2
THE TARIFF IN UNITED STATES TERRITORY
The one point at which the opponents of the doctrine that Congress can govern the Territories as it pleases are able to make a prima facie case by quoting a decision of the Supreme Court, is as to the application of the United States tariff to the Territories. When California was acquired, but before Congress had acted or a Collection District had been established, the Supreme Court sustained the demand for duties under the United States tariff on goods landed at California ports (Cross v. Harrison, 16 How. 164). Mr. Justice Wayne said:
"By the ratifications of the treaty California became a part of the United States. And as there is nothing differently stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage.... The right claimed to land foreign goods within the United States at any place out of a Collection District, if allowed, would be a violation of that provision in the Constitution which enjoins that all duties, imposts, and excises shall be uniform throughout the United States."
The court here bases its reasoning distinctly on the treaty by which California was acquired. But that treaty gave the pledge that California (an adjacent Territory) should be incorporated into the American Union. The Treaty of Paris gave no such pledge as to the Philippines (not adjacent territory, but nine thousand miles away), could not in the nature of the case have given such a pledge, and did provide, instead, that the whole question of the civil rights and political status of the native inhabitants should be determined by the Congress. Recalling Mr. Justice Story's remark that in a Constitution "there ought to be a capacity to provide for future contingencies as they may happen, and as these are ... illimitable in their nature, so it is impossible safely to limit that capacity," it would seem that there would certainly be elasticity enough in the Constitution, or common sense enough in its interpretation, to permit the Supreme Court to perceive some difference between a requirement of uniform tariff on this continent over a territory specifically acquired in order to be made a State, and such a requirement on the other side of the globe over territory not so acquired. The case becomes stronger when the treaty (also constitutionally a part of the Supreme Law of the land) turns over the political status of the latter territory entirely to Congress.
The Constitution makes the same or similar requirements of uniformity throughout the United States as to the tariff, internal taxes, courts, and the right of trial by jury. But in every case the early practice did not construe this to include the Territories.
As to uniformity in tariff. It was not enforced rigidly in Louisiana for years. So little, in fact, was it then held that Louisiana, as soon as acquired, became an integral part of the United States (notwithstanding the treaty provision that in time it should), that though the directors of the United States Bank were empowered to establish offices of discount and deposit "wheresoever they shall think fit within the United States," they did not consider this a warrant for establishing one in New Orleans, and actually secured from the Congress for that purpose a bill, signed by Thomas Jefferson on March 23, 1804, extending their authority, under the terms of their original charter, to "any part of the Territories or dependencies of the United States."
As to uniformity in internal taxes. The very first levied in the United States, that of March 3, 1791, omitted the Territories altogether, dividing the United States into fourteen Collection Districts, "each consisting of one State." It is not until 1798 that any trace can be found of a collection of internal revenue in the territory northwest of the Ohio.
As to the courts. The Constitution requires that the judicial officers of the United States shall hold office during good behavior. For a century the judicial officers of Territories have been restricted to fixed terms of office.