other clause which enumerates certain powers which might otherwise be deemed implied powers within its scope; for in such cases we are not, as a matter of course, to assume that the affirmative specification excludes all other implications. This rule has been put in a clear and just light by one of our most distinguished statesmen, and his illustration will be more satisfactory, perhaps, than any other which can be offered. "The Constitution," says he, "vests in Congress expressly the power to lay and collect taxes, duties, imposts, and excises, and the power to regulate trade. That the former power, if not particularly expressed, would have been included in the latter as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the Constitution. Thus the power to define and punish offences against the law of nations' includes the power, afterwards particularly expressed, 'to make rules concerning captures,' &c., from offending neutrals. So, also, a power 'to coin money' would doubtless include that of 'regulating its value,' had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included 'duties, imposts, and excises.' In another clause it is said, 'no tax or duty shall be laid on exports,' &c. Here the two terms are used as synonymous. And in another clause, where it is said 'no State shall lay any imposts or duties,' &c., the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning (always to be expounded with reference to the context, and under the control of the general character and manifest scope of the instrument in which they are found), are to be ascribed, sometimes to the purpose of greater caution, sometimes to the imperfections of language, and sometimes to the imperfection of man himself. In this view of the subject it was quite natural, however certainly the power to regulate trade might include a power to impose duties on it, not to omit it, in a clause enumerating the several modes of revenue authorized by the Constitution. In few cases could the [rule] ex majori cautela occur with more claim to respect.”1

§ 450. We may close this view of some of the more important 1 Mr. Madison's Letter to Mr. Cabell, 18th September, 1828.

rules to be employed in the interpretation of the Constitution by adverting to a few belonging to mere verbal criticism, which are indeed but corollaries from what has been said, and have been already alluded to, but which, at the same time, it may be of some use again distinctly to enunciate.

§ 451. XV. In the first place, then, every word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.

§ 452. XVI. But, in the next place, words from the necessary imperfection of all human language acquire different shades of meaning, each of which is equally appropriate and equally legitimate; each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity as to its exact boundary and extent. We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves, and perhaps still more often from the different manner in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society, but also from the more loose or more exact uses to which men of different talents, acquirements, and tastes from choice or necessity apply them. No person can fail to remark the gradual deflections in the meaning of words from one age to another; and so constantly is this process going on that the daily language of life in one generation sometimes requires the aid of a glossary in another. It has been justly remarked,2 that no language is so copious as to supply words and phrases for every complex idea, or so correct as 1 See Vattel, B. 2, ch, 17, §§ 262, 299. 2 The Federalist, No. 37.

not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. We must resort then to the context, and shape the particular meaning so as to make it fit that of the connecting words and agree with the subject-matter.

§ 453. XVII. In the next place, where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context. But the same word often possesses a technical and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former. No one would doubt, when the Constitution has declared that "the privilege of the writ of habeas corpus shall not be suspended unless " under peculiar circumstances, that it referred, not to every sort of writ which has acquired that name, but to that which has been emphatically so called, on account of its remedial power to free a party from arbitrary imprisonment. So, again, when it declares that in suits at common law, &c., the right of trial by jury shall be preserved, though the phrase "common law" admits of different meanings, no one can doubt that it is used in a technical sense. When, again, it declares that Congress shall have power to provide a navy, we readily comprehend that authority is given to construct, prepare, or in any other manner to obtain a navy. But when Congress is further authorized to provide for calling forth the militia, we perceive at once that the word "provide" is used in a somewhat different sense.

§ 454. XVIII. And this leads us to remark, in the next place, that it is by no means a correct rule of interpretation to construe the same word in the same sense wherever it occurs in the same instrument. It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only

1 See Vattel, B. 2, ch. 17, §§ 276, 277.

2 Ex parte Bollman & Swartwout, 4 Cranch, 75.

8 Vattel, B. 2, ch. 17, § 281.

the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their purposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions. It was very justly observed by Mr. Chief Justice Marshall, in The Cherokee Nation v. The State of Georgia,1 that "it has been said that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context." A very easy example of this sort will be found in the use of the word "establish," which is found in various places in the Constitution. Thus, in the preamble, one object of the Constitution is avowed to be "to establish justice," which seems here to mean to settle firmly, to fix unalterably, or rather, perhaps, as justice, abstractly considered, must be considered as forever fixed and unalterable, to dispense or administer justice. Again, the Constitution declares that Congress shall have power "to establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies," where it is manifestly used as equivalent to make, or form, and not to fix or settle unalterably and forever. Again, "Congress shall have power to establish post-offices and post-roads," where the appropriate sense would seem to be to create, to found, and to regulate, not so much with a view to permanence of form as to convenience of action. Again, it is declared that "Congress shall make no law respecting an establishment of religion," which seems to prohibit any laws which shall recognize, found, 15 Peters's Rep. 1, 19.

confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support. And again, in the preamble, it is said, "We the people, &c., do ordain and establish this Constitution," &c., where the most appropriate sense seems to be to create, to ratify, and to confirm. So the word "State" will be found used in the Constitution in all the various senses to which we have before alluded. It sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by these societies; sometimes these societies as organized into these particular governments; and, lastly, sometimes the people composing these political societies in their highest sovereign capacity.1

§ 455. XIX. But the most important rule in cases of this nature is, that a constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate or unfold the appropriate sense; but unless it stands well with the context and subject-matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe; and, as has been already stated, that must be the truest exposition which best harmonizes with its design, its objects, and its general structure.2 (a)

§ 456. The remark of Mr. Burke may, with a very slight change of phrase, be addressed as an admonition to all those who are called upon to frame or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those who are called to administer it is to rule, and not to wrangle. It would be a poor compensation that one had triumphed in a dis

1 Mr. Madison's Virginia Report, January 7, 1800, p. 5; ante, § 208, p. 193. 2 See Vattel, B. 2, ch. 17, §§ 285, 286.

(a) See Henshaw v. Foster, 9 Pick. 316, for forcible remarks on this subject by Chief Justice Parker.