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Britain. They clearly would not be binding. They have not the force of authority. Whoever has read their books of reports, knows, that the English judges do not feel themselves concluded by decisions much more solemn and imposing than those.

It may not be unapt, or time mispent, to recur to a few cases to shew the Court, the liberties which English judges have taken with each other, and how easily they overturn the law, which they themselves, after grave advisement have established! They cannot expect that we should shew them more deference or courtesy, than they shew to themselves.

In a cause before Lord Mansfield* a rule of law was urged. His Lordship said, “The law was certainly

understood to be so, and there are an hundred cases 80 determined,” but they struck bim as “absurd and wrong, " and be overturned them. Lord Kenyon was pleased to say, “ I think that decision did him great honor.”+

And we shortly afterwards find Lord Kenyon praetising the example which had been set him, and actual. ly overturning a decision of Lord Mansfield. I The opinion of that great man, formed after full argument, and sanctioned by the concurrence of all the other judges of the Court of King's Bench, yielded to the influence of Lord Kenyon. In this country, we have, in that instance, persevered in maintaining the law as settled by Lord Mansfield.

* Harrison, v. Beecles, cited 3 Terın Rep. 688. + Ibid. 3 Term. 689.

† Jourdaine, v. Lashbrook. 7 Term Rep. 601. In which the case of Walton, v. Shelly, 1 Term Rep. 290, is overruled,

Lord Loughborough pronounces a decision of Lord Chancellor Parker, to have been long exploded. *

Mr. Justice Ashurst says, “ if there be several cases 66 which are not reconcilable with reason on one side, 6 and one sensible case to the contrary, we ought to de“ cide according to the latter.”+ Lord Mansfield and other distinguished judges of that country, have mot hesitated to make the case.

But we all recollect what our own Courts have done and done wisely.

It is only necessary to notice two prominent cases, in which our courts have unshackled themselves of former decisions, and put the law upon the footing of jus. tice and sound sense.

The sentences of foreign Courts of Admiralty were long held as conclusive evidence of the facts decided by them, and are in Great Britain to this day, though now grievously complained of by some of its ablest judges. We had adopted the English rule in its full vigour. I

In 1802, however, this principle was brought under review in the highest court in this state. It was upon that occasion, that one of the judges, whom I have now the honor of addressing, $ pursuing in his senatorial character the dictates of his own mind, overthrew, by the force of argument, the conclusiveness of foreign

* Sumner, v. Brady. 1 Hen. Blac. 655-referying to the case of Lewis, v. Chase, i Pierre Williams 620, + 2 Term 574.

Ludlow & Ludlow, v. Dale, 1799, 1 Johns. Cas. 16. Gorix, . Low, 1800. Ibid, 341. Vandenheuval, . United Insuranse Company, 2 Joh. Cas. 452.

De Witt Clinton.

sentences. He has the satisfaction to find, within the short space of a few years, his opinion every where gaining ground, and a high judicial personage, even in Great Britain, adding thereto the weight of his authority, coupled with that of Lord Thurlow !! “I shall die “ (said Lord Ellenborough) like Lord Thurlow, in the “ belief that they ought never to have been admitted."*

The other case in which we maintained our judicial independence, is stronger and more emphatic in its character than that which I have just noticed. The rule of law was undisputed by all legal writers :-It was to be found in every book upon criminal law:- It was in the mouth of every student. I mean the doctrine That truth is no justification on an indictment for a


Yet, when this rale, came to be drawn into discussion in this state when the vast talents of a man, now no more! I who was indeed the pride of our bar, were arrayed against it and when the authorities were ma. turely weighed, the rule was pronounced to be a legal heresy.-It was exploded. The Legislature by the concurrence of every member of both Houses, vindicated the law. They declared truth to be a justification, 6* Provided that the matter charged as libellous, was

published with good motives and for justifiable ends." The principle contained in Mr. Fox's libel bill was also recognized and adopted, that the jury should de

* Donaldson, v. Thompson. 1 Camp. N. P. Cas. 432. 1808.

† 2 Hawk. P. C. 128. B 1. Ch. 3. S. 6, 4 Blac. Com. 150. 3 Term Rep. 428.

Mr. Hamilton.

cide upon the whole matter, and determine the law and the fact This declaratory act, which, pronounced what the law was, received the unanimous assent of the Council of Revision, composed, as is known, of the Chancellor and all the Judges of the Supreme Court. *

Having thus stripped the cause of embarrassment, and shewn, I trust, to the satisfaction of your Honours, that this Court is at perfect liberty, in the judgment that it shall finally pronounce in this cause, to follow the guidance of liberality and wisdom, unfettered by authority; I shall proceed to examine the first proposition which I undertook to maintain, that is, that the 38th Article of the Constitution, protects the Reverend Pastor in the exemption which he claims, independent of every other consideration.

The whole article is in the words following: “ And whereas we are required by the benevolent

principles of rational liberty, not only to expel civil $ tyranny, but also to guard against that spiritual op< pression and intollerance, wherewith the bigotry and 6 ambition of weak and wicked priests and princes have

scourged mankind : This convention doth further, in “ the name and by the authority of the good people of “ this state, ORDAIN, DETERMINE AND DECLARE, that * the free exercise and enjoyment of religious profession si and worship, without discrimination or preference, 6 shall forever hereafter be allowed within this state to 66 all mankind. Provided, that the liberty of conscience “ hereby granted, shall not be so construed, as to ex

* Act passed 5th April 1805. And see the case which gave rise to it :-The People, v. Croswell. 3 Johns. Gæs, 237-418.


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acts of licentiousness, or justify practices incone “sistent with the peace or safety of this State."* • Now we cannot easily conceive of more broad and comprehensive terms, than the convention have used: Religious liberty was the great object which they had in view. They felt, that it was the right of every human being, to worship God according to the dictates of his own conscience. They intended to secure, forever, to all mankind, without distinction or preference, the free exercise and enjoyment of religious profession and worship. They employed language commensurate with that object. It is what they have said.

Again, the Catholic religion is an ancient religion. It has existed for eighteen centuries. The sacrament of penance has existed with it. We cannot in legal decorum, suppose the convention to have been ignorant of that fact : nor were they so in truth. The convention was composed of some of the ablest men in this or in any other nation. Their names are known to the court: A few still live, and we revere the memories of those who are no more. They all knew the Catholic faith, and that auricular confession was a part of it. If they had intended any exception would they not have made it? If they had intended that the Catholics should freely enjoy their religion, excepting always, auricular confession, would they not have said so ? By every fair rule of construction we are bound to conclude that they would have said so :- And as the convention did not make the exception neither ought we to make it.

* Constitution of the State of New York, Art. 38. 4 Vol. Rev. Laws, 16 17


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