THE POSITION TAKEN BY THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THIS GOVERNMENT RESPECTING TERRITORY SUBJECT TO THE JURISDICTION OF THE UNITED STATES BUT OUTSIDE OF THE STATES OF THE UNION, AND THE RELATION SUSTAINED BY SUCH TERRITORY TO THE TARIFF LAWS AND STATUTES OF SIMILAR CHARACTER.

The original law for the collection of customs, passed July 31, 1789, divided the States into collection districts, but entirely neglected the territory outside of the original States. The only collector in the Western territory was at Louisville, "whose authority shall extend over all waters, shores, and inlets included between the rapids and the mouth of the Ohio River, on the southeast side thereof." (Act of July 31, 1789, 1 U. S. Stats., p. 34.)

The northwest or territorial bank of the Ohio was left unprovided for. Vermont was left without a customs-house until it was admitted as a State, as was also Tennessee; but as soon as either was admitted a port was established therein, evidently out of regard for the equality of commercial privileges guaranteed the States by the Constitution. It was not until 1799 that the customs laws of the United States were put in force in any part of the Northwest Territory. (Act of March 2, 1799, sec. 17; see 1 U. S. Stats., pp. 637, 638.)

If the result of this omission was to make unlawful all and any importations from Canada into the Northwest Territory, then certainly the territory was not considered as benefited by the Constitution, for one of the benefits most jealously guarded by the several States was equal privileges in foreign commerce.

Historically we know that Vermont and the Northwest Territory carried on extensive trade with Canada, and it is seemingly incontestable that the idea prevailed in those days that prior to admission as a State, or the extension of the customs laws in 1799, said territory was no more bound by the tariff requirements of the Constitution than it was benefited thereby.

Attention is also directed to the action taken by the First Congress in the instances of North Carolina and Rhode Island. The President informed Congress on the 28th of January, 1790, that North Carolina had ratified the Constitution on November 21, 1789; and, again, he informed Congress on the 1st day of June, 1790, that Rhode Island had ratified the Constitution on May 29, 1789. Prior to receiving these notifications Congress had enacted two revenue measures, to wit, "an act for laying duties on goods, wares, and merchandises imported into the United States," also, an act imposing duties on tonnage." Although by such act of ratification both North Carolina and Rhode Island became incorporated in the Union of States, Congress saw fit to pass acts extending the provisions of the previous revenue measures over the territory included in North Carolina and Rhode Island.

1 Stat.., pp. 99, 126.)

(See

THE TARIFF IN LOUISIANA.

The treaty for the purchase of Louisiana was formulated April 30, 1803; approved by the Senate in October, 1803; ratified by the President and exchanged October 21, 1803.

On October 25, 1803, Gallatin, as Secretary of the Treasury, submitted a "Report on the Finances." Therein he said:

The existing surplus revenue of the United States will, as has been stated, be sufficient to discharge $600,000 of that sum, and it is expected that the net revenue collected at New Orleans will be equal to the remaining $200,000. That opinion rests on the supposition that Congress shall place that port on the same footing as those of the United States, so that the same duties shall be collected there on the importation of foreign merchandise as are now by law levied in the United States, and that no duties shall be collected, either on the exportation of produce or merchandise, from New Orleans to any other place, nor on any articles imported in the United States from the ceded territories or into those territories from the United States. (Vol. 1, Reports on Finances, p. 265, U. S. Treasury.)

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It is manifest that Gallatin considered that Congress must legislate in order that "no duties shall be collected on any articles imported in the United States from the ceded territories or into those territories from the United States."

Gallatin wrote to W. C. Claiborne, governor of Mississippi Territory, as follows:

WASHINGTON, 31st October, 1803.

DEAR SIR: You will receive by this mail instructions from the proper department for taking possession of Louisiana and for the temporary government of the province. It is understood that the existing duties on imports and exports, which by the Spanish laws are now levied within the province, will continue until Congress shall have otherwise provided. By next mail I expect to be able to write you an official letter on that subject which will probably reach you before you can act upon it. (Writings of Gallatin, vol. 1, p. 167.)

