upon all laws; because, no state could be compelled to submit to any law, which was passed without the president's sanction, though by two thirds of congress. Such an unqualified veto is a greater power, than any but kings pretend to claim, and would render the provisions of the constitution on this subject useless. In fact the constitution would become like some ill-contrived instrument, which has strength enough to overcome inconsiderable obstacles, but, when opposed to any weighty ones, flies off the handle. Rational liberty and good order, under a government of laws, would then become a mere farce; and is there not danger, that it might be followed, in the inverse order of theatrical representations, by the tragedy of revolution, anarchy, and military despotism?

A case, where the citizens of one or more of the states should be oppressed by an unconstitutional law of another state, after the Supreme Court of the United States had decided such law to be unconstitutional, one would naturally sup-. pose to be too improbable to deserve a moment's consideration; since, in general, it is matter of boast, that, in no country in the world, are the rights of the citizens better protected than in the United States. Yet, in what respect does this imaginary case differ from that of the two American citizens now imprisoned in the state of Georgia? These citizens, at the time of the passage of the unconstitutional law alluded to, were residing within the Cherokee Territory; and because they continued to reside there without complying with the requirements of a certain act of the state of Georgia, which the Supreme Court has decided to be unconstitutional, they are sentenced to hard labor in the penitentiary, or state prison, of that state, for four years; and notwithstanding such decision of the Supreme Court, they are still detained indurance vile,' among malefactors and felons. This seems to be a case of peculiar hardship upon these citizens. For, they depended on the laws and constitution of the United States for protection, and have committed no crime; yet they are not protected.

It seems singular, that though Congress was in session when the decree of the Supreme Court of the United States was pronounced, and received notice that the decree would not be obeyed, and knew, that, owing to the adjournment of the

Supreme Court, which sits only once a year, these persons can have no relief by the intervention of that court, until the next session, yet they did not adopt any measures to procure the release of these persons from imprisonment. It seems singular, too, that though Congress must be aware of the intention of the state of Georgia, not to obey the decree, nor to suffer it to be executed by the Supreme Court, which, having no political power, in all probability will not be able of itself to execute its own decree in this case, should have adjourned without coming to any resolution on a subject, in which the honor of the United States seems concerned. It is true, some may imagine, that, by this delay, a collision with the state of Georgia may probably be avoided, because, it is not improbable, that the hardships of imprisonment, might induce the prisoners to make concessions, and petition for their pardon and release. But, if they should adopt this course, and should actually be pardoned upon their submission, it would stamp indelible disgrace upon the Union; because it would then be apparent, that though they were citizens of the United States, and had committed no crime, yet the government either could not or would not protect them; and, besides being unjustly punished, these persons would be obliged to succumb to their oppressors, in order to obtain their release before the whole term of their imprisonment expires. A temporizing policy is sometimes prudent, wise and humane, but never can be honorable when it is at the expense of an injured person, who is suffering imprisonment, disgrace, ignominy, and other hardships, by the delay.

2. Another class of cases, but of a totally different kind, in which injury may be inflicted by persons in authority, and where the remedy is not always so easy, as it is desirable it should be, is where a military commander avails himself of the force under his command, and the discipline of the camp, and the habits of implicit obedience of his troops, to commit acts of oppression upon the citizens. Such oppression may be practised in a great variety of ways; as, by seizing upon supplies without necessity, and in an arbitrary manner not warranted by law; by quartering his troops upon the people in a manner, which the law does not permit; by not restraining

his troops from ill-treating the people, and committing gross irregularities or excesses among them; by abusing the power, which the force under him, enables him to exercise, by declaring and enforcing martial law, to the disturbance of the jurisdiction of the civil tribunals, and to the oppression of the citizens, without any legal authority whatever; by arresting and imprisoning or sending away the citizens, without any justifiable cause. Recruiting officers also, sometimes, are guilty of oppressive acts in the fraudulent enlistment of persons under age, and by taking an unfair advantage of persons, whom they have found in a state of intoxication, or have entrapped into it. In most, if not all of these cases, the law provides a remedy, but it is not always effectual; for, the military commander will sometimes set the process of the courts at defiance, at least for a time, by means of the force under his command. Besides, the remedy is not sufficiently speedy, being designed rather to give damages, or to punish for an injury, than to interpose, and prevent its infliction or continuance. Acts of oppression are also sometimes committed by courtsmartial, either from a mistake of their proper jurisdiction, or some other less excusable motive. In any such case, however, the sentence of the court will be no protection to the officer who executes it, but the court and the officers will all be trespassers, and an action may be maintained against them as such. See Cranch, 330.

