1

right to the latter had been confirmed by the ratification of a treaty of cession. The notable illustration of the rule of free intercourse, however, is the case of California after the Mexican War. Upon the ratification of the treaty ceding California to the United States, the Administration promptly recognized the trade between the new territory and the rest of the country as domestic, as appears by the following passage from a letter of the Secretary of State, quoted by the Supreme Court in Cross v. Harrison: "This government de facto [the tempo"rary government of California] will, of course, "exercise no power inconsistent with the provisions "of the Constitution of the United States, which is "the supreme law of the land. For this reason no "import duties can be levied in California on "articles the growth, produce, or manufacture of the "United States, as no such duties can be imposed "in any other part of our Union on the productions "of California. Nor can new duties be charged in "California upon such foreign productions as have "already paid duties in any of our ports of 'entry, for the obvious reason that California is "within the territory of the United States." And the Court also refers to a despatch from the Secretary of the Treasury "providing for the reciprocal "admission of goods which were the growth, etc., of "California and the United States, free of duty, into "the ports of each." The California precedent was followed upon the annexation of Alaska, the Secretary of the Treasury deciding that furs and oils brought in from the new territory were not subject 116 Howard 164, 185.

to duty.1 The present Administration disregards these precedents. It treats the commerce between the Philippines and our mainland as foreign, and collects duties in each upon the imported products of the other, exacting in the former place a tax determined by itself, and in the latter the duties of the Tariff Act. It is ungenerous and unlawful to treat our new citizens as foreigners in their commercial relations, and to hamper an intercourse whose promotion should be our first concern. So disastrous did this practice prove to Porto Rico that the President said to Congress: "Our plain duty is to abolish all "customs tariffs between the United States and "Porto Rico, and give her products free access to "our

our markets."2 But this distress was caused by his refusal to follow the constitutional practice of his predecessors. The President is not authorized to hamper internal commerce by laws of his own making, and this he has done in levying duties on merchandise carried from our mainland to islands. Nor is he authorized to enforce a tariff act against merchandise brought here from islands which, since its enactment, have become a part of the United States. The Tariff Act of 1897 is entitled "An Act to provide revenue for the Government "and to encourage the industries of the United "States"; and by the enacting clause its operation is limited to "articles imported from foreign countries.' As the islands have been made domestic territory by the Treaty of Paris they are not within the purview

1 Synopsis Treasury Decisions, 1868, pp. 10, 20. Letter of Secretary M'Culloch to the Collector at New York, April 6, 1868. 2 Annual message of 1899, p. 50.

of an act intended to impose burdens upon foreign products exclusively. And this construction of the act is required by the Constitution, for the rule of uniformity which, as we have seen, forbids Congress to impose different duties upon foreign imports in different sections of the United States, forbids it to impose any duties whatever on commerce between them. "In war, we are one people," said Chief Justice Marshall, "in making peace, we are one people;" and these axioms, whose application to all persons within the jurisdiction of Congress none will question, are recited merely to emphasize the equal breadth of another: "In all commercial relations, we "are one and the same people." 1

Our inquiry into the subject of federal customs duties leads to these conclusions: Under no circumstances can these duties be lawfully collected in the annexed islands or the mainland upon the imported products of either; duties collected upon foreign goods brought to the islands must be the same as are imposed in the rest of the United States.2

The Porto Rico Act

While the advocates of the taxation of our commerce with the new possessions have not abandoned their position that federal duties, imposts, and excises need be uniform throughout the States only, they have added another string to their bow by incorporat

1 Cohens v. Virginia, 6 Wheaton 264, 413.

2 Mr. Edward B. Whitney, of the New York Bar, has contributed an instructive article on the Porto Rico Tariffs to the Yale Law Journal of May, 1900.

ing in the Porto Rico Government Act a system of so-called local taxation, in the hope that it may be tested by principles less rigid than those controlling federal taxation. The system makes Porto Rico a fiscal unit wholly independent of the great fiscal district of the United States.

On behalf of this system it is urged that the island should be self-supporting, though, temporarily, the Act appropriates certain federal revenues to its use. Now it is desirable that all Territories should pay their own expenses, as far as practicable, and this is customary, but the Federal Government pays the salaries of the governor, the judges, and the secretary, and some small legislative expenses. In reply to the objection that Porto Rico is charged with the payment of salaries borne elsewhere by the federal treasury, it may be said that as the act contemplates her exemption from federal charges (though I note in passing that she is charged with the maintenance of a United States District Court), she should get nothing from a treasury to which she contributes nothing. But this is a perverse view of the relation between the Federal Government and the Territories. This Government is bound to protect and administer all its Territories. Here is an independent, unconditional, and continuing duty springing from the assumption of sovereignty. Reciprocally, a Territory ought to bear its proper share of federal expenses. Instead of saying that it need not contribute to a federal treasury from which it gets nothing, we must understand that it ought to contribute because, appropriations apart, it receives necessarily the protection of the republic. The plea that the Porto Ricans

should be excused from this duty because of their misfortunes is without merit, so long as we do not regard poverty as conferring immunity from taxation on our mainland. Federal burdens press as heavily upon millions of people here as they would upon the Porto Ricans.

A just policy requires that the fiscal status of Porto Rico be assimilated to that of our other Territories, and I am satisfied that the act of Congress cutting off the island in this, as in other respects from communion with the republic does not represent the real attitude of our people, nor of the Administration itself toward the inhabitants of this island who so heartily welcomed us a few months ago. Had Porto Rico been our only spoil of war no protest would have been made against her incorporation into the United States. But the Philippines were acquired. Possibly, opportunity may suggest the seizure of lands even more remote and uncongenial; and so Porto Rico is being used as an experiment station for testing novel schemes which, if legitimated, may be applied seriously elsewhere.

More important than the policy of the Porto Rico fiscal system is the question whether it is constitutional in all its parts, and the features to which I call special attention are, 1. The intention (not perfectly realized) to exempt Porto Rico from federal taxes. 2. The collection in Porto Rico upon imports from foreign countries of the duties prescribed in the federal tariff act; upon merchandise brought from our mainland and not already placed on the free list by the military government of fifteen per