The Federalist No. 42
The Powers Conferred by the Constitution Further
Considered
New York Packet
Tuesday, January 22, 1788
[James Madison]
To the People of the State of New York:
THE second class of powers, lodged in the general government,
consists of those which regulate the intercourse with foreign nations, to wit:
to make treaties; to send and receive ambassadors, other public ministers, and
consuls; to define and punish piracies and felonies committed on the high seas,
and offenses against the law of nations; to regulate foreign commerce, including
a power to prohibit, after the year 1808, the importation of slaves, and to lay
an intermediate duty of ten dollars per head, as a discouragement to such
importations.
This class of powers forms an obvious and essential branch of
the federal administration. If we are to be one nation in any respect, it
clearly ought to be in respect to other nations.
The powers to make treaties and to send and receive
ambassadors, speak their own propriety. Both of them are comprised in the
articles of Confederation, with this difference only, that the former is
disembarrassed, by the plan of the convention, of an exception, under which
treaties might be substantially frustrated by regulations of the States; and
that a power of appointing and receiving "other public ministers and consuls,"
is expressly and very properly added to the former provision concerning
ambassadors. The term ambassador, if taken strictly, as seems to be required by
the second of the articles of Confederation, comprehends the highest grade only
of public ministers, and excludes the grades which the United States will be
most likely to prefer, where foreign embassies may be necessary. And under no
latitude of construction will the term comprehend consuls. Yet it has been found
expedient, and has been the practice of Congress, to employ the inferior grades
of public ministers, and to send and receive consuls.
It is true, that where treaties of commerce stipulate for the
mutual appointment of consuls, whose functions are connected with commerce, the
admission of foreign consuls may fall within the power of making commercial
treaties; and that where no such treaties exist, the mission of American consuls
into foreign countries may perhaps be covered under the authority, given by the
ninth article of the Confederation, to appoint all such civil officers as may be
necessary for managing the general affairs of the United States. But the
admission of consuls into the United States, where no previous treaty has
stipulated it, seems to have been nowhere provided for. A supply of the omission
is one of the lesser instances in which the convention have improved on the
model before them. But the most minute provisions become important when they
tend to obviate the necessity or the pretext for gradual and unobserved
usurpations of power. A list of the cases in which Congress have been betrayed,
or forced by the defects of the Confederation, into violations of their
chartered authorities, would not a little surprise those who have paid no
attention to the subject; and would be no inconsiderable argument in favor of
the new Constitution, which seems to have provided no less studiously for the
lesser, than the more obvious and striking defects of the old.
The power to define and punish piracies and felonies committed
on the high seas, and offenses against the law of nations, belongs with equal
propriety to the general government, and is a still greater improvement on the
articles of Confederation. These articles contain no provision for the case of
offenses against the law of nations; and consequently leave it in the power of
any indiscreet member to embroil the Confederacy with foreign nations. The
provision of the federal articles on the subject of piracies and felonies
extends no further than to the establishment of courts for the trial of these
offenses. The definition of piracies might, perhaps, without inconveniency, be
left to the law of nations; though a legislative definition of them is found in
most municipal codes. A definition of felonies on the high seas is evidently
requisite. Felony is a term of loose signification, even in the common law of
England; and of various import in the statute law of that kingdom. But neither
the common nor the statute law of that, or of any other nation, ought to be a
standard for the proceedings of this, unless previously made its own by
legislative adoption. The meaning of the term, as defined in the codes of the
several States, would be as impracticable as the former would be a dishonorable
and illegitimate guide. It is not precisely the same in any two of the States;
and varies in each with every revision of its criminal laws. For the sake of
certainty and uniformity, therefore, the power of defining felonies in this case
was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within
several views which have been taken of this subject, has been too fully
discussed to need additional proofs here of its being properly submitted to the
federal administration.
It were doubtless to be wished, that the power of prohibiting
the importation of slaves had not been postponed until the year 1808, or rather
that it had been suffered to have immediate operation. But it is not difficult
to account, either for this restriction on the general government, or for the
manner in which the whole clause is expressed. It ought to be considered as a
great point gained in favor of humanity, that a period of twenty years may
terminate forever, within these States, a traffic which has so long and so
loudly upbraided the barbarism of modern policy; that within that period, it
will receive a considerable discouragement from the federal government, and may
be totally abolished, by a concurrence of the few States which continue the
unnatural traffic, in the prohibitory example which has been given by so great a
majority of the Union. Happy would it be for the unfortunate Africans, if an
equal prospect lay before them of being redeemed from the oppressions of their
European brethren!
