"Factors of universal commerce:" bonded warehousing and the spatialities of mid-nineteenth century American foreign trade policy.
To achieve this expanding commerce, he advocated the embrace of bonded warehousing as a central systemic feature of American trade policy. The key objective of this system was to build operative control over two related spaces in U.S. ports. One was the physical space of the port itself, where new kinds of bonded warehouses were newly built or newly designated and regulated. These bonded warehouses were designed to operate while standing administratively and legally outside of prevailing customs regulations and of the system generally. Goods moved into the warehouses from ships but did not legally move into customs jurisdiction. This suspension (or carving-out) of jurisdiction for the warehouse and its contents would last for a period of time set by law and regulated by the state.
The second space was more abstract but equally constructed, regulated, and significant. It was time itself. As Walker argued, "this question is one of great magnitude; in what country shall be chiefly stored the exchangeable products and fabrics of the world, during the period intervening between their growth, production, manufacture, and their use or consumption?" (2) This period of time served as another space of suspension where goods left the trade network without moving from the physical space of the port, all the while awaiting savvy reentry into the market. Such a space could be created and replicated, and coordinated with the appropriate physical spaces of warehouses, with sufficient government attention and regulation. Free profit, or "income realized on the products and fabrics of other countries" could be generated essentially out of the system itself on the basis of this control of space and time. Meanwhile, the mere proximity of U.S. goods to the bonded goods in warehouses would produce additional gains: "the foreign and domestic goods warehoused in adjacent stores, will, as it were, invite the exchange, and our merchants thus become the factors of universal commerce." To Walker, bonded warehouses provided, simply, "a perfect union of interest between our exports and imports, between our trade external and internal." (3)
This article considers ways U.S. sovereignty and territoriality were conceived, articulated, and implemented in foreign trade policy in the nineteenth century by characterizing the tenor of these trade regime structures and assemblages that linked the internal and external realm. (4) In so doing, this article interrogates the spatialities of sovereignty as related specifically to American commerce. This article observes mitigations and elisions in sovereign spaces within an idealized and commonly articulated description of the singularities of U.S. legal order. A great deal of law guided trade policy options, and sometimes even seemed to encase it. (5) But in practice the applications of legal norms to trade regimes was often lumpy, fitful, and idiosyncratic (6) and the exercise of sovereignty was larded with numerous exceptions in key ways. (7) In nineteenth century trade regimes, the fruit of more than a century of political and legal experimentation ripened in distributed and differential systems, in an array of economic and jurisdictional zones, and in territorial or extraterritorial exceptions. (8) This article examines this exception in practice. It traces a rhizomatic nineteenth century embrace of differential trade and regulatory regimes developing within a broad U.S. commitment to sovereign unilateralism.
Before the turn of the twentieth century the U.S. was rather wide- ranging in its approach to questions of jurisdiction. (9) In its pursuit of hegemony in an increasingly interconnected world, the U.S. adopted a potent combination of approaches: informal imperialism, military interventionism, and market penetration and rationalization centered on state-secured but privately-directed legal and financial realignment, all coupled with various regimes of citizenship and racial exclusiveness at home and abroad. (10) Through the Insular Cases, the U.S. combined strictly defined territorial sovereignty in its imperial possessions with fitful extension of the rights associated with this sovereignty, particularly related to trade policy and equal access to the continental common market. (11) These are the familiar examples, and we should read these bifurcated foreign policies to be structurally similar to domestic divisions from the same time period, all of which had distinct governance utilities: state/ federal; public/private, legal/exception, foreign/domestic. (12) Similar efforts were at work on other scales and in other spaces, particularly in the ports.
Evaluation of the policies and legal structures of nineteenth century U.S. trade requires a sensitivity to spatialities and contingent legalities in policymaking in terms of the policy impact on what Christopher Tomlins calls "the appropriation, occupation, and transformation of place." (13) Laws governing the flow and situatedness of goods, like larger questions of national sovereignty, often turn on stunningly commonplace issues. This is especially true when it comes to daily trade interactions involving the exchanges and materials of everyday life. These interactions were in fact exercises of state power continually recapitulated in ports and at border crossings by officials who individually wielded quite limited power, but whose local interventions gained wide cumulative significance. Governance appears much more interventionist than it has appeared even in those works which argue for an activist nineteenth century state. (14)
Systemic proximity is essential in viewing trade issues. As Sergio Conti and Paolo Giaccaria write, "every system is a local system." (15) But at the same time, observing the global context clarifies the significant innovations in jurisdictional claims that later eased construction of global imperial power. (16) As Walker put it, "commerce is a unit, it is the exchange of products and fabrics, whether foreign or domestic, whether transported inland or coastwise, upon the lakes or the ocean, upon the railroad or canal, and whatever system assembles in any port for exchange." (17)
