Page:Cambridge Modern History Volume 7.djvu/767

-1900] Legislation and unwritten law. 735 At best, a written constitution has proved only a tolerably articulated skeleton ; the living flesh of law with which it must be clothed, in order to possess vital force, has sprung, like the common law itself, from the judiciary. Therefore, paradoxically enough, the written constitutions of the United States have actually tended rather to strengthen than to weaken the force which throughout the constitutional history of England and her descendants has resided in unwritten law. In the second place, the complexity of legislation in the United States has been hitherto unprecedented. Under the British system Parliament has tended to become more and more a sovereign power ; and, at least in the British Isles, subordinate legislative bodies city corporations, town councils, and the like have been analogous rather to bodies assembled for the transaction of private business than to so august a body as the House of Commons. In the United States there is, to begin with, the Federal Congress; next, each State and there are now some fifty of them has a legislature, virtually a separate parlia- ment, of its own ; and finally, almost every town which has reached the dignity of a city charter has been subject to a legislative body usually in two separate assemblies which has generally tended toward parlia- mentary, rather than civic, views of its functions. This state of affairs has combined with the somewhat superstitious confidence of Americans in legal forms, to cover the face of the continent with an intricate network of often conflicting statute law, varying in force from Acts of Congress to resolutions of aldermanic Boards. If a hasty glance at the superficial simplicity of American constitutions might lead a stranger to undue confidence in the virtues of constitutional codification, a hasty glance at the incredible confusion of American legislation might equally mislead him into a belief that any country thus fettered must be virtually paralysed. The actual solution of the difficulty has hitherto been found, just as has been the case with constitutions, in the system under which the interpretation of statutes is confided to the Courts. Whatever the shortcomings of these bodies, they have usually been animated by a conviction that their duty is to keep the machinery of society in working order. If the wording of carelessly drawn, preposterous, or conflicting statutes can be stretched into practical consistency, the Courts may usually be trusted so to stretch it. If statutes prove utterly unpracticable, the Courts will commonly make this fact so clear as to induce repeal or amendment. In brief, what has saved America from the benumbing result of excessive legislation has again been the swift and luxuriant overgrowth of unwritten law. Regarded from the philosophical, or scientific, or even from the technical point of view, this rapidly developed law of America is often far from sound. There have, indeed, been remarkable exceptions to this generalisation. Lemuel Shaw, for example, who was Chief Justice of Massachusetts towards the middle of the nineteenth century, has been CH. XXIII.