Page:Harvard Law Review Volume 2.djvu/363

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


WRITTEN AND PRESCRIPTIVE CONSTITUTIONS.

345

constitutions rested altogether in immemorial usage, and were for that reason necessarily somewhat vague and indeterminate. This was the general truth. The constitution of England was excep- tional in its completeness, and also in the fact that its leading principles had from time to time been formulated and expressed in public charters. Nevertheless it still remained an unwritten constitution ; its principles evidenced chiefly by usage. No one or two or any number of charters could be pointed to as forming alone or collectively the entire constitution of the realm. The fact that the constitution of England has been so beneficent, and that it has answered so well the needs of a liberty-loving people, has often suggested the question of the relative merits of written and unwritten constitutions. To us, as Americans, such a question has only a speculative interest. The people of the United States had no choice as between these two methods of expressing the funda- mental law ; a written constitution was for them a necessity of the situation. This is manifest from the fact that they were creating a government, and had to agree upon what should be its depart- ments and its officers. When this was agreed upon there were no such immemorial usages determining what powers should be exer- cised by the one or by the other as existed in other countries, and a definition and limitation of powers were therefore essential. In short, the whole machinery of government required a written expression ; since in this way alone could the powers of those who should have authority under it be defined, and the duties and obligations of citizens be determined. Necessity thus compelling a written constitution, the question of comparative advantages of the written and the unwritten could not possibly be to them one of practical interest. To the student of politics, however, such a question must always have importance, whether it be abstractly considered, or, on the other hand, be examined in the light of illustrative instances. And for the purposes of illustration history presents no other instances which are comparable in value to those of the constitutions of England and of the United States. These two easily rank first in importance because of their strength, their age, their completeness, their hold upon the regard of the people, the great measure of liberty they secure, and the ease with which they admit of safe improvement. This fact of supremacy is so far recognized that all other nations when they enter upon the duty of perfecting cmstitutional forms, or enlarging constitutional