Page images


If the historical accuracy of my former work has ever been called in question, I have not been aware of it. Nor have I met with anything in the writings of other authors who have since treated the same subject which has led me to doubt the correctness of my statements, or the soundness of my interpretations. The work to which I refer has been so often consulted and relied upon by those who have had to construe the Constitution that I may be pardoned for believing that it is reliable. I have, therefore, retained the whole of my former text, unchanged, excepting in a very few matters of mere style, and have incorporated the two volumes of the original work in the first volume of the present history. A full and minute index was added to the second volume of the former work. This I have repeated at the end of the first volume of the new work, and have made a new index for the second volume. It seemed to me that this would be more convenient to readers than it would be to incorporate the former index with the new one.

It may be well to explain what I understand to be the distinction between Constitutional History and Constitutional Law. As I use these terms I include in Constitutional History those events and that public action which have shaped the text of a written Constitution, or which should be regarded in its interpretation. Constitutional Law is that body of jurisprudence which includes the text of the Constitution and the constructions which it has received from those whose public duty it has been from time to time to interpret its meaning and application. But the terms Constitutional History and Constitutional Law have in this country a signification peculiar to ourselves. In other countries, as, for example, in England, where there is no written Constitution, and where everything depends upon the will of the legislative power, Constitutional History is the history of the legislation or public action which has given form and fixture to the powers of the government and the rights of individuals; and there, too, Constitutional Law is the existing system of public and private rights, which remain as they are until Parliament, consisting of the two Houses of the legislature, and the sovereign in her or his legislative capacity, see fit to change them.

With us, the bearing of Constitutional history upon any doctrine or proposition of Constitutional Law consists in the influence which public events or public action ought to have on the interpretation of a written text. First in importance stand the proceedings which attended the formation and adoption of the Constitution. These are described in the first volume of the present history. Next in importance come the interpretations which were put upon the text by the legislative department which was first charged with the duty of enacting the organic laws necessary to put the government in execution; the interpretations made by the executive, during Washington's administration; together with the amendments proposed by the First Congress, and adopted by the states in 1789-1791. All of this Constitutional History, which I have endeavored to embody in the second volume of the present work, preceded what I may call the era of judicial interpretation; by which I mean the earlier interpretations given to the Constitution by the Judiciary. Next in rank of importance are the later interpretations of all the three departments of the government.

The reasons why the first constructions and applications of the Constitution are of superior importance, is because those who first had to administer the new government belonged to the generation which framed and established it, and especially because many of them were actively engaged in framing and establishing, or in opposing and amending it. I have endeavored to keep distinct what occurred before the Civil War, and what happened afterwards, so as to explain the trying period when further amendments were made necessary, or were believed to be so. I have included in this later exposition those judicial constructions only which have related to the amendments, the history of which has been described, and a few of those which grew out of the Civil War or the measures that were adopted in its prosecution. These explanations will show why, in writing the second volume of the present history, I have not followed a strictly chronological order. By this I do not mean that time has been disregarded. The time or times when public events or public action have affected the Constitutional status of the country are of the utmost' consequence; and in a work designed to exhibit the influence of public events and public action upon the shape and meaning of a written Constitution, dates and contemporaneous occurrences are to be carefully noted. But I have deemed it best to group the subjects on which I have written, and have not attempted a narrative such as is usually found in general histories of a country, in which the reigns of different princes or the succession of different dynasties have followed each other. Ours is one dynasty, one reign, one national continuity, one unbroken national existence, under the Constitution established in 1788. The continuity of our national existence might have been broken, and was in imminent danger of being broken, between 1860 and 1865. But happily that danger was averted. We have settled the one perilous question that threatened our happiness and the permanency of our system of government. It remains for us to enjoy what we have preserved. A retrospect of the causes and events which made our Constitution a subject of altercation rather than enjoyment is now useful, not for the renewal of controversies, but for an enlightened perception of their nature and of the truths in which they have terminated. History is valuable for the warnings or the instructions which the past gives to the present and the future; and every stage of our Constitutional history is marked by such warnings and such instructions.

Gibbon, when announcing the continuation of his “History of the Decline and Fall of the Roman Empire,” said, “ An author easily persuades himself that the public opinion is still favorable to his labors.” Although a full generation has passed since I published my original work, I have had no reason to believe that the public has forgotten me. I have had many inquiries for the reasons why I have so long permitted it to remain out of print. These reasons I have now assigned. Since my purpose to reproduce it and to continue it to a later period has been made known, encouragement to proceed has reached me from many persons whose encouragement is most important. I have been informed by those who ought to know that in our higher schools of learning there is an awakened interest in American Constitutional history; that the young men of the present day are seeking for information on this subject much more than those who immediately

[ocr errors]

preceded them. Among those who are already on the active stage of life, I can observe the same tendency.

Perhaps some future Gibbon, centuries hence, will write the Decline and Fall of the American Republic. Let us hope, however, that in the meantime something will have been done for the welfare of mankind; that some still greater improvements will have been made in the science of government; and that if the decadence of our institutions must be recorded, the way will have been prepared for better ones to take their place.

NEW YORK, January, 1889.

« PreviousContinue »