William Alexander Duer.

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

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Received. _
Accessions No. J&/&2A- _ _ Shelf No. ____









' Est omni






Entered, according to Act of Congress, in the year 1843, by

In the Clerk's Office of the Southern District f f New-Yotn.



RELYING for forgiveness upon " an uninterrupted pos-
session" of your friendship " of more than twenty years,
under colour" at least, " of title" I venture, without
your knowledge or consent, to inscribe to you a
Treatise on the Constitutional Jurisprudence of the
United States. In this act I do but make restitution
of your own property, or, perhaps, to express myself
more properly, tender payment for the use of it ; for
you will soon discover that, next to the contempo
raneous expositions of the authors of "THE FEDER-
ALIST," I have drawn my materials more largely and
freely from your " COMMENTARIES" and the lucid and
deep investigations of the late CHIEF-JUSTICE MAR-
SHALL than from any other source. And although
the responses of that great oracle of the Constitution
have ceased, yet may we hope that the inspiration
will not be withdrawn while your corresponding ad-
judications and opinions shall be quoted as authority
in the court wherein he so long and auspiciously pre-


That you may continue, my dear sir, 10 enjoy to
the last the same vigour and activity of mind and
body which distinguishes you at an age approaching
the utmost limit assigned to man's earthly pilgrimage,
is the fervent prayer of your faithful, constant, and
hereditary* friend,


Morristown, N. /., May 1, 1843.

* See Appendix &


IN submitting the following work to the public,
there seems a necessity, as well as a propriety, in of-
fering 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 pub-
lication consists substantially of the course of Lec-
tures on the Constitutional Jurisprudence of the Uni
ted States, delivered annually to the Senior Class in
Columbia College, while he had the honour of pre-
siding in that venerable and noble institution. The
" OUTLINES" of those Lectures were published some
years ago, at the request of " THE AMERICAN LYCE-
UM," an association consisting principally of persons
engaged in the practical duties of instruction, who
conceived that the study of our national Constitu-
tion 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 prepara-
tion ; which were, fitness as a text-book for lectu-
rers, a class-book 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 essen-
tial value must depend on the fidelity with which the
provisions of the Constitution, the legislative enact-
ments for giving it effect, and the judicial construc-
tion which both have received, are stated and ex-
plained." The same remark may be repeated in ref-
erence to the present publication, and a similar dis-
claimer made as to its pretensions to originality. On
the present occasion the author has again "implicit-
ly followed those guides, whose decisions are obli-
gatory 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 nei-
ther been presented for judicial determination, nor re-
ceived an approved practical construction from the
other branches of the government, he has had re-
course to those elementary writers whose opinions
are acknowledged to possess the greatest weight, ei-
ther from their intrinsic value, or their conformity
with the general doctrines of the authoritative ex-
pounders of the Constitution ; and in the absence ol
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 occa-
sion, have been resorted to again ; and he now re<


peats tlie acknowledgment of his obligations, not only
to the illustrious triumvirate whose combined labours
were bestowed on the " FEDERALIST," to Chief-jus-
tice 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 Sto-
ry. The same observation may be repeated as to
the different 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 per-
petual obligation of the Federal Constitution. On
both these important points the author still adheres
to principles more favourable, 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 par-
ties by the author of the celebrated Proclamation of
President Jackson against the anti-federal proceed-
ings 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 affirm-
ance of principles which it involves, and by which
Us 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 ca-
reer, that its principles should have been developed
and reduced to practice under a judicial administra-
tion so admirably qualified, in every respect, to ex-
pound 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, which was the exemplar of his own ad-
ministration ; and to obtain, as we may hope, from
the favour of his God, the reward due to his public
services and private worth. There needs no monu-
ment 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 re-
mains a tablet be required, let it be as simple and


massive as was his mind > and let it be inscribed,

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 thai
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 sta
bility and excellence of the Constitution in war as
well as in peace, and determined the experiment in
favour of Republican institutions and the right of self-
government ; and, in his retirement, raised a warning
voice against heresies in the construction of the na-
tional compact, which, for a moment, threatened to
overthrow it has also disappeared from among us,
full of years and honours. The enumeration of such
services recalls the name of Madison ; and great as
were those services, honoured as was that name, the
brightest glory that attends them both springs from
the association of his genius, his learning, and his
labours, with those of his once kindred spirits, HAM-
ILTON and JAY. "Vita enim mortuorum, vi unitafoi-
tior, in memoria vivorum est posita"

Morristown, N. J. 1st May, 1843.



l -Demotion aad 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, ap-

1. To the powers of Government; which are,

1. The Legislative.

2. The Executive.

3. The Judicial.

2. To the persons represented in the Govern-

I) Foundations of representative Governments were laid,

1. Partially, in the British Colonies, in which were es-

1. Royal Governments.

2. Proprietary Governments.

2. Universally, in the American States, upon the estab-
lishment 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 equiva-
lents for, natural rights.

