recognized the existence of the common law, except where it was "repugnant to that Constitution."*

Was that great privilege of being tried by a Jury of their peers to be defeated by a perversion of that law? Was that part of the common law which conferred this privilege, and which had protected it for centuries, until invaded by a tyranny, now to be held "repugnant to the Constitution?" Was the protection of a Jury to be thus wrested from a citizen to shield from the truth the man who, in the "Declaration of Independence," charged it, as one of the grounds for that declaration, that “the king of England had deprived the Colonies of the benefits of trial by Jury?" If such a doctrine were sustained, “future ages would scarcely believe that the hardiness of one man adventured within the short compass of (four) years only, to lay a foundation so broad, and so undisguised for tyranny over a people, fostered and fixed in principles of freedom."+ But such could not be the doctrine of America.

* See also Constitution of Maryland.

+ Declaration of Independence. Jefferson's draft.

VOL. VII.-46

CHAPTER CLXVI.

THE argument of the motion for a new trial was postponed until the February term of the Supreme Court, when Hamilton repaired gratuitously to Albany, to appear as the champion of the PRESS against the party which had gained power, as the zealous assertors of its liberty, a striking, teaching contrast.

With him were associated Harrison and Van Ness,* subsequently a Judge of the Supreme Court of the State. The Attorney-General, Ambrose Spencer; and Caines, an English advocate, appeared for the people.

On Monday, the thirteenth of February, the case was opened by Van Ness, who was followed by Caines on the part of the prosecution. The next day, the AttorneyGeneral closed the argument for the people; and having been recently appointed a judge of the Supreme Court, on the conclusion of his remarks, he took the oath of office and immediately rose to his seat upon the bench. He was replied to by Harrison. Hamilton followed and spoke until night, when, being much exhausted, the Court proposed to adjourn. He resumed his argument the next morning, and made a further address to the Court of four hours' duration.

The deep interest of the questions and the distin

* William W. Van Ness.

guished characters of the counsel, had drawn together at Albany a vast concourse of people. Indeed, on Hamilton's approach to the seat of government persons were seen waiting on the road to catch a glimpse of him, or to tender evidences of their respect.

The Legislature was in session in the same building where the Court was sitting. But it was found impossible, while Hamilton was speaking, to preserve a quorum in either House. The Senate adjourned from necessity. The House attempted to proceed. The sergeant-at-arms repeatedly came to the door of the Court, proclaiming, "The Speaker of the House of Representatives requires every member to take his seat." Hamilton paused at each interruption. The sheriff commanded "order," and the audience remained, transfixed until he had concluded.

No accurate report of this, the greatest of his professional efforts, has been preserved. Its effect can only be inferred from the terms in which it was described at the time. "After all," a writer remarks, "came the great, the powerful Hamilton. No language can convey an adequate idea of the astonishing powers evinced by him. The audience was numerous, and though composed of those not used to the melting mood, the effect produced upon them was electric." Another wrote, "As a correct argument for a lawyer, it was very imposing, as a profound commentary upon the science and practice of government, it has never been surpassed. As a finished exhibition of virtues on the one side, and vices on the other; of the blessings of liberty and the bane of anarchy, with suitable directions how to cherish and improve the one and to avoid the other, nothing, it is believed, ever equalled it." "His speech," it is related by a different hand, "exceeded the expectation and even the hope of his friends. He rose above himself, I had almost said,

above human nature. It was a mighty effort in the cause of liberty; and although the life of this great man has been one perpetual struggle in that cause; I much question whether any act of his has been of such essential service to his country, to freedom, to republicanism, as this bold stand in favor of the press. The power of eloquence was exhibited in his speech beyond conception. To convince and persuade; to force the tear from the eye of the aged and the young: to agitate, to soothe, to calm them at pleasure is the test of true eloquence. This he did. It was a day of triumph for virtue and talents." Another wrote, "It was the most brilliant and grandest display of eloquence I ever witnessed. In the course of his argument, he traversed the whole field of politics, traced the rise and progress of the party which had then first come into power with Jefferson at its head, exposed the arts by which popular credulity had been imposed upon, and foretold the consequences to the liberties of the country, if that party should be able to muzzle the press. He declared, that he considered these libel suits, as an experiment upon the forbearance of the people, and an incipient step in a course of high-handed tyranny.

In the progress of his remarks, the Attorney-General had given great provocation to Hamilton; and it was supposed that he took his seat upon the bench to escape the keen rebuke he had reason to expect. While addressing the Judge, Hamilton gave the Attorney-General a severe castigation. One comment convulsed the Court and audience with laughter. Spencer had observed, when referring to Lord Mansfield's opinion on the law of Libel, of which the defendant's counsel had spoken disparagingly, that "the fame of Lord Mansfield would live when the name of every person engaged in this suit" (pointing significantly at Hamilton) "would be lost in

oblivion." Replying to this taunt, Hamilton remarked: "The Attorney-General was far too modest; whatever might become of the fame of other men engaged in this suit, the Attorney-General had secured a notoriety that would never die!" Then alluding to his recent abandonment of the Federal party, to his sudden and active zeal with its opponents, and to the proscriptions ascribed to his influence, he compared him to a meteor, observing, ""Tis true, in the rapidity of his flight, his heat has been somewhat scorching." Nor were the attestations to this great speech only those of Hamilton's political friends. “Until I heard that speech," remarked a leading Democrat, "I did not suppose such things were within the power of the human intellect." +

"I have always considered General Hamilton's argument n this cause," Chancellor Kent relates, "as the greatest forensic effort he ever made. He had bestowed

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* The relations between Hamilton and Judge Spencer were not unfriendly. This statement is before the public: "Spencer, rising up and standing before me, a most venerable and commanding man, in stature as well as in years and character, said: Alexander Hamilton was the greatest man this country ever produced. I knew him well. I was in situations often to observe and study him. I saw him at the bar and at home. He argued cases before me while I sat as Judge on the bench, Webster has done the same. In power of reasoning Hamilton was the equal of Webster; and more than this can be said of no man. In creative power Hamilton was infinitely Webster's superior; and in this respect he was endowed as God endows the most gifted of our race. If we call Shakspeare a genius or creator, because he evoked plays and char. acters from the great chaos of thought, Hamilton merits the same appellation; for it was he, more than any other man, who thought out the Constitution of the United States and the details of the Government of the Union; and, out of the chaos that existed after the Revolution, raised a fabric, every part of which is instinct with his thought. I can truly say, that hundreds of politicians and statesmen of the day get both the web and woof of their thoughts from Hamilton's brains. He, more than any man, did the thinking of the time."" Published letter of William Dwight, Brookline, Massachusetts.

† De Witt Clinton.