Attempts have been made to pervert this clause into an
objection against the Constitution, by representing it on one side as a criminal
toleration of an illicit practice, and on another as calculated to prevent
voluntary and beneficial emigrations from Europe to America. I mention these
misconstructions, not with a view to give them an answer, for they deserve none,
but as specimens of the manner and spirit in which some have thought fit to
conduct their opposition to the proposed government.
The powers included in the third class are those which provide
for the harmony and proper intercourse among the States.
Under this head might be included the particular restraints
imposed on the authority of the States, and certain powers of the judicial
department; but the former are reserved for a distinct class, and the latter
will be particularly examined when we arrive at the structure and organization
of the government. I shall confine myself to a cursory review of the remaining
powers comprehended under this third description, to wit: to regulate commerce
among the several States and the Indian tribes; to coin money, regulate the
value thereof, and of foreign coin; to provide for the punishment of
counterfeiting the current coin and secureties of the United States; to fix the
standard of weights and measures; to establish a uniform rule of naturalization,
and uniform laws of bankruptcy, to prescribe the manner in which the public
acts, records, and judicial proceedings of each State shall be proved, and the
effect they shall have in other States; and to establish post offices and post
roads.
The defect of power in the existing Confederacy to regulate
the commerce between its several members, is in the number of those which have
been clearly pointed out by experience. To the proofs and remarks which former
papers have brought into view on this subject, it may be added that without this
supplemental provision, the great and essential power of regulating foreign
commerce would have been incomplete and ineffectual. A very material object of
this power was the relief of the States which import and export through other
States, from the improper contributions levied on them by the latter. Were these
at liberty to regulate the trade between State and State, it must be foreseen
that ways would be found out to load the articles of import and export, during
the passage through their jurisdiction, with duties which would fall on the
makers of the latter and the consumers of the former. We may be assured by past
experience, that such a practice would be introduced by future contrivances; and
both by that and a common knowledge of human affairs, that it would nourish
unceasing animosities, and not improbably terminate in serious interruptions of
the public tranquillity. To those who do not view the question through the
medium of passion or of interest, the desire of the commercial States to
collect, in any form, an indirect revenue from their uncommercial neighbors,
must appear not less impolitic than it is unfair; since it would stimulate the
injured party, by resentment as well as interest, to resort to less convenient
channels for their foreign trade. But the mild voice of reason, pleading the
cause of an enlarged and permanent interest, is but too often drowned, before
public bodies as well as individuals, by the clamors of an impatient avidity for
immediate and immoderate gain.
The necessity of a superintending authority over the
reciprocal trade of confederated States, has been illustrated by other examples
as well as our own. In Switzerland, where the Union is so very slight, each
canton is obliged to allow to merchandises a passage through its jurisdiction
into other cantons, without an augmentation of the tolls. In Germany it is a law
of the empire, that the princes and states shall not lay tolls or customs on
bridges, rivers, or passages, without the consent of the emperor and the diet;
though it appears from a quotation in an antecedent paper, that the practice in
this, as in many other instances in that confederacy, has not followed the law,
and has produced there the mischiefs which have been foreseen here. Among the
restraints imposed by the Union of the Netherlands on its members, one is, that
they shall not establish imposts disadvantageous to their neighbors, without the
general permission.
The regulation of commerce with the Indian tribes is very
properly unfettered from two limitations in the articles of Confederation, which
render the provision obscure and contradictory. The power is there restrained to
Indians, not members of any of the States, and is not to violate or infringe the
legislative right of any State within its own limits. What description of
Indians are to be deemed members of a State, is not yet settled, and has been a
question of frequent perplexity and contention in the federal councils. And how
the trade with Indians, though not members of a State, yet residing within its
legislative jurisdiction, can be regulated by an external authority, without so
far intruding on the internal rights of legislation, is absolutely
incomprehensible. This is not the only case in which the articles of
Confederation have inconsiderately endeavored to accomplish impossibilities; to
reconcile a partial sovereignty in the Union, with complete sovereignty in the
States; to subvert a mathematical axiom, by taking away a part, and letting the
whole remain.
