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<h1 class="entry-title"><a rel="bookmark" href="42">Federalist № 42</a></h1>
<h2 class="entry-summary">
The Powers Conferred by the Constitution Further Considered
</h2>
<div class="entry-content">
<p id="salutation">To the People of the State of New York:</p>
<p id="p1"><span class="initial">The second</span> class of
powers, lodged in the general government, consists of those which
regulate the intercourse with foreign nations, to wit: to <a
href="constitution#a2s2c2">make treaties</a>; to <a
href="constitution#a2s2c2">send and receive ambassadors, other
public ministers, and consuls</a>; to <a
href="constitution#a1s8c10">define and punish piracies and
felonies committed on the high seas, and offenses against the law
of nations</a>; to <a href="constitution#a1s8c3">regulate foreign
commerce</a>, including a <a href="constitution#a1s9c1">power to
prohibit, after the year 1808, the importation of slaves</a>, and
to <a href="constitution#a1s9c1">lay an intermediate duty</a> of
ten dollars per head, as a discouragement to such importations. <a
class="permalink" href="#p1">¶</a></p>
<p id="p2">This class of powers forms an obvious and essential
branch of the federal administration. If we are to be one nation
in any respect, it clearly ought to be in respect to other
nations. <a class="permalink" href="#p2">¶</a></p>
<p id="p3">The powers to make treaties and to send and receive
ambassadors, speak their own propriety. Both of them are comprised
in the articles of Confederation, with this difference only, that
the former is disembarrassed, by the plan of the convention, of an
exception, under which treaties might be substantially frustrated
by regulations of the States; and that a power of appointing and
receiving <q cite="constitution#a2s2c2">other public ministers and
consuls,</q> is expressly and very properly added to the former
provision concerning ambassadors. The term ambassador, if taken
strictly, as seems to be required by <a href="articles#a2">the
second of the articles of Confederation</a>, comprehends the
highest grade only of public ministers, and excludes the grades
which the United States will be most likely to prefer, where
foreign embassies may be necessary. And under no latitude of
construction will the term comprehend consuls. Yet it has been
found expedient, and has been the practice of Congress, to employ
the inferior grades of public ministers, and to send and receive
consuls. It is true, that where treaties of commerce stipulate for
the mutual appointment of consuls, whose functions are connected
with commerce, the admission of foreign consuls may fall within
the power of making commercial treaties; and that where no such
treaties exist, the mission of American consuls into foreign
countries may <em>perhaps</em> be covered under the authority,
given by <a href="articles#a9">the ninth article of the
Confederation</a>, to appoint all such civil officers as may be
necessary for managing the general affairs of the United States.
But the admission of consuls into the United States, where no
previous treaty has stipulated it, seems to have been nowhere
provided for. A supply of the omission is one of the lesser
instances in which the convention have improved on the model
before them. But the most minute provisions become important when
they tend to obviate the necessity or the pretext for gradual and
unobserved usurpations of power. A list of the cases in which
Congress have been betrayed, or forced by the defects of the
Confederation, into violations of their chartered authorities,
would not a little surprise those who have paid no attention to
the subject; and would be no inconsiderable argument in favor of
the new Constitution, which seems to have provided no less
studiously for the lesser, than the more obvious and striking
defects of the old. <a class="permalink" href="#p3">¶</a></p>
<p id="p4">The power to define and punish piracies and felonies
committed on the high seas, and offenses against the law of
nations, belongs with equal propriety to the general government,
and is a still greater improvement on the articles of
Confederation. These articles contain no provision for the case of
offenses against the law of nations; and consequently leave it in
the power of any indiscreet member to embroil the Confederacy with
foreign nations. The provision of the federal articles on the
subject of piracies and felonies extends no further than to <a
href="articles#a9">the establishment of courts for the trial of
these offenses</a>. The definition of piracies might, perhaps,
without inconveniency, be left to the law of nations; though a
legislative definition of them is found in most municipal codes. A
definition of felonies on the high seas is evidently requisite.
Felony is a term of loose signification, even in the common law of
England; and of various import in the statute law of that kingdom.
