Full Text Archive logoFull Text Archive — Books, poems, drama…

Part 5 out of 10

Adobe PDF icon
Download this document as a .pdf
File size: 1.2 MB
What's this? light bulb idea Many people prefer to read off-line or to print out text and read from the real printed page. Others want to carry documents around with them on their mobile phones and read while they are on the move. We have created .pdf files of all out documents to accommodate all these groups of people. We recommend that you download .pdfs onto your mobile phone when it is connected to a WiFi connection for reading off-line.

the people of America, given by deputies elected for the special
purpose; but, on the other, that this assent and ratification is to
be given by the people, not as individuals composing one entire
nation, but as composing the distinct and independent States to
which they respectively belong. It is to be the assent and
ratification of the several States, derived from the supreme
authority in each State, the authority of the people themselves.
The act, therefore, establishing the Constitution, will not be a
NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms
are understood by the objectors; the act of the people, as forming
so many independent States, not as forming one aggregate nation, is
obvious from this single consideration, that it is to result neither
from the decision of a MAJORITY of the people of the Union, nor from
that of a MAJORITY of the States. It must result from the UNANIMOUS
assent of the several States that are parties to it, differing no
otherwise from their ordinary assent than in its being expressed,
not by the legislative authority, but by that of the people
themselves. Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people of the
United States would bind the minority, in the same manner as the
majority in each State must bind the minority; and the will of the
majority must be determined either by a comparison of the individual
votes, or by considering the will of the majority of the States as
evidence of the will of a majority of the people of the United
States. Neither of these rules have been adopted. Each State, in
ratifying the Constitution, is considered as a sovereign body,
independent of all others, and only to be bound by its own voluntary
act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution.
The next relation is, to the sources from which the ordinary
powers of government are to be derived. The House of
Representatives will derive its powers from the people of America;
and the people will be represented in the same proportion, and on
the same principle, as they are in the legislature of a particular
State. So far the government is NATIONAL, not FEDERAL. The Senate,
on the other hand, will derive its powers from the States, as
political and coequal societies; and these will be represented on
the principle of equality in the Senate, as they now are in the
existing Congress. So far the government is FEDERAL, not NATIONAL.
The executive power will be derived from a very compound source.
The immediate election of the President is to be made by the States
in their political characters. The votes allotted to them are in a
compound ratio, which considers them partly as distinct and coequal
societies, partly as unequal members of the same society. The
eventual election, again, is to be made by that branch of the
legislature which consists of the national representatives; but in
this particular act they are to be thrown into the form of
individual delegations, from so many distinct and coequal bodies
politic. From this aspect of the government it appears to be of a
mixed character, presenting at least as many FEDERAL as NATIONAL
features.
The difference between a federal and national government, as it
relates to the OPERATION OF THE GOVERNMENT, is supposed to consist
in this, that in the former the powers operate on the political
bodies composing the Confederacy, in their political capacities; in
the latter, on the individual citizens composing the nation, in
their individual capacities. On trying the Constitution by this
criterion, it falls under the NATIONAL, not the FEDERAL character;
though perhaps not so completely as has been understood. In
several cases, and particularly in the trial of controversies to
which States may be parties, they must be viewed and proceeded
against in their collective and political capacities only. So far
the national countenance of the government on this side seems to be
disfigured by a few federal features. But this blemish is perhaps
unavoidable in any plan; and the operation of the government on the
people, in their individual capacities, in its ordinary and most
essential proceedings, may, on the whole, designate it, in this
relation, a NATIONAL government.
But if the government be national with regard to the OPERATION
of its powers, it changes its aspect again when we contemplate it in
relation to the EXTENT of its powers. The idea of a national
government involves in it, not only an authority over the individual
citizens, but an indefinite supremacy over all persons and things,
so far as they are objects of lawful government. Among a people
consolidated into one nation, this supremacy is completely vested in
the national legislature. Among communities united for particular
purposes, it is vested partly in the general and partly in the
municipal legislatures. In the former case, all local authorities
are subordinate to the supreme; and may be controlled, directed, or
abolished by it at pleasure. In the latter, the local or municipal
authorities form distinct and independent portions of the supremacy,
no more subject, within their respective spheres, to the general
authority, than the general authority is subject to them, within its
own sphere. In this relation, then, the proposed government cannot
be deemed a NATIONAL one; since its jurisdiction extends to certain
enumerated objects only, and leaves to the several States a
residuary and inviolable sovereignty over all other objects. It is
true that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be
established under the general government. But this does not change
the principle of the case. The decision is to be impartially made,
according to the rules of the Constitution; and all the usual and
most effectual precautions are taken to secure this impartiality.
Some such tribunal is clearly essential to prevent an appeal to the
sword and a dissolution of the compact; and that it ought to be
established under the general rather than under the local
governments, or, to speak more properly, that it could be safely
established under the first alone, is a position not likely to be
combated.
If we try the Constitution by its last relation to the authority
by which amendments are to be made, we find it neither wholly
NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme
and ultimate authority would reside in the MAJORITY of the people of
the Union; and this authority would be competent at all times, like
that of a majority of every national society, to alter or abolish
its established government. Were it wholly federal, on the other
hand, the concurrence of each State in the Union would be essential
to every alteration that would be binding on all. The mode provided
by the plan of the convention is not founded on either of these
principles. In requiring more than a majority, and principles. In
requiring more than a majority, and particularly in computing the
proportion by STATES, not by CITIZENS, it departs from the NATIONAL
and advances towards the FEDERAL character; in rendering the
concurrence of less than the whole number of States sufficient, it
loses again the FEDERAL and partakes of the NATIONAL character.
The proposed Constitution, therefore, is, in strictness, neither
a national nor a federal Constitution, but a composition of both.
In its foundation it is federal, not national; in the sources from
which the ordinary powers of the government are drawn, it is partly
federal and partly national; in the operation of these powers, it
is national, not federal; in the extent of them, again, it is
federal, not national; and, finally, in the authoritative mode of
introducing amendments, it is neither wholly federal nor wholly
national.
PUBLIUS.

FEDERALIST No. 40
The Powers of the Convention to Form a Mixed Government Examined
and Sustained
From the New York Packet.
Friday, January 18, 1788.

