sity for the ratification of so formal an instrument might defeat it, (the legislature opposing it,) signed with the Minister of Foreign Affairs, Foreign Affairs, a declaration to the effect that the treaty of commerce and navigation of December 10, 1837, conferred upon the citizens or subjects of either country in the dominions of the other the same right with respect to trade-marks, industrial designs and patterns, as such citizens and subjects enjoyed in their own country. Great Britain and other powers had previously signed declarations to this effect. Mr. Gresham, then Secretary of State, was unwilling to accept this less formal instrument, and instructed Mr. Alexander as follows: "An examination of the treaty of 1837, has failed to satisfy the Department that it is susceptible of this interpretation." This decision of Mr. Gresham2 was sus

that the trade mark is, therefore, a useful and valuable aid or instrument of commerce, and its regulation by virtue of the clause belongs to Congress, and that the act in question is a lawful exercise of this power.

"Every species of property which is the subject of commerce, or which is used or even essential in commerce is not brought by this clause within the control of Congress. The barrels and casks, the bottles and boxes, in which alone certain articles of commerce are kept for safety and by which their contents are transferred from the seller to the buyer, do not thereby become subjects of congressional legislation more than other property. Nathan v. Louisiana, 8 Howard, 73. In Paul v. Virginia, (8 Wall. 168,) this court held that a policy of insurance made by a corporation of one State on property situated in another, was not an article of commerce, and did not come within the purview of the clause we are considering. They are not,' says the Court, 'commodities to be shipped from one state to another and then put up for sale.' On the other hand, in Almy v. The State of California, (24 Howard, 169,) it was held that a stamp duty imposed by the legislature of California on bills of lading for gold and silver transported from any place in that State to another out of the State, was forbidden by the Constitution of the United States, because such instruments being a necessity to the transactions of commerce, the duty was a tax upon exports.

"The question, therefore, whether the trade mark bears such a relation to commerce in general terms as to bring it within Congressional control, when used or applied to the classes of commerce which fall within that control, is one which, in the present case, we suppose to leave undecided." 100 U. S. 82.

1 U. S. F. R. 1895, Correspondence with Greece.

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2 The Declaration" is therefore deemed to be practically a new treaty,

tained by Mr. Olney, his successor as Secretary of State, both in instructions to Mr. Alexander and to the United States Minister to Japan.1 From these several opinions, any State would be acting well within its rights in refusing protection in trade-marks as a favor in matters of

commerce.

Favors in commerce and navigation may be extended then to

1. The articles of commerce, which, when set in motion, become imports and exports.

2. The agents of commerce, who are the importer, the exporter, and the furnisher of means of transportation, and

3. The instruments of commerce which are: the vessel, the railroad, the post, the telegraph, the telephone, the bill of lading, money, the bill of exchange, and all its other necessary aids and instruments.

As the primary object of commerce is the exchange of commodities, any favors which its agents or instruments enjoy are indirectly favors to that traffic, not granted with an intent and purpose to benefit the former, but to facilitate the buying, selling and exchange of goods.

and as such could only be ratified by the President of the United States by and with the advice and consent of the Senate. Since the concurrence of the Senate is necessary for the accomplishment of the object in view, it is deemed best that this object should be set forth in a regular and formal convention instead of a mere declaration." Mr. Gresham to Mr. Alexander. U. S. F. R. 1895, p. 759.

1 U. S. F. R. 1891, Mr. Olney to Mr. Dun, p. 429.

CHAPTER VI.

Imports are the articles of commerce brought into a State from a foreign country, and an impost or duty on imports is a custom or tax levied on them.1 As the object of importation is sale, it constitutes the motive and the consideration for the payment of the duty. Imports do not lose their character as such until they have by sale passed from the hands of the importer, and have become incorporated with the general mass of property of the State, or until they have been broken up by him from their original cases for the purpose of sale in smaller quantities.2 In the latter case the importer has used the privilege he has purchased, and has himself mixed them up with the general mass, and the law may treat them as it finds them.3

1"The words imposts, imports, and exports, are frequently used in the Constitution. They have a necessary correlation, and when we have a clear idea of what either word means in any particular connection in which it may be found, we have one of the most satisfactory tests of its definition in other parts of the same instrument.

