theory, but a constant object of judicial consideration. Where popular sovereignty is recognized and is visibly operative in the form of government; where law is seen to have its ultimate source in the collective judgment of the community, the individual member of society may the more easily confound law with matter of conscience, and legal inquiry with that investigation by which political or moral ends are to be attained.

In the belief that this tendency arises principally from a want of precision in the definitions of law and in the formulas which express the basal propositions of jurisprudence, the following examination of the laws of the United States affecting personal condition has been commenced by a preliminary exposition of those principles of general jurisprudence which would be necessarily involved in considering the incidents of free condition and its contraries in whatever country they might exist; and it has been attempted at the same time to discriminate for use in the succeeding inquiry such terms, already adopted by writers of acknowledged reputation, as are requisite to express the necessary distinctions.

Some principles are necessarily assumed without proof; and when stated, as abstract propositions, without being illustrated by application to cases, only those already familiar with the questions to which they apply can be supposed to perceive their relevancy. The value of the abstract or elementary portions of this treatise may be tested by their attempted application to the practical cases presented in the succeeding portions. It must be confessed that while a great deal of the literature of jurisprudence may illustrate the constant need of such reference to elementary principles and discrimination of language, it will also illustrate the fact that they do not ordinarily receive much attention. And the dictum attributed to Bartolus, "de verbibus non curat Jurisconsultus," if regarded as the statement of a

fact, is perhaps nowhere better vindicated than where the incidents of bond and free condition have been the topics of legal investigation.

Since it is principally as connected with public or constitutional law that the incidents of free condition and its contraries have been made the subject of legal inquiry, and now excite most discussion, they have, in the greater portion of the following pages, been presented in that connection.

It seems natural to suppose that, in the jurisprudence of every country, that which in its place in the system is most fundamental must also be that portion which is least the subject of legal doubt, or that which may the most easily be ascertained in the harmony of judicial determinations. So it will probably be thought by most persons that in the exposition of any class of private rights and obligations arising under American law the constitutional law connected with the subject, or the meaning and effect of the Constitution of the United States in that connection, especially as determining the political source to which existing rights of private persons are to be referred and on which the continuance of their rights depends, must be that portion of the inquiry giving the least occasion for independent investigation or original reference to elementary principles of construction and interpretation.

But that, in some of the most important questions of constitutional law, the private inquirer cannot so implicitly refer to their determination by judicial opinion, or could not, at least, so lately as the year 1837, might be believed from the strong expressions used by the late Judge Baldwin of the Supreme Court of the United States, in his General View of the Origin and Nature of the Constitution and Government of the United States, &c., &c., commonly cited as Baldwin's Constitutional Views, published in that year. See page 2, where he says, "It

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

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

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;