heart! Touching at pleasure every string of pity or terror, of indignation or grief, he melted, he soothed, he roused, he agitated, alternately gentle as the dew and awful as the thunder. Yet, great as he was in the eyes of the world, he was greater in the eyes of those with whom he was most conversant. The greatness of most men, like objects seen through a mist, diminishes with the distance; but Hamilton, like a tower seen afar off under a clear sky, rose in grandeur and sublimity, with every step of approach. Familiarity with him was the parent of veneration. Over these matchless talents, probity threw her brightest lustre. Frankness, suavity, tenderness, benevolence, breathed through their exercise."*

NOTE.

I. The liberty of the Press consists in the right to publish with impunity truth with good motives for justifiable ends, though reflecting on Government, magistracy, or individuals.

II. That the allowance of this right is essential to the preservation of free government-the disallowance of it fatal.

III. That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be entrusted to a permanent body of magistracy, and requires the effectual coöperation of court and jury.

IV. That to confine the jury to the mere question of publication, and the application of terms without the right of inquiry into the intent or tendency, refering to the court the exclusive right cf pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.

V. That it is the general rule of criminal law that the intent constitutes the crime, and that it is equally a general rule, that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.

VI. That if there are exceptions to this rule, they are confined to cases in

* Oration on Hamilton by the Reverend John M. Mason.

which not only the principal fact but its circumstances can be and are specifically defined by statute or judicial precedent.

VII. That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible to pronounce that any writing is per se, and exclusive of all circumstances, libellous. That its libellous character must depend on intent and tendency, the one and the other being matter of fact.

VIII. That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.

IX. That in determining the character of a libel, the truth or falsehood is, in the nature of things, a material ingredient, though the truth may not always be decisive; but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.

X. That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public may be given in evidence.-That the ancient statutes, probably declaratory of the common law, make the falsehood an ingredient of the crime; that ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.

XI. That the doctrine of excluding the truth as immaterial originated in a tyrannical and polluted source, the Court of Star Chamber-and that though it prevailed a considerable length of time, yet there are leading precedents down to the Revolution, and even since, in which a contrary practice prevailed.

XII. That this doctrine being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus, which ought to be abolished.

XIII. That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is entrusted with the power of deciding both law and fact.

XIV. That this distinction results: 1. From the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law, in criminal none but the general issue. 2. From the liability of the jury to attaint in civil cases, and the general power of the court, as its substitute, in granting new trials, and from the exemption of the jury from attaint in criminal cases,

and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect, liable neither to punishment nor control.

XV. That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law: who may compromit their consciences by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it; if, exercising their judgments with discretion and honesty, they have a clear conviction that the charge of the court is wrong.

VOL. VII.-48

CHAPTER CLXVII.

WHILE Hamilton was thus laboring in the great cause of liberty, Jefferson was employed in the pursuits most congenial with his nature. He is seen to have risen to power by the practice of all the most unscrupulous arts of a selfish demagogue. It was not to be expected that he would abstain from the use of these arts in rendering that power dominant over all opposition. Nor was this, in the condition of the United States, of difficult accomplishment. The Federalists, as a national party, had, as seen, prostrated themselves, in disregard of Hamilton's monitions, by their support of Burr; and Jefferson resolved that Burr should be prostrated because of the support of the Federalists. While Hamilton lived, he knew that support could not be successful. His policy was to undermine them where they still had influence, preventing their being rallied under their distinguished leader, which could only happen in a moment of some great national vicissitude; and to reduce them to local fragments, to become, thus disintegrated, tools of factious designs. If adversity tries man as an individual, it tries him more, in his relations to others, which demand faith, for as fidelity in common mutual success, has the support of promise, fidelity under common mutual misfortune involves sacrifice; and sacrifice is the part of the highest, most devoted virtue.

Such sacrifices are rare; and nothing is more frequent, or more grievous, than to see the remnants of a great party, grasping, in almost despair, the floating remains of a great wreck.

With a central administration, so recent in the United States, limited to large but specific objects, but without that catenation of functionaries instrumental in the distribution, exercise, and reproduction of power; with local administrations in the several States, dispensing private justice and affecting private rights of nearest social interest, through numerous agents, discontent, ripening into disaffection, would naturally seek in those local administrations, its supports and its implements. The feebleness of the Confederation had given the minds of the people this partial direction; and the Federal Constitution had, in its very formation, recognized, countenanced, and almost cherished such a disposition.

The consolidation of Jefferson's power in the Southern States only required abstinence in its exertion; and, though probably the number was somewhat greater, it is asserted, that in these States, there were but two early removals from office. In New England his interposing hand was more often felt, but it was in Pennsylvania and in New York that the blows were frequent. The former, by its opposition to Washington, had entitled itself to the patronage of his enemy; and in the latter, every friend of Hamilton was to be stricken down, every prop upon which the Southern party leaned, was to be strengthened, every doubted member to be proscribed. Above all, and first of all, Burr, his accidental rival, must be immolated. Nor could Jefferson doubt that such a sacrifice would be easy, for he who had so successfully wounded the teguments of Washington, could deem as nothing the task of bringing down to earth, the man whom Washing