By the Customs Administrative Act of 1890, an appeal is given
from the decision of the collector "as to the rate and amount of
the duties chargeable upon imported merchandise," to the Board of
General Appraisers, who are authorized to decide
"as to the construction of the law and the facts respecting the
classification of such merchandise, and the rate of duties imposed
thereon under such classification,"
but where the merchandise is alleged not to have been imported
at all, but to have been brought from one domestic port to another,
the Board of General Appraisers has no jurisdiction of the case,
and an action for money had and received will lie against the
collector to recover back duties assessed by him upon such property
and paid under protest.
With the ratification of the treaty of peace between the United
States and Spain, April 11, 1899, the Island of Porto Rico ceased
to be a " foreign country" within the meaning of the tariff
laws.
Whatever effect be given to the Act of March 24, 1900, applying
for the benefit of Porto Rico the duties received on importations
from that island after the evacuation by the Spanish forces, it has
no application to an action brought before the act was passed.
This was an action originally instituted in the Supreme Court of
the State of New York by the firm of D. A. De Lima & Co.
Page 182 U. S. 2
against the collector of the port of New York to recover back
duties alleged to have been illegally exacted and paid under
protest upon certain importations of sugar from San Juan, in the
Island of Porto Rico, during the autumn of 1899 and subsequent to
the cession of the island to the United States.
Upon the petition of the collector, and pursuant to Rev.Stat.
sec. 643, the case was removed by certiorari to the circuit court
of the United States, in which the defendant appeared and demurred
to the complaint upon the ground that it did not state a cause of
action and also that the court had no jurisdiction of the case. The
demurrer was sustained upon both grounds, and the action dismissed.
Hence this writ of error.
In this and the following cases, which may be collectively
designated as the "
Insular Tariff Cases," the dates here
given become material:
In July, 1898, Porto Rico was invaded by the military forces of
the United States under General Miles.
On August 12, 1898, during the progress of the campaign, a
protocol was entered into between the Secretary of State and the
French Ambassador on the part of Spain providing for a suspension
of hostilities, the cession of the island, and the conclusion of a
treaty of peace. 30 Stat. 1742.
On October 18, Porto Rico was evacuated by the Spanish
forces.
On December 10, 1898, such treaty was signed at Paris (under
which Spain ceded to the United States the Island of Porto Rico),
was ratified by the President and Senate February 6, 1899, and by
the Queen Regent of Spain March 19, 1899. 30 Stat. 1754.
On March 2, 1899, an act was passed making an appropriation to
carry out the obligations of the treaty.
On April 11, 1899, the ratifications were exchanged, and the
treaty proclaimed at Washington.
On April 12, 1900, an act was passed, commonly called the
Foraker Act, to provide temporary revenues and a civil government
for Porto Rico, which took effect May 1, 1900.
This case was argued with No. 507,
Downes v. Bidwell,
No. 501,
Dooley v. United States, No. 502,
Dooley v.
United
Page 182 U. S. 3
No. 509,
Armstrong v. United States. The briefs and the
arguments were reported in length in a book entitled "The Insular
Cases," compiled and published pursuant to a resolution of the
House of Representatives passed in the Second Session of the 56th
Congress and containing both the briefs of counsel and their oral
arguments. Then amounted to 1075 pages. Of course, it is impossible
to reproduce all here, even if it were desirable.
Page 182 U. S. 174
MR. JUSTICE BROWN delivered the opinion of the Court.
This case raises the single question whether territory acquired
by the United States by cession from a foreign power remains a
"foreign country" within the meaning of the tariff laws.
1. Did the question of jurisdiction raised by the demurrer
involve only the jurisdiction of the circuit court as a federal
court, we should be obliged to say that the defendant was not in a
position to make this claim, since the case was removed to the
federal court upon his own petition. It is no infringement upon the
ancient maxim of the law that consent cannot confer jurisdiction to
hold that where a party has procured the removal of a cause from a
state court upon the ground that he is lawfully entitled to a trial
in a federal court, he is estopped to deny that such removal was
lawful if the federal court could take jurisdiction of the case, or
that the federal court did not have the same right to pass upon the
questions at issue that the state court would have had if the cause
had remained there. Defendant neither gains nor loses by the
removal, and the case proceeds as if no such removal had taken
place.
Cowley v. Northern Pacific Railroad Co.,
159 U. S. 569,
159 U. S. 583;
Mansfield Railway Co. v. Swan, 111 U.
S. 379;
Mexican Nat. Railroad v. Davidson,
157 U. S. 201.
This, however, is more a matter of words than of substance, as
the defendant unquestionably has the right to show that the state
court had no jurisdiction, or that the complaint did not set forth
facts sufficient to constitute a cause of action. This we
understand to be the substance of the defense in this
connection.
By Rev.Stat. sec. 2931, it was enacted that the decision of
Page 182 U. S. 175
the collector "as to the rate and amount of duties" to be paid
upon imported merchandise should be final and conclusive unless the
owner or agent entered a protest and within thirty days appealed
therefrom to the Secretary of the Treasury, and further that the
decision of the Secretary should be final and conclusive unless
suit were brought within ninety days after the decision of the
Secretary. By Rev.Stat. sec. 3011, any person having made payment
under such protest was given the right to bring an action at law
and recover back any excess of duties so paid.
The law stood in this condition until June 10, 1890, when an act
known as the Customs Administrative Act was passed, 26 Stat. 131,
c. 407, by which the above sections, Rev.Stat. secs. 2931, 3011,
were repealed, and new regulations established by which an appeal
was given from the decision of the collector "as to the rate and
amount of duties chargeable upon imported merchandise," if such
duties were paid under protest, to a board of general appraisers
whose decision should be final and conclusive (sec. 14)
"as to the construction of the law and the facts respecting the
classification of such merchandise and the rate of duty imposed
thereon under such classification,"
unless, within thirty days, one of the parties applied to the
circuit court of the United States for a review of the questions of
law and fact involved in such decision. Sec. 15. It was further
provided that the decision of such court should be final unless the
court were of opinion that the question involved was of such
importance as to require a review by this Court, which was given
power to affirm, modify, or reverse the decision of the circuit
court.
The effect of the Customs Administrative Act was considered by
this Court in
In re Fassett, 142 U.
S. 479, in which we held that the decision of the
collector that a yacht was an imported article might be reviewed
upon a libel for possession filed by the owner notwithstanding the
Customs Administrative Act. It was held that the review of the
decision of the Board of General Appraisers, provided for by
section 15 of that act, was limited to decisions of the board "as
to the construction of the law and the facts respecting the
classification"
Page 182 U. S. 176
of imported merchandise "and the rate of duty imposed thereon
under such classification," and that it did not bring up for review
the question whether an article be imported merchandise or not,
nor, under section 15, is the ascertainment of that fact such a
decision as is provided for. Said Mr. Justice Blatchford:
"Nor can the court of review pass upon any question which the
collector had not original authority to determine. The collector
had no authority to make any determination regarding any article
which is not imported merchandise, and if the vessel in question
here is not imported merchandise, the court of review would have no
jurisdiction to determine any matter regarding that question, and
could not determine the very fact which is in issue under the libel
in the district court on which the rights of the libellant
depend."
"Under the Customs Administrative Act, the libellant, in order
to have the benefit of proceedings thereunder, must concede that
the vessel is imported merchandise, which is the very question put
in contention under the libel, and must make entry of her as
imported merchandise, with an invoice and a consular certificate to
that effect."
It was held that the libel was properly filed.
The question involved in this case is not whether the sugars
were importable articles under the tariff laws, but whether, coming
as they did from a port alleged to be domestic, they were imported
from a foreign country; in other words, whether they were imported
at all as that word is defined in
Woodruff
v. Parham, 8 Wall. 123,
75 U. S. 132.
We think the decision in the
Fassett case is conclusive to
the effect that, if the question be whether the sugars were
imported or not, such question could not be raised before the Board
of General Appraisers, and that whether they were imported
merchandise for the reasons given in the
Fassett case that
a vessel is not an importable article, or because the merchandise
was not brought from a foreign country, is immaterial. In either
case, the article is not
imported.
Conceding, then, that section 3011 has been repealed, and that
no remedy exists under the Customs Administrative Act, does it
follow that no action whatever will lie? If there be an
admitted
Page 182 U. S. 177
wrong, the courts will look far to supply an adequate remedy. If
an action lay at common law, the repeal of sections 2931 and 3011,
regulating proceedings in customs cases (that is, turning upon the
classification of merchandise), to make way for another proceeding
before the Board of General Appraisers in the same class of cases,
did not destroy any right of action that might have existed as to
other than customs cases, and the fact that, by section 25, no
collector shall be liable
"for or on account of any rulings or decisions as to the
classification of said merchandise or the duties charged thereon,
or the collection of any dues, charges, or duties on or on account
of said merchandise,"
or any other matter which the importer might have brought before
the Board of General Appraisers, does not restrict the right which
the owner of the merchandise might have against the collector in
cases not falling within the Customs Administrative Act. If the
position of the government be correct, the plaintiff would be
remediless, and if a collector should seize and hold for duties
goods brought from New Orleans, or any other concededly domestic
port, to New York, there would be no method of testing his right to
make such seizure. It is hardly possible that the owner could be
placed in this position. But we are not without authority upon this
point.
