{"id":49832,"date":"2014-06-16T13:13:46","date_gmt":"2014-06-16T18:13:46","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/documents\/federalist\/federalist43.html"},"modified":"2014-06-16T13:13:46","modified_gmt":"2014-06-16T18:13:46","slug":"federalist43","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/documents\/federalist\/federalist43.html","title":{"rendered":"FEDERALIST PAPER NO. 43"},"content":{"rendered":"\n
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Federalist Paper No. 43<\/h1>\n
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Written by James Madison and published in 1788, this essay describes "miscellaneous" powers given to Congress by the Constitution. Most notably, the basis of copyright and patent law. <\/p>\n\n <\/div>\n\n<\/b>\n\n\n

THE FOURTH class comprises the following miscellaneous powers:1.A power “to promote the progress of science and useful arts, bysecuring, for a limited time, to authors and inventors, theexclusive right to their respective writings and discoveries.”The utility of this power will scarcely be questioned. Thecopyright of authors has been solemnly adjudged, in GreatBritain, to be a right of common law. The right to usefulinventions seems with equal reason to belong to the inventors.<\/p>

The public good fully coincides in both cases with the claims ofindividuals. The States cannot separately make effectualprovisions for either of the cases, and most of them haveanticipated the decision of this point, by laws passed at theinstance of Congress. 2. “To exercise exclusive legislation, inall cases whatsoever, over such district (not exceeding ten milessquare) as may, by cession of particular States and theacceptance of Congress, become the seat of the government of theUnited States; and to exercise like authority over all placespurchased by the consent of the legislatures of the States inwhich the same shall be, for the erection of forts, magazines,arsenals, dockyards, and other needful buildings. ”Theindispensable necessity of complete authority at the seat ofgovernment, carries its own evidence with it. It is a powerexercised by every legislature of the Union, I might say of theworld, by virtue of its general supremacy. Without it, not onlythe public authority might be insulted and its proceedingsinterrupted with impunity; but a dependence of the members of thegeneral government on the State comprehending the seat of thegovernment, for protection in the exercise of their duty, mightbring on the national councils an imputation of awe or influence,equally dishonorable to the government and dissatisfactory to theother members of the Confederacy. This consideration has the moreweight, as the gradual accumulation of public improvements at thestationary residence of the government would be both too great apublic pledge to be left in the hands of a single State, andwould create so many obstacles to a removal of the government, asstill further to abridge its necessary independence. The extentof this federal district is sufficiently circumscribed to satisfyevery jealousy of an opposite nature. And as it is to beappropriated to this use with the consent of the State ceding it;as the State will no doubt provide in the compact for the rightsand the consent of the citizens inhabiting it; as the inhabitantswill find sufficient inducements of interest to become willingparties to the cession; as they will have had their voice in theelection of the government which is to exercise authority overthem; as a municipal legislature for local purposes, derived fromtheir own suffrages, will of course be allowed them; and as theauthority of the legislature of the State, and of the inhabitantsof the ceded part of it, to concur in the cession, will bederived from the whole people of the State in their adoption ofthe Constitution, every imaginable objection seems to beobviated. The necessity of a like authority over forts,magazines, etc. , established by the general government, is notless evident. The public money expended on such places, and thepublic property deposited in them, requires that they should beexempt from the authority of the particular State. Nor would itbe proper for the places on which the security of the entireUnion may depend, to be in any degree dependent on a particularmember of it. All objections and scruples are here also obviated,by requiring the concurrence of the States concerned, in everysuch establishment. 3. “To declare the punishment of treason,but no attainder of treason shall work corruption of blood, orforfeiture, except during the life of the person attained. ”Astreason may be committed against the United States, the authorityof the United States ought to be enabled to punish it. But asnew-fangled and artificial treasons have been the great enginesby which violent factions, the natural offspring of freegovernment, have usually wreaked their alternate malignity oneach other, the convention have, with great judgment, opposed abarrier to this peculiar danger, by inserting a constitutionaldefinition of the crime, fixing the proof necessary forconviction of it, and restraining the Congress, even in punishingit, from extending the consequences of guilt beyond the person ofits author. 