Monticello Aug. 11. 07.
Your favor of the 7th. is recieved. it asks my opinion on several points of law arising out of the act of Congress for accepting the service of 30,000 volunteers. altho’ your own opinion, & those of some of your counsellors, more recent in the habits of legal investigation, would be a safer guide for you than mine, unassisted by my ordinary & able associates, yet I shall frankly venture my individual thoughts on the subject, and participate with you in any risk of disapprobation to which an honest desire of furthering the public good may expose us.
In the construction of a law, even in judiciary cases of meum et tuum, where the opposite parties have a right & 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 & expressions of the law, that meaning which will effect, instead of defeating, it’s 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, & ingenuity even should be exercised in devising constructions, which may save to the public the benefit of the law. it’s 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, & 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 shall be effected by any given means, if both cannot be observed, we are equally free to deviate from the one as the other, & 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 & 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 (& they comprehend the whole nation) would willingly waive any verbal difficulties, or circumstances of detail, which might thwart their mutual desires, & 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 30,000. volunteers should be accepted, without saying any thing 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, & 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 as supplementary to the other. this aptitude of the 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.
1. Does not the act of Congress contemplate the association of companies to be formed before commissions can be issued to the Captains Etc.?
2. Can battalion- or field-officers be appointed by either the state or Congressional laws, but to battalions or regiments actually existing?
3. The organisation of the companies into battalions & regiments belonging to the President, can the Governor of the state issue commissions to these officers, before that organisation is made & announced to him?
4. Ought not the Volunteers tendering their services, under the act of Feb. 24. 07. to be accepted by the President before the commissions can issue?
Had we no other Executive powers but those given in this act the 1st. 2d. & 3d. questions would present considerable difficulties inasmuch as the act of Congress does appear, as you understand it, to contemplate that the companies are to be associated, & the battalions, squadrons, regiments, brigades & divisions organised, before commissions are to issue. and were we to stop here, the law might stop also; because I verily believe that it will be the zeal & activity alone of those destined for commands, which will give form & body to the floating ardor of our countrymen to enter into this service, and bring their wills to a point of union & effect. we know from experience that individuals having the same desires are rarely brought into an association of them unless urged by some one assuming an agency; & that in military associations the person of the officer is a material inducement. whether our constitutional powers, to carry the laws into execution, would not authorize the issuing a previous commission (as they would had nothing been said about commissions in the law) is a question not necessary now to be decided: because they certainly allow us to do what will be equally effectual. we may issue instructions, or warrants, to the persons destined to be Captains Etc. authorising them to superintend the association of the companies & to perform the functions of a Captain Etc until commissions may be regularly issued, when such a commission will be given to the bearer: or, a warrant authorising the bearer to superintend the organisation of the companies associated in a particular district, into battalions, squadrons Etc. and otherwise to perform the functions of a Colo. Etc. until a commission may regularly issue, when such a commission will be given to the bearer. this is certainly within the Constitutional powers of the Executive, and, with such a warrant, I believe the person bearing it would act with the same effect as if he had the commission.
As to the 4th. question, the execution of this law having been transferred to the State Executives, I did consider all the powers necessary for it’s execution as delegated from the President to them. of this I have been so much persuaded, that, to companies offering their services under this law, I have answered that the power of acceptance was in the Governor, & have desired them to renew their offer to him. if the delegation of this power should be expressly made, it is hereby fully delegated.
To the preceding I will add one other observation. as we might still be disappointed in obtaining the whole number of 11,563. were they apportioned among the several districts, & each restrained to it’s precise apportionment (which some might fail to raise) I think it would better secure the compleat object of the law, to accept all proper offers, that the excess of some districts may supply the deficiencies of others. when the acceptances are all brought together, the surplus, if any, will be known, and, if not wanted by the US. may be rejected: and in doing this, such principles of selection may be adopted as, without any imputation of partiality, may secure to us the best offers. for example, 1. we may give a preference to all those who will agree to become regulars if desired. this is so obviously for the public advantage that no one could object to it. 2. We may give a preference to 12. month volunteers over those for 6. months: and other circumstances of selection will of course arise from the face of the offers, such as distribution, geographical position, proportion of cavalry, riflemen Etc.
I have thus without reserve expressed my ideas on the several doubts stated in your letter, & I submit them to your consideration. they will need it the more as the season and other circumstances occasioning the members of the administration to be in a state of separation at this moment, they go without the stamp of their aid & approbation. it is our consolation & encouragement, that we are serving a just public who will be indulgent to any error committed honestly, & relating merely to the means of carrying into effect what they have manifestly willed to be a law.
I salute you with great esteem & respect.
DLC: Papers of Thomas Jefferson.