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On the other hand, the constitution does not forbid the government to tax exports from those parts of the United States which are subject to the exclusive jurisdiction of the general government. In such parts, therefore, this immunity does not exist for the individual.

Second. The constitution provides that no direct tax shall be levied except in proportion to the population.1 The constitution declares a capitation or poll-tax to be a direct tax,2 and the Court has indicated that it regards a tax upon land as the only other species of direct tax.3

Third. The constitution provides that all duties, imposts and excises shall be uniform throughout the United States; i.e. looked at from the side of the individual immunity, none can be levied with partiality or lack of uniformity. The Court has defined uniformity in taxation to be its operation “with the same force and effect in every place where the subject of it is found";4 i.e. the same rate of taxation upon the same article wherever found.

Fourth. Judicial interpretation of the general spirit and principles of the constitution has declared that the general government cannot tax any of the necessary means and instrumentalities for the legitimate governmental acts and, operations of the commonwealths.5 I suppose, therefore, that the property of individuals in any such necessary means and instrumentalities, such, for example, as bonds of the commonwealths, is shielded from the tax-power of the general government."

3. I have said that the chief means possessed by the government for encroaching upon the constitutional domain of private property are the powers of taxation and eminent domain; but these are not the exclusive means. The government might

1 Constitution, Art. I, sec. 9, § 4.

2 Ibid.

3 Hylton v. United States, U. S. Reports, 3 Dallas, 171.

4 Head Money Cases, 112 U. S. Reports, 580.

5 The Collector v. Day, U. S. Reports, 11 Wallace, 113.

This is now so held in Pollock v. The Farmers Loan and Trust Co., 157

and 158 U. S. Reports, pp. 429, 601.

construct by legislation a system of judicial procedure, which would greatly expose the property of the individual. The constitution creates some immunities for the individual against the powers of the government in this respect.

First. It prohibits the use of general search-warrants in the seizure of property by the officers of the government, in that it requires that all warrants shall rest upon oath or affirmation and shall describe particularly the place to be searched and the things to be seized;1 i.e. the individual has a constitutional immunity against the use of any other form of warrant by the government in the searching of his premises and the seizure of his papers and effects.

Second. The constitution secures to the individual, in suits prosecuted in the courts of the general government where the value in controversy exceeds twenty dollars, an immunity against any other form of trial than the trial by jury.2

Third. The constitution secures to the individual an immunity against the quartering of any soldier in his house in time of peace and also, except in a manner to be prescribed by law, in time of war.3

This is, in outline, the domain of immunity against the powers of the general government expressly marked out for the individual by the constitution and expressly guaranteed to him by the constitution. It must be added, however, that the individual is impliedly exempted from the powers of that government in regard to all subjects not brought by the constitution within the realm of its authority. The domain of immunity is thus increased against the general government so as to correspond with the whole field of powers left by the constitution exclusively to the commonwealths. Within this field the general government has no authority to intrude at all, nor to bring the individual under its jurisdiction in respect to subjects contained therein. The United States

1 Constitution, Amendments, Art. IV.
3 Ibid., Art. III.

2 Ibid., Art. VII.

judiciary is obligated to defend the individual against any attack made by the general government upon this sphere of autonomy, a sphere created by direct implication from the general principles of the constitution.

B. The Immunities against the Commonwealths.

The sphere of individual liberty is, in a federal system of government, threatened from two quarters, viz; from the central government and from the commonwealths. In some respects and under some circumstances the danger from the latter quarter is more to be dreaded than from the former, and therefore more to be guarded against by the constitution.

Following the same order as before, I will treat first of personal immunities, and then of immunities in respect to property.

I. Personal Immunities.

1. The constitution prescribes that "no State" (commonwealth) "shall pass any bill of attainder or ex post facto law."1 The word "State" evidently means here both the people resident in, and the legislature of, a commonwealth. The language of the constitution is apparently preventive, but the constitution furnishes the general government with no means of anticipating any such acts upon the part of the commonwealths. These bodies may therefore, in spite of this prohibition, pass such acts, and the general government cannot deal with them until some person has been aggrieved by them and calls upon the judicial department of the govern. ment for defense.2 The court will then nullify them in the particular case before it; but the commonwealths are deterred from continuing to execute such measures in other cases only by the knowledge that if any person has the courage and the means to resist them, he will be sustained by the judicial department of the general government. When the constitu tional convention of 1787 began its work of framing the

1 Constitution, Art. I, sec. 10, § 1.

2 Cummings v. Missouri, U. S. Reports, 4 Wallace, 277.

present constitution of the United States, and before it had been compelled to compromise its first conviction and judgment with the views of the upholders of the old system, it provided efficient means for the execution of this prohibition. The Randolph resolutions, the Pinckney draft 2 and the report from the committee of the whole house presented by Mr. Gorham contain the provision that the laws enacted by the States, i.e. the commonwealths, shall be subject to veto by the legislature of the United States, when, in the opinion of the latter, they contravene the constitution and laws of the United States. Through the determined opposition of the particularists, this practical, though rather radical, solution of this knotty question was stricken out, and in place of it we have the plan which first allows the mischief to happen, and then undertakes to cure it in each separate case by a long and expensive process. I have already explained the meaning of these terms, bill of attainder and ex post facto law, and will not here repeat the explanation.

2. The constitution provides that "neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction." The language is not "in any place subject to their" exclusive "jurisdiction," but simply "their jurisdiction.” The constitution then empowers Congress to enforce, by appropriate legislation, this provision in behalf of personal freedom everywhere within the United States, and especially therefore, from the nature of the case, against attempts to infringe it by the commonwealths, or by persons or combinations of persons resident within the commonwealths. It is, therefore, a constitutional right of the individual to call upon the government of the United States to defend him against

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any attempt, from any quarter, to enslave him or to subject. him to any of the legal incidents of slavery. And in this case he may be protected by other means than the judicial. The government is not obliged to let the injury happen to the individual and then apply a remedy. The ninth section of the Civil Rights Act of April 9, 1866, which provides the means and measures for the execution of this mandate of the constitution, declares, "that it shall be lawful for the President of the United States, or such person as he may empower for this purpose, to employ such part of the land and naval forces of the United States, or of the militia, as shall be necessary to prevent the violation and enforce the due execution of this act." 1

I do not find either in the constitution, the laws or the judicial decisions any direct and formal definition of slavery or of involuntary servitude. The language of the constitution would, I think, imply that they are not intended as co-extensive terms simply, but rather as cumulative terms. I infer from the language of the Civil Rights Act of 1866, and of the decision in the Civil Rights Cases in 1883, that the meaning of these two terms is that no involuntary personal servitude, either for life or for any period of time, nor any of the civil incidents or private law incidents of the same, shall be allowed to exist in any part of the United States, or in any place subject to the jurisdiction of the United States.2 It will be noticed that I employ the expression "civil incidents." I do this in order to distinguish such incidents from political incidents, on the one side, and from social incidents, on the other. This provision of the constitution does not directly confer political rights upon anybody, though it is conceivable that it might do so indirectly; as, for example, if some other clause in the constitution of the United States,

1 United States Statutes at Large, vol. 14, p. 29.

2 United States Statutes at Large, vol. 14, p. 27; Civil Rights Cases, 109 U. S. Reports, 3.

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