obliged to allow to merchandises a passage through its
jurisdiction into other Cantons, without an augmenta-
tion 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 Diet ; though it appears from a quota-
tion 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 mem-
bers, one is, that they shall not establish imposts disad-
vantageous to their neighbors, without the general per-
mission.

The regulation of commerce with the Indian tribes is
very properly unfettered from two limitations in the Ar-
ticles of Confederation, which render the provision ob-
scure 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
vithin 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 con-
tention in the Foederal Councils. And how the trade



294 The Fcederalist.

with Indians, though not members of a State, yet resid-
ing within its legislative jurisdiction, can be regulated
by an external authority, without so far intruding on the
internal rights of legislation, is absolutely incomprelien-
sible. This is not the only case, in which the Ai'ticles
of Confederation have inconsiderately endeavored to
accomplish impossibilities ; to reconcile a partial sover-
eignty 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 fi material omission in the Articles of Con-
federation. 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 securi-
ties, 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 regulat-
ing coin.

The dissimilarity in the rules of naturalization has
long been remarked as a fault in our system, and as lay-
ing 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, pau-
" pers, vagabonds, and fugitives from justice excepted,
" shall be entitled to all privileges and immunities of
"/ree citizens in the several States; and the People of



The Fcederalist. 295

" each State shall, in every other, enjoy all the privileges
" of trade and commerce," &c. 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 ad-
mit 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 privi-
leges 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
confers all the rights of citizenship: in another, qualifica-
tions 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
jireposterously rendered paramount to the law of an-
other, 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 inter-



293 Tlie FcBderalist

diets 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 prescribing them ? Whatever the legal conse-
quences might have been, other consequences would
probably have resulted of too serious a nature, not to be
provided against. The new Constitution has accord-
ingly, with great propriety, made provision against them,
and all others proceeding from the defect of the Con-
federation, on this head, by authorizing the General Gov-
ernment to establish an uniform rule of naturalization
throughout the United States.

The power of establishing uniform laws of bankruptcy
is so intimately connected with the regulation of com-
merce, and will prevent so many frauds where the par-
ties or their property may lie, or be removed into dif-
ferent States, that the expediency of it seems not likely
to be drawn into question.

The power of prescribing, by general laws, the man-
ner in which the public Acts, records, and judicial pro-
ceedings of each State, shall be proved, and the effect
they shall have in other States, is an evident and valu-
able 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



TJie Fcederaast. 297

view, be a harmless power; and may perhaps, by judi-
cious management, become productive of great public
conveniency. Nothing which tends to facilitate the in-
tercourse between the States can be deemed unworthy
of the public care.

PUBLIUS.



IFor the Independent Journal.']

THE FCEDERALIST. No. XLII.



To THE People of the State of New York:

^i^HE fourth class comprises the following miscella-
-■- neous 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 at common law. The
right to useful inventions seems with equal reason to
belong to the inventors. The public good fully coin-
cides in both cases with the claims of individuals. The
States cannot separately make effectual provision 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 what-
" soever, 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



298 The Fmleralist.

" 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, dock-
" yards, 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 gen-
eral supremacy. Without it, not only the public author-
ity might be insulted and its proceedings be 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 exer-
cise 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 mem-
bers of the Confederacy. This consideration has the
more weight, as the gradual accumulation of public
improvements at the stationary residence of the Gov-
ernment, 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 ex-
tent of this Foederal 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 pro-
vide 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 par-
ties 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 suffi-ages, will
of course be allowed them ; and as the authoritv of the



The Federalist. 299

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 s^ems
to be obviated.

The necessity of a like authority over forts, maga-
zines, &c., established by the General Government, is
not less evident. The public money expended on such
places, and the public property deposited in them, re-
quire, 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 con-
cerned, 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 at-
" tainted."

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 otTspring of free Governments, 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 Constitu-
tional 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 juris-
" diction of any other State ; nor any State be formed
•' by the junction of two or more States, or parts of



300 The Fmderalist.

" States, withont 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 Stales
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 Foederal authority, and
that of the States concerned, is consonant to the princi-
ples which ought to govern such transactions. The par-
ticular 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 pro-
priety of the former. The proviso annexed is proper in
itself, and was probably rendered absolutely necessary
by jealousies and questions concerning the Western ter-
ritory sufficiently known to the public.

6. " To guarantee to every State in the Union a re-
" publican form of Government ; to protect each of them



The FcBderalist. 301

" 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 superintend-
ing Government ought clearly to possess authority to
defend the system against aristocratic or monarchical
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 substan-
tially 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 Foederal 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, experi-
" ence 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 mo-
narchical 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 enter-



302 Tlie Foederalist

prising leaders, or by the intrigues and influence of
foreign powers ? To the second question it may be
answered, that if the General Government should inter-
pose by virtue of this Constitutional authority, it will
be of course bound to pursue the authority. But the
authority extends no farther than to a guaranty of a
republican form of Government, which supposes a pre-
existing Government of the form which is to be guar-
anteed. As long, therefore, as the existing republican
forms are continued by the States, they are guaranteed
by the Foederal Constitution. Whenever the States
may choose to substitute other republican forms, they
have a right to do so, and to claim the Foederal guar-
anty for the latter. The only restriction imposed on
them is, that they shall not exchange republican for
anti-republican Constitutions ; a restriction which, it is
presumed, will hardly be considered as a grievance.

A protection against invasion is due from every soci-
ety to the parts composing it. The latitude of the ex-
pression here used, seems to secure each State, not only
against foreign hostility, but against ambitious or vin-
dictive 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 ob-
ject ; 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



The Fcederalisf. 303

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 Foederal 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 Foederal authority,
in the former, to support the State authority ? Besides,
there are certain pai'ts of the State Constitutions, which
are so interwoven with the Foederal Constitution, that a^
violent blow cannot be given to the one, without com-
municatinc; the wound to the other. Insurrections in a
State will rarely induce a Foederal 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 gen-
erally 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 re-
sources, 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 com-
pact 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



304 The Foederalist.

calculated by the rules which prevail in a census of the
inhabitants, or which determine the event of an elec-
tion ! 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 supe-
riority of strength to any party with which they may
associate themselves.

In cases where it may be doubtful on which side jus-
tice 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 I

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 Constitu-
tional 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 prob-
ability ; and that it is a sufficient recommendation of
the Foederal Constitution, that it diminishes the risk of
a calamity, for which no possible Constitution can pro-
vide a cure.

Among the advantages of a Confederate republic,
enumerated by Montesquieu, an important one is, "that



Tlie Fcederalist. 305

" 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 engage-
" ments entered into, before the adoption of this Con-
" stitution, as being no less valid against the United
" States, under this Constitution, than under the Con-
" federation."

This can only be considered as a declaratory proposi-
tion ; and may have been inserted, among other reasons,
for the satisfaction of the foreign creditors of the United
States, who cannot be sti^angers to the pretended doc-
trine, that a change in the political form of civil society,
has the magical effect of dissolving its moral obliga-
tions.

Among the lesser criticisms which have been exer-
cised 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 in-
formed of, that as engagements are in their nature recip-
rocal, an assertion of their validity on one side, necessa-
rily 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 con-
demned.
VOL. I. . 20



306 The Fcederalist.

8. " To provide for amendments to be ratified by
" three fom-ths of the States, under two exceptions
« only."

That useful alterations will be suggested by experi-
ence, could not but be foreseen. It was requisite, there-
fore, that a mode for introducing them should be pro-
vided. The mode preferred by the Convention seems
to be stamped with every mark of propriety. It guards
equally against tJiat extreme facility, which would ren-
der the Constitution too mutable ; and that extreme