Page:Harvard Law Review Volume 2.djvu/402

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

384 ^^^ VARD LAW RB VIE W.

courts to the Constitution, as established by the plan of the Convention of 1787, is "simple, useful, and conformable to general legal principles/' and that although "it is, in the original sense of the word, an elegant plan," yet " it is not novel. It was at work in the States before the Con- vention of 1787 met It was at work in the thirteen colonies before they revolted from England. It is an application of old and &miliar doctrines. Such novelty as there is belongs to the scheme of a Supreme or Rigid Constitution, reserving the ultimate power to the people, and limiting in the same measure the power of the Legislature. ^

In short, instead of claiming that the framers of the Constitution were creative theorists of wondrous power, we must give them the juster, and perhaps greater praise, of being endowed with that supreme and uncommon sense that enables men to wisely utilize the experience of the past in building for the future. We can fitly apply to their work in the creation of our judiciary system the praise given them by James Russell Lowell: "They had a profound disbelief in theory and new forms, and knew better than to commit the folly of breaking with the past. They were not seduced by the French fisdiacy that a new system of government could be ordered like a new suit of clothes. They would as soon have thought of ordering a new suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of their thought and experience as they were meditating." *

Apropos of Judge Cooley's address upon the subject of Written Constitutions, published in this number of the Review, is the fact that the 14th of last January was the two hundred and fiftieth anni- versary of the adoption of the first constitution of what is now the State of Coimecticut. This document, called "Fundamental Orders," adopted at Hartford in 1639, enjoys the honor, it is said, of being the first written constitution, in the modem sense of that phrase, known to the world. That is to say, it is said to be the first document adopted by the citizens of a political community, containing permanent limitations upon the powers of the government which it created.

The preamble to this interesting document recites that "we the In- habitants and Residents of Windsor, Harleford, and Wethersfield . . . now cohabiting and dwelling in and upon the River of Conectcotte and the Lands thereunto adioyneing . . . doe . . . assotiate and coniogne ourselues to be as one Publike State or Comenwelth ; and doe, for ourselues and our successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and p'searue the liberty and purity of the gospell of our Lord Jesus w** we now p'fesse, as also the disciplyne of the Churches, w** according to the truth of the said gospell is now practiced amongst us; As also in o' Ciuell Affaires to be guided and gouemed according to such Lawes, Rules, Orders and decrees as shall be made, ordered & decreed, as foUoweth."'

The recent English case of Cann v. Willson^ 39 Ch. D. 39, digested in the present number of the Review, decides that a man who caxe-

> Bryce's Amer. Com., vol. i., p. aco.

s Lowell, Democracy and oUier Addresses, p. 33, cited in Bryce's Amer. Com., vol. i., p. 31, note.

  • Poore's Charters and Constitutions, 249. AJlso reprinted in series of** Old South Leaflets,"

together with the ** Fundamental Agreement " of New Haven.