The Writings of Thomas Jefferson, Vol. 5 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and PrivateJefferson, Thomas
History
The Writings of Thomas Jefferson, Vol. 5 (of 9): Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private
Jefferson, Thomas
United States -- Politics and government -- 1775-1783; United States -- Politics and government -- 1783-1865
In the construction of a law, even in judiciary cases of _meum et tuum_,
where the opposite parties have a right and counter-right in the very
words of the law, the Judge considers the intention of the law-giver as
his true guide, and gives to all the parts and expressions of the law,
that meaning which will effect, instead of defeating, its intention.
But in laws merely executive, where no private right stands in the way,
and the public object is the interest of all, a much freer scope of
construction, in favor of the intention of the law, ought to be taken, and
ingenuity ever should be exercised in devising constructions, which may
save to the public the benefit of the law. Its intention is the important
thing: the means of attaining it quite subordinate. It often happens
that, the Legislature prescribing details of execution, some circumstance
arises, unforeseen or unattended to by them, which would totally frustrate
their intention, were their details scrupulously adhered to, and deemed
exclusive of all others. But constructions must not be favored which go
to defeat instead of furthering the principal object of their law, and
to sacrifice the end to the means. It being as evidently their intention
that the end shall be attained as that it should be effected by any given
means, if both cannot be observed, we are equally free to deviate from the
one as the other, and more rational in postponing the means to the end.
In the present case, the object of the act of Congress was to relieve the
militia at large from the necessity of leaving their farms and families,
to encounter a service very repugnant to their habits, and to permit
that service to be assumed by others ardently desiring it. Both parties,
therefore, (and they comprehend the whole nation,) would willingly waive
any verbal difficulties, or circumstances of detail, which might thwart
their mutual desires, and would approve all those views of the subject
which facilitate the attainment of their wishes.
It is further to be considered that the Constitution gives the executive
a general power to carry the laws into execution. If the present law
had enacted that the service of thirty thousand volunteers should be
accepted, without saying anything of the means, those means would, by
the Constitution, have resulted to the discretion of the executive.
So if means specified by an act are impracticable, the constitutional
power remains, and supplies them. Often the means provided specially
are affirmative merely, and, with the constitutional powers, stand well
together; so that either may be used, or the one supplementary to the
other. This aptitude of means to the end of a law is essentially necessary
for those which are executive; otherwise the objection that our government
is an impracticable one, would really be verified.
With this general view of our duty as executive officers, I proceed to the
questions proposed by you.
Public-domain text, read in full here on John Shaqi.
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