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continued in force until April 6, 1802, and a similar law was in force from July 1, 1862 until June 6, 1872, the constitutionality of neither was ever questioned. The act considered in the Fairbank case went into effect July 1, 1898, and was not questioned until March, 1900. Upon this branch of the case, Mr. Justice Harlan, speaking for himself, Mr. Justice Gray, Mr. Justice White, and Mr. Justice KcKenna, said:

"Practically no weight has been given in the opinion just filed to the fact that the power now denied to Congress has been exercised since the organization of the Government without any suggestion or even intimation by a single jurist or statesman during all that period that the Constitution forbade its exercise. It is said that the question of power never was presented for judicial determination prior to the present case, and therefore this court is at liberty to determine the matter as if now for the first time presented. But the answer to that suggestion is that, in view of the frequent legislation by Congress and its enforcement for nearly a century, the question must have arisen if it had been supposed by any one that such legislation infringed the constitutional rights of the citizen. Within the rule announced in Stuart v. Laird, and in other cases, the question should be considered at rest." 24

There is, throughout the opinion of the majority of the Court in the Fairbank case, the thought that "freedom of exportation" is guaranteed by the Constitution; for instance, it is said:

"As the States cannot directly interfere with the freedom of imports they cannot by any form of taxation, although not directly on the importation, restrict such freedom, Congress alone having the power to prescribe duties therefor. In like manner the freedom of exportation being guaranteed by the Constitution it cannot be disturbed by any form of legislation which burdens that exportation." 25

This concisely states the unwarranted premise from which the majority of the Court deduces its erroneous conclusions. The prohibition contained in section 10 in conjunction with the commerce clause does prevent the States from interfering in any way with the freedom of imports or exports, but so far as Congress is concerned, "freedom of exportation" is not and was not intended to be guaranteed by the Constitution. This is shown by the fact that embargoes by the Federal Government, which are certainly 23 I Cranch (U. S.) 299 (1803). 24 181 U. S. 283, 323 (1901). 25 Id., 295; see also pp. 290 and 292.


not consistent with "freedom of exportation," are not prohibited and were not intended to be prohibited by the clause in question,2 while on the other hand, when Mr. Madison suggested that to the prohibitions upon the States be added, "nor lay embargoes," it was agreed that this was already covered.27

Moreover, it is in accord with sound principles of construction to say that when a small, learned, deliberative body in daily session, after having a subject under consideration for over a month, and after drafting and re-drafting the instrument to be submitted, and after referring it to a committee for the purpose of harmonizing the language of the various provisions, deliberately preserves a difference in the language in which two inhibitions are expressed, it must be assumed that it intended to express a difference in meaning. All of the cases upon which the majority of the Court in the Fairbank case rests its opinion, are cases in which the action of a State has been called in question because it contravened the prohibition with reference to "imports" or "exports" or because it was obnoxious to the provision vesting Congress with power to regulate foreign or domestic commerce. Consequently, what has been said with reference to Brown v. Maryland and Fairbank v. U. S., applies to those cases also.

For the reasons stated, it seems clear that the opinion of the majority of the Court in the Fairbank case, in holding that the provision that no tax or duty shall be laid upon articles exported from a State, disregarded the plain language of the clause itself, disregarded the purpose intended and the mischief sought to be prevented, disregarded the contemporaneous and practical construction of the act during a period of a hundred years, and was erroneous. A regard for sound principles of interpretation demands that its words be given no larger meaning than their natural import, considered in the light of the purpose sought to be accomplished, and that this is done when they are considered as excluding only taxes and duties on the articles themselves.


But the Hvoslef case goes much further than the Fairbank case in curtailing the powers of Congress. In the latter, there had been


2 CONST. CONV. (Hunt's ed.), p. 215.

27 Id., 264.

a discriminating stamp duty on bills of lading used in the export trade.28 In the former, there was a general provision which applied to all charter parties whether the vessels were to be used in domestic or foreign trade. In the case following the Hvoslef case, Thames & Mersey Marine Ins. Co. v. United States,29 the Court went a step further and held that stamp taxes on policies of marine insurance also came within the prohibition of section 9. The drastic doctrine of the court, therefore, is that any governmental burden which affects in any way the processes of exportation is unconstitutional and void. The doctrine of the Fairbank case is thus expanded and carried to its extreme and logical limit, but it is submitted that the doctrine of that case is contrary to reason and authority, and ought not to stand.


