unwritten. Practically, this term means no more than that a portion of what is considered to belong to the constitution of the country has never been cast in the form of a statute or charter, but rests in precedent or tradition. The so-called unwritten constitution of Great Britain consists, in large measure, of acts of parliament, royal grants and charters, declarations of rights, and decisions of the courts. It also comprises certain maxims, principles, or theories of government which, though not enacted with the force of law, have always been acquiesced in by the people and acted upon by the rulers, and thus, possessing historic continuity, may be said to enter into the fundamental conception of the nature and system of the government. The differences between written and unwritten constitutions, as these terms are generally employed, are chiefly as follows: First. A written constitution sums up in one instrument the whole of what is considered to belong to the constitution of the state; whereas, in the case of an unwritten constitution, its various parts are to be sought in diverse connections, and are partly statutory and partly customary. Second. A written constitution is either granted by the ruler or ordained by the people at one and the same time; while an unwritten constitution is gradually developed, and is contributed to not only by the executive and legislative branches of government, but also by the courts, and by the recognition, by rulers and people, of usages and theories gradually acquiring the force of law. Third. A written constitution is a creation or product, while an unwritten constitution is a growth. The one may be influenced, in its essentials, by history, but is newly made and set forth. The other is not only defined by history, but, in a measure, is history. Fourth. A written constitution, in its letter, if not in its spirit, is incapable of further growth or expansion. It is fixed and final. An unwritten constitution, on the other hand, will expand and develop, of itself, to meet new exigencies or changing conditions of public opinion or political theory. Fifth. A written constitution, at least in a free country, is a supreme and paramount law, which all must obey, and to which all statutes, all institutions, and all governmental activities must bend, and which cannot be abrogated except by the people who created it. An unwritten constitution may be altered or abolished, at any time or in any of its details, by the lawmaking power.

Contents of Written Constitutions.

As to the contents of a written constitution, the lines of definition are not very clear. It is by no means easy to say, as a matter of abstract theory, what such an instrument must contain in order to be a complete constitution, or what kinds of provisions are essential to it, and what foreign or superfluous. So far as regards a constitution for one of the United States, if it established a representative government, republican in form, provided for the three necessary departments of government, fixed rules for the election and organization of the legislative department and the executive offices, defined and guarantied political rights, and secured the liberty of the individual in those particulars which are generally esteemed fundamental, it would probably be sufficient. On the other hand, there

is practically no limit to the subjects or provisions which may be incorporated in the constitution. It might, for example, be made to include a code of civil or criminal procedure. The question in every case is how much the framers of the particular constitution are willing to leave to the legislative discretion, and what matters they desire to put beyond the reach of the legislature, in respect to their change or abolition. Whatever is enacted in the form of law by a legislature may be repealed by the same or a succeeding legislature. But what is incorporated in a constitution can be repealed only by the people. And the people, sitting in a constitutional convention, may put into their constitution any law, whether or not it has relation to the organization of the state, the limitation of governmental powers, or the freedom of the citizen, which they deem so important as to make it desirable that it should not be easily or hastily repealed. Of late years there is a very noticeable tendency towards longer and more elaborate constitutions, and towards the incorporation into them of many matters which properly have no relation to the idea of a fundamental organic act, but are intended as limitations upon legislative power. This disposition probably arises from a growing distrust of the wisdom and public spirit of the state legislatures, and also from a desire of the people to make their constitutions the means of bringing about reforms which a majority of them consider desirable, and are unwilling to trust to the slower and less certain action of the legisla ture.

CONSTITUTIONS NOT THE SOURCE OF RIGHTS.

6. The constitutions of the American states are grants of power to those charged with the government, but not grants of freedom to the people. They define and guaranty private rights, but do not create them.

In

The state constitutions in this country grant and limit the powers
of the several departments of government, but, generally speaking,
they are not to be considered as the origin of liberty or rights.
a later chapter, when we come to consider the nature of liberty and
of natural, civil, and political rights, it will be shown that some per-
sonal rights are taken up into the sphere of law and obtain effective
recognition only by the constitution, and that certain political rights
are directly created by that instrument. But with more particular
reference to the rights called "natural," it must now be remarked
that they exist before constitutions and independently of them. Con-
stitutions enumerate such rights and provide against their depriva-
tion or infringement, but do not create them. It is supposed that
all power, all rights, and all authority are vested in the people be
fore they form or adopt a constitution. By such an instrument, they
limit the powers which its

create a government, and define and
agencies are to exercise, and they also specify the rights which the
constitution is to secure and the government respect. But they do
not thereby invest the citizens of the commonwealth with any nat-
ural rights which they did not before possess. This is shown by the
provision found in the constitutions of many of the states that the
enumeration, in the bill of rights, of particular rights or privileges
shall not be construed to impair or derogate from others retained
by the people.

