Page:Contemporary Opinion of the Virginia and Kentucky Resolutions, p2.djvu/3

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Virginia and Kentucky Resolutions

mediately involved." Even in such cases their decisions were not to be regarded as binding upon the federal government. Having thus reached the point at which all state-sovereignty arguments fail, the matter was not pushed to any definite conclusion. No way out of the dilemma was suggested; but the failure of the logic did not prevent further argument intended to prove that the states must possess the right "to maintain within their respective limits all powers, rights and liberties appertaining to them." Summing up the whole matter of the reasonableness of the conclusion from the given premise, the attorneys for the defense said: "On the whole, whatever may be the merits of the question, there appears to be some little force in the sentiment contained in the Virginia Resolutions: 'that in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.'"

The second line of argument having shown that the leading Republican newspaper of New England and two of the most prominent Republican lawyers of Boston accepted all or nearly all of the constitutional doctrines of the Virginia and Kentucky Resolutions, we may turn to the third line of argument to learn how the Federalist chief-justice defined liberty of the press for Republican newspapers. The defense maintained that under the constitution of Massachusetts there could be no such thing as a libel upon the government of the state. Admitting that the English practice had been correctly stated they contended that the same rule did not prevail in Massachusetts. The whole body of the common law of England had not been adopted in Massachusetts; an exception had been made by the constitution of such parts as are "repugnant to the rights and liberties contained in this constitution." The question whether the English common-law rule was repugnant to the constitution was a fair problem for the court and the jury. To assist the court and the jury in determining that problem the defense made the point that no statute had been made by either the colony or the province for punishing such libels, denying also that the cases cited by the attorney-general were in point. Making the further admission, for the sake of argument, that the English rule had prevailed in Massachusetts prior to the Revolution, the defense urged that the events of the Revolutionary period had effected a change in the common law upon the subject of libels against the government. Blackstone's definition, that liberty of the press consists only of free-