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ENTERED, according to Act of Congress, in the year 1862, by
JOHN CODMAN HURD,
District of New York,
P R E FACE.
The peaceful administration of private law by judicial tribunals involves the exercise of the supreme power of the state as much as does its assertion by the military force. The question–From whom does the law,“ upon which the relations of private persons depend, derive its authority ?-is one which judicial tribunals are always answering, though the investiture of the supreme power is a fact which, in the nature of the case, cannot be determined by any exercise of the judicial function. A division of opinion upon this question can hardly be said to exist in any political community, unless it has been exhibited in a conflict of judicial decisions. If, in any community, opinions had been greatly divided on this question, an appeal to force could not have been distant. The presence of civil contest proves that in the United States a conflict of judicial opinion upon this question must have previously existed.
In the greater part of the cases cited in this volume it has been necessary for the judiciary to determine the operation of the first and second sections of the fourth Article of the Constitution of the United States. Under any view of the origin and operation of that Constitution, these provisions are distinguishable as having some important bearing on that portion of the private law of the United States which, in its effect, most nearly resembles international law. It is evident
that the judicial exposition of law which may be thus characterized involves, in an eminent degree, the recognition of the supreme or sovereign power in its actual investiture and exercise. A remarkable conflict of judicial opinion on the question of the investiture of sovereign power in the United and several States has been exhibited in the cases above spoken of.
That the courts of the slaveholding States, in concert with their other organs of public action, have long, with increasing unanimity and clearness, regarded the Constitution of the United States in the light of an international compact between the several States, as individuals originally possessing and continuously retaining all the attributes of independent national existence, will not be questioned by any at all conversant with the history of judicial decision. IIas, then, the conflict of judicial opinion, above indicated, been exhibited only as one existing between the respective courts of the two geographical sections now arrayed against each other in the attitude of belligerents ?
From the united action of the people of the Northern States in vindicating the nationality of that People of the United States in whose name the Constitution was declared, it might be inferred that the judiciary of the Northern States had maintained this view with a uniformity and distinctness equal to that of the Southern courts in supporting the contrary doctrine. But the opinions cited in this volume, in cases arising out of the existence of slavery, may show that, while Southern jurists have relied upon the State-Rights theory to maintain the claims of slave-owners and of the slaveholding States in these international or quasi-international cases, the courts and jurists of the Northern States, in maintaining freedom of condition against those claims, have, more especially within a few years past, with almost equal readi
ness, resorted to the same theory of American public municipal law.
As, under this view, the Constitution exhibits less of the character of positive law and more that of a treaty, the legislative and executive functionaries of States, in both sections, have, at the same time, been induced more and more to claim cognizance of matters arising under those parts of the Con stitution which, in effect, are most international. Hence, in the application of these provisions of the fourth Article to the relations of private persons, the legislative, executive, and judicial functions in the several State governments, instead of being combined in their ordinary co-ordinate action, have been more and more involved as competitors,—each in turn seeming to assume an incongruous prominence in asserting the interests of private persons as matters in which the States themselves were the parties claiming rights of and owing obligations towards each other as such.
It is in the agitation of The Slavery Question, almost exclusively, that those doctrines of State sovereignty have, during the last thirty years, been exhibited, upon which practical secession is claimed to be legitimate public action; and as those who were most opposed in their moral and political preferences in respect to slavery were at the same time almost in harmony on this subject, in view of totally different ends, it could be no occasion for surprise if these doctrines had been found to have gained greatly in acceptance, during that agitation, in the Northern as well as in the Southern States.
It may even have been that, among those who, by train. ing, association, and public profession, had been most strongly bound to the recognition of an integral people of the United States and of political nationality co-ordinate with the existence of the States and supporting the Government of the Union, there were some who, studying the course of juristical
opinions, supposed a virtual revolution as having silently occurred by a change in the popular conception of the Union. Some such may have imagined a change, on the part of the people themselves, in the recognition of their own possession of sovereign power, as though the political nation had abandoned possession of those powers which, at the beginning, it had delegated to a national Government, while, simultaneously, those powers had passed to the States, severally, continuing to be exercised by a general Government, as by the delegation of those States; whereby the Government of the Union, ceasing to be a national Government, became a federal Government—the agent of a Confederacy, in the sense of a league of many, each intrinsically a distinct possessor of the sum of powers belonging to every sovereign nationality.
A change in the location of sovereign power, the time and manner of which should not be discernible except by the philosophic publicist, may be hardly possible even in theory; yet the idea of some such possible constitutional change may have so impressed many acute minds that, when the practical attitude of secession by a State came following on the theoretical assertion of State sovereignty, a necessary pause for recollection may have exhibited the aspect of acquiescence, on the part of the people of the Northern States, in the doctrine and its consequences.
It may be safely asserted, as matter of history, that from the very genesis of the Constitution the doctrine of a compact between the States has generally exhibited itself as in affinity ith the doctrines of “the social compact,” of individual conat as underlying all the institutions of civil society, and of
vernment as that which exists by the choice of the vereis verned. When professed jurists would speak of revolution, or power to resist the Government, as a legal rightwhere high judicial authority might be cited for the assertion