1787 Federalist 42 · Founding Made Plain

11787 Federalist No. 42

2The Powers Conferred by the Constitution

3Further Considered

4From the New York Packet.

5Tuesday, January 22, 1788.

6MADISON

7To the People of the State of New York:

8THE SECOND class of powers,

9 lodged in the general government,

10 consists of those which regulate the intercourse

11 with foreign nations, to wit:

12 to make treaties;

13 to send and receive ambassadors,

14 other public ministers, and consuls;

15 to define and punish piracies and felonies

16 committed on the high seas,

17 and offenses against the law of nations;

18 to regulate foreign commerce,

19 including a power to prohibit, after the year 1808,

20 the importation of slaves,

21 and to lay an intermediate duty

22 of ten dollars per head,

23 as a discouragement to such importations.

24This class of powers forms an obvious

25 and essential branch of the federal administration.

26If we are to be one nation in any respect,

27 it clearly ought to be in respect to other nations.

28The powers to make treaties

29 and to send and receive ambassadors,

30 speak their own propriety.

31Both of them are comprised

32 in the articles of Confederation,

33 with this difference only,

34 that the former is disembarrassed,

35 by the plan of the convention,

36 of an exception,

37 under which treaties might be substantially

38 frustrated by regulations of the States;

39 and that a power of appointing and receiving

40 "other public ministers and consuls,"

41 is expressly and very properly added

42 to the former provision concerning ambassadors.

43The term ambassador, if taken strictly,

44 as seems to be required

45 by the second of the articles of Confederation,

46 comprehends the highest grade only

47 of public ministers,

48 and excludes the grades

49 which the United States

50 will be most likely to prefer,

51 where foreign embassies may be necessary.

52And under no latitude of construction

53 will the term comprehend consuls.

54Yet it has been found expedient,

55 and has been the practice of Congress,

56 to employ the inferior grades of public ministers,

57 and to send and receive consuls.

58It is true,

59 that where treaties of commerce stipulate

60 for the mutual appointment of consuls,

61 whose functions are connected with commerce,

62 the admission of foreign consuls

63 may fall within the power

64 of making commercial treaties;

65 and that where no such treaties exist,

66 the mission of American consuls

67 into foreign countries

68 may PERHAPS be covered under the authority,

69 given by the ninth article of the Confederation,

70 to appoint all such civil officers

71 as may be necessary

72 for managing the general affairs

73 of the United States.

74But the admission of consuls into the United States,

75 where no previous treaty has stipulated it,

76 seems to have been nowhere provided for.

77A supply of the omission

78 is one of the lesser instances

79 in which the convention have improved

80 on the model before them.

81But the most minute provisions become important

82 when they tend to obviate the necessity

83 or the pretext

84 for gradual and unobserved usurpations of power.

85A list of the cases

86 in which Congress have been betrayed,

87 or forced by the defects of the Confederation,

88 into violations of their chartered authorities,

89 would not a little surprise those

90 who have paid no attention to the subject;

91 and would be no inconsiderable argument

92 in favor of the new Constitution,

93 which seems to have provided no less studiously

94 for the lesser,

95 than the more obvious and striking defects

96 of the old.

97The power to define and punish piracies and felonies

98 committed on the high seas,

99 and offenses against the law of nations,

100 belongs with equal propriety

101 to the general government,

102 and is a still greater improvement

103 on the articles of Confederation.

104These articles contain no provision

105 for the case of offenses against the law of nations;

106 and consequently leave it in the power

107 of any indiscreet member

108 to embroil the Confederacy with foreign nations.

109The provision of the federal articles

110 on the subject of piracies and felonies

111 extends no further

112 than to the establishment of courts

113 for the trial of these offenses.

114The definition of piracies might, perhaps,

115 without inconveniency,

116 be left to the law of nations;

117 though a legislative definition of them

118 is found in most municipal codes.

119A definition of felonies on the high seas

120 is evidently requisite.

