4483. LAW, Construing.—[further continued] .
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 lawgiver
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 the 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 the 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. * * * 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 30,000 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.—
To W. H. Cabell. Washington ed. v, 158.
Ford ed., ix, 94.
(M.
Aug. 1807)
