posed it when he sat in Congress) remarks that it went to the extreme verge. More startling, and more far-reaching in their consequences, were the assumptions of Federal authority made during the War of Secession by the executive and confirmed, some expressly, some tacitly, by Congress and the people.[1] It was only a few of these that came before the courts, and the courts, in some instances, disapproved them. But the executive continued to exert this extraordinary authority. Appeals made to the letter of the Constitution by the minority were discredited by the fact that they were made by persons sympathizing with the Secessionists who were seeking to destroy it. So many extreme things were done under the pressure of necessity that something less than these extreme things came to be accepted as a reasonable and moderate compromise.[2]
The best way to give an adequate notion of the extent to which the outlines of the Constitution have been filled up by interpretation and construction, would be to take some of its more important sections and enumerate the decisions upon them and the doctrines established by those decisions. This process would, however, be irksome to any but a legal reader, and the legal reader may do it more agreeably for himself by consulting one of the annotated editions of the Constitution. He will there find that upon some provisions such as Art. i. § 8 (powers of Congress), Art. i. § 10 (powers denied to the States), Art. iii. § 2 (extent of judicial power), there has sprung up a perfect forest of judicial constructions, working
- ↑ See Judge Cooley's History of Michigan, p. 353. The same eminent authority observes to me: "The President suspended the writ of habeas corpus. The courts held this action unconstitutional (it was subsequently confirmed by Congress), but he did not at once deem it safe to obey their judgment. Military commissioners, with the approval of the War Department and the President, condemned men to punishment for treason, but the courts released them, holding that the guaranties of liberty in the Constitution were as obligatory in war as in peace, and should be obeyed by all citizens, and all departments, and officers of government (Milligan's case, 4 Wall. 1). The courts held closely to the Constitution, but as happens in every civil war, a great many wrongs were done in the exercise of the war power for which no redress, or none that was adequate, could possibly be had." Inter arma silent leges must be always to some extent true, even under a Constitution like that of the United States.
- ↑ Such as the suspension of the writ of habeas corpus, the emancipation of the slaves of persons aiding in the rebellion, the suspension of the statute of limitations, the practical extinction of State banks by increased taxation laid on them under the general taxing power.
