furnish the occasion for the sarcasm of Swift, which is in substance, that if an action at law is brought for a cow, the decision of the case does not depend upon the inquiry, whether the cow belongs to the plaintiff or to the defendant, but whether the cow is a black cow or a red cow, or has long or short horns.

It is to be much wished that the law, with regard to the examination of witnesses, were altered in the respects following, viz:

1. That witnesses should never be called for the purpose of impeaching the testimony of a witness, by giving testimony against his character for veracity. This is a most unjust practice, and though sanctioned by long usage, is contrary to legal analogy. For, in this way, the reputation of the witness is attacked in a suit between third persons, in which he has been compelled to testify, and, for aught that appears, may have told the exact truth. This is done without any previous notice to him; and, if he had received notice, he is entitled to not process to compel the attendance of his witnesses, not being a party to the suit. If his enemies are summoned as witnesses against him, they have an opportunity of aspersing or disparaging his character in this respect, with perfect impunity. The defence of his character, is left entirely with one of the parties in the suit, whose principal if not sole object, is merely to gain his own cause, and who may or may not feel interest enough to endeavor to establish it. His feelings and character may therefore be grossly injured without the possibility of redress.

2. That all questions, the answers to which tend to disparage a witness, should be overruled by the court; for, if the subject of the question is known, it may be proved by others; and if unknown, the witness is tempted to perjure himself, and thus preserve his character. But, if he acknowledges what is insinuated against him, then he establishes his veracity, instead of destroying it; because a person who will not be guilty of falsehood for his own sake, can hardly be supposed willing to practise it for the sake of another.

3. That personal questions, addressed to the witness relative to his private affairs, should not be put until the examiner has made it appear probable, that the ends of justice cannot be obtained without an answer to them.

4. That witnesses should never be examined under oath, but each witness should be affirmed under the pains and pen ́alties of perjury. There could then be no objection to the competency of atheists; nor of children, however young; but the credit of the witness, in every case, would be left where it ought to be left, with the jury, and crimes, which may now go unpunished on account of the inadmissibility of certain testimony, would then be subject to legal animadversion.

CHAPTER VII.

Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.

UNDER a frame of government voluntarily adopted by the people ;-under laws for the protection of the rights of the citizens, enacted by legislators of their own choice, and executed by public officers, whose offices, either directly or indirectly, depend also upon the choice of the people, and who, at any rate are responsible to them for any neglect of duty or other official malversation, it would be incongruous to suppose, that any of the civil or political rights of the citizens could be infringed by the public officers themselves, either with impunity to the transgressor, or without ample means of obtaining adequate redress to the injured party. And, it is true, that the people of the United States, in the frame of the General Government, as also in those of the respective state governments, have endeavored to make ample provision against such evils, by defining, with as much precision as the nature of the case would admit, the duties of all the public offices, which they have thought fit to create, and by restricting the powers of the officers, to such only as are absolutely necessary to the faithful and effectual discharge of those duties. This remark applies equally to the highest, as well as to the humblest offices and officers in the government. Within the limits of their respective powers, all officers, from the President of the United States, downwards, ought to be submitted to and obeyed; but, if they should overstep the limits of their official authority;—if they should usurp powers not delegated to them by the constitution, or by some law made in pursuance of it, they would cease to be under the protection of their offices, and would be recognized merely as private citizens; and, for any act of injustice or oppression which they might commit, would be liable to a civil or criminal prosecution, in the same manner as a private cit

izen; with this distinction, that if the wrongdoer has availed himself of his official character, or, of the opportunities which his office affords him, to commit acts of injustice or oppression, it will be considered as a great aggravation of his guilt, in a criminal prosecution, and will be a ground for the jury to find exemplary damages, in a civil action. Because, private injury is here connected with an abuse of the public confidence.

So far as the subject of the present chapter is concerned, such is believed to be the true intention, and theory of the Federal Government, as well as of that of each of the states. And where the wrongdoer is a public officer, to whose office the exercise of political power is not attached, there can seldom be any difficulty in obtaining redress for any wrong done by him. A resort to the tribunals of justice, either of the states, or of the United States, according to circumstances, will usually be sufficient for this purpose.

Cases however are occurring frequently, in some of which the means of redress are not sufficiently easy, or do not seem adequate to the purposes of justice, and, in others, which however it is a consolation to think are much more rare, it seems difficult to say with certainty in what manner and to what extent, a person injured, may find a remedy for the wrong which he suffers.

1. Suppose one of the states should enact an unconstitutional law, forbidding under very heavy penalties an act which, before the enactment of the law, was entirely innocent; suppose that a citizen of another state should happen to be the victim of such law, being apprehended within the territory of the former state, and violating such unconstitutional law, and tried, sentenced, and imprisoned under it; this, without question, would be a great hardship upon him: but what remedy can he have? It may be answered here, that, according to the true theory of the federal system, there should be no difficulty at all in this case; because, in the first place, the judges of the state court before whom such prisoner would be brought for trial, would have full authority as well as a perfect right, to decide the law to be unconstitutional, if they thought so, and to discharge the prisoner. But, if the same considerations which induced the legislature of such state to enact the law, or any others, should

induce the judges of the court to decide, that the law was constitutional, the prisoner would have a right to bring his case before the Supreme Court of the United States, by a writ of error, and the judges of that court, if they considered the law unconstitutional, would reverse the decision of the State Court and would issue a mandamus accordingly. If the State Court disregarded the decision or mandate of the Supreme Court of the United States, and, on a second writ of error, that court should attempt to execute its own decree and the execution of it should be resisted by the State Government, and the marshal of the district should be unable to raise a sufficient force to release the prisoner,—it would then become the duty of the president to interpose; because the constitution of the United States makes it his duty to take care that the laws are faithfully executed.' If he should omit to do this, he would violate his oath. If the president should avow the doctrine, that a president is under no obligation to execute any law, which he does not think constitutional, and should declare that he did not think such decision to be so, and therefore should not assist in executing it, it would seem to be a great usurpation of power; because, under this pretence he might refuse to execute any law, which did not please him, even though it were sanctioned by the votes of two thirds of the senate and house of representatives. In any such case, he might well be impeached for neglect of duty, from whatever cause it might arise; because, it would become useless for congress to enact laws, if the president would not do his duty in the execution of them, where it required a greater power for that purpose than the marshal could raise. This is the very case particularly contemplated in the constitution, where it requires the president to take care that the laws are faithfully executed. If however a majority of the house of representatives would not agree to an impeachment, the subject must be left to the decision of the people at the next election for president; and, if he should then be re-elected, his doctrine would be sanctioned, and the effect of it would be, to alter the frame of government from a republic to an elective monarchy, the term of office being four years, renewable at the will of the people. The president would then virtually have an unqualified veto