Page:Popular Science Monthly Volume 23.djvu/279
WRITTEN AND UNWRITTEN CONSTITUTIONS.
A PERUSAL of your article in the March number of "The Popular Science Monthly," entitled "Law against Right," left an unpleasant impression on my mind, occasioned by the depreciatory criticisms upon lawyers with which it abounds. I am the more surprised at this, as, during many years' attentive reading of the "Science Monthly" I have had occasion to note the fairness and general freedom from invective which pervade your method of dealing with all questions discussed. It is not my purpose to express any opinion upon the merits or demerits of the law of copyright as it exists either in this country or in England, the subject which seems to have inspired your article. I only desire to say a word in behalf of lawyers as a professional class, and to express the opinion (and I say it after an active practice of nearly forty years in several different States, and some travel and observation abroad) that the lawyers in this country, under written constitutions, are no more given to "quibbles, devices, and sharp interpretations of law," than those of other countries.
While lawyers are responsible for the manner of presenting their clients' cases in court, judges for a proper interpretation of the laws, and jurors for such an application of the law to the facts of the case as will result in a rightful verdict, neither are directly responsible for the condition of the law itself, but must take it and apply it as they find it. Right here comes in the difficulty as to written as compared with unwritten constitutions of which you complain. It is no doubt true that in this country judges are bound by the fundamental written law, but they are not bound to sacrifice its main underlying purpose upon a given subject to the mere letter. The principle is as firmly rooted in our jurisprudence as in that of any country, that the mere technical letter of the text must give way to the clear purpose of the ordinance or law as gathered from a reasonable interpretation of the whole of the law bearing upon the particular subject; but where the meaning is clearly apparent it must prevail: if it is right, there is no ground for complaint; if wrong, the people here constitute the only tribunal to correct the error, and they alone should be held responsible for any resulting injustice, and not the lawyers or judges who are bound by their oaths to apply the law as they find it. The great body of the law is, of course, both here and in England, statutory; as to this the distinction as to written and unwritten law does not exist, and I hazard the opinion that as to this the administration of justice in England is not more elastic or less technical than here.
The main drift of your article tends to the point that unwritten constitutions provide a more ready means of attaining the ends of justice than written constitutions. The latter may afford some temporary advantages, but upon the whole I think the view you present is erroneous.
The science of law has had its conflicts with ignorance, prejudice, and false ethics, like most other departments of human thought, and I think it has made some progress, and quite as much progress in America as in Europe. The substitution of written for unwritten constitutions may be attended with some temporary evils and delays of justice, but upon the whole it can not be denied that they furnish more effectual barriers against the encroachments of arbitrary power upon the liberties of the people than mere traditional precedents which may be swept away under the spur of popular clamor, or set aside under the pressure of a ministerial or administrative crisis. The fundamental law should be in such condition that it will resist the pressure when the greatest strain comes upon it, for it is then that it is especially wanted. When the ship of state is sailing under clear skies and over smooth seas it matters little whether there is any constitution, written or unwritten; but when the stress does come, and either people or ruler wants to break down the barriers which the lessons of history and human experience have set up in the form of a constitution, it is then of supreme importance that the restraining power of the fundamental law should be an iron hand and not an elastic gutta-percha string, to be stretched at pleasure. Now, which is most likely to effect this purpose, the written letter, from the meaning of which there is no escape, or those traditional precedents which go under the name of unwritten constitutions, and which the ingenuity of man can readily torture into a construction favorable to the purpose of temporary usurpation?
The tendency of the times is to favor not only written constitutions but the codification of law, remedial and otherwise. The great body of the common law, as we all know, is not the work of Legislatures but the creation of judges, which has long obtained in this country, and upon the su-