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.