the american republic-第44章
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e 〃general welfare；〃 for what is private； particular in its nature； is not and cannot be general。 To understand by general welfare that which is for the individual welfare of all or the greater number； would be to claim for the General government all the powers of government； and 262 to deny that very division of powers which is the crowning merit of the American system。 The general welfare； by the very force of the words themselves； means the common as distinguished from the private or individual welfare。 The system of national banks may or may not be a good and desirable system； but it is difficult to understand the constitutional power of the General government to establish it。
On the ground that its powers are general； not particular； the General government has no power to lay a protective tariff。 It can lay a tariff for revenue； not for protection of home manufactures or home industry； for the interests fostered； even though indirectly advantageous to the whole people； are in their nature private or particular； not general interests； and chiefly interests of private corporations and capitalists。 Their incidental or even consequential effects do not change their direct and essential nature。 So with domestic slavery。 Slavery comes under the head of private rights； whether regarded on the side of the master or on the side of the slave。 The right of a citizen to hold a slave； if a right at all； is the private right of property； and the right of the slave to his freedom is a private and personal right； and neither is placed under the safeguard of the General government； 263 which has nowhere； unless in the District of Columbia and the places over which it has exclusive legislative power in all cases whatsoever； either the right to establish it or to abolish it； except perhaps under the war power； as a military necessity； an indemnity for the past； or a security for the future。
This applies to what are called Territories as well as to the States。 The right of the government to govern the Territories in regard to private and particular rights and interests； is derived from no express grant of power； and is held only ex necessitatethe United States owning the domain； and there being no other authority competent to govern them。 But； as in the case of all powers held ex necessitate； the power is restricted to the absolute necessity in the case。 What are called Territorial governments； to distinguish them from the State governments； are only provisional governments； and can touch private rights and interests no further than is necessary to preserve order and prepare the way for the organization and installation of a regular State government。 Till then the law governing private rights is the law that was in force； if any such there was； when the territory became by purchase； by 264 conquest； or by treaty； attached to the domain of the United States。
Hence the Supreme Court declared unconstitutional the ordinance of l787； prohibiting slavery in what was called the territory of the Northwest； and the so…called Missouri Compromise； prohibiting slavery north of the parallel 36' 30'。 The Wilmot proviso was for the same reason unconstitutional。 The General government never had and has not any power to exclude slavery from the Territories； any more than to abolish it in the States。 But slavery being a local institution； sustained neither by the law of nature nor the law of nations； no citizen migrating from a slave State could carry his slaves with him； and hold them as slaves in the Territory。 Rights enacted by local law are rights only in that locality； and slaves carried by their masters into a slave State even； are free； unless the State into which they are carried enacts to the contrary。 The only persons that could be held as slaves in a Territory would be those who were slaves or the children of those who were slaves in the Territory when it passed to the United States。 The whole controversy on； slavery in the Territories； and which culminated in the civil war； was wholly unnecessary； and never could have 265 occurred had the constitution been properly understood and adhered to by both sides。 True； Congress could not exclude slavery from the Territory； but neither could citizens migrating to them hold slaves in them； and so really slavery was virtually excluded； for the inhabitants in nearly all of them； not emigrants from the States after the cession to the United States； were too few to be counted。
The General government has power to establish a uniform rule of naturalization； to which all the States must conform； and it was very proper that it should have this power； so as to prevent one State from gaining by its naturalization laws an undue advantage over another； but the General government has itself no power to naturalize a single foreigner； or in any case to say who shall or who shall not be citizens； either of a State or of the United States； or to declare who may or may not be electors even of its own officers。 The convention ordains that members of the house of representatives shall be chosen by electors who have the qualifications requisite for electors of the most numerous branch of the State legislature； but the State determines these qualifications； and who do or do not possess them； that the senators shall be chosen by the State legislatures； and 266 that the electors of President and Vice…President shall be appointed in such manner as the respective State legislatures may direct。 The whole question of citizenship； what shall or shall not be the qualifications of electors； who shall or shall not be freemen； is reserved to the； States； as coming under the head of personal or private rights and franchises。 In practice； the exact line of demarcation may not always have been strictly observed either by the General government or by the State governments； but a careful study of the constitution cannot fail to show that the division of powers is the division or distinction between the public and general relations and interests； rights and duties of the people； and their private and particular relations and interests； rights and duties。 As these two classes of relations and interests； rights and duties； though distinguishable； are really inseparable in nature； it follows that the two governments are essential to the existence of a complete government； or to the existence of a real government in its plenitude and integrity。 Left to either alone； the people would have only an incomplete； an initial； or inchoate government。 The General government is the complement of the State governments； and the 267 State governments are the complement of the General government。
The consideration of the powers denied by the convention to the General government and to the State governments respectively； will lead to the same conclusion。 To the General government is denied expressly or by necessary implication all jurisdiction in matters of private rights and interests； and to the State government is denied all jurisdiction in right； or interests which extend； as has been said； beyond the boundaries of the State。 〃No State shall enter into any treaty； alliance； or confederation； grant letters of marque and reprisal； coin money； emit bills of credit； make any thing but gold and silver coin a tender in the payment of debts； pass any bill of attainder； ex post facto law； or law impairing the obligation of contracts； or grant any title of nobility。 No State shall； without the consent of Congress； lay any imposts or duties on imports or exports； except what may be absolutely necessary for executing its inspection laws and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the treasury of the United States； and all such laws shall be subject to the revision and control of Congress。 No State shall； with… 268 out the consent of Congress； lay any
