By the Court.
Lumpkin, J.
delivering the opinion.
James Campbell, convicted of manslaughter in the Superior Court of Richmond County, sues out a writ of error to reverse the judgment of the Court below, in refusing him a new trial. His application for a re-hearing, was based upon two grounds : 1st. Because the dying declarations of Alfred Mays, the person killed, were permitted to go in evidence to the Jury, contrary to the provision in the 6th amendment of the Constitution of the United States, entitling the accused to be confronted with the witnesses against him. And 2dly. Because these declarations were not admissible, for the reason, that they were not made under the consciousness of immediate death.
[1.] The first point submitted in the argument is, that deathbed declarations in cases of homicide, cannot be given in evidence, because their admission would contravene the 6th article of the amendments to the Constitution of the United States, entitling the accused in all criminal prosecutions, to be confronted with the witnesses against him.
The answer given to this objection is, that the article inques[365]*365tion, applies to the United States government only, and was not intended to control the laws of the several States.
That this amendment, like the other nine adopted at the same time, was primarily introduced for the purpose of preventing an abuse of power by the Federal Government, is readily conceded. Grasping, however, as the National Judiciary is supposed to be, and studious to accumulate power in the central government, it may well be questioned, whether the limitations and restrictions imposed by these amendments, were necessary. The rights which they were designed to protect, were too sacred to be violated by any republican tribunal, legislative or judicial. A disregard of them, was mainly instrumental in overturning the Stuart dynasty in England ; depriving one monarch of his head, and another of his crown. And no Court, probably, in this free country, would have ventured to enforce practices so arbitrary, unjust, 'and oppressive, as those inhibited by these amendments ; practices condemned by Magna Charta — the Petition of Right — the Bill of Rights — and more especially, by the Act of Settlement, in Britain.
The principles embodied in these amendments, for better securing the lives, liberties, and property of the people, were declared to be the “ birthright ” of our ancestors, several centuries previous to the establishment of our government. It is not likely, therefore, that any Court could be found in America of sufficient hardihood to deprive our citizens of these invaluable safeguards. Still, our patriotic forefathers, out of abundant caution, super-added these amendments to the Constitution, so as to place the matter beyond doubt or cavil, misconstruction or abuse.
And the question to be decided now is, not whether these amendments were intended to operate as a restriction upon the government of the United States, but whether it is competent for a State Legislature, by virtue of its inherent powers, to pass an Act directly impairing the great principles of protection to person and property, embraced in these amendments ?
That the power to pass any law infringing on these principles, is .taken from the Federal Government, no one denies. But is it a part of the reserved rights of a State to do this ? May the [366]*366Legislature of a State, for example, unless restrained by its own Constitution, pass a law “ respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and petition the government for a redress of grievances ? ” If so, of what avail, I ask, is the negation of these powers to the General Government ? Our revolutionary sires wisely resolved that religion should be purely voluntary in this country; that it should subsist by its own omnipotence, or come to nothing. Hence, they solemnly determined that there should be no church established by law, and maintained by the secular power. Now, the doctrine is, that Congress may not exercise this power, but that each State Legislature may do so for itself. As if a National religion and State religion, a National press and State press, were quite separate and distinct from each other; and that the one might be subject to control, but the other not!
Such logic, I must confess, fails to commend itself to my judgment. For let it constantly be borne in mind, that notwithstanding we may have different governments, a nation within a nation, imperium in imperio, we have but one people ; and that the same people which, divided into separate communities, constitute the respective State governments, comprise in the aggregate, the United States Government; and that it is in vain to shield them from a blow aimed by the Federal arm, if they are liable to be prostrated by one dealt with equal fatality by their own.
But I deem it unnecessary to pursue this line of argument and of illustration, any farther. When it can be demonstrated that an individual or a government has the right to do wrong, contrary to the old adage, that one person’s rights cannot be another person’s wrongs, then, and not before, will it be yielded that it is a part and parcel of the original jurisdiction of the State governments, reserved to them in the distribution of power under the Constitution, to enact laws, to deprive the citizen of the right to keep and bear arms; to quarter soldiers in time'of peace, in any house, without the consent of the owner; [367]*367to subject the people to unreasonable search and seizure, in their persons, houses, papers and effects ; to hold a person to answer for a capital, or otherwise infamous crime, without presentment or indictment; to be twice put in jeopardy of life or limb for the same offence; to compel him, in a criminal case, to be a witness against himself; to deprive him of life, liberty or property, without due course of law; to take private property for public use, without just compensation ; to deprive the accused in all criminal trials, of the right to a speedy and public trial, by an impartial Jury ; 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 favor, and to have the assistance of counsel for his defence; to enact laws requiring excessive bail, imposing oppressive and ruinous fines, and inflicting cruel and unusual punishments!