All that need be remarked on the power to coin money, regulate
the value thereof, and of foreign coin, is, that by providing for this last
case, the Constitution has supplied a material omission in the articles of
Confederation. The authority of the existing Congress is restrained to the
regulation of coin struck by their own authority, or that of the respective
States. It must be seen at once that the proposed uniformity in the value of the
current coin might be destroyed by subjecting that of foreign coin to the
different regulations of the different States.
The punishment of counterfeiting the public securities, as
well as the current coin, is submitted of course to that authority which is to
secure the value of both.
The regulation of weights and measures is transferred from the
articles of Confederation, and is founded on like considerations with the
preceding power of regulating coin.
The dissimilarity in the rules of naturalization has long been
remarked as a fault in our system, and as laying a foundation for intricate and
delicate questions. In the fourth article of the Confederation, it is declared "that
the free inhabitants of each of these States, paupers, vagabonds, and fugitives
from justice, excepted, shall be entitled to all privileges and immunities of
free citizens in the several States; and the people of each State shall, in
every other, enjoy all the privileges of trade and commerce," etc. There
is a confusion of language here, which is remarkable. Why the terms free
inhabitants are used in one part of the article, free citizens in another, and
people in another; or what was meant by superadding to "all privileges and
immunities of free citizens," "all the privileges of trade and commerce," cannot
easily be determined. It seems to be a construction scarcely avoidable, however,
that those who come under the denomination of free inhabitants of a State,
although not citizens of such State, are entitled, in every other State, to all
the privileges of free citizens of the latter; that is, to greater privileges
than they may be entitled to in their own State:
so that it may be in the power of a
particular State, or rather every State is laid under a necessity, not only to
confer the rights of citizenship in other States upon any whom it may admit to
such rights within itself, but upon any whom it may allow to become inhabitants
within its jurisdiction. But were an exposition of the term "inhabitants"
to be admitted which would confine the stipulated privileges to citizens alone,
the difficulty is diminished only, not removed. The very improper power would
still be retained by each State, of naturalizing aliens in every other State. In
one State, residence for a short term confirms all the rights of citizenship: in
another, qualifications of greater importance are required. An alien, therefore,
legally incapacitated for certain rights in the latter, may, by previous
residence only in the former, elude his incapacity; and thus the law of one
State be preposterously rendered paramount to the law of another, within the
jurisdiction of the other. We owe it to mere casualty, that very serious
embarrassments on this subject have been hitherto escaped. By the laws of
several States, certain descriptions of aliens, who had rendered themselves
obnoxious, were laid under interdicts inconsistent not only with the rights of
citizenship but with the privilege of residence. What would have been the
consequence, if such persons, by residence or otherwise, had acquired the
character of citizens under the laws of another State, and then asserted their
rights as such, both to residence and citizenship, within the State proscribing
them? Whatever the legal consequences might have been, other consequences would
probably have resulted, of too serious a nature not to be provided against. The
new Constitution has accordingly, with great propriety, made provision against
them, and all others proceeding from the defect of the Confederation on this
head, by authorizing the general government to establish a uniform rule of
naturalization throughout the United States.
The power of establishing uniform laws of bankruptcy is so
intimately connected with the regulation of commerce, and will prevent so many
frauds where the parties or their property may lie or be removed into different
States, that the expediency of it seems not likely to be drawn into question.
The power of prescribing by general laws, the manner in which
the public acts, records and judicial proceedings of each State shall be proved,
and the effect they shall have in other States, is an evident and valuable
improvement on the clause relating to this subject in the articles of
Confederation. The meaning of the latter is extremely indeterminate, and can be
of little importance under any interpretation which it will bear. The power here
established may be rendered a very convenient instrument of justice, and be
particularly beneficial on the borders of contiguous States, where the effects
liable to justice may be suddenly and secretly translated, in any stage of the
process, within a foreign jurisdiction.
The power of establishing post roads must, in every view, be a
harmless power, and may, perhaps, by judicious management, become productive of
great public conveniency. Nothing which tends to facilitate the intercourse
between the States can be deemed unworthy of the public care.
PUBLIUS
|
Note: The content of this web page is republished on the Internet by kind
permission of
the Constitution Society, and is not
a copyright of Citizens for United States Direct Initiatives. |
|
