1901.-Section 3.

Sec. 3. That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the

The people created the federal government and conferred upon it powers of sovereignty over certain subjects, and the people of the respective states created the State Constitution and government to exercise the assumption of sovereign powers, so far as they were will ing to allow them to be exercised at all. The sovereignty of the state is vested in the people, but practically the people here includes only those vested with the exercise of the elective franchise. The people, for political purposes, cannot be considered as synonymous with qualified voters. Blair v. Rigley, 41 Mo. 63.

The maxim that "government rests upon the consent of the governor' is subject to this exception, "certain classes have been expressly excluded from the right to exercise the elective franchise; the woman, because she was supposed to be under the influence of her husband, infants and idiots, and lunatics and felons, because wanting in intelligence or freedom or liberty to exercise the right, or because they lack intelligence or virtue."-Cooley Const. Lim. 37, 38.

The elective franchise is a privilege rather than a right. Washington v. State, 75 Ala. 582.

[Sec. 3.]

The Sunday laws are justified upon two grounds, one upon the same ground which justifies those against profanity, and upon the other ground that one day in seven is needful to recuperate the exhausted energies of mind and body; that

1875.-Article I.

Sec. 4. That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship, nor to pay any tithes, taxes, or other rate, for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil

it is justifiable as a police regulation, or health laws.-Cooley Const. Lim. 590; Frolickstein v. Mayor of Mobile, 40 Ala. 725; Specht v. Commonwealth, 8 Penn. St. 312; State v. Bott, 31 La. 663; s. c., 33 Am. Rep. 224; State v. Baltimore & Ohio R. R. Co., 15 W. Va. 362; s. c., 36 Am. Rep. 803; State v. Common Pleas, 36 N. J. 72; s. c., 13 Am. Rep. 422.

Blasphemy is speaking evil of the Deity with intent to derogate from the divine majesty, and to alienate others from the love and reverence of God. Blasphemy is to God what calumny is to man, it tends to lessen reverence and to prevent the people having confidence in him.-Commonwealth v. Kneeland, 20 Pick. 206.

Sunday, as a religious institution, can receive no legal recognition, we secured it as a sanitary regulation, it benefits the individual; it has also been held to be the law of nature; that the physical condition of the individual needs this rest. It is said that those who most need cessation from labor would be unable to take it but for this law; that the feverish desire to acquire wealth and the greed and avarice of capital must be restrained. As Judge Field said in Ex parte Newman, 9 Cal. 502, "Labor is necessarily imposed as a condition of our race, and to protect labor is the highest office of our law."

A law is invalid which gives to one religious denomination a privilege which is not enjoyed equally by all other denominations. Shreveport v. Levy, 27 La. 671; Cooley Const. Law, 469.

1901.-Section 4.

civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.

Sec. 4. That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments

Religion is distinguishable from morality. The municipal law exacts obedience to the moral law. A law which would force the use of the bible and the koran, or any other religious books upon an unwilling pupil or patron, would be unconstitutional.-Tiedeman's Lim. Pol.

Pow. 163.

While the state law knows no church or denomination or religion, it does foster and encourage religious instinct and habits. Civil courts deal with civil rights and ecclesiastical courts with ecelesiastical rights. Church order and discipline can be enforced only in ecclesiastical courts. The property of the church will be protected by the civil courts.-Watson v. Jones, 13 Wall. 679; Grosvenor v. United Society, 118 Mass. 78; Baptist Church v. Wetherell, 3 Paige, 301.

"Christianity is a part of the common law of the state in a qualified sense -that is, its divine origin and birth are admitted; and, therefore, it is not to be maliciously and openly reviled and blasphemed against to the annoyance of believers and the injury of the public."Vidal v. Girard's Exec., 2 How. 127.

A Jew has no constitutional right to work on Sunday.-Frolickstein v. Mayor, 40 Ala. 725. See 76 Ala. 89; 59 Ala. 64; 53 Aia. 481; 50 Ala. 159; 22 L. R. A. 721; 58 Am. Rep. 772.