MADISON

To the People of the State of New York:
THE SECOND point to be examined is, whether the convention were
authorized to frame and propose this mixed Constitution. The
powers of the convention ought, in strictness, to be determined
by an inspection of the commissions given to the members by their
respective constituents. As all of these, however, had reference,
either to the recommendation from the meeting at Annapolis, in
September, 1786, or to that from Congress, in February, 1787, it
will be sufficient to recur to these particular acts. The act
from Annapolis recommends the ``appointment of commissioners to
take into consideration the situation of the United States; to
devise SUCH FURTHER PROVISIONS as shall appear to them necessary
to render the Constitution of the federal government ADEQUATE TO
THE EXIGENCIES OF THE UNION; and to report such an act for that
purpose, to the United States in Congress assembled, as when
agreed to by them, and afterwards confirmed by the legislature of
every State, will effectually provide for the same. ''The
recommendatory act of Congress is in the words
following:``WHEREAS, There is provision in the articles of
Confederation and perpetual Union, for making alterations
therein, by the assent of a Congress of the United States, and of
the legislatures of the several States; and whereas experience
hath evinced, that there are defects in the present
Confederation; as a mean to remedy which, several of the States,
and PARTICULARLY THE STATE OF NEW YORK, by express instructions
to their delegates in Congress, have suggested a convention for
the purposes expressed in the following resolution; and such
convention appearing to be the most probable mean of establishing
in these States A FIRM NATIONAL GOVERNMENT:``Resolved, That in
the opinion of Congress it is expedient, that on the second
Monday of May next a convention of delegates, who shall have been
appointed by the several States, be held at Philadelphia, for the
sole and express purpose OF REVISING THE ARTICLES OF
CONFEDERATION, and reporting to Congress and the several
legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall,
when agreed to in Congress, and confirmed by the States, render
the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT
AND THE PRESERVATION OF THE UNION. ''From these two acts, it
appears, 1st, that the object of the convention was to establish,
in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this
government was to be such as would be ADEQUATE TO THE EXIGENCIES
OF GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these
purposes were to be effected by ALTERATIONS AND PROVISIONS IN THE
ARTICLES OF CONFEDERATION, as it is expressed in the act of
Congress, or by SUCH FURTHER PROVISIONS AS SHOULD APPEAR
NECESSARY, as it stands in the recommendatory act from Annapolis;
4th, that the alterations and provisions were to be reported to
Congress, and to the States, in order to be agreed to by the
former and confirmed by the latter. From a comparison and fair
construction of these several modes of expression, is to be
deduced the authority under which the convention acted. They were
to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF
GOVERNMENT, and OF THE UNION; and to reduce the articles of
Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as
well as founded on legal axioms. The one is, that every part of
the expression ought, if possible, to be allowed some meaning,
and be made to conspire to some common end. The other is, that
where the several parts cannot be made to coincide, the less
important should give way to the more important part; the means
should be sacrificed to the end, rather than the end to the
means. Suppose, then, that the expressions defining the
authority of the convention were irreconcilably at variance with
each other; that a NATIONAL and ADEQUATE GOVERNMENT could not
possibly, in the judgment of the convention, be affected by
ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION;
which part of the definition ought to have been embraced, and
which rejected? Which was the more important, which the less
important part? Which the end; which the means? Let the most
scrupulous expositors of delegated powers; let the most
inveterate objectors against those exercised by the convention,
answer these questions. Let them declare, whether it was of most
importance to the happiness of the people of America, that the
articles of Confederation should be disregarded, and an adequate
government be provided, and the Union preserved; or that an
adequate government should be omitted, and the articles of
Confederation preserved. Let them declare, whether the
preservation of these articles was the end, for securing which a
reform of the government was to be introduced as the means; or
whether the establishment of a government, adequate to the
national happiness, was the end at which these articles
themselves originally aimed, and to which they ought, as
insufficient means, to have been sacrificed. But is it necessary
to suppose that these expressions are absolutely irreconcilable
to each other; that no ALTERATIONS or PROVISIONS in THE ARTICLES
OF THE CONFEDERATION could possibly mould them into a national
and adequate government; into such a government as has been
proposed by the convention? No stress, it is presumed, will, in
this case, be laid on the TITLE; a change of that could never be
deemed an exercise of ungranted power. ALTERATIONS in the body of
the instrument are expressly authorized. NEW PROVISIONS therein
are also expressly authorized. Here then is a power to change the
title; to insert new articles; to alter old ones. Must it of
necessity be admitted that this power is infringed, so long as a
part of the old articles remain? Those who maintain the
affirmative ought at least to mark the boundary between
authorized and usurped innovations; between that degree of change
which lies within the compass of ALTERATIONS AND FURTHER
PROVISIONS, and that which amounts to a TRANSMUTATION of the
government. Will it be said that the alterations ought not to
have touched the substance of the Confederation? The States
would never have appointed a convention with so much solemnity,
nor described its objects with so much latitude, if some
SUBSTANTIAL reform had not been in contemplation. Will it be said
that the FUNDAMENTAL PRINCIPLES of the Confederation were not
within the purview of the convention, and ought not to have been
varied? I ask, What are these principles? Do they require that,
in the establishment of the Constitution, the States should be
regarded as distinct and independent sovereigns? They are so
regarded by the Constitution proposed. Do they require that the
members of the government should derive their appointment from
the legislatures, not from the people of the States? One branch
of the new government is to be appointed by these legislatures;
and under the Confederation, the delegates to Congress MAY ALL
be appointed immediately by the people, and in two States1 are
actually so appointed. Do they require that the powers of the
government should act on the States, and not immediately on
individuals? In some instances, as has been shown, the powers of
the new government will act on the States in their collective
characters. In some instances, also, those of the existing
government act immediately on individuals. In cases of capture;
of piracy; of the post office; of coins, weights, and measures;
of trade with the Indians; of claims under grants of land by
different States; and, above all, in the case of trials by
courts-marshal in the army and navy, by which death may be
inflicted without the intervention of a jury, or even of a civil
magistrate; in all these cases the powers of the Confederation
operate immediately on the persons and interests of individual
citizens. Do these fundamental principles require, particularly,
that no tax should be levied without the intermediate agency of
the States? The Confederation itself authorizes a direct tax, to
a certain extent, on the post office. The power of coinage has
been so construed by Congress as to levy a tribute immediately
from that source also. But pretermitting these instances, was it
not an acknowledged object of the convention and the universal
expectation of the people, that the regulation of trade should be
submitted to the general government in such a form as would
render it an immediate source of general revenue? Had not
Congress repeatedly recommended this measure as not inconsistent
with the fundamental principles of the Confederation? Had not
every State but one; had not New York herself, so far complied
with the plan of Congress as to recognize the PRINCIPLE of the
innovation? Do these principles, in fine, require that the
powers of the general government should be limited, and that,
beyond this limit, the States should be left in possession of
their sovereignty and independence? We have seen that in the new
government, as in the old, the general powers are limited; and
that the States, in all unenumerated cases, are left in the
