fp42.txt

THE SECOND class of powers, lodged in the general government, consists 
        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 offenses 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 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 the establishment of courts for the trial of these 
        offenses. 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. 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 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. The powers included in the 
        THIRD class are those which provide for 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 secureties 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 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. 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 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 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 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. 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. 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 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.