These, with what is incidental to them, and what is necessary and proper to carry them into effect, are all the positive powers with which the convention vests the General government, or government of the United States, as distinguished from the governments of the particular States; and these, with the exception of what relates to the district in which it has its seat, and places of forts, magazines, &c., are of a general nature, and restricted to the common relations and interests of the people, or at least to interests and relations which extend beyond the limits of a particular State.They are all powers that regard matters which extend beyond not only the individual citizen, but the individual State, and affect alike the relations and interests of all the States, or matters which cannot be disposed of by a State government without the exercise of extra-territorial jurisdiction.They give the government no jurisdiction of questions which affect individuals or citizens only in their private and domestic relations which lie wholly within a particular State.The General government does not legislate concerning private rights, whether of persons or things, the tenure of real estate, marriage, dower, inheritance, wills, the transferrence or transmission of property, real or personal; it can charter no private corporations, out of the District of Columbia, for business, literary, scientific, or eleemosynary purposes, establish no schools, found no colleges or universities, and promote science and the useful arts only by securing to authors and inventors for a time the exclusive right to their writings and discoveries.The United States Bank was manifestly unconstitutional, as probably are the present so-called national banks.The United States Bank was a private or particular corporation, and the present national banks are only corporations of the same sort, though organized under a general law.The pretence that they are established to supply a national currency, does not save their constitutionality, for the convention has not given the General government the power nor imposed on it the duty of furnishing a national currency.
To coin money, and regulate the value thereof, is something very different from authorizing private companies to issue bank notes, on the basis of the public stocks held as private property, or even on what is called a specie basis.To claim the power under the general welfare clause would be a simple mockery of good sense.It is no more for the general welfare than any other successful private business.The private welfare of each is, no doubt, for the welfare of all, but not therefore is it the "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 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, 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 necessitate--the 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 conquest, or by treaty, attached to the domain of the United States.
Hence the Supreme Court declared unconstitutional the ordinance of l, prohibiting slavery in what was called the territory of the Northwest, and the so-called Missouri Compromise, prohibiting slavery north of the parallel ' '.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.