From such State rights, good Lord deliver us ! I utterly repudiate them from the creed of my political faith!
It was not because it was supposed that legislation over the subjects here enumerated might be better and more safely entrusted to the State governments, that it was prohibited to Congress. It was to declare to the world the fixed and unalterable determination of. our people, that these invaluable rights which had been established at so great a cost of blood and treasure, should never be disturbed by any government. They feared no interference from their own local Legislatures. They determined to fetter the hands of the Federal authority, the only quarter from which danger was apprehended. .
One of the reasons set forth in the preamble to these amendments, for their adoption was, that it would _ “ extend thereby, the ground of public confidence in the government,., and thus best secure the beneficent ends of its institution.” Marbury Crawford’s Digest, 660. What confidence will be. reposed in a State government, whose legislation should be characterized by acts which disgrace the most .tyranical epoch of .the British monarchy ? A free people would instantly. and indignantly reject it and its authors. ........
[368]*368The famous indictment preferred by the Grand Inquest of 1776, against George the Third, charged him, among other things, with “ quartering large bodies of armed troops among the people; ” and with depriving the provinces, in many cases, of “the benefits of trial by Jury;” two of the articles expressly forbidden by the amendments. It further alleged, that he had “ abolished the free system of English law in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies.” To uphold this “ free system of English law,” was the great end and object of the whole of the ten amendments— but for the apparent irreverence, I would say commandments— which were added to the Constitution. If the foregoing acts justly branded this trans-Atlantic Prince as a tyrant, and rendered him unfit to be the ruler of a free people, republican legislators will beware how they tread in his footsteps.
While this Court yields to none in its devotion to State rights, and would be the first to miscall attempts at Federal usurpation, it feels itself called on by the blood of the many martyrs, who nobly died to maintain the great principles of civil liberty contained in these amendments — our American Magna Charta— to stand by, support and defend the rights which they guarantee, against all encroachments, whether proceeding from the National or State governments.
The Chancellor who delivered the opinion of the Court of Errors, in Barker vs. The People, (3 Cow. R. 686,) one of the cases cited in support of the position which I am combating, notices the fact, that in the Constitutions established by the different States, since the adoption of the amendments in question, provisions are inserted in reference to the same subjects embraced in the amendments. And the inference is, that the States which imposed the same restraints upon their own governments, which were contained in these amendments, gave conclusive evidence that they conceived that they were at liberty to do so or not; and that the Constitution of the Union imposed no restraint upon the State governments; and that to consider these [369]*369amendments as operative upon the several States, would be to render nugatory the like provisions in the Constitutions of many of the States.
There is plausibilty in this proposition. It is a curious circumstance, however, and one worthy of remark, that the States in framing their Constitutions, have done things more strange and unaccountable than this. Many of them have imposed restraints by their Constitutions, on certain powers, over which the States are expressly forbidden to legislate, by the Federal Constitution. By the latter, for instance, it is provided that no State shall pass any ex post facto law. The same prohibition is contained in the Constitution of Georgia, Massachusetts, Pennsylvania, Delaware, Maryland, North and South Carolina, Kentucky, and I believe, of every State in the Union. Did these States conceive that they had the power to pass an ex post facto law, or not ? Let this example, one only of many which might be adduced, suffice to show how utterly unsatisfactory is the course of reasoning adopted by the Court of Errors of New York.
Other precedents are cited to sustain the proposition, that none of these amendments extend to the State governments, but were intended for Congress and the United States Courts. James vs. The Commonwealth, 12 Serg. & Rawl. 220. The May or and City Council of Baltimore, 7 Peters, 243. I will not stop to examine these cases, or to array the conflicting opinions of Courts and Jurists, equally eminent, on the other side.
