may be pronounced guilty ad libitum; and the | crime and offence being at once at their will, there would be an end of that constitution. By analogy, a similar construction may be made of our own constitution, and our judges thus got rid of. This may be of the most dangerous consequences. It admonishes us to use with caution these arguments against the common law; to take care how we throw down this barrier, which may secure the men we have placed in power; to guard against a spirit of faction, that great bane to community, that mortal poison to our land. It is considered by all great men as the natural disease of our form of government, and therefore we ought to be careful to restrain that spirit. We have been careful that when one party comes in it shall not be able to break down and bear away the others. If this be not so, in vain have we made constitutions; for if it be not so, then we must go into anarchy, and from thence to despotism and to a master. Against this I know there is an almost insurmountable obstacle in the spirit of the people. They would not submit to be thus enslaved. Every tongue, every arm would be uplifted against it; they would resist, and resist, and resist, till they hurled from their seats those who dared make the attempt. To watch the progress of such endeavors is the office of a free press; to give us early alarm, and put us on our guard against the encroachments of power. This, then, is a right of the utmost importance; one for which, instead of yielding it up, we ought rather to spill our blood. Going on, however, to precedents, I find another in the words of Chief Justice Jay, when pronouncing the law on this subject. The jury are, in the passage already cited, told the law and the fact is for their determination; I find him telling them that it is their right. This admits of no qualification. The little, miserable conduct of the judge in Zenger's case, when set against this, will kick the beam; and it will be seen that even the twelve judges do not set up, with deference, however, to their known abilities, that system now insisted on. If the doctrine for which we contend is true in regard to treason and murder, it is equally true in respect to libel. For there is the great danger. Never can tyranny be introduced into this country by arms; these can never get rid of a popular spirit of inquiry; the only way to crush it down is by a servile tribunal. It is only by the abuse of the forms of justice that we can be enslaved. An army never can do it. For ages it can never be attempted. The spirit of the country, with arms in their hands, and disciplined as a militia, would render it impossible. Every pretence that liberty can be thus invaded is idle declamation. It is not to be endangered by a few thousands of miserable, pitiful military. It is not thus that the liberty of this country is to be destroyed. It is to be subverted only by a pretence of adhering to all the forms of law, and yet, by breaking down the substance of our liberties; by devoting a wretched but honest man as the victim of a nominal trial. It is not by murder, by an open and public execution, that he would be taken off. The sight of this, of a fellow-citizen's blood, would at first beget sympathy; this would rouse into action, and the people, in the madness of their revenge, would break, on the heads of their oppressors, the chains they had destined for others. One argument was stated to the court of a most technical and precise kind. It was that which relates to putting on the record a part only of the libel. That on this no writ of error would lie. What was the answer given? That it could not be presumed judges could be so unjust. Why, it requires neither prejudice nor injustice, it may be matter of opinion. The argument goes to assert that we are to take for granted the infallibility of our judges. The court must see that some better reason must be given; that it must be shown that this consequence cannot ensue. If not, it is decisive against the argument. Surely this question deserves a further investigation. Very truly and righteously was it once the intention of the attorney-general that the truth should have been given in evidence. It is desirable that there should be judicial grounds to send it back again to a jury. For surely it is not an immaterial thing that a high official character should be capable of saying any thing against the father of this country. It is important to have it known to the men of our country, to us all, whether it be true or false; it is important to the reputation of him against whom the charge is made, that it should be examined. It will be a glorious triumph for truth; it will be happy to give it a fair chance of being brought forward; an opportunity, in case of another course of things, to say that the truth stands a chance of being the criterion of justice. Notwithstanding, however, the contrary is asserted to be the doctrine of the English courts, I am, I confess, happy to hear that the freedom of the English is allowed; that a nation with king, lords, and commons, can be free. I do not mean to enter into a comparison between the freedom of the two countries. But the attorney-general has taken vast pains to celebrate Lord Mansfield's character. Never, till now, did I hear that his reputation was high in republican estimation; never, till now, did I consider him as a model for republican imitation. I do not mean, however, to detract from the fame of that truly great man, but only conceived his sentiments were not those fit for a republic. No man more truly reveres his exalted fame than myself; if he had his faults, he had his virtues ; and I would not only tread lightly on his ashes, but drop a tear as I passed by. He, indeed, seems to have been the parent of the doctrines on the other side. Such, however, we trust, will be proved not to be the doctrines of the common law nor of this country, and that ir proof of this, a new trial will be granted. SPEECH ON THE REVENUE SYSTEM. Prior to the establishment of the federal com- | tions. If, in the public stations I have filled, I pact, the power of levying duties and imposts have acquitted myself with zeal, fidelity and disinterestedness; if, in the private walk of for the support of the general government, re-life, my conduct has been unstained by any sided only in the legislative Assemblies of the dishonorable act, if it has been uniformly conseveral States. When it became necessary to sistent with the rules of integrity, I have a meet the expenses and liquidate the debts incur- right to the confidence of those to whom I adred by the Union, the Congress had no greater out injustice. I am persuaded they will not dress myself: they cannot refuse it to me withpower than that of issuing requisitions upon refuse it to me. If, on the other hand, my pubthe State Assemblies. These requisitions, lic conduct has been in any instance marked through the "neglect and misconduct of the with perfidy, duplicity, or with sinister views State bodies," were inefficacious, and, in the of any kind; if any imputations, founded in fact, can be adduced to the prejudice of my language of Washington, were "little better private character, I have no claim to the conthan a jest and a byword throughout the land."|fidence of the committee; nor should I exIn this state of affairs, Congress, to save the country from the ruin and disgrace which seemed to hang over it, proposed that the State legislatures should empower the Congress to lay an impost. The following speech on this important question was delivered by Mr. Hamilton, in the Assembly of New York, on the eighteenth of February, 1787: There appears to me to have been some confusion in the manner of voting on the two preceding clauses of this bill; the first, for granting the impost to the United States, having been carried by a majority of one, and the last, for making the officers employed in the collection accountable to them, having been lost by a much larger majority. I was induced to hope, from the success of the first question, that the second would have met with equal success; as I presume gentlemen who meant to adhere to the act of the last session, would have opposed the whole of the present bill as unnecessary; and those who meant to depart from it, would be willing to agree substantially to the system recommended by Congress, as it had been adopted and modified by the other States generally. From the complexion of the votes on the last question, I am obliged to conclude, either that I was mistaken in my ideas of the intention of the committee, or that there is some misapprehension, in part, of the members. It becomes, therefore, necessary-to obviate such misapprehension, if any exists, and to discharge my duty at all events-to lay the subject fully before the committee, and to detail, at large, my reasons for wishing to see the bill, in its present form, prevail. It is a common practice, in entering upon the discussion of an important subject, to endeavor to conciliate the good will of the audience to the speaker, by professions of disinterestedness and zeal for the public good. The example, however frequent, I shall no further imitate than by making one or two general observa pect it. Even these observations I should have spared myself, did I not know that, in the rage of party, gross calumnies have been propagated. Some I have traced and detected: there may still be others in secret circulation, with which I am unacquainted. Against the influence of such arts I can have no other shield than the general tenor of my past conduct. If that will protect me, I may safely confide in the candor of the committee. To that standard I cheerfully submit. But, indeed, of what importance is it who is the speaker? 'tis his reasons only that concern the committee; if these are good, they owe it to themselves and to their constitution to allow them their full weight. The first objection (and that which is supposed to have the greatest force) against the principles of the bill, is, that it would be unconstitutional to delegate legislative power to Congress. If this objection be founded in truth, there is at once an end of the inquiry. God forbid that we should violate that constitution which is the charter of our rights. But it is our duty to examine dispassionately whether it really stands in our way. If it does not, let us not erect an ideal barrier to a measure which the public good may require. The first ground of the objection is deduced from that clause of the constitution which declares "that no power shall be exercised over the people of this State but such as is granted by or derived from them." This, it is plain, amounts to nothing more than a declaration of that fundamental maxim of republican government, "that all power, mediately or immediately, is derived from the consent of the people," in opposition to those doctrines of despotism which uphold the divine right of kings, or lay the foundations of government in force, conquest, or necessity. It does not at all affect the question how far the legislature may go in granting power to the United States. A power conferred by the representatives of the people, if warranted by the constitution under which they act, is a power derived from the people. This is not only a