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第44章

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 

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