The case of
Elliott v.
Swartwout, 10 Pet. 137, was an action of assumpsit
against the collector of the port of New York to recover certain
duties upon goods alleged to have been improperly classified. It
was held that, as the payment was purely voluntary, by a mutual
mistake of law, no action would lie to recover them back, although
it would have been different if they had been paid under protest.
Said Mr. Justice Thompson:
"Here, then, is the true distinction: when the money is paid
voluntarily and by mistake to an agent, and he has paid it over to
his principal, he cannot be made personally responsible; but if,
before paying it over, he is apprised of the mistake and required
not to pay it over, he is personally liable."
If the payment of the money be accompanied by a notice to the
collector that the duties charged are too high and that the person
paying intends to sue to recover back the amount erroneously
paid,
Page 182 U. S. 178
it was held that such action must lie
"unless the broad proposition can be maintained, that no action
will lie against a collector to recover back an excess of duties
paid him, but that recourse must be had to the government for
redress."
The case recognized the fact that, with respect to money paid
under a mistake of law, the collector stood in the position of an
ordinary agent, and could be made personally liable in case the
money were paid under protest.
This decision was made in 1836. Apparently in consequence of it,
an act was passed in 1839 requiring moneys collected for duties to
be deposited to the credit of the Treasurer of the United States,
and it was made the duty of the Secretary of the Treasury to draw
his warrant upon the Treasurer in case he found more money had been
paid to the collector than the law required. It was held by a
majority of this Court in
Cary v.
Curtis, 3 How. 236, that this act precluded an
action of assumpsit for money had and received against the
collector for duties received by him, and that the act of 1839
furnished the sole remedy. It was said of that case in
Arnson
v. Murphy, 109 U. S. 238,
109 U. S.
240:
"Congress, being in session at the time that decision was
announced, passed the Explanatory Act of February 26, 1845, which,
by legislative construction of the act of 1839, restored to the
claimant his right of action against the collector, but required
the protest to be made in writing at the time of payment of the
duties alleged to have been illegally exacted, and took from the
Secretary of the Treasury the authority to refund conferred by the
act of 1839, 5 Stat. 349, 727. This act of 1845 was in force, as
was decided in
Barney v. Watson, 92 U. S.
449; until repealed by implication by the Act of June
30, 1864,"
c. 171, 13 Stat. 202, 214, carried into the Revised Statutes as
sections 2931 and 3011. In the same case of
Arnson v.
Murphy, 109 U. S. 238, it
was decided that the common law right of action against the
collector to recover back duties illegally collected was taken away
by statute, and a remedy given based upon these sections which was
exclusive. The decision in
Elliott v. Swartwout was
recognized, but so far as respected
customs cases
(
i.e., classification cases), was held to be superseded by
the statutes. So, in
Schoenfeld v.
Hendricks, 152
Page 182 U. S. 179
U.S. 691, it was held that an action could not be maintained
against the collector, either at common law or under the statutes,
to recover duties alleged to have been exacted, in 1892, upon an
importation of merchandise, the remedy given through the Board of
General Appraisers being exclusive.
The criticism to be made upon the applicability of these cases
is that they dealt only with
imported merchandise and with
the duties collected thereon, and have no reference whatever to
exactions made by a collector, under color of the revenue laws,
upon goods which have never been imported at all. With respect to
these, the collector stands as if, under color of his office, he
had seized a ship or its equipment, or any other article not
comprehended within the scope of the tariff laws. Had the sugars
involved in this case been admittedly imported -- that is, brought
into New York from a confessedly foreign country -- and the
question had arisen whether they were dutiable, or belonged to the
free list, the case would have fallen within the Customs
Administrative Act, since it would have turned upon a question of
classification.
The fact that the collector may have deposited the money in the
Treasury is no bar to a judgment against him, since Rev.Stat., sec.
989, provides that, in case of a recovery of any money exacted by
him and paid into the treasury, if the court certifies that there
was probable cause for the act done, no execution shall issue
against him, but the amount of the judgment shall be paid out of
the proper appropriation from the Treasury.
We are not impressed by the argument that, if the plaintiffs
insisted that these sugars were not imported merchandise, they
should have stood upon their rights, refused to enter the goods,
and brought an action of replevin to recover their possession. It
is true that, to prevent the seizure of the sugars, plaintiffs did
enter them as imported merchandise, but any admission derivable
from that fact is explained by their protest against the exaction
of duties upon them as such. They waived nothing by taking this
course. The collector lost nothing, since he was apprised of the
course they would probably take. It is true that, in the
Fassett Case, 142 U. S. 479, the
proceeding was
Page 182 U. S. 180
by libel for possession of the vessel, which is analogous to an
action of replevin at common law; but it would appear that
Rev.Stat. sec. 934 would stand in the way of such a remedy here,
since, by that section,
"all property taken or detained by any officer or other person
under authority of any revenue law of the United States shall be
irrepleviable, and shall be deemed to be in the custody of the law,
and subject only to the orders and decrees of the courts of the
United States having jurisdiction thereof."
If the words "under authority of any revenue law" are to be
construed as if they read "under color of any revenue law," it
would seem that these sugars could not be made the subject of a
replevin; but even conceding that replevin would lie, we consider
it merely a choice of remedies, and that the plaintiffs were at
liberty to waive the tort and proceed in assumpsit.
We are all of opinion that this action was properly brought.
2. Whether these cargoes of sugar were subject to duty depends
solely upon the question whether Porto Rico was a "foreign country"
at the time the sugars were shipped, since the Tariff Act of July
24, 1897, 30 Stat. 151, c. 11, commonly known as the Dingley Act,
declares that "there shall be levied, collected, and paid upon all
articles imported from foreign countries" certain duties therein
specified. A foreign country was defined by Mr. Chief Justice
Marshall and Mr. Justice Story to be one exclusively within the
sovereignty of a foreign nation and without the sovereignty of the
United States.
The Eliza, 2 Gall. 4;
Taber v. United
States, 1 Story 1;
The Adventure, 1 Brock 235,
241.
The status of Porto Rico was this: the island had been for some
months under military occupation by the United States as a
conquered country when, by the second article of the treaty of
peace between the United States and Spain, signed December 10,
1898, and ratified April 11, 1899, Spain ceded to the United States
the Island of Porto Rico, which has ever since remained in our
possession, and has been governed and administered by us. If the
case depended solely upon these facts, and the question were
broadly presented whether a country which had been ceded to us, the
cession accepted, possession delivered,
Page 182 U. S. 181
and the island occupied and administered without interference by
Spain or any other power, was a foreign country or domestic
territory, it would seem that there could be as little hesitation
in answering this question as there would be in determining the
ownership of a house deeded in fee simple to a purchaser who had
accepted the deed, gone into possession, paid taxes, and made
improvements without let or hindrance from his vendor. But it is
earnestly insisted by the government that it never could have been
the intention of Congress to admit Porto Rico into a customs union
with the United States, and that, while the island may be to a
certain extent domestic territory, it still remains a "foreign
country" under the tariff laws until Congress has embraced it
within the general revenue system.
We shall consider this subject more at length hereafter, but for
the present call attention to certain cases in this Court and
certain regulations of the executive departments which are supposed
to favor this contention.
In
United States v.
Rice, 4 Wheat. 246, which was an action of debt
brought by the United States upon a bond for duties upon goods
imported into Castine, in the District (now State) of Maine, during
its temporary occupation by the British troops in the war of 1812,
it was held the action would not lie, though Castine was
subsequently evacuated by the enemy and restored to the United
States. The Court said that, by the military occupation of Castine,
the enemy acquired a possession which enabled him to exercise the
fullest rights of sovereignty; that the sovereignty of the United
States was suspended, and our laws could be no longer rightfully
enforced there or be obligatory upon the inhabitants; that, by the
surrender, the inhabitants passed under a temporary allegiance to
the British government, and were only bound by the laws of that
government, and that Castine was during this period to be deemed a
foreign port; that goods brought there were subject to duties which
the British government chose to impose, and were in no correct
sense imported into the United States, and that the subsequent
evacuation by the enemy did not change the character of the
transaction, since the goods were not liable to American duties
when imported. In that case, the character of the port as foreign
or
Page 182 U. S. 182
domestic was held to depend upon the question of actual
occupation, and the right of the defendant determinable by the
facts then existing, and further that the subsequent reoccupation
of the port by the United States was ineffectual to change the
right of the defendant or to vest a new right in the United
States.
A case somewhat to the converse of this was that of
Fleming v.
Page, 9 How. 603, which was an action against the
collector at Philadelphia to recover back duties upon merchandise
imported from Tampico, in Mexico, during a temporary military
occupation of that place by the United States. It was held that,
although Tampico was within the military occupation of the United
States, it had not ceased to be a foreign country in the sense in
which these words are used in the acts of Congress. In delivering
the opinion of the Court, Mr. Chief Justice Taney observed:
"The United States, it is true, may extend its boundaries by
conquest or treaty, and may demand the cession of territory as the
condition of peace, in order to indemnify its citizens for the
injuries they have suffered, or to reimburse the government for the
expenses of the war. But this can be done only by the treatymaking
power or the legislative authority, and is not a part of the power
conferred upon the President by the declaration of war. . . . While
it was occupied by our troops, they were in an enemy's country, and
not in their own; the inhabitants were still foreigners and
enemies, and owed to the United States nothing more than the
submission and obedience, sometimes called temporary allegiance,
which is due from a conquered enemy when he surrenders to a force
which he is unable to resist."
