of a statute passed by the congress of the United States over a year prior to the act sub judice, and in that fact inheres the constitutional infirmity of the state legislation.

The rule is settled that the legislation of congress upon a subject within the limitation of the constitution, supersedes all state legislation, and by necessary implication prohibits it. Prigg v. Pennsylvania, 16 Pet. 539; Gibbons v. Ogden, 9 Wheat. 1.

It is not the mere existence of the power of congress to legislate where the power is not exclusive, but the fact that congress has exercised the power, which makes the exercise of the same power by the state incompatible with the exercise of the federal power; and the power of the state to enact similar legislation is thereby suspended until the repeal of the federal act. Sturges v. Crowninshield, 4 Wheat. 122; Davis v. Beason, 133 U. S. 333.

In Houston v. Moore, 5 Wheat. 1, Mr. Justice Washington declared at a formative period of our constitutional law: "The states cannot legislate upon a subject concerning which congress has already legislated under constitutional authority." And in Texas v. White, 7 Wall. 700, it was declared that the preservation of the states and the maintenance of their governments are as much within the design and care of the constitution of the United States, as the preservation of the Union, and the maintenance of the national government. Were the rule otherwise, it is manifest that a citizen could be twice indicted and tried for the same offence in the federal and state jurisdictions, respectively, contrary to the constitutional inhibition, which provides that he shall not be twice put in jeopardy for the same offence. Const. Amends., art. 5.

The rule is unquestionable that each government, state and federal, is supreme within its own sphere, and, therefore, a conviction or acquittal in the state jurisdiction could not be pleaded in bar to a similar indictment in the federal jurisdiction. Dodge v. Woolsey, 18 How. 331; Abelman v. Booth, 21 Id. 506; United States v. Tarble, 13 Wall. 397.

The cases cited in the Supreme Court, as a basis for sustaining this enactment, upon examination will be found not

to conflict with this principle, and it will be observed that they apply solely to situations where the state legislated in the absence of congressional legislation; or where by the federal act the right of the state to legislate concurrently was expressly conceded. Thus, in the earliest case cited (For v. Ohio, 5 How. 410) the federal legislation conceded to the states concurrent jurisdiction over counterfeiting.

In State v. Marigold, 9 How. 560, state legislation was not involved, and the court dealt only with an act of congress. In Ex parte Siebold, 100 U. S. 371, the question was as to the enforcement of federal election laws by state officials by which legislation the latter were created by congress pro hac vice federal officers in the elections concerning members of

congress.

The same question was presented in Ex parte Clarke, 100 U. S. 399. In In re Loney, 134 Id. 372, the power of the federal courts to punish for perjury, a person who falsely swore to his right to vote, before a state notary, in a congressional election, was presented, and it was again held that pro hac vice the notary was performing a federal function.

In Sexton v. California, 189 U. S. 319, the Extortion act passed by congress to prevent frauds in the internal revenue, expressly conceded to the states the power to pass similar legislation, thus impliedly denying the right to the states in the absence of such concession.

In Halter v. Nebraska, 205 U. S. 34, no federal question involving state jurisdiction was involved. The only inquiry was as to the constitutionality under the fourteenth amendment, in the absence of congressional legislation, of an act of Nebraska, prohibiting the use of the United States flag for advertising purposes in certain lines of trade and not in others.

None of these cases, it will be observed, militates against the fundamental constitutional rule, which was evolved when the settled construction of the constitution was in the making. and which by repeated adjudications has been emphasized since that day, notably so in the recent employment liability cases, involving the right of the state to legislate upon that

subject, in the absence of federal legislation dealing with interstate commerce.

Such was the status in the recent case of New York Central R. R. Co. v. Winfield, 244 U. S. 147, in which it is said: "When congress acts upon the subject all state laws covering the same field are necessarily superseded by reason of the supremacy of the national authority."

The second and third sections of the act sub judice are subject to further condemnation. They characterize as illegal not only an appeal to subvert the government by force, but also any attempt "by speech, writing, printing or in any other way whatsoever to incite or abet, promote or encourage hostility or opposition to the government of the United States or of the State of New Jersey."

