Page:Cambridge Modern History Volume 7.djvu/766

734 Influence of the Courts on American law. [me- where by the practical jurisdiction of Courts which believed themselves to be administering either the common law or in the case of regions originally colonies of France or of Spain some other recognised branch of the law of Europe. In fact, however, these Courts have constantly been called on to sanction or to establish new customs such as were demanded by the frequently unprecedented conditions of the societies which they attempted to organise. In seventeenth century New England, for example, there arose an unwritten and almost unrecorded law con- cerning meeting-houses, the proprietors of which were sometimes a body distinct from either the Churches which assembled therein or the parishes which the church-meetings governed. In the mining regions of the Pacific slope, within the past fifty years, the staking of claims originally almost a matter of brute force gave rise to a department of law, now, like the staking itself, mostly obsolete, which was almost as fixed as that which governs English rights of way. And the same development may be traced elsewhere. It is a happy legal notion, honestly believed by most Americans from the beginning to this day, that no question can arise which the law does not cover. Accordingly, when new questions have arisen, the law has presently been so stretched as to cover them, or at least as to maintain the semblance of justice and of order. The legal development that we have traced is familiar enough to students of English Constitutional History. So, in its fundamental nature, is the practice, which has everywhere accompanied it, of correct- ing the errors and supplying the deficiencies of customary law by legis- lation. In various ways, however, the legislative system of America has differed more than is usually perceived from the parliamentary practices on which it was based. In the first place, every State in the Union, like the Union itself, has had, from the beginning, a written constitution; and this has theoretically limited, to a degree unknown in England, the powers of all branches of the government legislative, executive, and judicial alike. Constitutions, however, no matter how carefully written, require interpre- tation. Speaking generally, the interpretation of American constitutions has been confided to the Courts established under them; and, on the whole, these Courts have discharged their interpretative duties in the same spirit which has animated their administration of unwritten law. They have found themselves confronted with questions which had to be solved practically ; their business has been to declare how to apply the rules of a system, whose general efficiency has been assumed in the terms of the problems presented to them. Their prime duty, from the beginning, has been to establish and to maintain social order, and to avert anarchy. From this they have rarely shrunk. The natural consequence has been that no American constitution exists in so pristine a condition as to warrant the assumption that any clause in it is comprehensible, until one has painfully ascertained exactly how that clause has been interpreted.