This was clearly a sufficient reason for disposing of the case
adversely to the importer, but the learned Chief Justice proceeded
to put the case upon another ground -- that
"there was no act of Congress establishing a custom house at
Tampico, nor authorizing the appointment of a collector, and
consequently there was no officer of the United States authorized
by law to grant the clearance and authenticate the coasting
manifest of the cargo in the manner directed by law where the
voyage is from one port of the United States to another;"
that the only
Page 182 U. S. 183
collector was one appointed by the military commander, and that
a coasting manifest granted by him could not be recognized in the
United States as the document required by law when the vessel is
engaged in the coasting trade, nor exempt the cargo from the
payment of duties. He states that this construction of the tariff
laws had been uniformly given by the administrative department of
the government, and cited the case of Florida, after it had been
ceded to the United States and the military forces had taken
possession of Pensacola:
"That is, that, although Florida had by cession actually become
a part of the United States, and was in our possession, yet, under
our revenue laws, its ports must be regarded as foreign until they
were established as domestic by act of Congress. And it appears
that this decision was sanctioned at the time by the Attorney
General of the United States, the law officer of the government.
And, although not so directly applicable to the case before us, yet
the decisions of the Treasury Department in relation to Amelia
Island and certain ports in Louisiana, after that province had been
ceded to the United States, were both made upon the same grounds.
And in the later case, after a customhouse had been established by
law (2 Stat. 418) at New Orleans, the collector at that place was
instructed to regard as foreign ports Baton Rouge and other
settlements still in the possession of Spain, whether on the
Mississippi, Iberville, or the seacoast. The department in no
instance that we are aware of since the establishment of the
government has ever recognized a place in a newly acquired country
as a domestic port from which the coasting trade might be carried
on, unless it had been previously made so by act of Congress."
While we see no reason to doubt the conclusion of the Court that
the port of Tampico was still a foreign port, it is not perceived
why the fact that there was no act of Congress establishing a
customhouse there or authorizing the appointment of a collector
should have prevented the collector appointed by the military
commander from granting the usual documents required to be issued
to a vessel engaged in the coasting trade. A collector, though
appointed by a military commander, may be presumed to have the
ordinary power of a collector under an
Page 182 U. S. 184
act of Congress, with authority to grant clearances to ports
within the United States, though, of course, he would have no power
to make a domestic port of what was in reality a foreign port.
It is not intended to intimate that the cases of
United
States v. Rice and
Fleming v. Page are not
harmonious. In fact, they are perfectly consistent with each other.
In the first case, it was merely held that duties could not be
collected upon goods brought into a domestic port during a
temporary occupation by the enemy, though the enemy subsequently
evacuated it; in the latter case, that the temporary military
occupation by the United States of a foreign port did not make it a
domestic port, and that goods imported into the United States from
that port were still subject to duty. It would have been obviously
unjust in the
Rice case to impose a duty upon goods which
might already have paid a duty to the British commander. It would
have been equally unjust in the
Fleming case to exempt the
goods from duty by reason of our temporary occupation of the port
without a formal cession of such port to the United States.
The next case is that of
Cross v.
Harrison, 16 How. 164. This was an action of
assumpsit to recover back moneys paid to Harrison while acting as
collector at the port of San Francisco, for tonnage and duties upon
merchandise imported from foreign countries into California between
February 2, 1848 -- the date of the treaty of peace between the
United States and Mexico -- and November 13, 1849, when the
collector appointed by the President (according to an Act of
Congress passed March 3, 1849) entered upon his duties. Plaintiffs
insisted that, until such collector had been appointed, California
was and continued to be after the date of the treaty a foreign
territory, and hence that no duties were payable as upon an
importation into the United States. The plaintiffs proceeded upon
the theory, stated in the
dictum in
Fleming v.
Page, that duties had never been held to accrue to the United
States in her newly acquired territories until provision was made
by act of Congress for their collection, and that the revenue laws
had always been held to speak only as to the United States and its
territories existing at the time when the several acts were passed.
The collector had
Page 182 U. S. 185
been appointed by the military governor of California, and
duties were assessed, after the treaty, according to the United
States Tariff Act of 1846. In holding that these duties were
properly assessed, Mr. Justice Wayne cited with apparent approval a
dispatch written by Mr. Buchanan, then Secretary of State, and a
circular letter issued by the Secretary of the Treasury, Mr. Robert
J. Walker, holding that, from the necessities of the case, the
military government established in California did not cease to
exist with the treaty of peace, but continued as a government
de facto until Congress should provide a territorial
government. "The great law of necessity," says Mr. Buchanan,
"justifies this conclusion. The consent of the people is
irresistibly inferred from the fact that no civilized community
could possibly desire to abrogate an existing government when the
alternative presented would be to place themselves in a state of
anarchy, beyond the protection of all laws, and reduce them to the
unhappy necessity of submitting to the dominion of the
strongest."
These letters will be alluded to hereafter in treating of the
action of the executive departments.
The Court further held in this case that, "after the
ratification of the treaty, California became a part of the United
States, or a ceded, conquered, territory;" that,
"as there is nothing differently stipulated in the treaty with
respect to commerce, it became instantly bound and privileged by
the laws which Congress had passed to raise a revenue from duties
on imports and tonnage;"
that (p.
57 U. S.
193)
"the territory had been ceded as a conquest, and was to be
preserved and governed as such until the sovereignty to which it
had passed had legislated for it. That sovereignty was the United
States, under the Constitution, by which power had been given to
Congress to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United
States. . . . That the civil government of California, organized as
it was from a right of conquest, did not cease or become defunct in
consequence of the signature of the treaty, or from its
ratification, . . . and that, until Congress legislated for it, the
duty upon foreign goods imported into San Francisco were legally
demanded and lawfully received by Mr. Harrison. "
Page 182 U. S. 186
To the objection that no collection districts had been
established in California, and in apparent dissent from the views
of the Chief Justice in
Fleming v. Page, he added (p.
57 U. S.
196):
"It was urged that our revenue laws covered only so much of the
territory of the United States as had been divided into collection
districts, and that out of them no authority had been given to
prevent the landing of foreign goods or to charge duties upon them,
though such landing had been made within the territorial limits of
the United States. To this it may be successfully replied that
collection districts and ports of entry are no more than designated
localities within and at which Congress had extended a liberty of
commerce in the United States, and that so much of its territory as
was not within any collection district must be considered as having
been withheld from that liberty. It is very well understood to be a
part of the laws of nations that each nation may designate, upon
its own terms, the ports and places within its territory for
foreign commerce, and that any attempt to introduce foreign goods
elsewhere within its jurisdiction is a violation of its
sovereignty. It is not necessary that such should be declared in
terms, or by any decree or enactment, the expressed allowances
being the limit of the liberty given to foreigners to trade with
such nation."
The Court also cited the cases of Louisiana and Florida, and
seemed to take an entirely different view of the facts connected
with the admission of those territories from what had been taken in
Fleming v. Page. The opinion, which is quite a long one,
establishes the three following propositions: (1) that, under the
war power, the military governor of California was authorized to
prescribe a scale of duties upon importations from foreign counties
to San Francisco, and to collect the same through a collector
appointed by himself, until the ratification of the treaty of
peace; (2) that after such ratification, duties were legally
exacted under the tariff laws of the United States, which took
effect immediately; (3) that the civil government established in
California continued, from the necessities of the case, until
Congress provided a territorial government.
It will be seen that the three propositions involve a
recognition of the fact that California became domestic territory
immediately
Page 182 U. S. 187
upon the ratification of the treaty, or, to speak more
accurately, as soon as this was officially known in California. The
doctrine that a port ceded to and occupied by us does not lose its
foreign character until Congress has acted and a collector is
appointed was distinctly repudiated with the apparent acquiescence
of Chief Justice Taney, who wrote the opinion in
Fleming v.
Page and still remained the Chief Justice of the Court. T he
opinion does not involve directly the question at issue in this
case: whether goods carried from a port in a ceded territory
directly to New York are subject to duties, since the duties in
Cross v. Harrison were exacted upon foreign goods imported
into San Francisco as an American port; but it is impossible to
escape the logical inference from that case that goods carried from
San Francisco to New York after the ratification of the treaty
would not be considered as imported from a foreign country.
The practice and rulings of the executive departments with
respect to the status of newly acquired territories, prior to such
status being settled by acts of Congress, is, with a single
exception, strictly in line with the decision of this Court in
Cross v.
Harrison, 16 How. 164. The only possessions in
connection with which the question has arisen are Louisiana,
Florida, Texas, California, and Alaska. We take these up in their
order.
Louisiana: By treaty between France and Spain, October 1, 1800,
8 Stat. 202, His Catholic Majesty promised to cede to the French
Republic the colony or province of Louisiana, and by treaty between
the United States and the French Republic of April 30, 1803, France
ceded to the United States, "forever and in full sovereignty, the
said territory with all its rights and appurtenances," with a
provision (Art. 3)
"that the inhabitants of the ceded territory shall be
incorporated in the Union of the United States, and admitted as
soon as possible, according to the principles of the federal
Constitution."