Historians have basically overlooked the significance of spatial orders (this system assembling) in U.S. foreign trade policy as they have ignored many spatial aspects of the exercise of the foreign relations power more broadly in this and other eras. Yet there has been an ongoing spatial turn in other fields. (18) William Roseberry cautions that the "rush to 'theorize' this discovery" of space has led people "to have said many foolish things," (19) but even so cautioned it is useful to apply spatial understandings to questions of sovereign reach that underlie historical interpretations of U.S. foreign policy formation. (20) Roseberry suggests an approach that "stresses context, that traces networks, and that defines its central terms and unites (including the 'local' and the 'global') as relations rather than essences." (21) Questions of spatiality in these relational terms are especially useful because they signal the basic organization or division of these relations for the purposes of governance and regulation, as well as the complexities of these determinations. (22)
In grappling with trade policy issues, indeterminacy of limits is often shorthanded today as "offshore" and "onshore." These are fluid concepts which run into a complex stew of territorial, jurisdictional, and theoretical questions that have existed since the nineteenth century and only intensified in the current era. Ronen Palan describes this division as "sovereign bifurcation, by which states intentionally divide their sovereign space into heavily and lightly regulated realms." (23)
So, having dangerously skirted Roseberry's cautions about saying foolish things, this short article can turn to examination of how questions of jurisdiction and space at the local level connected to the wider thrum of trade policy intent. For example, where was a port actually situated and what was the controlling authority in this place? (24) When was a ship really in port? In August 1815, should the British ships Arlington and Brazil have been considered as having entered the Port of Charleston when in fact they both stood anchored at a bar "six miles from the nearest land"? The Collector of Customs at Charleston required the entry of both vessels, which meant bringing them into the jurisdiction of the U.S. and therefore into the reach of its customs requirements, costs, and tonnage fees. Great Britain complained to the U.S. State Department that the laws governing arrival of a ship to a U.S. port "was strained in a manner which might be prejudicial to British vessels calling for orders" and asked, in turn, for "liberality" and future waivers. However Secretary of the Treasury B.H. Bristow noted that the United States Revised Statutes required that any ship "within four leagues of the coast" present its manifest to the Collector. In other places the Statues simply stipulated jurisdictional control "'after the arrival or any vessel at any port of the United States." The Treasury department had in fact created a policy of allowing a ship 24 hours to report and 48 hours to" make entry" into the port. Otherwise, the department feared that merchant vessels might "lie as long as may be desired, within easy reach of the port" and would possibly "result in affording opportunities for smuggling. " This stationary position stood outside of national space as well as outside of time. Because of the diplomatic wrangle, however, Treasure agreed to end tonnage fees on vessels lying offshore in this manner. (25)
This raised questions as to when goods became legally visible to the state and when were they not. Sometimes questions arose as to when goods retained all the characteristics of a good, as when lead was shipped from London but made to look like something else "with a view to avoiding the duties on the metal in pigs." Exporters sent "leaden pumps" with pipes attached, so lead pipes would be considered to be part of a pump owing a duty of 15 % instead of five cents a pound for lead. Also "bronzed leaden busts are shipped, in the hope that they will be admitted as metal busts, duty free." (26)
Where, indeed, in spatial terms did the foreign policy power lie and where did it best operate? It was not uncommon to see Treasury officials dismiss complaints about the exercise of authority over these issues, which appeared daily in the Department's correspondence records, because they seem "to be addressed not to the administration of the law, but to the policy of the law itself." In such a case, as Secretary of the Treasury Hugh McCulloch told William Henry Seward in 1868, "I do not see what relief can be afforded them by either this Department or your own." (27) Governance occurred in spheres in which daily administration trumped concerns over the "policy of the law."
One space of trade that evoked these broad systemic implications for more than a century was the bonded warehouse system developed to provide jurisdictional elision for merchants. This system persisted until a wider and more encompassing system of trade zones in ports was established in the twentieth century. The idea for bonded warehouses percolated for decades in a political movement too complicated to detail here, but the major thrust of the effort was to achieve commercial dominance by novel approaches to spatial order. As early as 1821, Secretary of the Treasury Richard Rush argued that "amongst the expedients for augmenting the foreign trade of a country, otherwise than in the exports of its own productions, none are believed to be more important than the warehousing system." European nations, and especially Great Britain, had created an enviable special warehouse system to great advantage, and it was time for the U.S. to assert its natural dominance in similar fashion. (28) "The situation of the United States, locally; the number and position of their ports, along so extended a line of coast; the tonnage of which they are actually in possession, with the commercial experience of their people, point them out as peculiarly fitted to derive advantage from this system, and serve to recommend for it more liberal enactments than any of which it has yet been the subject." (29) The key idea, which was realized finally in 1846, was to increase the period of drawback wherein a merchant could re-export their goods without penalty, and to carve a space in territory and time for this to happen in the form of both public and private bonded warehouses.
