Spencer, Attorney General.-The whole matter in issue are the words.

say, as matters of evidence, these precedents | in Great Britain. It was merely one more shall not prevail, and shall not have any effect. precedent to a certain course of practice. But In practice, on this declaratory act, they have because a colonial governor, exercising judicial gone into a construction important to our argu-power, subordinate to the judges of the mother ment. But, previously to entering into this, I country, decides in this way, can it be said that shall make one observation to show the nature he can establish the law, and that he has, by a of this act to be declaratory; the recital states solitary precedent, fixed what his superior it to be so. could not? The most solemn decisions of the court of king's bench are at one time made and at another time overruled. Why are our courts to be bound down by the weight of only one precedent? Is a precedent, like the laws of the Medes and Persians, never to be changed? This is to make a colonial precedent of more weight than is in England allowed to a precedent of Westminster Hall. To pursue the precedents more emphatically our own, let us advert to the sedition law, branded indeed with epithets the most odious, but which will one day be pronounced a valuable feature in our national character. In this we find not only the intent but the truth may be submitted to the jury, and that even in a justificatory manner. This, I affirm, was on common law principles. It would, however, be a long detail to investigate the applicability of the common law to the constitution of the United States. It is evident, however, that parts of it use a language which refers to former principles. The habeas corpus is mentioned, and as to treason, it adopts the very words of the common law. Not even the legislature of the Union can change it. Congress itself cannot make constructive or new treasons. Such is the general tenor of the constitution of the United States, that it evidently looks to antecedent law. What is, on this point, the great body of the common law? Natural law and natural reason applied to the purposes of society. What are the English courts now doing but adopting natural law?

Hamilton. Is it to be doubted that every general issue includes law and fact? Not a case in our criminal code in which it is otherwise. The construction, the publication, the meaning of the inuendoes, the intent and design, are all involved in the question of libel, and to be decided on the plea of not guilty, which puts the whole matter in issue. It is, therefore, a subtlety to say that the fact and law are not in issue. There can be no distinction taken, even by judges, between libels and other points. But will it be said, that when this question was before the parliament, whether the law and fact should be in issue, that the parliament did not mean to give the power to decide on both? It is a mere cavil to say that the act did not mean to decide on this very point. The opposition of the twelve judges has been much insisted on. But in my opinion they have given up the point as to the right of the jury to decide on the intent. They in some part of their answer assert the exclusive power of the court; they deny in terms the power of the jury to decide on the whole. But when pressed on this point as to a letter of a treasonable nature, how do they conclude? Why, the very reverse of all this. Here, then, we see the hardship into which the best of men are driven, when compelled to support a paradox. Can the jury do it with power, and without right? When we say of any forum that it can do and may hazard the doing a thing, we ad- What have the court done here? Applied mit the legal power to do it. What is meant moral law to constitutional principles, and by the word hazard? If they choose to do it, thus the judges have confirmed this constructhey have then the legal right; for legal power tion of the common law; and therefore, I say, includes the legal right. This is really only a by our constitution it is said the truth may be question of words. But in the exercise of this given in evidence. In vain is it to be replied right, moral ideas are no doubt to restrain; for that some committee met, and in their report the conscience ought to decide between the gave it the name of amendment. For when charge and the evidence which ought to pre- the act says declared, I say the highest legislavail, one side or the other. The moment, how- tive body in this country have declared that ever, that question as to the power is admitted, the common law is, that the truth shall be given the whole argument is given up. I consider in evidence; and this I urge as a proof of what the judges driven to yield up, at the conclusion that common law is. On this point a fatal docof their opinion, that point for which they had trine would be introduced, if we were to deny in the former parts contended. Thus, then, the common law to be in force according to our stands the matter, on English conduct and on federal constitution. Some circumstances have English precedents. Let us see if any thing in doubtless weakened my position. Impeachthe annals of America will further the arguments of an extraordinary nature have echoed ment. Zenger's case has been mentioned as an authority. A decision in a factious period, and reprobated at the very time. A single precedent never forms the law. If in England it was fluctuating in an English court, can a colonial judge, of a remote colony, ever settle it? He cannot fix in New York what was not fixed

through the land, charging as crimes things unknown; and although our judges, according to that constitution, must appeal to the definitions of the common law for treasons, crimes, and misdemeanors. This, no doubt, was that no vague words might be used. If, then, we discharge all evidence of the common law, they

may be pronounced guilty ad libitum; and the | wretched but honest man as the victim of a 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

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 in proof of this, a new trial will be granted.

SPEECH ON THE REVENUE SYSTEM.

Prior to the establishment of the federal compact, the power of levying duties and imposts for the support of the general government, resided only in the legislative Assemblies of the several States. When it became necessary to meet the expenses and liquidate the debts incurred by the Union, the Congress had no greater power than that of issuing requisitions upon the State Assemblies. These requisitions, through the "neglect and misconduct of the State bodies," were inefficacious, and, in the language of Washington, were "little better than a jest and a byword throughout the land." In 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:

tions. If, in the public stations I have filled, I have acquitted myself with zeal, fidelity and disinterestedness; if, in the private walk of life, my conduct has been unstained by any dishonorable act, if it has been uniformly consistent with the rules of integrity, I have a right to the confidence of those to whom I address myself: they cannot refuse it to me without injustice. I am persuaded they will not refuse it to me. If, on the other hand, my public conduct has been in any instance marked with perfidy, duplicity, or with sinister views of any kind; if any imputations, founded in fact, can be adduced to the prejudice of my private character, I have no claim to the confidence of the committee; nor should I expect 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.

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 dis- This, it is plain, amounts to nothing more charge my duty at all events-to lay the sub-than a declaration of that fundamental maxim ject 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

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."

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

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 acknowledges 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 object 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

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 This, upon the face of it, is a subtilty, uncarefully held up. It pervaded all our public acts. countenanced by a single principle of governIn the Declaration of Independence we find ment, or a single expression of the constitution. it continued and confirmed. That declaration, It is saying that a general authority given to after setting forth its motives and causes, pro- the legislature for the permanent preservation ceeds thus: "We, therefore, the representa- and good of the community, has been exhausttives 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 Su-authority. The position is the more destitute preme Judge of the world for the rectitude of of color, because the confederation, by the exour 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

press 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.