enjoyment of their sovereign and independent jurisdiction. The
truth is, that the great principles of the Constitution proposed
by the convention may be considered less as absolutely new, than
as the expansion of principles which are found in the articles of
Confederation. The misfortune under the latter system has been,
that these principles are so feeble and confined as to justify
all the charges of inefficiency which have been urged against it,
and to require a degree of enlargement which gives to the new
system the aspect of an entire transformation of the old. In one
particular it is admitted that the convention have departed from
the tenor of their commission. Instead of reporting a plan
requiring the confirmation OF THE LEGISLATURES OF ALL THE STATES,
they have reported a plan which is to be confirmed by the PEOPLE,
and may be carried into effect by NINE STATES ONLY. It is worthy
of remark that this objection, though the most plausible, has
been the least urged in the publications which have swarmed
against the convention. The forbearance can only have proceeded
from an irresistible conviction of the absurdity of subjecting
the fate of twelve States to the perverseness or corruption of a
thirteenth; from the example of inflexible opposition given by a
MAJORITY of one sixtieth of the people of America to a measure
approved and called for by the voice of twelve States, comprising
fifty-nine sixtieths of the people an example still fresh in the
memory and indignation of every citizen who has felt for the
wounded honor and prosperity of his country. As this objection,
therefore, has been in a manner waived by those who have
criticised the powers of the convention, I dismiss it without
further observation. The THIRD point to be inquired into is, how
far considerations of duty arising out of the case itself could
have supplied any defect of regular authority. In the preceding
inquiries the powers of the convention have been analyzed and
tried with the same rigor, and by the same rules, as if they had
been real and final powers for the establishment of a
Constitution for the United States. We have seen in what manner
they have borne the trial even on that supposition. It is time
now to recollect that the powers were merely advisory and
recommendatory; that they were so meant by the States, and so
understood by the convention; and that the latter have
accordingly planned and proposed a Constitution which is to be of
no more consequence than the paper on which it is written, unless
it be stamped with the approbation of those to whom it is
addressed. This reflection places the subject in a point of view
altogether different, and will enable us to judge with propriety
of the course taken by the convention. Let us view the ground on
which the convention stood. It may be collected from their
proceedings, that they were deeply and unanimously impressed with
the crisis, which had led their country almost with one voice to
make so singular and solemn an experiment for correcting the
errors of a system by which this crisis had been produced; that
they were no less deeply and unanimously convinced that such a
reform as they have proposed was absolutely necessary to effect
the purposes of their appointment. It could not be unknown to
them that the hopes and expectations of the great body of
citizens, throughout this great empire, were turned with the
keenest anxiety to the event of their deliberations. They had
every reason to believe that the contrary sentiments agitated the
minds and bosoms of every external and internal foe to the
liberty and prosperity of the United States. They had seen in the
origin and progress of the experiment, the alacrity with which
the PROPOSITION, made by a single State (Virginia), towards a
partial amendment of the Confederation, had been attended to and
promoted. They had seen the LIBERTY ASSUMED by a VERY FEW
deputies from a VERY FEW States, convened at Annapolis, of
recommending a great and critical object, wholly foreign to their
commission, not only justified by the public opinion, but
actually carried into effect by twelve out of the thirteen
States. They had seen, in a variety of instances, assumptions by
Congress, not only of recommendatory, but of operative, powers,
warranted, in the public estimation, by occasions and objects
infinitely less urgent than those by which their conduct was to
be governed. They must have reflected, that in all great changes
of established governments, forms ought to give way to substance;
that a rigid adherence in such cases to the former, would render
nominal and nugatory the transcendent and precious right of the
people to ``abolish or alter their governments as to them shall
seem most likely to effect their safety and happiness,''2 since
it is impossible for the people spontaneously and universally to
move in concert towards their object; and it is therefore
essential that such changes be instituted by some INFORMAL AND
UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable
citizen or number of citizens. They must have recollected that it
was by this irregular and assumed privilege of proposing to the
people plans for their safety and happiness, that the States
were first united against the danger with which they were
threatened by their ancient government; that committees and
congresses were formed for concentrating their efforts and
defending their rights; and that CONVENTIONS were ELECTED in THE
SEVERAL STATES for establishing the constitutions under which
they are now governed; nor could it have been forgotten that no
little ill-timed scruples, no zeal for adhering to ordinary
forms, were anywhere seen, except in those who wished to indulge,
under these masks, their secret enmity to the substance contended
for. They must have borne in mind, that as the plan to be framed
and proposed was to be submitted TO THE PEOPLE THEMSELVES, the
disapprobation of this supreme authority would destroy it
forever; its approbation blot out antecedent errors and
irregularities. It might even have occurred to them, that where a
disposition to cavil prevailed, their neglect to execute the
degree of power vested in them, and still more their
recommendation of any measure whatever, not warranted by their
commission, would not less excite animadversion, than a
recommendation at once of a measure fully commensurate to the
national exigencies. Had the convention, under all these
impressions, and in the midst of all these considerations,
instead of exercising a manly confidence in their country, by
whose confidence they had been so peculiarly distinguished, and
of pointing out a system capable, in their judgment, of securing
its happiness, taken the cold and sullen resolution of
disappointing its ardent hopes, of sacrificing substance to
forms, of committing the dearest interests of their country to
the uncertainties of delay and the hazard of events, let me ask
the man who can raise his mind to one elevated conception, who
can awaken in his bosom one patriotic emotion, what judgment
ought to have been pronounced by the impartial world, by the
friends of mankind, by every virtuous citizen, on the conduct and
character of this assembly? Or if there be a man whose
propensity to condemn is susceptible of no control, let me then
ask what sentence he has in reserve for the twelve States who
USURPED THE POWER of sending deputies to the convention, a body
utterly unknown to their constitutions; for Congress, who
recommended the appointment of this body, equally unknown to the
Confederation; and for the State of New York, in particular,
which first urged and then complied with this unauthorized
interposition? But that the objectors may be disarmed of every
pretext, it shall be granted for a moment that the convention
were neither authorized by their commission, nor justified by
circumstances in proposing a Constitution for their country: does
it follow that the Constitution ought, for that reason alone, to
be rejected? If, according to the noble precept, it be lawful to
accept good advice even from an enemy, shall we set the ignoble
example of refusing such advice even when it is offered by our
friends? The prudent inquiry, in all cases, ought surely to be,
not so much FROM WHOM the advice comes, as whether the advice be
GOOD. The sum of what has been here advanced and proved is, that
the charge against the convention of exceeding their powers,
except in one instance little urged by the objectors, has no
foundation to support it; that if they had exceeded their powers,
they were not only warranted, but required, as the confidential
servants of their country, by the circumstances in which they
were placed, to exercise the liberty which they assume; and that
finally, if they had violated both their powers and their
obligations, in proposing a Constitution, this ought nevertheless
to be embraced, if it be calculated to accomplish the views and
happiness of the people of America. How far this character is due
to the Constitution, is the subject under investigation. PUBLIUS.