Depending on which politician one reads, the warehouse system either provided the ideal support for American commercial dominance built within protection or it established a beacon of free trade purity. According to Rush, "a new commercial era is begun, of which this hemisphere is to be the principal scene." He argued that "by this intercourse we may hope to see multiplied the commercial and pecuniary ties which it is fit should grow up and be cherished throughout the whole federal family, superadding themselves to all other ties, and harmonizing and compacting the elements of a great empire." (30)
Protectionist adherents also saw the value of pursuing new commercial policies in addition to support for manufactures and agriculture, and for this reason the warehousing system continued throughout the ebb and flow of trade politics of the late nineteenth century. The federal government had an instrumental and promotional role to play, particularly in building and supervising the new warehousing system "in the principal seaport towns" around the country. This effort also included some of the inland ports of entry like Louisville, where the issues of internal and external spatiality became ever more complex. (31) "The merchant, like the manufacturer, and other interests of the state, requires at proper times the assisting hand of legislation; regulation, in one form or other, being the great end of government, and useful or baffling to individual enterprise, as it is wisely or improvidently exerted ... Where interests are multifarious, as in free, populous, and opulent communities must be the case, the hand of Government must be variously extended." (32)
Proponents of free trade had an opposite view of the value of the warehousing system which helped them to support it, though they obviously did not dwell on the active involvement of the state that came along with this promotion of commerce in the public warehouses. Instead, the warehouses were posited as free trade spaces in a protectionist sea. Walker declared bonded warehousing to be "the perfect success of this system, the principle of free storage and free competition for all but unclaimed goods." (33) Ironically, protectionists soon turned against warehousing as if they suddenly started believing the free trader's rhetoric. More likely they had begun to notice the impact on the growth of commerce.
In 1866, during a debate over extending the period of time between original importation or the paying of dues and consumption, Senator Peleg Sprague of Maine complained that "the whole system is wrong from the very foundation, in all its workings and all its results .... This is a free-trade measure from the start." (34) Protectionists in the Senate looking at twenty years of warehousing in 1868 saw it as the product of "scheming and speculative mind[s]" that carved out trade laws as a means both to further free trade and to build "facilities to foreigners to command our markets." These opponents were especially alarmed by the operation of the second space of market control: "under the warehousing system a reservoir of goods is accumulated, to be poured upon the market at the first sign of improved prices in our domestic products. They are held by their foreign keepers '--like greyhounds in the leash,/Straining upon the start,' to be let loose upon our home manufacturers, whose fate is to be hunted like hares in their own thickets." (35)
Over time, the emphasis of the federal government turned assertively from public warehouses to private warehouses overseen by customs agents. It was the declared "policy of the government ... to encourage the establishment of private bonded warehouses unless some good reason can be assigned," as McCulloch wrote in 1868. (36) The private status of the warehouses was tightly constrained by law ("which the department is not at liberty to disregard") and supervised by a large amount of bureaucracy. (37) The effect created what opponents in 1868 called a "vast machinery of structures and officials, and whose usages the mercantile communities at home and abroad have become familiar." (38) The customs agents responsible for supervising these warehouses were actually paid by the receipts from the buildings they supervised, a situation which was affirmed in an 1854 Maine case where Moses MacDonald, the collector of the customs in Portland and Falmouth, stood accused of retaining the "money accruing for the storage of merchandise deposited in private bonded warehouses." The government maintained that "to argue that public warehouse means private warehouse, is as hopeless a task as to argue that in a statute public way means private way, or public lands means lands of individual proprietors, or public buildings the houses of citizens." (39) The judge believed the question of the private or public status, was "in point of fact [was] the only question of any importance in the case." He concluded, in a decision affirmed by the U.S. Supreme Court, "that private bonded warehouses are public storehouses within the meaning of that act, and of all the subsequent acts of Congress upon the same subject." (40) This combined governmental and individual incentives in a conjoined public-private space of managed trade.
The physical and laboring spaces of the warehouse were defined and regulated, with a diversity of issues arising in ports in the major cities on the coasts and at internal ports. Once the warehouses were set up, Treasury dealt with details regarding establishment and smooth operation on a daily basis. The thousands of pages of daily correspondence dealing with bonded warehouses signal the enormity of this task, especially considering that the system encompassed buildings and ports across the country. The warehouse keepers were required to keep and register a "daily account" of all names, residences of clerks, foreman, and laborers or other employees, days worked, and other details. Different classes of warehouse held different goods, and had different rules. Some had to be stand-alone, others required a fence, barred windows, or a "substantially brick building without or without flooring." Being "fire-proof ' was required, as were specialized locks and specified configurations for access. The collector of customs in Galveston, Oscar Meiner, was reminded in January 1868 that the New General Regulations of February 1, 1857 forbade portions of buildings to be bonded "except in certain cases," notably the storage of liquor. Thomas Russell, Collector of Customs for Boston, similarly notified Clark & Woodward and Nash, Spaulding, & Co. that "while the Department has no disposition to incommode the merchants of Boston in the transaction of their business, it cannot permit the establishment of such warehouses" which violate the many regulations of class 2 warehouses wherein "the entire store shall be appropriated for the sole purpose. " In June 1868 Secretary McCulloch told Representative Charles O. Keith that "sometimes, when bonded warehouses for sugar and molasses were attempted to be built in cellars or vaults, which were only legal for liquor or wine, he had "felt constrained to refuse them, however much I may have desired to meet the wishes of the merchants of Philadelphia." (41)
Some commodities held unique and occasionally controversial status in the bonded warehouses. Liquor, as other luxury goods, unsurprisingly produced a cascade of rules and supervision in bonded warehouses. (42) A particularly interesting article of both special taxation and focused spatial control was oleomargarine. Although now considered an entirely unremarkable product, it was once the focus of great controversy and has been described as "an ill-treated child of the law." (43) For a long time it was not even called by its actual name as a form of control and disapprobation.
