precaution against danger from standing armies is a limitation of the
term for which revenue may be appropriated to their support. This
precaution the Constitution has prudently added. I will not repeat here
the observations which I flatter myself have placed this subject in a
just and satisfactory light. But it may not be improper to take notice
of an argument against this part of the Constitution, which has been
drawn from the policy and practice of Great Britain. It is said that
the continuance of an army in that kingdom requires an annual vote of
the legislature; whereas the American Constitution has lengthened this
critical period to two years. This is the form in which the comparison
is usually stated to the public: but is it a just form? Is it a fair
comparison? Does the British Constitution restrain the parliamentary
discretion to one year? Does the American impose on the Congress
appropriations for two years? On the contrary, it cannot be unknown to
the authors of the fallacy themselves, that the British Constitution
fixes no limit whatever to the discretion of the legislature, and that
the American ties down the legislature to two years, as the longest
admissible term. Had the argument from the British example been truly
stated, it would have stood thus: The term for which supplies may be
appropriated to the army establishment, though unlimited by the British
Constitution, has nevertheless, in practice, been limited by
parliamentary discretion to a single year. Now, if in Great Britain,
where the House of Commons is elected for seven years; where so great a
proportion of the members are elected by so small a proportion of the
people; where the electors are so corrupted by the representatives, and
the representatives so corrupted by the Crown, the representative body
can possess a power to make appropriations to the army for an
indefinite term, without desiring, or without daring, to extend the
term beyond a single year, ought not suspicion herself to blush, in
pretending that the representatives of the United States, elected
FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be
safely intrusted with the discretion over such appropriations,
expressly limited to the short period of TWO YEARS? A bad cause seldom
fails to betray itself. Of this truth, the management of the opposition
to the federal government is an unvaried exemplification. But among all
the blunders which have been committed, none is more striking than the
attempt to enlist on that side the prudent jealousy entertained by the
people, of standing armies. The attempt has awakened fully the public
attention to that important subject; and has led to investigations
which must terminate in a thorough and universal conviction, not only
that the constitution has provided the most effectual guards against
danger from that quarter, but that nothing short of a Constitution
fully adequate to the national defense and the preservation of the
Union, can save America from as many standing armies as it may be split
into States or Confederacies, and from such a progressive augmentation,
of these establishments in each, as will render them as burdensome to
the properties and ominous to the liberties of the people, as any
establishment that can become necessary, under a united and efficient
government, must be tolerable to the former and safe to the latter. The
palpable necessity of the power to provide and maintain a navy has
protected that part of the Constitution against a spirit of censure,
which has spared few other parts. It must, indeed, be numbered among
the greatest blessings of America, that as her Union will be the only
source of her maritime strength, so this will be a principal source of
her security against danger from abroad. In this respect our situation
bears another likeness to the insular advantage of Great Britain. The
batteries most capable of repelling foreign enterprises on our safety,
are happily such as can never be turned by a perfidious government
against our liberties. The inhabitants of the Atlantic frontier are all
of them deeply interested in this provision for naval protection, and
if they have hitherto been suffered to sleep quietly in their beds; if
their property has remained safe against the predatory spirit of
licentious adventurers; if their maritime towns have not yet been
compelled to ransom themselves from the terrors of a conflagration, by
yielding to the exactions of daring and sudden invaders, these
instances of good fortune are not to be ascribed to the capacity of the
existing government for the protection of those from whom it claims
allegiance, but to causes that are fugitive and fallacious. If we
except perhaps Virginia and Maryland, which are peculiarly vulnerable
on their eastern frontiers, no part of the Union ought to feel more
anxiety on this subject than New York. Her seacoast is extensive. A
very important district of the State is an island. The State itself is
penetrated by a large navigable river for more than fifty leagues. The
great emporium of its commerce, the great reservoir of its wealth, lies
every moment at the mercy of events, and may almost be regarded as a
hostage for ignominious compliances with the dictates of a foreign
enemy, or even with the rapacious demands of pirates and barbarians.
