The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-02

have marked out for particular attention
the authors comparison 81 written and
unwritten constitutions and what he has
10 say about the income tax, the decision
Of the United States Supreme Court in the
insular cases, and the powers expressly
or constrictively vested in the President.
We ought. perhaps. 20 draw a distinction
between rigid" and elastic constitutions,
instead Of dividing them into written
and sunwritten." As Justice Mccain rec
ognizes. n considerable part Of the British
Constitution is. in fact. written. An eN-
ample Of a statute which II regarded "a
belonging 20 the fundamental organic
law Of England II the HaheGS Corpus act
naa-ed in 1879, which declared more fully
and precisely the duty of those holding
Deruons under commitment for criminal
offences to make prompt response to orcers
OF the Judges to show the nature OF the
authority under which the prisoner is de-
tanned in order that the lawfulness Of the
detention may he inquired into judiclauy'
There are other statutes which are con
etantly treated az belonging 20 the British
Constitution. Notable among these ~
Magma ChaTta, which received the approval
of King John in 1918 and, with slight modl-
hcations, was reapproved by many Of his
successors. Another is the Petition Of
Rights, which was addressed by Parun-
ment 20 Charles l. III 1925, and received his
approval. A third is the so-caIed BIZ OF
Rights, which regulated tho descent Of the
Crown, and also declared certain funda-
mental rights Of the people as against
the roval power. This bill was passed by
Parliament in 1889, and received the royal
assent In form these statutes are not
different from other statutes which consti-
tuts parts Of the ordinary written laws OF
England. but the nature Of their provisions
"a such that il Is customary 10 describe them
a. immutable features Of the English Con-
stitltion. On the other hand, an example
Of law which, although unwritten, is also
regarded "a a part Of the British Constitu-
ton II the principle that the King can do
no wrong and that his Minister'S or others
pretending TO act under his authority. are
themselves personally accountable for any
violation Of law, even though committed,
as a matter Of fact, in compliance with the
Kings command, When we say, there
fore, THAT the Constitution Of Great Britain
considered as a whole. is unwritten we
simply mean that it is not set forth in any
systematic and authoritative statement
although some essential features Of it are
embodied in statutes. With the exception
Of such features-it is disputed whether
. even these features should be excepted
any act Of the British Parliament supcrsedes
previously existing rules and usaRes, how
ever long established. II is settled. for
instance. 80 far as pIeoedents can settle
Il, that even the act by which the union Of
England and Scotland was brought about
IN the early years Of the eighteenth century.
and the act by which the union Of Great
Britain and Ireland was effected at the
beginning Of the nineteenth can be modi-
fed by ordinary legislation.
II Is we'll known that in the United States
the Constitution Of the Federal Government
and the Constitutions OF the various States
are formally written out, and rest upon
the will Of the people, expressed directly
through their chosen representatives, and
are regarded therefore as having a higher
authority than that Of statutes enacted by
tho Legislatures, themselves created and
existing in pursuance Of provisions Of the
Constitutions or Of executive acts author
lied by the Constitutions IL follows that
In the United States constitutional law Is
concerned with the history and interpre-
tation Of certain formal written inrtruments,
and not merely with the exposition Of gem
eral and unformulated principles OF gov
eminent. As the term Is used in this coun-
try, constitutional law takes no account OF
mere practices and usages, no matter how
generally observed but il based on the Ian
Quage Of written Constitutions, and other
wise takes cognizance only Of statutes,
treaties, executive acts and regulations and
the decisions Of courts applying the con-
stitutionGl provisions 10 specific cases. A
number Of usages, nevertheless, are cited
by Justice Mccain which have been 80
fully recognized that they might II we had
no written Constitution, be said to form
parts Of the unvritten Constitution. Such
forexample, are the usages that no President
shall be elected for more than two success
sive terms, and that Presidential Electors
shall vote for the candidate Of the party
on whose ticket they are nominated. Il
Is evident that these so-called rules do not
have the authority Of constitutional law.
No doubt the custom Of limiting the
Presidency 10 two terms for any one per-
son constitutes a strong argument against
the nomination or election Of a President
iOT lnlTu term, an AZ BuileHl WHICH, HeIe-
tofore, as in the case Of President Grant,
has proved decisive. No one would pre-
tend, however, that II such Limitation we're
ignored and a President wee nominated
and elected for a third term he would not
be lawfully President Of the United States,
and possess al the powers lodged by tho
Constitution in the Federal Executive.
No Congress or court wo-ld venture TO
say that by reason Of its violation Of a
usage the election was not valid. We are
also reminded in the book before US that
there have been emergencies, such as the
death Of a candidate for President before
the converting Of the Electoral College,