vasion? Even in ordinary wars, a government | supplies without limitation, and to borrow

is frequently obliged to call for supplies, to the temporary oppression of the people.

money to any amount. It is true, they must use the form of recommendations and requisitions: but the States are bound by the solemn ties of honor, of justice, of religion, to comply without reserve.

Mr. Chairman, it has been advanced as a principle, that no government but a despotism can exist in a very extensive country. This is a melancholy consideration indeed. If it were founded on truth, we ought to dismiss the idea of a republican government, even for the State of New York. This idea has been taken from a celebrated writer, who, by being misunderstood, has been the occasion of frequent fallacies in our reasoning on political subjects. But the position has been misapprehended, and its application is entirely false and unwarrantable. It relates only to democracies, where the whole body of the people meet to transact business, and where representation is unknown. Such were a number of ancient and some modern in

tention have taken these maxims respecting the extent of country, and contrary to their proper meaning, have applied them to republics in general. This application is wrong in respect to all representative governments, but especially in relation to a confederacy of States, in which the supreme legislature has only general pow

people are regulated by the laws of the several States. This distinction being kept in view, all the difficulty will vanish, and we may easily conceive that the people of a large country may be represented as truly as those of a small one. An assembly constituted for general purposes may be fully competent to every federal regu

Sir, if we adopt the idea of exclusive revenues, we shall be obliged to fix some distinguished line, which neither government shall overpass. The inconveniences of this measure must appear evident, on the slightest examination. The resources appropriated to one, may diminish or fail, while those of the other may increase, beyond the wants of government. One may be destitute of revenues, while the other shall possess an unnecessary abundance, and the constitution will be an eternal barrier to a mutual intercourse and relief. In this case, will the individual States stand on so good a ground, as if the objects of taxation were left free and open to the embrace of both the governments? Possibly, in the advancement of commerce, the imposts may increase to such a degree, as to render direct taxes unnecessary. These resources, then, as the constitution stands, may be occasionally relin-dependent cities. Men who read without atquished to the States; but on the gentleman's idea of prescribing exclusive limits, and precluding all reciprocal communication, this would be entirely improper. The laws of the States must not touch the appropriated resources of the United States, whatever may be their | wants. Would it not be of more advantage to the States, to have a concurrent jurisdictioners, and the civil and domestic concerns of the extending to all the sources of revenue, than to be confined to such a small resource, as, on calculation of the objects of the two governments, should appear to be their due proportion? Certainly you cannot hesitate on this question. The gentleman's plan would have a further ill effect; it would tend to dissolve the connexion and correspondence of the two gov-lation, without being too numerous for deliberernments, to estrange them from each other, and to destroy that mutual dependence which forms the essence of union. Sir, a number of arguments have been advanced by an honorable member from New York, which, to every unclouded mind, must carry conviction. He has stated, that in sudden emergencies, it may be necessary to borrow; and that it is impossible to borrow, unless you have funds to pledge for the payment of your debts. Limiting the powers of government to certain resources, is rendering the fund precarious; and obliging the government to ask, instead of empowering it to command, is to destroy all confidence and credit. If the power of taxing is restricted, the consequence is, that on the breaking out of a war, you must divert the funds appropriated to the payment of debts, to answer immediate exigencies. Thus you violate your engagements, at the very time you increase the burden of them. Besides, sound policy condemns the practice of accumulating debts. A government, to act with energy, should have the possession of all its revenues to answer present purposes. The principle for which I contend is recognized, in all its extent, by our old constitution. Congress is authorized to raise troops, to call for

ate conduct. If the State governments were to be abolished, the question would wear a different face; but this idea is inadmissible. They are absolutely necessary to the system. Their existence must form a leading principle in the most perfect constitution we could form. I insist that it never can be the interest or desire of the national legislature to destroy the State governments. It can derive no advantage from such an event; but, on the contrary, would lose an indispensable support, a necessary aid in executing the laws and conveying the influence of government to the doors of the people. The Union is dependent on the will of the State governments for its chief magistrate and for its Senate. The blow aimed at the members must give a fatal wound to the head, and the destruction of the States must be at once a political suicide. Can the national government be guilty of this madness? What inducements, what temptations can they have! Will they attach new honors to their stationwill they increase the national strength-will they multiply the national resources-will they make themselves more respectable in the view of foreign nations or of their fellow citizens, by robbing the States of their constitutional

