Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1824-03-05
RICHMOND VIRGINIA, FRIDAY, MARCH $, 1924.

ocuuSeu. Inc llrSt OIL these sources Is that
clause OF the Constitution which gives to Con-
gross the power to establish post Offices and
post roads," which, it is contcnded, is an erpres.
grant of the power to r,ih.c post roads. Whate.
yer contempt, therefore, gentlemen NAV have
Tor pathological disquisitions, or however little
they may seem to belt the dignity of legislative
discussion, we are necessarily driven to in
uirelnto the true meaning of the word establish.
Inc Hon. Speaker has defined it thus, " to make
firm, to fix, to build" agree with the gentle
man in the first part ofh;s definition, but am
unable to follow him in the Jou,sd by which he
has stepped from to make firm, TO tix,n to the
last interpretation, 4" to builJ," which seems to
me to depart very widely from the other mean
lngs ascrlbed to the word. The original and Ii
'erai import OF the word IS, unGues,ionably, to
render stable, or make firm )" and, by an easy
transition in It's application to new objects it has
come to signify generally, to fix, to settle, to as
certain. Let us apply it in this sense, which is
sanctioned by the Speakers definition, to the
subject ofpost roads. There exists in the conn
Try great variety Of roads, passing in different
directions, and communicating with different
points. 1t is impossible, in the nature ofthines.
that all of them should be used as post roads.
The Constitution, therefore, gives to Congress
the power to estabiish,o or, according to the terms
OF the foregoing definition, to fa, to settle, to
ascertain, which of them should be used as post
ROADS, and to give them 4 legal character, as
such. But the honorable Speaker contends.
that the word establish" implies something more,
ana IS used IN ct'egt'oc sense; for examples of
which he refers to the expressions establish
Justice" and & oclain and establish this constitu-
ton" used in Inc preamble of this instrument.
These examples Go not appear to me to be very
opposite to the purpose for which they are cited.
~ mas been very proTcr!y said, that the preamble
OF the constitution, in stating it to be one of the
oolects OF the new government to establish ius-
tlce," could not have meant that Justice was 10
be created by it. Such an use of them would
be little less than sacrilcgious. Justice is an
ABSTRACT principle, in emanation of the divine
mind, always and every where existing All
that the constitution could accomplish, was to
efnoody 1t, to organize tribunals and prescribe
forms forlts administration, and thus establish or
pr Vt, on sure and permanent foundations.
Ihr no 'oraolc Speaker, however, contends.
that IN one sense, VIC do creqtc justice--Wc crc-
ate, he says, the criminal Justice of the country.
because we create the crimes, which arc prohbi-
ted and punished by orr laws. But in what
sense do we create a crime, We do not create
the fact which constitutes the crime, we ONLY
create the legal character which is imposed up
On that fact.
Here MIR. Clay explained. He said there
was distinction between acts which are DanLa in
Sc, aud those which are n,ala prol,ibita. As to
the latter, they arc wrong, only because the lc-
glslature has made them so, and in relation to
them, therefore. the law creates the crilnc.1
NIT. Rrvcs said, his view of the subject was
not ahected blythe explanation of the honorable
gentleman. As to that class of public wrongs
which are called maln prohibita, it is true they
are III themselves Indifferent and become crimes
only because the legislature makes them so.
But what does this provee 1t proves only that the
Legislature creates the legal character, or dcqoni-
nation OF the fact prohibited by making that I'M
lawful which was before lawful but the legisla-
turc does not create the fact ITSELF to which this
new character or denomination is given. That
exists independently, and in spite of the law.
This Is notonly consistent with, but corroborates
our expanati,n ofthc word g establish" as ap-
piled to post roads. Congress by ESTABLISHING a
post road, gives new character, a legal attri-
butte to the subject, by making that post road
which was before not post road but, in the
legitimate exercise OF this authority it can no
more create the physical, material road, to
which the new character is given, than in the
case ola crime it creates the external fact to
which penalty is annexed. The same expla
nation is equally applicable to the expression,
" We the people, in order, &c. do or;lain and es-
ta6'as3 this constitution" The people certainly
did not cre1'c. the constitution, in the sense in
which it il conicn1ed that the word "establIsh''
gives to Congress authority to create post roads.
The instrument already existed. 1t had come
from thH hands of the convention perfect in all
its dimens .ons, and was submitted to the peoDle
for ratification. All that the people did was to
establish ii, by giving it the sanction of their ap-
probation, and investing it with a legal and bind
ing character The same kind of authority is
l,,lf L
gard to the establishment Of post roads
But, we are told, triumphantIy, that the word
establish must mean the same thing, in relation
to post roads that it does in relation to post-ofi-
ces, and that, as to post-otfices, it certainly
means TO create, because Congress, in estnbhst-
ing post-ofice, at particular place, s1al1cs a
post-oilice which did not exist before. But
what is the nature of this creation Congress
declare that a post-ohce shall be kept at place
where there was no post-office before. In do
ing so, 1t certainly docs not create the place at
which the post-oiice is established, but gives to
that place privilege and accommodation which
it did not possess before. So Congress, in es-
tablishing post road, according to what we
deem the true Interpretation of this power,
makes this y post road which was not post road
before, or in other words, gives TO pre-exist-
ing road a character and attribute which did
not previously belong to it. The post road is
as much created, if gentlemen will insist upon
this drjac perogativc in the one case as the post
Office, in the other, and the creation, will add,
no more extends to the road itself, which is the
channel Of the post route, in the one case, than
it doesto the place which is the scene of the post
Office, in the other.
The examples relied upon to support the in
depreciation which gentlemen have given ofthe
word C establish seem to me, therefore, to
fall very far short their object. On the con-
trary, they are not only consistent with, but