ish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is, indeed, essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crime of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.

If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential," "conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment?

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We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that dis

cretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but are consistent with the letter and spirit of the constitution, are constitutional.


In the following selection Mr. James Bryce points out clearly both the danger and the necessity of the judicial process of amendment as well as the practices of several other countries in this particular:

A well-drawn Rigid Constitution will confine itself to essentials, and leave many details to be filled in subsequently by ordinary legislation and by usage. But (as already observed) even the best-drawn instrument is sure to have omitted some things which ought to have been expressly provided for, to have imposed restrictions which will prove inconvenient in practice, to contain provisions which turn out to be susceptible of different interpretations when cases occur raising a point to which the words of those provisions do not seem to be directly addressed. When any of these things happen, the authorities, legislative and executive, who have to work the Constitution find themselves in a difficulty. Steps seem called for which the Constitution either does not give power to do, or forbids to be done, or leaves in such doubt as to raise scruples and controversies. The authorities, or the nation itself, have then three alternative courses open to them. The first is to submit to the restrictions which the Constitution imposes, and abandon a contemplated course of action, though the public interest demands it. This is disagreeable, but if the case is not urgent, may be the best course, though it tends to the disparagement of the Constitution itself. The second course is to amend the Constitution; and it is obviously the proper one, if it be possible. But it may be practically im

possible, because the procedure for passing an amendment may be too slow, the need for action being urgent or because the majority that can be secured for amendment, even if large, may be smaller than the Constitution prescribed. The only remaining expedient is that which is euphemistically called Extensive Interpretation, but may really amount to Evasion. Evasion, pernicious as it is, may give a slighter shock to public confidence than open violation, as some have argued that equivocation leaves a man's conscience less impaired for future use than does the telling of a downright falsehood. Cases occur in which the Executive or the Legislature profess to be acting under the Constitution, when in reality they are stretching it, or twisting it, i. e., are putting a forced construction upon its terms, and affecting to treat that as being lawful under its term which the natural sense of the terms does not justify. The question follows whether such an evasion will be held legal, i. e., whether acts done in virtue of such a forced construction as aforesaid will be deemed constitutional, and will bind the citizens as being legally done. This will evidently depend on a matter we have not yet considered, but one of profound importance, viz.: the authority in whom is lodged the right of interpreting a Rigid Constitution.

On this point there is a remarkable diversity of theory and practice between countries which follow the English and countries which follow the Roman law. The English attribute the right to the Judiciary. As a constitutional instrument is a law, distinguished from other laws only by its higher rank, principle suggests that it should, like other laws, be interpreted by the legal tribunals, the last word resting, as in other matters, with the final Court of Appeal. This principle of referring to the courts all questions of legal interpretation may be said to be inherent in the English Common Law, and holds the field in all countries whose systems are built upon the foundation of that Common Law. In particular, it holds good in the United Kingdom and in the United States. As the British Parliament can alter any part of the British Constitution at pleasure, the principle is of secondary political

importance in England, for when any really grave question arises on the construction of a constitutional law it is dealt with by legislation. However, the action of the courts in construing the existing law is watched with the keenest interest when questions arise which the Legislature refuses to deal with, such, for instance, as those that affect the doctrine and discipline of the Established Church. So in the seventeenth century, when constitutional questions were at issue between the King and the House of Commons, which it was impossible to settle by statute, because the King would have refused consent to bills passed by the Commons, the power of the Judges to declare the rules of the ancient Constitution was of great significance. In the United States, where Congress cannot alter the Constitution, the function of the Judiciary to interpret the will of the people as set forth in the Constitution has attained its highest development. The framers of that Constitution perhaps scarcely realized what the effect of their arrangements would be. More than ten years passed before any case raised the point; and when the Supreme Court declared that an Act of Congress might be invalid because in excess of the power granted by the Constitution, some surprise and more anger were expressed. The reasoning on which the Court proceeded was, however, plainly sound, and the right was therefore soon admitted. Canada and Australia have followed the English doctrine, so the Bench has a weighty function under the constitutions of both those Federations.

On the European Continent a different view prevails, and the Legislature is held to be the judge of its own powers under the Constitution, so that no court of law may question the authority of a statute passed in due form. Such is the rule in Switzerland. There, as in most parts of the European Continent, the separation of the Judiciary from the other two powers has been less complete than in England, and the deference to what Englishmen and Americans call the Rule of Law less profound. The control over governmental action which the right of interpretation implies seems to the Swiss too great, and too political in its nature, to be fit for a legal tribunal. It

is therefore vested in the National Assembly, which when a question is raised as to the constitutionality of a Federal Statute or Executive Act, or as to the transgression of the Federal Constitution by a Cantonal Statute, is recognized as the authority competent to decide. The same doctrine seems to prevail in the German Empire, though the point is there not quite free from doubt, and also in the Austrian Monarchy, in France, and in Belgium. In the Orange Free State, living under Roman-Dutch law, the Bench, basing itself on American precedents, claimed the right of authoritative interpretation, but the Legislature hesitated to admit it.

American lawyers conceive that the strength and value of a Rigid Constitution are greatly reduced when the Legislature becomes the judge of its own powers, entitled after passing a statute which really transgresses the Constitution to declare that the Constitution has in fact not been transgressed. The Swiss, however, deem the disadvantages of the American method still more serious, for they hold that it gives the last word to the judges, persons not chosen for or fitted for such a function, and they declare that in point of fact public opinion and the traditions of their government prevent the power vested in their National Assembly from being abused. And it must be added that the Americans have so far felt the difficulty which the Swiss dwell on, that the Supreme Court has refused to pronounce upon the action of Congress in "purely political cases," i. e., cases where the arguments used to prove or disprove the conformity to the Constitution of the action taken by Congress are of a political nature.

Returning to the question of legislative action alleged to transgress the Constitution it is plain that if the Legislature be, as in Switzerland, the arbiter of its own powers, so that the validity of its acts cannot be questioned in a court of law, there is no further difficulty. But where that validity can be challenged, as in the United States, it might be supposed that every unconstitutional statute will be held null, and that thus any such stretching or twisting of the Constitution as has been referred to will be arrested. But experience has shown that

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