The Law of Freedom and Bondage in the United States

and which, in their connection with the subject 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 ported 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

sup

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 Con-
stitution, with its necessary practical results, which its framers
and adopters must have known and foreseen to be inevitable, the
reverse may be 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 his-
torical 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, in-
dependently 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 pub-
lished in August, 1856, with the title, Topics of Jurisprudence
connected with conditions of Freedom and Bondage. And it

may be pertinent to add that the third and fourth chapters were
also printed at the same time, though, by the failure of eyesight,
the writer was prevented from proceeding with the publication
as then intended, and the plan of the remaining portion was
afterwards enlarged, in view of considering more fully the ques-
tions involved in the case of Dred Scott v. Sandford, decided De-
cember term, 1856, in the Supreme Court of the United States.

NEW YORK, August, 1858.

CONTENTS.

[OBSERVATION.-The several chapters of this work, though numbered continu-
ously, may be classified into three parts or divisions. First, The Elementary or Ab-
stract Portion, contained in the first and second chapters; Second, The Historical
Portion, contained in the third and following chapters, to the eleventh, inclusive; and
Third, The Practical Portion, contained in the remaining chapters of the work. A
corresponding arrangement into Books or Parts, such as is sometimes made in the
treatises, has not been adopted, from believing that such subdivisions practically di-
minish facility of reference, and that it will be sufficient to call the attention of the
reader to this essential feature in the composition.]

1. The primary and secondary meanings of the word law,.

2. The law of nature, whether so called in the primary or in the sec-
ondary sense,

3. Two different views taken of the source of law, so called in the pri-
mary sense,

4. Meaning of the term jurisprudence, and whether it includes ethics,
5. Jurisprudence is the science of a rule identified with the will of the
state,

6. The natural law, being law in the secondary sense, is recognized in
jurisprudence,

7. The natural law, being law in the primary sense, is determined by
the state when recognized in jurisprudence,

8. In jurisprudence the natural law is not contrary to the will of the

state,

10. International law, a rule acting on nations as its subjects,
11. The authority of national and international law compared,

12. International law, acting on nations, is not law in the strict sense,
13. The recognition of natural law in national and international law, 10
14. Natural law becomes a coercive rule in being identified with the will
of the state,