This treaty was ratified October 21, 1803. Possession of the
territory was not delivered by Spain to France until November 30,
1803, and by France to the United States, December 20, 1803. In the
meantime, and on October 31, 1803, Congress authorized the
President to take possession of the territory, and to administer
it
Page 182 U. S. 188
until Congress had further acted upon the subject. 2 Stat. 245.
On February 24, 1804, Congress passed another act, 2 Stat. 251,
taking Louisiana within the customs union and repealing certain
special laws laying duties upon goods imported from that territory
into the United States. This act was to take effect March 25, 1804.
We are, then, concerned only with the interval between December 20,
1803, when possession was delivered to the United States, and March
25, 1804, when the act of February 24 took effect.
In a letter to President Jefferson of July 9, 1803, Mr.
Gallatin, then Secretary of the Treasury, expressed the opinion
that all the duties on exports now payable at New Orleans by
Spanish laws should cease, and all articles, the growth of
Louisiana, which, when imported into the United States, now pay
duty, should continue to pay the same, or at least such rates as
would on the whole not affect the revenue. Writings of Gallatin,
vol. 1, page 127.
The instructions of the Treasury Department with respect to this
interval are contained in a letter by Mr. Gallatin to Governor
Claiborne, who was about to start for his post as governor of the
new province, under date of October 3, 1803, in which he says:
"It is understood that the existing duties on imports and
exports, which by the Spanish law are now levied within the
province, will continue until Congress shall have otherwise
provided."
On November 14, 1803, Mr. Gallatin issued an order directed to
Mr. Trist, who had been designated as collector of the port of New
Orleans, 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 and regulations Louisiana were
demandable under the Spanish government at the time of taking
possession. . . ."
"10. 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."
On February 28, 1804, Mr. Gallatin issued a circular letter
notifying the collectors of the passage of the Act of February 24,
and that the same would go into effect March 25, and
"that, by the third section of said act so much of any law or
laws imposing
Page 182 U. S. 189
duties on the importations into the United States of goods,
wares, and merchandise from New Orleans, which is the only port of
entry in said territories, has been repealed."
These instructions undoubtedly show that Mr. Gallatin treated
New Orleans as a foreign port until Congress, by the Act of
February 24, 1804, admitted it within the customs union, and, so
far, is an authority in favor of the position taken by the
collector in this case. But it should be borne in mind in this
connection that his instructions to collect duties levied by the
Spanish law upon foreign importations into New Orleans are
manifestly inconsistent with the position subsequently taken by
this Court in
Cross v.
Harrison, 16 How. 164, wherein it is said (p.
57 U. S. 189)
of the action of Mr. Harrison in California:
"That war tariff, however, was abandoned as soon as the military
governor had received from Washington information of the exchange
and ratification of the treaty with Mexico, and duties were
afterwards levied in conformity with such as Congress had imposed
upon foreign merchandise imported into the other ports of the
United States, Upper California having been ceded by the treaty to
the United States."
After saying that this action had been recognized by the
President, Mr. Justice Wayne adds:
"We think it was a rightful and correct recognition under all
the circumstances, and when we say rightful we mean that it was
constitutional, although Congress had not passed an act to extend
the collection of tonnage and import duties to the ports of
California."
Indeed, it is quite evident from this case that the Court took
an entirely different view of the relations of California to the
Union from that which had been taken by Mr. Gallatin as to
Louisiana in his instructions to the collector of New Orleans.
Florida: Florida was ceded by Spain to the United States by
treaty signed February 22, 1819, but not ratified until October 29,
1820. 8 Stat. 252. By Act of March 3, 1821, 3 Stat. 637, Congress
authorized the President to take possession of the Floridas and
extend thereto the revenue laws of the United States. Possession of
East Florida was not delivered until July 10, 1821, nor of West
Florida until July 17. It is true that certain ports of Florida
were in the military occupation of the United States prior to the
actual delivery of possession by
Page 182 U. S. 190
Spain, but the cession did not take effect until there had been
a voluntary and complete delivery under the treaty. As the act
extending the revenue laws to the Floridas was passed before the
surrender of the province to the United States, there was no
interval of time upon which the Treasury Department could act, the
provinces, immediately upon the surrender, becoming subject to the
Act of March 3, 1821.
An opinion of Mr. Wirt, then Attorney General, of August 20,
1821, in the case of
The Olive Branch, 1 Ops.Atty.Gen.
483, is instructive in this connection as illustrating the views of
the administration. After stating that possession of East Florida
was not delivered until July 17 (a mistake for July 10), he held
that the cargo of
The Olive Branch, which had cleared from
the port of St. Augustine, July 14, was imported into Philadelphia
from a foreign port or place, and consequently subject to duty,
because possession had not been delivered, citing the case of
The Fama, 5 Ch.Rob. 106, and adding:
"On the other hand, I apprehend that goods carried into a port
of Florida before the delivery, remaining in port on shipboard
until after the delivery, and then brought into the United States
in the same vessel, or by transhipment into others, having been
never entered in the Spanish customhouses, nor landed, nor the
duties thereon paid or secured, but having continued all the while
water-borne, would be subject to our revenue laws. . . . Our laws
impose duties only on goods imported into the United States from
some foreign port or place. If, therefore, in the case put, the
importation be, in contemplation of law, an importation from the
Floridas, the case is not within our laws because, at the time of
the importation, the Floridas were not foreign ports or
places."
The learned Attorney General evidently took the view that the
Floridas ceased to be a foreign country upon a delivery of
possession under the treaty. In a subsequent letter of January 24,
1823, 5 Ops.Atty.Gen. 748, Mr. Wirt admits that he had been misled
by the newspapers in the belief that East Florida had been
surrendered prior to July 14, on which day
The Olive
Branch left St. Augustine, and recommended that the case be
sent to the President, as it seemed to involve a dispute with Great
Britain.
Page 182 U. S. 191
Texas: On March 1, 1845, Congress adopted a joint resolution
consenting to the annexation of Texas upon certain conditions, 5
Stat. 797, but it was not until December 29, 1845, that it was
formally admitted as a state. 9 Stat. 108. In this interval, and on
July 29, 1845, the Secretary of the Treasury issued a circular
letter directing the collectors to collect duties upon all imports
from Texas into the United States until Congress had further acted.
Of course there could be no question that Texas remained a foreign
state until December 29, when she was formally admitted. The
circular, therefore, is of no pertinence to the question here
involved.
California: California was ceded by Mexico to the United States
by treaty signed February 2, 1848, ratifications of which were
exchanged May 30, 1848, and proclamation made July 4. 9 Stat. 922.
On March 3, 1849, an act was passed, 9 Stat. 400, including San
Francisco within one of the collection districts, and on November
13, the collector appointed by the President entered upon his
duties. California had been in our military possession since
August, 1847. There was therefore an interval of one year and nine
months between the date of the treaty, February 3, 1848, and
November 13, 1849, when the collector entered upon his duties.
On October 7, 1848, Mr. Buchanan, then Secretary of State,
addressed a letter to Mr. Voorhees, already referred to, in which
he states that, although the military government ceased to exist
with the conclusion of the treaty of peace, it would continue with
the presumed consent of the people until Congress should provide
for them a territorial government, and then adds:
"This government
de facto will, of course, exercise no
power inconsistent with the provisions of the Constitution of the
United States, which is the supreme law of the land. For this
reason, no import duties can be levied in California on articles
the growth, produce, or manufacture of the United States, as no
such duties can be imposed in any other part of our Union on the
productions of California. Nor can new duties be charged in
California upon such foreign productions as have already paid
duties in any of our ports of entry, for the obvious reason that
California is within the Territory of the United
Page 182 U. S. 192
States. I shall not enlarge upon this subject, however, as the
Secretary of the Treasury will perform that duty."
Ex.Docs., 2d Sess.. 30th Cong. vol. 1, p. 47.
Mr. Walker, then Secretary of the Treasury, did perform that
duty in a circular letter of the same date to the collectors, in
which he instructed the collectors as follows:
"First, all articles of the growth, produce, or manufacture of
California, shipped therefrom at any time since the 30th day of May
last [the date when the ratifications were exchanged] are entitled
to admission free of duty into all the ports of the United States
and second, all articles of the growth, produce, or manufacture of
the United States are entitled to admission free of duty into
California, as are also all foreign goods which are exempt from
duty by the laws of Congress, or on which goods the duties
prescribed by those laws have been paid to any collector of the
United States previous to their introduction into California."
Ibid. p. 45. He adds that foreign goods imported into
California, not paying duties there, will be subject to duty if
shipped thence to any port or place in the United States. In a
letter from Mr. Marcy, Secretary of War, to Colonel Mason, the
military commander, of October 9, 1848, he uses the same
language.
These letters are cited with approval by this Court in
Cross v.
Harrison, 16 How. 184, and although the question
there related only to duties on goods imported from foreign
countries, the tenor of the opinion, as already stated, is a
virtual endorsement of the position taken by the executive
departments. It is evident that the administration took an entirely
different view of the law from what had been taken by Mr. Gallatin
in his instructions regarding Louisiana, and established a
practice, which has never since been departed from, of treating
territory ceded to the United States and occupied by its troops as
being domestic, and not foreign, territory.
