enormous force of united public opinion is needed to ensure the concurrence of two-thirds of both Houses of Congress and three-fourths of the States. The first of these two changes excites no sufficient interest among politicians to make them care to deal with it. The second is neglected, because no one has a clear view of what should be substituted, and neither party feels that it has more to gain than has the other by grappling with the problem.

A historical comparison of the two types as regards the smoothness of their working, and the consequent tendency of one or other to secure a quiet life to the State, yields few profitable results, because the circumstances of different nations are too dissimilar to enable close parallels to be drawn, and because much depends upon the skill with which the provisions of each particular instrument have been drawn and upon the greater or less particularity of those provisions. The present Constitution of France, for instance, is contained in two very short and simple documents, which determine only the general structure of the government, and are in size not onetwentieth of the Federal Constitution of Switzerland. Hence it follows that a far freer play is left to the legislature and executive in France than in Switzerland; and that these two authorities have in the former State more power of meeting any change in the conditions of the country, and also more power of doing harm by hasty and unwise action, than is permitted in the latter. As Adaptability is the characteristic merit and insecurity the characteristic defect of a Flexible Constitution, so the drawback which corresponds to the Durability of

the Rigid is its smaller capacity for meeting the changes and chances of economic, social and political conditions. A provision strictly defining the structure of the government may prevent the evolution of a needed organ. A prohibition debarring the legislature from passing certain kinds of measures may prove unfortunate when a measure of that kind would be the proper remedy. Every security has its corresponding disadvantage.

XIII. THE INTERPRETATION OF RIGID CONSTITUTIONS.

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 impossible, 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 prescribes. 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 terms 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