Dictionary of American Biography, vol. 19.
Jay B. Hubbell, The South in American Literature, 1607–1900 (Durham, N.C.: Duke University Press, 1954).
Craig Evan Klafter, Reason over Precedence: Origins of American Legal Thought (Westport, Conn.: Greenwood Press, 1993).
THE TEXTS for all the writings of St. George Tucker published herein are taken from essays he appended to his edition of Blackstone: Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; And of the Commonwealth of Virginia, 5 vols. (Philadelphia: Published by William Young Birch and Abraham Small. Robert Carr, Printer, 1803). The texts here preserve the original eighteenth-century spelling and punctuation and the liberal use of italics and small capitals common at the time.
It has, however, been necessary to make considerable alteration in Tucker’s footnotes. These are voluminous. Many are references to obsolete compilations of laws or to now familiar specific clauses of the Constitution of the United States, which was then a new document. (Blackstone’s Commentaries was, after all, primarily a reference work for law students.) Tucker’s notes were marked by archaic printer’s symbols, used generalized rather than precisely specific titles of works, and often cited page references to eighteenth-century editions of classic works that are not likely to be available to readers today.
Many footnotes that seemed no longer useful have been eliminated. In those retained, Tucker’s style has been preserved as far as possible. At the end of most essays, a recapitulation of the major works referred to by Tucker has been added. In addition, some new footnotes have been placed in the present edition where it seemed useful for the contemporary reader. In every case, such new material is preceded by the tag “Editor’s note.” All footnotes, new and old, have been renumbered in one series for each essay.
CLYDE N. WILSON
A WORD to the reader who otherwise is likely to be disconcerted by Tucker’s manner of labeling the first ten amendments to the Constitution. The First Congress proposed twelve amendments, designed to meet objections raised by Virginia and other states. Two of these amendments, though ratified by Virginia, were never ratified by a sufficient number of states, a fact of which Tucker apparently was not aware when he prepared his edition of Blackstone for the printer. So he refers often to “the twelve articles of the amendments.” Even more disconcertingly, he assigns the amendments numbers that do not correspond to later practice. For instance, when he writes “the twelfth article of the amendments,” he means the Tenth Amendment. When he writes “the third article of the amendments,” he means the First Amendment. Once this peculiarity is grasped the exposition becomes clear.
View of the Constitution of the United States
“On the Study of Law” was Tucker’s “Editor’s Preface” to his edition of Blackstone’s Commentaries. In it he surveys the conditions for the study of law in the United States. But his chief concern is how to Americanize (or Virginianize) and republicanize a work so essential as Blackstone, yet so suffused with monarchical principles. It is this goal that justifies the numerous appendices that he has added to the work, each an essay on a particular area for which Blackstone is an inadequate guide for American students. Two of the most important essays are those on the Constitution of the United States and the Constitution of Virginia. Tucker stresses that American constitutions are written declarations ratified by the people of the states, and they are to be interpreted through their plain texts and through the instruments of the people’s consent, and not by speculative writers on government or by office-holders, the people’s delegates. Other important questions for Tucker are to what extent the common law is operative in the United States, and what are the boundaries of federal and state judicial jurisdiction. Finally, Tucker assures fledgling lawyers that, as future framers of law, they must have a knowledge of the constitutions and history of their country, as well as of law itself, if liberty is to be preserved.
WHEN A WORK of established reputation is offered to the public in a new dress, it is to be expected that the Editor should assign such reasons for so doing, as may not only exempt him from the imputation of a rash presumption, but shew that some benefit may be reasonably expected to result from his labours.
Until the COMMENTARIES on the laws of England by the late Justice Blackstone made their appearance, the students of law in England, and its dependencies, were almost destitute of any scientific guide to conduct their studies. “A raw and unexperienced youth,” he remarks, “in the most dangerous season of life is transplanted on a sudden into the midst of allurements to pleasure without any restraint or check, but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which always embarrass a beginner. In this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning.” “How little, therefore, is it to be wondered at” he adds, “that we hear of so frequent miscarriages, that so many gentlemen of bright imaginations grow weary of so unpromising a search; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives!” Such is the picture which our author gives us of the difficulties which at that time attended the study of the law, even in those Inns of court whither those who sought to acquire a knowledge of the profession, generally repaired for instruction. On the appearance of the COMMENTARIES, the laws of England, from a rude chaos, instantly assumed the semblance of a regular system. The viginti annorum lucubrationes it was thought might thereafter be dispensed with, and the student who had read the COMMENTARIES three or four times over, was lead to believe that he was a thorough proficient in the law, without further labour, or assistance; the crude and immethodical labours of Sir Edward Coke were laid aside, and that rich mine of learning, his Commentary upon Littleton, was thought to be no longer worthy of the labour requisite for extracting its precious ore. This sudden revolution in the course of study may be considered as having produced effects almost as pernicious as the want of a regular and systematic guide, since it cannot be doubted that it has contributed to usher into the profession a great number, whose superficial knowledge of the law has been almost as soon forgotten, as acquired. And this evil we may venture to pronounce has been much greater in the Colonies dependent upon Great-Britain, than in England itself, for the laws of the Colonies not being at all interwoven with the COMMENTARIES, the colonial student was wholly without a guide in some of the most important points, of which he should have been informed; admitting that he were acquainted with the law of England upon any particular subject, it was an equal chance that he was ignorant of the changes introduced into the colonial codes; which either from inexperience, inattention, or other accidental circumstances have undergone a variety of modifications, provisions, suspensions, and repeals, in almost all the colonies dependent upon great Britain. The COMMENTARIES, therefore though universally resorted to as a guide to the colonial student, were very inadequate to the formation of a lawyer, without other assistance; that assistance from the partial editions of colonial laws (at least in Virginia) was extremely difficult to be obtained. Few gentlemen, even of the profession, in this country, have ever been able to boast of possessing a complete collection of its laws; the Editor confesses that his own endeavours to procure one have hitherto been ineffectual.
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