A Brief Enquiry

A Brief Enquiry
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第4章 THE CHARACTER OF JUDGE STORY COMMENTARIES ON

It came within the range of Judge Story's duties,as Dane Professor of Law in Harvard University,to expound and illustrate the Constitution of the United States.His lectures upon that subject have been abridged by himself,and published in a separate volume.Although the work is given to the public as an abridgment,it is nevertheless,as it professes to be,"a full analysis and exposition of the constitution of government of the United States and presents,in the opinion of the author himself,the "leading doctrines"of the original,"so far as they are necessary to a just understanding of the actual provisions of the Constitution."The author professes to have compiled it "for the use of colleges and high schools,"

but as it contains all the important historical facts,and all the leading reasons upon which his own opinions have been based,and as it has been prepared with elaborate care in other respects,we may reasonably suppose,without impeaching his modesty,that he expected it to be received as a complete work.It is,indeed,quite as full as any such work needs to be,for any purpose,except,perhaps,the very first lessons to the student of constitutional law.The politician and the jurist may consult it,with a certainty of finding all the prominent topics of the subject fully discussed.

A work presenting a proper analysis and correct views of the Constitution of the United States has long been a desideratum with the public.It is true that the last fifteen years have not been unfruitful in commentaries upon that instrument;such commentaries,however,as have,for the most part met a deserved fate,in immediate and total oblivion.Most of them have served only to throw ridicule upon the subject which they professed to illustrate.A few have appeared,however,of a much higher order,and bearing the stamp of talent,learning,and research.Among these,the work before us,and the Commentaries of Chief Justice Kent,hold the first rank.

Both of these works are,as it is natural they should be,strongly tinctured with the political opinions of their respective authors;and as there is a perfect concurrence between them in this respect,their joint authority can scarcely fail to exert a strong influence upon public opinion.It is much to be regretted that some one,among the many who differ from them in their views of the Constitution,and who possess all the requisite qualifications for the task,should not have thought it necessary to vindicate his own peculiar tenets,in a work equally elaborate,and presenting just claims to public attention.The authority of great names is of such imposing weight,that mere reason and argument can rarely counterpoise it in the public mind;and its preponderance is not easily overcome,except by adding like authority to the weight of reason and argument,in the opposing scale.

I hope it is not yet too late for this suggestion to have its effect upon those to whom it is addressed.

The first commentary upon the Constitution,the Federalist,is decidedly the best,which has yet appeared.The writers of that book were actors in all the interesting scenes of the period,and two of them were members of the convention which formed the Constitution.Added to this,their extensive information,their commanding talents,and their experience in great public affairs,qualified them,in a peculiar degree,for the task which they undertook.Nevertheless,their great object was to recommend the Constitution to the people,at a time when it was very uncertain whether they would adopt it or not;and hence their work,although it contains a very full and philosophical analysis of the subject,comes to us as a mere argument in support of a favorite measure,and,for that reason,does not always command our entire confidence.Besides,the Constitution was and its true character,which is to be learned only from its practical operation,could only be conjectured.Much has been developed,in the actual practice of the government,which no politician of that day could either have foreseen or imagined.New questions have arisen,not then anticipated,and difficulties and embarrassments,wholly unforeseen,have sprung from new events in the relation of the States to one another,and to the general government.Hence the Federalist cannot be relied on,as full and safe authority in all cases.

It is,indeed,matter of just surprise,and affording the strongest proof of the profound wisdom and far-seeing sagacity of the authors of that work,that their views of the Constitution have been so often justified in the course of its practical operation.Still,however,it must be admitted that the Federalist is defective in some important particulars,and deficient in many more.The Constitution is much better understood at this day than at the time of its adoption.This is not true of the great principles of civil and political liberty,which lie,at the foundation of that instrument;

but it is emphatically true of some of its provisions,which were considered at the time as comparatively unimportant,or so plain as not to be misunderstood,but which have been shown,by subsequent events,to be pregnant with the greatest difficulties,and to exert the most important influence upon the whole character of the government.Contemporary expositions of the Constitution,therefore,although they should be received as authority in some cases,and may enlighten our judgments in most others,cannot be regarded as safe guides,by the expounder of that instrument at this day.The subject demands our attention now as strongly as it did before the Federalist was written.1

Abel Parker Upshur

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