But there is reason to apprehend, that persons not liable to be tried by martial law, may sometimes be punished, and even capitally, by the sentence of a court-martial, which has no legal authority. In this case what is to be done? In Dec. 16, 1814, General Jackson proclaimed martial law at New Orleans, and expressed his determination rigidly to enforce the articles of war. The effect of any such illegal measure would naturally be, to make the private citizens, who neither belonged to the army nor were embodied in the drafted militia, liable to be tried by a court-martial, and in some cases punished capitally for offences against a law, designed only for the regular army and the militia in actual service. See also the case of Stacey, INFRA.

3. Another class of cases, where the citizens might be oppressed, without having any sufficient, prompt remedy, redress

or reparation, would result from an oppressive exercise of the power of committing for contempts, by either house of congress, or of the state legislatures; or, by any of the tribunals of justice.

So far as it relates to contempts of court, offered by persons, who are neither officers of court, suitors nor witnesses, and committed out of the presence of the court, there does not seem to be any settled law, in the courts of common law. It would be well, if any such power were disclaimed by the courts, so that the statute of the United States might be considered as declaratory of the law recognized in the state courts, on this subject; and, in case any act were committed, tending to bring the administration of justice into contempt, the guilty person were proceeded against by way of indictment for misdemeanor.

With regard to witnesses, as the law is settled, that the court may commit to prison, any witness who refuses to testify or to answer what the court consider a legal question; and, as different judges may and do entertain very different opin ions as to the legality of the same questions; and, if a witness should be thus compelled to answer a question, which in fact is illegal, it does not appear how he can avoid the ill consequences which may arise,-it might not be amiss to make some legislative provision on the subject, so that the law may be certain, and as little as possible left to the discretion of the presiding judge.

For an abuse of the power of committing for a contempt, by a court of competent jurisdiction, however arbitrary, and oppressive in its effects, it does not appear, that a party injured can have any redress, unless express malice can be proved, and the total want of probable cause or legal grounds for the commitment. The justices of inferior tribunals indeed may be indicted for such oppression, and there seems to be no sufficient reason, why those of the superior courts should not be liable to similar prosecutions, in case of express malice and gross abuse of power. But the judges of courts in general are not to be called to account for what they do, acting judicially within their jurisdictions, however incorrect and mistaken their opinions may be. In the case of Charles Knowles, who was indicted before the King's bench for murder, he pleaded that

he was Earl of Banbury. The attorney general, replied that he had on a former occasion claimed the privilege of peerage before the house of peers, but they had dismissed his petition. The defendant demurred, and the court sustained the demurrer and quashed the indictment. This was considered as an infringement of the privileges of the house of lords. Ch. Jus. Holt, being called before the house of lords, and desired to give an account of the reasons of the proceedings of the court in that case, answered: 'I gave judgment as it appears on the record. It would be submitting to an arraignment for having given judgment, if I gave any reasons here. I gave my reasons in another place at large.—

'I am not to be arraigned in any way for what I do judicially. The judgment may be arraigned in a proper method, by writ of error. I might answer, if I would, but I think it safest for me to keep myself under the protection the law has given me. I look upon this as an arraignment; I insist, if I am arraigned, I ought not to answer.' 12 St. Fr. 1179.

But an abuse of the power of committing for contempts, may be the ground of an impeachment. This subject was much discussed in the impeachment of Judge Peck; and it was thought expedient to declare the law on the subject, by statute. See ante, p. 240. It may not be amiss to remark here, that the courts, both in England and in this country, claim and exercise the power of suspending attorneys and counsellors, from practice in their courts, either for professional misbehavior, or for gross contempts. An alleged abuse of this power, was one of the grounds of impeachment in the case of Judge Peck. How far the courts have a power to suspend counsellors from practice, for a contempt, in those states where the people, by statute law, have a right to appoint whom they please, to prosecute and defend for them, by a special power of attorney, does not seem clear. It seems doubtful, whether the court can deprive the people of their statute privilege in this respect, by any mere act of their own, even though the contempt should be so gross as to deserve fine and imprisIn the trial of John P. Zenger, a printer of New York, in the year 1735, for a libel against the government, his counsel, James Alexander and William Smith, excepted to the

onment.