The New-York packet — New York [N.Y.], 1788-01-22 00:00:00, page 2

The =F CE DERALI ST, No. 40.
THE Constitution proposed by the Convention
may be considered under two general points
of view. The first relates to the ium or quan
tity of power which it vests in the Government,
including the Teftraints imposed on the States. The
second, to the particular Structure of the Govern
ment, and the distribution of this power, among its
several branches.
Is the aggregate power of the general govern
ment greaterthan ought to have been veiled in it ?
This is the firft question.
It cannot have escaped those who have attended
with candor to the arguments employed against the
expensive powers of the government, that the au
thors of them have very little considered how far
these powers were necessary means of attaining a
necessary end. They have chosen rather to dwell
on the inconveniences which mull be unavoidably
blended with all political advantages ; and on the
possible abuses which must be incident to every
power or trull of which a beneficial use can be
made. This method of handling the fubjedt can
not impose on the good sense of the people of Ame
rica. It may display the subtlety of the writer; it
may open a boundless field for rhetoric and decla
mation; it may inflame the passions of the unthink
ing, and may confirm the prejudices of the mil
thinking. But cool and candid people will at once
reflect, that the purest of human blessings mull have
a portion of alloy in them; that the choice must
always be made if not of the lesser evil, at least of
the greater, not the perfect good; and that
in every political institution, a power to advance
the public happiness, involves a discretion which
may be misapplied and abused. They will lee
Therefore that in all cases, where power is to be
conferred, the point firft to be decided is whether
such a power be necessary to the public good ; as the
next will be, in case of an affirmative decision, to
guard as effectually as possible against a perversion
of the power to the public detriment.
That we may form a correct judgment on this
fubjeH, it will be proper to review the several pow
ers conferred on the government of the Union ; and
that this may be the more conveniently done, they
may be reduced into different classes as they relate
to the following different obje&s ; —ift. security a
gainst foreign danger —2. regulation of the inter
course with foreign nations —3. maintenance of har
mony and proper intercourse among the States —4.
certain miscellaneous objects of general utility— 5.
xeftraint of the States from certain injurious adds —
6. provisions for giving due efficacy to all these
powers.
The powers falling within the firft class, are
those of declaring war, and granting letters of
marque, of providing armies and fleets; of regu
lating and calling forth the militia ; of levying and
borrowing money.
Security against foreign danger is one of the pri
mitive objects of civil society. It is an avowed and
cffential object of the American Union. The pow
ers requisite for attaining it, mull be effectually con
fided to the federal councils.
Under the firft view of the fubjeft, two impor
tant questions arise Whether any part of the
powers transferred to the general government be
unnecessary or improper ? —2d. Whether the entire
mass of them be dangerous to the portion of jurif
diaion left in the several States ?
Is the power of declaring war necessary? No
man will answer this question in the negative. It
would be fuperfluous therefore to enter into a proof
of the affirmative. The exiting confederation cf
tablifhes this power in the most ample form.
Is the power of railing armies, and equipping
fleets necessary? This is involved in the foregoing
power. It is involved in the power of felf-defence.
But was it necessary to give an INDEFINITE
power of railing troops, as well as providing
fleets ; and of maintaining both in peace, as well
as in war ?
The answer to these questions has been too far
anticipated, in another place, to admit an exten
sive discussion of them in this place. The answer
indeed seems to be obvious and conclusive as scarce
ly to juHify such a discussion in any place. With
what colour of propriety could the force necessary
for defence, be limited by those who cannot limit
the force of offence. If a Fcederal Constitution
could chain the ambition, or set bounds to the ex
ertions of all other nations: Then indeed might it
prudently chain the discretion of its own govern
ment, add set bounds to the exertions for its own
fafcty.
How could a readiness for war in time of peace
be fafely prohibited, unless we could prohibit in like
manner the preparations and establishments of every
hoflile nation ? The means of security can only be
regulated by the means and the danger of attack.
They will in fadt be ever determined by these rules,
and by no others. It is in vain to oppose consti
tutional barriers to the impulse of felf-prefervation.
