The Federalist Papers
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.