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2 / us 100508
FER 4 1892
Entered according to the Act of Congress in the year eighteen hundred and
BY GOULD, BANKS & GOULD, in the Clerk's Office of the District Court of the Northern District of New York.
In presenting these Commentaries to the public, I have to admit, that owing to circumstances beyond my control, they are not as full, and complete as I could wished to have made them. Many branches of constitutional law within the appropriate range of my subject, remain untouched, and in many instances, those that have been treated of, necesarily have been but partially considered. It is to be regretted, that a subject of so much importance at the present time, had not received the consideration of an abler mind, or that what has been done by me, had not been executed in a better manner. I am conscious of defects in what I have done, but the defects that do exist in this work, so far as constitutional law is concerned, are supplied to a great extent, by the previous able, and distinguished Commentaries of the late Mr. Justice Story. With such a predecessor on any subject, and especially that of constitutional law, the mind naturally shrinks in distrust of its own powers, to travel even at a remote distance, along the path which has been illuminated and rendered brilliant by his refined and cultivated intellect. That distrust is heightened, when it is considered, he had great opportunities to acquire much learning on this subject; having for many years occupied a seat in the highest, and I hesitate not to say, the ablest judicial tribunal, which ever adorned the jurisprudence of any nation; that too, at a period when the constitutional law of a New World, was the theme of forensic discussion, and judicial determination, by a galaxy of forensic and judicial talent, unsurpassed in point of brilliancy,
and deep legal acumen, in any era of the world's history. None of those advantages have been enjoyed by me; all that has been acquired on the subject of constitutional law, has been derived from other sources, in prosecuting the humbler walks of a private professional life.
The difficulty of grasping, and at the same time condensing this subject, presents to the mind, much intrinsic difficulty, well calculated to embarrass and perplex an author. The subject itself, is of such a nature, as not to be susceptible of illustration and exemplification, like many common law rules, by a few succinct, terse, elementary principles. Without ex. emplification, and illustration, the elementary principles of constitutional construction, can hardly be so stated as to be clearly understood, or rendered intelligible. Any work on constitutional law without this, would be a mere digest, and valuless to the profession, except as an index of cases.
A conviction of this, has in many instances, induced me to insert at some length, the reasons upon which a particular construction has been founded. This has been done to an extent, which would be unwarranted in a commentary upon almost any other juridical subject. In this country, there has, for a long time, been evinced in our legislative bodies, a propensity to legislate, so much so, that even unconstitutional legislation, or at least, that of doubtful constitutionality, has been carried to an alarming extent. An excess of legislation, is one of the greatest evils which has engrafted itself upon our political institutions. It has indeed become as a mildew, and blighting curse upon the body politic, and the jurisprudence of the present age. A deep conviction of this fact, has induced me, in numerous instances, to interpose objections to particular acts of legislation, and to protest against their validity. I have endeavored to support such objections by such arguments and facts, as for the time being, lay within the range of my intellectual powers. Whenever this has been done, whatever views I may have expressed, as the convictions of my
own mind, I by no means expect such parts of these commentaries will be regarded as authoritative, nor do I expect, or claim for them, in this respect, any greater weight, or consideration, than such arguments, as have been adduced in their support, are justly entitled to, when considered by candid, and unprejudiced minds. If my labor in this respect, shall in the least degree tend to stay the progress of the political pestilence of excessive and unconstitutional legislation, I shall ever regard it the best service I can render to my country. I am frank to admit, I am an advocate for a strict construction of the constitution, and opposed to any latitudinarian construction of such a solemn instrument. This opposition may sometimes have led me to advance sentiments, and adopt rules of construction, which by some minds, may be regarded as savouring too much of ultraism, or bordering upon impracticability. If so, my apology is ;-infallability is not the boon of any man or body of men, it pertains not, either to the church or state, to man as man individually, or to men collectively. In short, to "err is human."
If in the particulars above stated, I have erred, I think I may console myself with the reflection, that my errors, to say the least of them, are on the safe side, and until a change shall take place in the moral constitution of mankind, those errors will be less likely to be copied than they would have been, if the sentiments I have advanced and advocated, had been in more perfect unison with a construction, favorable to an aggression upon those private rights, around which, it was the design of the framers of our fundamental laws to throw the broad shield of the constitution. While on the one hand, I have designed that these commentaries should not be a mere compilation of constitutional law, nor a simple digest of cases, on the other, I do not claim for them, much originality. To be original upon such a subject, since the days of a Marshall, and his illustrious compeers, would at least be somewhat difficult for any mind, and would be a serious fault in a commentator. Neither an aspiration for fame as an au
thor, nor an estimate of my own powers, has as yet induced a belief, that the attainment of such an end is possible for me in this department of juridical science. No attempt therefore, has been made at such an acquisition, neither do I possess the gift, even if I had the inclination. If, so far as annotation is concerned, the meed of accuracy shall be awarded to me, by my professional brethren, my highest aspirations as an author will be fully satisfied. If in this respect I have done any service to the legal profession, or to those clothed with the sacred trust of legislative, or judicial authority, I shall have attained the only reward I anticipated in the undertaking. I entered upon this work, with much distrust, and many mis. givings, anticipating at the outset, much difficulty in condensation, to an extent, which would admit of confining myself to a single volume. In every step of my progress, I have found that difficulty increased, as every constitutional question opens to the mind so many, and such varied trains of thought, susceptible of so many different views, each tending to a different conclusion, each demanding a passing notice in the prosecution of the subject. In many instances, questions have arisen, which have elicited such and so great contrariety, as well as conflict in opinion, as that a review of such opinions has been deemed indispensable.
The first five chapters of this work, are confined to a succint review of the origin and history of legislation. In this part of my undertaking, I have been unable to take but a very limited view of a subject, which, in itself, affords an appropriate theme for many volumes. The sixth chapter contains nothing either original or expository. It has been inserted simply for the purpose of reference. In the perusal of this work, it may be entirely omitted, as it stands disconnected with the train of thought pursued either in the previous, or in the subsequent chapters. The seventh chapter is devoted to a consideration of the question, as to the extent of legislative authority, independent of any constitutional restriction upon legis