the laws of the Union, suppress insurrections, and repel invasions." When the insurrection or invasion has taken place, Congress may by the militia suppress the one, and repel the other. But the Constitution declares further, that "the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence." The power before recited had given Congress power to call forth the militia to suppress insurrections, and repel invasions. The section last mentioned directs them to protect each state against invasion and domestic violence. Are these two clauses of precisely the same meaning and import? Then the framers of the Constitution were guilty of tautology. But they are not of the same import. The first gives the power of suppressing insurrections, and repelling invasions, when insurrections or invasions should exist: the latter directs Congress to protect each state against invasions or domestic violence, which might threaten and impend. Protection necessarily implies and includes the prevention of mischief and danger. In protecting the states then against invasion, Congress must use the means of preventing the evil; and the clause before recited gives them in express terms the power to make all laws necessary and proper for carrying into execution any power vested in them by the Constitution. Congress then foresaw, from the dispute existing between the United States and France, that war might be the probable result, and that invasion might be the consequence of war. To protect the states against this invasion, a proper measure appeared to be the exclusion of dangerous aliens. They were vested by the Constitution with power to pass all laws necessary and proper to protect the states against invasion, and they therefore constitutionally passed the alien-law.

But against this construction of the Constitution, Mr. Taylor said, a gentleman from Orange had given the committee an extract from Publius, of which it could only be said, that the doctrine contained therein, although unquestionably sound and incontrovertible, did not apply to the present question. To prove this, let the extract itself, he said, be read again. It is in the following words: "It has been urged and echoed that the power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States, amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare." No stronger proof could have been given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." Publius

afterwards proceeds to state other arguments exposing the fallacy of the opinion urged by the opposers of the Constitution against this article. But let it be remembered that the subject which Publius was discussing was this, whether the power given Congress "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare," gave to Congress a right of legislating on every subject whatsoever. Now, who among us, said Mr. Taylor, has cited this clause in favour of the alien-law? Has any one of us, continued he, contended that Congress possesses the right of legislating on every subject? And because this clause does not give them such a power, did it follow that the power to protect the states from invasion does not authorize them, on the prospect of war, to exclude dangerous aliens? Some authority more applicable must be produced before we shall be proved to be in the wrong. In defence of the alien-law, Mr. Taylor observed, that he would make no further observations, but would call the attention of the committee for a few minutes, to what is called the sedition-law. In his remarks on this, from the wide range he had taken, he should be compelled to be much more concise than he had intended to be.

He presumed that it would be conceded by all who heard him, that each individual possessed from nature certain rights of great value and importance. Among these was the right to liberty and to life; and, what was of no smaller importance than the other two, the right to his good name and reputation. For even in a state of nature, where the will of each individual was his law, and his power the measure of that law, and where consequently eternal strife and confusion must prevail, a good name would be of no small importance to its possessor. He, who when chance or misfortune had thrown his brother savage into his power, did not rob or abuse him, but bound up his wounds and dismissed him in peace, would be respected by the man he had benefited, and by all others who should hear of the circumstance, and would in consequence be in some degree secure against insult and attack. But in a state of society the possession of reputation must for obvious causes be of infinite importance. This state was the result of a compact formed by the component individuals for the enjoyment of their natural rights to greater advantage and with greater certainty. Each owes to the regulations of the society implicit obedience; and the society is equally bound to guarantee and to vindicate to each, his natural and social rights. Invasions therefore, against property, liberty, or life, have been punished in every society and under every form of government; but the natural right to reputation is as dear and invaluable to its possessor as any other whatsoever; it is essential to his comfort and happiness; he could never be supposed to have consented to its surrender; and invasions of it ought, therefore, to be punished by the society as well as invasions of property, liberty, or life. For no possession whatsoever is of such real value as an honest fame: in comparison with it, the possession of property is of little consequence. Property, in reality, adds nothing to the respectability of its possessor. When lost it may be regained; or if for ever lost, its former owner may still be respectable. But the loss of reputation is a much more serious mischief. It is irretrievable. Who could bear to be regarded by his fellow-citizens as destitute of principle

and honour, and to be yiewed by the world with contempt and detestation? Who would be unaffected at being deprived by the stroke of calumny of the friend he loved? Whose feelings would remain untortured, when the mistress he adored, whose smiles were those of affection, and whose eyes proclaimed the dominion of love, should be everlastingly estranged from him? When that bosom which before glowed with genial and sympathetic fires, should, touched by the breath of calumny, become cold and icy as the everlasting snows that envelope the pole? Such were the mischiefs accruing from the loss of reputation to the individual in his private capacity. But suppose him possessed of those virtues which dignify human existence, and of those talents which adorn it, and wishing to exert those virtues and those talents in a public capacity for the benefit of his fellow-citizens; if his reputation be blasted, or his character tainted, he would be spurned by those citizens from their presence: his talents would render him an object of greater odium: he would remain hated and despised through life, and execrated even after his death. Was the loss of property then to be compared with this injury? Nay, was not the loss of character equal or superior in mischief to the loss of existence? The murdered man dies an object of universal sympathy and regret,—the recollection of his virtues is cherished, and his foibles and vices are excused or forgotten. But the man whose reputation is tainted, lives an object of universal contempt and disgust, and dies the theme of infamy and execration. Accordingly in every society, and throughout all time, a remedy has been afforded to the injured individual for calumnious attacks upon his reputation. And what would be the consequence of impunity to such an offence? The injured man, having no redress from the laws of his country, would arrogate to himself the right of revenge, and a mournful scene of assault, bloodshed and death, would be the unavoidable and melancholy result. These things could not be tolerated in a state of society; and accordingly slander and libels are punished with us by the common law. By the common law is understood the unwritten law of nature and reason, applying to the common sense of every individual, and adopted by long and universal consent. This common law attaches itself to every government which the people may establish. It existed in Great Britain when our ancestors migrated from that country, and it followed them to this. It prevailed in every state throughout the Union, before their separation from the British empire, and it regulates the whole American people now. A government, then, established by that people for the general safety and general happiness, will of necessity be guided in cases of general interest and concern, by the principles and regulations of the same common law. By that common law, unfounded calumny of magistrates generally, was matter of punishment, of a more severe punishment than in cases affecting the reputation of private individuals, because in the former instance the function rather than the man was the object of attack. And whenever magistrates of a new description are appointed, the old principles of the common law immediately apply to them, and calumnies against them are of course punishable. Thus when these states became independent of Great Britain, a number of officers of government were created unknown to the former colonial establishments; but no one had ever thought it necessary to declare

