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TO

JAMES KENT, LL.D.

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MY DEAR SIR, Relying for forgiveness upon an uninterrupted possession" 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 contemporaneous expositions of the authors of “The FederALIST,” I have drawn my materials more largely and freely from your

“ COMMENTARIES” and the lucid and deep investigations of the late Chief-JUSTICE MarSHALL 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responses of that great oracle of the Constitution have ceased, yet may we hope that the inspiration will not be withdrawn while your corresponding adjudications and opinions shall be quoted as authority in the court wherein he so long and auspiciously presided.

That you may continue, my dear sir, to 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,

W. A. Duer. Morristown, N. J., May 1, 1843.

* See Appendix D.

PREFACE.

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 honour 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 riews of those who had suggested its preparation; which were, fitness as a text-book for lecturers, 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 essential value must depend on the fidelity with which the provisions of the Constitution, the legislative enactments for giving it effect, and the judicial construction whịch 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 intrinsic 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 re

peats the acknowledgment of his obligations, not only to ihe illustrious triumvirate whose combined labours were bestowed on 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 6 Commentaries" of the learned, ingenious, and indefatigable Mr. Justice Story. 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 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 by which its decision must eventually be governed.

In again referring to the venerated name of Chief

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