Invented in France in 1870 and produced in the United States since 1873, oleomargarine became a unique target of legal and political assaults as well multiple taxation and disputes over definition and even coloration because of its perceived threat to the hegemony of real butter. Oleomargarine was the focus of an unusual campaign to control its distribution and even existence, a situation the jurisdictional suspension of warehousing served well. Anti-oleomargarine laws appeared in New York and Pennsylvania as early as 1877 and in Maryland the next year. (44) Pennsylvania and Massachusetts actually banned the sale of it entirely, though the U.S. Supreme Court limited the extraterritorial reach of this ban in 1898. (45) This issue remained highly contentious for years, and triggered some notably overblown rhetoric bordering on the hysterical. Butter's defenders like Albert J. Hopkins, U.S. Representative from Illinois, exclaimed that "the manufacture and sale of oleomargarine have played the part of the midnight assassin to the production of honest butter. The claim of its being a legitimate and honest industry as compared with dairy butter is about the same as that of the assassin that his hellish work should meet with the approval of law-abiding citizens and God-fearing men." (46) William W. Grout, Representative of Vermont, argued that "this stuff, even if not absolutely unwholesome, is not fit for a self-respecting American citizen to eat. It might answer for a digger Indian, who lives on snakes, or for the Mexican peon, who in his poverty consumes with avidity every organic part of the animal, excepting only the horns, hoofs, hair, and bones. It might answer for these, but it does not comport with our American civilization." (47) Nevertheless, oleomargarine was finally recognized as a lawful article of commerce in August 1886 and specially taxed by a law later that year. (48)
Even with the recognized legalization of oleomargarine, its import was tightly regulated, at least to the level of, and sometimes exceeding, the controls on liquor. All imported oleomargarine was required to rest in bonded warehouse storage until labeled with the appropriate fixed and cancelled stamps with both an import duty and internal revenue tax paid. Its movement, sale, distribution, and repackaging were tightly regulated at the hazard of high fines and required jail time. (49) Ever increasing amounts of oleomargarine were produced domestically as well as imported, from 21 million pounds in 1887 to a height of 69 million pounds in 1894, and taxation of the product increased to sometimes punitive levels seeking its actual elimination as an article of trade. Later, grappling with punitive taxation structures, the Supreme Court concluded, in defending the power to tax as the power to destroy, that "the manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights." (50) The visibility of oleomargarine as an item of international trade in the bonded system increased as control legislation led producers to seek ever-cheaper sources of fats for production, including coconut oil and imported vegetable oils.
Because bonded warehouses offered temporary shelter from the punitive and even annihilatory effects of taxation at both the state and federal levels, they provided essential shelter for this beleaguered trade article. Beyond the scope of this short article, we can observe oleomargarine sitting in this exceptional space while finally wending its way to ubiquitous acceptance around the time the Foreign Trade Zone act of 1934 (FTZs) put whole areas within U.S. ports administratively and legally "outside of the customs territory of the United States." (51) This provided a key moment in postwar U.S. trade policy in edible oils and in the movement to new globalized manufacturing and distribution systems of all manner of products, as well as the creation of U.S. bi- and trilateral free trade systems in North America, South America, and Asia. But the system triggered by the FTZs were built upon more than a century of practice articulated domestically in warehousing, as well as in global models of suspended jurisdiction which will not be detailed here because of a lack of space. (52)
Daniel S. Margolies (Virginia Wesleyan College)
(1) U.S. Department of the Treasury, Report from the Secretary of the Treasury on the Warehousing System, 30th Cong., 2d sess., House Executive Document 57: 15.
(2) Ibid., 9-10.
(4) My use of the word "tenor" is deliberate, picking up on the Deleuzian concept of the rhythmic motifs and counterpoints of territoriality becoming manifest in assemblages. "Territorial motifs form rhythmic faces or characters, and that territorial counterpoints form melodic landscapes.... motifs and counterpoints that express the relation of the territory to interior impulses or exterior circumstances, whether or not they are given. No longer signatures, but a style." Deleuze and Guattari write further, "Nor can we say anything about the intra-assemblages without being on the path to other assemblages, or elsewhere." Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, trans. Brian Massumi (Minneapolis: University of Minnesota Press, 2011), 318, 323. My understanding of assemblages which underlay my thinking here about trade policy draws from Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 2008) and from the more speculative Manuel DeLanda, New Philosophy of Society: Assemblage Theory and Social Complexity (New York: Continuum, 2006).
(5) As Lauren Benton memorably described it: "The mythic structural support for the world being turtles all the way down, the cultural context of norms is law all the way down." Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge: Cambridge University Press, 2009), 290.
(6) Minor but amusing examples are Treasury allowing some foreign ministers to bring in duty free items and strongly forbidding consuls from doing the same. Treasury approved the importation duty free of 4000 cigars (in a single case) for the Italian minister in 1874, while the Turkish minister was allowed "one case of summer clothing" from Paris. In perhaps the largest single case, in 1874, the minister from Peru brought in, free of duty and charges, "one case of Saddlery, two cases of silverware, and eighty-seven cases of miscellaneous as per the bills of lading" brought in from London and Havre. A month later he was granted a case of duty free cigars from Havana. J.F. Hartley to Hamilton Fish, 2, 3, 8, 11, 16 June, and 17 July 1874 and James Guthrie to Wyndham Robertson, 28 July 1854, NARA RG 56 General Records of the Department of the Treasury, Correspondence of the Office of the Secretary of the Treasury, Letters Sent to the State Department (The "B" and "BF" Series), 1866-1878, PI 187, ENTRY 12. On forbidding consuls' entry, see James Guthrie to G.P.R. James, 13, 22, April 1854, NARA RG 56 General Records of the Department of the Treasury, Correspondence of the Office of the Secretary of the Treasury, Letters Sent, 1789-1878; Letters Sent Relating to Foreign Matters ("O" Series), 1833-1855, A-1, Entry 29.
