CORRESP ONDENCE. 



267 



CORRESPONDENCE. 



WRITTEN AND UNWRITTEN CONSTITU- 

 TIONS. 



Messrs. Eflitors : 



A PERUSAL of your article in the 

 March number of " The Popular Sci- 

 ence 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 Englaud, the subject which seems to 

 have inspired your article. I only desire to 

 say a word in behalf of lawyers as a pro- 

 fessional 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 writ- 

 ten 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 di- 

 rectly responsible for the condition of the 

 law itself, but must take it and apply it as 

 they find it. Right here comes in the diffi- 

 culty as to written as compared with un- 

 written constitutions of which you complain. 

 It is no doubt true that in this country 

 judges are bound by the fundamental writ- 

 ten 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 tech- 

 nical 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 Eng- 

 land, 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 pro- 

 vide a more ready means of attaining the 

 ends of justice than written constitutions. 

 The latter may afford some temporary ad- 

 vantages, 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 effect- 

 ual 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 press- 

 ure 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 les- 

 sons of history and human experience have 

 set up in the form of a constitution, it is 

 then of supreme importance that the re- 

 straining power of the fundamental law 

 should be an iron hand and not an elastic 

 gutta-percha string, to be stretched at pleas- 

 ure. 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 tor- 

 ture into a construction favorable to the 

 purpose of temporary usurpation ? 



The tendency of the times is to favor 

 not only written constitutions but the codi- 

 fication 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- 