This correspondence with reference to California took place in
1848. The decision in
Fleming v.
Page, 9 How. 603, was pronounced in 1850; yet, as
appears from the list of documents submitted by Mr. Johnson upon
the argument of that case (p. 611 [argument of counsel -- omitted])
the attention of the Court was not called to these instructions,
though other letters and circulars were introduced
Page 182 U. S. 193
bearing date of 1846 and 1847, as well as the treaty of peace of
February 2, 1848. Had the correspondence above cited been laid
before the Court, it is incredible that the Chief Justice should
have said
"that the department in no instance that we are aware of since
the establishment of the government has ever recognized a place in
a newly acquired country as a domestic port from which the coasting
trade might be carried on unless it had been previously made so by
act of Congress."
Alaska: This territory was ceded to us by Russia by treaty
ratified June 20, 1867, 15 Stat. 539, and possession was delivered
to us at the same time. No act of Congress extending the revenue
laws to Alaska and erecting a collection district was passed until
July 27, 1868, 15 Stat. 240, c. 273. A period of thirteen months
then elapsed before Alaska, was formally recognized by Congress as
within the customs union, yet during that period, goods from Alaska
were, under a decision of the Secretary of the Treasury, admitted
free of duty. By letter of Mr. McCullough, then Secretary of the
Treasury, to the collector of the port of New York dated April 6,
1868, he acknowledges receipt of a request from the Russian
minister for the free entry of certain oil shipped from Sitka to
San Francisco and reshipped to New York. He states:
"The request for the free entry of said oil was made on the
ground that the oil was shipped from Sitka after the ratification
of the treaty by which the Territory of Alaska became the property
of the United States. The treaty in question was ratified on the
20th of June, 1867, and the collector at San Francisco has reported
that the manifest of the vessel shows the oil to have been shipped
from Alaska on the 6th day of July, 1867, and that the shipment
consisted of fifty-two packages. Under these circumstances, you are
hereby authorized to admit the said fifty-two packages of oil free
of duty."
This position was endorsed by the Secretary of State, Mr.
Seward, in a letter dated January 30, 1869, in which he said:
"I understand the decision of the Supreme Court in the case of
Cross v.
Harrison, 16 How. 164, to declare its opinion that,
upon the addition to the United States of new territory by conquest
and cession, the acts regulating foreign commerce attach
Page 182 U. S. 194
to and take effect within such territory
ipso facto,
and without any fresh act of legislation expressly giving such
extension to the preexisting laws. I can see no reason for a
discrimination in this effect between acts regulating foreign
commerce and the laws regulating intercourse with the Indian
tribes."
As showing the construction put upon this question by the
legislative department, we need only to add that section 2 of the
Foraker Act makes a distinction between foreign countries and Porto
Rico by enacting that the same duties shall be paid upon
"all articles imported into Porto Rico from ports other than
those of the United States, which are required by law to be
collected upon articles imported into the United States from
foreign countries."
From this resume of the decisions of this Court, the
instructions of the executive departments, and the above act of
Congress it is evident that, from 1803, the date of Mr. Gallatin's
letter, to the present the there is not a shred of authority,
except the
dictum in
Fleming v. Page (practically
overruled in
Cross v. Harrison) for holding that a
district ceded to and in the possession of the United States
remains for any purpose a foreign country. Both these conditions
must exist to produce a change of nationality for revenue purposes.
Possession is not alone sufficient, as was held in
Fleming v.
Page, nor is a treaty ceding such territory sufficient without
a surrender of possession.
Keene v.
McDonough, 8 Pet. 308;
Pollard v.
Kibbe, 14 Pet. 353,
39 U. S. 406;
Hallett v. Hunt, 7 Ala. 899;
The Fama, 5 C.Rob.
106. The practice of the executive departments, thus continued for
more than half a century, is entitled to great weight, and should
not be disregarded nor overturned except for cogent reasons, and
unless it be clear that such construction be erroneous.
United
States v. Johnston, 124 U. S. 236, and
other cases cited.
But, were this presented as an original question, we should be
impelled irresistibly to the same conclusion.
By Article II, Section 2 of the Constitution, the President is
given power, "by and with the advice and consent of the Senate, to
make treaties, provided two thirds of the senators present concur;"
and by Article VI,
"this Constitution and the laws
Page 182 U. S. 195
of the United States which shall be made in pursuance thereof,
and all treaties made or which shall be made under the authority of
the United States, shall be the supreme law of the land."
It will be observed that no distinction is made as to the
question of supremacy between laws and treaties except that both
are controlled by the Constitution. A law requires the assent of
both houses of Congress, and, except in certain specified cases,
the signature of the President. A treaty is negotiated and made by
the President, with the concurrence of two thirds of the senators
present, but each of them is the supreme law of the land.
As was said by Chief Justice Marshall in
United
States v. The Peggy, 1 Cranch 103,
5
U. S. 110:
"Where a treaty is the law of the land, and as such affects the
rights of parties litigating in court, that treaty as much binds
those rights, and is as much to be regarded by the court, as an act
of Congress."
And in
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 314,
he repeated this in substance:
"Our Constitution declares a treaty to be the law of the land.
It is consequently to be regarded in courts of justice as
equivalent to an act of the legislature whenever it operates of
itself without the aid of any legislative provision."
So, in
Whitney v. Robertson, 124 U.
S. 190:
"By the Constitution, a treaty is placed on the same footing,
and made of like obligation with an act of legislation. Both are
declared by that instrument to be the supreme law of the land, and
no superior efficacy is given to either over the other. When the
two relate to the same subject, the courts will always endeavor to
construe them so as to give effect to both if that can be done
without violating the language of either, but if the two are
inconsistent, the one last in date will control the other, provided
always that the stipulation of the treaty on the subject is
self-executing."
To the same effect are the
Cherokee
Tobacco, 11 Wall. 616, and the
Head Money
Cases, 112 U. S. 580.
One of the ordinary incidents of a treaty is the cession of
territory. It is not too much to say it is the rule, rather than
the exception, that a treaty of peace, following upon a war,
provides for a cession of territory to the victorious party. It was
said by Chief Justice Marshall in
American Ins. Co. v.
Canter, 1 Pet. 511,
26 U. S.
542:
"The Constitution confers absolutely upon the government
Page 182 U. S. 196
of the Union the powers of making war and of making treaties;
consequently, that government possesses the power of acquiring
territory, either by conquest or by treaty."
The territory thus acquired is acquired as absolutely as if the
annexation were made, as in the case of Texas and Hawaii, by an act
of Congress.
It follows from this that, by the ratification of the Treaty of
Paris, the island became territory of the United States, although
not an organized territory in the technical sense of the word.
It is true Mr. Chief Justice Taney held, in
Scott v.
Sanford, 19 How. 393, that the territorial clause
of the Constitution was confined, and intended to be confined, to
the territory which at that time belonged to or was claimed by the
United States, and was within their boundaries as settled by the
treaty with Great Britain, and was not intended to apply to
territory subsequently acquired. He seemed to differ in this
construction from Chief Justice Marshall in
American
Ins. Co. v. Canter, 1 Pet. 511,
26 U. S. 542,
who in speaking of Florida before it became a state, remarked that
it continued to be a territory of the United States, governed by
the territorial clause of the Constitution.
But whatever be the source of this power, its uninterrupted
exercise by Congress for a century, and the repeated declarations
of this Court, have settled the law that the right to acquire
territory involves the right to govern and dispose of it. That was
stated by Chief Justice Taney in the
Dred Scott case. In
the more recent case of
National Bank v. County of
Yankton, 101 U. S. 129, it
was said by Mr. Chief Justice Waite that Congress
"has full and complete legislative authority over the people of
the territories and all the departments of the territorial
governments. It may do for the territories what the people, under
the Constitution of the United States, may do for the states."
Indeed, it is scarcely too much to say that there has not been a
session of Congress since the Territory of Louisiana was purchased
that that body has not enacted legislation based upon the assumed
authority to govern and control the territories. It is an authority
which arises not necessarily from the territorial clause of the
Constitution, but from the necessities of the case, and from the
inability of the states to act upon the
Page 182 U. S. 197
subject. Under this power, Congress may deal with territory
acquired by treaty; may administer its government as it does that
of the District of Columbia; it may organize a local territorial
government; it may admit it as a state upon an equality with other
states; it may sell its public lands to individual citizens, or may
donate them as homesteads to actual settlers. In short, when once
acquired by treaty, it belongs to the United States, and is subject
to the disposition of Congress.
