From the New York Packet. Tuesday, January 22, 1788.
MADISON
To the People of the State of New York:
THE SECOND class of powers, lodged1 in the general government, consists of those which regulate the intercourse2 with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls3; to define and punish piracies4 and felonies committed on the high seas, and offenses5 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 propriety6. 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 frustrated7 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 strictly8, 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 latitude9 of construction will the term comprehend consuls. Yet it has been found expedient10, 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 stipulate11 for the mutual12 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 stipulated13 it, seems to have been nowhere provided for. A supply of the omission14 is one of the lesser15 instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate16 the necessity or the pretext17 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 violations18 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 embroil19 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 legislative20 definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite21. Felony is a term of loose signification, even in the common law of England; and of various import in the statute22 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 proceedings24 of this, unless previously25 made its own by legislative adoption26. 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 precisely27 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 fully28 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 postponed29 until the year 1808, or rather that it had been suffered to have immediate30 operation. But it is not difficult to account, either for this restriction31 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 upbraided32 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 concurrence33 of the few States which continue the unnatural34 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 prospect35 lay before them of being redeemed36 from the oppressions of their European brethren!
Attempts have been made to pervert37 this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit38 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 specimens39 of the manner and spirit in which some have thought fit to conduct their opposition40 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 judicial41 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 cursory42 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 counterfeiting43 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 bankruptcy44, 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 pointed45 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 improper46 contributions levied47 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 jurisdiction48, with duties which would fall on the makers49 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 tranquillity50. 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 stimulate51 the injured party, by resentment52 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 illustrated53 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 tolls54. 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 quotation55 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 mischiefs56 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 contradictory57. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe58 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 contention59 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 intruding60 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 subvert61 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, paupers62, vagabonds, and fugitives63 from justice, excepted, shall be entitled to all privileges and immunities64 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 remarkable65. 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 determined66. It seems to be a construction scarcely avoidable, however, that those who come under the denomination67 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 citizenship68 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, elude69 his incapacity; and thus the law of one State be preposterously70 rendered paramount71 to the law of another, within the jurisdiction of the other. We owe it to mere72 casualty, that very serious embarrassments73 on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious74, were laid under interdicts75 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 proscribing76 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 proceeding23 from the defect of the Confederation on this head, by authorizing77 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 expediency78 of it seems not likely to be drawn79 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 interpretation80 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 judicious81 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.
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1
lodged
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| v.存放( lodge的过去式和过去分词 )；暂住；埋入；（权利、权威等）归属 | |
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intercourse
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| n.性交；交流，交往，交际 | |
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3
consuls
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| 领事( consul的名词复数 )； （古罗马共和国时期）执政官 （古罗马共和国及其军队的最高首长，同时共有两位，每年选举一次） | |
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piracies
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| n.海上抢劫( piracy的名词复数 )；盗版行为，非法复制 | |
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offenses
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| n.进攻( offense的名词复数 )；（球队的）前锋；进攻方法；攻势 | |
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propriety
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| n.正当行为；正当；适当 | |
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frustrated
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| adj.挫败的，失意的，泄气的v.使不成功( frustrate的过去式和过去分词 )；挫败；使受挫折；令人沮丧 | |
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strictly
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| adv.严厉地，严格地；严密地 | |
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latitude
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| n.纬度，行动或言论的自由(范围)，(pl.)地区 | |
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expedient
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| adj.有用的，有利的；n.紧急的办法，权宜之计 | |
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stipulate
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| vt.规定，（作为条件）讲定，保证 | |
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mutual
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| adj.相互的，彼此的；共同的，共有的 | |
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stipulated
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| vt.& vi.规定；约定adj.[法]合同规定的 | |
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omission
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| n.省略，删节；遗漏或省略的事物，冗长 | |
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lesser
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| adj.次要的，较小的；adv.较小地，较少地 | |
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obviate
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| v.除去，排除，避免，预防 | |
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pretext
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| n.借口，托词 | |
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violations
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| 违反( violation的名词复数 )； 冒犯； 违反（行为、事例）； 强奸 | |
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embroil
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| vt.拖累；牵连；使复杂 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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requisite
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| adj.需要的，必不可少的；n.必需品 | |
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statute
