HAS THE CONGRESS OF THE UNITED STATES THE CONSTITUTIONAL POWER TO LAY AND COLLECT EXPORT OR IMPORT DUTIES ON COMMERCE PASSING BETWEEN THE STATES AND THE TERRITORIES RECENTLY ACQUIRED UNDER THE SPANISH TREATY?

The Federal Constitution authorizes Congress "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." You will observe that, in the modifying clause requiring uniformity, the word "taxes" is omitted. The reason for the omission is that uniformity in respect of "taxes," as thus used in the Constitution, is provided for and enjoined in other provisions of the instrument. For instance, "Representatives and direct taxes shall be apportioned among the several States * according to their respective numbers." And again, "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein. directed to be taken." The First Census was ordered at the beginning of the Government, and subsequent enumerations are to follow every ten years thereafter.

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It will be seen, therefore, that taxation by Congress, in all its forms, must be uniform in its operation "throughout the United States." The first question in order, therefore, is this: Are the Territories a part of the United States? If so, it must be admitted that the injunction of uniformity extends to them equally as to the States. themselves. These clauses of the Constitution received clear and explicit interpretation by the Supreme Court of the United States eighty years ago, in the case of Loughborough v. Blake, 5 Wheaton. Congress had levied a direct tax, and in its apportionment the Territories and District of Columbia were included. This was met with the contention that the apportionment could only be made "among the States which may be included within the Union;" and that the District of Columbia and the Territories, not being States, were not subject to the tax. The issue thus presented necessarily involved a full definition of this power of taxation, as well as the territorial limits within which the power could be exercised.

The

following is an extract from the unanimous opinion of the Chief Justice Marshall:

ection of the first article gives to Congress the power collect taxes, duties, imposts, and excises,' for the pureinafter mentioned. This grant is general, without as to place. It consequently extends to all places over Government extends. If this could be doubted, the removed by the subsequent words which modify the

grant. These words are, but all duties, imposts, and excises shall be uniform throughout the United States.' It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises' may be exercised, and must be exercised, throughout the United States. Does this term designate the whole or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great Republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania, and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States."

Near the close of the opinion in this case, the court indulges in the pleasant reflection that, while the District of Columbia and the Territories were subject to the laws of taxation, they were nevertheless protected from oppression by the constitutional guaranties of uniformity and equality of apportionment in the exercise of the power. In the face of this construction of the Constitution, recognized and acted upon by all the departments of our Government from its origin down to the present time, it is now deliberately proposed in the Congress of the United States to place our new Territories wholly outside of the Constitution, to govern them with powers of absolute dominion, to hold and treat them as alien provinces, and to subordinate their interests to the unlimited control of a government in which they are not to be represented.

The claims for this new and extraordinary doctrine are attributed to various sources of power. First, it is insisted that the United States is a sovereign nation, and as such it must necessarily possess all the attributes and powers of sovereignty as known and exercised in other nations.

It may be admitted that absolute sovereignty rests with the people of the United States, but, as an American, I am proud to know that the Government of the United States is not unlimited in its sovereignty. The people in their aggregate capacity do not make treaties or laws. The people, it is true, act through representatives, but no act of those representatives can be performed outside of the Constitution. The Constitution was made by the people as a check upon their representatives. The people may amend the instrument, but, until changed by them, in the mode provided therein, that Constitution, with all its limitations, operates upon and restrains every act of every department of the Government.

A nation which possesses the power to govern itself, without dependence upon any foreign power or state, is properly denominated a sovereign state. The form of its government is wholly immaterial. It may be a pure democracy, a monarchy, or a republic with limited and

defined powers, such as our own. In the United States there is no unlimited sovereignty except that which resides in the people themselves. The government which they framed and put into operation possesses sovereignty, but only a limited sovereignty. The sovereignty may be absolute as against other nations. It is limited as to its own citizens. Within the territory belonging to the United States the power of the Federal Government is limited and controlled by the Constitution. The Government of the United States is the creature of the Constitution, and therefore it can exercise no powers except those specially enumerated and granted, and such as may be absolutely necessary to carry out the powers specifically conferred. Hence, when we speak of the sovereignty of the United States, we mean a constitutional sovereignty, a sovereignty limited by the specific grants of power enumerated in the Constitution.

In speaking of any one of the States in the Union, we generally refer to it as a sovereign State. The State does not possess a complete and perfect sovereignty, of course; but, as to all matters within the scope of its authority, its sovereignty is as clear and unchallenged as that of the Federal Government itself. The Federal and State Governments, though exercised within the same territorial limits, are separate and distinct sovereignties. Both are limited. Neither is absolute.

In this connection I quote from Judge Story's work on the Constitution, as follows:

"The sovereignty of a nation or State, considered with reference to its association as a body politic, may be absolute and uncontrollable in all respects except the limitations which it chooses to impose upon itself. But the sovereignty of the government organized within the State may be of a very limited nature. It may extend to few or to many objects. It may be unlimited as to some; it may be restrained as to others. To the extent of the power given, the government may be sovereign and its acts be deemed the sovereign acts of the State."

I come now to a second source of claim for this new power. This claim admits the limited sovereignty of the Federal Government, but insists that the treaty-making power, being without limitation, when it comes to be exercised, suddenly expands and enlarges itself beyond the usual restraints of the Constitution. In other words, it is urged that, although the Constitution is the admitted source of the treaty-making power, yet in the exercise of the power the Constitution itself may be subverted. This strange power is therefore greater than its creator. It is an Aaron's rod which swallows up all other powers and overrides all the guaranties for civil liberty contained in the Constitution. A treaty, therefore, with an Indian chief may overturn the principles of constitutional liberty in the forty-five great States composing the American Union.

It is admitted that the President and both branches of Congress have no such power. But the President, with two-thirds of the Senators, not all the Senators elected, but two-thirds of those Senators who may happen to be present at the time, may leap all bounds of constitutional restraint and impose upon the people a government alien in principle from that under which we have lived in happiness for over a century, and entirely foreign to the intentions of its framers. In other words, it is insisted that the President and the Senate, in the H. Doc. 509-8