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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 tibel.t

Yet, when this rule, 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 maturely 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, "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. 73. S. 6. 4 Blac. Com. 3 Term Rep. 428.

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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 op86 pression and intollerance, wherewith the bigotry and "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 and worship, without discrimination or preference, shall forever hereafter be allowed within this state to "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. 2 Johns. Cas, 237-418.

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cuse acts of licentiousness, or justify practices incon "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. 1 Vol. Rev. Laws, 16 17

Again there is no doubt that the convention intended to secure the liberty of conscience.-Now, where is the liberty of conscience to the Catholic, if the priest and the penitent, be thus exposed? Has the priest, the liberty of conscience, if he be thus coerced? Has the penitent the liberty of conscience, if he is to be dragged into a court of justice, to answer for what has passed in confession? Have either the privilege of auricular confession? Do they freely enjoy the sacrament of penance? If this be the religious liberty, which the constitution intended to secure-it is as perplexing as the liberty which, in former times, a man had of being tried by the water ordeal, where, if he floated he was guilty -if he sunk he was innocent.*

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I can find but one case which bears any analogy to the present. It is an English case. It is that of Sir Thomas Harrison against Allen Evans. Mr Evans was a Protestant Dissenter, and a freeman of the city of London. He had been elected one of the sheriffs of that city, but by law could not take upon himself the office, because, he had not within one year before, received the sacrament of the Lords supper, according to the rites of the Church of England. By a by-law of the corporation a penalty of 6007 was imposed on all such as should refuse to serve. A prosecution was commenced by the Chamberlain of London against Mr. Evans for the penalty. He relied upon the toleration act.‡ He pleaded that he was a dissenter within the toleration act;

* 4 Black. Com. 343.

† Act of Parliament 6 May 1661

Passed 1 Feb. 1 year of Wm. and Mary.

that he had not taken the sacrament in the church of England within one year preceding the time of his supposed election, nor ever in his whole life and that he could not in conscience take it. It was conceded on all hands, that if he took upon himself the office, without having previously received the sacrament according to law, he was punishable.

Though it was obvious to every ingenuous mind that Mr. Evans was, by necessary implication, within the spirit and protected by the true meaning of the toleration act, yet, judgment for the penalty was rendered against him in the sheriff's court: and afterwards affirmed by the Court of Hustings in the city of London. To the honor however, of the house of Lords this af firmance was reversed nemine contradicente, notwithstanding the opinion of Mr. Baron Perrot.*

The observations of Lord Mansfield upon this case, before the British Peers, are too fine to be omitted by He exposed, in a masterly manner, that uncandid -Jesuitical-sophisticated attempt to defeat the toleration act. And here let me observe-that our constitution is our great toleration act, made by the people themselves, in their sovereign capacity; and as the end intended to be secured was religious toleration, every thing, essential to that end, not leading to licentiousness, nor to practices inconsistent with the peace or safety of the state, is by necessary implication guaranteed by the constitution.

3 Brown Parl. cas. 465. 31 vol. journ. House of Lords p. 458, 470, 475.

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