But neither the common nor the statute law of that, or of any
other nation, ought to be a standard for the proceedings of this,
unless previously made its own by legislative adoption. The
meaning of the term, as defined in the codes of the several
States, would be as impracticable as the former would be a
dishonorable and illegitimate guide. It is not precisely the same
in any two of the States; and varies in each with every revision
of its criminal laws. For the sake of certainty and uniformity,
therefore, the power of defining felonies in this case was in
every respect necessary and proper. <a class="permalink"
href="#p4">¶</a></p>
<p id="p5">The regulation of foreign commerce, having fallen
within several views which have been taken of this subject, has
been too fully discussed to need additional proofs here of its
being properly submitted to the federal administration. <a
class="permalink" href="#p5">¶</a></p>
<p id="p6">It were doubtless to be wished, that the power of
prohibiting the importation of slaves had not been postponed until
the year 1808, or rather that it had been suffered to have
immediate operation. But it is not difficult to account, either
for this restriction on the general government, or for the manner
in which the whole clause is expressed. It ought to be considered
as a great point gained in favor of humanity, that a period of
twenty years may terminate forever, within these States, a traffic
which has so long and so loudly upbraided the barbarism of modern
policy; that within that period, it will receive a considerable
discouragement from the federal government, and may be totally
abolished, by a concurrence of the few States which continue the
unnatural traffic, in the prohibitory example which has been given
by so great a majority of the Union. Happy would it be for the
unfortunate Africans, if an equal prospect lay before them of
being redeemed from the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection
against the Constitution, by representing it on one side as a
criminal toleration of an illicit practice, and on another as
calculated to prevent voluntary and beneficial emigrations from
Europe to America. I mention these misconstructions, not with a
view to give them an answer, for they deserve none, but as
specimens of the manner and spirit in which some have thought fit
to conduct their opposition to the proposed government. <a
class="permalink" href="#p6">¶</a></p>
<p id="p7">The powers included in the <em>third</em> class are
those which provide for the harmony and proper intercourse among
the States. <a class="permalink" href="#p7">¶</a></p>
<p id="p8">Under this head might be included the particular
restraints imposed on the authority of the States, and certain
powers of the judicial department; but the former are reserved for
a distinct class, and the latter will be particularly examined
when we arrive at the structure and organization of the
government. I shall confine myself to a cursory review of the
remaining powers comprehended under this third description, to
wit: to <a href="constitution#a1s8c3">regulate commerce among the
several States and the Indian tribes</a>; to <a
href="constitution#a1s8c5">coin money</a>, regulate the value
thereof, and of foreign coin; to <a
href="constitution#a1s8c6">provide for the punishment of
counterfeiting</a> the current coin and secureties of the United
States; to <a href="constitution#a1s8c5">fix the standard of
weights and measures</a>; to <a
href="constitution#a1s8c4">establish a uniform rule of
naturalization, and uniform laws of bankruptcy</a>, to <a
href="constitution#a4s1">prescribe the manner</a> in which the
public acts, records, and judicial proceedings of each State shall
be proved, and the effect they shall have in other States; and to
<a href="constitution#a1s8c7">establish post offices and post
roads</a>. <a class="permalink" href="#p8">¶</a></p>
<p id="p9">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.
<a class="permalink" href="#p9">¶</a></p>
<p id="p10">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. <a class="permalink"
href="#p10">¶</a></p>
<p id="p11">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 <a
href="articles#a9c4">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</a>. 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. <a class="permalink" href="#p11">¶</a></p>
<p id="p12">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
<em>struck</em> by their own authority, or that of the respective
States. It must be seen at once that the proposed uniformity in
the <em>value</em> of the current coin might be destroyed by
subjecting that of foreign coin to the different regulations of
the different States. <a class="permalink" href="#p12">¶</a></p>
<p id="p13">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. <a
class="permalink" href="#p13">¶</a></p>
<p id="p14">The regulation of weights and measures is <a
href="articles#a9c4">transferred from the articles of
Confederation</a>, and is founded on like considerations with the
preceding power of regulating coin. <a class="permalink"
href="#p14">¶</a></p>
<p id="p15">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 <a
href="articles#a4">the fourth article of the Confederation</a>, it
is declared <q cite="articles#a4">that the <em>free
inhabitants</em> of each of these States, paupers, vagabonds, and
fugitives from justice, excepted, shall be entitled to all
privileges and immunities of <em>free citizens</em> in the several
States; and <em>the people</em> of each State shall, in every
other, enjoy all the privileges of trade and commerce,</q> etc.
There is a confusion of language here, which is remarkable. Why
the terms <em>free inhabitants</em> are used in one part of the
article, <em>free citizens</em> in another, and <em>people</em> in
another; or what was meant by superadding to <q
cite="articles#a4">all privileges and immunities of free
citizens,</q> <q cite="articles#a4">all the privileges of trade
and commerce,</q> cannot easily be determined. It seems to be a
construction scarcely avoidable, however, that those who come
under the denomination of <em>free inhabitants</em> of a State,
although not citizens of such State, are entitled, in every other
State, to all the privileges of <em>free citizens</em> 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. <a class="permalink" href="#p15">¶</a></p>
<p id="p16">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. <a
class="permalink" href="#p16">¶</a></p>
<p id="p17">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 <a
href="articles#a4c3">the clause relating to this subject in the
articles of Confederation</a>. 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. <a class="permalink" href="#p17">¶</a></p>
<p id="p18">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. <a class="permalink"
href="#p18">¶</a></p>
<address class="vcard author">
<span class="nickname">Publius</span>.
[<span class="fn">James Madison</span>]
</address>
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<div class="meta">
<p>
First published in the <abbr class="published updated"
title="1788-01-22">Tuesday, January 22, 1788</abbr> issue of the
<span class="publication">New York Packet</span>.
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