Thereafter H. R. Trist, United States collector at Fort Adams, was designated as collector of the port of New Orleans. On November 14, 1803, Gallatin, as Secretary of the Treasury, issued an order directed to Mr. Trist, wherein, after informing him of his new appointment, he instructed him as follows:

You will also be pleased to observe

First. That the taxes and the duties to be collected under your direction are precisely the same which by the existing laws or regulations of Louisiana were demandable under the Spanish Government at the time of taking possession.

Second. That in those taxes and duties are included specially those on imports, exports, transfer of shipping, etc., which were collected under those officers whose powers are vested in you, and generally all other taxes and duties which made part of the general revenue of the province.

Fourth. That you are only to secure or collect duties accruing after possession of same by the United States.

Tenth. That until otherwise provided for, the same duties are to be collected on the importation of goods in the Mississippi district from New Orleans and vice versa as heretofore. (Gallatin to Trist, November 14, 1803. See Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of the Treasury.)

On February 24, 1804, Congress passed an act putting in force in the Territory of Louisiana the laws of the United States regulating duties on imports and tonnage. (2 U. S. Stats., 251.)

Congress accepted the doctrine acted upon by the Jefferson Administration, and included in said act the following:

SEC. 3. And be it further enacted, That so much of any law or laws laying any duties on the importation into the United States of goods, wares, and merchandise from the said territories (or allowing drawbacks on the importation of the same from the United States to the said territories), or respecting the commercial intercourse between the United States and the said territories, or between the several parts of the United States through the said territories, which is inconsistent with the provisions of the preceding section, be, and the same hereby is, repealed; and all duties on the exportation of goods, wares, and merchandise from the said territories, as well as all duties on the importation of goods, wares, and merchandise into the said territories, on the transfer of ships or vessels, and on the tonnage of vessels, other than those laid by virtue of the laws of the United States, shall, from the time when this act shall commence to be in force, cease and determine: Provided, however, That nothing herein contained shall be construed to affect the fees and other charges usually paid in the said territories on account of pilotage, wharfage, or the right of anchorage by the levy of the city of New Orleans, which several fees and charges shall, until otherwise directed, continue to be paid and applied to the same purposes as heretofore. (2 U. S. Stats., sec. 3, p. 255.)

Section 12 of said act provided "that this act shall commence thirty days after the passing thereof." (Id., p. 254.)

Thereupon Gallatin, Secretary of the Treasury, issued the following:

[Circular.]

TREASURY DEPARTMENT, February 28, 1804. SIR: As it may be some time before you can be furnished with a printed copy of an act entitled "An act for laying and collecting duties on imports and tonnage within the territories ceded to the United States by the treaty of the thirtieth of April, one thousand eight hundred and three, between the United States and the French Republic, and for other purposes," passed on the 24th of the present month, I have deemed it proper, for your government therein, to inform you that by the third section of the said act so much of any law or laws imposing duties on the importations into the United States of goods, wares, and merchandise from New Orleans, which is the only port of entry in the said territories, has been repealed. But as the act in question does not commence to be in force until thirty days after its date, articles which have been or may be thus imported before the 25th of March ensuing must pay the same duties as heretofore.

I am, very respectfully, sir, your obedient servant,

A. GALLATIN.

(Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.)

Regarding the construction of this repealing act Gallatin determined as follows:

ROBERT PURVEANCE, Esq.,

Collector, Baltimore.

TREASURY DEPARTMENT, March 31, 1804.

SIR: In answer to your letter of the 29th instant I will only observe that, without wishing to establish a principle applicable to other places, it seems proper that the

law repealing duties on goods imported from New Orleans should receive a liberal construction, and that no duties should be collected which are not in the most liberal sense of the law justly demandable.

In the case of the Comet, the day of arrival in the district where the goods are entered appears to be the proper date of importation. If, therefore, the vessel arrived in the district of Baltimore subsequent to the 25th of March, I do not think that the goo's which, by law, are exonerated from payment of duty if imported after that day into the United States should be charged with such duty.

I am, very respectfully, sir, your obedient servant,

ALBERT GALLATIN.

(G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.)

