Page:Harvard Law Review Volume 2.djvu/367

Rh America at any time after the Union was perfected he would have found that the declaration that no freeman should be deprived of liberty except by the law of the land was as effectual to save the poor boatman from impressment as it could be for the protection of any other class of the people; for here the principle was not merely general in terms, but in spirit; it took in every freeman, and it protected all equally, the boatman at the dock as much as the merchant on the wharf.

Following up briefly the relative merits of written and unwritten constitutions, it will be convenient, first of all, to consider what are the requisites of a good constitution. These are easily indicated: —

I. A good constitution should be plain and certain in its principles, and as far as possible free from doubt and question. In this particular the advantage of the written instrument over the unwritten usages is too manifest for question.

II. A good constitution must be of gradual formation; it must result from the history and experiences of the people, and be the natural and deliberate expression of their thoughts, wishes, and aspirations in government. It is in this particular that the unwritten constitution is likely to be superior, for that is necessarily the growth of time. Every constitution has its antecedents, but the antecedents of the unwritten constitution are likely to lead directly and naturally up to it, while those of the written are liable to be affected by force, fraud, accident, or the misleading of the facile tongues or pens of demagogues or doctrinaires. Mr. Gladstone never uttered a more forcible truth than when he said: "No greater calamity can happen to a people than to break utterly with its past;" but this is precisely what it is likely to be urged to do when it is setting up a new constitution on a change in the form of government. But, as has been shown already, the written constitution as well as the unwritten may be a true growth; it may be framed on the plan of embodying the settled principles already evolved and manifested in the history of the people, and of crystallizing them in exact form, instead of leaving them vague and indeterminate as the unwritten constitution in a measure must do. And this was the plan worked out in the constitution of the United States; it was framed on the principle and with the purpose of preserving for America everything in the British constitution which was suited to the condition and circumstances of the new world; and there is not in all history a fundamental law which is a