the force of the instrument, and destroy it as a protective charter for individual rights, individual security, and personal liberty.

Chief Justice Marshall doubtless laid down the true rule, when he said, a "this instrument contains an enumeration of powers expressly granted by the people to their government." "We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred." In another case he said, b "the intention of the instrument must prevail; this intention must be collected from its words; and its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers."

By reasonable interpretation, is meant, by way of illustration, that in a case where words are, by reason of the imperfection of human language, susceptible of two different senses, the one strict, the other more enlarged; that should be adopted which is most consonant with the apparent objects of the constitution; that which will give it efficacy, and force as a government, rather than that which will impair its operations and render it useless; so as on the one hand to avoid obvious mischief, and on the other hand to promote the public welfare. This for the reason, that this constitution, which was founded by the people for themselves and their posterity, and for objects of the most momentous nature; for the perpetual Union; for the establishment of justice; for the general welfare; and for the perpetuation of the blessings of liberty; requires that every interpretation of its powers should have a constant reference to these objects. c

That such were its objects appears from the language of the instrument itself; and we have the extrinsic evidence in the history and spirit of its adoption, which appears from the address of its framers to the people on submitting it for their approval. They said, "In all our deliberations, we kept steadily in view that which appears to us the greatest interest of every true American-the b Ogden v. Saunders, 12 Wheat, 332

a Gibbons v. Ogden, 9 Wheat. 1. c Story on Const., § 422.

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consolidation of our Union; in which is involved our prosperity, felicity, safety, perhaps, our national existence. The constitution which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation renders indispensable." In this spirit it was adopted by the people.

It will be seen, as was remarked by Justice Story, a "that the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not impracticable task. The instrument was not intended merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to time to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."

The wisdom of the framers of this constitution and this early exposition of its true spirit and meaning, was demonstrated in the necessities of the government in the time of the recent rebellion, in the enactment by congress, on the 25th of February, 1862, of an act entitled, "An act to authorize the issue of United States notes, and for the redemption or funding thereof, and for funding the floating debt of the United States." This act authorized the secretary of the treasury to issue on the credit of the United States one hundred and fifty millions of the United States notes, and declared that the same should be receivable in payment of all taxes, internal duties, excises, debts and demands against the United States of every kind whatsoever, except for interest upon bonds and notes which shall be paid in coin, and shall also be lawful

a Martin v. Hunter, 1 Wheat. 304.

money, and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest, as aforesaid."

There is in the constitution no express grant of power to enact such a law. The two theories of construction, to which we have referred, were never brought to bear upon this great charter, with greater force of learning and power of argument at the bar or upon the bench, than upon the constitutional power of the national legislature to enact this statute. There was a crisis in the affairs of the national government. The very existence of the nation, it was believed, by those who claimed the existence of the power, depended upon this question of constitutional construction; and it may be, the fearful hazard of a different interpretation, may unwillingly have influenced, if it did not determine its decision, on the ground that such an interpretation was not only authorized by the implied powers contained in the instrument itself, but that an emergency had arisen which demanded the exercise of the power as indispensable to effectuate the great objects of the creation of the government itself. *

It is not within the scope of this work, and it is not therefore intended to argue as to the right of this question, or the effect of this statute, upon prospective or retrospective demands, but to present it, as one of the great national questions of this government, which depended entirely upon the interpretation of constitutional power. But it may be asserted here, that whenever the power has been judicially established, as an existing power, it is equally potent, if it exists by implication, as if granted in express

terms.

Mr. Justice Story was of opinion, that every form of government unavoidably includes a grant of some discretionary powers, and that it would be wholly imbecile without them; that if they could be foreseen it would be impossible ab ante to provide for them. He says, "the means must be subject to perpetual modification and change; they must be adapted to the existing manners, habits, and institutions of society which are never stationary; to the pressure of dangers or necessities; to the ends in view; to general

* Since the preparation of this chapter it has been judicially settled by the highest federal court that the power to pass such an act existed under the implied powers of the constitution.

and permanent operations, as well as to fugitive and extraordinary emergencies." "In short, (he says) if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those who administer the government; a very large mass of discretionary powers, capable of greater or less actual expansion, according to circumstances, and sufficiently flexible, not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy." a

With great diffidence, and with all our veneration for this most learned and profound commentator, we protest that we are unable to see how this doctrine can be applied to a limited constitutional government, of different co-equal departments, in which, the people have constructed the charter containing positive restrictions applicable as well to the executive department of the government, as to each and every other department. If the learned commentator means, that laws will be required to be enacted from time to time to meet the suggested emergencies, and to be remoddled in each generation to conform them to the habits and manners and institutions of society, to the advance and progress of the age; to the march of intelligence; and the development of the arts and sciences, we concur. But he is writing upon constitutional interpretation. Who then is the government, under our American system, that should be entrusted with this flexible and discretionary power to do all these things? It seems to assume that there must exist a power to control, against the restrictions of the constitution, in certain emergencies, by those who administer the government. But we are taught by the constitution itself that those who administer this government are divided into three co-ordinate departments; each of these can only act within his own limited. sphere, and they respectively, are the servants of the sovereign power, the people. There is no power above the people. There is no discretionary power, granted in the constitution, for either of these departments, nor for all of them united, to exercise a discretionary expansion and flexible power against its rigid limitations, even though such limitations were imposed by improvident jealousy. If abuse exist by reason of defects in the constitution, a Story on Const., § 425.

present or prospective, the true source of authority, the people, have the power, and doubtless, the wisdom and patriotism to correct them; and this, in the American idea, is the safe and only depository.

In a chapter on constitutional interpretation, we have deemed it a duty to call attention to this view, of this distinguished author in this particular, in order to protest not only against the error, but also against what seems to be the better and sounder views of the same author, which are found contained in another part of the same work, to which we have largely given credit.

The other extreme of these theories, that of too enlarged a construction of constitutional power; of going beyond the fair scope of its terms, or necessary implications, is equally mischievous and dangerous. Restrictions may be regarded as inconvenient, and as interfering with favorite policies, but in this respect also, the remedy lies in the power of amendment, rather than by a hazardous extention of power by construction, which would be in effect, the making of a constitution, the people have not made. Such an act of construction by a court, would be a usurpation of functions, not committed to them. "The sound principle is to declare, ita lex scripta est; to follow and to obey." a "It should be, so far at least as human infirmity will allow, not dependent upon the prejudices and excitements growing out of particular policies, nor upon the passions of parties of particular times, but the same yesterday, to day and forever." b

Another division of advocates is found upon constitutional construction, viz., such as claim to adhere to the strict letter, and such as claim that its spirit is to be regarded, as sometimes differing from its letter. But this, really, resolves itself into the same question, as that of strict and liberal interpretation. It is true, the spirit, is to be respected and taken as the sound construction, but the spirit is to be collected chiefly from the letter. No construction of a given power is to be allowed which plainly defeats or impairs its avowed objects. If words are found which are fairly susceptible of two interpretations according to their common sense and use, the one of which would defeat the objects for which the constitution was obviously made, and the other would a Story on Constitution, § 426.

b Ibid.