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| Edward Livingston |
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| John Adams, apparently not the only president to not understand | the Constitution |
What I found interesting about the speech is that it fits incredibly well into the debate about the recent executive order to come out of the White House. This is an example of the old cliche that history repeats itself. Its also a lesson in what can happen when the government acts out of fear instead of humanity, compassion and good sense.
I've pulled a few of my favorite quotes out of the text below. The whole speech is below those.
"We must legislate upon facts, not on surmises—we must have evidence, not vague suspicions, if we mean to legislate with prudence"
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| Franklin Roosevelt |
"will the PEOPLE SUBMIT to our unauthorized acts? will the states sanction our usurped power? Sir, they ought not to submit—they would deserve the chains which these measures are forging for them, if they did not resist. For let no man vainly imagine that the evil is to stop here, that a few unprotected aliens only are to be affected by this inquisitorial power; the same arguments which enforce those provisions against aliens, apply with equal strength to enacting them in the case of citizens"
"the people of America, sir, though watchful against foreign aggression are not careless of domestic encroachment; they are as jealous, sir, of their liberties at home, as of the power and prosperity of their country abroad: they will awake to a sense of their danger; do not let us flatter ourselves then that these measures will be unobserved or disregarded. Do not let us be told, sir, that we excite a fervour against foreign aggression, only to establish tyranny at home; that, like the arch traitor, we cry "Hail, Columbia," at the moment we are betraying her to destruction: that we sing out "happy land," when we are plunging it in ruin or disgrace: and that we are absurd enough to call our∣selves "free and enlightened," while we advocate principles that would have disgraced the age of Gothic barbarity, and establish a code compared to which the ordeal is wise, and the trial by battle is merciful and just."
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| Jefferson, repealed 75% of the Alien and Sedition Acts |
Speech of Edward Livingston.
MR. LIVINGSTON said he esteemed it one of the most fortunate occurrences of his life, that after an inevitable absence from his seat in that house, he had arrived in time to express his dissent to the passage of the bill. It would have been a source of eternal regret, and the keenest remorse, if any private affairs, however urgent, any domestic concerns, however interesting, had deprived him of the opportunity he was then about to use, of stating his objections, and recording his vote against an act which he believed was in direct violation of the constitution; and marked with every characteristic of the most odious despotism.On my arrival, sir, mr. L. said, I enquired what subject occupied the attention of the house; and being told it was the alien bill, I directed the printed copy to be brought to me, but to my great surprise seven or eight copies of different acts on the same subject were put in my hands—among them it was difficult (so strongly were they marked by the same family features), to dis∣cover the individual bill then under discussion. This circumstance give me a suspicion that the principles of the measures were erroneous—Truth marches directly to its end by a single undeviating path—Error is either undetermined on its object, or pursues it through a thousand winding ways—the multiplicity of propositions therefore to attain the same general but doubtful end, led me to suspect that neither the object nor the means proposed to attain it were proper or necessary. These surmises were confirmed by a more minute examination of the act—In the construction of statutes, it was a received rule to examine what were the state of things when it was passed, and what were the evils it was in∣tended to remedy—as these circumstances would be applied in the construction of the law, it might be well to examine them minutely in framing it—the state of things, if we are to judge from the complexion of the bill, must be that a number of aliens, enjoying the protection of our government, were plotting its destruction—that they are engaged in treasonable machinations against a people who have given them an asylum and support, and that no provision is found to provide for their expulsion and punishment. If these things are so and no remedy exists for the evil, one ought speedily to be provided, but even then it must be a remedy that is consistent with the constitution under which we act—for as by that instrument, all powers not expressly given by it to the union, are reserved by the states—it follows that unless an express authority can be found, vesting us with the power, be the evil never so great it can only be remedied by the several states who have never delegated the authority to congress—but this point will be presently examined, and it