121Felony is a term of loose signification,

122 even in the common law of England;

123 and of various import

124 in the statute law of that kingdom.

125But neither the common nor the statute law

126 of that, or of any other nation,

127 ought to be a standard for the proceedings of this,

128 unless previously made its own

129 by legislative adoption.

130The meaning of the term,

131 as defined in the codes of the several States,

132 would be as impracticable

133 as the former would be

134 a dishonorable and illegitimate guide.

135It is not precisely the same in any two of the States;

136 and varies in each

137 with every revision of its criminal laws.

138For the sake of certainty and uniformity, therefore,

139 the power of defining felonies in this case

140 was in every respect necessary and proper.

141The regulation of foreign commerce,

142 having fallen within several views

143 which have been taken of this subject,

144 has been too fully discussed

145 to need additional proofs here

146 of its being properly submitted

147 to the federal administration.

148It were doubtless to be wished,

149 that the power of prohibiting the importation of slaves

150 had not been postponed until the year 1808,

151 or rather that it had been suffered

152 to have immediate operation.

153But it is not difficult to account,

154 either for this restriction on the general government,

155 or for the manner in which the whole clause

156 is expressed.

157It ought to be considered as a great point gained

158 in favor of humanity,

159 that a period of twenty years may terminate forever,

160 within these States,

161 a traffic which has so long and so loudly upbraided

162 the barbarism of modern policy;

163 that within that period,

164 it will receive a considerable discouragement

165 from the federal government,

166 and may be totally abolished,

167 by a concurrence of the few States

168 which continue the unnatural traffic,

169 in the prohibitory example

170 which has been given

171 by so great a majority of the Union.

172Happy would it be for the unfortunate Africans,

173 if an equal prospect lay before them

174 of being redeemed from the oppressions

175 of their European brethren!

176Attempts have been made to pervert this clause

177 into an objection against the Constitution,

178 by representing it on one side

179 as a criminal toleration of an illicit practice,

180 and on another as calculated

181 to prevent voluntary and beneficial emigrations

182 from Europe to America.

183I mention these misconstructions,

184 not with a view to give them an answer,

185 for they deserve none,

186 but as specimens of the manner and spirit

187 in which some have thought fit

188 to conduct their opposition

189 to the proposed government.

190The powers included in the THIRD class

191 are those which provide for the harmony

192 and proper intercourse among the States.

193Under this head might be included

194 the particular restraints

195 imposed on the authority of the States,

196 and certain powers of the judicial department;

197 but the former are reserved for a distinct class,

198 and the latter will be particularly examined

199 when we arrive at the structure

200 and organization of the government.

201I shall confine myself to a cursory review

202 of the remaining powers

203 comprehended under this third description, to wit:

204 to regulate commerce among the several States

205 and the Indian tribes;

206 to coin money, regulate the value thereof,

207 and of foreign coin;

208 to provide for the punishment of counterfeiting

209 the current coin and secureties

210 of the United States;

211 to fix the standard of weights and measures;

212 to establish a uniform rule of naturalization,

213 and uniform laws of bankruptcy,

214 to prescribe the manner

215 in which the public acts, records,

216 and judicial proceedings of each State

217 shall be proved,

218 and the effect they shall have in other States;

219 and to establish post offices and post roads.

220The defect of power in the existing Confederacy

221 to regulate the commerce between its several members,

222 is in the number of those

223 which have been clearly pointed out by experience.

224To the proofs and remarks

225 which former papers have brought into view

226 on this subject,

227 it may be added

228 that without this supplemental provision,

229 the great and essential power

230 of regulating foreign commerce

231 would have been incomplete and ineffectual.

232A very material object of this power

233 was the relief of the States

234 which import and export through other States,

235 from the improper contributions

236 levied on them by the latter.

237Were these at liberty

238 to regulate the trade between State and State,

239 it must be foreseen that ways would be found out

240 to load the articles of import and export,

241 during the passage through their jurisdiction,

242 with duties which would fall

243 on the makers of the latter

244 and the consumers of the former.

245We may be assured by past experience,

246 that such a practice would be introduced

247 by future contrivances;

248 and both by that

249 and a common knowledge of human affairs,

250 that it would nourish unceasing animosities,

251 and not improbably terminate

252 in serious interruptions

253 of the public tranquillity.

254To those who do not view the question

255 through the medium of passion or of interest,

256 the desire of the commercial States to collect,

257 in any form,

258 an indirect revenue

259 from their uncommercial neighbors,

260 must appear not less impolitic than it is unfair;

261 since it would stimulate the injured party,

262 by resentment as well as interest,

263 to resort to less convenient channels

264 for their foreign trade.

265But the mild voice of reason,

266 pleading the cause

267 of an enlarged and permanent interest,

268 is but too often drowned,

269 before public bodies as well as individuals,

270 by the clamors of an impatient avidity

271 for immediate and immoderate gain.

272The necessity of a superintending authority

273 over the reciprocal trade of confederated States,

274 has been illustrated by other examples

275 as well as our own.

276In Switzerland, where the Union is so very slight,

277 each canton is obliged to allow to merchandises

278 a passage through its jurisdiction

279 into other cantons,

280 without an augmentation of the tolls.

281In Germany it is a law of the empire,

282 that the princes and states

283 shall not lay tolls or customs

284 on bridges, rivers, or passages,

285 without the consent of the emperor and the diet;

286 though it appears from a quotation

287 in an antecedent paper,

288 that the practice in this,

289 as in many other instances in that confederacy,

290 has not followed the law,

291 and has produced there the mischiefs

292 which have been foreseen here.

293Among the restraints imposed

294 by the Union of the Netherlands on its members,

295 one is, that they shall not establish imposts

296 disadvantageous to their neighbors,

297 without the general permission.

298The regulation of commerce with the Indian tribes

299 is very properly unfettered

300 from two limitations

301 in the articles of Confederation,

302 which render the provision

303 obscure and contradictory.

304The power is there restrained to Indians,

305 not members of any of the States,

306 and is not to violate or infringe

307 the legislative right of any State

308 within its own limits.

309What description of Indians

310 are to be deemed members of a State,

311 is not yet settled,

312 and has been a question

313 of frequent perplexity and contention

314 in the federal councils.

315And how the trade with Indians,

316 though not members of a State,

317 yet residing within its legislative jurisdiction,

318 can be regulated by an external authority,

319 without so far intruding

320 on the internal rights of legislation,

321 is absolutely incomprehensible.

322This is not the only case

323 in which the articles of Confederation

324 have inconsiderately endeavored

325 to accomplish impossibilities;

326 to reconcile a partial sovereignty in the Union,

327 with complete sovereignty in the States;

328 to subvert a mathematical axiom,

329 by taking away a part,

330 and letting the whole remain.

331All that need be remarked

332 on the power to coin money,

333 regulate the value thereof, and of foreign coin,

334 is, that by providing for this last case,

335 the Constitution has supplied a material omission

336 in the articles of Confederation.

337The authority of the existing Congress

338 is restrained to the regulation of coin

339 STRUCK by their own authority,

340 or that of the respective States.

341It must be seen at once

342 that the proposed uniformity in the VALUE

343 of the current coin

344 might be destroyed

345 by subjecting that of foreign coin

346 to the different regulations

347 of the different States.

348The punishment of counterfeiting the public securities,

349 as well as the current coin,

350 is submitted of course to that authority

351 which is to secure the value of both.

352The regulation of weights and measures

353 is transferred from the articles of Confederation,

354 and is founded on like considerations

355 with the preceding power of regulating coin.

356The dissimilarity in the rules of naturalization

357 has long been remarked as a fault in our system,

358 and as laying a foundation

359 for intricate and delicate questions.

