Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1824-03-06

| ohcquiNoCdNy characterize IL as n federal 20
vernment.
In another important relation. the only on,
involved in this discussion--the extent of it,
powers-it is decidedly federal and not ma
tional. The authority 10 which the honorabl,
gentleman has appealed, on another branch
the subject, 1.-THE Federalist) says, it is of tn,
essence OF a national government to possess
supreme indefinite power over all persons and
things, so far as they are the objects of Lawful
government. But the power Of this govern.
ment IS, by universal acknowledgment, defin.
ed, and limited to special objects. BY what
process, then, has such government, distin-
guished by so many federal features, beeu
converted into national government? BY d
series of refined deductions, which, consider.
ing the gentleman's aversion to political meta
physics, does infinite credit to mis- genius and
perspicacity.
Having disposed of these preliminary topics
| come now toconsider the particular sources
in the constitution from which the alleged
power of congress ID make roads and canals
has been deduced. The first of these sources
IS that clause of the constitution which gives
TO congress the power "tU establish post Off
ces and post roads" which, it is contended, is
an express grant of the power to make post
roads. Whatever contempt, therefore, gen.
tlemen may have for pathological dissuisi,ons,
or however little they may seem 10 beGt the
dignity OF Legislative discussion, we are neces-
sarily driven to inquire into the true meaning
of the word establish" The hon. Speaker
has defined it thus, "ts make firm, To fix. to
build" / agree with that gentleman in the
hrstpart of his definition, but am unable TO
follow him in the bound by which he has
skipped from " to make firm, to Ak" to the
last Interpretation, To build" which seems
to Inc TO depart very widely from the other
meanings ascribed to the word. The original
and literal import of the word is, unqueston-
ably, to render stable, or make firm :" and,
by an easy transition in its application to new
objects, 1t has come to signify generally to fix,
TO settle, TO ascertain. Let us apply it in this
sense, which is sanctioned by the Speakers
definition, to the subject of post roads. There
exists in the country great variety of roads.
passing in different directions, and commune
eating with different points. 1t is impossible,
IN the nature OF things, that all Of them should
be used as post roads. The constitution,
therefore, gives TO congress the power TO es-
tabilsh, or according 10 the terms of the fore
going definition, To fix, to settle, TO ascertain.
which of them should be used as post roads
and TO give them legal character as SUCH
But the honorable Speaker contends, that
the word establish" implies something
more, and 10 used in creative sense for ex-
amples oil which he refers TO the expressions
establish justice" and Z" ordain and establish
Tins constitution" used in the preamble of
that instrument. These examples do not ap-
pear 10 me to be very opposite TO the pur-
pose forwhIch they are cited. 1t has bven
very properly said, that the preambI. Of the
constitution, in stating it TO be one of the oh
Jects OF the new government IS to establish
JUSTICE" could not have meant thar Justice
was to be created by it. Such an use of the
term would be little less than sacrilegious.-
Justice 10 an abstract principle, an emanaton
OF the divine mind. always and every where
existing. All that the constitution could ac-
comphsh, was To embOdy it, to organize tribu-
nails and prescribe forms for its administra-
ton, and thus establish, or fix il, on sure and
permanent foundations.
The honorable Speaker, however, con-
tends, that III one sense, we do create Justice
We create, he says, the criminal Justice of the
country, because we create the crimes which
are prohibited and punished by our laws But
IN what sense do we create crime? We do
not create the fact which constitutes the
crime, we only create Nle legal character
which Is imposed upon that fact.
Here Mr.. Clay explained. He said there
was distinction between acts which are maln
IN Sc, and those which are mnta prohibitu. As
to the latter, they are wrong, only because the
legislature has made them so, and in relation
to them, therefore, the law creates the crime I
Mr.. Hives said, his view of the subject was
not affected by the explanation of the honor
able gentleman. As 10 that class Of public
wrongs which are called mala prohibita, il is
true they are in themselves Indifferent, and
become crimes only because the legislature
makes them so. But what does this prOye .
Ii proves only that the legislature creates the
legal character or denomination of the fact
prohibited, by making that unlawful which
was before lawful but the legislature does
not create the fact itself, 10 which this new
character or denomination is given. That ex
lists Independently, and in spite of the law
This Is not only consistent with, but cOrrobo-
rates our explanation of the word Establish
as applied 10 post roads. Congress. by es.
tablIsbIng post road, gives new character,
legal attribute tn the subject, by making
that post road which was before not a posi
road but, in the legitimate exercise of this
authority, II can no more create the physical.
material road, To which the new character il
gwen, than IN the case Of a crime il creates
the external fact TO which penalty is annex
ed. This same explanation is equally applica-
bic To the expression, We the people, in or
der &c. d. Ordan and establish this constitu-
ton" The people certainly did OF create
the constitution, in the sense in which il is
cOutrnded that the word " Establish" gives TO
Congress authority TO create post roads. The
instrument already existed. II had come
irons the hands Of the convention perfect in
all its dimensions, and was submitted TO the
people for ratification. All that the people did
was TO establish it, by giyisg il the sanction oI
their appreciation, and investing it witba ".
gal and binding character. The same kisd OF
authority is conceded to congress without he
station in regard to the establishment Of post
roads.
But, we are told, triumphantIy, that the
word establish must mean ;be same thing, in