Jefferson claimed West Florida was included in the Louisiana purchase. Inasmuch as Congress had extended the tariff and navigation laws of the United States over the "territories ceded to the United States" by said treaty, it was necessary for him to accord the benefits of said laws to the products and shipping of West Florida; but his Secretary of the Treasury instructed the collector of the port of New Orleans as follows:

You will therefore consider all the said territory, whether on Lake Pontchartrain or on the Mississippi, in the same light as that part of it which lies east of the Pontchartrain Lake; that is to say, that with the exception prescribed in the two first rules laid down in my letter of the 27th ultimo, in relation to the produce and shipping of the said disputed territory, you are to consider Baton Rouge and other settlements now in possession of Spain, whether on the Mississippi, Iberville, the lakes, or the sea coast, as foreign ports. (See letter Gallatin to Trist, March 19, 1804, Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.)

In December, 1806, Gallatin, as Secretary of the Treasury, submitted a "Report on the Finances." Included therein was his estimate of the probable revenues to be derived by the Government for the ensuing nine years. In concluding that portion of his report, Gallatin

says:

And this must be considered as a very moderate computation, since it does not include the revenue derived from New Orleans. (Vol. 1, Reports on the Finances, p. 335, U. S. Treasury.)

Evidently Gallatin considered that territory as something separate and apart from the United States.

The act of February 24, 1804, entitled "An act for laying and collecting duties on imports and tonnage within the territories ceded to the United States by the treaty of the 30th of April, 1803, between the United States and the French Republic," contained the following: SEC. 8. And be it further enacted, That during the term of twelve years, to commence three months after the exchange of the ratifications of the above-mentioned treaty shall have been notified, at Paris, to the French Government, French ships or vessels, coming directly from France or any of her colonies, laden only with the produce or manufactures of France or any of her said colonies; and Spanish ships or vessels, coming directly from Spain or any of her colonies, laden only with the

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produce or manufactures of Spain or any of her said colonies, shall be admitted into the port of New Orleans, and into all other ports of entry which may hereafter be established by law within the territories ceded to the United States by the abovementioned treaty, in the same manner as ships or vessels of the United States coming directly from France or Spain or any of their colonies, and without being subject to any other or higher duty on the said produce or manufacture than by law now is or shall at the time be payable by citizens of the United States on similar articles imported from France or Spain or any of their colonies, in vessels of the United States, into the said port of New Orleans or other ports of entry in the territories above mentioned; or to any other or higher tonnage duty than by law now is or shall at the time be laid on the tonnage of vessels of the United States coming from France or Spain, or from any of their colonies, to the said port of New Orleans or other ports of entry within the territories above mentioned. Stats., 253.)

(2 U. S.

The provisions of this section gave New Orleans an advantage in the importation of French and Spanish products over all the ports of the States of the Union. Such advantage could only be justified. upon the theory that the port at New Orleans was without the limits. wherein the Constitution required that duties should be uniform.

FLORIDA.

The fifteenth article in the Florida treaty was as follows:

The United States, to give to His Catholic Majesty a proof of their desire to cement the relations of amity subsisting between the two nations, and to favor the commerce of the subjects of His Catholic Majesty, agree that Spanish vessels, coming laden only with productions of Spanish growth or manufacture, directly from the ports of Spain or of her colonies, shall be admitted, for the term of twelve years, to the ports of Pensacola and St. Augustine, in the Floridas, without paying other or higher duties on their cargoes, or of tonnage, than will be paid by the vessels of the United States. During the said term no other nation shall enjoy the same privileges within the ceded territories. The twelve years shall commence three months after the exchange of the ratifications of this treaty.

The advantage over the ports of the several States of the Union thus stipulated for Pensacola and St. Augustine was rendered effective by the act of March 3, 1821, by which the treaty was carried into effect. Section 2 thereof provided that—

The laws of the United States relating to the revenue and its collection, subject to the modification stipulated by the fifteenth article of the said treaty, in favor of Spanish vessels and their cargoes * shall be extended to said territories.

(3 U. S. Stats., p. 639.)

* *

Here, again, we find both the Executive and the Senate, in exercising the treaty-making power, and the Congress, in legislating for territory not included in the boundaries of the several States, dealing with said territory as being without the area covered by constitutional requirements for uniformity of duties.

It also presents another instance where Congress and the Executive considered it necessary for Congress to act in order that the revenue laws of the United States should be extended to newly acquired territory.