plain inference of reason, but the terms of the clause itself, seem to have been calculated to let in the principle. The words, “derived from," are added to the words "granted by," as if with design to distinguish an indirect derivation of power from an immediate grant of it. This explanation is even necessary to reconcile the constitution to itself, and to give effect to all its parts, as I hope fully to demonstrate in its proper place. The next clause of the constitution relied upon, is that which declares that "the supreme legislative power within this State shall be vested in a Senate and Assembly." This, it is said, excludes the idea of any other legislative power operating within the State. But the more obvious construction of this clause, and that which best consists with the situation and views of the country at this time, with what has been done before and since the formation of our constitution, and with those parts of the constitution itself which acknowledge the federal government, is this "In the distribution of the different parts of the sovereignty in the particular government of this State, the legislative authority shall reside in a Senate and Assembly," or in other words, "the legislative authority of the particular government of the State of New York shall be vested in a Senate and Assembly." The framers of the constitution could have had nothing more in view than to delineate the different departments of power in our own State government, and never could have intended to interfere with the formation of such a constitution for the Union as the safety of the whole might require. The justness of this construction will be further elucidated by that part of the constitution which prescribes that "the supreme executive authority of the State shall be vested in a governor." If the former clause excludes the grant of legislative power, this must equally exclude the grant of the executive power, and the consequence would be that there could be no federal government at all. observed) if the constitution prohibits the delegation of legislative power to the UNION, it equally prohibits the delegation of executive power-and the confederacy must then be at an end; for without legislative or executive power, it becomes a nullity. Unfortunately for the objection, if it proves any thing it proves too much. It proves that the powers of the Union in their present form are an usurpation on the constitution of this State. This will appear not only from the reasoning adduced, but from this further consideration,-that the United States are already possessed of legislative as well as executive authority. The objects of executive power are of three kinds, to make treaties with foreign nations, to make war and peace, to execute and interpret the laws. This description of the executive power will enable us the more readily to distinguish the leg. lative; which in general may be defined the power of prescribing rules for the community. The United States are authorized to require from the several States as much money as they judge necessary for the general purposes of the Union, and to limit the time within which it is to be raised: to call for such a number of troops as they deem requisite for the common defence in time of war-to establish rules in all cases of capture by sea or land-to regulate the alloy and value of coin, the standard of weights and measures, and to make all laws for the government of the army and navy of the Union. All these are powers of the legislative kind, and are declared by the confederation to be binding upon all the States. The first is nothing less than a power of taxing the States in gross, though not in detail; and the last is the power of disposing of the liberty and lives of the citizens of this State, when in arms for the common defence. That the powers enumerated are all, or most of them, of a legislative nature, will not be denied by the law members on the other side of the question. If the constitution forbids the grant of legislative power to the UNION, all those authorities are illegal and unconstitutional, and ought to be resumed. It will be of no avail to say, that there is a difference in the two cases in the mode of ex- If, on the contrary, those authorities were pression; that, in one, the terms of description properly granted, then it follows that the coxare "within the State," in the other, "of the STITUTION does not forbid the grant of legislaState." In grammar, or good sense, the dif- tive power, and the objection falls to the ference in the phrases constitutes no substan-ground; for there is nothing in the constitutial difference in the meaning, or if it does, it concludes against the objection; for the words, within this State, which are applied to the legislative power, have a certain precision that may be supposed to intend a distinction between that legislative power which is to operate within this State only, and that which is to operate upon this State in conjunction with the others. But I lay no stress on this observation. In my opinion, the legislative power "within this State" or the legislative power "of this State," amount in substance to the same thing, and therefore (as has been already | tion permitting the grant of one kind of legislative authority, and forbidding that of another. The degree or nature of the powers of legislation which it might be proper to confer upon the federal government, would in this case be a mere question of prudence and expediency, to be determined by general considerations of utility and safety. The principle of the objection under consideration would not only subvert the foundation of