The question, I am aware, is still regarded as an unsettled one; but in this country, the weight of authority will be found in favor of the doctrine, that governments are not clothed with absolute and despotic power; but that independently of written constitutions, there are restrictions upon the legislative power, growing out of the nature oí the civil compact and the natural rights of man. And that, when certain boundaries are overleaped anda law passed subversive of the great principles of republican liberty and natural justice — as for instance, taking away without cause, and for no offence, the liberty of the citizen — that it would become the imperative duty of the Courts, to pronounce such a Statute inoperative and void,
[370]*370In Fletcher vs. Peck, (6 Cranch, 87,) Chief Justice Marshall himself says, “It may well be doubted whether the nature of society and of government, does not prescribe some limits to legislative power.”
In Terrell vs. Taylor, (9 Cranch, 43,) the Court say, “We know of no case in which a legislative act to transfer the property of Ato B, without his consent, has ever been held a constitutional exercise of power in any State in the Union. On the contrary, it has been constantly resisted, as inconsistent with first principles.”
In Green vs. Biddle, (8 Wheat. 1,) Mr. Justice Washington, in delivering the opinion of the Court, speaks of “ the universal law of all free governments.”
In Wilkinson vs. Leland, (2 Peters, 654,) the Supreme Court say, “ that government can scarcely be deemed free, where the rights of property are left solely dependent upon the will of the legislative body, without any restraint. The fundamental maxims of a fee government seem to require, that the rights of personal liberty and private property, should be held sacred.”
In Bonaparte vs. The Camden & Amboy R. R. Co. (1 Baldwin's C. C. R. 223,) it was adjudged, that the Legislatnrehas not the power to take the property of a man, for private purposes, without-his consent; that if a law was clearly open to that objection, it would be a fatal one.
Now, all of these adjudications, with numerous others, to the same effect, proceed upon the fundamental principles of natural justice, independent of any constitutional restriction.'
In the case of The Regents of the University of Maryland vs. Williams, (9 Gill. & Johnson, 365,) the Court is still more explicit. After deciding that the Act of the Legislature of Maryland, which took away the vested rights of the Regents, was void, as being in collision with the Constitution of the United States ; Chief Justice Buchanan adds, “ but the objection to the validity of the Act of 1825, does not rest alone for support upon the Constitution of the United States.”
“ Independent of that instrument, and ojf any express restriction in the Constitution of the State, there is a fundamental principle of [371]*371right and justice, inherent in the nature and spirit of the social compact (i?i this country at least,) the character and genius of our governments, the causes from which they sprang, and the purposes for which they were established, that rises above the restraints and sets bounds to the power of legislation, which the Legislature cannot pass, without exceeding its lawful authority. It is that principle which protects the life, liberty, and property of the citizen, from violation, in the unjust exercise of legislative power.”
The Constitution of New York confers upon the Legislature of that State, the broad grant to pass all laws which they deem necessary and proper for the good of the State, and which shall not be repugnant to the paramount law. And yet, in Taylor vs. Porter, (4 Hill’s R. 146,) Mr. Justice Bronson says, “ under our form of government, the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people.” And notwithstanding the general grant of power to pass all constitutional laws, he denied that it reached to the unwarrantable extent oí taking the property of A and giving it to B, with or without compensation. “ Neither life, liberty, nor property,” says the learned Judge, “ except when forfeited for crime, or when the latter is taken for public use, falls within the scope of this power.”
It is for this reason, that the power of the Legislature, independent of any constitutional restrictions, to pass retrospective laws which shall have a retroactive effect, has been uniformly denied. 2 Gallison, 139; N. H. R. 213; 16 Mass. R. 215; 7 Johns. R. 477.
But we do not intend to put our opinion in this case, upon this foundation, however solid it may be. For while we have denied the omnipotence of the Legislature, the tendency of our administration, nevertheless has been, to side with those who refused to declare an Act of the Legislature void, because it conflicts with the Court’s views of reason, expediency or justice ; and who recommend an appeal to the ballot-box as the only remedy for unwise legislation. And one of the strongest arguments against Judicial interposition in such cases is, that apart from a mitten Constitution, our ideas of natural justice are vague and uncertain, regulated by no fixed standard ; the ablest [372]*372and best men differing widely upon this, as well as all other subjects.
But as to questions arising under these amendments, there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace ; and to make them more emphatic and enduring, have had them incorporated into the Constitution of the Union — the permanent law of the land. Admit, therefore, that the Legislature of a State may be absolute and without control over all other subjects, where its authority is not restrained by the Constitution of the 'State or of the United States; still, viewing these amendments as we do, as intended to establish justice — to secure the blessings of liberty — to protect person and property from violence; and that these were the very purposes for which this government was established, we hold that they constitute a limit to all legislative power, Federal or State, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions > that without this security for personal liberty and private property, our social compact could not exist. No Court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason. The very genius, nature and spirit of our institutions amount to a prohibition of such acts of legislation, and will overrule and forbid them.