Connecticut and Rhode Island. Declaration of Independence.

FEDERALIST No. 41
General View of the Powers Conferred by The Constitution
For the Independent Journal.

MADISON

To the People of the State of New York:
THE Constitution proposed by the convention may be considered
under two general points of view. The FIRST relates to the sum or
quantity of power which it vests in the government, including
the restraints imposed on the States. The SECOND, to the
particular structure of the government, and the distribution of
this power among its several branches. Under the FIRST view of
the subject, two important questions arise: 1. Whether any part
of the powers transferred to the general government be
unnecessary or improper? 2. Whether the entire mass of them be
dangerous to the portion of jurisdiction left in the several
States? Is the aggregate power of the general government greater
than ought to have been vested in it? This is the FIRST
question. It cannot have escaped those who have attended with
candor to the arguments employed against the extensive powers of
the government, that the authors of them have very little
considered how far these powers were necessary means of attaining
a necessary end. They have chosen rather to dwell on the
inconveniences which must be unavoidably blended with all
political advantages; and on the possible abuses which must be
incident to every power or trust, of which a beneficial use can
be made. This method of handling the subject cannot impose on the
good sense of the people of America. It may display the subtlety
of the writer; it may open a boundless field for rhetoric and
declamation; it may inflame the passions of the unthinking, and
may confirm the prejudices of the misthinking: but cool and
candid people will at once reflect, that the purest of human
blessings must have a portion of alloy in them; that the choice
must always be made, if not of the lesser evil, at least of the
GREATER, not the PERFECT, good; and that in every political
institution, a power to advance the public happiness involves a
discretion which may be misapplied and abused. They will see,
therefore, that in all cases where power is to be conferred, the
point first to be decided is, whether such a power be necessary
to the public good; as the next will be, in case of an
affirmative decision, to guard as effectually as possible
against a perversion of the power to the public detriment. That
we may form a correct judgment on this subject, it will be proper
to review the several powers conferred on the government of the
Union; and that this may be the more conveniently done they may
be reduced into different classes as they relate to the following
different objects: 1. Security against foreign danger; 2.
Regulation of the intercourse with foreign nations; 3.
Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility; 5.
Restraint of the States from certain injurious acts; 6.
Provisions for giving due efficacy to all these powers. The
powers falling within the FIRST class are those of declaring war
and granting letters of marque; of providing armies and fleets;
of regulating and calling forth the militia; of levying and
borrowing money. Security against foreign danger is one of the
primitive objects of civil society. It is an avowed and essential
object of the American Union. The powers requisite for attaining
it must be effectually confided to the federal councils. Is the
power of declaring war necessary? No man will answer this
question in the negative. It would be superfluous, therefore, to
enter into a proof of the affirmative. The existing Confederation
establishes this power in the most ample form. Is the power of
raising armies and equipping fleets necessary? This is involved
in the foregoing power. It is involved in the power of
self-defense. But was it necessary to give an INDEFINITE POWER
of raising TROOPS, as well as providing fleets; and of
maintaining both in PEACE, as well as in war? The answer to these
questions has been too far anticipated in another place to admit
an extensive discussion of them in this place. The answer indeed
seems to be so obvious and conclusive as scarcely to justify such
a discussion in any place. With what color of propriety could the
force necessary for defense be limited by those who cannot limit
the force of offense? If a federal Constitution could chain the
ambition or set bounds to the exertions of all other nations,
then indeed might it prudently chain the discretion of its own
government, and set bounds to the exertions for its own safety.
How could a readiness for war in time of peace be safely
prohibited, unless we could prohibit, in like manner, the
preparations and establishments of every hostile nation? The
means of security can only be regulated by the means and the
danger of attack. They will, in fact, be ever determined by these
rules, and by no others. It is in vain to oppose constitutional
barriers to the impulse of self-preservation. It is worse than in
vain; because it plants in the Constitution itself necessary
usurpations of power, every precedent of which is a germ of
unnecessary and multiplied repetitions. If one nation maintains
constantly a disciplined army, ready for the service of ambition
or revenge, it obliges the most pacific nations who may be within
the reach of its enterprises to take corresponding precautions.
The fifteenth century was the unhappy epoch of military
establishments in the time of peace. They were introduced by
Charles VII. of France. All Europe has followed, or been forced
into, the example. Had the example not been followed by other
nations, all Europe must long ago have worn the chains of a
universal monarch. Were every nation except France now to disband
its peace establishments, the same event might follow. The
veteran legions of Rome were an overmatch for the undisciplined
valor of all other nations and rendered her the mistress of the
world. Not the less true is it, that the liberties of Rome
proved the final victim to her military triumphs; and that the
liberties of Europe, as far as they ever existed, have, with few
exceptions, been the price of her military establishments. A
standing force, therefore, is a dangerous, at the same time that
it may be a necessary, provision. On the smallest scale it has
its inconveniences. On an extensive scale its consequences may be
fatal. On any scale it is an object of laudable circumspection
and precaution. A wise nation will combine all these
considerations; and, whilst it does not rashly preclude itself
from any resource which may become essential to its safety, will
exert all its prudence in diminishing both the necessity and the
danger of resorting to one which may be inauspicious to its
liberties. The clearest marks of this prudence are stamped on
the proposed Constitution. The Union itself, which it cements and
secures, destroys every pretext for a military establishment
which could be dangerous. America united, with a handful of
troops, or without a single soldier, exhibits a more forbidding
posture to foreign ambition than America disunited, with a
hundred thousand veterans ready for combat. It was remarked, on a
former occasion, that the want of this pretext had saved the
liberties of one nation in Europe. Being rendered by her insular
situation and her maritime resources impregnable to the armies of
her neighbors, the rulers of Great Britain have never been able,
by real or artificial dangers, to cheat the public into an
extensive peace establishment. The distance of the United States
from the powerful nations of the world gives them the same happy
security. A dangerous establishment can never be necessary or
plausible, so long as they continue a united people. But let it
never, for a moment, be forgotten that they are indebted for this
advantage to the Union alone. The moment of its dissolution will
be the date of a new order of things. The fears of the weaker, or
the ambition of the stronger States, or Confederacies, will set
the same example in the New, as Charles VII. did in the Old
World. The example will be followed here from the same motives
which produced universal imitation there. Instead of deriving
from our situation the precious advantage which Great Britain has
derived from hers, the face of America will be but a copy of that
of the continent of Europe. It will present liberty everywhere
crushed between standing armies and perpetual taxes. The fortunes
of disunited America will be even more disastrous than those of
Europe. The sources of evil in the latter are confined to her own
limits. No superior powers of another quarter of the globe
intrigue among her rival nations, inflame their mutual
animosities, and render them the instruments of foreign ambition,
jealousy, and revenge. In America the miseries springing from her
internal jealousies, contentions, and wars, would form a part
only of her lot. A plentiful addition of evils would have their
source in that relation in which Europe stands to this quarter of
the earth, and which no other quarter of the earth bears to
Europe. This picture of the consequences of disunion cannot be
too highly colored, or too often exhibited. Every man who loves
peace, every man who loves his country, every man who loves
liberty, ought to have it ever before his eyes, that he may
cherish in his heart a due attachment to the Union of America,
and be able to set a due value on the means of preserving it.
Next to the effectual establishment of the Union, the best
possible 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.