Sources of American Constitutional Law.

The system of government established by the constitution of the United States has no exact historical precedent. It was, in a sense, a creation and an experiment. But the framers of the constitu tion, though without a model for the whole structure, were guided, in respect to many details, by the experience and wisdom of other countries. To a very considerable degree, their action was determined by theories and ideas inherited from the mother country;

1

and our constitution owes many of its provisions to that of Great Britain, as the latter then stood. Thus, the idea of a representative government, instead of a direct democracy, the principle of majority rule, the necessity of separating the three departments of government, the bicameral system in legislation, the doctrine of local self-government, and the balancing of centrifugal and centripetal forces, all these principles, and more, were incorporated into our constitution as a matter of course and because they were essential parts of the Anglo-American idea of government. Some further ideas were borrowed by the framers of the constitution from the constitutions then existing in several of the states, and some, it is probable, from ancient history. Many provisions of the constitution, as is well known, were no more than compromises, necessary to be made in order to secure a sufficient adherence to make its ratification by the states probable. Almost without exception, the great guaranties which secure the natural, civil. and political rights of the citizen, and protect him against tyranny or oppression, were derived from the great charters and legislative enactments of Great Britain which had become a fixed part of her constitution, or from the cominon law, which the Americans claimed as their natural heritage and shield. Among these rights we

The prohibition against "laws impairing the obligation of contracts" does not appear to have been derived from any known source. Its origin is certainly not to be found in the common law or any British statute. It was devised by the framers of the constitution as a means of securing the inviolability of private contracts against legislative interference, and was considered necessary in view of certain circumstances in the financial and political history of the times. Black, Const. Prohib. §§ 2, 3. As to religious freedom and the liberty of the press, these important rights cannot be said to have attained in England, at the time of the formation of our constitution, such a degree of security as they have since won. But the need of making secure provision for them was undoubtedly suggested to the founders of our government by the struggles which were even then going on in the mother country; and they es tablished, at once and for the whole United States, such a fullness of freedom, in these particulars, as the English people have as yet scarcely worked out for themselves.

"The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it which was applicable to their situation. The whole structure of our present jurisprudence

unwritten. Practically, this term means no more than that a portion of what is considered to belong to the constitution of the country has never been cast in the form of a statute or charter, but rests in precedent or tradition. The so-called The so-called unwritten constitution of Great Britain consists, in large measure, of acts of parliament, royal grants and charters, declarations of rights, and decisions of the courts. It also comprises certain maxims, principles, or theories of government which, though not enacted with the force of law, have always been acquiesced in by the people and acted upon by the rulers, and thus, possessing historic continuity, may be said to enter into the fundamental conception of the nature and system of the government. The differences between written and unwritten constitutions, as these terms are generally employed, are chiefly as follows: First. A written constitution sums up in one instrument the whole of what is considered to belong to the constitution of the state; whereas, in the case of an unwritten constitution, its various parts are to be sought in diverse connections, and are partly statutory and partly customary. Second. A written constitution is either granted by the ruler or ordained by the people at one and the same time; while an unwritten constitution is gradually developed, and is contributed to not only by the executive and legislative branches of government, but also by the courts, and by the recognition, by rulers and people, of usages and theories gradually acquiring the force of law. Third. A written constitution is a creation or product, while an unwritten constitution is a growth. The one may be influenced, in its essentials, by history, but is newly made and set forth. The other is not only defined by history, but, in a measure, is history. Fourth. A written constitution, in its letter, if not in its spirit, is incapable of further growth or expansion. It is fixed and final. An unwritten constitution, on the other hand, will expand and develop, of itself, to meet new exigencies or changing conditions of public opinion or political theory. Fifth. A written constitution, at least in a free country, is a supreme and paramount law, which all must obey, and to which all statutes, all institutions, and all governmental activities must bend, and which cannot be abrogated except by the people who created it. An unwritten constitution may be altered or abolished, at any time or in any of its details, by the lawmaking

power.