A course of lectures on the constitutional jurisprudence of the United States : delivered annually in Columbia College, New York

Front matter

-'XI

Cornell University Law Library

The Moak Collection

Preface

TO THE FIRST EDITION.

In submitting the following work to the public, there seems a necessity, as well as a propriety, in offering a preliminary explanation of its character and design ; especially as he whose name it bears claims neither the merit of originality for his production, nor the title of author for himself. The present publication consists substantially of the Course of Lectures on the Constitutional Jurisprudence of the United States, delivered annually to the Senior Class in Columbia College, while he had the honor of presiding in that venerable and noble institution. The " Outlines " of those Lectures were published some years ago, at the request of " The American Lyceum," an association consisting principally of persons engaged in the practical duties of instruction, who conceived that the study of our national Constitution might be introduced with advantage into the general system of public education. That little treatise, accordingly, appeared in a form adapted to the views of those who had suggested its preparation ; which were, fitness as a text-book for lecturers, a classbook for academies and common schools, and a manual for popular use. Except, therefore, "as to method and arrangement," as was observed in issuing it from the press, " there could be little scope for originality in a work of which the essential value must depend on the fidelity with which the provisions of the Constitution,

XU PREFACE.

the Legislative enactments for giving it effect, and the Judicial construction which both have received, are stated and explained." The same remark may be repeated in reference to the present publication, and a similar disclaimer made as to its pretensions to originality. On the present occasion the author has again " implicitly followed those guides, whose decisions are obligatory and conclusive, upon such points as have been definitively settled " by judgments of the Supreme Courts of the United States ; while " upon questions which have arisen in public discussion, but have neither been presented for Judicial determination nor received an approved practical construction from the other branches of the Government, he has had recourse to those elementary writers whose opinions are acknowledged to possess the greatest weight, either from their inkinsic value, or their conformity with the general doctrines of the authoritative expounders of the Constitution; and in the absence of both authority and disquisition, he has ventured to rely on his own reasonings, and has advanced his own opinions so far only as he conceives them to be confirmed by undeniable principles, or established by analogous cases."

The remaining sources drawn from on that occasion, have been resorted to again ; and he now repeats the acknowledgment of his obligations, not only to the illustrious triumvirate whose combined labors were embodied in " The Federalist," to Chief Justice Marshall, and to Chancellor Kent, but also to Mr. Rawle's " View of the Constitution," and to the elaborate and voluminous " Commentaries " of the learned, ingenious, and indefatigable Mr. Justice Story.^ The same observation may be repeated as to the difTerent views taken in this work, as well as in its precursor, from those exhibited in the elementary treatises of the two former ; with regard,, in the one case, to the supremacy, and, in the other, to the perpetual obligation of the Federal

1 The author has also to acknowledge his obligatiou to Joseph Blunt, Esq., for this historical sketch of the Constitution in his Annual Register.

PREFACE. XUl

Constitution. On both these important points the author still adheres to principles more favorable, as he believes, to the powers and stability of the National Government. He did not, however, at that time, nor does he now, venture to differ from such eminent jurists, without being supported by the opinions of some of the most distinguished statesmen of the day, of different parties — by the author of the celebrated Proclamation of President Jackson against the anti-federal proceedings in South Carolina, and the speeches of Mr. Webster in vindication of its doctrines ; nor without being sanctioned by the judicial authority of the late Chief Justice — expressly upon one of the points in question, and virtually upon the other, by his affirmance of principles which it involves, and l3y which its decision must eventually be governed.