(7) As Supreme Court Justice Oliver Wendell Holmes later clarified in the 1922 The Western Maid decision, the only laws the United States truly considered itself bound by were laws it chose as a sovereign to follow. As he memorably phrased it: "There is no mystic over-law to which even the United States must bow." The case combined three maritime tort cases. In re Western Maid, 257 U.S. 419, (1922). "We must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld.... Sovereignty is a question of power, and no human power is unlimited.... But from the necessary point of view of the sovereign and its organs whatever is enforced by it as law is enforced as the expression of its will. When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules." Ibid., 432-433.
(8) On the theoretical nature of sovereign exception, which I believe was a core policy attribute in this era, see Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005); Peter Fitzpatrick and Richard Joyce, "The Normality of the Exception in Democracy's Empire," Journal of Law and Society 34, no. 1 (March, 2007): 70n26.
(9) The meanings of U.S. attitudes as expressed in jurisdictional disputes are covered in Daniel S. Margolies, Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877-1898 (Athens: University of Georgia Press, 2011). The idea that "rules of legal spatiality in American law derive from configurations of power and interest, not from any overarching normative theory of legal geography" comes from Kal Raustiala, "The Evolution of Territoriality: International Relations and American Law," in Territoriality and Conflict in an Era of Globalization, ed. Miles Kahler and Barbara F. Walter (Cambridge: Cambridge University Press, 2006), 221; and more recently and richly detailed in Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press, 2009); also Diana Wong, "The Rumor of Trafficking: Border Controls, Illegal Migration, and the Sovereignty of the Nation-State," in Illicit Flows and Criminal Things: States, Borders, And the Other Side of Globalization, ed. Willem Van Schendel and Itty Abraham (Bloomington: Indiana University Press, 2005), 69-99.
(10) As has been well illuminated by a flurry of scholars such as Walter LaFeber, The New Empire: An Interpretation of American Expansion, 1865- 1898 (Ithaca: Cornell University Press, 1963); Thomas J. McCormick, China Market: America's Quest for Informal Empire, 1893-1901 (Chicago: Quadrangle Books, 1967); Matthew Frye Jacobson, Barbarian Virtues: The United States Encounters Foreign Peoples at Home and Abroad, 1876-1917 (New York: Hill and Wang, 2000); Emily S. Rosenberg, Financial Missionaries to the World: The Politics and Culture of Dollar Diplomacy, 1900-1930 (Durham: Duke University Press, 2003), 1-79. The most valuable historiographical discussion of American empire to date is Paul A. Kramer, "Power and Connection: Imperial Histories of the United States in the World," American Historical Review 116, no. 5 (December 2011): 1348-1391.
(11) And of course in the process denying or curtailing the extension of American rights to the colonized, see Bartholomew Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence: University Press of Kansas, 2006), 79-211; and the many excellent essays in Christina Duffy Burnett and Burke Marshall, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham: Duke University Press, 2001); Edward B. Whitney, "The Porto Rico Tariffs of 1899 and 1900," The Yale Law Journal 9, no. 7 (May 1900): 297-321; Hoxie, "The American Colonial Policy and the Tariff," The Journal of Political Economy 11, no. 2 (March 1903): 204-5; William Bradford Bosley, "The Constitutional Requirement of Uniformity in Duties, Imposts and Excises," The Yale Law Journal 9, no. 4 (February 1900): 164-169. It was "the reconciliation of imperialism and protection." Pedro E. Abelarde, American Tariff Policy Towards the Philippines, 1898-1946 (Morningside Heights, N.Y.: King's Crown Press, 1947), 5-6; Winfred Lee Thompson, The Introduction of American Law in the Philippines and Puerto Rico, 18981905 (Fayetteville: The University of Arkansas Press, 1989); Luzviminda Bartholome Francisco and Jonathan Shepard Fast, Conspiracy for Empire: Big Business, Corruption, and the Politics of Imperialism in America, 1876-1907 (Quezon City: Foundation for Nationalist Studies, 1985), 211-218.