4. “To admit new States into the Union; but no newState shall be formed or erected within the jurisdiction of anyother State; nor any State be formed by the junction of two ormore States, or parts of States, without the consent of thelegislatures of the States concerned, as well as of the Congress.”In the articles of Confederation, no provision is found on thisimportant subject. Canada was to be admitted of right, on herjoining in the measures of the United States; and the otherCOLONIES, by which were evidently meant the other Britishcolonies, at the discretion of nine States. The eventualestablishment of NEW STATES seems to have been overlooked by thecompilers of that instrument. We have seen the inconvenience ofthis omission, and the assumption of power into which Congresshave been led by it. With great propriety, therefore, has the newsystem supplied the defect. The general precaution, that no newStates shall be formed, without the concurrence of the federalauthority, and that of the States concerned, is consonant to theprinciples which ought to govern such transactions. Theparticular precaution against the erection of new States, by thepartition of a State without its consent, quiets the jealousy ofthe larger States; as that of the smaller is quieted by a likeprecaution, against a junction of States without their consent.5. “To dispose of and make all needful rules and regulationsrespecting the territory or other property belonging to theUnited States, with a proviso, that nothing in the Constitutionshall be so construed as to prejudice any claims of the UnitedStates, or of any particular State. ”This is a power of verygreat importance, and required by considerations similar to thosewhich show the propriety of the former. The proviso annexed isproper in itself, and was probably rendered absolutely necessaryby jealousies and questions concerning the Western territorysufficiently known to the public. 6. “To guarantee to everyState in the Union a republican form of government; to protecteach of them against invasion; and on application of thelegislature, or of the executive (when the legislature cannot beconvened), against domestic violence. ”In a confederacy foundedon republican principles, and composed of republican members, thesuperintending government ought clearly to possess authority todefend the system against aristocratic or monarchialinnovations. The more intimate the nature of such a union may be,the greater interest have the members in the politicalinstitutions of each other; and the greater right to insist thatthe forms of government under which the compact was entered intoshould be SUBSTANTIALLY maintained. But a right implies a remedy;and where else could the remedy be deposited, than where it isdeposited by the Constitution? Governments of dissimilarprinciples and forms have been found less adapted to a federalcoalition of any sort, than those of a kindred nature. “As theconfederate republic of Germany,” says Montesquieu, “consistsof free cities and petty states, subject to different princes,experience shows us that it is more imperfect than that ofHolland and Switzerland. ” “Greece was undone,” he adds, “assoon as the king of Macedon obtained a seat among theAmphictyons. ” In the latter case, no doubt, thedisproportionate force, as well as the monarchical form, of thenew confederate, had its share of influence on the events. It maypossibly be asked, what need there could be of such aprecaution, and whether it may not become a pretext foralterations in the State governments, without the concurrence ofthe States themselves. These questions admit of ready answers. Ifthe interposition of the general government should not beneeded, the provision for such an event will be a harmlesssuperfluity only in the Constitution. But who can say whatexperiments may be produced by the caprice of particular States,by the ambition of enterprising leaders, or by the intrigues andinfluence of foreign powers? To the second question it may beanswered, that if the general government should interpose byvirtue of this constitutional authority, it will be, of course,bound to pursue the authority. But the authority extends nofurther than to a GUARANTY of a republican form of government,which supposes a pre-existing government of the form which is tobe guaranteed. As long, therefore, as the existing republicanforms are continued by the States, they are guaranteed by thefederal Constitution. Whenever the States may choose tosubstitute other republican forms, they have a right to do so,and to claim the federal guaranty for the latter. The onlyrestriction imposed on them is, that they shall not exchangerepublican for antirepublican Constitutions; a restrictionwhich, it is presumed, will hardly be considered as a grievance.<\/p>