360In the fourth article of the Confederation,

361 it is declared

362 "that the FREE INHABITANTS of each of these States,

363 paupers, vagabonds,

364 and fugitives from justice, excepted,

365 shall be entitled to all privileges and immunities

366 of FREE CITIZENS in the several States;

367 and THE PEOPLE of each State shall,

368 in every other,

369 enjoy all the privileges of trade and commerce,"

370 etc.

371There is a confusion of language here,

372 which is remarkable.

373Why the terms FREE INHABITANTS

374 are used in one part of the article,

375 FREE CITIZENS in another,

376 and PEOPLE in another;

377 or what was meant by superadding

378 to "all privileges and immunities

379 of free citizens,"

380 "all the privileges of trade and commerce,"

381 cannot easily be determined.

382It seems to be a construction scarcely avoidable,

383 however,

384 that those who come under the denomination

385 of FREE INHABITANTS of a State,

386 although not citizens of such State,

387 are entitled, in every other State,

388 to all the privileges of FREE CITIZENS

389 of the latter;

390 that is, to greater privileges

391 than they may be entitled to in their own State:

392 so that it may be in the power of a particular State,

393 or rather every State is laid under a necessity,

394 not only to confer the rights of citizenship

395 in other States

396 upon any whom it may admit

397 to such rights within itself,

398 but upon any whom it may allow

399 to become inhabitants within its jurisdiction.

400But were an exposition of the term "inhabitants"

401 to be admitted

402 which would confine the stipulated privileges

403 to citizens alone,

404 the difficulty is diminished only, not removed.

405The very improper power would still be retained

406 by each State,

407 of naturalizing aliens in every other State.

408In one State, residence for a short term

409 confirms all the rights of citizenship:

410 in another, qualifications of greater importance

411 are required.

412An alien, therefore,

413 legally incapacitated for certain rights in the latter,

414 may, by previous residence only in the former,

415 elude his incapacity;

416 and thus the law of one State

417 be preposterously rendered paramount

418 to the law of another,

419 within the jurisdiction of the other.

420We owe it to mere casualty,

421 that very serious embarrassments on this subject

422 have been hitherto escaped.

423By the laws of several States,

424 certain descriptions of aliens,

425 who had rendered themselves obnoxious,

426 were laid under interdicts

427 inconsistent not only

428 with the rights of citizenship

429 but with the privilege of residence.

430What would have been the consequence,

431 if such persons, by residence or otherwise,

432 had acquired the character of citizens

433 under the laws of another State,

434 and then asserted their rights as such,

435 both to residence and citizenship,

436 within the State proscribing them?

437Whatever the legal consequences might have been,

438 other consequences would probably have resulted,

439 of too serious a nature

440 not to be provided against.

441The new Constitution has accordingly,

442 with great propriety, made provision against them,

443 and all others proceeding from the defect

444 of the Confederation on this head,

445 by authorizing the general government

446 to establish a uniform rule of naturalization

447 throughout the United States.

448The power of establishing uniform laws of bankruptcy

449 is so intimately connected

450 with the regulation of commerce,

451 and will prevent so many frauds

452 where the parties or their property

453 may lie or be removed into different States,

454 that the expediency of it

455 seems not likely to be drawn into question.

456The power of prescribing by general laws,

457 the manner in which the public acts, records

458 and judicial proceedings of each State

459 shall be proved,

460 and the effect they shall have in other States,

461 is an evident and valuable improvement

462 on the clause relating to this subject

463 in the articles of Confederation.

464The meaning of the latter is extremely indeterminate,

465 and can be of little importance

466 under any interpretation which it will bear.

467The power here established

468 may be rendered a very convenient instrument

469 of justice,

470 and be particularly beneficial

471 on the borders of contiguous States,

472 where the effects liable to justice

473 may be suddenly and secretly translated,

474 in any stage of the process,

475 within a foreign jurisdiction.

476The power of establishing post roads must,

477 in every view, be a harmless power,

478 and may, perhaps, by judicious management,

479 become productive of great public conveniency.

480Nothing which tends to facilitate the intercourse

481 between the States

482 can be deemed unworthy of the public care.

483PUBLIUS.