cious 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.' PUBLIUS.

No. 43 [42]. (Independent Journal, January 23, 1788.) Madison.

MISCELLANEOUS POWERS.

Miscellaneous powers-Copyrights and patents-The federal city— Punishment of treason—Admission of new states—Government of territories and control of public property-Guaranty to every state of a republican form of government—Protection of state against invasion and against domestic violence-Assumption of payment of outstanding debts —Amendments to the constitution-The establishment of this govern ment on the adherence of nine states-Objection that this is a violation of the confederation—Relations between ratifying states and those which refuse to ratify.

To the People of the State of New York:

The fourth class comprises the following miscellaneous powers:

I. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors

1 This question of public or internal improvement, here so briefly touched upon, has been one of the gravest questions of party politics in national history, and probably has done more to increase the power of the general government than any other single factor in our development. This is owing to the fact that the newer states have generally been those in which the true democratic spirit was strongest, yet which by their real poverty were the most eager to have public improvements undertaken by the general government, thus largely neutralizing their natural jealousy of national assumption of power. The first true step in this direction was the undertaking of the Cumberland road, a measure carried by the western Democrats in 1808 and approved by Jefferson. So powerfully did the sentiment express itself that, though contrary to his real belief, Jefferson was induced to recommend to Congress the undertaking of " roads, rivers, canals, and such other objects of public improvement as it may be thought proper" (though he stipulated that this should be preceded by an amendment to the constitution), and his Secretary of the Treasury in 1808 recommended to Congress the voting of $16,000,000 for the construction of public roads. After a ten-years' fight of the Democrats in Congress against the strict construction views of their own Presidents (Madison and Monroe), in 1823 the first appropriation for

Madison]

COPYRIGHT AND PATENTS.

281

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 provision 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."

harbor improvement was carried, and the next year a bill authorizing surveys for a national canal was passed. With the accession of Jackson the movement encountered an opponent who checked its further progress for eight years. Several river and harbor bills were passed by succeeding Congresses, only to be vetoed by the President holding office. Failing in this attempt at extension the Democratic party tried to attain the wishes of its masses, without completely stultifying its concept of national powers, by distributing to the states surplus revenue, that public improvements might be made by them. A further expansion came in 1850 with the grant of public lands to encourage the building of railroads; this was quickly followed by the governmental survey of a road to the Pacific, by the declaration in both party platforms that such a railroad should be built by the government, and by the voting of the nation's credit to help build it. In 1870 a river and harbor bill was made a law; and though that has become an annual bill, it is still likely to be vetoed, not because its constitutionality is longer debatable, but because of the "jobs" it embodies. Finally, through this very "post-road clause, together with the power to regulate commerce, the government by the recent interstate commerce law has practically extended its control to all railroads (for the tendency to consolidate small roads into great systems will probably put them all shortly under the interstate law). How absolute this power has become is shown by the late "government by injunction"; by the use of federal troops to protect railroads; and by the construing of the anti trust law so as to control the traffic agreements of the railroads.-EDITOR.

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

1 The experience of the Congress of the Confederation proved the evils of a seat in a city over which it had no jurisdiction, for when a small part of the Pennsylvania militia mutinied in 1783, and threatened Congress with violence, the Pennsylvania Council refused to use force to suppress the soldiers, and compelled Congress in self-protection to adjourn to Princeton.-EDITOR.

As a fact, the history of the District of Columbia has been very different, Congress having retained a control over the capital more absolute even than that over the territories, save only in the years 1871-74, when a "territorial" degree of local self-government was allowed to it, which

Madison]

TREASON.

283

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, require 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 attainted."

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as newfangled 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

resulted in the scandals of "Boss "Shepherd. So far from being allowed to conduct their own government, its residents are granted no voice in national elections unless they claim residence and have formerly voted elsewhere; in that case, they may return to that place and cast their votes.-EDITOR.

It was this national ownership of forts which allowed Buchanan to notify the South Carolina senators that Fort Sumter "belonged to the United States. . . and if assaulted by the authorities of South Carolina, on them would rest the exclusive responsibility of commencing civil war.' -EDITOR,

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.""

Under the treaty of 1783 a large tract of land bounded by the great lakes, the Mississippi, and parallel 31°, was confirmed to the United States. Although the whole territory was actually vested in several states; its possession was thus complicated by conflicting claims, and even by the assertion of certain states that these lands fairly belonged to the nation and not to the individual states. The difficulty was finally settled by each state ceding to the nation its rights and claims conditional on the territory being eventually made into states and allowed to join the Union. This particular clause was inserted in the constitution, that these conditions might be fulfilled.

The clause relating to possible division of the old states was undoubtedly forced on the framers by the ferment in Kentucky at this time, that section being then part of Virginia, although for four years it had been petitioning Congress for statehood. So, too, the western territory of North Carolina had revolted from the parent State, and had set up a separate statehood under the title of "Franklin." Vermont also had secured its independence from New York. In each case the legislature of the parent state was brought to consent to such separation, and this was later true in the creation of the state of Maine, originally a part of Massachusetts. It would have been difficult, in view of this clause, for Congress and the supreme court to meet the possible threatened division of New York state (see p. xxvi); but presumably the flexibility of our government would have found some means of getting over the constitutional difficulty. The creation of the state of West Virginia during the Civil War was made constitutional by the invention of a legal fiction. The forty western or "over-the-mountain counties," which were strongly unionist, voted against the secession of the state in the Virginia convention of 1861, and when the convention passed the secession ordinance, they called another convention and repealed it. They then declared their separation from eastern Virginia, framed a constitution, and asked recognition by the Union. Though this was the very division guarded against by this clause, the stress of war forced a recognition, which was given on the quibble that the legislature of Western Virginia was the legal legislature of Virginia. Fernando Wood's proposition in 1861, that New York city should secede from the Union and make itself a free city, (McPherson's "History of the Rebellion," p. 42), hardly falls within the conditions of the clause, for it was essentially based on a right of force and not of law. The more recent issue raised by the advocacy of a new state made up of the so-called New York metropolitan district," however, comes within the provision of the clause, and may possibly produce a constitutional question in the future.

In this clause the framers made no provision for the acquisition of ter