It is worse than in vain; because it plants in the
Constitution itfelf necessary usurpations of power,
every precedent of which is a germ of unnecessary
and multiplied repetitions. If one nation maintains
constantly a disciplined army ready for the feryice
of ambition or revenge, it obliges the molt pacific
nations, who may be within the reach of its enter
prizes, to take corresponding precautions. The
fifteenth century was the unhappy epoch of military
establishments in time of peace. They were intro
duced by Charles VII. of France. All Europe has
followed, or been forced into the example. Had
the example not been followed by other nations, all
Europe must long ago have worn the chains of a
universal monarch. Were every nation except
France now to disband its peace establishment, the
fame event might follow. The veteran legions of
Rome were an overmatch for the undisciplined valor
of all other nations, and rendered her mistress of
the world.
Not less true is it, that the liberties of Rome
proved the final victim to her military triumphs,
and that the liberties of Europe, as far as they ever
existed, have with few exceptions been the price of
her military establishments. A landing force
therefore is a dangerous, at the fame time that it
may be a necessary provision. On the smallest
scale it has its inconveniences. On an extensive
scale, its consequences may be fatal. On any scale,
it is an object of laudable circumfpeaion and pre
MISCELLANY.
To the People of the State of Neou-York.
caution- A wife nation will combine all these con
siderations; and whilst it does not rashly preclude
itfelf from any resource which may become essential
to its fafety, will exert all its prudence in diminish
ing both the necessity and the danger of resorting
to one which may be inauspicious to its liberties.
The clearest marks of this prudence are stamped
on the proposed Constitution. The Union itfelf
which it cements and secures, destroys every prete ,
for a military establishment which could be dange
rous. America, united with a handful of troops, or
without a single soldier, exhibits a more forbidding
posture to foreign ambition, than America disunited,
with an hundred thousand veterans ready for com
bat. It was remarked on a former occafien, that
the want of this pretext had saved the liberties of
one nation in Europe. Being rendered by her insu
lar situation, and her maritime resources, impregna
ble to the armies of her neighbors, the rulers of
Great-Britain have never been able, by real or arti
ficial dangers, to cheat the public into an extenlive
peace establishment. The distance of the United
States from the powerful nations of the world, gives
them the fame happy security. A dangerous esta
blishment can never be necessary or plausible, so
long as they continue a united people. But let it
never for a moment be forgotten, that they are in
debted for this advantage to their Union alone.
The moment of its dissolution will be the date of a
new order of things. The fears of the weaker or
the ambition of the stronger States or Confederacies,
will set the fame example in the new, as Charles
VII. did in the old world. The example will be
followed here from the fame motives which produ
ced universal imitation there. Inflead of deriving
from our situation the precious advantage which
Great-Britain has derived from hers, the face of
America will be but a copy of that of the continent
of Europe. It will prelent liberty every where
crushed between Handing armies and perpetual
taxes. The fortunes of disunited America will be
even more difafterous than those of Europe. Th"e
sources of evil in the latter are confined to her own
limits. No superior powers of another quarter of
the globe intrigue among her rival nations, in
flame their mutual animosities, and render them
the instruments of foreign ambition, jealousy and
revenge. In America, the miseries springing from
her internal jealousies, contentions and wars, would
form a part only of her lot. A plentiful addition of
evils would have their source in that relation in
which Europe Hands to this quarter of the earth,
and which no other quarter of the earth bears to
Europe. This picture of the consequences of dis
union cannot be two highly coloured, or too often
exhibited. Every man who loves peace, every man
who loves his country, every man who loves liber
ty, ought to have it ever before his eyes, that he
may cherish in his heart a due attachment to the
Union of America, and be able to set a due value
on the means of preferring it.
Next to the effectual ertablifhment of the Union,
the best possible precaution against danger from
Handing armies, is a limitation of the term for which
revenue may be appropriated to their support.
This precaution the Constitution has prudently ad
ded. I will not repeat here the observations, which
I flatter myfelf have placed this fubje& in a just and
fatisfaflory light. But it may not be improper to
take notice of an argument against this part of the
Constitution, which has been drawn from the poli
cy and practice of Great-Britain. It is laid that
the continuance of an army in that kingdom,
requires an annual vote of the Legislature ; whereas
the American Constitution has lengthened this criti
cal period to two years. This is the form in which
the comparison is usually Hated to the public : But
is it a just form ? Is it a fare comparison? Does
the British Constitution restrain the parliamentary
discretion to one year ? Does the American impose
on the Congress appropriations for two years ? on the
contrary, it caiinot.be unknown to the authors of the
falacy themselves, that the Britilh Constitution fixes
no limit whatever to the discretion of the Legisla
ture, and that the American ties down the Legisla
ture to two years, as the longest admissible term.
