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.
THE FEDERALIST.
No. XLIII.
The Same Subject Continued (The Powers Conferred by the Constitution
Further Considered)
For the Independent Journal.
MADISON
To the People of the State of New York:
The fourth class comprises the following miscellaneous powers:1. A
power “to promote the progress of science and useful arts, by securing,
for a limited time, to authors and inventors, the exclusive right to
their respective writings and discoveries. “The utility of this power
will scarcely be questioned. The copyright of authors has been solemnly
adjudged, in Great Britain, to be a right of common law. The right to
useful inventions seems with equal reason to belong to the inventors.
The public good fully coincides in both cases with the claims of
individuals. The States cannot separately make effectual provisions for
either of the cases, and most of them have anticipated the decision of
this point, by laws passed at the instance of Congress. 2. “To exercise
exclusive legislation, in all cases whatsoever, over such district (not
exceeding ten miles square) as may, by cession of particular States and
the acceptance of Congress, become the seat of the government of the
United States; and to exercise like authority over all places purchased
by the consent of the legislatures of the States in which the same
shall be, for the erection of forts, magazines, arsenals, dockyards,
and other needful buildings. “The indispensable necessity of complete
authority at the seat of government, carries its own evidence with it.
It is a power exercised by every legislature of the Union, I might say
of the world, by virtue of its general supremacy. Without it, not only
the public authority might be insulted and its proceedings interrupted
with impunity; but a dependence of the members of the general
government on the State comprehending the seat of the government, for
protection in the exercise of their duty, might bring on the national
councils an imputation of awe or influence, equally dishonorable to the
government and dissatisfactory to the other members of the Confederacy.
This consideration has the more weight, as the gradual accumulation of
public improvements at the stationary residence of the government would
be both too great a public pledge to be left in the hands of a single
State, and would create so many obstacles to a removal of the
government, as still further to abridge its necessary independence. The
extent of this federal district is sufficiently circumscribed to
satisfy every jealousy of an opposite nature. And as it is to be
appropriated to this use with the consent of the State ceding it; as
the State will no doubt provide in the compact for the rights and the
consent of the citizens inhabiting it; as the inhabitants will find
sufficient inducements of interest to become willing parties to the
cession; as they will have had their voice in the election of the
government which is to exercise authority over them; as a municipal
legislature for local purposes, derived from their own suffrages, will
of course be allowed them; and as the authority of the legislature of
the State, and of the inhabitants of the ceded part of it, to concur in
the cession, will be derived from the whole people of the State in
their adoption of the Constitution, every imaginable objection seems to
be obviated. The necessity of a like authority over forts, magazines,
etc., established by the general government, is not less evident. The
public money expended on such places, and the public property deposited
in them, requires that they should be exempt from the authority of the
particular State. Nor would it be proper for the places on which the
security of the entire Union may depend, to be in any degree dependent
on a particular member of it. All objections and scruples are here also
obviated, by requiring the concurrence of the States concerned, in
every such establishment. 3. “To declare the punishment of treason, but
no attainder of treason shall work corruption of blood, or forfeiture,
except during the life of the person attained. “As treason may be
committed against the United States, the authority of the United States
ought to be enabled to punish it. But as new-fangled and artificial
treasons have been the great engines by which violent factions, the
natural offspring of free government, have usually wreaked their
alternate malignity on each other, the convention have, with great
judgment, opposed a barrier to this peculiar danger, by inserting a
constitutional definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing it,
from extending the consequences of guilt beyond the person of its
author. 4. “To admit new States into the Union; but no new State shall
be formed or erected within the jurisdiction of any other State; nor
any State be formed by the junction of two or more States, or parts of
States, without the consent of the legislatures of the States
concerned, as well as of the Congress. “In the articles of
Confederation, no provision is found on this important subject. Canada
was to be admitted of right, on her joining in the measures of the
United States; and the other COLONIES, by which were evidently meant
the other British colonies, at the discretion of nine States. The
eventual establishment of NEW STATES seems to have been overlooked by
the compilers of that instrument. We have seen the inconvenience of
this omission, and the assumption of power into which Congress have
been led by it. With great propriety, therefore, has the new system
supplied the defect. The general precaution, that no new States shall