fluence which has already been pointed out is the various official connections in the States. Gentlemen endeavor to evade the force of this by saying that these offices will be insignificant. This is by no means true. The State officers will ever be important, because they are necessary and useful. Their powers are such as are extremely interesting to the people; such as affect their property, their liberty, and life. What is more important than the administration of justice and the execution of the civil and criminal laws? Can the State governments become insignificant while they have the power of raising money independently and without control? If they are really useful, if they are calculated to promote the essential interests of the people, they must have their confidence and support. The States can never lose their powers till the whole people of America are robbed of their liberties. These must go to

privileges? But imagine, for a moment, that a | the State governments; they will be a mutual political frenzy should seize the government; protection and support. Another source of insuppose they should make the attempt; certainly, sir, it would be for ever impracticable. This has been sufficiently demonstrated by reason and experience. It has been proved that the members of republics have been and ever will be stronger than the head. Let us attend to one general historical example. In the ancient feudal governments of Europe there were, in the first place, a monarch; subordinate to him, a body of nobles; and subject to these, the vassals, or the whole body of the people. The authority of the kings was limited, and that of the barons considerably independent. A great part of the early wars in Europe were contests between the king and his nobility. In these contests the latter possessed many advantages derived from their influence and the immediate command they had over the people, and they generally prevailed. The history of the feudal wars exhibits little more than a series of successful encroachments on the pre-gether; they must support each other or meet rogatives of monarchy. Here, sir, is one great proof of the superiority which the members in limited governments possess over their head. As long as the barons enjoyed the confidence and attachment of the people, they had the strength of the country on their side, and were irresistible. I may be told that in some instances the barons were overcome; but how did this happen? Sir, they took advantage of the depression of the royal authority, and the establishment of their own power, to oppress and tyrannize over their vassals. As commerce enlarged, and as wealth and civilization increased, the people began to feel their own weight and consequence; they grew tired of their oppressions, united their strength with that of the prince, and threw off the yoke of aristocracy. These very instances prove what I contend for. They prove that in whatever direction the popular weight leans, the current of power will flow; wherever the popular attachments lie, there will rest the political superiority. Sir, can it be supposed that the State governments will become the oppressors of the people? Will they forfeit their affections? Will they combine to destroy the liberties and happiness of their fellow citizens for the sole purpose of involving themselves in ruin? God forbid! The idea, sir, is shocking! It outrages every feeling of humanity and every dictate of common sense?

There are certain social principles in human nature, from which we may draw the most solid conclusions, with respect to the conduct of individuals and of communities. We love our families more than our neighbors; we love our neighbors more than our countrymen in general. The human affections, like the solar heat, lose their intensity as they depart from the centre, and become languid in proportion to the expansion of the circle on which they act. On these principles the attachment of the individual will be first and for ever secured by

one common fate. On the gentlemen's principle, we may safely trust the State governments, though we have no means of resisting them; but we cannot confide in the national government, though we have an effectual constitutional guard against every encroachment. This is the essence of their argument, and it is false and fallacious beyond conception.

He says

With regard to the jurisdiction of the two governments, I shall certainly admit that the constitution ought to be so formed as not to prevent the States from providing for their own existence; and I maintain that it is so formed, and that their power of providing for themselves is sufficiently established. This is conceded by one gentleman, and in the next breath the concession is retracted. Congress have but one exclusive right in taxation-that of duties on imports; certainly, then, their other powers are only concurrent. But to take off the force of this obvious conclusion, he immediately says that the laws of the United States are supreme, and that where there is one supreme there cannot be a concurrent authority; and further, that where the laws of the Union are supreme, those of the States must be subordinate, because there cannot be two supremes. This is curious sophistry. That two supreme powers cannot act together is false. They are inconsistent only when they are aimed at each other, or at one indivisible object. The laws of the United States are supreme as to all their proper constitutional objects; the laws of the States are supreme in the same way. These supreme laws may act on different objects without clashing, or they may operate on different parts of the same common object with perfect harmony. Suppose both governments should lay a tax of a penny on a certain article; has not each an independent and uncontrollable power to collect its own tax? The meaning of the maxim, there cannot be two supremes, is simply this:

