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munity is still wider. Distilled liquors and beer are not subject to the tax power of the general government in these commonwealths. The fact also that the power to levy these taxes is conferred upon the legislative department of the government, implies an immunity of the individual from the power of the government to tax him in any other manner than by legislation.2

3. The fact that the constitution confers no power upon the general government to restrict the freedom of conscience must be construed as creating an immunity for the individual in this domain against that government.

These three examples constitute in substance the extent of the immunity against the central government. It may, if it will, intrude at about every other point by legislation and administration. Neither has the constitution created any judicial body to defend this narrow domain against the imperial legislature and executive. The constitution regards the imperial legislature as the chief creator and supporter of civil liberty, and casts upon it the most wide-reaching powers and responsibilities in this sphere; but, after all, this can produce only a statutory liberty which can, at any moment, be modified or destroyed by a legislative act, while we are seeking a constitutional liberty, and a constitutional guarantor of its maintenance which is not swayed by popular passion nor by a despotic will.

In the imperial territory of Alsace-Lorraine there exists no constitutional immunity, either express or implied, for the individual against the powers of the general government.3

B. The Immunities of the Individual against the Commonwealths.

Upon this side the constitution is somewhat more generous in the exemption of the individual from the powers of government.

1 Reichsverfassung, Art. 35.


2 Ibid. Art. 4, sec. 2, and Art. 69. Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 365.

1. The constitution creates a common citizenship, in the sense that a citizen or subject of any commonwealth of the Empire shall be dealt with as a citizen or subject in every other; i.e. he shall have the equal protection of the laws, shall be equal before the courts in the seeking of justice and the suffering of prosecution, shall have the equal right to acquire a residence, pursue any business, purchase and sell real estate, attain to citizenship and to the enjoyment of all civil rights with the citizens or subjects of the commonwealth into which he may go, and shall be in nowise restricted in the exercise of these rights and privileges either by the commonwealth in which he resides or any other, except in so far as reasonable regulations in respect to communal membership may require.1

This is not to be understood as the creation of an imperial citizenship antecedent to and separate from citizenship in a commonwealth. Whether there be any such imperial citizenship is doubtful. The commentators rather pronounce against it.2 I think myself that there is; but it cannot be derived from this article of the constitution. It is to be drawn from the whole spirit and nature of the constitution. This article only requires that no discrimination shall be made as to civil rights and privileges by a commonwealth of the Empire between its own citizens or subjects and those of another commonwealth. This provision abolishes all existing discriminations of this nature, and makes the creation of any such discriminations in the future unconstitutional. It establishes equality in the domain of civil liberty in each commonwealth for every citizen and subject of the Empire; but it does not imperialize, nationalize, this domain. So far as this article is concerned, the commonwealth might refuse to recognize any

1 Reichsverfassung, Art. 3.

2 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, SS. 24, 26; Laband, Das Staatsrecht des deutschen Reichs, S. 29; Marquardsen's Handbuch 3 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 25.

civil liberty, provided only it were as tyrannic over its own citizens as over those of other commonwealths.

This is simply the old provision of article fourth, section second, of the constitution of the United States, that "the citizens of each State" (commonwealth) "shall be entitled to all privileges and immunities of citizens in the several States (commonwealths). It was fashioned from this provision.1 It was discovered and demonstrated in the constitutional assembly of 1867 that this provision would not secure the civil liberty throughout the German state which that body intended to establish.2 The difficulty was solved not by fixing the immunities and privileges of citizenship in the constitution, but by vesting the legislature of the general government with the power to deal with all these subjects by statutory provisions. Sections 1-6, 13, 15 and 16 of the fourth article of the constitution vest in the legislature of the Empire the power to nationalize civil liberty at about every point. The legislature has already made very large use of this power,3 the result of which is to make the principle of the third article, in great degree, unnecessary.

The citizenship of the Empire as thus established, with its immunities and privileges, is statutory, while, as I have explained before, we are seeking a constitutional civil liberty and have in this treatise nothing to do with that which is merely statutory. So long as the individual is at the mercy of any part of the government, we are still, as to principle, within the system of absolutism, although the government may be never so liberal and benevolent.

2. The constitution expressly exempts the individual from the power of the commonwealths to impose upon him any tax on account of commerce and trade between the commonwealths.1

1 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 24, Anmer2 Ibid.

kung, I.

8 Von Rönne, Das Staatsrecht des deutschen Reichs, Bd. I, S. 106 ff.

4 Reichsverfassung, Art. 33.

3. The constitution creates an implied immunity against the powers of the commonwealths in respect to all matters which are made subject to the exclusive jurisdiction of the general government. The commonwealths are excluded from this domain whether the general government occupies it or not. This makes the immunity constitutional instead of statutory: the immunity would be simply statutory if the commonwealths were authorized to act in case of the inaction of the general government. I find but one article of the constitution in which the exclusive jurisdiction of the general government is expressly declared, viz; the thirty-fifth. In this article it is ordained that "legislation in regard to the customs system," i.e. in regard to foreign commerce, "in regard to the taxation of domestic salt, tobacco, distilled liquors, beer, sugar and syrup, in regard to securing just collections and returns of these excises to the imperial treasury by the respective commonwealths, and in regard to the measures necessary to secure the customs boundary of the Empire, shall be exclusively imperial." By implication, however, the exclusive jurisdiction of the general government reaches somewhat further. The commonwealths cannot deal, in any case, with the imperial constitution, or with the imperial official organization or relations, or the army, or with the navy, or the foreign merchant marine.1 Consequently when the exercise of such powers would touch the civil autonomy of the individual, we may regard the individual as possessing a constitutional immunity against the powers of the commonwealths to impose any restriction or regulation upon him in respect to these subjects. The general government might refrain from occupying this ground by any action of its own, and yet the commonwealths would have no authority whatsoever to intrude upon it, under the otherwise valid plea of supplementing the governmental acts of the general government, or under any other plea.

1 Laband, Das Staatsrecht des deutschen Reichs, S. 93; Marquardsen's Handbuch.

4. The immunities of the individual against the commonwealths are better secured than those against the general government. The constitution creates no independent judicial power vested with the authority to interpret the constitution in the domain of civil liberty against the legislature and executive of the general government itself. The judicial power in the German constitution is itself created by the legislature. It is a statutory body, not a constitutional body. It interprets the acts of the legislature, but cannot pronounce upon the constitutionality of its acts. There is no legal defense for the constitutional immunities of the individual against the general government, should the legislature of that government choose to disregard them. Their violation by the executive power might possibly be checked. The constitution creates a responsibility of the chancellor for every act of the Emperor. It does not declare indeed to whom he is responsible, and it does not provide any means of enforcing his responsibility.

Against the commonwealths, on the other hand, every department of the general government may be appealed to by the individual. This is, of course, to be inferred from the fact that the violation by a commonwealth of the immunities of the individual against the commonwealth involves the violation of the imperial constitution and laws, which the general government must uphold. We are not, however, left wholly to inference in the establishment of this proposition. The constitution expressly provides, that "when justice is denied to any individual within or by a commonwealth, and no relief can be secured by ordinary legal process, the individual so injured may appeal to the Federal Council; and it shall be the duty of the Federal Council to receive the appeal and, if it be well grounded, to force the recusant commonwealth to the performance of its duty." 2 Thus, when the constitutional immunities of the individual

1 Reichsverfassung, Art. 17.

against the commonIbid. Art. 77 & 19.

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