THE second class of powers, lodged in the general government,
consist of those which regulate the intercourse with foreign
nations, to wit: to make treaties; to send and receive ambassadors,
other public ministers, and consuls; to define and punish piracies
and felonies committed on the high seas, and offences against the
law of nations; to regulate foreign commerce, including a power to
prohibit, after the year 1808, the importation of slaves, and to lay
an intermediate duty of ten dollars per head, as a discouragement to
such importations.
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.
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 "other public ministers and consuls," is expressly and
very properly added to the former provision concerning ambassadors.
The term ambassador, if taken strictly, as seems to be required by
the second of the articles of Confederation, 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 perhaps be
covered under the authority, given by the ninth article of the
Confederation, 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.
The power to define and punish piracies and felonies committed on
the high seas, and offences 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 offences 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 the establishment of courts for the trial of these
offences. 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 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.
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.
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 has 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 to 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.
The powers included in the third class are those which provide the
harmony and proper intercourse among the States.
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 regulate commerce among the several
States and the Indian tribes; to coin money, regulate the value
thereof, and of foreign coin: to provide for the punishment of
counterfeiting the current coin and securities of the United States;
to fix the standard of weights and measures; to establish a uniform
rule of naturalization, and uniform laws of bankruptcy; to prescribe
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; and to establish post offices and post roads.
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.
The necessity of a superintending authority over the reciprocal
trade of confederate 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 organization
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.
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
then 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. 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.
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 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 securities, 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 regulating coin.
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 the fourth article of the
Confederation, it is declared "that the free inhabitants of each of
these States, paupers, vagabonds, and fugitives from justice
excepted, shall be entitled to all privileges and immunities of free
citizens in the several States; and the people of each State shall,
in every other, enjoy all the privileges of trade and commerce,"
etc. There is 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 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 causalty, 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.
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 its
seems not likely to be drawn into question.
The power of prescribing the 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 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 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.
Signed "PUBLIUS"
|