ON CONSTITUTIONAL LAW. WITH NOTES. BY JAMES BRADLEY THAYER, LL.D. WELD PROFESSOR OF LAW AT HARVARD UNIVERSITY. IN TWO VOLUMES. VOL. I. CAMBRIDGE: CHARLES W. SEVER AND COMPANY. 342.73 NT3E-1 7735 PREFACE. IN preparing this book I have had chiefly in mind the wants of my own classes at the Harvard Law School; of these and students elsewhere who follow similar methods of study. I should have been glad to make it more serviceable to others by introducing headnotes, were this consistent, in my opinion, with its best usefulness for the main purpose in hand. It It is nearly a year now since the first part of the book appeared. I am led to hope that the completed work may help to promote a deeper, more systematic, and exacter study of this most interesting and important subject, too much neglected by the profession. appears to me that what scientific men call the genetic method of study, which allows one to see the topic grow and develop under his eye, a thing always grateful and stimulating to the human faculties, as if they were called home to some native and congenial field, is one peculiarly suited to the subject of Constitutional Law. For, while this is a body of law,- of law in a strict sense, as distinguished from constitutional history, politics, or literature, since it deals with the principles and rules which courts apply in deciding litigated cases; and while, therefore, it is an exact and technical subject; yet it has that quality which Phillipps, the writer on Evidence, alluded to when he said, in speaking of the State Trials, that "The study of the law is ennobled by an alliance with history." The study of Constitutional Law is allied not merely with history, but with statecraft, and with the political problems of our great and complex national life. In this wide and novel field of labor our judges have been pioneers. There have been men among them, like Marshall, Shaw, and Ruffin, who were sensible of the true nature of their work and of the large method of treatment which it required, who perceived that our constitutions had made them, in a limited and secondary way, but yet a real one, coadjutors with the other departments in the business of government; but many have fallen short of the requirements of so great a function. Even under the most favorable circumstances, in dealing with such a subject as this, results must often be tentative and temporary. Views that seem adequate at the time, are announced, applied, and developed; and yet, by and by, almost unperceived, they melt away in the light of later experience, and other doctrines take their place. Nothing else can bring home to a student the existence and the nature of this process, the large scope of the questions presented, and the true limitations of the legal principles that govern them, with anything like the freshness, precision, and force, and I might add also the fascination, which accompany the orderly tracing of these things in the cases. I find a pleasure in thinking that these volumes are appearing in the twenty-fifth anniversary year of the accession of Dean Langdell to his chair as a professor at the Harvard Law School. The method of legal study with which his name is associated, regarded as a mere mode of investigation, was indeed no novelty at all; lawyers have always known well enough the necessity of following it in working out their problems. But Dean Langdell, early in life, had the sagacity to apply it in his own self-instruction in law, and in his greatly valued help of fellowstudents; and when he came back to the school as a professor, he had the courage and the foresight to introduce here the same method of study, and to lay down for himself a mode of instruction which rigorously drove his pupils to adopt it. Of teaching there has never been at this school any prescribed method. There never can be, in any place where the best work is sought for. Every teacher, as I have said elsewhere, "in law, as in other things, has his own methods, determined by his own gifts or lack of gifts, methods as incommunicable as his temperament, his looks, or his manners." But as to modes of study, a very different matter, Dean Langdell's associates have all come to agree with him, where they have ever differed, in thinking, so far at least as our system of law is concerned, that there is no method of preparatory study so good as the one with which his name is so honorably connected, that of studying cases, carefully chosen and arranged so as to present the development of principles. Doubtless, the mode of study must greatly affect |