In again referring to the venerated name of Chief Justice Marshall, the author can but reiterate his former wish to be " understood, on this and all other occasions, as adopting his individual opinions, not less from deference to their official authority, than from the conviction wrought by the luminous and profound reasonings by which they are elucidated and supported. As this eminent and revered judge has himself declared it auspicious to the Constitution and to the country that the new government found such able advocates and interpreters as the authors of ' The Federalist,' ^ so it may be regarded as one of the most signal advantages attending its career, that its principles should have been developed and reduced to practice under a judicial administration so admirably qualified, in every respect, to expound them truly, and firmly to sustain them." Since this feeble tribute to his wisdom and virtues, this great judicial magistrate has been summoned to the bar of a higher than, any earthly tribunal, there to receive, we may be certain, that justice, tempered with mercy,

1 To the American reader it cannot be necessary to name them. But for the benefit of others, their names are added. Alexander Hamilton, James Madison, and John Jay.

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XIV PEBFAOB.

which was the exemplar of his own administration ; and to obtain, as we may hope, from the favor of his God, the reward due to his public services and private worth. There needs no monument to perpetuate the memory of his virtues but the record of his services. These, too, may serve as the fairest monument of the great political party of which he was the ornament and the boast. But if to designate the spot of earth consecrated to his remains, a tablet be required, let it be as simple and massive as was his mind, and let it be inscribed, " Here libs the Last op the Federalists."

Since the period referred to, the statesman to whom the work was dedicated — the last surviving member of that august assembly that formed the Constitution, and sole remaining luminary of that bright constellation of genius and talent, which, in vindicating that instrument from the objections of its first assailants, succeeded in recommending it to the adoption of the people ; he who, in discharging the highest duties of its administration, proved the stability and excellence of the Constitution in war as well as in peace, and determined the experiment in favor of Republican institutions and the right of self-government ; and, in his retirement, raised a warning voice against heresies in the construction of the national compact, which, for a moment, threatened to overthrow it — has also disappeared from among us, full of years and honors. The enumeration of such services recalls the name of Madison ; and great as were those services, honored as was that name, the brightest glory that attends them both springs from the association of his genius, his learning, and his labors, with those of his once kindred spirits, Hamilton and Jay. " Vita enim mortuorum, vi imita fortior, in memoria vivorum est posita"

MorristQwn, N. J., May 1, 1843.

ANALYSIS,

Introduction

I. Definition and origin of political Constitutions, as derived,

1. From tradition, or the act of the Government itself

2. From written fundamental compacts.

Either of which may be formed,

1. On a simple principle of

1. Monarchy.

2. Aristocracy.

3. Democracy.

2. Or combine these three forms in due proportions, by means of the principle of representation, applied,

1. To the powers of Government ; which are,

1. The Legislative.

2. The Executive.

3. The Judicial.

2. To the persons represented in the Government. II. Foundations of representative Governments were laid,

1. Partially, in the British Colonies, in which were established,

1. Royal Governments.

2. Proprietary Governments.

2. Universally, in the American States, upon the establishment of independent Governments, which secured the enjoyment of,

1. The inalienable natural rights of individuals.

2. The political and civil privileges of the citizens, designed for maintaining, or substituted as equivalents for, natural rights.

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in. The same fundamental principles were recognized and adopted upon the establishment of a Federal Government by the people of the several States.

1. In regard to the principle of representation, as applied,

1. To the three great departments of Government.

2. To the individual citizens of the United States, and to the several States of the Union.

2. In regard to the distribution of the powers of Government, as the Constitution of the United States contains,

1. A general delegation of the Legislative, Executive, and Judicial powers to distinct departments ; and,

2. Defines the powers and duties of each department respectively.

OUTLINES of that branch of Jurisprudence which treats of the principles, powers, and construction of the Constittition, are therefore to be traced,

First. With regard to the particular structure and organization

of the Government.

Secokd. In relation to the powers vested in it, and the restraints imposed on the States.

I. Of the structure and organization of the Government, and the distribution of its powers among its several departments.

1. Of the Legislative power, or Congress of the United

States.