will not be a difficult task to shew that the provisions of this bill are not only unauthorised by the constitution, but are in direct violation of its fundamental principles, and contradictory to some of its most express prohibitions; at present it is only necessary to ask whether the state of things contemplated by the bill have any existence—We must legislate upon facts, not on surmises—we must have evidence, not vague suspicions, if we mean to legislate with prudence—What facts have been produced? What evidence had been submitted to the house? I have heard, sir, of none—but if evidence of facts could not be pro∣cured, at least it might have been expected that reason∣able cause of suspicion should be shewn—here again gentlemen were at fault—they could not shew even a suspicion why these aliens ought to be suspected. We have, indeed, been told that the fate of Venice, Switzerland, and Batavia, was produced by the interference of foreigners. But, the instances were unfortunate—be∣cause all those powers had been overcome by foreign force, or divided by domestic faction, not by aliens who resided among them; and if any instruction was to be gained from those republics, it would be that we ought to banish not the aliens but all those who did not approve the executive this I 〈…〉were not ready to own—but if this measure prevailed, I shall not think the other remote; but if it had been proved that these governments were destroyed by the conspiracies of aliens, it yet remains to shew that we are in the same situation; or that any such plots have been detected or are even reasonably suspected here. Nothing of this kind has been yet done. A modern Theseus, indeed, has told us he has procured a clue that enable him to penetrate the labyrinth and destroy this monster of sedition. Who the fair Ariadne is who kindly gave him the ball he has not revealed: nor though several days have elapsed since he undertook the adventure, has he yet told where the monster lurks. No evidence then being produced, we have a right to say that none exists, and yet we are about to sanction a most important act, and on what grounds? our individual suspicions, our private fears, our over-heated imaginations. Seeing nothing to excite those suspicions, and not feeling those fears, I could not give my assent to the bill, even if I did not feel a superior obligation to reject it on other grounds. As far as my own observation goes, I have seen nothing like the state of things contemplated by the bill. Most of the aliens I have seen were either triumphant Englishmen, or Frenchmen, with dejection in their countenances and grief at their hearts, preparing to quit the country and seek another asylum. But if these plots exist, if this treason is apparent, if there are aliens guilty of the crimes that are ascribed to them, an effectual remedy presents itself for the evil; we have already wise laws, we have upright judges and vigilant magistrates, and there is no necessity of arming the executive with the destructive power proposed by the bill now on your table—the laws now in force are competent to punish every treasonable or seditions attempt.
But grant, sir, what however has not been at all supported by fact, grant that these fears are not visionary, that the dangers are imminent and that no existing law is sufficient to avert them; let us examine whether the provisions of the bill are conformable to the principles of the constitution: if it should be found to contravene them, I trust it will lose many of its present supporters; but if not only contrary to the general spirit and principles of the constitution, it should also be found diametrically opposite to its most express prohibitions, I cannot doubt that it would be rejected with that indignant decision which our duty to our country, and our sacred oath demands.
The first section provides that it shall be lawful for the President, "to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in any treasonable or secret machinations against the goverment thereof, to depart out of the United States, in such time as shall be expressed in such order."
Our goverment, sir, is founded on the establishment of those principles which constitute the difference be∣tween a free constitution, and a despotic power; a distribution of the legislative, executive and judiciary powers, into special hands, a distribution, strongly marked in three first and great divisions of the constitution—by first—all legislative power is given to Congress, the second vests all executive functions in the president, and the third declares that the judiciary power shall be exercised by the supreme and inferior courts; here then is a division, of the govermental powers strongly marked, decisively pronounced, and every act of one or all of the branches that tends to confound these powers, or alter this arrangement must be destructive of the constitution: examine then, sir, the bill on your table, and declare whether the few lines I have repeated from the first section do not confound these fundamental powers of the government, vest them all in the most unqualified terms in one hand, and thus subvert the basis on which our liberties rest.
