laxity of application, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature,not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to per- . petual 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 and permanent operations, as well as to fugitive and extraordinary emergencies. In short, 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. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed some where; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; and ultimately in the sovereign power of change belonging to them, in cases requiring ex

traordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the permanent oppression of the people. And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country.

§ 193. VII. On the other hand, a rule of equal importance is, not to enlarge the construction of a given 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.

$194. 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 latter 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. 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.”

§ 195. 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.

§ 196. X. In the interpretation of a power, all the ordinary and appropriate means to execute it are to be 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. 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 pre-sup། poses 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.

§ 197. XI. And this leads us to remark, in the next place, that in the interpretation of the constitution there

is no solid objection to implied powers.

Had the fac

ulties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate. There is no phrase in it, which, like the articles of confederation, excludes incidental and implied powers, and which requires, that every thing granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word "expressly," (which was contained in the articles of confederation,) and declares only, that "the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments A constitution, to contain an accurate detail of all the subdivisions, of which its great powers will admit, and of all the means, by which these may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.