FEDERALIST No. 42
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.

FEDERALIST No. 43
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.

FEDERALIST No. 44

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:
A FIFTH class of provisions in favor of the federal authority
consists of the following restrictions on the authority of the
several States:1. ``No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal;
coin money; emit bills of credit; make any thing but gold and
silver a legal tender in payment of debts; pass any bill of
attainder, ex-post-facto law, or law impairing the obligation of
contracts; or grant any title of nobility. ''The prohibition
against treaties, alliances, and confederations makes a part of
the existing articles of Union; and for reasons which need no
explanation, is copied into the new Constitution. The prohibition
of letters of marque is another part of the old system, but is
somewhat extended in the new. According to the former, letters of
marque could be granted by the States after a declaration of war;
according to the latter, these licenses must be obtained, as well
during war as previous to its declaration, from the government of
the United States. This alteration is fully justified by the
advantage of uniformity in all points which relate to foreign
powers; and of immediate responsibility to the nation in all
those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States,
was left in their hands by the Confederation, as a concurrent
right with that of Congress, under an exception in favor of the
exclusive right of Congress to regulate the alloy and value. In
this instance, also, the new provision is an improvement on the
old. Whilst the alloy and value depended on the general
authority, a right of coinage in the particular States could have
no other effect than to multiply expensive mints and diversify
the forms and weights of the circulating pieces. The latter
inconveniency defeats one purpose for which the power was
originally submitted to the federal head; and as far as the
former might prevent an inconvenient remittance of gold and
silver to the central mint for recoinage, the end can be as well
attained by local mints established under the general authority.
The extension of the prohibition to bills of credit must give
pleasure to every citizen, in proportion to his love of justice
and his knowledge of the true springs of public prosperity. The
loss which America has sustained since the peace, from the
pestilent effects of paper money on the necessary confidence
between man and man, on the necessary confidence in the public
councils, on the industry and morals of the people, and on the
character of republican government, constitutes an enormous debt
against the States chargeable with this unadvised measure, which
must long remain unsatisfied; or rather an accumulation of guilt,
which can be expiated no otherwise than by a voluntary sacrifice
on the altar of justice, of the power which has been the
instrument of it. In addition to these persuasive
considerations, it may be observed, that the same reasons which
show the necessity of denying to the States the power of
regulating coin, prove with equal force that they ought not to be
at liberty to substitute a paper medium in the place of coin. Had
every State a right to regulate the value of its coin, there
might be as many different currencies as States, and thus the
intercourse among them would be impeded; retrospective
alterations in its value might be made, and thus the citizens of
other States be injured, and animosities be kindled among the
States themselves. The subjects of foreign powers might suffer
from the same cause, and hence the Union be discredited and
embroiled by the indiscretion of a single member. No one of these
mischiefs is less incident to a power in the States to emit paper
money, than to coin gold or silver. The power to make any thing
but gold and silver a tender in payment of debts, is withdrawn
from the States, on the same principle with that of issuing a
paper currency. Bills of attainder, ex-post-facto laws, and laws
impairing the obligation of contracts, are contrary to the first
principles of the social compact, and to every principle of sound
legislation. The two former are expressly prohibited by the
declarations prefixed to some of the State constitutions, and all
of them are prohibited by the spirit and scope of these
fundamental charters. Our own experience has taught us,
nevertheless, that additional fences against these dangers ought
not to be omitted. Very properly, therefore, have the convention
added this constitutional bulwark in favor of personal security
and private rights; and I am much deceived if they have not, in
so doing, as faithfully consulted the genuine sentiments as the
undoubted interests of their constituents. The sober people of
America are weary of the fluctuating policy which has directed
the public councils. They have seen with regret and indignation
that sudden changes and legislative interferences, in cases
affecting personal rights, become jobs in the hands of
enterprising and influential speculators, and snares to the
more-industrious and less-informed part of the community. They
have seen, too, that one legislative interference is but the
first link of a long chain of repetitions, every subsequent
interference being naturally produced by the effects of the
preceding. They very rightly infer, therefore, that some thorough
reform is wanting, which will banish speculations on public
measures, inspire a general prudence and industry, and give a
regular course to the business of society. The prohibition with
respect to titles of nobility is copied from the articles of
Confederation and needs no comment. 2. ``No State shall, without
the consent of the Congress, lay any imposts or duties on imports
or exports, except what may be absolutely necessary for executing
its inspection laws, and the net produce of all duties and
imposts laid by any State on imports or exports, shall be for the
use of the treasury of the United States; and all such laws shall
be subject to the revision and control of the Congress. No State
shall, without the consent of Congress, lay any duty on tonnage,
keep troops or ships of war in time of peace, enter into any
agreement or compact with another State, or with a foreign power,
or engage in war unless actually invaded, or in such imminent
danger as will not admit of delay. ''The restraint on the power
of the States over imports and exports is enforced by all the
arguments which prove the necessity of submitting the regulation
of trade to the federal councils. It is needless, therefore, to
remark further on this head, than that the manner in which the
restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the
conveniency of their imports and exports, and to the United
States a reasonable check against the abuse of this discretion.
The remaining particulars of this clause fall within reasonings
which are either so obvious, or have been so fully developed,
that they may be passed over without remark. The SIXTH and last
class consists of the several powers and provisions by which
efficacy is given to all the rest. 1. Of these the first is, the
``power to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof. ''Few
parts of the Constitution have been assailed with more
intemperance than this; yet on a fair investigation of it, no
part can appear more completely invulnerable. Without the
SUBSTANCE of this power, the whole Constitution would be a dead
letter. Those who object to the article, therefore, as a part of
the Constitution, can only mean that the FORM of the provision is
improper. But have they considered whether a better form could
have been substituted? There are four other possible methods
which the Constitution might have taken on this subject. They
might have copied the second article of the existing
Confederation, which would have prohibited the exercise of any
power not EXPRESSLY delegated; they might have attempted a
positive enumeration of the powers comprehended under the general
terms ``necessary and proper''; they might have attempted a
negative enumeration of them, by specifying the powers excepted
from the general definition; they might have been altogether
silent on the subject, leaving these necessary and proper powers
to construction and inference. Had the convention taken the
first method of adopting the second article of Confederation, it
is evident that the new Congress would be continually exposed, as