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| n.成文法，法令，法规；章程，规则，条例 | |
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proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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previously
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| adv.以前，先前（地） | |
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adoption
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| n.采用，采纳，通过；收养 | |
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precisely
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| adv.恰好，正好，精确地，细致地 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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postponed
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| vt.& vi.延期，缓办，（使）延迟vt.把…放在次要地位；[语]把…放在后面（或句尾）vi.（疟疾等）延缓发作（或复发） | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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restriction
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| n.限制，约束 | |
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upbraided
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| v.责备，申斥，谴责( upbraid的过去式和过去分词 ) | |
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concurrence
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| n.同意；并发 | |
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unnatural
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| adj.不自然的；反常的 | |
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prospect
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| n.前景，前途；景色，视野 | |
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redeemed
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| adj. 可赎回的，可救赎的 动词redeem的过去式和过去分词形式 | |
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pervert
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| n.堕落者，反常者；vt.误用，滥用；使人堕落，使入邪路 | |
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illicit
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| adj.非法的，禁止的，不正当的 | |
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specimens
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| n.样品( specimen的名词复数 )；范例；（化验的）抽样；某种类型的人 | |
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opposition
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| n.反对，敌对 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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cursory
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| adj.粗略的；草率的；匆促的 | |
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counterfeiting
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| n.伪造v.仿制，造假( counterfeit的现在分词 ) | |
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bankruptcy
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| n.破产；无偿付能力 | |
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pointed
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| adj.尖的，直截了当的 | |
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46
improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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47
levied
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| 征（兵）( levy的过去式和过去分词 )； 索取； 发动（战争）； 征税 | |
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48
jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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49
makers
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| n.制造者，制造商（maker的复数形式） | |
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50
tranquillity
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| n. 平静, 安静 | |
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51
stimulate
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| vt.刺激，使兴奋；激励，使…振奋 | |
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52
resentment
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| n.怨愤，忿恨 | |
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53
illustrated
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| adj. 有插图的，列举的 动词illustrate的过去式和过去分词 | |
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54
tolls
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| （缓慢而有规律的）钟声( toll的名词复数 )； 通行费； 损耗； （战争、灾难等造成的）毁坏 | |
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55
quotation
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| n.引文，引语，语录；报价，牌价，行情 | |
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56
mischiefs
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| 损害( mischief的名词复数 )； 危害； 胡闹； 调皮捣蛋的人 | |
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57
contradictory
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| adj.反驳的，反对的，抗辩的；n.正反对，矛盾对立 | |
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58
infringe
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| v.违反，触犯，侵害 | |
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contention
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| n.争论，争辩，论战；论点，主张 | |
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60
intruding
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| v.侵入，侵扰，打扰( intrude的现在分词)；把…强加于 | |
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61
subvert
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| v.推翻；暗中破坏；搅乱 | |
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62
paupers
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| n.穷人( pauper的名词复数 )；贫民；贫穷 | |
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63
fugitives
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| n.亡命者，逃命者( fugitive的名词复数 ) | |
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immunities
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| 免除，豁免( immunity的名词复数 )； 免疫力 | |
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65
remarkable
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| adj.显著的，异常的，非凡的，值得注意的 | |
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determined
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| adj.坚定的；有决心的 | |
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67
denomination
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| n.命名，取名，(度量衡、货币等的)单位 | |
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68
citizenship
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| n.市民权，公民权，国民的义务(身份) | |
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69
elude
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| v.躲避，困惑 | |
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70
preposterously
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| adv.反常地；荒谬地；荒谬可笑地；不合理地 | |
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71
paramount
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| a.最重要的，最高权力的 | |
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72
mere
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| adj.纯粹的；仅仅，只不过 | |
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73
embarrassments
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| n.尴尬( embarrassment的名词复数 )；难堪；局促不安；令人难堪或耻辱的事 | |
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74
obnoxious
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| adj.极恼人的，讨人厌的，可憎的 | |
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75
interdicts
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| n.正式禁止( interdict的名词复数 )；禁令；（罗马天主教）停止（某人）教权的禁令；停止某地参加圣事活动v.禁止（行动）( interdict的第三人称单数 )；禁用；限制 | |
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76
proscribing
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| v.正式宣布（某事物）有危险或被禁止( proscribe的现在分词 ) | |
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77
authorizing
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| 授权，批准，委托( authorize的现在分词 ) | |
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78
expediency
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| n.适宜；方便；合算；利己 | |
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79
drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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80
interpretation
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| n.解释，说明，描述；艺术处理 | |
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judicious
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| adj.明智的，明断的，能作出明智决定的 | |
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