1. Of the constituent parts of the Legislature, and the modes of their appointment.

1. Of the House of Representatives.

2. Of the Senate.

2. Their joint and several powers and privileges.

3. Their method of enacting laws, with the times and modes of their assembling and adjourning.

2. Of the Executive power, as vested in the President,

1. His qualifications; the mode and duration of his appointment, and the provision for his support.

2. His powers and duties.

3. Of the Judicial power.

1. The mode in which it is constituted.

2. The objects and extent of its jurisdiction.

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3. The manner in wliich its jurisdiction is distributed.

1. Of the Court for the trial of Impeachments.

2. Of the Supreme Court.

3. Of the Circuit Courts.

4. Of the District Courts.

5. Of the Territorial Courts.

6. Of powers vested in State Courts and Magistrates by laws of the United States.

II. Of the nature, extent, and limitation of tbe powers vested in the National Government, and the restraints imposed on the States, reduced to different classes, as they relate,

1. To security from foreign danger ; which class compre-

hends the powers,

1 . Of declaring war, and granting letters of marque and reprisal.

2. Of making rules concerning captures by land and water.

3. Of providing armies and fleets, and regulating and calling forth the militia.

4. Of levying taxes and borrowing money.

2. To intercourse with foreign nations ; comprising the

powers,

1. To make treaties, and to send and receive ambassadors and other public ministers and consuls.

2. To regulate foreign commerce, including the power to prohibit the importation of slaves.

3. To define and punish piracies and felonies committed on the high seas, and offences against the laws of nations.

3. To the maintenance of harmony and proper intercourse

among the States, including the powers,

1. To regulate commerce among the several States, and with the Indian tribes.

2. To establish post-offices and post-roads.

3. To coin money, regulate its value, and to fix the standard of weights and measures.

4. To provide for the punishment of counterfeiting the securities and public coin of the United States.

6. To establish a uniform rule of naturalization.

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XVIU ANALYSIS.

6. To establish uniform laws on the subject of bankruptcies.

7. To prescribe, by penal laws, the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States.

4. To certain miscellaneous objects of general utility ; com-

prehending the powers,

1. To promote the. progress of science and the useful arts.

2. To exercise exclusive legislation over the district within which the seat of Government should be permanently established ; and over all places purchased by consent of the State Legislatures for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.

3. To declare the punishment of treason against the United States.

4. To admit new States into the Union.

5. To dispose of, and make all needful rales and regulations respecting the territory and other property of the United States.

6. To' guarantee to every State in the Union a republican form of government, and to protect each of them from invasion and domestic violence.

7. To propose amendments to the Constitution, and to call conventions for amending it, upon the application of two thirds of the States.

5. To the Constitutional restrictions on the powers of the

several States ; which are, 1. Absolute restrictions, prohibiting the States from,

1. Entering into any treaty of alliance or confederation.

2. Granting letters of marque and reprisal.

5. Coining money, emitting bills of credit, or making any thing but gold or silver coin a lawful tender in payment of debts.

4. Passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

ANALYSIS. XIX

5. Granting any tide of nobility. 2. Qualified limitations ; prohibiting the States, without the consent of Congress, from,

1. Laying imposts on imports or exports, or duties on tonnage.

2. Keeping troops or ships of war in time of peace.

3. Entering into any agreement or compact with another State, or with a foreign power.

4. Engaging in war, unless actually invaded, or in such imminent danger as will not admit delay.

6. To the provisions for giving efficacy to the powers vested in the Government of the United States ; consisting of,

1. The power of making all laws necessary and proper for carrying into execution the other enumerated powers.

2. The declaration that the Constitution and laws of the United States, and all treaties under their authority, shall be the Supreme Law of the land.

3. The powers specially vested in the Executive and Judicial departments, and particularly the provision extending the jurisdiction of the latter to all cases arising under the Constitution.

4. The requisition upon the Senators and Representatives in Congress ; the members of the State Legislatures ; and all Executive and Judicial officers of the United States and of the several States, to be bound by oath or affirmation to support the Constitution of the United States.

5. The provision that the ratifications of the Conventions of nine States should be sufficient for the establishment of the Constitution between the States ratifying the same.