The United States is at the present moment facing a grave situation, and fully understands the need it has of every legitimate and constitutional source of revenue. It stands as the one great nation in the world whose taxing power is curtailed by express constitutional limitations; limitations which deprive it of all practical means of direct taxation, except upon incomes, and of all power to lay taxes and duties on articles exported from any State. It is obvious that the common defense, the general welfare, and perhaps even the security of liberty demand that these limitations upon the power of the nation to protect itself and its citizens shall not be extended beyond their rightful and true meaning, and if in the Fairbank case, a majority of the Court has, as it is believed that it has, given to the language of the Constitution an extended meaning and a restrictive effect which cannot be supported by reason, then the ruling in that case and in those following it ought to be reconsidered and the constitutional powers of Congress fully restored.


Clarence Norton Goodwin.

28 181 U. S. 283, 290 (1901).

29 237 U. S. 19 (1915).




HE sixteenth century in England was a period of armed religious strife in which Catholics and Protestants alike, when a suffering minority clamored for liberty of conscience, and when in power proscribed every creed but their own. As Protestantism slowly forged victory out of the conflict it secured itself in the ascendency by various repressive statutes against Catholicism. As early as 1590 the Elizabethan government aimed at the suppression of Catholic education by enacting that only schoolmasters who repaired to the Established Church might be maintained,1 followed four years later by a further statute which punished as a præmunire the sending abroad of a child for Catholic education.2 From time to time further laws3 were passed to render more effectual the suppression of Catholic education, until by 1699 it was a crime punishable by perpetual imprisonment for any Papist to keep school or assume the education of youth.4

Naturally during this period, in the face of such public sentiment and of such laws there was little or no litigation in the courts of England on the part of Catholic parents to protect any parental rights in relation to their children. Indeed the temper of the courts, reflecting this prevalent spirit of religious intolerance, is well illustrated by their action in Shaftsbury v. Hannam, where upon an insinuation by counsel for the plaintiff that the defendant was a Papist, although "utterly denied" by her, an order was entered that unless Lady Hannam "dispose herself to receive the

1 23 ELIZ. I.

2 27 ELIZ. 2.

Sic: 1 JAC. I, c. 4; 3 CAR. I, c. 2; 13 & 14 CAR. II, c. 4. See 2 BACON Abr. Tit. Papists & Popish Recusants.

* 11 & 12 WM. III, c. 4. No attempt is made to cover any of the side currents of religious conflict between Protestant sects such as the struggle between the Church of England and Non-Conformists. Sic: Five Mile Act. 13 & 14 CAR. II, c. 4, etc., etc. • Finch 323 (1677).

Sacrament according to the rites of the Church of England, before the end of the next term, and produce a legal certificate thereof, the court would then consider to remove the infant into such hands as might secure his education in the Protestant religion."


In order to stimulate the conversion to Protestantism of Catholic children the Act of 1699 compelled Catholic parents to support their Protestant children. In 1701 St. Andrew's Undershaft Parish in London sought to compel a Jew to maintain a daughter whom he had turned out-of-doors because she had embraced Christianity. The action failed because it was held not to come within any existing statute. Thereupon in the same year a further statute was passed obliging Jews to maintain and provide for their Protestant children, and the following year a similar provision was incorporated in the anti-Catholic act applying the same principle to Catholics and their Protestant children in Ireland. To what lengths the court was prepared to go under such statutes to stimulate proselytizing is shown when they awarded a Christian daughter forty-four years of age, and married, maintenance out of her Jewish father's estate even after his death.10 In the zeal to uphold Protestantism family ties cut no figure. The court did not hesitate to deprive a widow of the custody of her minor children so that they might be brought up Protestants, although both parents had always been Catholics. Even when a Catholic mother was bringing up her son as a Protestant according to the wishes of her late husband the court was so blind to all considerations except the possible dangers to the child's Protestant religious education in such a situation that it ordered the separation of the mother and her child of seven years.12 Marriage to a Catholic of a Protestant widow, even though she continued a Protestant, was considered sufficient to justify depriving her of custody of her daughter.13

6 11 & 12 WM. III, c. 4, § 7.

7 Inhabitants St. Andrew v. De Breta, 1 Ld. Raym. 699 (1789).

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10 Vincent v. Farnandez, 1 P. Wms. 524 (1718). See also Moses v. Moses, I Sander's Orders in Ch. 457 (1723) & 524 (1727).

11 Preston v. Ferrard, Bro. P. C. 298 (1720).

12 Teynham v. Lennard, 4 Bro. P. C. 302 (1724); 9 Mod. 40, 2 Eq. Cas. abr. 486.

13 "By reason that she had married a Papist.” Edwards v. Wise, Barnard, ch. 139 (1740).

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