(12) Formal empire simply clarified an evolving and longstanding sensibility among U.S. policymakers of the clear utilities of differential governance regimes and systems. Though the Constitution was naturally limited in its jurisdictional application within territorial boundaries, this power was found to be enormously flexible for local reshaping and repurposing. And, most critically, power was essentially not limited in the realm of foreign affairs outside of the borders. As George Sutherland, a Republican Senator from Utah who later became the principal architect of unconstrained power while on the Supreme Court, put it in 1910, "the consequence of denying to the general government any specified power over external affairs is to preclude its exercise by governmental agency altogether." Any limits on foreign relations power were too many. He stressed the inherent and necessary lack of limits on a "fully sovereign nation" in foreign affairs, one that was "perfect in all its limbs, and not a cripple among the full grown governments of the world." George Sutherland, "The Internal and External Powers of the National Government," North American Review, March 1910, 374-375, 382. Sarah Cleveland concentrates on exactly Sutherland's utilization of sovereign territoriality claims to bolster an unlimited construction of federal power in relations with Indians, aliens, and in governing territory. She describes them as "the product of a unique convergence of late-nineteenth century ideological forces: doctrinal obsession with federalism and dual sovereignty.. .with peculiarly nativist, nationalistic, and authoritarian impulses among the nation's political elites that justified the subjugation of 'inferior' peoples." Sarah Cleveland, "Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs," Texas Law Review 81, no. 1 (November 2002): 15. On Sutherland's later significance, see United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); G. Edward White, "The Transformation of the Constitutional Regime of Foreign Relations," Virginia Law Review 85, no.1 (February 1999): 4956; Walter LaFeber, "The Constitution and United States Foreign Policy: An Interpretation," Journal of American History 74, no. 3 (December 1987):711-713.
(13) On the concept of "legalities," this article follows the work of Christopher Tomlins, who emphasizes "legalities" rather than laws. The latter implies "universality of application, singularity of meaning, rightness" while "legality, in contrast, is a condition with social and cultural existence; it has specificity ... They are the means of effecting law's discourses, the mechanisms through which law names, blames, and claims ... Legalities, so powerful, are also fragile and contingent." Legalities should also be considered in terms of "the appropriation, occupation, and transformation of place." Christopher Tomlins, "Introduction: The Many Legalities of Colonization," in The Many Legalities of Early America, ed. Christopher Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2001), 2-3, 14.
(14) Thinking here of Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth Century America (Cambridge: Cambridge University Press, 2009). The view of customhouses as articulations of the state in the Revolutionary Era and the Early Republic is well argued in Gautham Rao, "The Creation of the American State: Customhouses, Law, and Commerce in the Age of Revolution" (PhD diss., University of Chicago, 2008).
(15) Sergio Conti and Paolo Giaccaria, "A Systemic Approach to Territorial Studies: Deconstructing Territorial Competitiveness," in The Changing Economic Geography of Globalization: Reinventing Space, ed. Giovanna Vertova (London: Routledge, 2006), 78.
(16) On some of the possible Constitutional limits, see Gary Lawson and Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History (New Haven: Yale University Press, 2004).
(17) "In truth commerce is the great handmaid of labor, the factor of its products finding for them the markets of the world." U.S. Department of the Treasury, Report from the Secretary of the Treasury on the Warehousing System, 30th Cong., 2d sess., House Executive Document 57: 10. Emphasis added.
(18) The richest definitions of space are, perhaps, Doreen Massey, For Space (London: Sage, 2005) and Edward W. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (New York: Verso, 2011). Also see Kal Raustiala, Does the Constitution Follow the Flag; Paul Schiff Berman, "The Globalization of Jurisdiction," University of Pennsylvania Law Review 151, no. 2 (December 2002): 311-545; Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, "Where (or What) Is the Place of Law?," in The Place of Law, ed. Sarat, Douglas, and Umphrey (Ann Arbor: University of Michigan Press, 2003), 2-6. Richard Ford notes "lines on a map may anticipate a jurisdiction, but a jurisdiction itself consists of the practices that make the abstract space depicted on a map significant." Richard Ford, "Law's Territory (A History of Jurisdiction)," in The Legal Geographies Reader, ed. Nicholas Blomley, David Delaney, and Richard Ford (Oxford: Blackwell, 2001), 202.
(19) William Rosenberry, "Understanding Capitalism Historically, Structurally, Spatially," in Locating Capitalism in Time and Space: Global Restructurings, Politics, and Identity, ed. David Nugent (Stanford: Stanford University Press, 2002), 72.
(20) For example, there is a clear need to apply spatial thinking to the otherwise fine approaches highlighted in the essays in Alfred W. McCoy and Francisco A. Scarano, eds., Colonial Crucible: Empire in the Making of the Modern American State (Madison: University of Wisconsin Press, 2009). As William Novak has argued in his study establishing the reality of the strong state in this era, "This American state grew by developing effective mechanisms for policing an ever-expanding and diverse territory. Coming to terms with the American state requires a better understanding of this power on the periphery." In the borderlands of the U.S., as at the borderlands of sovereign jurisdictions, the infrastructural power that Novak highlights was implemented and contested on a daily basis. "The American system of government, with its peculiar array of distributive technologies of state action--divided sovereignty, separation of powers, federalism, delegation, incorporation, and the rule of law--allows for an extraordinary penetration of the state through civil society to the periphery." William Novak, "The Myth of the 'Weak' American State," The American Historical Review 113, no. 3 (June 2008): 763-767. John Fabian Witt has argued that Novak has in fact ignored histories of U.S. foreign policy as well as the "basic law and society tenet--the equivalent of Legal History 101--that law is at once substantially derived from and constitutive of the power of the state. It does not stand outside the state. It sits inside the state, simultaneously shaping and shaped by its power." John Fabian Witt, "Law and War in American History," The American Historical Review 115, no. 3 (June 2010): 769-770.
