The Unsorted BBS Collection/thegreatunsorted.tar/thegreatunsorted/texts/txtfiles_misc/fp42

Text File | 1991-10-05 | 17KB | 282 lines

FEDERALIST No. 42
The Powers Conferred by the Constitution Further Considered
From the New York Packet. Tuesday, January 22, 1788.

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.