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government. In the commonwealths the general government has no power whatsoever to touch this subject. The control of the same is assigned, in our system, exclusively to the commonwealths. This is, therefore, a sphere upon which

the general government has no authority to intrude.

On the other hand, in those parts in which the dual system does not prevail, the central government has general powers in regard to this subject as to all other subjects, except where these powers are denied to it by the constitution. The sole restriction upon the power of the general government, as to this subject, is contained in the first two lines of the first amendment and reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The existence, in parts of the United States subject to the exclusive jurisdiction of the general government, of a system of worship calling itself religion and asserting the practice of polygamy to be one of its exercises, has put this restriction upon the power of that government in reference to this subject to the actual test, and has given us an authoritative interpretation of the restriction. In the great case of Reynolds v. United States, the constitutional immunity of the individual in respect to the freedom of religion and worship was fixed and defined.2 The court declared that by this constitutional restriction Congress is deprived of legislative power over opinion merely, but is left free to reach actions which it may regard as violations of social duties or as subversive of good order. The free exercise of religion secured by the constitution to the individual against the power of the government is, therefore, confined to the realm of purely spiritual worship; i.e. to relations between the individual and an extra-mundane being.

1 The principle of the constitution which denies to the government of the United States the power to make a religious test a qualification for holding office or public trust (Art. VI, sec. 3) creates a political immunity rather than one coming under the category of individual or civil liberty. For this reason I do not treat of it in this connection. 2 98 U. S. Reports, 145.

So soon as religion seeks to regulate relations between two or more individuals, it becomes subject to the powers of the government and to the supremacy of the law; i.e. the individual has in this case no constitutional immunity against governmental interference.

II. The Immunities in respect to Private Property. The other principal avenue of approach to the sphere of individual autonomy is through the powers of taxation and of eminent domain necessarily possessed by the government. Let us now examine the defenses of private property erected by the constitution in behalf of the individual against the government.

So far as the constitution of the United States is concerned, private property may extend to everything but man. Man alone cannot be made the subject of property.1 The general government cannot, therefore, as the constitution now stands, narrow the sphere of private property within those parts of the United States enjoying the federal system of government, i.e. within the commonwealths, by declaring anything, except only man, not a proper subject of private property. In the parts under its exclusive jurisdiction, the case is different, as I have already repeatedly explained. In these parts it may determine freely in what private property shall consist, within the single limitation that it cannot make man a subject of property. In these parts the constitution creates no other immunity for the individual upon this point.

But, both in the commonwealths and in the districts and places subject to the exclusive jurisdiction of the general government, the defenses of the individual created by the constitution against the governmental powers of taxation and eminent domain are the same.

1. The constitution requires that all bills for the raising of revenue shall originate in the lower house of the Congress; 2

1 Constitution, Amendments, Art. XIII.
2 Art. I, sec. 7, § 1.

that all appropriations of money shall be made by law;1 that private property shall not be taken for public use, without just compensation; 2 and that no one shall be deprived of property without due process of law. I have brought here together the general restrictions upon the powers of the government, and after briefly explaining them, I will proceed to the more specific limitations.

First. The vesting of the power to originate tax levies exclusively in the more popular branch of the legislative department of the government is not a defense against the whole government, and therefore is not, strictly speaking, an immunity. Its advantage to the security of private property springs from the fact that the people, i.e. the suffrage-holders, have a more direct influence over this branch of the government than any other, rather than from any restriction imposed by the constitution upon the government as to the extent of its power of taxation. The real immunity is to be found in the negative side of this provision, vis; that the power of taxation shall not be exercised at all in any other way than as thus prescribed. The House of Representatives itself has not the power, either by separate resolution or by joining with the Senate and the President in a law to that effect, to permit the Senate, or any other branch of the government, to originate a bill for the raising of revenue; and I think it is at least a question whether, should the Senate or the President undertake to assume this power and the House acquiesce in the usurpation, the individual may not defend himself in the courts of the United States against the collection from him of any tax so levied, on the ground of its unconstitutionality. It does not seem to me that the judicial power could excuse itself from taking jurisdiction under the plea that this is a political question. As a general principle, the distribution of powers by the constitu

1 Art. I, sec. 9, § 7.

3 Amendments, Art. V.

3 Ibid.

tion between the different departments of the government is a political question; but in this particular instance private property would be directly involved, and the United States courts have never declined jurisdiction where private property was immediately affected, on the ground that the question was political.

Second. The constitutional restriction upon the power of the government in the appropriation of money, viz; that it can be done only by law, i.e. not by order of the executive, creates no immediate immunity for the individual, but by preventing waste of money it keeps down the requirements of the treasury. If, however, the President should make appropriations of money, and the treasurers of the government funds should honor his orders, there is no way provided by the constitution whereby an individual could prevent the same. The only remedy is a political one, viz; impeachment of the President and the treasurers by the Congress. If, again, the government should make wasteful appropriations by law, there is no way provided by the constitution whereby an individual could prevent the same. This is wholly a question of policy, and in our system the Congress is the final determiner of such questions.1 This provision of the constitution creates, then, a probable defense of private property, but no actual immunity; and I have referred to it at this point simply for the sake of giving a complete résumé of all the defenses of private property, both actual and possible, under the same division.

Third. The constitutional restriction upon the government's power of eminent domain is, however, a real immunity. The government may not take any property from the individual for public use without rendering just compensation therefor, and the government must always follow due process of law in depriving the individual of any property.

1 Georgia v. Stanton, U. S. Reports, 6 Wallace, p. 51.

Due process of law in exercising the right of eminent domain means that the expropriation shall be for a public purpose, and shall be made by an act of the legislative department of the government; that this act shall provide a fair and just means of determining the value of the property to be taken, giving opportunity for the owner to present evidence and be heard as to the value, and shall provide a just compensation to the expropriated owner.1

The due process of law for the taking of private property by the government in any other manner than by the exercise of the power of eminent domain must be determined by looking, first, to "the constitution itself," and second, to "those settled usages and modes of proceeding" for the taking of private property by the government "existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." 2


The individual is protected by the constitution against governmental encroachments upon his private property through any other forms of procedure than those above described.

2. The constitution more particularly describes the due process which the government must follow in the exercise of the power of taxation.

First. The government cannot levy any tax upon things exported from any commonwealth; i.e. from those parts of the United States in which the federal system of government exists. The court has defined exports to be articles "actually in course of transportation to the state of their destination, or delivered to a common carrier for transportation."4

1 United States v. Jones, 109 U. S. Reports, 513.

2 Murray's Lessee v. Hoboken Land & Improvement Co., U. S. Reports, 18 Howard, 272.

3 Constitution, Art. I, sec. 9, § 5.

Coe v. Errol, 116 U. S. Reports, 517; Turpin v. Burgess, 117 U. S. Reports, 504.

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