The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1839-02-02
create the legal character which is imposed upon that


tlnctlon between acts which maLa Sc and those
which are maid prohibta 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.1 ... .
Mr. RIvEs said this view oil the subject was not affect
ed by the explanation of the honorable gentleman As
to that class OF public wrongs which called mala pro-
hbita It is true they in themselves Indifferent, and
become crimes only because the legislature makes them
So But what does this prove! II proves only that the
legislature creates the legal character denomination Of
the fact prohibited, by making that unlawful which
before lawfa but the legislature does not create the
fact ITSELF to which this character denomination
given. That exists independently, and n spite of the
law This is not only consistent with, but corroborates
our explanation of the word establish applied to
post roads Congressby establishing apost roads, gives
new character, legal attribute to the subject, by
making that post road which 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 gven than in the Of crime
il creates the external fact to which penalty is
nexed. The same explanation is equally applicable to
the expression, I'VE the people, in order &c do ordan
and establish this Constitution" The people certainly
did not create the Constitution in the in which it is
contended that the word establish gives to Congress
authority to create post roads The instrument already
existed 1t had come from the hands of the convention
perfect in all its dimensions, and submitted to the
people for ratification. All that the people did was
establish it, by giving it the sanction of their approba
ton, and investing with legal and binding character,
The same kind of authority is conceded to Congress
without hesitation in regard to the establishment of post
roads. ...
But, we are told triumphantly, that the word esab
sh must the thing, in relation to post roads,
that does IN relation to post Offices, and that, to
post Offices, it certainly to create because Con-
gress, in establishing post Office, at particular place,
makes post office which did mot exist before. But
what is the nature of this creation Congress declares
fhoto az Kali he NJ.
post office before. In doing so, it certainly
does not create the place at which hepost Office is
tablshed, but gives TO that place privilege and acco
mediation which it did not possess before. So Con-
gress in establishing post road, according to what
we deem the true Interpretation Of this power, makes
that post road which was not post road before, or,
in other words, give to preexstng road charter and
attribute which did not previously belong to it.. The
post road is much created if gentlemen will insist
upon this drne prerogave in the case, the post
office in the other, and the creation, will add
extends to the road ITSELF which is the channel of the
post route in the case, than it does to the place
which is the scene of the post Office, in the other
The examples relied upon to support the interprea-
ton which gentlemen have given Of the word "estab
lsh" seems to me- therefore, to fall very far short Of
their object. On the contrary, they are not only con-
sistent WITH but furnish apt illustrations Of the sense
which we contend it is properly to be understood The
word, in its primitive and most simple sense means, to
render stable, make firm, and is strictly applicable to
natural objects. But it is more generally applied
to intellectual objects, and when applied is course,
used in fgurative Natural objects estab-
lished made firm by of external support and,
by obvious analogy, matters of civil and political
guatlon are said to be established or made firm when
give to them the support and sanction of a,o In
this sense, the word is uniformly used in the constitu-
ton, and all similar Instruments with such notifications
snlEas neeessasy srss from the nature ofhe snhects
which it is applied. If it was intended, as gentemeii
alege, 70 give to Congress the power to make post
roads, why was not that power granted in terms which
every person would have understood and about which
there could be no controversy Was the poverty of the
language great the trainers Of the Constitu-
tion deficient in their knowledge Of it, to have sup
piled nosother word fitted to convey the idea! When
speak Of the erection Of house, do not say that
such one has established house, but that he has
built it. If it had been intended to give to Congress
the power now claimed for it, why did not the trainers
OF the constitution say, IN so many words, that Con-
gess shall have power make and construct post roads
These words were at hand, ard well adapted to
the purpose of conveying such power That they,
other words of plainly equivalent meaning, were not
used evidence that the power they import was not in
tended to be given.
1t not necessary the nature and object Of this
grant that Congress should possess the power to make
post roads The object of the grant was the convey
of the mail, and the transmission Of intelligence
through the country. 1t could have been con-
templated that intelligence should be transmitted to
unsettled country, where there persons to re-
ceive it. But, as soon as country becomes, settled
roads necessarily exist The great interests of society,"
the operations of commerce. and the convenience Of
private intercourse necessarily gives rise to them and
as the population and demands for intelligence in
crease-the facilities of communication Increase also
The same roads which answer the ordinary purposes
of society, would certainly suffice for the simple
object of transporting the mail 1t never could have
been intended in reference to such an object to confer
upon Congress the disproporonate power OF opening
and constructing roads through the territories Of the
states. Whether therefore, look to the language Of
the constitution, to the policy of its PROVISIONS IN
relation to this subject alike constrained TO discard
the construction which claims for congress the power
in question: under the clause have been considering
The next source which the advocates of the bill have
appealed to for the authority to execute system OF in
ternal improvements is, the military power OF the GO
vernment The authority claimed under this part Of the
constitution extends TO canals well as roads 1t Is
not however, like the authority asserted in relation to
post roads, claimed cypress porer, but only as an
incidental power or Of carrying another power
into effect The first inquiry which presents itself,
therefore, to the true nature and extent oil Incl
dental powers 1t must be forgotten that this 60
vernment is one Of limited and defined powers. How
ever ready gentlemen are to admit this proposltion'
when their assent distinctly challenged to it, they
seem habituay to lose sight of it in their reasoning
upon constitutional questions All the powers granted
to the government enumerated in the constitution
but it impossible to foresee every individual act
of Legislation which might become necessary to carry
these powers into effect Congress is in general autho
rzed to do any act which shall be necessary and pro-
pcr for carrying the granted powers into execution,
but none other. II depart from this limit, we at
once change the character of the government as pos
sessing special and defined powers only and convert
into one Of general discretionary authority Whenever
any measure is proposed therefore, the first question to
be asked is Is the authority to adopt expressly grant
ed in the constitution? If he not the next question
is Is necessary and proper means of carrying into
execution any power which is expressly granted! Int
is not pretended that the authority to make roads and
canals for military purposes expressly granted to Con-
gress, it, them necessary and proper means for car
ying into execution the military powers which are
granted! l will not deny that roads and canals are
useful or, if you please necessary, to the military ope
rations Of the government But this is not the true
question The real point Of inquiry is, Is necessary
to the military operations Of the government that Con
gress should possess the power TO make them! Roads
and canals yyonld nyist the Influence OF other