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A 42721

Copyright, 1888,




Ir an apology is needed for the publication of a book on a subject which has been treated by many able pens, it may perhaps be found in the growth of the Constitution of the United States which, though confined by its character as a written instrument to certain bounds, was yet intended "to live and take effect in all successions of ages." The delegates who sat in the federal convention wisely, therefore, limited themselves to enumerating the powers conferred on the government and the objects for which they were to be exercised, and left the task of devising the means to those who were to administer the system which they had framed. The government of the United States, consequently, has a capacity for adaptation "to the various crises of human affairs," which is rarely found in written constitutions. Although it is the same government which went into operation a century ago, it has undergone the development incident to maturity, and can act with an assured strength which was necessarily wanting at the commencement.

The transition might have been indefinitely postponed had not the Civil War awakened the American people to a sense that their national existence was endangered by the laxity with which the Constitution was construed and administered, and that it could not be preserved without a vigorous exercise of the authority vested in the President and Congress. Above all, they were made to feel that the United States are a government of and for the people, acting directly on them, and having a paramount claim to their allegiance which may be enforced by arms as well as laws. The existence of such a right and duty is plainly written in the Constitution. Though long questioned in some quarters, it was vindicated by Hamilton and Webster with unanswerable logic, and finally put at issue in the Civil War, and decided in favor of the United States. The arduous conflict with secession called forth powers that had previously lain dormant, and the peril to which the country was exposed naturally inclined the courts to strengthen the government, and uphold every law passed in good faith for the suppression of the insurrection. Some of the acts done under the stress of such a struggle lay near the boundary line of the Constitution, if not beyond its verge, and gave rise to complex questions which were brought into court. The steps taken during the height of a civil war, and for the reorganization of the hostile territory when overt resistance ceased, were for the first time in the history of mankind submitted to the judiciary, and tested by forensic and constitutional principles. It is not surprising that the intricate problems thus presented

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were viewed differently even by candid minds, and that while some of the best citizens thought that force had been carried to an extent which endangered freedom, others were of opinion that the vindication of national authority and the maintenance of the Union were a prime necessity, to which inferior considerations must yield. The situation was the more difficult because some of the cases were new to public law, or had never been authoritatively examined and defined; many were of the first impression under the Constitution of the United States, and all had to be considered and decided while the fires of the recent conflict were still smouldering. Hence arose a conflict of opinion on the bench not less than at the bar, and controversies of great moment were not unfrequently adjudged by a divided court, and sometimes by a bare majority of five voices against four. A vast and untravelled field was thus thrown open for critical examination and research, and years may pass before it is thoroughly explored. Under such circumstances the duty of a student of public law is both difficult and obvious. Jurisprudence is a science which must suffer unless pursued with a single eye to truth; and while the decisions of a court of last resort are conclusive between the parties, they are also steps in the process by which an accurate conception of public and private law may ultimately be attained.

A writer who passes them in review should therefore give the opinions of the judges, whether conflicting or concurrent, as fully as circumstances will permit, and yet not hesitate to state his own, and the grounds on

which they have been formed. Should he err in such an endeavor he may still hope that his mistakes will be corrected by abler thinkers, and may indirectly contribute to form the public opinion which in the long run guides legislators and courts.

I may add that this work is an embodiment of a course of lectures delivered in the Law School of the University of Pennsylvania, with such additions and modifications as are made requisite by the current of decision and events.

The author has been assisted in reading the proofsheets and otherwise by FREDERICK M. LEONARD, Esq., and in the preparation of the index, by ALBERT B. WEIMER, Esq.


October 22, 1888.


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