Territory thus acquired can remain a foreign country under the
tariff laws only upon one or two theories: either that the word
"foreign" applies to such countries as were foreign at the time the
statute was enacted, notwithstanding any subsequent change in their
condition, or that they remain foreign under the tariff laws until
Congress has formally embraced them within the customs union of the
states. The first theory is obviously untenable. While a statute is
presumed to speak from the time of its enactment, it embraces all
such persons or things as subsequently fall within its scope, and
ceases to apply to such as thereafter fall without its scope. Thus,
a statute forbidding the sale of liquors to minors applies not only
to minors in existence at the time the statute was enacted, but to
all who are subsequently born, and ceases to apply to such as
thereafter reach their majority. So, when the Constitution of the
United States declares in Art. I, Section 10, that the state shall
not do certain things, this declaration operates not only upon the
thirteen original states, but upon all who subsequently become
such, and when Congress places certain restrictions upon the powers
of a territorial legislature, such restrictions cease to operate
the moment such territory is admitted as a state. By parity of
reasoning, a country ceases to be foreign the instant it becomes
domestic. So too, if Congress saw fit to cede one of its newly
acquired territories (even assuming that it had the right to do so)
to a foreign power, there could be no doubt that from the day of
such cession and the delivery of possession such territory would
become a foreign country, and be reinstated as such under the
tariff law. Certainly no act of Congress would be necessary in such
case to declare that the laws of the United States had ceased to
apply to it.
Page 182 U. S. 198
The theory that a country remains foreign with respect to the
tariff laws until Congress has acted by embracing it within the
customs union presupposes that a country may be domestic for one
purpose and foreign for another. It may undoubtedly become
necessary, for the adequate administration of a domestic territory,
to pass a special act providing the proper machinery and officers,
as the President would have no authority, except under the war
power, to administer it himself; but no act is necessary to make it
domestic territory if once it has been ceded to the United States.
We express no opinion as to whether Congress is bound to
appropriate the money to pay for it. This has been much discussed
by writers upon constitutional law, but it is not necessary to
consider it in this case, as Congress made prompt appropriation of
the money stipulated in the treaty. This theory also presupposes
that territory may be held indefinitely by the United States; that
it may be treated in every particular, except for tariff purposes,
as domestic territory; that laws may be enacted and enforced by
officers of the United States sent there for that purpose; that
insurrections may be suppressed, wars carried on, revenues
collected, taxes imposed; in short, that everything may be done
which a government can do within its own boundaries, and yet that
the territory may still remain a foreign country. That this state
of things may continue for years, for a century even, but that,
until Congress enacts otherwise, it still remains a foreign
country. To hold that this can be done as matter of law we deem to
be pure judicial legislation. We find no warrant for it in the
Constitution or in the powers conferred upon this Court. It is true
the nonaction of Congress may occasion a temporary inconvenience,
but it does not follow that courts of justice are authorized to
remedy it by inverting the ordinary meaning of words.
If an act of Congress be necessary to convert a foreign country
into domestic territory, the question at once suggests itself what
is the character of the legislation demanded for this purpose? Will
an act appropriating money for its purchase be sufficient?
Apparently not. Will an act appropriating the duties collected upon
imports to and from such country for the benefit of its government
be sufficient? Apparently not. Will
Page 182 U. S. 199
acts making appropriations for its postal service, for the
establishment of lighthouses, for the maintenance of quarantine
stations, for erecting public buildings, have that effect? Will an
act establishing a complete local government, but with the
reservation of a right to collect duties upon commerce, be adequate
for that purpose? None of these, nor all together, will be
sufficient if the contention of the government be sound, since acts
embracing all these provisions have been passed in connection with
Porto Rico, and it is insisted that it is still a foreign country
within the meaning of the tariff laws. We are unable to acquiesce
in this assumption that a territory may be at the same time both
foreign and domestic.
A single further point remains to be considered: it is insisted
that an Act of Congress passed March 24, 1900, 31 Stat. 51,
applying for the benefit of Porto Rico the amount of the customs
revenue received on importations by the United States from Porto
Rico since the evacuation of Porto Rico by the Spanish forces,
October 18, 1898, to January 1, 1900, together with any further
customs revenues collected on importations from Porto Rico since
January 1, 1900, or that shall hereafter be collected under
existing law, is a recognition by Congress of the right to collect
such duties as upon importations from a foreign country, and a
recognition of the fact that Porto Rico continued to be a foreign
country until Congress embraced it within the customs union. It may
be seriously questioned whether this is anything more than a
recognition of the fact that there were moneys in the Treasury not
subject to existing appropriation laws. Perhaps we may go further
and say that, so far as these duties were paid voluntarily and
without protest, the legality of the payment was intended to be
recognized, but it can clearly have no retroactive effect, as to
moneys theretofore paid under protest for which an action to
recover back had already been brought. As the action in this case
was brought March 13, 1900, eleven days before the act was passed,
the right to recover the money sued for could not be taken away by
a subsequent act of Congress. Plaintiffs sue in assumpsit for money
which the collector has in his hands justly and equitably belonging
to them. To say that Congress could, by a subsequent
Page 182 U. S. 200
act, deprive them of the right to prosecute this action would be
beyond its power. In any event, it should not be interpreted so as
to make it retroactive.
Kennett's Petition, 24 N.H. 139;
Alter's Appeal, 67 Pa. 341;
Norman v. Heist, 5 W.
& S. 171;
Donovan v. Pitcher, 53 Ala. 411;
Palairet's Appeal, 67 Pa. 479;
State v. Warren,
28 Md. 338.
We are therefore of opinion that, at the time these duties were
levied, Porto Rico was not a foreign country within the meaning of
the tariff laws, but a territory of the United States, that the
duties were illegally exacted, and that the plaintiffs are entitled
to recover them back.
The judgment of the Circuit Court for the Southern District
of New York is therefore reversed, and the case remanded to that
court for further proceedings in consonance with this
opinion.
MR. JUSTICE McKENNA, with whom concurred MR. JUSTICE SHIRAS and
MR. JUSTICE WHITE, dissenting:
MR. JUSTICE SHIRAS, MR. JUSTICE WHITE, and myself are unable to
concur in the conclusion of the Court, and the importance of the
case justifies an expression of the grounds of our dissent.
Settle whether Porto Rico is "foreign country" or "domestic
territory," to use the antithesis of the opinion of the Court, and,
it is said, you settle the controversy in this litigation. But in
what sense, foreign or domestic? Abstractly and unqualifiedly -- to
the full extent that those words imply -- or limitedly, in the
sense that the word "foreign" is used in the customs laws of the
United States? If abstractly, the case turns upon a definition, and
the issue becomes single and simple, presenting no difficulty, and
yet the arguments at bar have ranged over all the powers of
government, and this Court divides in opinion. If, at the time the
duties which are complained of were levied, Porto Rico was as much
a foreign country as it was before the war with Spain, if it was as
much domestic territory as New York now is, there would be no
serious controversy in the case. If the former, the terms and the
intention of the Dingley Act would apply. If the latter, whatever
its words or
Page 182 U. S. 201
intention, it could not be applied. Between these extremes,
there are other relations, and that Porto Rico occupied one of them
and its products hence were subject to duties under the Dingley
Tariff Act can be demonstrated. Indeed we have the authority of a
member of the majority of the Court, and the organ of the Court's
opinion in this case, that, even if Porto Rico were domestic
territory, its products could be legally subjected to tariff
duties. This principle is expressed by him in
Downes v.
Bidwell. The other members of the Court, though agreeing with
him in the case at bar, do not agree with him in
Downes v.
Bidwell. They assert that, Porto Rico being a territory of the
United States, tariff duties on its products are inhibited by the
Constitution of the United States. Their judgment and his only
unite in the case at bar, and we may assume that the reasoning of
the opinion just announced is the road which has brought them
together, and, assuming further that such reasoning is the best
judicial support of the conclusion it is presented to establish, we
address ourselves to the consideration of that reasoning.
(1) The statement of the opinion is that whether the cargoes of
sugar were subject to duty depends solely upon the question whether
Porto Rico was a foreign country at the time they were shipped, and
a foreign country is defined to be, following Chief Justice
Marshall, "
one exclusively within the sovereignty of a foreign
nation' and without the sovereignty of the United States." This
makes sovereignty the test, and gives a rule as sure and exact in
its application as it is clear and simple in its expression. There
is no difficulty in applying it. Difficulty comes with attempts to
limit it. The difference between our country and one not ours would
seem to be of substance, not needing words to explain the
difference, but defying words to confound it, and having the
consequence of carrying not only one law, but all laws. The Court
does not go so far, and why? Is there weakness in the logic, or do
its consequences repel? The argument of the Court certainly
proceeds as if the test is universal -- illustrations are used to
make it unmistakable.
Under the effect of the treaty of cession and our government of
Porto Rico, it is said, if the question was broadly presented
Page 182 U. S. 202
whether it was "a foreign country or domestic territory," there
would be as little hesitation in answering the question as there
would be in determining the ownership of a house deeded in fee
simple to a purchaser, after he had gone into possession, paid
taxes, and made improvements, without let or hindrance from his
vendor. And we would have as little hesitation in applying all of
the consequences and concomitants of ownership. But we do not care
to join issue on an illustration, although it may suggest wrong
principles. We submit that the administration of a government has
more complexity -- must consider more things -- than the management
of a piece of real estate. But even the conveyance of real estate
may be conditional, all of the incidents of ownership not
immediately applying. However, we need not dwell on insufficient
analogies. There are better ones. The history of our country has
examples of the acquisition of foreign territory -- examples of
what relation such territory bears to the United States --
authorities, executive, legislative, and judicial, as to what was
wise in statesmanship, as well as what was legal and
constitutional, in withholding or extending our laws to such
territory, and finding these examples and authorities in the way
the opinion of the court attempts to answer or distinguish or
overrule them.
