Federalist Paper 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.
(Continue to Page 44)
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