A protection against invasion is due from every society to theparts composing it. The latitude of the expression here usedseems to secure each State, not only against foreign hostility,but against ambitious or vindictive enterprises of its morepowerful neighbors. The history, both of ancient and modernconfederacies, proves that the weaker members of the union oughtnot to be insensible to the policy of this article. Protectionagainst domestic violence is added with equal propriety. It hasbeen remarked, that even among the Swiss cantons, which, properlyspeaking, are not under one government, provision is made forthis object; and the history of that league informs us thatmutual aid is frequently claimed and afforded; and as well bythe most democratic, as the other cantons. A recent andwell-known event among ourselves has warned us to be prepared foremergencies of a like nature. At first view, it might seem notto square with the republican theory, to suppose, either that amajority have not the right, or that a minority will have theforce, to subvert a government; and consequently, that thefederal interposition can never be required, but when it would beimproper. But theoretic reasoning, in this as in most othercases, must be qualified by the lessons of practice. Why may notillicit combinations, for purposes of violence, be formed aswell by a majority of a State, especially a small State as by amajority of a county, or a district of the same State; and ifthe authority of the State ought, in the latter case, to protectthe local magistracy, ought not the federal authority, in theformer, to support the State authority? Besides, there arecertain parts of the State constitutions which are so interwovenwith the federal Constitution, that a violent blow cannot begiven to the one without communicating the wound to the other.<\/p>

Insurrections in a State will rarely induce a federalinterposition, unless the number concerned in them bear someproportion to the friends of government. It will be much betterthat the violence in such cases should be repressed by thesuperintending power, than that the majority should be left tomaintain their cause by a bloody and obstinate contest. Theexistence of a right to interpose, will generally prevent thenecessity of exerting it. Is it true that force and right arenecessarily on the same side in republican governments? May notthe minor party possess such a superiority of pecuniaryresources, of military talents and experience, or of secretsuccors from foreign powers, as will render it superior also inan appeal to the sword? May not a more compact and advantageousposition turn the scale on the same side, against a superiornumber so situated as to be less capable of a prompt andcollected exertion of its strength? Nothing can be morechimerical than to imagine that in a trial of actual force,victory may be calculated by the rules which prevail in a censusof the inhabitants, or which determine the event of an election!<\/p>

May it not happen, in fine, that the minority of CITIZENS maybecome a majority of PERSONS, by the accession of alienresidents, of a casual concourse of adventurers, or of those whomthe constitution of the State has not admitted to the rights ofsuffrage? I take no notice of an unhappy species of populationabounding in some of the States, who, during the calm of regulargovernment, are sunk below the level of men; but who, in thetempestuous scenes of civil violence, may emerge into the humancharacter, and give a superiority of strength to any party withwhich they may associate themselves. In cases where it may bedoubtful on which side justice lies, what better umpires couldbe desired by two violent factions, flying to arms, and tearing aState 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 ifsuch a remedy for its infirmities could be enjoyed by all freegovernments; if a project equally effectual could be establishedfor the universal peace of mankind! Should it be asked, what isto be the redress for an insurrection pervading all the States,and comprising a superiority of the entire force, though not aconstitutional right? the answer must be, that such a case, asit would be without the compass of human remedies, so it isfortunately not within the compass of human probability; andthat it is a sufficient recommendation of the federalConstitution, that it diminishes the risk of a calamity for whichno possible constitution can provide a cure. Among theadvantages of a confederate republic enumerated by Montesquieu,an important one is, “that should a popular insurrection happenin one of the States, the others are able to quell it. Shouldabuses creep into one part, they are reformed by those thatremain sound. ”7. “To consider all debts contracted, andengagements entered into, before the adoption of thisConstitution, as being no less valid against the United States,under this Constitution, than under the Confederation. ”Thiscan only be considered as a declaratory proposition; and may havebeen inserted, among other reasons, for the satisfaction of theforeign creditors of the United States, who cannot be strangersto the pretended doctrine, that a change in the political form ofcivil society has the magical effect of dissolving its moralobligations. Among the lesser criticisms which have beenexercised on the Constitution, it has been remarked that thevalidity of engagements ought to have been asserted in favor ofthe United States, as well as against them; and in the spiritwhich usually characterizes little critics, the omission has beentransformed and magnified into a plot against the nationalrights. The authors of this discovery may be told, what fewothers need to be informed of, that as engagements are in theirnature reciprocal, an assertion of their validity on one side,necessarily involves a validity on the other side; and that asthe article is merely declaratory, the establishment of theprinciple in one case is sufficient for every case. They may befurther told, that every constitution must limit its precautionsto dangers that are not altogether imaginary; and that no realdanger can exist that the government would DARE, with, or evenwithout, this constitutional declaration before it, to remit thedebts justly due to the public, on the pretext here condemned. 8.“To provide for amendments to be ratified by three fourths ofthe States under two exceptions only. ”That useful alterationswill be suggested by experience, could not but be foreseen. Itwas requisite, therefore, that a mode for introducing them shouldbe provided. The mode preferred by the convention seems to bestamped with every mark of propriety. It guards equally againstthat extreme facility, which would render the Constitution toomutable; and that extreme difficulty, which might perpetuate itsdiscovered faults. It, moreover, equally enables the general andthe State governments to originate the amendment of errors, asthey may be pointed out by the experience on one side, or on theother. The exception in favor of the equality of suffrage in theSenate, was probably meant as a palladium to the residuarysovereignty of the States, implied and secured by that principleof representation in one branch of the legislature; and wasprobably insisted on by the States particularly attached to thatequality. The other exception must have been admitted on the sameconsiderations which produced the privilege defended by it. 9.“The ratification of the conventions of nine States shall besufficient for the establishment of this Constitution between theStates, ratifying the same. ”This article speaks for itself.<\/p>