I imagine I have stated to the committee abundant reasons to prove the entire safety of the State governments and of the people. I would go into a more minute consideration of the nature of the concurrent jurisdiction and the operation of the laws in relation to revenue, but at present I feel too much indisposed to proceed. I shall, with the leave of the committee, improve another opportunity of expressing to them more fully my ideas on this

two powers cannot be supreme over each other. This meaning is entirely perverted by the gentlemen. But, it is said, disputes between collectors are to be referred to the federal courts. This is again wandering in the field of conjecture. But suppose the fact certain; is it not to be presumed that they will express the true meaning of the constitution and the laws? Will they not be bound to consider ths concurrent jurisdiction-to declare that both the taxes shall have equal operation-that both the pow-point. I wish the committee to remember that ers, in that respect, are sovereign and co-extensive? If they transgress their duty we are to hope that they will be punished. Sir, we can reason from probabilities alone. When we leave common sense and give ourselves up to conjecture, there can be no certainty, no security in our reasonings.

the constitution under examination is framed upon truly republican principles, and that, as it is expressly designed to provide for the common protection and the general welfare of the United States, it must be utterly repugnant to this constitution to subvert the State governments or oppress the people.

SPEECH IN THE CASE OF HARRY CROSWELL.

This speech in the celebrated cause of the People against Harry Croswell, on an indictment for libel on Thomas Jefferson, President of the United States, was delivered before the Supreme Court of the State of New York, in the year 1804, by Mr. Hamilton, for the defendant, on a motion for a new trial.*

| tined to it by the spirit and letter of our law. It is important on account of the influence it must have on the rights of our citizens. Viewing it, therefore, in these lights, I hope I shall, in the arduous attempt, be supported by its importance, and if any doubt hangs on the mind of the court, I shall, I trust, be able to satisfy them that a new trial ought to be had.

The question branches itself into two divisions. The first as to the truth-whether, under a general issue of not guilty, it ought to be given in evidence. The other, as to the power of the court-whether it has a right, exclusively, over the intent, or whether that and the law do not constitute one complicated fact, for the cognizance of the jury, under the direction of the judge. The last, I trust, can be made to appear, on the principles of our jurisprudence, as plainly as it is possible to evince any thing to a court; and that in fact, there are no precedents which embrace the doctrines of the other side, or rather that they are so diverse and contrarient that nothing can arise from them to make an application to this case.

MAY IT PLEASE THE COURT: In rising to address your honors at so late a period of the day, and after your attention has been so much fatigued, and the cause has been so ably handled, I may say, so exhausted, I feel a degree of embarrassment which it is with difficulty I can surmount. I fear lest it should not be possible for me to interest the attention of the court on the subject on which I have to speak. Nevertheless, I have a duty to perform, of which I cannot acquit myself, but by its execution. I have, however, this consolation, that, though I may fail in the attempt, I shall be justified by the importance of the question. I feel that it is of the utmost magnitude; of the highest importance viewed in every light. First, as it regards the character of the head of our nation; for, if indeed the truth can be given in evidence, and that truth can, as stated in the indictment, be established, it will be a serious truth, the effect of which it will be impossible to foresee. It is important also as it regards the boundaries of power between the constituent parts of our constitutional tribunals, to The liberty of the press consists, in my idea, which we are, for the law and the fact, to re-in publishing the truth, from good motives and sort-our judges and our juries. It is important, as it regards settling the right principles that may be applied to the case, in giving to either the one or the other the authority des

*See note at page 205.

After these preliminary observations, and before I advance to the full discussion of this question, it may be necessary for the safety and accuracy of investigation, a little to define what this liberty of the press is, for which we contend, and which the present doctrines of those opposed to us, are, in our opinions, calculated to destroy.

for justifiable ends, though it reflect on government, on magistrates, or individuals. If it be not allowed, it excludes the privilege of canvassing men, and our rulers. It is in vain to say, you may canvass measures. This is impossible without the right of looking to men.

side, than myself; but I must forget what human nature is, and what her history has taught us, that permanent bodies may be so corrupted, before I can venture to assert that it cannot be. As then it may be, I do not think it safe thus to compromit our independence. For though, as individuals, they may be interested in the general welfare, yet, if once they enter into the views of government, their power may be converted into the engine of oppression. It is in vain to say that allowing them this exclusive right to declare the law, on what the jury has found, can work no ill; for, by this privilege, they can assume and modify the fact, so as to make the most innocent publication libellous. It is therefore not a security to say, that this exclusive power will but follow the law. It must be with the jury to decide on the intent; they must in certain cases be permitted to judge of the law, and pronounce on the combined matter of law and of fact. Passages have been adduced from Lord Mansfield's declarations to show that judges cannot be under the influence of an administration. Yet still it would be contrary to our own experience, to say that they could not. I do not think that even as to our

