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were collected under a general tariff law and their proceeds granted afterward to Porto Rico by an appropriation act. Being federal duties they are invalid because not “uniform throughout the United States." Being invalid, the Porto Rico tax scheme fails to legitimate the dearest purpose of its promoters — the declaration of a federal power to prevent outlying possessions from competing in what is called our “home market.”

The duty of five cents per pound collected in Porto Rico upon all importations of coffee is a local tax, evidently imposed for protection rather than revenue. This tariff tax of local benefit and application is, I believe, the first in our history; certainly none has been scrutinized by our courts. The Constitution expressly provides for tariffs of federal benefit only; for while a State may be specially permitted to lay duties on imports, it must pay the net proceeds into the federal treasury. The imposition of this special tax differentiates the ports of the island from those of our mainland, and I have a strong impression that all customs taxes, wherever, or for whatever purpose levied, must be judged by the federal rule of uniformity, because they affect, necessarily, the commerce of the republic which, excepting trade carried on within the several States and Territories, is made by the Constitution a matter of exclusive federal concern.

There is bitter opposition to applying to the Philippines the constitutional rule of uniform tariff

It is asserted that Congress cannot impose uniform duties on foreign imports that will be equally


1 See Constitution, Art. I, Sec. 10.

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fair to the islands and to the mainland; but this suggests merely a phase of the persistent tariff controversy. Doubtless the new phase presents new difficulties, yet recalling that one tariff act drove South Carolina to the edge of rebellion, and that another led Louisiana to the Treasury for ties, we need not apprehend more extreme results from extending our revenue system to the Philippines.

Free trade between the Philippines and Porto Rico and the mainland may affect important agricultural interests here. Should Cuba be annexed, notwithstanding our promise, the disturbance will be more serious. If manufactures shall be established in the islands the wave of disturbance may cover a wider area. But these incidents of annexation cannot influence the interpretation of the Constitution.

The Commercial Unity of the United States

In anticipation of the possible range of this great question of commerce with annexed territory let us inquire whether protection of the so-called “home "market,” being unattainable through invidious tariffs, may be secured by direct prohibition, by embargo: A method harsher in sound, yet not more potent than taxation; needlessly brutal, perhaps, in present circumstances, yet likely to find apologists should we annex land crowded with workmen eager to sell their cheap wares in our great market. The answer depends on the extent of the federal power to

regulate commerce” conferred by the Constitution upon Congress in respect of commerce "with foreign


“nations, and among the several States, and with “the Indian tribes." Domestic territory beyond the States is not mentioned, but as there is commerce between this country and the States, and as Congress, the supreme legislature, must have some power over it, we find no difficulty in defining this to be neither more nor less than a power “to regulate.”

As I draw a distinction between the scope of the federal power as it is applied to international and Indian, or to interstate commerce, it is material to determine whether commerce between the Territories and the States is to be distinguished from, or likened to one of the specified subjects. Certainly this commerce should not be set apart, for whatever classification is warranted by the Constitution is based on a difference between trade in some sense foreign, and domestic trade. Now this commerce is essentially domestic, being the intercourse between the States and the territory which is their “common “property” and a part of the United States. For this reason, it must be classed with commerce between the States, so I shall substitute for “interstate com“merce" the term “domestic commerce."

Many years ago Judge Story inquired: “Can Congress, under the power to regulate commerce among “the States, prohibit the transportation or export of 'goods or products from one State to another ? Ex. gratia, can Congress prohibit the exportation " of slaves from one State to another for sale ? " 2

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1 See Stoughtenburgh v. Hennick, 129 U. S. 141.

2 Commentaries, 2d Ed., Sec. 1075, note 3. In considering this question I utilize parts of an article on Federal Trust Legislation, contributed to the Political Science Quarterly of December, 1897.

The specific question is now of historic interest only, and I think it will be agreed that principles of law which might have been urged against maintaining a constitutional right of free trade in human beings are not applicable to a commerce from which the slave has disappeared — if, indeed, he ever actually figured in federal jurisprudence as an article of commerce. 1

In considering Judge Story's general question it is not necessary to determine whether Congress may forbid domestic traffic in articles deemed to be essentially prejudicial to public health or morals, though it may

be noted that, perhaps, in this regard Congress has more power over commerce between the Territories and the States, than over that between the States, since in the Territories it possesses, unquestionably, that power of police which in the States appears to be vested solely in the local governments. Nor is it material to this discussion to consider specially the power of interdiction asserted by Congress in the so-called Anti-Trust Act of 1890, authorizing the seizure of trust-made articles in course of interstate transit. Our precise question is whether Congress is competent to divide the United States into sections by drawing a line through any part, and forbidding commerce between them, either generally or in specific articles. In 1807 Congress laid an embargo upon foreign trade, and described the measure “as neither hostile in its character nor as justifying or “inciting or leading to hostility to any nation what“ ever.” The constitutionality of the Embargo Act

1 See Groves v. Slaughter, 15 Peters 449, 506.
2 U. S. v. The Brig William, 2 Hall's Law Journal 255.

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was attacked, but was sustained in a District Court; and some years later Justice Marshall referred to “the universally acknowledged power of the Govern“ment to impose embargos," described them as “sometimes resorted to, without a view to war, and with a single view to commerce,” and said of the act of 1807: “By its friends and its enemies it was “ treated as a commercial, not as a war, measure.”1 And Judge Story said: “If it could be classed at all as “flowing from or incident to any of the enumerated “powers, it was that of regulating commerce.”? Now the power conferred in respect of foreign, Indian, and interstate or domestic commerce is in each case "to regulate,” and from this identity in the terms of the grants it has been assumed that the three powers are coextensive. But it will not be difficult to show that the power over domestic commerce is not identical with the power over commerce with foreign nations, and with the Indians. The assertion of identity between the powers over domestic and Indian commerce may be dismissed almost summarily. The Indian tribes are, in the language of Chief Justice Marshall, “in a state of pupilage. Their relation to “the United States resembles that of a ward to its “guardian. They look to our Government for pro“tection; rely upon its kindness and power; appeal "to it for relief to their wants; and address the “President as their great father.”4 Whatever re

1 Gibbons v. Ogden, 9 Wheaton 1, 192. See also Legal Tender Cases, 12 Wallace 457, 550.

2 Commentaries, Sec. 1289. See also The Federalist, No. II.

3 See Madison's Works, IV, 15; Groves v. Slaughter, 15 Peters 449, 505. 4 Cherokee Nation v. Georgia, 5 Peters 1, 17.



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