I admit, that all criminal jurisdiction rightfully belonging to any independent community, is vested in our State governments, except where, to promote the general welfare, it has been expressly delegated to the national government. To paraphrase the language of a distinguished Justiciary, the Legislature may enjoin, permit, forbid and punish ; they may declare new crimes; they may, in a word, command what is right, and prohibit what is wrong, in the broadest sense ; but they cannot commit political suicide, or rather parricide, by violating or destroying the great first principles of American civil liberty, as [373]*373set forth and declared in the ten amendments of the Constitution — a legal decalogue for every civilized society, in all time to come.
No such attempt would be considered a rightful exercise of legislative authority. To maintain that our Federal or State Legislature possess such a power, is, in our opinion, a political heresy, altogether inadmissible. The British Parliament dare not, at this day, with all its transcendental power, commit such an outrage. For such monstrosity in legislation we must go to semi-imperial France, or semi-barbarous Russia. Any attempt in this country, at this day, to establish religion ; to curtail the freedom of speech or of the press ; to deprive a party of the privilege of appearing personally, or by counsel; to inflict cruel or unusual punishments; to immure a prisoner without trial, in a dungeon for life; to subject a citizen to a star-chamber proceeding instead of a public trial; would shock not only the common sense, but sense of justice of the teeming millions in this free and happy country! Shame! shame! upon such legislation, would be indignantly uttered by ten thousand tongues!
No republican Legislature, I am persuaded, will ever be so forgetful or regardless of moral rectitude as to incur so severe a rebuke. Our law-makers are too deeply penetrated with a sense of duty and of justice; too profoundly imbued with moral and religious principle; too much interested in the enjoyment of that security to person and property, (the fruit of our free institutions) which these amendments provide ; too indelibly impressed with the worth of these principles, by a consideration of their cost, deliberately to trample them under foot. Should the Legislature, through haste or inadvertence, pass an act at war with the spirit, object and design of our social system, as manifested in this charter, it would become the imperative duty of the Courts, however delicate the task, to vindicate the rights of the citizen, by pronouncing such a Statute invalid. This Court has been compelled more than once since its organization, reluctantly to perform this painful function.
[2.] Holding then, as we do, that the inviolability of the rule must be preserved, which, in all criminal prosecutions entitles the [374]*374accused to be confronted with the witnesses against him, does it abrogate the Common Law principle, that the declarations in extremis of a murdered person, as to the homicide, are admissible in evidence ? The right of a party accused of a crime, to meet the witnesses against him, face to face, is no new principle. It is coeval with the Common Law. Its recognition in the Constitution was intended for the two-fold purposes of giving it prominence and permanence. The argument for the exclusion of the testimony, proceeds upon the idea that the deceased is the witness, when in fact it is the individual who swears to the statements of the deceased, who is the witness. And it is as to him that the privileges of an oral and cross examination are secured.
The admission of dying declarations in evidence, was never supposed, in England, to violate the wrell-established principles of the Common Law, that the witnesses against the accused should be examined in his presence. The two rules have co-existed there certainly, since the trial of Ely, in 1720, and are considered of equal authority.
The constant and uniform practice of all the Courts of this country, before and since the revolution, and since the adoption of the Federal Constitution, and of the respective State Constitutions, containing a similar provision, has been to receive in evidence, in cases of homicide, declarations properly made, in articulo mortis.
It constitutes one of the exceptions to the rule which rejects hearsay evidence. It is founded in the necessity of the case; and for the reason, that the sanction under which these declarations are made, in view of impending death and judgment, when the last hope of life is extinct, and when the retributions of eternity are at hand, is of equal solemnity as that of statements made on oath. With the policy of the rule w’hich has been so ingeniously assailed by counsel for the accused, we have nothing to do. I will not deny but that it may be justified by that urgent necessity, which is a sufficient ground for dispensing with any rule. Chief Justice lilghman thought there could not be a stronger case of necessity, than that which re[375]*375quires the declarations of the dying victim of secret assassination to be received, in order to the detection and punishment of his murderer. Moreover, he supposed that its allowance, and the knowledge that upon it, the culprit might be condemned, would have a saving and protecting' influence upon society. Still it must be admitted that great caution should be observed in the use of this kind of evidence ; and (¡drp^were^the point, res integra, much might be said against the practice.