(21) Rosenberry, 64.
(22) For example, as Allan Ersbsen points out, the Constitution itself leaves the United States with borders "of indeterminate contours and indeterminate meaning .... The place 'United States' is difficult to define for two reasons: the different meanings of United States may not be coextensive, and there are several plausible permutations of what the United States may encompass. First, the scope of the United States as an entity need not be coextensive with its scope as a place because an entity can own or exercise control over places that are not physically within itself. The Constitution seems to recognize this fact in at least two provisions." Allan Erbsen, "Constitutional Spaces," Minnesota Law Review 95 (2011): 13-20, http://ssm.com/abstract=1785546 (accessed March 26, 2013). This is a related question of Constitutional spatiality and reach to Gerald L. Neuman's great question: "The Constitution begins with 'We the People.' Where does it end?" Neuman, "Whose Constitution?" The Yale Law Journal 100, no. 4 (January 1991): 910.
(23) He argues that the development of the offshore world should be viewed as a key attribute of globalization and that "closer scrutiny will show that the United States has played a far more ambiguous role in the emergence and spread of the offshore economy than might at first appear." Ronen Palan, The Offshore World: Sovereign Markets, Virtual Places, and Nomad Millionaires (Ithaca: Cornell University Press, 2003), 4, 6-8
(24) The Constitution does not limit, but rather broadly defines in article 3, section 2 that the judiciary controls "all cases of admiralty and maritime jurisdiction." "Under Justice Story's formulation admiralty jurisdiction 'extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations) which relate to the navigation, business or commerce of the sea.'" This case was limited by North Pacific S.S. Co. v. Hall Brothers Marine Ry. & S. Co. 249 U.S. 119 125, 39 S.Ct. 221, 222, 63 L. Ed. 510 (1918); Robert Force, A. N. Yiannopoulos, and Martin Davies, Admiralty And Maritime Law (Washington D.C.: Beard Books, 2006), 2:73.
(25) B.H. Bristow to Hamilton Fish, August 25, 1875, NARARG 56 General Records of the Department of the Treasury, Letters Sent to the State Department (The "B" and "BF" Series), 1866-1878, Box 6.
(26) J. Lebouef, Jr., Vice Consul to Treasury, November 7, 1833, NARA RG 56 General Records of the Department of the Treasury, Correspondence of the Office of the Secretary of the Treasury, Letters Received from the U.S. and Foreign Consuls ("O" Series), 1833-1855, Volume 1, Letters from U.S. Consuls, April 1, 1833 to July 1, 1834.
(27) So much of the Treasury Department correspondence with consuls is about following rules, listening to laws, procedures for filling out certificates, and other mundane procedural tasks. State correspondence with Consuls tends to me much more about policy trajectories and implementation. McCulloch to Seward, September 7, 1868, NARARG 56 General Records of the Department of the Treasury, Letters Sent to the State Department (The "B" and "BF" Series), 1866-1878, Volume 1.
(28) On the British model, see Henry Longlands, A Review of the Warehousing System as Connected with the Port of London Taken From Parliamentary Reports and Official Documents, 2nd ed. (London: Thomas Davison, Whitefrairs, 1824), also The Warehousing System: Extracts from Various Publications and Documents Relating to the Warehousing of Goods in the Port of London and the Out-Ports; with Observations upon the Impolicy and Injustice of Extending the Privilege to In-Land Towns or Up-Town Warehouses (London: W. Wilcockson, Whitefrairs, 1835).
(29) "Report by Mr. Rush on the Finances," Reports of the Secretary of the Treasury of the United States (Washington: Blair & Rives, 1837), 2:407.
(30) "Should it still be apprehended by any, that evils will be generated in a state of society where large manufacturing classes co-exist with a full population--to such minds, the reflection must prove consolatory and re-assuring, that in the public lands a check to these evils will be at hand for ages to come. This immense domain, besides embodying all the ingredients, material and moral, of riches and power, throughout a long vista of the future, may, therefore, also be clung to, under the various springs and conjoint movements of our happy political system, as a safeguard against contingent dangers. Its very possession is conceived to furnish paramount inducements, under all views, for quickening, by fresh legislative countenance, manufacturing labor throughout other parts of the Union." Ibid., 406.
(31) For questions arising in the inland ports, see Y.O. [?] Porter to Robert J. Walker, November 21, 1846, NARA RG 56 General Records of the Department of the Treasury, Letters Received by the Secretary of the Treasury from Collectors of Customs, 1833-1869 M-174 , Series G: Letters from All Ports Except New York, 1846 (A-N), roll 34.
(32) Ibid., 408-409.
(33) "Report from the Secretary of the Treasury on the Warehousing System," 30th Cong., 2d sess., House Executive Document 57: 9.
(34) Congressional Globe, March 12, 1866, 1321.
(35) The Protective Policy and Warehousing System, A Report Submitted to the House of Representatives, June, 1868 by Mr. Morrell, of Pennsylvania, from the Committee on Manufacturers (Washington D.C.: Government Printing Office, 1868), 34-38.