[Sec. 4.]

Gaithers' case, 102 Ala. 458; Wofford v. Meeks, 129 Ala. 349; Crudup's case, 85 Ala. 520; 15 Am. St. Rep. 333-343; 49 L. R. A. 612.

It is the liberty of speech and of the press which is preserved and not its licentiousness and tendency to publish sensational and false stories, nor that which appeals to passion, which is done to incite others to the commission of crimes, such as appeals to dynamiters,

socialists, and nihilists, and discontents, who believe the world is fashioned wrong and they must right it, who are not included within the meaning of the freedom of speech and of the press.Tiedeman's Lim. Pol. Pow. 190.

At common law it was an indictable libel to publish anything against the Constitution of the country, or the established form of government. The law allowed a temperate and calm discussion of public events and measures, but if the publication went beyond this, intended to excite tumult, it became criminal.-Regina v. Collins, 9 C. & P. 456; Cooley Const. Lim. 528.

In the case of Res Publica v. Dennie, 4 Yeates, 267; s. c., 2 Am. Dec. 402, the defendant was indicted in 1805 for publishing the following in a newspaper: "A democracy is scarcely tolerated at any period of national history. Its omens are always sinister, and its powers are unpropitious. With all the lights of experience blazing before our eyes, it is impossible not to discover the futility of this form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse in Rome. It has been tried in France and terminated in despotism. It was tried in England and rejected with the utmost loathing and abhorrence. It was on its trial here, and its issue will be civil war, desolation and anarchy. No wise man but discerns its imperfections; no good man but shudders at its miseries; no honest man but proclaims its fraud, and no brave man but draws his sword against its force. The institution of a scheme of polity so radically contemptible and vicious is a memorable example of what the villainy of some men can devise, the folly of others receive and both establish in spite of reason, reflection, and sensation."

Held, that whether libel or not de

1901.-Section 5.

on all subjects, being responsible for the abuse of that liberty.

Sec. 5. That the people shall be secure in their persons, houses,

pended upon intent of defendant in publishing.

Temperate criticism of public officers and their actions, character, and motive is allowable and legitimate, and great latitude is allowed so long as good faith inspires the communication. It is through the ballot box that the elector condemns or approves those who ask his suffrage. Whether the public have a right to vote for an officer or not, they have a right to be heard on the question of their selection, and they have a right to ask for their dismissal and right to complain of the official conduct, a right to petition for redress of grievances. A petition signed by a part of the citizens of New York, asking for the removal of the district attorney, charging that he was prostituting the office to private purposes, was held to be privileged; to support an action for libel, the plaintiff must show that it was malicious and groundless and presented for the purpose of injuring his character.-Thorn Blanchard, 5 Johns, 508.

V.

The term, "privileged communications," is applied to two classes: (1st) Those which, by reason of state policy, the law will not suffer to be foundation of civil suits; (2d) those in which the circumstances under which uttered rebut the legal inference of malice. The first class is absolutely privileged, the second is conditionally privileged. Embraced in the second class are cases where communication is made between persons closely related being related in the relation of confidence, and the statement is to the third party and also embraces cases where inquiry is made as to the character, credit, etc., of third parties.— Cooley Const. Lim. 526, 527.

[Sec. 5.]—

Search warrants are not allowed for the purpose of obtaining evidence, but they should be allowed only after the evidence has been obtained. There are exceptions to this rule, a few specific cases where that which is the subject of the crime is supposed to be concealed and the public has an interest in finding

1875.-Article I.

Sec. 6. That the people shall be secure in their persons, houses,

it and destroying it. Such as searches for stolen goods or for smuggled goods in violation of revenue law, or implements for gaming, counterfeiting, lottery tickets, liquors made in violation of revenue law or sold in violation of prohibition law, obscene books and papers or explosives, injurious materials, etc., but it is oftentimes better that crimes should go unpunished than that citzens should be liable to have their premises invaded, their private books and papers exposed or destroyed at the hands of ignorant and suspicious men, under the direction of ministerial officers who may bring such persons as ne pleases and who selects them on account of their physical courage rather than their sensitive regard for the rights or feelings of other people.-Cooley Const. Lim. 372.

The common law maxim, "every man's house is his castle," is guaran teed by the Constitutional provision of "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and that "no warrant shall issue except upon probable cause, supported by oath or affirmation, describing the place to be searched and the person or things to be seized."' It was said by Lord Chatham that "The poorest man in his cottage may bid defiance to all the forces of the crown; it may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter, but the king may not enter, and all his forces dare not cross the threshold of the ruined tenement.'

A search warrant must be issued only by a court of competent jurisdiction, it must be issued to the officer of the law, and not to the aggrieved party; it can be granted only upon probable cause, supported by oath or affirmation, and the warrant must describe the premises and the person or things to be taken.— Bishop Crim. Proc. 240-246; Tiedeman's Lim. Pol. Pow. 462.

"To enter a man's house by virtue of a warrant in order to procure evidence against him is worse than Spanish Inquisition-a law under which no English

man would wish to live an hour," said Lord Camden. Search warrants may be issued for the release of females in houses of ill-fame, for the recovery of children enticed away from their parents, and for the unlawful detention of any person. When it is to search for a person suffering from dangerous or infectious disease, the warrant can be issued in aid of civil process. The service of the warrant or process is subject to the limitation that the officer cannot break open the outer door, but may break open the inner door, if necessary for the service of process.-People v. Hubbard, 24 Wend. 369; Isley v. Nicholds, 12 Pick. 270.

Extent of authority to search the person of a prisoner, discussed in Ex parte Hurn, 92 Ala. 102; Cunningham v. Baker, 104 Ala. 160.

Forbids the issuance of a warrant without probable cause, and then on oath or affirmation; but arrest may be made without warrant.-Williams v. State, 44 Ala. 41; Johnson v. State, 82 Ala. 29; Cunningham v. Baker, 104 Ala. 160.

Statute providing for the arrest of a convict who has been paroled by the governor, and who has violated the conditions of his parole is not violative of this provision.-Fuller v. State, 122 Ala.

32.

[Sec. 6.]—

The trial of the accused, in order to be "due process of law," must be conducted in accordance with the established rules of practice, and the law of evidence and pleading, and this trial must be speedy, as a rule, at the next term of court after the commission of the crime; there are exceptions to this last provision, continuances to some extent are left to the good faith and discretion of the prosecuting attorney, guarded by the court in behalf of the

1875.-Article I.

papers, and possessions from unreasonable seizure or searches, and that no warrant shall issue to search any place, or to seize any person or thing, without probable cause, supported by oath or affirmation.

Sec. 7. That in all criminal prosecutions the accused has a right

prisoner. The trial must be public, but this does not mean that every person has a constitutional right to attend every trial, nor does it mean that the press have carte blanche for the publication of proceedings of criminal courts; this would allow a mass of moral filth in the form of reports of criminal cases which would render daily papers indecent and unfit for the reading of the youths of the land. Tiedeman's Lim. Pol. Pow. 87-89.

The accused is entitled to counsel of his own appointment, if able to obtain it, and if not, it is within the power and it is the duty of the court to appoint counsel to defend those unable to employ, and no attorney, without just cause or legal excuse, should refuse to perform.-Wayne Co. v. Waller, 90 Pa. 99 (35 Am. Rep. 636).

Trial by jury, unexplained, means the common law trial, and if at common law the court could try without a jury for a given offense, a jury is not now required. Whether the legislature could abolish jury trial in the absence of a constitutional guarantee is a judicial question; it is not certain that a constitutional guarantee is necessary to secure a jury trial.-Tiedeman's Lim. Pol. Pow. 95.

The accused is entitled to be confronted by the witnesses against him. There are a few exceptions to this rule, which result from necessity; one of these is, where a witness has testified on a former trial of the case for the same offense and has since died or is absent from the state, insane, or too ill to testify, or has been summoned and kept away by the accused, it is competent for the state to prove the testimony of such witness on the former trial. Dying declarations of the deceased in homicide cases is another exception to this rule.

1901.-Section 6.

right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so

Davis v. State, 17 Ala. 354; Finch's case, 81 Ala. 41.

Judicial trial is due process of law.Dorman v. State, 34 Ala. 216.

So is a statute prohibing distillation of grain.-Ingram v. State, 39 Ala. 247.

Regulating sale of fertilizers.-Steiner v. Ray, 84 Ala. 93.

Sale of lands belonging to minors.—84 Ala. 197; 113 Ala. 148; 117 Ala. 454.

Compensation to owner for private property taken.-166 U. S. 226; 45 Ala. 310, 322; Drake's case, 102 Ala. 501.

Implies right to be present before tribunal, to be heard by testimony, to controvert by proof.-Zeigler v. S. & N. R. Co., 58 Ala. 594.

Absolute liability imposed upon corporations for injuries done violates it.Zeigler's case, 58 Ala. 594.

Require railroads to pay costs of examining employes violates it.-Baldwin's case, 85 Ala. 619.

Requiring abutting property owners to pave streets does not violate it.-Birdsong's case, 126 Ala. 632; Klein's case, 89 Ala. 461.

A statute providing that actions shall not be tried at first term of court is valid.-Ex parte Pollard, 40 Ala. 77.

A statute providing that a defendant in execution may supersede the execution upon a mere suggestion, without any judicial determination as to the truthfulness of the suggestion is not due process of law.-Ashurst v. Phillips, 43 Ala. 158.

An act authorizing executors, guardians, trustees, etc., to invest trust funds in Confederate bonds held void.-Houston v. De Loach, 43 Ala. 364; Powell v. Boon, 43 Ala. 459; 43 Ala. 488; 43 Ala. 626.

A statute providing for the impounding of cattle, taken damage feasant, is

1875.-Article I.

to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and, in all prosecutions by indictment, a speedy public trial

a valid police regulation.-Dillard v. Webb, 55 Ala. 468.

A statute preventing the sale or removal of seed cotton, after sunset and before sunrise of succeeding day, is a valid police regulation.-Davis v. State, 68 Ala. 58.

Statutes requiring inspection and tagging of fertilizers are valid.-Steiner v. Ray, 84 Ala. 93.

Statutes requiring railroads to put in cattle guards and to fence their tracks are valid.—Birmingham Co. v. Parsons, 100 Ala. 662.

are

Ordinances establishing markets and prohibiting sale outside thereof valid.-Ex parte Byrd, 84 Ala. 17.

A statute making railroads liable for killing stock, without reference to negli gence, is not due process of law.—Zeig. ler v. S. & N. R. Co., 58 Ala. 594; S. & N. R. Co. v. Morris, 65 Ala. 193. (Clark v. A. G. S. R. Co., 126 Ala. 141 seems to conflict with these cases, though it may be said to be dictum.)

And statutes requiring railroad employes to be examined for color blindness are due process of law.-L. & N. R. Co. v. Baldwin, 85 Ala. 619.

A statute requiring the deposit of double the amount of purchase money to redeem from tax sale held void.Stoudenmire v. Brown, 48 Ala. 699. Statutes making tax deeds conclusive evidence of title are void.-Stoudenmire v. Brown, 48 Ala. 699; Calhoun Fletcher, 63 Ala. 574.

V.

A statute prohibiting an action of trover till criminal prosecution had for stolen property held not to deny due process of law.-Martin v. Martin, 25 Ala. 201.

A statute authorizing personal judgments against nonresidents without personal service held valid.-Betancourt v. Eberlin, 71 Ala. 461; (Bank of Spokane