their predecessors have been, to the alternative of construing
the term ``EXPRESSLY'' with so much rigor, as to disarm the
government of all real authority whatever, or with so much
latitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no important
power, delegated by the articles of Confederation, has been or
can be executed by Congress, without recurring more or less to
the doctrine of CONSTRUCTION or IMPLICATION. As the powers
delegated under the new system are more extensive, the government
which is to administer it would find itself still more distressed
with the alternative of betraying the public interests by doing
nothing, or of violating the Constitution by exercising powers
indispensably necessary and proper, but, at the same time, not
EXPRESSLY granted. Had the convention attempted a positive
enumeration of the powers necessary and proper for carrying their
other powers into effect, the attempt would have involved a
complete digest of laws on every subject to which the
Constitution relates; accommodated too, not only to the existing
state of things, but to all the possible changes which futurity
may produce; for in every new application of a general power, the
PARTICULAR POWERS, which are the means of attaining the OBJECT of
the general power, must always necessarily vary with that object,
and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means
not necessary or proper for carrying the general powers into
execution, the task would have been no less chimerical; and would
have been liable to this further objection, that every defect in
the enumeration would have been equivalent to a positive grant of
authority. If, to avoid this consequence, they had attempted a
partial enumeration of the exceptions, and described the residue
by the general terms, NOT NECESSARY OR PROPER, it must have
happened that the enumeration would comprehend a few of the
excepted powers only; that these would be such as would be least
likely to be assumed or tolerated, because the enumeration would
of course select such as would be least necessary or proper; and
that the unnecessary and improper powers included in the
residuum, would be less forcibly excepted, than if no partial
enumeration had been made. Had the Constitution been silent on
this head, there can be no doubt that all the particular powers
requisite as means of executing the general powers would have
resulted to the government, by unavoidable implication. No axiom
is more clearly established in law, or in reason, than that
wherever the end is required, the means are authorized; wherever
a general power to do a thing is given, every particular power
necessary for doing it is included. Had this last method,
therefore, been pursued by the convention, every objection now
urged against their plan would remain in all its plausibility;
and the real inconveniency would be incurred of not removing a
pretext which may be seized on critical occasions for drawing
into question the essential powers of the Union. If it be asked
what is to be the consequence, in case the Congress shall
misconstrue this part of the Constitution, and exercise powers
not warranted by its true meaning, I answer, the same as if they
should misconstrue or enlarge any other power vested in them; as
if the general power had been reduced to particulars, and any one
of these were to be violated; the same, in short, as if the State
legislatures should violate the irrespective constitutional
authorities. In the first instance, the success of the usurpation
will depend on the executive and judiciary departments, which are
to expound and give effect to the legislative acts; and in the
last resort a remedy must be obtained from the people who can, by
the election of more faithful representatives, annul the acts of
the usurpers. The truth is, that this ultimate redress may be
more confided in against unconstitutional acts of the federal
than of the State legislatures, for this plain reason, that as
every such act of the former will be an invasion of the rights of
the latter, these will be ever ready to mark the innovation, to
sound the alarm to the people, and to exert their local influence
in effecting a change of federal representatives. There being no
such intermediate body between the State legislatures and the
people interested in watching the conduct of the former,
violations of the State constitutions are more likely to remain
unnoticed and unredressed. 2. ``This Constitution and the laws
of the United States which shall be made in pursuance thereof,
and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the
land, and the judges in every State shall be bound thereby, any
thing in the constitution or laws of any State to the contrary
notwithstanding. ''The indiscreet zeal of the adversaries to the
Constitution has betrayed them into an attack on this part of it
also, without which it would have been evidently and radically
defective. To be fully sensible of this, we need only suppose for
a moment that the supremacy of the State constitutions had been
left complete by a saving clause in their favor. In the first
place, as these constitutions invest the State legislatures with
absolute sovereignty, in all cases not excepted by the existing
articles of Confederation, all the authorities contained in the
proposed Constitution, so far as they exceed those enumerated in
the Confederation, would have been annulled, and the new Congress
would have been reduced to the same impotent condition with their
predecessors. In the next place, as the constitutions of some of
the States do not even expressly and fully recognize the existing
powers of the Confederacy, an express saving of the supremacy of
the former would, in such States, have brought into question
every power contained in the proposed Constitution. In the third
place, as the constitutions of the States differ much from each
other, it might happen that a treaty or national law, of great
and equal importance to the States, would interfere with some and
not with other constitutions, and would consequently be valid in
some of the States, at the same time that it would have no effect
in others. In fine, the world would have seen, for the first
time, a system of government founded on an inversion of the
fundamental principles of all government; it would have seen the
authority of the whole society every where subordinate to the
authority of the parts; it would have seen a monster, in which
the head was under the direction of the members. 3. ``The
Senators and Representatives, and the members of the several
State legislatures, and all executive and judicial officers, both
of the United States and the several States, shall be bound by
oath or affirmation to support this Constitution. ''It has been
asked why it was thought necessary, that the State magistracy
should be bound to support the federal Constitution, and
unnecessary that a like oath should be imposed on the officers of
the United States, in favor of the State constitutions. Several
reasons might be assigned for the distinction. I content myself
with one, which is obvious and conclusive. The members of the
federal government will have no agency in carrying the State
constitutions into effect. The members and officers of the State
governments, on the contrary, will have an essential agency in
giving effect to the federal Constitution. The election of the
President and Senate will depend, in all cases, on the
legislatures of the several States. And the election of the House
of Representatives will equally depend on the same authority in
the first instance; and will, probably, forever be conducted by
the officers, and according to the laws, of the States. 4. Among
the provisions for giving efficacy to the federal powers might be
added those which belong to the executive and judiciary
departments: but as these are reserved for particular examination
in another place, I pass them over in this. We have now
reviewed, in detail, all the articles composing the sum or
quantity of power delegated by the proposed Constitution to the
federal government, and are brought to this undeniable
conclusion, that no part of the power is unnecessary or improper
for accomplishing the necessary objects of the Union. The
question, therefore, whether this amount of power shall be
granted or not, resolves itself into another question, whether or
not a government commensurate to the exigencies of the Union
shall be established; or, in other words, whether the Union
itself shall be preserved. PUBLIUS.

