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PART SECOND.

THE FEDERAL CONSTITUTION. AUTHORITIES. U. S. Supreme Court Reports (Dallas, 4 vols. to 1804; Cranch, 8 vols. to 1815; Wheaton, 13 vols. to 1827; Peters, 16 vols. to 1842; Howard, 24 vols. to 1860; Black, 2 vols. to 1862; Wallace, 22 vols. to 1874; Otto, 17 vols. to 1882; since then, Davis. Otto's reports are usually cited in American books, not by his name, but as “U. S. Reports,”— the general name for the series of supreme court decisions. I shall follow this example. In my Constitutional History of the United States I have hitherto taken my references from Curtis's edition of the supreme court reports, so far as that goes. In 1882 the Lawyers Co-operative Publishing Company (Rochester, N. Y.) began, under the editorship of Stephen R. Williams, an edition which is more complete, more convenient, and in many respects more valuable. Up to April, 1885, 22 volumes appeared, coming down to the October term, 1884). U. S. Statutes at Large. (The student cannot dispense with them, although the Revised Statutes, 1875; 2d edition, 1878; Supplement, 1874-81, are more convenient, lighten the task of research by their topical arrangement, and derive an especial value from their references to the decisions of the supreme court. They contain only the laws at present in force.) U. S. Digest, B. V. Abbott, 15 vols., Boston, 1874–78; New Series, 9 vols., 1870–78; 10 vols. by J. E. Hudson and G. F. Williams, continuation by Williams alone. A. C. Freeman, Digest of American Decisions, vol. I, San Francisco, 1882. Opinicns of the Attorneys-General. The stenographic reports of the proceedings in congress, which have appeared under different titles. The Debates and Proceedings in the Congress of the United States come down to the conclusion of the first session of the twenty-fifth congress (October 6, 1837), 28 vols., Wash., 1825– 1837. The Congressional Globe begins in 1833 and extends to 1873. The Congressional Record covers the time since. Some of the official publications of the government, usually referred to as a whole as Congressional Documents, are an important source of information. Among these, the Reports of Committees are of especial value, and that, too, for constitutional history. Since both the inferior federal courts and the state courts have to pass upon the constitutionality of federal and state laws, and all the disputed questions of constitu

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PART SECOND.
THE FEDERAL CONSTITUTION.

AUTHORITIES. U. S. Supreme Court Reports (Dallas, 4 vols. to 1804; Cranch, 8 vols. to 1815; Wheaton, 13 vols. to 1827; Peters, 16 vols. to 1842; Howard, 24 vols. to 1860; Black, 2 vols. to 1862; Wallace, 22 vols. to 1874; Otto, 17 vols. to 1882; since then, Davis. Otto's reports are usually cited in American books, not by his name, but as “U. S. Reports,”— the general name for the series of supreme court decisions. I shall follow this example. In my Constitutional History of the United States I have hitherto taken my references from Curtis's edition of the supreme court reports, so far as that goes. In 1882 the Lawyers Co-operative Publishing Company (Rochester, N. Y.) began, under the editorship of Stephen R. Williams, an edition which is more complete, more convenient, and in many respects more valuable. Up to April, 1885, 22 volumes appeared, coming down to the October term, 1884). U. S. Statutes at Large. (The student cannot dispense with them, although the Revised Statutes, 1875; 2d edition, 1878; Supplement, 1874-81, are more convenient, lighten the task of research by their topical arrangement, and derive an especial value from their references to the decisions of the supreme court. They contain only the laws at present in force.) U. S. Digest, B. V. Abbott, 15 vols., Boston, 1874–78; New Series, 9 vols., 1870–78; 10 vols. by J. E. Hudson and G. F. Williams, continuation by Williams alone. A. C. Freeman, Digest of American Decisions, vol. I, San Francisco, 1882. Opinicns of the Attorneys-General. The stenographic reports of the proceedings in congress, which have appeared under different titles. The Debates and Proceedings in the Congress of the United States come down to the conclusion of the first session of the twenty-fifth congress (October 6, 1837), 28 vols., Wash., 1825– 1837. The Congressional Globe begins in 1833 and extends to 1873. The Congressional Record covers the time since. Some of the official publications of the government, usually referred to as a whole as Congressional Documents, are an important source of information. Among these, the Reports of Committees are of especial value, and that, too, for constitutional history. Since both the inferior federal courts and the state courts have to pass upon the constitutionality of federal and state laws, and all the disputed questions of constitu

tional law cannot possibly be brought before the supreme court for adjudication, the decisions of these other courts often carry great weight. But the enormous number of these decisions makes an exhaustive review of them more and more of an impossibility, even to the most learned American jurists.

J. Wilson, Works, 3 vols., Phila., 1804. J. Taylor, Construction Construed and Constitutions Vindicated, 1820. Ibid., New Views of the Constitution of the United States, 1823. R. Mohl, Das Bundesstaatsrecht der Vereinigten Staaten von Nord-Amerika, Stuttg. and Tüb., 1824. J. Kent, Commentaries on American Law, 1st ed., 1826; 12th ed., 1873; 4 vols. Rawle, A View of the Constitution of the United States of America, 2d ed., Phila., 1829. Th. Sergeant, Constitutional Law, being a Review of the Practice and Jurisdiction of the Courts of the United States and of Constitutional Points Decided, 2d ed., Phila., 1830. J. Story, Commentaries on the Constitution of the United States, 2 vols., 1st ed., 1833; 4th ed., 1873. A. P. Upshur, The Federal Government, its true Nature and Character, being a Review of Judge Story's Commentaries on the Constitution of the United States, Petersburg, 1840. A. de Tocqueville, De la Démocratie aux Etats-Unis, 2 vols., Paris, 1835.

FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION AND

OF CONSTITUTIONAL LAW. $ 7. THE SO-CALLED PREAMBLE. At the beginning of the constitution is the following sentence: “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” This sentence is ordinarily called the Preamble, a title which Farrar (pp. 85–89) rejects, because it must lead to entirely erroneous conclusions about its legal nature and scope. Farrar is right, because this is a technical expression, taken from English law;' and this expression does not cover 1 Sedgwick, pp. 42–45.

the essential part of this introductory sentence of the constitution. It not only speaks, like a preamble, of the motives and aims of the law-giver, but it names the authority which here expresses its will; and it declares what this expression of will is, and upon whom it is to be binding. It is evident that this is not simply an outward and purely formal difference, but one of great material significance. This appears from a comparison of the introductory sentences of the articles of confederation with this; from the numerous changes which it had to undergo before it received its final form in the Philadelphia convention;' and from the long and earnest debates which it caused in some of the ratification conventions. It was almost universally recognized that the enumeration of certain objects did not make this clause an independent source of power to the federal authorities. Nevertheless, it did not by any means follow that no weight at all was to be given it because no legal consequences could be deduced from it. It had not “simply an historical significance," and the constitution did not “ first begin with that which followed the preamble,” 2 but it is, in the proper sense of the word, a most essential part of the constitution itself, for it is to it what the enacting clause is to an ordinary law. The discussion of the aims enumerated in it, to which the American commentators for the most part devote much space, is unnecessary in a statement of existing constitutional law, because it is of a political rather than a legal nature. But the other parts of the preamble demand careful attention and would deserve it even if no independent legal significance were to be given to them, because they provide the natural start

1 Collected by Farrar, pp. 33–38. 2 Schlief, p. 71.

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