United States v.
Rice, 4 Wheat. 246, 4 L. 562, is reviewed. In that
case, Castine, port of the United States, was in temporary
occupation by the British during the war of 1812, and it was
declared to be a foreign country within the meaning of our customs
laws, as much, the Court said by Mr. Justice Story, as if "Castine
had been a foreign territory ceded by treaty to the United States,
and the goods had been previously imported there." In other words,
not a cession to another country, but the accidental occupation by
the armed forces of another country, made a port in the State of
Maine foreign territory. The conclusion had the sanction of great
names and the authority of this Court. Temporary sovereignty, not
permanent dominion, was seemingly made the test.
Fleming v.
Page, 9 How. 603, is also reviewed. The case
involved the legality of duties levied in Philadelphia upon goods
imported from Tampico. Tampico was a port of Mexico temporarily
Page 182 U. S. 203
occupied by the United States forces, the exact condition which,
in the
Rice case, made a port in one of the states of our
Union English territory. Tampico was nevertheless held to be a
foreign country within the meaning of our revenue laws. In other
words, the military occupation and the sovereignty which attended
it, which determined in the
Rice case, was rejected in the
Fleming case. There is apparent antagonism between the
cases, and the Court in the case at bar observe it. And, strangely
enough, that which is "somewhat of the converse" (to quote the
Court in the case at bar) of the
Rice case is held
sufficient for the judgment in the
Fleming case, and other
grounds of decision are declared to be
dicta.
An attempt is made, however, to reconcile the cases, and we
think they can be reconciled, but not upon the grounds stated by
the Court in the opinion in the case at bar. Harmony cannot be
established between them by that which in the
Fleming case
is the converse of the
Rice case, and by rejecting as
dicta all other grounds as unnecessary to the judgment in
the
Fleming case. However, we will proceed to the
consideration of the latter case.
Delivering the opinion of the court, Chief Justice Taney
substantially said that the boundaries of our country could not be
enlarged or diminished by the advance or retreat of armies, and
based his opinion besides and the judgment of the case on the
absence of an act of Congress establishing a customhouse at Tampico
and authorizing the appointment of a collector,
"and consequently there was no officer of the United States
authorized by law to grant the clearance and authenticate the
coasting manifest of the cargo, in the manner directed by law,
where the voyage is from one port of the United States to
another,"
and the necessity of a legal permit and coasting manifest was
expressly asserted. He further said:
"This construction of the revenue laws has been uniformly given
by the administrative department of the government in every case
that has come before it. And it has, indeed, been given in cases
where there appears to have been stronger ground for regarding the
place of shipment as a domestic port. For after Florida had been
ceded to the United States, and the forces
Page 182 U. S. 204
of the United States had taken possession of Pensacola, it was
decided by the Treasury Department that goods imported from
Pensacola before an act of Congress was passed erecting it into a
collection district, and authorizing the appointment of a
collector, were liable to duty. That is that, although Florida had
by cession actually become a part of the United States and was in
our possession, yet, under our revenue laws, its ports must be
regarded as foreign until they were established as domestic by act
of Congress, and it appears that this decision was sanctioned at
the time by the Attorney General of the United States, the law
officer of the government. And although not so directly applicable
to the case before us, yet the decisions of the Treasury Department
in relation to Amelia Island, and certain ports in Louisiana, after
that province had been ceded to the United States, were both made
upon the same grounds. And in the latter case, after a customhouse
had been established by law at New Orleans, the collector at that
place was instructed to regard as foreign ports Baton Rouge and
other settlements still in the possession of Spain, whether on the
Mississippi, Iberville, or the seacoast. The department in no
instance that we are aware of since the establishment of the
government has ever recognized a place in a newly acquired country
as a domestic port from which the coasting trade might be carried
on unless it had been previously made so by act of Congress."
The opinion in the case at bar disregards this reasoning and the
conclusion from it, and says:
"While we see no reason to doubt the conclusion of the Court (in
Fleming v. Page) that the port of Tampico was still a
foreign port, it is not perceived why the fact that there was no
act of Congress establishing a customhouse there, or authorizing
the appointment of a collector, should have prevented the collector
appointed by the military commander from granting the usual
documents required to be issued to a vessel engaged in the coasting
trade."
Such power, it was said, "a military commander may be presumed
to have," but, "of course, he would have no power to make a
domestic port of what was in reality a foreign port." But why did
it remain a foreign port? Castine did not remain a domestic port.
We, however, need not dwell any longer on this point,
Page 182 U. S. 205
for, under the latest utterances of this Court, the test of
dominion breaks down. Cuba is under the dominion of the United
States. We held in the
Neely Case, 180 U.
S. 109, that it is a foreign country.
We think that
Fleming v. Page is disposed of too
summarily by the majority in the case at bar, and we have shown
that it is not antagonistic to the
Castine case. Both
cases recognized inevitable conditions. At Castine, the
instrumentalities of the custom laws had been divested; at Tampico,
they had not been invested, and hence the language of the
Court:
"The department in no instance that we are aware of since the
establishment of the government has ever recognized a place in a
newly acquired country as a domestic port, from which the coasting
trade might be carried on unless it had been previously made so by
act of Congress."
We submit that the principle upon which
Fleming v. Page
was based is still a proper principle for judicial application.
Does it not make government provident, not haphazard, ignoring
circumstances and producing good or ill accidentally? Does it not
leave to the executive and the legislative departments that which
pertains to them? Did it not stand as a guide to the executive -- a
warrant of action so far as action might affect private rights?
Indeed, what is of greater concern, so far as action might affect
great public interests? It should, we submit, be accepted as a
precedent. It is wise in practice; considerate of what government
must regard, and of the different functions of the executive,
legislative, and judicial departments and of their independence.
Why should it, then, be discarded as
dictum? If constancy
of judicial decision is necessary to regulate the relations and
property rights of individuals, is not constancy of decision the
more necessary when it may influence or has influenced the action
of a nation? If the other departments of the government must look
to the judicial for light, that light should burn steadily. It
should not, like the exhalations of a marsh, shine to mislead.
The case of
Cross v.
Harrison, 16 How. 164, is relied on especially. The
curiosity of that case is that all parties cite it, and this Court
even finds it as convenient and as variously adaptive.
Page 182 U. S. 206
It therefore challenges the application of the wise maxim
expressed by Chief Justice Marshall, "[t]hat general expressions in
every opinion are to be taken in connection with the case in which
those expressions are used." And certainly to ascertain the meaning
of the court, we must see what was before the court, and interpret
its opinion by that, and, if there is confusion in its language, it
may resolve itself into satisfactory meaning.
It is cited to sustain the proposition that immediately upon the
cession of territory it becomes a part of the United States,
"instantly bound and privileged by the laws which Congress had
passed to raise a revenue from duties on imports and tonnage." This
is the strongest expression of the case. It is attempted to be made
its controlling one -- the point decided. It was neither the point
decided nor was it the controlling expression. It was immediately
accompanied by the qualification, "as there is nothing differently
stipulated in the treaty in respect to commerce." The effect of the
qualification the opinion in the present case does not explicitly
notice, and we shall attempt to show with what meaning the
expression was used, and what was decided.
The case involved the legality of duties on imports into
California between the 3d of February, 1848, and the 13th of
November, 1849. The time was divided by the plaintiffs in the case
"into two portions," the Court said, "to each of which they
supposed that different rules of law attached," and further that
"the claim covered various amounts of money which were paid at
intervals between the 3d day of February, 1848, and the 13th of
November, 1849." The first of those dates was that of the treaty of
peace between the United States and Mexico, and the latter when Mr.
Collier, a person who had been regularly appointed collector at
that port, entered upon the performance of the duties of his
office.
"During the whole of this period, it was alleged by the
plaintiffs that there existed no legal authority to receive or
collect any duty whatever accruing upon goods imported from foreign
countries."
Meeting the contention and replying to it fully, the Court held
that the duties were legally levied and collected during the whole
of the period -- from the 3d of February, 1848, until sometime
Page 182 U. S. 207
in the following fall -- under the war tariff instituted by
Governor Mason; after that, under the Walker tariff. In other
words, before and after cession, under the war tariff. Speaking of
that tariff, the Court said:
"They [duties] were paid until some time in the fall of 1848 at
the rate of the war tariff, which had been established early in the
year before by the direction of the President of the United
States."
And, speaking of the action of Governor Mason and the law which
sanctioned it, it was further said:
"He may not have comprehended fully the principle applicable to
what he might rightly do in such a case, but he felt rightly, and
acted accordingly. He determined, in the absence of all
instruction, to maintain the existing government. The territory had
been ceded as a conquest, and was to be preserved and governed as
such until the sovereignty to which it had passed had legislated
for it. That sovereignty was the United States, under the
Constitution, by which power had been given to Congress to dispose
of and make all needful rules and regulations respecting the
territory or other property belonging to the United States, with
the power also to admit new states into this Union, with only such
limitations as are expressed in the section in which this power is
given. The government, of which Colonel Mason was the executive,
had its origin in the lawful exercise of a belligerent right over a
conquered territory. It had been instituted during the war by the
command of the President of the United States. It was the
government when the territory was ceded as a conquest, and it did
not cease as a matter of course or as a necessary consequence of
the restoration of peace. The President might have dissolved it by
withdrawing the army and navy officers who administered it, but he
did not do so. Congress could have put an end to it, but that was
not done. The right inference from the inaction of both is that it
was meant to be continued until it had been legislatively changed.