Without dwelling longer upon this exception, we consider it settled, that in case of homicide, declarations by one mortally wounded and who is conscious of his condition, are admissible in evidence, both as to who was the perpetrator of the injury and the facts which attended the transaction.
[3.] The only remaining ground of objection is, that the evidence does not sufficiently show that the deceased knew or thought that his end was near; and that the declarations testified to were made with the belief of death present to the mind of the declarant. That declarations, to be admissible in evidence, must be made under apprehension of immediate death, is unquestionable. The facts disclosed by the record satisfied the mind of the presiding Judge, as they do ours, that the statements were made at a time when the deceased was wdthouthope of life, and in expectation of approaching dissolution.
The wounds were inflicted on Saturday night, the 19th of January, 1851 ; one of which was so severe as to cause a protrusion of the membranes of the intestines from the abdomen; and in this state the deceased lay, so exposed to the bitter cold of winter, until next morning. When found, he wrns completely torpid, and he continued in this condition until he died— before sun-rise Tuesday morning — no re-action having taken place in his system.
John Evans testifies that he was with him a great deal during his illness, spending three hours or more at one time, on Sabbath evening. He heard him say he was very bad off; he was cut all to pieces, and he believed he should die. John J. Flournoy swears, that on Monday afternoon, about 4 o’clock, he saw Mays. ■ He found him very weak, and very much depressed [376]*376in feeling. He stated that certain persons (naming them) who had inflicted the wounds, had threatened to kill him ; and that they had done it — or nearly done it. William Goodwin called on the deceased, on Sunday and Monday evenings, and staid some hours with him. He was in great pain, and said he would never get over it; that he was cut all to pieces; and that he wanted Mr. Evans to attend to having these people arrested, if he died. Seaborn Skinner, a neighbor of the deceased, and known to him as a member and a class-leader of the Church, called on him on Monday. He told witness he thought he would die; and when he bid him good bye, Mays said to witness, he never expected to see him in this world again, and asked him to pray for him.
This testimony, embracing as it does, separate conversations held with different persons, at various times, at their respective interviews with the deceased, would seem to be conclusive as to the belief of the party, that he was a dying man; and that, consequently what he said to the witnesses on these occasions was properly submitted to the Jury by the Court, and with equal propriety, regarded by them as the dying declarations of Alfred Mays, in the full view of death and eternity as just at hand.
[4.] Is it the province of the Judge or of the Jury to decide whether the deceased thought himself dying or not, when he made the declarations inculpating the defendant ?
His Honor Judge Starnes, after giving to this case, as he does all others which come before him, the most careful and scrupulous attention, and bringing to bear upon it that clear and discriminating judgment, patient and thorough research, which characterises all of his decisions, held, that the proper course to be pursued was this: that a prima facie case of the moral consciousness required, should be exhibited to the Court in the first instance, as preliminary to the admission of the testimony. This done, the evidence should be received and left for the Jury to determine whether the deceased was really under the apprehension of death when the declarations were made, which they might infer either from circumstances or the expressions used.
All the analogies of the law, as to proof of books, hand[377]*377writing, &c., would seem to sanction this practice; and it is certainly in accordance with the symmetry of our Judicial system. Up to the time of Woodstock’s case, decided in England in 1789, the whole subject seems to have been left to the Jury, under the direction of the Court, as a mixed question of law and fact. Since that period, it has been held there, to be the peculiar and exclusive fluty of the Court, to decide whether the decedent made the declarations under the consciousness of inevitable death.
[5.] Affirming then, as we do, the doctrine of' the Circuit Judge, that the condition of the deceased is to be determined by. the Jury, by his statements, and by the character and nature of the injury, his appearance, conduct, &c. why should this issue of fact be placed upon a different footing from any other ? And if there be evidence to warrant the verdict, why should it be disturbed by this or any other Court ?
For myself, I must say, that the testimony satisfies me, that Alfred Mays felt that his departure was at hand; that he was going the way of all flesh; that he was fully sensible of the hopelessness of his condition.
On the whole, therefore, our conclusipns aye clearly against the prisoner, on all the grounds on which he seeks a reversal.
Judgment affirmed.