be formed, without the concurrence of the federal authority, and that
of the States concerned, is consonant to the principles which ought to
govern such transactions. The particular precaution against the
erection of new States, by the partition of a State without its
consent, quiets the jealousy of the larger States; as that of the
smaller is quieted by a like precaution, against a junction of States
without their consent. 5. “To dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the
United States, with a proviso, that nothing in the Constitution shall
be so construed as to prejudice any claims of the United States, or of
any particular State. “This is a power of very great importance, and
required by considerations similar to those which show the propriety of
the former. The proviso annexed is proper in itself, and was probably
rendered absolutely necessary by jealousies and questions concerning
the Western territory sufficiently known to the public. 6. “To
guarantee to every State in the Union a republican form of government;
to protect each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be
convened), against domestic violence. “In a confederacy founded on
republican principles, and composed of republican members, the
superintending government ought clearly to possess authority to defend
the system against aristocratic or monarchial innovations. The more
intimate the nature of such a union may be, the greater interest have
the members in the political institutions of each other; and the
greater right to insist that the forms of government under which the
compact was entered into should be SUBSTANTIALLY maintained. But a
right implies a remedy; and where else could the remedy be deposited,
than where it is deposited by the Constitution? Governments of
dissimilar principles and forms have been found less adapted to a
federal coalition of any sort, than those of a kindred nature. “As the
confederate republic of Germany,” says Montesquieu, “consists of free
cities and petty states, subject to different princes, experience shows
us that it is more imperfect than that of Holland and Switzerland. “
“Greece was undone,” he adds, “as soon as the king of Macedon obtained
a seat among the Amphictyons. “ In the latter case, no doubt, the
disproportionate force, as well as the monarchical form, of the new
confederate, had its share of influence on the events. It may possibly
be asked, what need there could be of such a precaution, and whether it
may not become a pretext for alterations in the State governments,
without the concurrence of the States themselves. These questions admit
of ready answers. If the interposition of the general government should
not be needed, the provision for such an event will be a harmless
superfluity only in the Constitution. But who can say what experiments
may be produced by the caprice of particular States, by the ambition of
enterprising leaders, or by the intrigues and influence of foreign
powers? To the second question it may be answered, that if the general
government should interpose by virtue of this constitutional authority,
it will be, of course, bound to pursue the authority. But the authority
extends no further than to a GUARANTY of a republican form of
government, which supposes a pre-existing government of the form which
is to be guaranteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed by the federal
Constitution. Whenever the States may choose to substitute other
republican forms, they have a right to do so, and to claim the federal
guaranty for the latter. The only restriction imposed on them is, that
they shall not exchange republican for antirepublican Constitutions; a
restriction which, it is presumed, will hardly be considered as a
grievance.
A protection against invasion is due from every society to the parts
composing it. The latitude of the expression here used seems to secure
each State, not only against foreign hostility, but against ambitious
or vindictive enterprises of its more powerful neighbors. The history,
both of ancient and modern confederacies, proves that the weaker
members of the union ought not to be insensible to the policy of this
article. Protection against domestic violence is added with equal
propriety. It has been remarked, that even among the Swiss cantons,
which, properly speaking, are not under one government, provision is
made for this object; and the history of that league informs us that
mutual aid is frequently claimed and afforded; and as well by the most
democratic, as the other cantons. A recent and well-known event among
ourselves has warned us to be prepared for emergencies of a like
nature. At first view, it might seem not to square with the republican
theory, to suppose, either that a majority have not the right, or that
a minority will have the force, to subvert a government; and
consequently, that the federal interposition can never be required, but
when it would be improper. But theoretic reasoning, in this as in most
other cases, must be qualified by the lessons of practice. Why may not
illicit combinations, for purposes of violence, be formed as well by a
majority of a State, especially a small State as by a majority of a
county, or a district of the same State; and if the authority of the
State ought, in the latter case, to protect the local magistracy, ought
not the federal authority, in the former, to support the State
authority? Besides, there are certain parts of the State constitutions
which are so interwoven with the federal Constitution, that a violent
blow cannot be given to the one without communicating the wound to the
other.
