The Federalist Papers
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. Wednesday, January 23, 1788
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