FEDERALIST No. 45

The Alleged Danger From the Powers of the Union to the State
Governments Considered
For the Independent Fournal.

MADISON

To the People of the State of New York:
HAVING shown that no one of the powers transferred to the federal
government is unnecessary or improper, the next question to be
considered is, whether the whole mass of them will be dangerous
to the portion of authority left in the several States. The
adversaries to the plan of the convention, instead of considering
in the first place what degree of power was absolutely necessary
for the purposes of the federal government, have exhausted
themselves in a secondary inquiry into the possible consequences
of the proposed degree of power to the governments of the
particular States. But if the Union, as has been shown, be
essential to the security of the people of America against
foreign danger; if it be essential to their security against
contentions and wars among the different States; if it be
essential to guard them against those violent and oppressive
factions which embitter the blessings of liberty, and against
those military establishments which must gradually poison its
very fountain; if, in a word, the Union be essential to the
happiness of the people of America, is it not preposterous, to
urge as an objection to a government, without which the objects
of the Union cannot be attained, that such a government may
derogate from the importance of the governments of the individual
States? Was, then, the American Revolution effected, was the
American Confederacy formed, was the precious blood of thousands
spilt, and the hard-earned substance of millions lavished, not
that the people of America should enjoy peace, liberty, and
safety, but that the government of the individual States, that
particular municipal establishments, might enjoy a certain extent
of power, and be arrayed with certain dignities and attributes of
sovereignty? We have heard of the impious doctrine in the Old
World, that the people were made for kings, not kings for the
people. Is the same doctrine to be revived in the New, in another
shape that the solid happiness of the people is to be sacrificed
to the views of political institutions of a different form? It is
too early for politicians to presume on our forgetting that the
public good, the real welfare of the great body of the people, is
the supreme object to be pursued; and that no form of government
whatever has any other value than as it may be fitted for the
attainment of this object. Were the plan of the convention
adverse to the public happiness, my voice would be, Reject the
plan. Were the Union itself inconsistent with the public
happiness, it would be, Abolish the Union. In like manner, as far
as the sovereignty of the States cannot be reconciled to the
happiness of the people, the voice of every good citizen must be,
Let the former be sacrificed to the latter. How far the sacrifice
is necessary, has been shown. How far the unsacrificed residue
will be endangered, is the question before us. Several important
considerations have been touched in the course of these papers,
which discountenance the supposition that the operation of the
federal government will by degrees prove fatal to the State
governments. The more I revolve the subject, the more fully I am
persuaded that the balance is much more likely to be disturbed by
the preponderancy of the last than of the first scale. We have
seen, in all the examples of ancient and modern confederacies,
the strongest tendency continually betraying itself in the
members, to despoil the general government of its authorities,
with a very ineffectual capacity in the latter to defend itself
against the encroachments. Although, in most of these examples,
the system has been so dissimilar from that under consideration
as greatly to weaken any inference concerning the latter from the
fate of the former, yet, as the States will retain, under the
proposed Constitution, a very extensive portion of active
sovereignty, the inference ought not to be wholly disregarded. In
the Achaean league it is probable that the federal head had a
degree and species of power, which gave it a considerable
likeness to the government framed by the convention. The Lycian
Confederacy, as far as its principles and form are transmitted,
must have borne a still greater analogy to it. Yet history does
not inform us that either of them ever degenerated, or tended to
degenerate, into one consolidated government. On the contrary, we
know that the ruin of one of them proceeded from the incapacity
of the federal authority to prevent the dissensions, and finally
the disunion, of the subordinate authorities. These cases are the
more worthy of our attention, as the external causes by which the
component parts were pressed together were much more numerous and
powerful than in our case; and consequently less powerful
ligaments within would be sufficient to bind the members to the
head, and to each other. In the feudal system, we have seen a
similar propensity exemplified. Notwithstanding the want of
proper sympathy in every instance between the local sovereigns
and the people, and the sympathy in some instances between the
general sovereign and the latter, it usually happened that the
local sovereigns prevailed in the rivalship for encroachments.
Had no external dangers enforced internal harmony and
subordination, and particularly, had the local sovereigns
possessed the affections of the people, the great kingdoms in
Europe would at this time consist of as many independent princes
as there were formerly feudatory barons. The State government
will have the advantage of the Federal government, whether we
compare them in respect to the immediate dependence of the one on
the other; to the weight of personal influence which each side
will possess; to the powers respectively vested in them; to the
predilection and probable support of the people; to the
disposition and faculty of resisting and frustrating the measures
of each other. The State governments may be regarded as
constituent and essential parts of the federal government; whilst
the latter is nowise essential to the operation or organization
of the former. Without the intervention of the State
legislatures, the President of the United States cannot be
elected at all. They must in all cases have a great share in his
appointment, and will, perhaps, in most cases, of themselves
determine it. The Senate will be elected absolutely and
exclusively by the State legislatures. Even the House of
Representatives, though drawn immediately from the people, will
be chosen very much under the influence of that class of men,
whose influence over the people obtains for themselves an
election into the State legislatures. Thus, each of the principal
branches of the federal government will owe its existence more or
less to the favor of the State governments, and must consequently
feel a dependence, which is much more likely to beget a
disposition too obsequious than too overbearing towards them. On
the other side, the component parts of the State governments will
in no instance be indebted for their appointment to the direct
agency of the federal government, and very little, if at all, to
the local influence of its members. The number of individuals
employed under the Constitution of the United States will be much
smaller than the number employed under the particular States.
There will consequently be less of personal influence on the side
of the former than of the latter. The members of the legislative,
executive, and judiciary departments of thirteen and more States,
the justices of peace, officers of militia, ministerial officers
of justice, with all the county, corporation, and town officers,
for three millions and more of people, intermixed, and having
particular acquaintance with every class and circle of people,
must exceed, beyond all proportion, both in number and influence,
those of every description who will be employed in the
administration of the federal system. Compare the members of the
three great departments of the thirteen States, excluding from
the judiciary department the justices of peace, with the members
of the corresponding departments of the single government of the
Union; compare the militia officers of three millions of people
with the military and marine officers of any establishment which
is within the compass of probability, or, I may add, of
possibility, and in this view alone, we may pronounce the
advantage of the States to be decisive. If the federal government
is to have collectors of revenue, the State governments will have
theirs also. And as those of the former will be principally on
the seacoast, and not very numerous, whilst those of the latter
will be spread over the face of the country, and will be very
numerous, the advantage in this view also lies on the same side.
It is true, that the Confederacy is to possess, and may exercise,
the power of collecting internal as well as external taxes
throughout the States; but it is probable that this power will
not be resorted to, except for supplemental purposes of revenue;
that an option will then be given to the States to supply their
quotas by previous collections of their own; and that the
eventual collection, under the immediate authority of the Union,
will generally be made by the officers, and according to the
rules, appointed by the several States. Indeed it is extremely
probable, that in other instances, particularly in the
organization of the judicial power, the officers of the States
will be clothed with the correspondent authority of the Union.
Should it happen, however, that separate collectors of internal
revenue should be appointed under the federal government, the
influence of the whole number would not bear a comparison with
that of the multitude of State officers in the opposite scale.
Within every district to which a federal collector would be
allotted, there would not be less than thirty or forty, or even
more, officers of different descriptions, and many of them
persons of character and weight, whose influence would lie on the
side of the State. The powers delegated by the proposed
Constitution to the federal government are few and defined. Those
which are to remain in the State governments are numerous and
indefinite. The former will be exercised principally on external
objects, as war, peace, negotiation, and foreign commerce; with
which last the power of taxation will, for the most part, be
connected. The powers reserved to the several States will extend
to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people, and
the internal order, improvement, and prosperity of the State. The
operations of the federal government will be most extensive and
important in times of war and danger; those of the State
governments, in times of peace and security. As the former
periods will probably bear a small proportion to the latter, the
State governments will here enjoy another advantage over the
federal government. The more adequate, indeed, the federal powers
may be rendered to the national defense, the less frequent will
be those scenes of danger which might favor their ascendancy over
the governments of the particular States. If the new Constitution
be examined with accuracy and candor, it will be found that the
change which it proposes consists much less in the addition of
NEW POWERS to the Union, than in the invigoration of its ORIGINAL
POWERS. The regulation of commerce, it is true, is a new power;
but that seems to be an addition which few oppose, and from which
no apprehensions are entertained. The powers relating to war and
peace, armies and fleets, treaties and finance, with the other
more considerable powers, are all vested in the existing Congress
by the articles of Confederation. The proposed change does not
enlarge these powers; it only substitutes a more effectual mode
of administering them. The change relating to taxation may be
regarded as the most important; and yet the present Congress have
as complete authority to REQUIRE of the States indefinite
supplies of money for the common defense and general welfare, as
the future Congress will have to require them of individual
citizens; and the latter will be no more bound than the States
themselves have been, to pay the quotas respectively taxed on
them. Had the States complied punctually with the articles of
Confederation, or could their compliance have been enforced by as
peaceable means as may be used with success towards single
persons, our past experience is very far from countenancing an
opinion, that the State governments would have lost their
constitutional powers, and have gradually undergone an entire
consolidation. To maintain that such an event would have ensued,
would be to say at once, that the existence of the State
governments is incompatible with any system whatever that
accomplishes the essential purposes of the Union. PUBLIUS.