Had the argument from the British example been
truly Hated, it would have Hood thus: The term
for which supplies may be appropriated to the army
eftablifhment, though unlimited by the British Con
stitution, has nevertheless in practice been limited
by parliamentary discretion, to a single year. Now
if in Great-Britain, where the House of Commons is
elected for seven years; where so great a propor
tion of the members are elected by iWfmall a pro
portion of the people; where the electors are so
corrupted by the representatives, and the representa
tives so corrupted by the Crown, the representative
body can possess a power to make appropriations to
the army for an indefinite term, without desiring,
or without daring, to extend the term beyond a
single year; ought not suspicion herfelf to blulh in
pretending that the representatives of the United
States, elec-led freely, by the whole body of
the people every second year, cannot be fafely
entrusted with a discretion over such appropriations,
expreflly limited to the short period of two
years.
A bad eaufe seldom fails to betray itfelf. Of this
truth, the management of the opposition of the Fce
deral Government is an unvaried exemplification.
But among all the blunders which have been com
mitted, none is more Hriking than the attempt to
enlist on that fide, the prudent jealousy entertained
by the people of Handing armies. The attempt has
awakened fully the public attention, to that impor
tant fubjedt ; and has led to investigations which
mull terminate in a thorough and universal convic
tion, not only that the Constitution has provided
the most effectual guards against danger from that
quarter, but that nothing short of a Constitution ful
ly adequate to the national defence, and the preser
vation of the Union, can save America from as
raany Handing armies as it may be split into States
or confederacies ; and from such a progressive aug
mentation of these establishments in each,as will ren
der them as burdensome to the properties and om
inous to the liberties of the people; as any establish
ment that can become necessary, under a united
and efficient Government, must be tolerable to the
former, and fafe to the latter.
The palpable necessity of the power to provide
and maintain a navy has protested that part of the
Constitution against a spirit of censure, which has
spared few other parts, it must indeed be numbered
among the greatest blessings of America, that as her
Union will be jhe only source of her maritime
Hrength, so this will be the principal source of her
security against danger from abroad. In this refpe&
our situation bears another likeness to the insular
advantage of Great-Brjtain. The batteries most
capable of repelling foreign enlerprifers on our fafe
ty, are happily such as can never be turned by a per
fidious government against her liberties.
The inhabitants of the Atlantic frontier are all of
them deeply interested in this provision for naval
protection, and if they have hitherto been fuffered to
Heep quietly in their beds ; if tl}eir property has re
mained fafe against the predatory spirit of licenci
ous adventurers; if their maritime towns have not
yet been compelled to ransom themselves from the
terrors of a conflagration, by yielding to x the exac
tions of daring and sudden invaders, these instances
of good fortune are not to be ascribed to the capa
city of the exifting^government for the protection of
those from whom it claims allegiance, but to causes
that are fugitive and fallacious. If we except per
haps Virginia and Maryland, which are peculiarly
vulnerable on their Eastern frontiers, no part of the
Union ought to feel more anxiety on this fubje&
than New-York. Her sea coast is extensive. The
very important diftridl of the State is an island.
The State itfelf is penetrated by a large navigable
river for more than fifty leagues. The great em
porium of its commerce, the great reservoir of its
wealth, lies every moment at the mercy of events,
and may almost be regarded as a hostage, for igno
minious compliances with the dictates of a foreign
enemy, or even with the rapacious demands of pi
rates and barbarians. Should a war be the result of
the precarious situation of European affairs, and
all the unruly passions attending it, be let loose on
the ocean, our escape from insults and depredations,
not only on that element but every part of the other
bordering on it, will be truly miraculous. In the
present condition of America, the States more im
mediately exposed to these calamities, have nothing
to hope from the phantom of a general government
which now exists; and if their single resources were
equal to the talk of fortifying themselves against the
danger, the object to be protected would be almost
consumed by the means of protesting them.
The power of regulating and calling forth the mili
tia has been already fufficiently vindicated ^explained.