To say that measures can be discussed, and that there shall be no bearing on those who are the authors of those measures, cannot be done. The very end and reason of discussion would be destroyed. Of what consequence to show its object? Why is it to be thus demonstrated, if not to show, too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power. If this be not to be done, then in vain will the voice of the people be raised against the inroads of tyranny. For, let a party but get into power, they may go on from step to step, and, in spite of canvassing their measures, fix themselves firmly in their seats, especially as they are never to be reproached for what they have done. This abstract mode, in practice can never be carried into effect. But, if under the qualifications I have mentioned, the power be allowed, the liberty, for which I contend, will operate as a salutary check. In speaking thus for the freedom of the press, I do not say there ought to be an unbridled license; or that the characters of men who are good, will naturally tend eter-own country it may not be. There are always nally to support themselves. I do not stand here to say that no shackles are to be laid on this license.

I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters, and though it has pleased God to take him from us, and this band of calumniators, I say, that falsehood eternally repeated would have affected even his name. Drops of water, in long and continued succession, will wear out adamant. This, therefore, cannot be endured. It would be to put the best and the worst on the same level.

motives and reasons that may be held up. It is therefore still more necessary, here, to mingle this power, than in England. The person who appoints there, is hereditary. That person cannot alone attack the judiciary; he must be united with the two Houses of Lords and of Commons, in assailing the judges. But, with us, it is the vibration of party. As one side or the other prevails, so of that class and temperament will be the judges of their nomination. Ask any man, however ignorant of principles of government, who constitute the judicial? he will tell you the favorites of those at the head of affairs. According then to the theory of this, our free government, the indeI contend for the liberty of publishing truth, pendence of our judges is not so well secured with good motives and for justifiable ends, even as in England. We have here reasons for apthough it reflect on government, magistrates or prehension not applicable to them. We are private persons. I contend for it under the re-not, however, to be now influenced by the prestraint of our tribunals. When this is exceeded, let them interpose and punish. From this will follow none of those consequences so ably depicted. When, however, we do look at consequences, let me ask whether it is right that a permanent body of men, appointed by the ex-ples, fairly and rightly understood. None of ecutive, and, in some degree, always connected with it, should exclusively have the power of deciding on what shall constitute a libel on our rulers, or that they shall share it, united with a changeable body of men, chosen by the people? Let our juries still be selected, as they now are, by lot. But it cannot be denied, that well, late of the city of Hudson, in the county of Columbia, every permanent body of men is, more or less, New York, printer, being a malicious and seditious man, of liable to be influenced by the spirit of the exista depraved mind, and wicked and diabolical disposition; and ing administration; that such a body may be also deceitfully, wickedly, and maliciously devising, conliable to corruption, and that they may be in-triving, and intending Thomas Jefferson, Esq., President of clined to lean over towards party modes. No the United States of America, to detract from, scandalize, man can think more highly of our judges, and traduce, vilify, and to represent him, the said Thomas JefI may say personally so of those who now pre-ferson, as unworthy of the confidence, respect, and attach

ference to one side or the other. But of which side soever a man may be, it interests all, to have the question settled, and to uphold the power of the jury, consistently however with liberty, and also with legal and judicial prin

these impair that for which we contend-the right of publishing the truth, from good motives and justifiable ends, though it reflect on government, on magistrates, or individuals.*

The indictment in this case charged that Harry Cros

Blackstone and Hawkins declare that it is any malicious defamation, with an intent to blacken the reputation of any one, dead or alive.