Should a war be the result of the precarious situation of European
affairs, and all the unruly passions attending it be let loose on the
ocean, our escape from insults and depredations, not only on that
element, but every part of the other bordering on it, will be truly
miraculous. In the present condition of America, the States more
immediately exposed to these calamities have nothing to hope from the
phantom of a general government which now exists; and if their single
resources were equal to the task of fortifying themselves against the
danger, the object to be protected would be almost consumed by the
means of protecting them. The power of regulating and calling forth the
militia has been already sufficiently vindicated and explained. The
power of levying and borrowing money, being the sinew of that which is
to be exerted in the national defense, is properly thrown into the same
class with it. This power, also, has been examined already with much
attention, and has, I trust, been clearly shown to be necessary, both
in the extent and form given to it by the Constitution. I will address
one additional reflection only to those who contend that the power
ought to have been restrained to external taxation by which they mean,
taxes on articles imported from other countries. It cannot be doubted
that this will always be a valuable source of revenue; that for a
considerable time it must be a principal source; that at this moment it
is an essential one. But we may form very mistaken ideas on this
subject, if we do not call to mind in our calculations, that the extent
of revenue drawn from foreign commerce must vary with the variations,
both in the extent and the kind of imports; and that these variations
do not correspond with the progress of population, which must be the
general measure of the public wants. As long as agriculture continues
the sole field of labor, the importation of manufactures must increase
as the consumers multiply. As soon as domestic manufactures are begun
by the hands not called for by agriculture, the imported manufactures
will decrease as the numbers of people increase. In a more remote
stage, the imports may consist in a considerable part of raw materials,
which will be wrought into articles for exportation, and will,
therefore, require rather the encouragement of bounties, than to be
loaded with discouraging duties. A system of government, meant for
duration, ought to contemplate these revolutions, and be able to
accommodate itself to them. Some, who have not denied the necessity of
the power of taxation, have grounded a very fierce attack against the
Constitution, on the language in which it is defined. It has been urged
and echoed, that the power “to lay and collect taxes, duties, imposts,
and excises, to pay the debts, and provide for the common defense and
general welfare of the United States,” amounts to an unlimited
commission to exercise every power which may be alleged to be necessary
for the common defense or general welfare. No stronger proof could be
given of the distress under which these writers labor for objections,
than their stooping to such a misconstruction. Had no other enumeration
or definition of the powers of the Congress been found in the
Constitution, than the general expressions just cited, the authors of
the objection might have had some color for it; though it would have
been difficult to find a reason for so awkward a form of describing an
authority to legislate in all possible cases. A power to destroy the
freedom of the press, the trial by jury, or even to regulate the course
of descents, or the forms of conveyances, must be very singularly
expressed by the terms “to raise money for the general welfare. “But
what color can the objection have, when a specification of the objects
alluded to by these general terms immediately follows, and is not even
separated by a longer pause than a semicolon? If the different parts of
the same instrument ought to be so expounded, as to give meaning to
every part which will bear it, shall one part of the same sentence be
excluded altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent, and the
clear and precise expressions be denied any signification whatsoever?
For what purpose could the enumeration of particular powers be
inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural nor common than first
to use a general phrase, and then to explain and qualify it by a
recital of particulars. But the idea of an enumeration of particulars
which neither explain nor qualify the general meaning, and can have no
other effect than to confound and mislead, is an absurdity, which, as
we are reduced to the dilemma of charging either on the authors of the
objection or on the authors of the Constitution, we must take the
liberty of supposing, had not its origin with the latter. The objection
here is the more extraordinary, as it appears that the language used by
the convention is a copy from the articles of Confederation. The
objects of the Union among the States, as described in article third,
are “their common defense, security of their liberties, and mutual and
general welfare. “ The terms of article eighth are still more
identical: “All charges of war and all other expenses that shall be
incurred for the common defense or general welfare, and allowed by the
United States in Congress, shall be defrayed out of a common treasury,”
etc. A similar language again occurs in article ninth. Construe either
of these articles by the rules which would justify the construction put
on the new Constitution, and they vest in the existing Congress a power
to legislate in all cases whatsoever.
But what would have been thought of that assembly, if, attaching
themselves to these general expressions, and disregarding the
specifications which ascertain and limit their import, they had
exercised an unlimited power of providing for the common defense and
general welfare? I appeal to the objectors themselves, whether they
would in that case have employed the same reasoning in justification of
Congress as they now make use of against the convention. How difficult
it is for error to escape its own condemnation!
PUBLIUS.
THE FEDERALIST.
No. XLII.
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.