(dissenting). I would have no difficulty in acceding to an affirmation of this judgment upon any recognized legal ground not involving a denial of the constitutional right of the citizen, whether in war or peace, to lawfully criticise a public servant.
It is perfectly intelligible to assert that at common law sedition, which is essentially criticism of constituted authority. exerted over the people, was unlawful, because class government consisting of a sovereignty known as kings, lords and commons, in which power was conceived to descend by divine right to the king, and from the throne to the classes, and from the aristocracy by a principle of seepage to the people, was consistent with such a theory of lesé majestie. But in a constitutionally ordained republic, where all political power is vested in the people, and is imparted only as conceded by the people to their public servants, who are thus dressed in a little brief authority, the crime of sedition can find no place or excuse for recognition; for sedition at common law rose to the dignity of a crime against sovereignty, and did not involve a mere charge of moral, turpitude against a local administrative bureau, as is presented by the case at bar.' 2 Bouv. 974.
*207The framers of the constitution banished this conception of crime from the land when they defined treason in the constitution. as the only recognized crime against constitutional sovereignty ; and upon recognized principles of statutory construction. this specific inclusion of treason excluded any other species of crime, excepting those violations arising under military law and triable before courts-martial. Inclusio unius esl. exchxsio alte ñus.
At common law an office-holder of dignity represented the sovereign; here he represents the people, and instead of assuming the role of governor or administrator, by delegated authority from a sovereignty, he is essentially a public servant, responsible and answerable to his master, the people. Criticism of public servants, therefore, is essentially the right of the people, and guaranteed to them by the express provisions of the constitution.
The constitution (article 1, section 5) provides that “Every person may fully speak, write or publish Iris sentiments on all subjects.” &e. If the framers intended to limit the expression of view to peace times only, it is reasonable to assume they would have so expressed themselves, for they were perfectly inured to and inoculated with the doctrine of sedition, and specified it as one of the grievances, against royalty, in the Declaration of Independence. The effect of the majority opinion, therefore, is to read into the constitution a crime which cannot be found specified there, in the face of the' constitutional guarantee, securing the right of free speech to “every person” on “all subjects.” Its further effect is to declare as a pad of our constitutional inheritance that when war intervenes the constitutional guarantees are, ipso facto, suspended, and this contention is thus interpolated in the constitution without any citation of American authority to support it. but entirely upon a conception of the common law, peculiar to Coke, who antedated the constitution, and. who spoke for the class sovereignty, which he represented.
The conten!ion is based upon the theory that we have accepted the common law as part of our legal system, whereas the fact is indubitable that we have not accepted the common *208law, except to tlie extent that it is not inconsistent with our constitution, our public policy, and the spirit and genius of our government; and that the federal government never inherited the system, but must support a criminal prosecution upon the express provisions of the constitution- or of some statutory enactment, not inconsistent with its provisions. 1 Kent Com. 472; Van Ness v. Pacard, 2 Pet (U. S.) 137; Pawlet v. Clark, 9 Cranch 292; United States v. Wong Kum, 169 U. S. 649; Smith v. Alabama, 124 Id. 465.
Argummlum ab inconvenienii, however, is invoked, arid we are informed that liberal criticism by the people of a war and its methods of prosecution ma)'- weaken the morale of the troops at the front. If this argument be sound it simply presents a situation which the founders foresaw, and did not, deem necessary to provide against. Manifest!)’ we cannot amend the constitution, nor have we the constitutional right to trespass beyond our constitutional jurisdiction, and inject into the fundamental law a conception of public policy not only which the founders thought fit to omit therefrom, but which is diametrically opposed to the express provisions which they incorporated in the document, and the declared public policy upon which this government was founded.
The opinion proceeds upon the theory that there is in this land some super government made up of a superior office-holding class, which has the legal right to prosecute its policies without constitutional or popular restraint, and without adverse criticism during time of war. It thereby inverts the constitutional conception of democratic-republican government, and substitutes the servant in the place of the master; creates a governing class out of a temporary office-holding class, and hedges it about with a dignity and immunity which -at common law only surrounded the exalted environment of a king.
If the doctrine of the majority, opinion be conceded as applied to the individual, one is inclined to inquire what are its limitations? Is it applicable to legitimate newspaper criticism? Shall the doctrine extend to stifling the criticism of opposing political parties when assembled in convention? *209Shall it also extend its policy of enforced silence to the grand juror who in performance of his sworn duty seeks to investigate and expose by indictment, or otherwise, the public malefactor ?
Indeed, it becomes manifest that once we unleash from the constitutional moorings we are afloat, not upon unknown seas, but upon seas fraught with danger to the ideals and cherished policies of our democratic institutions.
Eor these reasons this judgment should he reversed.
For affirmance—The Chancellor, Sway:ze, Trenohakd, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Ackbrson, JJ. 10.
For revasal—Tiie Other Justice, Parker, Bergen, Min-turn, JJ. 4.