The express authority of the people alone could give due validityto the Constitution. To have required the unanimous ratificationof the thirteen States, would have subjected the essentialinterests of the whole to the caprice or corruption of a singlemember. It would have marked a want of foresight in theconvention, which our own experience would have renderedinexcusable. Two questions of a very delicate nature presentthemselves on this occasion: 1. On what principle theConfederation, which stands in the solemn form of a compact amongthe States, can be superseded without the unanimous consent ofthe parties to it? 2. What relation is to subsist between thenine or more States ratifying the Constitution, and the remainingfew who do not become parties to it? The first question isanswered at once by recurring to the absolute necessity of thecase; to the great principle of self-preservation; to thetranscendent law of nature and of nature’s God, which declaresthat the safety and happiness of society are the objects at whichall political institutions aim, and to which all suchinstitutions must be sacrificed. PERHAPS, also, an answer may befound without searching beyond the principles of the compactitself. It has been heretofore noted among the defects of theConfederation, that in many of the States it had received nohigher sanction than a mere legislative ratification. Theprinciple of reciprocality seems to require that its obligationon the other States should be reduced to the same standard. Acompact between independent sovereigns, founded on ordinary actsof legislative authority, can pretend to no higher validity thana league or treaty between the parties. It is an establisheddoctrine on the subject of treaties, that all the articles aremutually conditions of each other; that a breach of any onearticle is a breach of the whole treaty; and that a breach,committed by either of the parties, absolves the others, andauthorizes them, if they please, to pronounce the compactviolated and void. Should it unhappily be necessary to appeal tothese delicate truths for a justification for dispensing withthe consent of particular States to a dissolution of the federalpact, will not the complaining parties find it a difficult taskto answer the MULTIPLIED and IMPORTANT infractions with whichthey may be confronted? The time has been when it was incumbenton us all to veil the ideas which this paragraph exhibits. Thescene is now changed, and with it the part which the same motivesdictate. The second question is not less delicate; and theflattering prospect of its being merely hypothetical forbids anovercurious discussion of it. It is one of those cases which mustbe left to provide for itself. In general, it may be observed,that although no political relation can subsist between theassenting and dissenting States, yet the moral relations willremain uncancelled. The claims of justice, both on one side andon the other, will be in force, and must be fulfilled; therights of humanity must in all cases be duly and mutuallyrespected; whilst considerations of a common interest, and,above all, the remembrance of the endearing scenes which arepast, and the anticipation of a speedy triumph over the obstaclesto reunion, will, it is hoped, not urge in vain MODERATION on oneside, and PRUDENCE on the other.<\/p>

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