Insurrections in a State will rarely induce a federal interposition,
unless the number concerned in them bear some proportion to the friends
of government. It will be much better that the violence in such cases
should be repressed by the superintending power, than that the majority
should be left to maintain their cause by a bloody and obstinate
contest. The existence of a right to interpose, will generally prevent
the necessity of exerting it. Is it true that force and right are
necessarily on the same side in republican governments? May not the
minor party possess such a superiority of pecuniary resources, of
military talents and experience, or of secret succors from foreign
powers, as will render it superior also in an appeal to the sword? May
not a more compact and advantageous position turn the scale on the same
side, against a superior number so situated as to be less capable of a
prompt and collected exertion of its strength? Nothing can be more
chimerical than to imagine that in a trial of actual force, victory may
be calculated by the rules which prevail in a census of the
inhabitants, or which determine the event of an election!
May it not happen, in fine, that the minority of CITIZENS may become a
majority of PERSONS, by the accession of alien residents, of a casual
concourse of adventurers, or of those whom the constitution of the
State has not admitted to the rights of suffrage? I take no notice of
an unhappy species of population abounding in some of the States, who,
during the calm of regular government, are sunk below the level of men;
but who, in the tempestuous scenes of civil violence, may emerge into
the human character, and give a superiority of strength to any party
with which they may associate themselves. In cases where it may be
doubtful on which side justice lies, what better umpires could be
desired by two violent factions, flying to arms, and tearing a State to
pieces, than the representatives of confederate States, not heated by
the local flame? To the impartiality of judges, they would unite the
affection of friends. Happy would it be if such a remedy for its
infirmities could be enjoyed by all free governments; if a project
equally effectual could be established for the universal peace of
mankind! Should it be asked, what is to be the redress for an
insurrection pervading all the States, and comprising a superiority of
the entire force, though not a constitutional right? the answer must
be, that such a case, as it would be without the compass of human
remedies, so it is fortunately not within the compass of human
probability; and that it is a sufficient recommendation of the federal
Constitution, that it diminishes the risk of a calamity for which no
possible constitution can provide a cure. Among the advantages of a
confederate republic enumerated by Montesquieu, an important one is,
“that should a popular insurrection happen in one of the States, the
others are able to quell it. Should abuses creep into one part, they
are reformed by those that remain sound. “7. “To consider all debts
contracted, and engagements entered into, before the adoption of this
Constitution, as being no less valid against the United States, under
this Constitution, than under the Confederation. “This can only be
considered as a declaratory proposition; and may have been inserted,
among other reasons, for the satisfaction of the foreign creditors of
the United States, who cannot be strangers to the pretended doctrine,
that a change in the political form of civil society has the magical
effect of dissolving its moral obligations. Among the lesser criticisms
which have been exercised on the Constitution, it has been remarked
that the validity of engagements ought to have been asserted in favor
of the United States, as well as against them; and in the spirit which
usually characterizes little critics, the omission has been transformed
and magnified into a plot against the national rights. The authors of
this discovery may be told, what few others need to be informed of,
that as engagements are in their nature reciprocal, an assertion of
their validity on one side, necessarily involves a validity on the
other side; and that as the article is merely declaratory, the
establishment of the principle in one case is sufficient for every
case. They may be further told, that every constitution must limit its
precautions to dangers that are not altogether imaginary; and that no
real danger can exist that the government would DARE, with, or even
without, this constitutional declaration before it, to remit the debts
justly due to the public, on the pretext here condemned. 8. “To provide
for amendments to be ratified by three fourths of the States under two
exceptions only. “That useful alterations will be suggested by
experience, could not but be foreseen. It was requisite, therefore,
that a mode for introducing them should be provided. The mode preferred
by the convention seems to be stamped with every mark of propriety. It
guards equally against that extreme facility, which would render the
Constitution too mutable; and that extreme difficulty, which might
perpetuate its discovered faults. It, moreover, equally enables the
general and the State governments to originate the amendment of errors,
as they may be pointed out by the experience on one side, or on the
other. The exception in favor of the equality of suffrage in the
Senate, was probably meant as a palladium to the residuary sovereignty
of the States, implied and secured by that principle of representation
in one branch of the legislature; and was probably insisted on by the
States particularly attached to that equality. The other exception must
have been admitted on the same considerations which produced the
privilege defended by it. 9. “The ratification of the conventions of
nine States shall be sufficient for the establishment of this
Constitution between the States, ratifying the same. “This article
speaks for itself.
