The Federalist, Number 43
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
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
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
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.
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
''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. '' "
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. ''
1. "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
2. "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.
3. "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.