The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1839-01-31

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oanoner power OF Congress, which has been the sub
JecI OF much commentary, in the Of this debate
aiude TO the subject Of Notifications arsenals &c
,nlu ,ne various constructions which have been put
upon the clause Of the Constitution relating to this sub
Jecb all have agreed that the exclusive Jurisdiction it
gives over the sites Of these works be exercised
without The consent Of the Legislatures Of the States in
which they are located Here, then, we have another
example OF the dependence Of the General Government
upon he State Governments, 10 point belonging
o. US highest trusts the Of tho common defence
Whether, therefore, look TO tho general aim and scope
OF the Constitution to its particular provisions can
not aequesee in the principle assumed by the honorable
Speaker The application Of this principle TO the sub
ect OF the present discussion has not been clearly de-
veioped but presume is this II roads and canals
are necessayto the legitimate operations Of the General
Government, that Government being wholly indepen-
dent Of any intrinsic aid in the prosecution of lis lawful
Objects may make roads and canals for ITSELF whene ver
and wherever chooses. shall hereafter endeayor to
show that although roads and canals may he essential to
some OF the purposes Of the General Government vet
they are such facilities as would naturally arise in the
progress OF society," under the care Of the State Govern
nens, and that there was therefore, no TO in
vest the General Government with authority to create
them Any construction which loses sight of the ex-
stence ofthe Stale Gopernments and Of the important
purposes they intended to fulfil, 10 reference to
The affairs OF the Union, well the interests Of
the respective States, is incompatible with the nature
OF our political system, and necessarily leads into
error. s
There were some other general principles laid down
in the OF this dscusson the bearing and applca
| ton oil which, to the question under consideration,
could not very distinctly discern, notice them there
fore only Tor the purpose Of entering my protest against
them. An honorable gentleman from New York. (Mr.
Storrs) asserted that the General Government
ncipa IN other words National Government as con-
/ tradlstinguished from Federal Government would
ask that gentleman who the parties the forma
ton Of this Government Were they the people OF the
United States as composing one entire nation, or as d.
slded into distinct political communities Unques-
onaby the latter II required too, for establishment
not the consent OF majority Of the people, merely but
the unanimous ratification Of all the States who became
parties to It. In the mode provided for its amendment
also the Of three fourhs Of the States is
necessary to any alteration OF Its principles without
1 regard 10 individual members These circumstances
unequvocaly characterize it as Federal Govern
ment. ~s. .s .",.
| In another important relation the only one involved
IN this dscusson--the extent Of its powersit is decid
! eddy Federal and not National The authority to which
/ the honorable gentleman has appealed, another
branch Of the subject, (he FederasD says is OF the
essence of National Government to possess supreme
indefinite power all persons and things, so far
they are the objects Of lawful government But the
power of this Government is by UNIVERSAL acknow-
ledgment Defined and limited to special objects BY
what process, then, has such Government, dstin-
gushed by many Federal features been converted
into a National Government BY series of refined
deductions which, considering the gentleman aversion
| and perspicuity.
Having disposed Of these preliminary topics come
now to consider the particular sources in the Consu
ton from which the alleged power of Congress to make
roads and canals have been deduced The first Of these
sources IS that clause Of the Constitution which gives to
Congress the power ITO establish post offices and post
roads,, which, contended an express grant OF the
power to make post roads Whatever CONTEMPT there
iore gentleman may have for pathological dispositions
or however little they may to beft the dignity Of
..,l. 4
aure into the true meaning Of the word establish The
Hon Speaker has defined it thus, to make firm to fix
to build Iagree with that gentleman in the first par.
OF his definition, but am unable to follow him in the
bound by which he has skipped from to make firm to
Tx, to the last Interpretation to build which seems
to me to depart very widely from the other meanings
ascnbed to the word. The original and literal import of
the word is, unquestionaby, render stable or make
hrm; and by an easy transition in its application
Objects 1t has to signify generally to fix to settle
to ascertain Let apply in this sense which is sane
toned by the Speakers definition the subject Of post
roads There exists in the country great variety of
roads, passing in different directions and communicat
ing with different points 1t is impossible, the
OF things that all Of them should be used as post roads
The Constitution therefore, gives to Congress the pow
or to establish or according the terms of the foego
ing definition to fin, to settle to ascertain which Of them
should be used post roads, and to give them legal
character as such. But the honorable Speaker
tends, thar the word csfdbish implies something more
and Is used in crcatre sense for examples Of which
he refers to the expressions Establish Justice and
"ordan and establish this Constitution" used in the
preamble of that instrument. These examples do not
appear to to be very opposite to the purpose for
which they cited It has been very properly said
that the preamble Of the Constitution stating it to be
one OF the objects OF the government establish
justice, could not have that Justice was to be
created by Such of the term would be little
less than sacrlegous Justice an abstract principle
emanaon of the divine mind always and everywhere
existing All that the Constitution could accomplish |
was to embody It, to organize tribunals and prescribe
forms for its administration, and thus establish or fix it,
and permanent foundations.
The honorable Speaker, however contends that in one
sense, we do create jusiicc-We create he says the
criminal justice OF the country, because create the
crimes, which prohibited and punished by our laws
But in what sense do create crime We do not
create the fact which constitutes the crime, we only
create the legal character which imposed upon that
| fact.
Here Mr.. Clay explained. He said there was dis
tincton between acts which maid IN Sc and those
which mata prohibita, As to the latter, they
wrong only because the legislature has made them so,
and IN relation to them, therefore, the law creates the
CRIME.
Mr. RIvEs said, this view ofthe subject was not affect
ed by the explanation of the honorable gentleman. As
to that class OF public wrongs which called maia pro-
hbid, 1t is true they themselves Indifferent and
become crimes only because the legislature makes them
But what does this prove II proves only that the
legislature creates the legal character or denomination Of
the fact prohibited, by making that unlawful which
before lawful but the legislature 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 not only consistent WITH but cooborates
explanation Of the word establish" applied TO
post roads Congressby establishing post roads, gives
| a character legal attribute to the subject, by |
making that a post road which was before not post
road but in the legitimate exercise of this authority, it
the physical, material road to which
the new character is given than in the of crime
it creates the external fact which penalty is
nexed. The explanation is equally applicable TO
the expression We the people, in order, &c do ordan
and establish this Constitution" The people certainly |
did create the Constitution in the in whchit is