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ON the publication of a volume whose title indicates its connection with questions arising from the existence of negro slavery in the United States, a recollection of the number and variety of the existing works on that subject will suggest the propriety of some prefatory exposition of the author's point of view.
Although the questions considered in this work are not frequently matters of controversy in courts of law, and derive their principal interest from their connection with objects of more political and public importance than are the litigated rights of private persons, yet it is designed and published as a legal or juristical treatise, or one which, if not technical, may still with strictness be called a "law book." It is intended to present statements of law only, without the introduction of any considerations of the effect of such law on the moral or religious, the social or political interests of the nation or of the several States.
Having this character exclusively, it follows that the proposed work cannot be expected to contain any thing essentially new simply because, if such, it could not be law. The merit of a treatise of this kind must always consist in presenting no proposition without adequate reference or deduction, showing that the same has already been said, or, at least, if not said, has been implied in former juridical expositions.
But the best known propositions, whether of fact or of doctrine, have not always been stated in their proper sequence, or exhibited as coherent or mutually dependent propositions. Whatever novelty may be found in the following pages will consist in the attempted arrangement of well-known facts, or received doctrines of law, connected with the subject, in their proper order; though, in doing this, it may be made to appear that some propositions which, in the discussion of the subject of slavery under the laws of the United States, are commonly advanced as contradictory or antagonistic, are, in reality, not so.
If successful in being a correct statement of the law on the subject, the proposed treatise cannot be of a partisan character, or cannot be otherwise than impartial in respect to the objects of political parties. For the exposition of existing law is merely the statement of the fact, and is entirely distinct from any approval or disapproval of that law, on grounds of moral or political expediency. This will probably be admitted by all who have made the law to any great extent their study. But the popular manner of treating the subject of slavery may warrant the belief that a very large proportion of those who participate in such discussions would not admit the proposition, and do not ordinarily discriminate between the legal or juristical view of subjects of social interest and other views essentially ethical or political.
The failure to distinguish between the science of law and that of ethics has been common in every country, and manifested in connection with many subjects of social interest; but never nor in any country more plainly than in this, at the present time, in controversy excited by the subject herein considered. The connection between private rights and public law, which everywhere exists, is particularly visible in the jurisprudence of republican states, and is in this country not merely a matter of
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