(36) NARA RG 56 General Records of the Department of the Treasury, Correspondence of the Office of the Treasury, Letters Sent, 1789-1878, Letters Sent Relating to Customs and Internal Revenue Warehouse ("GA" Series), 1868-70, NARS A-1, entry 24, box 1, volume 1.
(37) As detailed in Circular No. 34, "Instructions to collectors and other officers of the customs," February 17, 1849, Report from the Secretary of the Treasury on the Warehousing System, 30th Cong., 2d sess., House Executive Document 57: quote is on p. 16.
(38) The Protective Policy and Warehousing System, A Report Submitted to the House of Representatives, June, 1868 by Mr. Morrell, of Pennsylvania, from the Committee on Manufacturers (Washington D.C.: GPO, 1868): 3.
(39) "The classification of warehouses as public and private warehouses is not the new suggestion of a distinction for the purposes of the argument, but is a distinction that has been kept up in all the legislation of congress, in all the instructions of the Treasury department, and in all the practice of the revenue service from the first establishment of warehousing." United States v. MacDonald, et al. 2 Cliff. 270, 26 Law Rep. 558, Circuit Court, D. Maine, April Term, 1864.
(40) 26 Fed. Case 1084.
(41) Letters January-February, 1868; McCulloch to Keith, June 30, 1868, NARARG 56 General Records of the Department of the Treasury, Correspondence of the Office of the Treasury, Letters Sent, 1789-1878, Letters Sent Relating to Customs and Internal Revenue Warehouse , (series "GA")1868-70, NARS A-1, entry 24.
(42) "No distilled spirits can be withdrawn or removed from any warehouse for the purpose of transportation, redistillation, rectification, change of package, exportation, or for any other purpose whatever, until the full tax on such spirits shall have been duly paid to the collector of the proper district." Orlando F. Bump, ed., Internal Revenue Statutes Now in Force with Notes Referring to all Decisions of the Courts and Departmental Rulings, Circulars, and Instructions Reported to October 1, 1870 (New York: Baker, Voorhis & Co., Publishers, 1870), 174. In 1894, the Treasury Department determined that "some of these warehouses have proved to be of convenience to the taxpayer without an undue amount of expense to the United States. Others have been found to be detrimental to the interests of the Government."
(43) J. K. M., Jr., "The Oleomargarine Controversy," Virginia Law Review 33, no. 5 (September 1947): 631.
(44) Eugene O. Porter, "Oleomargarine--Pattern for State Trade Barriers," The Southwestern Social Science Quarterly 29, no. 1 (1948): 39.
(45) Schollenberger v. Pennsylvania, 171 U.S. 1 (1898).
(46) "'Bogus Butter, ' A Speech of Hon. Albert J. Hopkins," May 24, 1886, Special Collections, University of Virginia Library.
(47) "Oleomargarine: Remarks of William W. Grout, of Vermont, in the House of Representatives, May 25, 1886, on the Bill to Tax Oleomargarine," (Washington D.C.: 1886).
(48) In November 12, 1886; 24 U.S. Stat. 209 (1886); and Abstracts Taken from the Report of Joseph S. Miller, Commissioner of Internal Revenue of U.S.A., Referring to the United States Oleomargarine Tax Law for the Year 1886-7 (Boston: Samuel Hobbs & Co., 1888).
(49) U.S. Statutes at Large XXIV, 209; Lewis Heyl, United States Duties in Imports, 1891, 33rd ed. (Philadelphia: Sherman & Co., Printers, 1891), 147-148. Yet interestingly, imported oleomargarine did not have to be labeled with all of the same caution notices that the domestic product featured, though coloration was always noted. The extremely detailed rules dealing with the production, sale, import, and export of oleomargarine dating from 1886 and revised thereafter is United States Internal Revenue Service Regulations No. 9, Revised Regulations Concerning Oelomargarine, also Adulterated Butter and Process or Renovated Butter Under Internal Revenue Laws (Washington D.C.,: GPO, 1907).
(50) "The taxes were declared constitutional even though they ran the risk of totally destroying the subject being taxed. There is such a distinction between natural butter artificially colored and oleomargarine artificially colored so as to cause it to look like butter that the taxing of the latter and not the former cannot be avoided as an arbitrary exertion of the taxing power of Congress without any basis of classification, taxing one article and excluding another of the same class." McCray v. United States, 195 U.S. 27 (1904). Also see "A New Instance of the Power of Congress to Destroy by Taxation," Michigan Law Review 3 no. 3 (January 1905): 220-223.
(51) House Committee on Ways and Means, Overview and Compilation of U.S Trade Statutes, Part I, 111th Cong., 2d sess., 2010 (Washington D.C.: GPO, 2010).
(52) The global comparative history of the FTZ is my broader book project. Incredibly, this has not been undertaken since Richard S. Thoman's short and quite dated Free Ports and Foreign-Trade Zones (Cambridge, MD: Cornell Maritime Press, 1956). There was a recent, stimulating article with a limited focus on Staten Island Foreign Trade Zone No. 1, Dara Orenstein, "Foreign-Trade Zones and the Cultural Logic of Frictionless Production," Radical History Review 109 (Winter 2011): 36-61.
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|Title Annotation:||Special Section: Sovereignty and World History|
|Author:||Margolies, Daniel S.|
|Publication:||World History Bulletin|
|Date:||Mar 22, 2013|
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