>FEDERALIST No. 42 (Madison)                                   .

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.



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