by statute, that slanders of them shall be punishable. When the Constitution of the United States was formed, a new description of officers, before unknown, was created: the common law pervaded and regulated every portion of the people which formed that Constitution; and consequently the rules of the common law immediately attached themselves to those officers. Consequently slanders of the President of the United States, of members of Congress, and of other officers of the general government, are punishable by the common law; because slanders of those characters are injuries not so much to the man, as to the community. Ours is a government which must rest for its support on the public sentiment. While the people approve it, it will flourish; when they withdraw their affections, it must expire. Unfounded calumnies against the officers of government, who administer and conduct it, tend to weaken the confidence and affection of the people for the government itself. The Constitution of the United States, it is acknowledged by all, authorizes the government to punish acts of resistance to its measures. Would it not be strange, if, when it authorizes them to punish acts of resistance, it should prevent them from punishing acts tending to introduce resistance? That the government must look on tame and passive while the mischief is preparing, and be incapable of action until that mischief has ripened into effect, when its actions and operations may perhaps be unavailing. That it shall be fully able to suppress and punish actual insurrection, but shall be incapable of preventing it. This would surely be absurd. And as the Constitution of the United States is the work of the whole American people; as every man of that people is regulated by the common law; as that common law attaches itself to the state governments, established by that people, and punished unfounded calumnies of state magistrates, why shall it be said not to attach itself to the government of the whole American people? And why shall it not punish unfounded calumnies of the magistrates of the general government? Why is the state magistrate protected by the common law? Because he is a public functionary, and calumnies of him injure the public. Was not a magistrate of the general government also a public functionary? Would not calumnies against him also injure the public? And if the functionary of the part be protected by law, how shall it be said that the functionary of the whole is left unprotected? Surely reason proclaims, that in proportion to the magnitude of the trust reposed in the functionary, would be the mischief arising from false, scandalous, and malicious representations of his conduct. The most unfounded calumnies against the governor of a particular state could only rouse the discontent, or excite the opposition of that state. But unfounded calumnies against the President of the United States, may paralyse, convulse, and destroy the Union. The reason of the common law applies, therefore, more powerfully to the magistrate of the general government than to the magistrate of the state government. But this is the general feature of that law, and of reason, that the person being a magistrate of whatever grade or description, and being vested with the authority of the laws, ought to be protected.

That the principles of the common law apply to the general government, is obvious from the second section of the third article of the Constitution, which declares, that "the judicial powers shall extend to all cases in law

and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority," and "to controversies to which the United States shall be party." The judiciary, in cases arising under the laws of the United States, will be regulated by those laws and in cases arising under treaties, by those treaties and the law of nations; but what cases can arise under the Constitution, as distinguished from cases arising under the laws of the United States and under treaties, except cases to be decided by the rules and principles of the common law? And these in "controversies to which the United States shall be party," will, unless altered or modified by law, operate in their full extent.

This is not the only instance in which the common law is recognised in the Constitution; for the ninth amendment is in these words: "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." When in the re-examination of facts tried by a jury, the courts of the United States are expressly prohibited from observing any other than the rules of the common law, the Constitution itself declares, that the common law applies to those courts; and if it applies in one instance, it must apply in all others coming within their sphere, unless where it is altered by act of Congress.

The common law has been thus shown to apply to the government of the United States as well as to the governments of the particular states and to particular individuals. One rule of the common law is, "that he who writes, utters or publishes a false, scandalous, and malicious libel against a magistrate or the government, shall be punished by fine and imprisonment." The writer, utterer or publisher, therefore, of a false, scandalous and malicious libel against the government of the United States, or any magistrate thereof, is at common law, punishable by fine and imprison

ment.

The objection to the punishment of libels, that truth is the sufficient antagonist of error, and needs no assistance, Mr. Taylor said, was not correct that falsehood was light and volatile; she flew on the wings of the wind, she spread her mischiefs with inconceivable velocity: that truth was the child of experience, and the companion of time; she scarcely ever outstripped, and rarely kept pace with her companion. What mischief in all ages and in all countries have been occasioned to individuals, and to the public, by malignant falsehoods, before truth could arrive to detect and protect them. How would these mischiefs be aggravated, if they should remain unpunished by the laws? The fairest reputation, when frequently assailed, must be diminished in the public esteem. Each scandalous report finds some believers; and at length the most charitable will be disposed to think that such repeated charges could not be made without some foundation. They will increase in proportion to the talents and the station of the injured individual, and unless they be punished by the laws, the most splendid abilities, and unsullied virtues, must cease to be useful, and sink into disgrace.

Mr. Taylor said, from what had been said, it would appear that the