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

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.



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."



7. "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 United States, who cannot be strangers to the pretended

doctrine, that a change in the political form of civil society has the

magical effect of dissolving its moral obligations.



Among the lesser criticisms which have been exercised on the

Constitution, it has been remarked that the validity of engagements

ought to have been asserted in favor of the United States, as well as

against them; and in the spirit which usually characterizes little

critics, the omission has been transformed and magnified into a plot

against the national rights. The authors of this discovery may be told,

what few others need to be informed of, that as engagements are in their

nature reciprocal, an assertion of their validity on one side,

necessarily involves a validity on the other side; and that as the

article is merely declaratory, the establishment of the principle in one

case is sufficient for every case. They may be further told, that every

constitution must limit its precautions to dangers that are not

altogether imaginary; and that no real danger can exist that the

government would DARE, with, or even without, this constitutional

declaration before it, to remit the debts justly due to the public, on

the pretext here condemned.



8. "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.



9. "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