In other States both have been held to be violations of the Sunday laws.5 The transportation of cattle received on Sunday, feeding stock and gathering the necessary feed, the gathering of grain which may be injured if left in the field until Monday, the expenditure of the labor necessary to prevent waste of sap in making maple sugar,' have been held to be lawful because they

Am. Rep. 396); Davis v. Somerville, 128 Mass. 594; Buck v. Biddeford, 82 Me. 433; Dougan v. State, 125 Ind. 130; Dorsey v. State, 125 Ind. 600. Traveling for pleasure in street cars now allowable in Connecticut. Horton v. Norwalk Tramway Co., 66 Conn. 272.

1 See Davis v. Somerville, 128 Mass. 594; McClary v. Lowell, 44 Vt. 116 (8 Am. Rep. 366); Logan v. Matthews, 6 Pa. St. 417; Johnson v. People, 31 Ill. 469.

2 Com. v. Jacobus, 1 Leg. Gaz. Rep. (Pa.) 491; State v. Schuler, 23 Wkly. Law Bul. 450; Commonwealth v. Waldman, 140 Pa. St. 89; State v. Wellott, 54 Mo. App. 310.

3 Ungericht v. State, 119 Ind. 379.

4 Com. v. Louisville & Nashville R. R. Co., 80 Ky. 291; Louisville & Nash. Ry. Co. v. Commonwealth (Ky.), 30 S. W. 878; Augusta & S. R. R. Co. v. Renz, 55 Ga. 126; Sullivan v. Maine Central Ry. Co., 82 Me. 196. See Jackson v. State, 88 Ga. 787.

5 Sparhawk v. Union Passenger R. Co., 54 Pa. St. 401; Com. v. Jeandell, 2 Grant Cas. 506; McNeely v. State, 94 Ga. 592.

6 Phil. & B. R. R. Co. v. Lehman, 56 Md. 209.

Edgerton v. State, 69 Ind. 588.

8 Turner v. State, 67 Ind. 595; Johnson v. People, 42 Ill. App. 594.

• Whitcomb v. Gilman, 35 Vt. 497. See Commonwealth v. Funk, 9 Pa. Co. Ct. Rep. 277, as to when it is necessary to work on Sunday to prevent a water overflow in oil-wells. To the same effect see Com. v. Gillespie, 146 Pa. St. 546.

were works of necessity. In other States similar acts were held to be unlawful, on the ground of not being deemed necessary.1

Later decisions are quite numerous, in which the question is asked and answered, what employments are permitted, as being works of necessity or charity, to be pursued on Sunday. Some of these cases are given in the note below."

1 State v. Goff, 20 Ark. 289; Jones v. Andrews, 10 Allen, 18.

2 Thus, a druggist is not allowed to sell soda water and other beverages. Splane v. Commonwealth (Pa.), 12 A. 431; Quinlan v. Conlin, 34 N. Y. S. 952; 13 Misc. 568. The continued operation on Sunday of an ice factory was held to be a work of necessity, as the stopping of the factory on Sunday would mean a loss of 24 to 30 hours on Monday in getting the factory in working order again. Hennersdorf v. State, 25 Tex. App. 597. The same ruling would apply to glass and other factories, where so much time is required in attaining the degree of temperature, high or low, which is needed in operating the factory. But not to the repair of a mill. Hamilton v. Austin, 62 N. H. 575. It is a work of necessity to shoe a stage horse. Nelson v. State, 25 Tex. App. 599. It is not a work of necessity to publish or sell a newspaper on Sunday. Handy v. St. Paul Globe Pub. Co., 41 Minn. 188; Commonwealth v. Matthews, 152 Pa. St. 166; Com. v. Suppert, 152 Pa. St. 169. So, likewise, the sale of cigars and tobacco. Commonwealth v. Marzynski, 149 Mass. 68; State v. Ohmer, 34 Mo. App. 115. It is a work of charity to subscribe on Sunday a sum of money for the liquidation of a church debt. Bryan v. Watson, 127 Ind. 42. So, also, telegraphic messages to members of one family, communicating important information, are works of necessity. Burnett v. West, Un. Tel. Co., 39 Mo. App. 599; West Un. Tel. Co. v. Wilson, 93 Ala. 32; West. Un. Tel. Co. v. Griffin, 1 Ind. App. 46.

CHAPTER VIII.

FREEDOM OF SPEECH AND LIBERTY OF THE PRESS.

