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 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 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, 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 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 hand 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 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, require 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 attainted."
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 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 concurrent 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
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 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 preexisting 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 anti-republican
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 square with the republican theory,
to suppose, either 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 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 informed by
those that remain sound."
(7.) "To consider all debts contracted, and engagements entered
into, before the adoption of the 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 will 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 over-curious
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.
Signed "PUBLIUS"
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