The power of levying and borrowing money,
being the sinew of that which is to be exerted in the
national defence, is properly thrown into the fame
class with it. This power also has been examined
already with much attention, and has I trust been
clearly fhewnto be necessary both in the extent and
form given to it by the constitution. I will address
one additional reflexion only to those who contend
that the power ought to have been restrained to ex
ternal taxation, by which they mean taxes on ar
ticles imported from other countries. It can not be
doubted that this will always be a valuable source
of revenue, that for a considerable time, it mutt be
a principal source, that at this moment it is an es
sential one. But we may form very mistaken ideas
on this fubjed, if we do not call to mind in our cal
culations, that the extent of revenue drawn from
foreign commerce, must vary with the variations
both in the extent and the kind of imports, and that
these variations do not correspond with the progress
of population, which must be the general measure
of the public wants. As long as agriculture con
tinues the sole field oflabour, the importationof ma
nufactures must increase as the consumers multiply.
As soon as domestic manufactures are begun by the
hands not called for by agriculture, the imported
manufactures will deercafe as the numbers of people
increase. In a more remote Hage, the imports may
confit in considerable part of raw materials which
will be wrought into articles of exportation, and
will therefore require rather the encouragement of
bounties, than to be loaded with difeouraging duties.
A system of government, meant for duration,
ought to contemplate these revolutions, and be
able to accommodate itfelf to them.
Had no other enumeration or definition of the
powers of the Congress been found in the Cenftitu
tion, than the general expressions just cited, the
authors of the objection might have had some color
for it; though it would have been difficult to find
a reason for so aukward a form of describing an
authority to legislate in all possible cases. A pow
er to dellroy the freedom of the press, the trial by
jury, or even to regulate the course of defeents, or
the forms of conveyances, must be very Angularly
expressed by the terms " to raise money for the ge
neral welfare."
But what colour can the objection have, when a
fpecification of the objects alluded to by these gene
ral terms, immediately follows; and is not even
separated by a longer pause than a semicolon. If
the different parts of the fame inftrumenc ought to
be so expounded as to give meaning to every part
which will bear it ; shall one part of the fame sen
tence be excluded altogether from a share in the
meaning ; and shall the more doubtful and indefi
nite terms be retained in their full extent, and the
clear and precise expressions be denied any figni
fication whatsoever? For what purpose could the
enumeration of particular powers be inserted, if
these and all others were meant to be included in
the preceding general power? Nothing is more na
tural or common than firft to use a general phrase,
and then to explain and qualify it by a recital of
particulars. But the idea of an enumeration of par
ticulars, which neither explain nor qualify the ge
neral meaning, and can have no other effect than
to confound and mislead, is an absurdity which as
we are reduced to the dilemma of charging either
on the authors of the objection, or on the authors
of the Constitution, we must take the liberty of fup
poling, had not its origin with the latter.
The objection here is the more extraordinary, as
it appears, that the language used by the Conven
tion is a copy from the articles of confederation.
The objects of the Union among the States as de
scribed in article 3d. are, " their common defence,
security of their liberties, and mutual and general
welfare." The terms of article Bth. are Hill more
identical. " All charges of war, and all other ex
pences, that shall be incurred for the common de
fence or general welfare, and allowed by the United
States in Congress, shall be defrayed out of a com
mon treasury, &c." Afimilar language again oc
curs in art. 9. Construe either of these articles by
Some who have not denied the necessity of the
power of taxation,have grounded a very fierce attack
against the Constitution on the language in which it
is defined. It has been urged dnd echoed, that the
power " to lay and colled taxes, duties, impolls
and excises, to pay tQe debts and provide for the
common defence and general welfare of the United
States," amounts to an unlimited commission to
exercise every power which may be alledged to be
necessary for the common defence or general wel
fare. No stronger proof could be given of the dis
tress under which these writers labour for objections,
than their Hooping to such a mifconHru&ion.
the rules which would juftify the conftruClion put
on the new Constitution, and they vefl in the exilD^
ing Congress a power to legislate in all cases what
soever. But what would hare been thought of that
assembly, if attaching themselves to these general
expressions, and disregarding , the fpecifications,
which afeertain and limit their import, they had
eXercifed an unlimited power of providing for the
common defence and general welfare ?" I appeal to
the objectors themselves, whether they would in that
case have employed the fame reasoning in juftifica
tion of Congress, as they now make use of against
the Convention. How difficult it is for error to e
scape its own condemnation.