the UNION as now established—would not only render it impossible that any federal government could exist; but would defeat some of the provisions of the constitution itself. This last idea deserves particular attention. The nineteenth clause makes it the duty of the Governor "to correspond with the Continental Congress." The twentieth provides "that the judges and chancellor shall hold no other office than delegate to the GENERAL CONGRESS;" and the thirtieth directs "that delegates to represent this State in the General Congress of the United States of America shall be annually appointed." Now, sir, I ask, if Congress were to have neither executive nor legislative authority, to what purpose were they to exist? To what purpose were delegates to be annually appointed to that body? To what purpose were these delegates to represent this State? Or how could they be said to represent it at all! Is not the plain import of this part of the constitution, that they were to represent this State in the General Assembly of the UNITED STATES, for the purpose of managing the common concerns of the Union? And does not this necessarily imply that they were to be clothed with such powers as should be found essential to that object? Does it amount to a constitutional warrant to the legislature to confer those powers, of whatever kind they might be? To answer these questions in the negative, would be to charge the constitution with the absurdity of proposing to itself an end, and yet prohibiting the means of accomplishing that end. The words "to represent this State," are of great latitude, and are of themselves sufficient to convey any power necessary to the conduct and direction of its affairs in connection with the other parts of the confederacy. In the interpretation of laws it is admitted to be a good rule to resort to the coexisting circumstances, and collect from thence the intention of the framers of the law. Let us apply this rule to the present case. dent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things that independent States may of right do." Hence we see that the UNION and INDEPENDENCE of these STATES are blended and incorporated in one and the same act; which, taken together, clearly imports that the United States had in their origin full power to do all acts and things which independent States may of right do; or, in other words, full power of sovereignty. Accordingly, we find that upon the authority of that act only approved by the several States, they did levy war, contract alliances, and exercise other high powers of sovereignty, even to the appointment of a dictator, prior to the present confederation. In this situation, and with this plenitude of power, our constitution knows and acknowl edges the United States in Congress assembled, and provides for the annual appointment of delegates to represent this State in that body; which, in substance, amounts to a constitutional recognition of the UNION, with complete sovereignty. A government may exist without any formal organization or precise definition of its powers. However improper it might have been, that the federal government should have continued to exist with such absolute and undefined authority, this does not militate against the position that it did possess such authority. It only proves the propriety of a more regular formation to ascertain its limits. This was the ob ject of the present confederation, which is, in fact, an abridgment of the original sovereignty of the UNION. It may be said, (for it has been said upon other occasions,) that, though the constitution did consider the United States in the light I have described, and left the legislature at liberty in the first instance to have organized the federal government in such a manner as they thought proper, yet that liberty ceased with the establishment of the present confederacy. The discretion of the legislature was then de This, upon the face of it, is a subtilty, uncountenanced by a single principle of government, or a single expression of the constitution. It is saying that a general authority given to the legislature for the permanent preservation and good of the community, has been exhaust In the commencement of the Revolution, delegates were sent to meet in Congress with large discretionary powers. In short, generally speaking, with full power "to take care of the republic." In the whole of this transac-termined. tion the idea of an UNION of the colonies was carefully held up. It pervaded all our public acts. In the Declaration of Independence we find it continued and confirmed. That declaration, after setting forth its motives and causes, proceeds thus: "We, therefore, the representatives of the United States of America in gen-ed and spent by the exercise of a part of that eral Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies. solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown, and that We see, therefore, that the constitution all political connection between them and the knows and acknowledges the United States in State of Great Britain is, and ought to be, to- Congress; that it provides for the annual aptally dissolved; and that, as free and indepen-pointment of delegates to represent this State authority. The position is the more destitute of color, because the confederation, by the express terms of the compact, preserves and continues this power. The last clause of it authorizes Congress to propose, and the States to agree to such alterations as might be afterwards found necessary or expedient. in that body, without prescribing the objects or limits of that representation; that at the time our constitution was