power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice, than mere policy and convenience. Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or the policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and for ever.

1 See United States v. Fisher, 2 Cranch, 358; S. C. Peters's Cond. R. 421.

§ 427. It has been observed with great correctness, that although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from the letter. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.1 This language has reference to a case where the words of a constitutional provision are sought to be restricted. But it appears with equal force where they are sought to be enlarged.

§ 428. VIII. No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the lat

1 Sturgis v. Crowninshield, 4 Wheat. R. 122, 202.

ter be held the true interpretation. This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat. For instance, the constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connexion. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself. The true doctrine has been expressed by the Supreme Court: "If from the imperfection of human language there should be any serious doubts respecting the extent of any given power, the objects, for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction." 3

§ 429. IX. Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally. That was the doctrine of Mr. Chief Justice Jay, in Chisholm v. Georgia; and it is generally adopted in the interpretation of laws." But this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms.

§ 430. X. In the interpretation of a power, all the ordinary and appropriate means to execute it are to be

1 See Bacon's Abridg. Statute I; Vattel, B. 2, ch. 17, § 277 to 285, 299 to 302.

2 See Bas v. Tingey, 4 Dall. R. 37; S. C. 1 Peters's Cond. R. 221.

3 Gibbons v. Ogden, 9 Wheat. R. 1, 188, 189.

4 2 Dall. R. 419; S. C. 2 Cond. R. 635, 652.

5 Bacon's Abridg. Statute I. 8.

deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.1 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.2

1 The Federalist, No. 44.

2 The reasoning of Mr. Chief Justice Marshall on this subject, in MCulloch v. Maryland, (4 Wheat. 316,) is so cogent and satisfactory, that we shall venture to cite it at large. After having remarked, that words have various senses, and that what is the true construction of any used in the constitution must depend upon the subject, the context, and the intentions of the people, to be gathered from the instrument, he proceeds thus:

"The subject is the execution of those great powers, on which the welfare of a nation essentially depends. It must have been the intention of those, who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits, as not to leave it in the power of congress to adopt any, which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means, by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies, which, if foreseen at all, must have been seen dimly, and which can be best provided for, as they occur. To have declared, that the best means shall not be used, but

§ 431. Besides; if the power only is given, without pointing out the means, how are we to ascertain, that any one means, rather than another, is exclusively within its scope? The same course of reasoning, which

those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation, that we shall be compelled to discard it. The powers vested in congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected ; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility, as other incidental powers have been assailed, that the convention was not unmindful of this subject. The oath, which might be exacted that of fidelity to the constitution is prescribed, and no other can be required. Yet, he would be charged with insanity, who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office, as its wisdom might suggest.

"So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered 'to provide for the punishment of counterfeiting the securities and current coin of the United States,' and 'to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.' The several powers of congress may exist, in a very imperfect state to be sure, but they may exist, and be carried into exccution, although no punishment should be inflicted in cases, where the right to punish is not expressly given.

"Take, for example, the power to establish post offices and post roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power, and duty of carrying the mail along the post road, from one post office to another. And, from this implied power has again been inferred the right to punish those, who steal letters from the post office, or rob the mail. It may be