"In the case of Brown v. Maryland, the word imports, as used in the clause now under consideration, is defined, both on the authority of the lexicon and of usage, to be articles brought into the country; an impost is there said to be a duty, custom, or tax levied on the article brought into the country." Woodruff v. Parham, 8 Wallace, p. 128.

2 Goods imported do not lose their character as imports, and become incorporated into the mass of property of the State until they have passed from the control of the importer, or have been broken up by him from their original cases. Low v. Austin, 13 Wallace, p. 29.

3" And the Court, after observing that it might be permature to state any rule as being universal in its application, held, that, when the importer had so acted upon the thing imported, that it had become incorporated and mixed up with the mass of property in the country, it had lost its distinctive character as an import, and become subject to the taxing power of the state; but that, while remaining the property of the importer in his warehouse in the original form and package in which it was imported the

Chief Justice Marshall laid down the rule most clearly in Brown v. State of Maryland. "An impost or duty on imports is most usually secured, before the importer is allowed to exercise his rights of ownership over them, because evasion of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less an impost or duty on the articles if it were to be levied on them, after they landed. There is no difference in effect, between the power to prohibit the sale of an article and a power to prohibit its introduction into the country; and one would be a necessary consequence to the other. "No goods would be imported, if none could be sold. No object of any description can be accomplished which may not be accomplished with equal certainty, by laying a duty on the thing imported in the hands of the importer." The protection which the character of imports gives to the articles does not cease at the external boundary of the State but accompanies them to any market in the interior to which they may go, and remains with them until by sale, or by being broken from their original cases, they become identified with the common mass of property. So long as the articles remain identified as imports and have paid the custom duties, any further tax or charge placed on them except for services rendered is unfair and discriminating.

Exports are the articles of commerce shipped out of a State to a foreign country. The process of exportation begins when the articles have been actually launched on their way to another State or committed to a common carrier for transportation to that State, and this is the point of time when they cease to be governed exclusively by domestic law and begin to be governed and protected

tax upon it was plainly a duty on imports prohibited by the constitution." Welton v. State of Missouri, 91 U. S. p. 275.

by the law of commercial regulations, as articles identified as separate from the common mass of property.

When they have been so launched upon their journey, any charge, tax, or custom levied upon them is a duty on exports. It is not sufficient that the articles are gathered together from the surrounding country in a town or city located on the sea, river, or railroad with an intention on the part of the owner to export them; their exportation as yet remains a matter in fieri; the intention of the owner through unforeseen circumstances may change; and the goods are still looked upon as belonging to the common mass.1

1 (After a decision that the fact that personal property was taxed upon the owner of it though he resided in another State, inasmuch as personal property is taxable at the domicile of the owner, was no bar to its taxation within the jurisdiction of the State in which it was found.) "We recur, then, to a consideration of the question freed from this limitation: Are the products of a State, though intended for exportation to another State, and partially prepared for that purpose by being deposited at a place or port of shipment within the State, liable to be taxed like other property within the State?

"Do the owner's state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation? This is the precise question for solution.

"The question does not present the predicament of goods in transportation through a State, though detained for a time within the State by low water, or other causes of delay, as was the case of the logs cut in the State of Maine, the tax on which was abated by the Supreme Court of New Hampshire. Such goods are already in course of commercial transportation and are clearly under the protection of the constitution. And so, we think, would the goods in question be when actually started in the course of transportation to another State or delivered to a carrier for such transportation. There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulations, and that moment seems to us to be a legitimate one for this purpose in which they commence their final movement for transportation from the State of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepôt for that particular region whether on a river or a line of railroad, such products are not yet exports, nor are they in the process of exportations, nor is the exportation begun until they are committed to a common carrier for transportation out of the State to the State of their destination, or