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ON THE

CONSTITUTION OF THE UNITED STATES;

WITH

A PRELIMINARY REVIEW

OF

THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES,

BEFORE THE ADOPTION OF THE CONSTITUTION.

By JOSEPH STORY, LL. D.,

DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY.

IN THREE VOLUMES.

“ Magistratibus igitur opus est ; sine quorum prudentia ac diligentia esse civitas non potest;
quorumque descriptione omnis Reipublicæ moderatio continetur."

CICERO DE LEG. lib. 3. cap. 2.
“Government is a contrivance of human wisdoin to provide for human wants."

;;

; ; 'BIRKE.

VOLUME

BOSTON:
HILLIARD, GRAY, AND COMPANY.

CAMBRIDGE:
BROWN, SHATTUCK, AND CO.

.1833.

Checked
..May 19

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Entered according to the nct of Congress in the year one thousand eight hundred and thirty-three,

by JOSEPH STORY,
in tho Clerk's office of the District Court of the District of Massachusetts.

Printers to 1

TO THE

HONORABLE JOHN MARSHALL, LL. D.,

CHIEF JUSTICE OF THE UNITED STATES OF AMERICA.

Sir, I ask the favour of dedicating this work to you. I know not, to whom it could with so much propriety be dedicated, as to one, whose youth was engaged in the arduous enterprises of the Revolution ; whose manhood assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles. When, indeed, I look back upon your judicial labours during a period of thirty-two years, it is difficult to suppress astonishment at their extent and variety, and at the exact learning, the profound reasoning, and the solid principles, which they every where display. Other Judges have attained an elevated reputation by similar labours in a single department of jurisprudence. But in one department, it needs scarcely be said, that I allude to that of constitutional law, the common consent of your countrymen has admitted you to stand without a rival. Posterity will assuredly confirm by its deliberate award, what the present age has approved, as an act of undisputed justice. Your expositions of coristitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond ihz adinary memorials of political and military glory. They are destined to enlighten, instruct, and convince future generatinis; and "čan scarcely perish but with the memory of the constitution itself. They are ihe victories of a mind accustomed to grapple with difficulties, capable of unfolding the most comprehensive truths with masculine simplicity, and severe logic, and prompt to dissipate the illusions of ingenious doubt, and subtle argument, and impassioned eloquence. They remind us of some mighty river of our own country, which, gathering in its course the contributions of many tributary streams, pours at last its own current into the ocean, deep, clear, and irresistible.

But I confess, that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed ; no timid surrenders to popular clamour ; no eager reaches for popular favour. Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles ?

I am but too sensible, that to some minds the time may not seem yet to have arrived, when language, like this, however true, should meet the eyes of the public. May the period be yet far distant, when praise shall speak out with that fulness of utterance, which belongs to the sanctity of the grave.

But I know not, that in the course of providence the privilege will be allowed me hereafter, to declare, in any suitable form, my deep sense of the obligations, which the jurisprudence of my country owes to your labours, of which I have been for twenty-one years a witness, and in some humble measure à companion. And if any apology should be required for my present freedom, may I not say, that at your age all reserve may well be spared, since all your labours must soon belong exclusively to history?

Allow me to add, that I have a desire (will it be deemed presuinptuous ?) to record. alpon these pages the memory of a

friendship, which hạš for so many years been to me a source :, of inexpressible satisfaction ; and which, I indulge the hope, may continue.io.accompany, and cheer me to the close of life.

I am avith;jhe: bighest respect,
affectionately your servant,

JOSEPH STORY.
Cambridge, January, 1833.

PREFACE.

I now offer to the public another portion of the labours devolved on me in the execution of the duties of the Dane Professorship of Law in Harvard University. The importance of the subject will hardly be doubted by any persons, who have been accustomed to deep reflection upon the nature and value of the Constitution of the United States. I can only regret, that it has not fallen into abler hands, with more leisure to prepare, and more various knowledge to bring to such a task.

Imperfect, however, as these Commentaries may seem to those, who are accustomed to demand a perfect finish in all elementary works, they have been attended with a degree of uninviting labour, and dry research, of which it is scarcely possible for the general reader to form any adequate estimate. Many of the materials lay loose and scattered ; and were to be gathered up among pamphlets and discussions of a temporary character; among obscure private and public documents ; and from collections, which required an exhausting diligence to master their contents, or to select from unimportant masses, a few facts, or a solitary argument. Indeed, it required no small labour, even after these sources were explored, to bring together the irregular fragments, and to form them into groups, in which they might illustrate and support each other.

From two great sources, however, I have drawn by far the greatest part of my most valuable materials. These are, The Federalist, an incomparable commentary of three of the greatest statesmen of their age ; and the extraordinary Judgments of Mr. Chief Justice Marshall upon constitutional law. The former have discussed the structure and organization of the national government, in all its departments, with admirable fulness and force. The latter has expounded the application and

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