framed, the Union existed with full sovereignty; and that therefore the idea of sovereignty in the Union is not incompatible with it. We see, further, that the doctrine contained in the objection against granting legislative power, would equally operate against granting executive power, would prove that the powers already vested in the Union are illegal and unconstitutional, would render a confederacy of the States in any form impracticable, and would defeat all those provisions of our own constitution which relate to the United States. I submit it to the committee, whether a doctrine pregnant with such consequences can be true; whether it is not as opposite to our constitution as to the principles of national safety and prosperity; and whether it would not be lamentable if the zeal of opposition to a particular measure should carry us to the extreme of imposing upon the constitution a sense foreign to it; which must embarrass the national councils upon future occasions, when all might agree in the utility and necessity of a different construction. If the arguments I have used under this head are not well founded, let gentlemen come forward and show their fallacy. Let the subjecu have a fair and full examination, and let truth, on whatever side it may be, prevail! Flattering myself it will appear to the committee that the constitution, at least, offers us no impediment, I shall proceed to other topics of objection. The next that presents itself, is a supposed. danger to liberty from granting legislative power to Congress. ness. | intervention of thirteen deliberatives betweer the call and the execution. Congress agreed to the measure, and recom mended it. This State complied without hesi tation. All parts of the government-Senate, Assembly, and Council of Revision-concur red; neither the constitution nor the public liberty presented any obstacle. The difficulties from these sources are a recent discovery. So late as the first session of the legislature, after the evacuation of this city, the governor of the State, in his speech to both Houses, gave a decided countenance to the measure. This he does, though not in express terms, yet by implications not to be misunderstood. The leading opponents of the impost, of the present day, have all of them, at other times, either concurred in the measure, in its most exceptionable form, and without the qualifica tions annexed to it by the proposed bill, or have, by other instances of conduct, contradicted their own hypothesis on the constitution, which professedly forms the main prop of their opposition. The honorable member in my eye (— at the last session, brought in a bill for granting to the United States the power of regulating the trade of the Union. This surely includes more ample legislative authority than is comprehended in the mere power of levying a particular duty. It indeed goes to a prodigious extent, much further than, on a superficial view, can be imagined. Can we believe that the constitutional objection, if well founded, would so long have passed undiscovered and unnoticed? Or, is it fair to impute to Congress criminal motives for proposing a measure which was first recommended to them by five States, or from persisting in that measure, after the unequivocal experience they have had of the total inefficacy of the mode provided in the confederation for supplying the treasury of the Union? But, before I enter upon this subject, to remove the aspersions thrown upon that body, I shall give a short history of some material facts relating to the origin and progress of the busiTo excite the jealousies of the people, it has been industriously represented as an undue attempt to acquire an increase of power. It has been forgotten, or intentionally overlooked, that, considering it in the strongest light as a proposal to alter the confederation, it is only exercising a power which the confederation has in direct terms reposed in Congress, who, as before observed, are, by the thirteenth article, expressly authorized to propose altera-bers of Congress are annually chosen by the tions. But so far was the measure from originating in improper views of that body, that, if I am rightly informed, it did not originate there at all. It was first suggested by a convention of the four Eastern States, and New York, at Hartford, and, I believe, was proposed there by the deputies of this State. A gentleman on our bench, unconnected with Congress, who now hears me, (I mean Judge Hobart,) was one of them. It was dictated by a principle which bitter experience then taught us, and which, in peace or war, will always be found true-that adequate supplies to the federal treasury can never flow from any system which requires the I leave the answer to these questions to the good sense and candor of the committee, and shall return to the examination of the question, how far the power proposed to be conferred upon Congress would be dangerous to the liberty of the people. And here I ask— Whence can this danger arise? The memmembers of the several legislatures. They come together with different habits, prejudices, and interests. They are, in fact, continually changing. How is it possible for a body so composed to be formidable to the liberties of States-several of which are large empires in themselves? The subversion of the liberty of these States could not be the business of a day. It would at least require time, premeditation, and concert. Can it be supposed, that the members of a body so constituted, would be unanimous in a scheme of usurpation? If they were not, would it not be discovered and disclosed? It we could even suppose this unanimity among |