III. The same fundamental principles were recognised and
adopted upon the establishment of a Federal Governmenl
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 Govern-
ment, as the Constitution of the United States contains,


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

2. Defines the powers and duties of each department

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

FIRST. With regard to the particular structure and or-
ganization of the Government.

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

I. Of the structure and organization of the Govern-

ment, and the distribution of its powers among
its several departments.

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


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 sup-

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.

3. The manner in which its jurisdiction is distrib-

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 Ma-
gistrates by laws of the United States.

II. Of the nature, extent, and limitation of the powers

vested in the National Government, and the re-
straints imposed on the States, reduced to different
classes, as they relate,

1. To security from foreign danger; which class com-
prehends 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

1. To make treaties, and to send and receive am-
bassadors and other public ministers and con-

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

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

3 Tc the maintenance of harmony and proper inter-
course among the States, including the pow-

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

2. To establish postoflices and postroads.

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 U. States.

t>. To establish a uniform rule of naturalization.

6. To establish uniform laws on the subject of

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 genera] utility ;
comprehending the powers,

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

2. To exercise exclusive legislation over the dis-
trict 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 rules and
regulations respecting, the -territory and other
property of the United States.

6. To guaranty to every State in the Union a re-
publican form of government, and to protect
each of them from invasion and domestic vio-

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

1. Entering into any treaty of alliance or

2. Granting letters of marque and reprisal.

3. Coining money, emitting bills of credit,
or making anything 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 con-

5. Granting any title of nobility.

2. Qualified, limitations; prohibiting the States,
without the consent of Congress, from,

1. Laying imposts on imports or exports, 01
duties on tonnage.

2. Keeping troops or ships of war in time ol

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 ad-
mit delay.

1J. To the provisions for giving efficacy to the powers
vested in the Government of the United States;
consisting of,

1. The power of making aL laws necessary and
proper for carrying into execution the othei
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 power? specially vested in the Executive


and Judicial departments, and particulary the
provision extending the jurisdiction of the latter
*o all cases arising under the Constitution,

4. The requisition upon the Senators and Repre-
sentatives 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 affirma-
tion to support the Constitution of the United

5. The provision that the ratifications of the Con-
ventions of nine States should be sufficient for
the establishment of the Constitution between
the States ratifying the san e.






Introductory .19

Fundamental Principles of the Constitution ... 41

On the Legislative Power 59

On the Executive Power 81


On the Judicial Power 110


On the Distribution of the Judicial Power among the several
Courts . 125


On the Powers vested in the Federal Go\ernment relative to
Security from Foreign Danger 150


On the Powers vested in the Federal Government for regula-
ting Intercourse with Foreign Nations . . . .180


On the Powers vested in the Federal Government for mainte-
nance of Harmony and proper Intercourse among the States 210


On the Powers vested in the Federal Government relative to
certain Miscellaneous Objects of general Utility . . 241


On the Constitutional Restrictions on the Powers of the sever-
al States 271


On the Provisions for giving Efficacy to the Powers vested in
the Federal Government 305

Appendix A. Declaration of Independence .... 33?
" B. Articles of Confederation . . . .342
" C. Constitution of the United States . . .351
" D. Correspondence with James Madison . . 367
" E. Proclamation of the President of the United

States of the 10th of December, 1833 . . .373
41 F. Opinion as to the Constitutional Validity of the
Laws of New-York, granting exclusive Privile-
ges of Steam Navigation 394

* G. Ordinance for the Government of the Territo-
ry of the United States Northwest of the River
Ohio 400




A KNOWLEDGE of the history, organization, and
principles of the government under which he lives,
must be beneficial to every man; wheresoever he may
dwell, and under whatsoever form of government his
lot may have been cast, and may be regarded as pe-
culiarly advantageous in free states, where every
citizen must possess an influence more or less pow-
erful in the administration of public affairs. It is
obviously indispensable where the political rights of
all are equal, and where the obscurest individual has
a voice in the election of his rulers, and is himself
eligible to the highest stations in the government.

It was, therefore, with reason, considered a de-
fect in the prevailing systems of education, that the
study of our constitutional jurisprudence should have
been either altogether omitted, or deferred to that
period of life when our youth are called on to par-
ticipate in the active duties of society, or that it
should have been regarded only as necessary to law-
yers and politicians. For, however essential as is
a profound knowledge of the Constitution to states-
men and jurists, some acquaintance with its prin-
ciples and details must, in the opinion of all who
entertain liberal views of public education, and cor-
rectly estimate their privileges as citizens, be re-
quisite for those whose ambition rises no higher
than the mere exercise of those privileges at elec-


tions of their representatives in the government,
without a wish themselves for political influence
or public station. It is gratifying to find, however,
that of late years a greater interest has been man-
ifested among the more intelligent portion of the
community with regard to the origin, structure, and
principles of our political institutions. This certain
ly evinces that one class, at least, of our citizens ap-
preciates the value of our political system, and thai
so far, therefore, it is better understood. But reason
and common sense suggest that such information
cannot be acquired too soon, and experience teaches
us that it cannot be too widely diffused. The public
interest and welfare, if not the stability of our polit-
ical system, not less than the safety and happiness of
individuals, and the security of their persons and
property, require that, in common with other impor-
tant branches of public education, the knowledge in
question should be extended to every portion, and, if
possible, to every member of the body politic.

Until lately, it was a reproach to our college that
it sent forth its graduates more familiar with the con-
stitution of the Roman Republic, and the principles
of the Grecian confederacies, than with the funda-
mental laws of their own country. To remedy this
evil, it was proposed to ingraft this new branch of
study upon the general course pursued in this insti-
tution ; but in preparing my lectures I shall not lose
sight of their possible usefulness to foreigners ; for
it will hardly be denied that more accurate informa-
tion in regard to the organization and powers of
the Federal Government is desirable in European
statesmen, ministers, and lawyers, while their want
of it is not only mortifying to our national pride, but
prejudicial to our national interests. Much vexa-
tious difficulty and fruitless negotiation would douo;*


less have been prevented, had the public men of
Great Britain and France been better informed in
regard to them.

By way of introducing the subject to your notice,
I shall present you with a rapid sketch of the origin
and progress of the American Confederation, until it
reached a result so auspicious as the establishment
of the present Federal Constitution ; and this histor-
ical review will, I trust, prove the more useful, as it
will serve not only to exhibit the genius and practi-
cal excellence of the government, but also to facili-
tate the study of its organization and powers.

While the American people were subjects of the
British crown, and the elder of these states were as
yet British colonies, it was perceived that their union
was essential to their safety and prosperity. Both
general and partial associations were accordingly
formed among them for temporary purposes, and on
sudden emergencies, long before their permanent
union to resist the claims and aggressions of the
mother-country, a measure which produced the Rev-
olution, and ended in the acknowledgment of the col-
onies as free and independent states. The common
origin and interests of the New-England provinces,
the similarity of their manners, laws, religious tenets,
and civil institutions, naturally led to a more intimate
connexion among themselves, and induced, at a very
early period, the habit of confederating together for
their common defence. These colonies, as far back
as the year 1643, apprehending danger from the war-
like and formidable tribes of Indians by which they
were surrounded, entered into an offensive and de-
fensive league, which they declared should be firm
and perpetual, as well as that they should thenceforth
be distinguished as " The United Colonies of New-
England " In this transaction, the provincial gov-


ernments, \vho were parties to it, acted, in fact, as
independent sovereignties ; and circumstances ena-
bled and encouraged them to assume an exemption
from the control of any superior power.

By the charters from the crown, under which they
had been founded, and which prescribed their re-
spective forms of government, and settled its funda-
mental principles, the people of those colonies were
authorized, by the suffrages of the freemen of the
several towns, to elect, not only their immediate rep-
resentatives in the popular branch of their legisla-
tures, but also the chief executive magistrate, or
governor, and his assistants, or councillors, who

Online LibraryWilliam Alexander DuerA course of lectures on the constitutional jurisprudence of the United States : delivered annually in Columbia College, New York → online text (page 1 of 33)