PUBLIU S.
fc->»^»+»o»^>+»-» 7^
The FEDERALIST, No. 41.
To the People of the State of Neva-York.
THE second class of powers lodged in the General
Government, consists of thole which regulate
the intercourse with foreign nations, to wit. to make
treaties; to fend and receive Ambassadors, other
public Ministers and Consuls ; to define and punish
piracies and felonies committed on the high seas,
and offences against the law of nations; to regulate
foreign commerce, including a power to prohibit
after the year 1808, the importation of Haves, and
to lay an intermediate duty of ten dollars per head,
as a difeouragement to such importations.
This class of powers forms an obvious and essen
tial branch of the fcederal adminiftratioq. If we
are to be one nation in any refpe&, it clearly ought
to be in refpeCl to other nations.
The powers to make treaties and to fend and re
ceive Ambassadors, speak their own propriety.
Both of them are comprized in the articles of Con
federation ; with this difference only, that the for
mer is difembarraffed by the plan of the Convention
of an exception, under which treaties might be sub-
Hantially fruftrated by regulations of the States;
and that a power of appointing and receiving “ o
ther public Ministers and Consuls," is exprclliy and
very properly added to the former provision con
cerning Ambassadors. The term Ambassador, if
taken Hri&ly, as seems to be required by the second
of the articles of confederation, comprehends the
higheftgrade only of public Ministers; and excludes
the grades which the United States will be most
likely to prefer where foreign embaflies may be ne
cessary. And under no latitude of conftru&ion will
the term comprehend Consuls. Yet it has been
found expedient, and has been the practice of Con
gress to employ the inferior grades of public Mi
nisters; and to fend and receive Consuls. It is true
that where treaties of commerce Hipulate for the
mutual appointment of Consuls, whole functions are
connected with commerce, the admission of foreign
Consuls may fall within the power of making com
mercial treaties; and that where no such treaties
exist, theimiffion of American Consuls into foreign
countries, may perhaps be covered under the au
thority given by the 9th 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 Hipulated it, seems to
have been no where provided for. A supply of the
omission is one of the lesser inHances in which the
Convention have improved on the model before
them. But the most minute provisions become im
portant when they tend to obviate the necessity or
the pretext for gradual and unobserved usurpations
of power, a lift of the cases in which Congress have
been betrayed, or forced by the defects of the con
federation into violations of their chartered autho
rities, would not a little furprize those who have
paid no attention to the fubje& ; and would be no
inconsiderable argument in favor of the new Con-
Hitution, which seems to have provided no less stu
diously for the lesser, than the more obvious and
Hriking defects of the old.
The power to define and punish piracies and fe
lonies committed on the high seas, and offences a
gainst the law of nations, belongs with equal pro
priety to the general government ; and is a Hill
greater improvement on the articles of confedera
tion. These articles contain no provision for the
case of offences against the law of nations ; and epn
fequently leave it in the power of any indiscreet
member to embroil the confederacy with foreign na
tions. The provision of the fcederal articles on the
lubjeCl of piracies and felonies, extends no farther
than to the establishment of courts for the trial of
these offences. 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. Fe
lony is a term of loose figniftcation even in the com
mon law of England ; and of various import in the
statute law of that kingdom. But neither the com
mon, nor the Ilatute law of that or of any other
nation ought to be a standard for the proceedings
of this, unless previously made its own by legisla
tive adoption. The meaning of the term as defined
in the codes of the several States, would be as im
practicable as the former would be a dishonorable
and illegitimate guide. It is not precisely the fame in
any two of the States ; and varies in each with eve
ry revision of its criminal laws. For the fake of
certainty and uniformity therefore, the power cf
defining felonies in this case, was in every refpe&
necessary and proper.
The regulation of foreign commerce, having fall
en within several views which have been taken of
this fubje&, has been too fully difeuffed to need ad
ditional proofs here of its being properly submitted
to the fcederal administration.
It were doubtless to be wished that the power of
prohibiting the importation of Haves, had not been
postponed until the year 1808, or rather that it had
been fuffcred to have immediate operation. But it
is not difficult to account either for this reftriftion
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 termi
nate for ever within these States, a traffic which has
so long and so loudly upbraided the barbarism of
modern policy ; that within that period it will re
ceive a considerable discouragement from the fcede
ral 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 profpe& lay before them, of being redeem
ed from the oppressions of their European brethren !