Some observations have, however, been made | well-deserved eulogy, says that he has never in opposition to these principles. It is said, | yet been able to form a satisfactory definition. that as no man rises at once high into office, All essays made towards it, are neither accuevery opportunity of canvassing his qualities rate nor satisfactory; yet, such as they are, I and qualifications is afforded, without recourse shall cite them and animadvert. to the press; that his first election ought to stamp the seal of merit on his name. This, however, is to forget how often the hypocrite goes from stage to stage of public fame, under false array, and how often, when men attain The criminal quality is its maliciousness. the last object of their wishes, they change The next ingredient is, that it shall have an from that which they seemed to be; that men, intent to defame. I ask, then, if the intent be the most zealous reverers of the people's rights, not the very essence of the crime? It is adhave, when placed on the highest seat of pow-mitted that the word falsity, when the proer, become their most deadly oppressors. It ceedings are on the statute, must be proved to becomes, therefore, necessary to observe the the jury, because it makes the offence. Why actual conduct of those who are thus raised not then the malice, when, to constitute the up. crime, it must necessarily be implied? In reason there can be no difference.

ment of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson, Esq., President as aforesaid, the obedience, fidelity, and allegiance of the citizens of the State of New York, and also of the said United States; and wickedly and seditiously to disturb the peace and tranquillity, as well of the people of the State of New York, as of the United States; and also to bring the said Thomas Jefferson, Esq. (as much as in him, the said grace, not only with the people of the State of New York,

Harry Croswell, lay), into great hatred, contempt, and dis

I have already shown, that though libelling shall continue to be a crime, it ought to be so A libel is, then, a complicated matter of fact only when under a restraint, in which the court and law, with certain things and circumstances and the jury shall co-operate. What is a libel to give them a character. If so, then the that it should be otherwise? Why take it out malice is to be proved. The tendency to proof the rule that allows, in all criminal cases, voke is its constituent. Must it not be shown when the issue is general, the jury to deter-how and in what manner? If this is not to be mine on the whole? What is then a libel to the case, must every one who does not panegyinduce this? That great and venerable man, rize be said to be a libeller? Unless the court Lord Cambden, already cited with so much are disposed to go that extreme length, it is necessary that the malice and intent must be proved. To this, it is certain the definition of Lord Coke may, in some degree, be opposed. He does seem to superadd "the breach of the peace." Lord Coke, however, does not give this as a specific definition; and even then the defamatory writing, which he particularizes, includes the question both of intent and malice. The breach of the peace, therefore, is not made the sole, but only one of the qualities. The question is not on the breaking of the peace, but depends on time, manner and circumwith the citizens and subjects of other nations; and for that stances, which must ever be questions of fact purpose the said Harry Croswell did, on the ninth of Septem- for jury determination. I do not advocate ber, in the year of our Lord 1802, with force and arms, at breaking the peace: observations may be the said city of Hudson, in the said county of Columbia, made on public men, which are calculated wickedly, maliciously, and seditiously print and publish, and merely to excite the attention of the commucause and procure to be printed and published, a certain nity to them; to make the people exercise scandalous, malicious, and seditious libel, in a certain paper their own functions, which may have no tenor publication entitled The Wasp; containing therein, dency to a breach of the peace, but only to inamong other things, certain scandalous, malicious, inflam- spection. For surely a man may go far in the matory, and seditious matters of and concerning the said way of reflecting on public characters, without Thomas Jefferson, Esq., then and yet being President of the the least design of exciting tumult. He may United States of America; that is to say, in one part thereof only have it in view, to rouse the nation to according to the tenor and effect following, that is to say vigilance and a due exertion of their right to Jefferson (the said Thomas Jefferson, Esq., meaning) paid change their rulers. This, then, Being a mere Callender (meaning one James Thompson Callender) for matter of opinion, can it be not a matter for calling Washington (meaning George Washington, Esq., de-them to judge of, to whom it is addressed? ceased, late President of the United States), a traitor, a robber, and a perjurer; for calling Adams, meaning John Adams, Esq., late President of the United States, a hoary headed incendiary, and for most grossly slandering the pri

and the said people of the United States of America, but also

vate characters of men who he (meaning the said Thomas Jefferson) well knew to be virtuous, to the great scandal and infamy of the said Thomas Jefferson, Esq., in contempt of the people of the State of New York, in open violation of

the laws of the said State, to the evil example of all others in like case offending, and against the peace of the people of the State of New York, and their dignity.

The court, to be sure, may, like a jury, and in moral discernment to determine on this; yet common with them, have the legal power and it does not arise out of the writing, but by adverting to the state of things and circumstances. It, therefore, answers no purpose to say it has a tendency to a breach of the peace.

Lord Loughborough, in the Parl. Chron. 644, 657, instances that passages from holy writ may be turned into libels.