The express authority of the people alone could give due validity to
the Constitution. To have required the unanimous ratification of the
thirteen States, would have subjected the essential interests of the
whole to the caprice or corruption of a single member. It would have
marked a want of foresight in the convention, which our own experience
would have rendered inexcusable. Two questions of a very delicate
nature present themselves on this occasion: 1. On what principle the
Confederation, which stands in the solemn form of a compact among the
States, can be superseded without the unanimous consent of the parties
to it? 2. What relation is to subsist between the nine or more States
ratifying the Constitution, and the remaining few who do not become
parties to it? The first question is answered at once by recurring to
the absolute necessity of the case; to the great principle of
self-preservation; to the transcendent law of nature and of nature’s
God, which declares that the safety and happiness of society are the
objects at which all political institutions aim, and to which all such
institutions must be sacrificed. PERHAPS, also, an answer may be found
without searching beyond the principles of the compact itself. It has
been heretofore noted among the defects of the Confederation, that in
many of the States it had received no higher sanction than a mere
legislative ratification. The principle of reciprocality seems to
require that its obligation on the other States should be reduced to
the same standard. A compact between independent sovereigns, founded on
ordinary acts of legislative authority, can pretend to no higher
validity than a league or treaty between the parties. It is an
established doctrine on the subject of treaties, that all the articles
are mutually conditions of each other; that a breach of any one article
is a breach of the whole treaty; and that a breach, committed by either
of the parties, absolves the others, and authorizes them, if they
please, to pronounce the compact violated and void. Should it unhappily
be necessary to appeal to these delicate truths for a justification for
dispensing with the consent of particular States to a dissolution of
the federal pact, will not the complaining parties find it a difficult
task to answer the MULTIPLIED and IMPORTANT infractions with which they
may be confronted? The time has been when it was incumbent on us all to
veil the ideas which this paragraph exhibits. The scene is now changed,
and with it the part which the same motives dictate. The second
question is not less delicate; and the flattering prospect of its being
merely hypothetical forbids an overcurious discussion of it. It is one
of those cases which must be left to provide for itself. In general, it
may be observed, that although no political relation can subsist
between the assenting and dissenting States, yet the moral relations
will remain uncancelled. The claims of justice, both on one side and on
the other, will be in force, and must be fulfilled; the rights of
humanity must in all cases be duly and mutually respected; whilst
considerations of a common interest, and, above all, the remembrance of
the endearing scenes which are past, and the anticipation of a speedy
triumph over the obstacles to reunion, will, it is hoped, not urge in
vain MODERATION on one side, and PRUDENCE on the other.
PUBLIUS.
THE FEDERALIST.
No. XLIV.
Restrictions on the Authority of the Several States
From the New York Packet. Friday, January 25, 1788.
MADISON
To the People of the State of New York: