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PREFACE. IX

had long been to me a subject of deep regret that, notwithstanding the numerous, consistent, most solemn, and (with some few and mostly late exceptions), to my mind, most satisfactory adjudications of this court [the Supreme Court of the United States], in expounding the Constitution, its meaning yet remains as unsettled, in political, professional, and judicial opinion, as it was immediately after its adoption. If one is to judge of the next, by the results of the past half century, there is but a slight assurance that that instrument will be better understood at the expiration, than it is at the beginning of the period."

And were not the apprehension here expressed well founded, it would generally be felt that the exposition of the fundamental principles of American constitutional law must be as easily attainable by any private writer as is that of the ordinary law of private rights and obligations. An industrious collation of existing judicial decisions should be as sufficient to establish a deduction of the true principle in that department as in any other of our law. Yet, in no portion of juristical literature, does the reader so commonly expect that the author undertaking the exposition should be supported by the prestige of a precedent reputation which may give his views an authority beyond any they could have by being simply impartial deductions from the ordinary elements of legal knowledge: as if it were generally understood that in treatises on constitutional law the writer, instead of relying, as in other departments of jurisprudence, on the force of judicial decisions, should himself enter, more or less, on an independent construction and interpretation of the Constitution, and test the value of the decisions by his own several deduction from the bare text of the instrument.

And, indeed, Judge Baldwin's further observations, in continuation of the passage just cited, indicate that this idea has been countenanced by the practice of the court itself. "It is to X PREFACE. be feared," he proceeds to say, "that unless some mode of interpretation different from what has been usually pursued in argument is adopted, the present uncertainty must become utter confusion. In reviewing the course of argument on both sides in these cases, the remark is fully justified that we have been referred, for the true interpretation of the Constitution, to books, essays, arguments, opinions, speeches, debates in conventions and legislative bodies, by jurists and statesmen, and by some who were neither, which would not be offered or suffered to be read in any court, as entitled to respect, in construing an ordinary act of legislation, or a contract between individuals."

The generous reader will not believe that, in this allusion to the miscellaneous nature of former inquiry in this department, the writer would insinuate an argument for the favorable reception of his own observations on one of the most important subjects of constitutional law. No one can be more sensible that, in proportion to the interest of the inquiry and the deficiency of the ordinary means of attaining juridical certainty must be also the demand for special qualifications in the writer for such investigation, and be more aware of his exposure to the charge of presumption in their absence. The testimony of Judge Baldwin is here adduced not merely as showing that the decisions of the highest courts may not in this matter have been successful as harmonious expositions of the fundamental principles of American public law, but more particularly because in that connection he has maintained the authority of common law as the controlling juridical instrument for attaining a knowledge of the purpose and legal effect of the Constitution of the United States; and because that view is in harmony with the method which has been pursued in the following work. In the place referred to, Judge Baldwin also said, "I have long since been convinced that there are better and safer guides to professional and judicial

PREFACE. XI

inquiries after truth, on constitutional questions, than those which have been so often resorted to without effecting the desired result, a clear and settled understanding of the terms and provisions of an instrument in writing which operates with supreme authority wherever it applies. To me it seems that it can be made intelligible in all its parts by applying to it those established rules and maxims of the common law, in the construction of statutes, and those accepted definitions of words, terms and language in which they had been used and been received, as well known and understood, in their ordinary or legal sense, according to the subject matter. In appealing to the common law as the standard of exposition in all doubts as to the meaning of written instruments, there is safety, certainty, and authority. The institutions of the colonies were based on it," &c., &c.; and on page 7 of the same, "I know no other guide which is safer, which better conducts the mind to certainty, nor do I feel at liberty to follow any other than the principles of the common law that are well established and applicable to a case arising under the Constitution, and which turns upon its interpretation; their adoption has been, in my judgment, most clearly made by every authority which can impose the obligation of obedience."

The question indeed will have to be answered, what is common law? or, rather, what is that common law which is to be made the standard? This can only be a historical question—a question of fact; requiring a preliminary examination of the history of jurisprudence, or of laws deriving their authority from those possessors of sovereign power who established the Constitution, or from their political predecessors. And this again involves the recognition of those elementary principles which enter of necessity into the jurisprudence of every country, and by which its origin, continuance, and extent, may be determined;

Xll PREFACE.

and which, in their connection with the suhject of free condition and its contraries, are discriminated in the elementary or theoretical portion of this treatise.

This inclination or practice of deferring to extrajudicial authority in questions of constitutional law far more than is customary in other departments of legal science, must indeed be ascribed in part to the fact that in republican states such questions are always more or less political, as well as legal questions; so much so that, whether they are one or the other, whether they are to be decided by the judiciary or by some other branch of the government—itself a constitutional question—can hardly be decided by either branch alone. It may be thought that the attempt made in the eleventh chapter of this treatise to answer the basal question of our constitutional law, From whom does the written Constitution derive its authority? or, Who are the possessors of sovereign power to whom its existence and continuance is to be ascribed? or, What is the political organization—national or federative—of the United States? is beyond the scope of this treatise, as confined to subjects of legal inquiry only. Yet that the same questions have been frequently objects of judicial consideration, is abundantly illustrated by the reports, and in no class of cases, probably, more commonly than those in which the rights of slaveowners under the Constitution have been the subject of controversy. It is however, essentially, a political question, and one which no judicial tribunal whose authority is dependent upon its answer can, in the nature of the case, determine. And that its settlement has not been attained by such decisions is certified by Judge Baldwin in the work referred to, page 36; where, after presenting that view which had been supported by the decisions, and which was his own opinion, he observed, "These considerations, however, have utterly failed to settle the true meaning of the term, 'We, the people of the

PREFACE. Tin

United States,' as the granting or constituent power of the federal government. So far from there being any general assent to that meaning which, to my mind, is so apparent in the Constitution, with its necessary practical results, which its framers and adopters must have known and foreseen to be inevitable, the reverse maybe the common opinion."

The question, Who makes the law of the land I live in? is one which each private person, required to yield obedience in the name of the law, is always supposed to be able to answer for himself, independently of judicial decision. It is the question of allegiance, Who is the actual possessor of sovereign power? which in most countries is never asked if the decision of a judicial tribunal would be a sufficient answer. That, here, the question is asked and answered by judicial tribunals is the best indication that ours is a constitutional government. But the intrinsic character of the question, as one above law not under law, is still the same, and in saying that in every State of the Union each private person owes an allegiance divided between the State and the United States, there is an implication that he may be obliged to answer the question in circumstances where no judicial decision would be taken for an answer. And in American courts of law, as everywhere else, the answer is to be attained by historical investigation, not by the ordinary juridical standards of judicial determination. No common law even will decide it; except as history may show from whom common law, public and private, has proceeded. The method, therefore, of inquiry, independently of judicial decisions, which is here pursued, is not inconsistent with that deference to such authority, as the best exponent of law, which is professed in the outset.

Of the first two chapters of this work a few copies were published in August, 1856, with the title, Topics of Jurisprudence connected with conditions of Freedom and Bondage. And it

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