appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are, "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS. Madison] FOREIGN INTERCOURSE. 271 No. 42 [41]. (New York Packet, January 22, 1788.) POWERS GOVERNING Madison. INTERCOURSE WITH AND BETWEEN THE Regulation of intercourse with foreign nations—Ambassadors, consuls, and treaties-Punishment of piracy, felonies on the high seas, and offenses against the laws of nations-Regulation of foreign commerce— The sanction of the slave trade--Objection on that point considered — Maintenance of harmony and proper intercourse among the states—Interstate commerce and the Indian trade-Coinage of money-Punishment of counterfeiters-Standard of weights and measures-Naturalization— Bankruptcy laws-Rule for providing public acts—Post roads and post offices. To the People of the State of New York: 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 receiv ing "other public ministers and consuls," is expressly and very properly added to the former provision con cerning 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. 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. A 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 Madison] FELONY ON THE HIGH SEAS. 273 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 subSee ject, has been too fully discussed to need No. 11. 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 'The slave-trade clause was the result of a compromise, without which the constitution would scarcely have commanded the votes of a majority of the convention which framed, much less of the states which ratified it. The Carolinas and Georgia had lost a large part of their slaves by British plundering during the revolution, and possessing large tracts of uncultivated land, they wished to make labor as cheap as possible by per See 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 men mitting the free importation of negroes. United with them in the desire to maintain the slave trade were Massachusetts and Rhode Island, for in these states the larger part of this profitable traffic centered. The aid of the other New England states was secured by the clause giving to Congress power to pass a navigation act by a simple majority, and thus by the vote of the four New England states and of the three southern states, against the votes of New Jersey, Pennsylvania, Delaware, and Virginia (New York unrepresented in the convention), the slave trade was fastened upon the country for twenty years; but for this it is probable that the slavery question would hardly have assumed the serious proportions that it eventually developed. Already, however, both Virginia and Maryland were finding the breeding of slaves for the southern market a source of profit, and to this fact, more than to any true humanitarian sentiment, was due their attitude on this question; for the ending of the slave trade meant a higher price for negroes, and therefore a greater profit from them. Influenced by this desire not to close a market without her own boundaries for the slaves already unprofitable for agricultural purposes, Virginia in 1784 voted against the exclusion of slavery from all the western territory. The enormous profits which these states later secured, after the stopping of the slave trade, by raising negroes for sale in the south and west, show that they, quite as much as their more southern neighbors and the New England states, were voting for what seemed their best interests, regardless of moral considerations.— EDITOR. |