FEDERALIST No. 46

The Influence of the State and Federal Governments Compared
From the New York Packet. Tuesday, January 29, 1788.

MADISON

To the People of the State of New York:
RESUMING the subject of the last paper, I proceed to inquire
whether the federal government or the State governments will have
the advantage with regard to the predilection and support of the
people. Notwithstanding the different modes in which they are
appointed, we must consider both of them as substantially
dependent on the great body of the citizens of the United States.
I assume this position here as it respects the first, reserving
the proofs for another place. The federal and State governments
are in fact but different agents and trustees of the people,
constituted with different powers, and designed for different
purposes. The adversaries of the Constitution seem to have lost
sight of the people altogether in their reasonings on this
subject; and to have viewed these different establishments, not
only as mutual rivals and enemies, but as uncontrolled by any
common superior in their efforts to usurp the authorities of each
other. These gentlemen must here be reminded of their error. They
must be told that the ultimate authority, wherever the derivative
may be found, resides in the people alone, and that it will not
depend merely on the comparative ambition or address of the
different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the
other. Truth, no less than decency, requires that the event in
every case should be supposed to depend on the sentiments and
sanction of their common constituents. Many considerations,
besides those suggested on a former occasion, seem to place it
beyond doubt that the first and most natural attachment of the
people will be to the governments of their respective States.
Into the administration of these a greater number of individuals
will expect to rise. From the gift of these a greater number of
offices and emoluments will flow. By the superintending care of
these, all the more domestic and personal interests of the people
will be regulated and provided for. With the affairs of these,
the people will be more familiarly and minutely conversant. And
with the members of these, will a greater proportion of the
people have the ties of personal acquaintance and friendship, and
of family and party attachments; on the side of these,
therefore, the popular bias may well be expected most strongly to
incline. Experience speaks the same language in this case. The
federal administration, though hitherto very defective in
comparison with what may be hoped under a better system, had,
during the war, and particularly whilst the independent fund of
paper emissions was in credit, an activity and importance as
great as it can well have in any future circumstances whatever.
It was engaged, too, in a course of measures which had for their
object the protection of everything that was dear, and the
acquisition of everything that could be desirable to the people
at large. It was, nevertheless, invariably found, after the
transient enthusiasm for the early Congresses was over, that the
attention and attachment of the people were turned anew to their
own particular governments; that the federal council was at no
time the idol of popular favor; and that opposition to proposed
enlargements of its powers and importance was the side usually
taken by the men who wished to build their political consequence
on the prepossessions of their fellow-citizens. If, therefore,
as has been elsewhere remarked, the people should in future
become more partial to the federal than to the State governments,
the change can only result from such manifest and irresistible
proofs of a better administration, as will overcome all their
antecedent propensities. And in that case, the people ought not
surely to be precluded from giving most of their confidence where
they may discover it to be most due; but even in that case the
State governments could have little to apprehend, because it is
only within a certain sphere that the federal power can, in the
nature of things, be advantageously administered. The remaining
points on which I propose to compare the federal and State
governments, are the disposition and the faculty they may
respectively possess, to resist and frustrate the measures of
each other. It has been already proved that the members of the
federal will be more dependent on the members of the State
governments, than the latter will be on the former. It has
appeared also, that the prepossessions of the people, on whom
both will depend, will be more on the side of the State
governments, than of the federal government. So far as the
disposition of each towards the other may be influenced by these
causes, the State governments must clearly have the advantage.
But in a distinct and very important point of view, the advantage
will lie on the same side. The prepossessions, which the members
themselves will carry into the federal government, will generally
be favorable to the States; whilst it will rarely happen, that
the members of the State governments will carry into the public
councils a bias in favor of the general government. A local
spirit will infallibly prevail much more in the members of
Congress, than a national spirit will prevail in the legislatures
of the particular States. Every one knows that a great proportion
of the errors committed by the State legislatures proceeds from
the disposition of the members to sacrifice the comprehensive and
permanent interest of the State, to the particular and separate
views of the counties or districts in which they reside. And if

Book of the day: