« ՆախորդըՇարունակել »
that there are no subjects in republican governments-it was natural enough to question whether allegiance be any duty of the citizen. The existing works on public law are, for the most part, the production of men who wrote either under monarchies or in the interest of monarchy. There are probably now in other countries, and even in those islands where the Constitution of England is the law for king as well as people, some who hold that without royalty there can be no loyalty, and regard sedition, privy conspiracy, and rebellion as things which, by the nature of the case, can have no existence, as crimes, in republics, where the people rule. Among ourselves the doctrine of popular sovereignty has, of late years especially, been announced in propositions which would, logically, make the individual member of society independent of the governments which the people have established, and, practically, recognize a state in every chance aggregation in which the phenomenon of a numerical majority might be discernible.
In their reliance on the dogmas of this school, as in the predilection for State Rights, there was a remarkable resemblance between parties most diametrically opposed in action respecting slavery. The a priori assumptions upon which these doctrines were based are equally convenient to make a status natural or to make it unnatural; would throw the presumption of law and burden of proof with equal ease on either side of a legal controversy, and, as might be required, either carry the negro, as property, into unoccupied Territories, or invest him everywhere with the prerogatives of the citizen.
That such theories have been resorted to in supporting contrary interests in the slavery question, even when subjected to judicial discussion, may appear from cases given in the following pages.
It would require documentary proof of another class to
show that with these theories the kindred doctrine of a "higher law," by which all positive law, municipal or constitutional, private or public, should be measured, not only by the judiciary, but by the individual citizen, in calculating the limits of his obedience, was simultaneously embraced by the extremists of the respective advocates of both these contrary or contending interests; while such law has been as easily produced, when wanted, on either side, for attack or defence. In the name or a "higher law," the Acts of Congress prohibiting the African slave trade have been denounced before Southern legislatures and in Southern conventions, while, on Northern platforms and in Northern legislatures, another law of the same sort has been invoked to invalidate provisions of the national Constitution and legislation, whether State or național, devised to carry them into effect.
To a stranger, who, without knowing the history of these theories in weakening the popular perception of the foundation of our civil institutions, had observed the apparent quietude with which the first pretensions of seceding States had been received, the suddenness and emphasis with which the people of the Northern States asserted their belief in national existence might seem political inconsistency.
The legitimate consequences of such theories, when exhibited in State secession as practically asserted during the past year, must, sooner or later, have produced war, had they been the burden of the Constitution itself. Had not, by conscious or unconscious misleading, the whole subject of the foundation of government and law become obscured in the mind of the people of the Northern States, and had not this fact been observed and its consequences calculated upon, it is probable that none in the Southern would, at this time at least, have attempted to sever the national unity. For this
obscuration, the legal profession, and more particularly the judiciary, are principally responsible.
The subject of constitutional or public law has received, of late years, but little consideration from the profession, in comparison with that bestowed upon it at an earlier period,—and this though new questions under that law have been continuously presenting themselves upon which the earlier writers had bestowed little or no attention. The fourth Article has always been an "unexplored part of the Constitution." The received commentators have hardly touched upon its provisions. This volume may be claimed to exhibit the first attempt at collating the various decisions bearing on the interpretation and construction of its several clauses, and deriving some general canons for their application in determining the rights and obligations of private persons.
It has been remarked by foreign jurists that there must be a portion of the private law of the United States which is like international law in its effect. As this portion is greatly determined by the clauses of the fourth Article, so it is obvious that they cannot be applied without judicial reference to the principles of international law, public and private, as received by all civilized nations. But, as yet, the judicial exposition of the international or quasi-international questions arising under this Article has not elicited any great degree of admiration in any quarter.
The attempt to exhibit these important provisions of the Constitution, upon which some of the leading decisions of the American courts have been founded, in connection with elementary doctrines of private international law, is a presumption on the part of the writer for which no excuse can be offered, if it be a presumption. The understanding of these clauses is, however, indispensable to the fair consideration of
the questions relating to slavery under the Constitution of th United States; and on these scribimus, indocti doctique.
The doubt will naturally suggest itself, whether the questions discussed in this work are not about to pass, or have not already passed, out of the sphere of juristical discussion, and are not now to be determined by the sword. That the present volume should be published under the existing state of public affairs, was certainly not foreseen by the writer when the work was begun. That these questions, in connection with public law, may be greatly modified by events presently occurring, need not be disputed: qui vivra verra. Every student of the history of jurisprudence knows, however, that private law is a very long-lived thing; one which even great revolutions are sometimes ineffectual to change. But whatever its consequences on the law of personal condition may be, it is certain that the opinions and decisions cited in this work are not the least among the causes of the existing civil contest.
NEW YORK, January, 1862.
THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES AFFECTING CONDITIONS
TION IN THE ORIGINAL THIRTEEN STATES. THE STATES KENTUCKY, MAINE,
Classification of the States and Territories.