FEDERALIST No. 43

The Same Subject Continued(The Powers Conferred by the

Constitution Further Considered)

For the Independent Journal.

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