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.









THE FEDERALIST.