Legislative power prescribes the rule of action; the judiciary applies that general rule to particular cases, and it is the province of the executive to see that the laws are carried into full effect. In all free goverments these powers are exercised by different men, and their union in the same hand is the peculiar characteristic of despotism: if the same power that makes the law can construe it to suit his interest and apply it to gratify his vengance, if he can go further, and execute according to his own passions, the judgment which he, himself, has pronounced upon his own construction, of laws, which he alone has made, what other features are wanted to complete the picture of tyrany; yet all this and more is proposed to be done by this act; by it the president alone, is empowered to make the law, to fix in his own mind, what acts, what words what thoughts or looks, shall constitute the crime contemplated by the bill; that is the crime of being "suspected to be dangerous to the peace and safety of the United States." He is not only authorized to make this law, for his, own conduct, but to vary it at pleasure, as every gust of passion, every cloud of suspicion, shall agitate or darken his mind; the same power that formed the law then applies it to the guilty or innocent victim whom his own suspicions or the secret whisper of a spy have designated as its object; the president then having made the law, the president having considered and applied it, the same president is by the bill, authorized to execute his sentence, in case of disobedience, by imprisonment, during his pleasure. This, then comes completely within the definition of despotism, and uni∣on of legislative, executive, and judicial powers. But this bill, sir, does not stop here, its provisions are a refinement upon despotism and present an image of the most fearful tyranny—Even in despotisms, though the monarch legislates, judges and executes, yet he legislates openly, his laws though oppressive, are known, they precede the offence, and every man who chooses may avoid the penalties of disobedience. Yet he judges and executes by proxy, and his present interest or passions do not inflame the mind of his deputy.
But here the law is closely concealed in the same mind that gives it birth—the crime is "exciting the suspicions of the president," but no man can tell what conduct will avoid that suspicion—a careless word, perhaps misrepresented or never spoken, may be sufficient evidence, a look may destroy, an idle gesture may insure punishment, no innocence can protect—no circumspection can avoid the jealousy of suspicion—surrounded by spies, informers and all that infamous herd which fatten under laws like this. The unfortunate stranger will never know either of the law, of the accusation or of the judgment until the moment it is put into execution—he will detest your tyranny, and from a land of delators, inquisitions and spies.
This, 〈…〉 the detestable contrivance of the 〈…〉 the table of their laws high that few could read them; a tall man, however, might reach, a short one might climb and learn their contents, but here is the law is equally in∣accessible to high and low; safely concealed in the breast of its author, no industry or caution can penetrate this recess and attain a knowlege of its provisions, nor even if they could, as the rule is not permanent would it at all avail.
Having shewn that this act is at war with the fundamental principles of our government, I might stop here in the certain hope, of its rejection—But I can do more; unless we are resolved to pervert the meaning of terms, I can shew that the constitution has endeavoured to "make its surety doubly sure, and take a bond of fate!" by several express prohibitions of measures like that you now contemplate. One of these is contained in the 9th section of the first article, it is at the head of the articles which restrict the powers of Congress, and declares "that the migration or importation of such persons, as any of the states, shall think proper to omit, shall not be prohibited prior to the year 1808" Now, sir, where is the difference between a power to prevent the arrival of aliens and a power to send them away as soon as they shall arrive? to me they appear precisely the same. The constitution expressly says, that congress shall not do this, and yet congress are about to delegate this prohibited power, and say, that the president may excercise it as often as his pleasure may direct. I am informed that an answer has been attempted to this argument, by saying, that the article, though it speaks of "persons." only relates to slaves? But a conclusive reply to this answer may be drawn from the words of the section, it speaks of migration and importation; if it related only to slaves, "importation," would have been sufficient; but how can the other word apply to slaves; migration is a voluntary change of a country; but who ever heard of a migration of slaves! the truth is, both words have their appropriate meaning, and even ex∣tended to secure the interests of different quarters of the union? The middle states wished to secure themselves against any laws that might impede the emigration of settlers; the southern states did not like to be prohibited in the importation of slaves, and so jealous were they of this provision, that the fifth article was introduced to declare that the constitution shall not be a∣mended so as to do it away.
But even admit the absurdity, that the word, "migration" has no meaning, or one foreign to its usual acceptation, and that the article relates only to slaves; Even this sacrifice of common sense will not help gentlemen out of their dilemma—slaves probably always, but certainly on their first importation, are aliens, many people think they are always "dangerous to the peace and safety of the United States!" if the president should be of this opinion, he not only can, but by the terms of this law, is obliged to order them off; for the act creates an obligation on him to send away all such aliens as he shall judge dangerous to the peace or safety of the United States. Thus, according to the most favourable construction, every proprietor of this species of property, holds it at the will and pleasure of the president—and this, too, in defiance of the only article of the constitution, that is declared to be unalterable.—But let us, sir, for a moment, if it be possible, let us imagine that a constitution, founded on a division of powers, into three hands, may be preserved, although all these powers should be surrendered into one; let us imagine, if we can, that the states intended to re∣strict the general government, from preventing the arrival of persons whom they were yet willing to suffer that same general goverment to ship off as soon as they should arrive: grant all this; and they will be as far from establishing the constitutionality of the bill, as they were at the first moment it was proposed—for in the 3d article it is provided, that all "judicial power shall be vested in the supreme and inferior courts," that the trial of "all crimes shall be by jury," except in case of impeachment; and in the 7th and 8th amendments, provision is repeated and enforced by others this which declare, that "no man shall be held to answer for a capital or otherwise infamous crime, unless on a presentment of a grand jury" that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of council for his defence"—Now, sir, what minute article in these several provisions of the constitution is there that is not violated by this bill? all the bulwarks which it opposed to encroachments on personal liberty, fall before this engine of oppression.
Judiciary power is taken from courts, and given to the executive, the previous safeguard of a presentment by a grand inquest is removed, the trial by jury is abolished: the "public trial required by the constitution is changed into a secret and worse than inquisitorial tribunal: instead of giving "information of the nature and cause of the accusation," the criminal, alike ignorant of his offence and the danger to which he is exposed, never hears of either until the judgment is passed, and the sentence is executed: instead of being "confronted with his accusers," he is kept alike ignorant of their names and their existence, and even the forms of a trial being dispensed with, it would be a mockery to talk of "process for witnesses," or the "assistance of council for defence," thus are all the barriers which the wisdom and humanity of our country had placed between accused innocence and oppressive power at once forced and broke down. Not a vestige even of their form remains. No indictment, no jury, no trial—no public procedure, no statement of the accusation; no examination of the witnesses in its support. No council for defence—all is darkness, silence, mystery, and suspicion. But as if this were not enough; the unfortunate victims of this law are told in the next section that if they can convince the president that his suspicions are unfounded, he may, if he pleases, give them a license to stay—but how re∣move his suspicions when they know not on what act they were founded? how take proof to convince him, when he is not bound to furnish that on which he proceeds; miserable mockery of justice! appoint an arbitrary judge armed with legislative and executive powers added to his own! let him condemn the unheard, the unaccused object of his suspicion, and then to cover the injustice of the scene, gravely tell him, you ought not to complain, you need only disprove facts that you have never heard, remove suspicions that have never been communicated to you, it will be easy to convince your judge, whom you shall not approach, that he is tyrannical and unjust, and when you have done this, we give him the power he had before, to pardon you if he pleases.
So obviously do the constitutional objections present themselves, that their existence cannot be denied, and two wretched subterfuges are resorted to, to remove them out of sight. First, it is said, the bill does not contemplate the punishment of any crime, and therefore, the provisions in the constitution, relative to criminal proceedings and judiciary powers do not apply. But have the gentlemen who reason thus, read the bill, or is every thing forgotton in our zealous hurry to pass it? What are the offences upon which it is to operate? Not only the offence of being "suspected to be dangerous to the peace and safety of the United States," but also that of being "concerned in any treasonable or secret machinations against the government thereof." And this we are told is no crime! a treasonable machination against the government, is not the subject of criminal jurisprudence! good heaven, to what absurdities does an over zealous attachment to particular measures lead us! in order to punish a particular act, we are forced to say, that treason is no crime, and plotting against our government is no offence. And to support this fine hypothesis, we are obliged to plunge deeper in absurdity and say, that as the acts spoken of in the bill, are no crimes; so the penalty contained in it is no punishment, it is only a prevention; that is to say, we invite strangers to come among us, we declare solemnly that government shall not have the power to prevent them—we entice them over by delusive prospects of advantage, in many parts of the union we permit them to hold lands, and give them other advantages, while they are waiting for the period at which we have promised a full participation of all our rights—an unfortunate stranger, disgusted with tyranny at home, thinks he shall find freedom here, he accepts your conditions, he puts faith in your promises, he rests his whole property in your hands, he has dissolved his former connections and made your country his own. But while he is patiently waiting the expiration of the period that is to crown the work, and entitles him to all the rights of a citizen, the tale of a domestic spy, or the calumny of a secret enemy draws on him the suspicions of the president—and, unheard, he is ordered to quit the spot which he solicited for his retreat, the country he had chosen for his own, perhaps the family which was his only consolation in life, he is ordered to re∣tire to a country whose government irritated by his renunciation of its authority, will receive only to punish him—and all this we are seriously told is no punishment.
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| The deal that FDR gave these people of Japanese decent |
So manifest do these violations of the constitution ap∣pear to me, so futile the arguments in their defence, that they press seriously upon my mind and sink it even to despondency—they have been so glaring to my understanding, that I felt it my duty to speak of them in a manner that may perhaps give offence to men whom I esteem and who seem to think differently on that subject—none, however, I can assure them is intended.
I have seen measures carried in this house which I thought militated against the spirit of the constitution, but never before have I been witness to so open, so wan∣ton, and undisguised an attack. I have now done, sir, with the act and come to consider the consequences of its operation.
One of the most serious has been anticipated when I described the blow it would give to the constitution of our country—we should cautiously beware of the first act of violation; habituated to over leap its bounds, we become familiarized to the guilt and disregard the danger of a second offence—until proceeding from one unauthorized act to another, at length throw of all the restraints which our constitution has imposed; and very soon not even the semblance of its forms will re∣main.
But if regardless of our duty as citizens, and our solem obligation as representatives, regardless of the rights of our constituents—of their opinion and that of posterity—regardless of every sanction, human and divine—if we are ready to violate the constitution we have sworn to defend—will the PEOPLE SUBMIT to our unauthorized acts? will the states sanction our usurped power? Sir, they ought not to submit—they would deserve the chains which these measures are forging for them, if they did not resist. For let no man vainly imagine that the evil is to stop here, that a few unprotected aliens only are to be affected by this inquisitorial power; the same arguments which enforce those provisions against aliens, apply with equal strength to enacting them in the case of citizens: the citizen has no other protection for his personal security that I know, against laws like this, than the humane provisions I have cited from the constitution: but all these apply in common to the citizen and the stranger: "All crimes" are to be tried by jury—"No person" shall be held to answer unless on presentment: in all criminal prosecutions the "accused" is to have a public trial: the "accused" is to be informed of the nature of the charge: to be confronted with the witnesses against him. May have process to en∣force the appearance of those in his favour, and is to be allowed council for his defence—Unless, therefore, we can believe that treasonable machinations and the other offences described in the bill are not crimes—that an alien is not a person—and that one charged with treasonable practices is not "accused"—unless we can believe all this, in contradiction to our own understandings, to received opinions and the uniform practice of our courts, we must allow that all these provisions extend equally to aliens and natives, and that the citizen has no other security for his personal safety than is extended to the stranger, who is within his gates; if, therefore, this security is violated in one instance, what pledge have we that it will not in the other? The same plea of necessity will justify both: either the offences described in the act are crimes, or they are not; if they are, then all the humane provisions of the constitution forbid the mode of punishing or preventing them equally as relates to aliens and citizens. If they are not crimes, then the citizen has no more safety by the constitution than the alien has; for all those provisions apply only to crimes. So that in either event, the citizen has the same reason to expect a similar law to the one now before you; which subjects his person to the uncontrolled despotism of a single man. You have already been told of plots, conspiracies—and all the frightful images that were necessary to keep up the present system of terror and alarm were presented to you: but who were implicated by these dark hints—these mysterious allusions?—they were our own citizens, sir, not aliens: if there is then any necessity for the system now proposed, it is more necessary to be enforced against our own citizens, than against strangers; and I have no doubt that either in this, or some other shape they will be attempted. I now ask, sir, whether the people of America are prepared for this? Whether they are willing to part with all the means which the wisdom of their ancestors discovered; and their own caution so lately adopted to secure the liberty of their persons? Whether they are ready to submit to imprisonment, or exile, whenever suspicion, calumny or vengeance, shall mark them for ruin? Are they base enough to be prepared for this? No, sir, they will, I repeat it, they will resist this tyrannic system; the people will oppose, the states will not submit to its operation: they ought not to acquiesce, and I pray to God they never may. My opinions, sir, on this subject are explicit, and I wish they may be known; they are, that whenever our laws manifestly infringe the constitution under which they were made, the people ought not to hesitate which they should obey: if we exceed our powers, we become tyrants, and our acts have no effect. Thus, sir, one of the first effects of measures such as this, if they should not be acquiesced in, will be disaffection among the states, and opposition among the people to your government; tumults, violence, and a recurrence to first revolutionary principles. If they are submitted to, the consequences will be worse—After such manifest violation of the principles of our constitution, the form will not long be sacred; presently every vestige of it will be lost and swallowed up in the gulph of despotism—but should the evil proceed no further than the execution of the present law, what a fearful picture will our country present—the system of espionage established; the country will swarm with informers, spies, delators, and all that odious reptile tribe that breed in the sunshine of despotic power, that suck the blood of the unfortunate, and creep into the bosom of sleeping innocence only to wake it with a burning wound—the hours of the most unsuspecting confidence; the intimacies of friendship, or the recesses of domestic retirement, afford no security: the companion whom you most trust, the friend in whom you confide, the domestic who waits in your chamber, are all tempted to betray your imprudence or guardless follies; to misrepresent your words; to convey them, distorted by calumny, to the secret tribunal where jealousy presides; where fear officiates as accuser, and suspicion is the only evidence that is heard.
These, bad as they are, are not the only ill consequences of these measures: among them we may reckon the loss of wealth, of population, and of commerce. Gentlemen who support the bill, seemed to be aware of this, when yesterday they introduced a clause to secure the property of those who might be ordered to go off; they should have foreseen the consequences of the steps they have been taking; it is now too late to discover that large sums are drawing from the banks, that a great capital is taken from commerce. It is ridiculous even to observe the solicitude they shew to retain the wealth of these dangerous men, whose persons they are so eager to get rid of; if they wish to retain it, it must be by giving them security to their persons, and assuring them that while they respect the laws, the laws will protect them from arbitrary power; it must be, in short, by rejecting the bill on your table. I might mention many other inferior considerations: but I ought, sir, rather to intreat the pardon of the house, for having touched on this; compared to the breach of our constitution, and the establishment of arbitrary power, every other topic is trifling; arguments of convenience sink into nothing; the preservation of wealth, the interests of commerce, however weighty on other occasions, here lose their importance: When the fundamental principles of freedom are in danger, we are tempted to borrow the impressive language of a foreign speaker, and exclaim—"Perish our commerce, let our constitution live:"—Perish our riches, let our freedom live—this, sir, would be the sentiment of every American, were the alternative between submission and wealth; but here, sir, it is proposed to destroy our wealth, in order to our commerce. Not in 〈…〉 but to break it—not to secure 〈…〉.
I have now done sir, but before I sit down let me intreat gentlemen seriously reflect before they pronounce the decisive vote, that gives the first open stab to the principles of our government. Our mistaken zeal, like that of the patriarch of old, has bound the victim; it lies at the foot of the altar; a sacrifice of the first born offspring of freedom is proposed by those who gave it birth. The hand is already raised to strike, and nothing I fear but the voice of Heaven can arrest the impious blow.
Let not gentlemen flatter themselves that the fervour of the moment can make the people insensible to these aggressions. It is an honest noble warmth, produced by an indignant sense of injury. It will never, I trust, be extinct, while there is a proper cause to excite it: but the people of America, sir, though watchful against foreign aggression are not careless of domestic encroachment; they are as jealous, sir, of their liberties at home, as of the power and prosperity of their country abroad: they will awake to a sense of their danger; do not let us flatter ourselves then that these measures will be unobserved or disregarded. Do not let us be told, sir, that we excite a fervour against foreign aggression, only to establish tyranny at home; that, like the arch traitor, we cry "Hail, Columbia," at the moment we are betraying her to destruction: that we sing out "happy land," when we are plunging it in ruin or disgrace: and that we are absurd enough to call our∣selves "free and enlightened," while we advocate principles that would have disgraced the age of Gothic barbarity, and establish a code compared to which the ordeal is wise, and the trial by battle is merciful and just.