§ 81. Police supervision prohibited by the constitutions. A popular government, and hence freedom from tyranny, is only possible when the people enjoy the freedom of speech, and the liberty of the press. If the individual is not free to publish by word of mouth or writing, or through the press, the complaints of encroachments of the government or of individuals upon his rights and liberties, he is deprived of his liberty, and he is not a freeman. Even if there were no special constitutional restrictions upon the governmental control of these rights, the State regulation would be unconstitutional, which denied the right of the individual to publish what he pleases, or which prohibited the publication of newspapers or other periodicals or books, on the general ground that they would involve the deprivation of liberty and the right to pursue happiness.

But the liberty of speech and of the press is not to be confounded with a licentiousness and a reckless disregard of the rights of others. No one can claim the right to slander or libel another, and the constitutions do not permit or sanction such wrongful acts. Liberty of speech and of the press, therefore, means the right to speak or publish what one pleases, the utterance of which does not work an injury to any one, by being false. The common law provided for the due punishment of such trespasses upon the right to reputation, and ordinarily these remedies, which prevail generally, afford sufficient protection to the individual and the public. But sometimes, and oftener in these later days, when the press has acquired extraordinary

power, these remedies prove ineffectual. The tendency of the press, at least of this country, is to publish sensational, and oftener false, accounts of individual wrongs and immoralities, to such an extent that newspapers too often fall properly within the definition of obscene literature. If possible, the publication of such matter should be suppressed, or at least published in such a way, as to do little or no harm to the morals of the community.1

Then again, we have newspapers, in whose columns we find arguments and appeals to passion, designed to incite the individual who may be influenced thereby to the commission of crimes, appeals to "dynamiters," socialists and nihilists, and all other classes of discontents, who believe the world has been fashioned after a wrong principle, and needs to be remodeled. Of course, those who do these reprehensible things may be punished for each overt act,

It

But the only effective remedy would be the establishment of a censorship over the press, by which such publication may be prevented, instead of being punished after the evil has been done. Under the general constitutional provisions, this supervision of the press would be permissible, and would not infringe the liberty of the individual. would be only such a restraint upon the liberty of speech and of the press, as would promote public welfare, and would be sanctioned as an exercise of the police power of the government. But such a control of the press would be very liable to abuse, and through it the absolute suppression of the press would be rendered possible, if the government should fall into the hands of designing men ;

1 In Kansas and Missouri the sale of newspapers, which are devoted largely to the publication of scandals, immoral occurrences, etc., is prohibited; and the constitutionality of the law has been sustained. In re Banks, 56 Kans. 242; State v. Van Wye, 136 Mo. 227. So, also, has a law been upheld in Texas, which imposed a tax upon the Sunday issues of newspapers, whether they are published within or without the State. Preston v. Finley, 72 Fed. 850; Thompson v. State, 17 Tex. App. 253; Baldwin v. State, 21 Tex. App. 591.

and at all events it would be an effective engine of oppression.

Profiting by their experience in the colonial days, when the English government exercised a control over the press, sometimes to the extent of prohibiting the publication of the paper, and always to the extent of suppressing all protests and arguments against England's oppressive acts; our forefathers provided by constitutional provisions, both in the Federal and in the State constitutions, that the liberty of speech and of the press shall not be abridged by any law. The provision varies in phraseology in the different constitutions, but the limitation upon the power of govern ment is the same in all cases. While this constitutional provision prohibits all control or supervision of the press in the way of a license or censorship, the slanderer or libeler may still be punished. He suffers the penalty inflicted by the law for the abuse of his privilege. The opinion of Chief Justice Parker of Massachusetts has been frequently quoted, and generally recognized as presenting the correct construction of this constitutional provision. In Commonwealth v. Blanding,' he says: "Nor does our constitution or declaration of rights abrogate the common law in this respect, as some have insisted. The sixteenth article declares that liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. The liberty of the press, not its licentiousness this is the construction which a just regard to the other parts of that instrument, and to the wisdom of those who founded it, requires. In the eleventh article, it is declared that every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for injuries or wrongs which he may receive in his person, property, or character;' and thus the general declaration in

1 3 Pick. 304, 313. See, also, Story on Constitution, § 1889; 2 Kent, 17; Wharton's State Trials, 323; Respublica v. Dennie, 4 Yeates, 207 (2 Am. Dec. 402).