The third section of the act provides that "any person who shall become a member of any organization, society or order organized or formed, or attend any meeting or counsel or solicit others so to do, for the purpose of inciting, abetting, promoting or encouraging hostility or opposition to the government of the United States or of the State of New Jersey, or who in any manner shall aid, abet or encourage any such organization, society, order or meeting in the propagation or advocacy of such a purpose shall be guilty of a high misdemeanor."

These provisions, prohibitive of the right of free speech, freedom of the press, and of free assembly, are in direct conflict with the guarantees of free speech and free assembly contained in the federal and state constitutions. The first amendment to the federal constitution provides that "congress shall make no law abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

The state constitution, article 1. section 5, provides that "every person may fully speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." The principle of free speech and freedom to assemble constitutes the corner stone of

American liberty, and when the right to exercise those fundamentals without the advocacy of force, is quiescently suppressed, "the lamp which guides our destiny" (to quote the trial court) will be as effectually extinguished as the lamp that shone at the shrine of Isis.

"The right of the people," says the United States Supreme Court, "peaceably to assemble for the purpose of petitioning congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, existed long before the adoption of the federal constitution." United States v. Cruikshank, 92 U. S. 542; Prosser v. Illinois, 116 Id. 252.

Change of the fundamental law by constitutional and legal methods is not condemned either by the constitution or the public policy of the nation or states. George v. Braddock, 45 N. J. Eq. 757.

The right to effect a change or alteration of the organic law by lawful methods, is the basic doctrine of popular rights, contained in the Declaration of Independence; and in pursuance of that declared policy, party organizations have been created since the inception of our system of government, and, as a result of that basic declaration, no less than eighteen amendments have been added to the federal constitution, many of them presenting radical changes in methods and structure of our government, as originally conceived and ordained.

This fundamental conception of party government, involv ing alteration and change by the recognized and prescribed constitutional methods, is set at naught, and substantially subverted by the legislation under consideration.

The sole prototype of this legislation in American constitutional history, is found in the Alien and Sedition acts of the Adams' administration, under the obloquy of which the federal party went into extinction and oblivion. Speaking of those enactments, the biographer of John Adams reflects the verdict of history, when he says: "No one has ever been able heartily or successfully to defend these foolish enactments of ill-considered legislation, which have to be abandoned by

State v. Tachin.

tacit general consent to condemnation." John Adams, p. 283.

93 N. J. L.

Morse's Life of

If legislation of this character is to pass unchallenged by courts of justice, whose officers are sworn to uphold the constitution as the very bedrock of our legal system, the time is not inopportune for a revision of the fundamental law, comporting with the excision of the guarantee contained in the Bill of Rights and Magna Charta, which have been the cherished legacy of British and American law since the epochal day at Runnymede.

Nor is it perceivable how party government, which is essentially one of criticism for the avowed purpose of "promoting opposition to the government," can at all subsist in such an atmosphere of constructive illegality. The presence of such legislation upon the statute book is not only subversive of personal liberty to speak, write and publish one's sentiments upon government policies, and in criticism of the acts of state and national agencies; rights which were upheld in the seventeenth century, in the King's Bench, in England, by Lord Erskine, in the famous trials of Hardy and Lord George Gordon, but its legal recognition is equally subversive of constitutional and party government, and must inevitably supersede it, by the substitution of a Napoleonic bureaucracy, in which the inevitable coup d'état awaits only the advent of the man on horseback.

Nor is its evil tendency limited to the continuance of the hectic exigency which engendered it, upon the theory of the civil law that, Inter armes leges silent, a doctrine which in the absence of a legitimate proclamation of martial law, has no place in constitutional government, but it extends its corroding insidious influence into the public mind and conscience, which to-day complaisantly applies its provisions to these unsophisticated Russians at the bar, and to-morrow adopting the precedent thus set, drags from the tribune a Patrick Henry, a John Brown or a Wendell Phillips to emphasize the absolute destruction of a constitutional ideal.

If one of these defendants be legally chargeable with an appeal to armed force (for there is no testimony of the kind