No presumption of a contrary intention can be made. Whatever may
have been the causes of delay, it must be presumed that the delay
was consistent with the true policy of the government. And the more
so as it was continued until the people of the territory met in
Page 182 U. S. 208
convention to form a state government, which was subsequently
recognized by Congress under its power to admit new states into the
Union."
And further replying to the contention that there was neither
treaty not law permitting the collection of duties,
"it having been shown that the ratification of the treaty made
California a part of the United States, and that as soon as it
became so the territory became subject to the acts which were in
force to regulate foreign commerce with the United States, after
those had ceased which had been instituted for its regulation as a
belligerent right."
An important inquiry is when did the laws cease "which had been
instituted for the regulation of the territory as a belligerent
right," and how did they cease? The answer is instant -- they
ceased when the President withdrew them and because he withdrew
them. The laws of Congress did not instantly apply upon the
cession. There was an interval of time during which they did not
apply, and if there can be such interval, who is to judge of what
duration it shall be? Who can but the political department of the
government? and how impracticable any other ruling would be. It is
not for the judiciary to question it. It involves circumstances
which the judiciary can take no account of or estimate. It is
essentially a political function.
We have quoted largely from
Cross v. Harrison because
it is made the pivot of the opinion of the court in the present
case, and we will recur to it again. But it should be said now that
some of the expressions may be accounted for and understood by the
state of precedent opinion.
It is a matter of some surprise that the only explicit provision
of the Constitution of the United States in regard to the territory
not embraced within the jurisdiction of a state is expressed in the
following provision:
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property of the United States."
What was meant by it, what its relation was to other provisions
of the Constitution, was the subject of discussion. Gouveneur
Morris, who wrote the provision, subsequently declared
Page 182 U. S. 209
that it was intended to confer power to govern acquisitions of
territory as "provinces and allow them no voice in our councils."
He admitted, however, that it was not expressed more pointedly in
order to avert opposition. In his mind it certainly contemplated
the government of after-acquired territory. In
Scott v.
Sandford, 19 How. 393, however, the provision was
declared to be confined, and was intended to be confined, to the
territory which at that time belonged to the United States. "It was
a special provision for a known and particular territory, and to
meet a present emergency, and nothing more." This conclusion was
claimed to be established by the history of the times, "as well as
the careful terms in which the article is framed." We will not stop
to reconcile this conflict between him who wrote the provision and
the court who interpreted it. The conflict was but an incident in
the evolution of opinion. And there were other conflicts, or rather
diversities of view, caused or encouraged by the silences of the
Constitution. That instrument contained no provision for acquiring
new territory. The power was derived from the powers of making war
and of making peace, and might be accomplished by conquest or by
treaty. There was a question, however, of the effect of an
acquisition. It is certain that Mr. Jefferson doubted the power of
incorporating new territory into the Union without an amendment to
the Constitution, and the debates in Congress exhibit the diverse
views held by public men on the relation which such territory would
bear to the United States, the application of the laws to and the
power of Congress over the acquired territory under the
Constitution. We shall not stop to quote the debates. That will be
done in a subsequent case, and the conclusion which they
demonstrate expressed. It is only necessary for us to observe that
distinctions always existed between territory which might be
acquired (whether by purchase or by conquest) and that which was
within the acknowledged limits of the United States, and also that
which might be acquired by the establishment of a disputed line.
These distinctions were conspicuous in the opinion of Mr. Justice
Johnson at circuit, in the case of
American
Insurance Company v. Canter, 1 Pet. 511. In that
case, the relation of Florida to the United States
Page 182 U. S. 210
was necessary to be considered, and of that relation, the
learned Justice said:
"It is obvious that there is a material distinction between the
territory now under consideration and that which is acquired from
the aborigines (whether by purchase or conquest) within the
acknowledged limits of the United States, as also that which is
acquired by the establishment of a disputed line. As to both these,
there can be no question that the sovereignty of the state or
territory within which it lies, and of the United States,
immediately attach, producing a complete subjection to all the laws
and institutions of the two governments, local and general, unless
modified by treaty. The question now to be considered relates to
territories previously subject to the acknowledged jurisdiction of
another sovereign, such as was Florida to the Crown of Spain.
And on this subject we have the most explicit proof that the
understanding of our public functionaries is that the government
and laws of the United States do not extend to such territory by
the mere act of cession."
The italics are ours.
All the history and utterances of the past declare the same
way.
And how important those utterances and decisive of the present
controversy! They were not the utterances of inattention and
ignorance, and therefore to be discarded. They were the utterances
of men whose actions illustrated them. They were the utterances of
men (to borrow the thought of Benton) whose sacrifices made the
Constitution possible, whose genius conceived and wrote it. Shall
it be said that the farther time separates us from them the better
we understand them -- better than they understood themselves?
American Insurance Co. v. Canter came to this Court and
was argued by Mr. Webster. We may quote what he said. His views
were more than those of an advocate. He expressed them elsewhere
when a different, if not higher, duty demanded reflection,
consideration, and sincerity. "What is Florida?" he asked.
"It is no part of the United States. How can it be? How is it
represented? Do the laws of the United States reach Florida? Not
unless by particular provisions."
And, responding to the argument, the Court decided, through
Chief Justice
Page 182 U. S. 211
Marshall that the judicial power of the United States, as
declared by the Constitution, did not extend to Florida, and the
title to one hundred and fifty-six bales of cotton was held to pass
by a sale under the order of a court, which consisted of a notary
and five jurors, established by an act of the Governor and council
of Florida.
From the light of previous opinions, the language of Mr. Justice
Wayne in
Cross v. Harrison receives explanation. The
treaty with Mexico, following the war, defined the "boundaries of
the United States," and made the reclaimed territory, which
included California, a part of the United States. In other words,
the acquisition (if it can be called such) of California was in
recognition of boundaries, and hence the learned Justice called it
a part of the United States. But not uniformly. Mark this sentence:
"But after the ratification of the treaty, California became a part
of the United States, or a ceded, conquered territory." That his
language marked a distinction there can be no doubt, but it was of
no consequence to observe. The principle enforced did not need it.
In either case, the action of the President was the potent
thing.
2. The line of judicial precedents relied upon in the opinion of
the Court in the case at bar ends with
Cross v. Harrison,
and the practice and rulings of the executive departments of the
government are considered. They are said to be in accordance with
the ruling ascribed to
Cross v. Harrison, with but a
single exception. If there is one legal exception, the rule is
gone. It is not a case where an exception can prove the rule; it is
one where the exception destroys the rule. The exception was
Louisiana. Between December 20, 1803, when possession was delivered
to the United States, and March 25, 1804, when the Act of February
24 became effective, Louisiana was treated as a foreign country
under the customs laws, but this, the Court in the opinion just
announced says,
"is manifestly inconsistent with the position subsequently taken
by this Court in
Cross v. Harrison, wherein it is said of
the action of Mr. Harrison in California:"
"That war tariff, however, was abandoned as soon as the military
governor had received from Washington information of the exchange
and ratification of the treaty with Mexico,
Page 182 U. S. 212
and duties were afterwards levied in conformity with such as
Congress had imposed upon foreign merchandise imported into the
other ports of the United States, Upper California having been
ceded by the treaty to the United States. This last was done with
the assent of the Executive of the United States, or without any
interference to prevent it. Indeed, from the letter from the then
Secretary of the Treasury, we cannot doubt that the action of the
military governor of California was recognized as allowable and
lawful by Mr. Polk and his cabinet."
"After saying that, and this action having been recognized by
the President, Mr. Justice Wayne adds:"
"We think it was a rightful and correct recognition under all
the circumstances, and when we say rightful we mean that it was
constitutional, although Congress had not passed an act to extend
the collection of tonnage and import duties to the ports of
California."
If the laws of Congress instantly applied, why was the
recognition of the President necessary? They could gain no legal
efficacy from such recognition which they did not have without it,
under the supposition that they applied on cession by their own
force. Surely so obvious a consequence would have occurred to the
Court in
Cross v. Harrison, and we cannot believe that the
court used its language carelessly or uselessly. If the assent and
recognition of the President were not necessary, why dwell upon
them? Why so confuse the statement of a simple principle -- simple
in application and expression -- and cast doubt upon it by
unnecessary qualifications? The case therefore is not inconsistent
with the ruling in regard to Louisiana. For a period of time after
the cession of Louisiana, President Jefferson treated it as foreign
territory under the custom laws, and duties were levied upon its
products, and no one disputed the legality of it. If the instance
was not the same as in
Cross v. Harrison, the principle
was the same. There was not an immediate change upon the cession of
either California or Louisiana. In California, duties were levied
for a time under the war tariff, and afterwards under the act of
Congress, and of the latter it was said: "This last was done with
the assent of the Executive of the United States, or without any
interference to prevent it." And this, it was further said, was
"recognized as
Page 182 U. S. 213
allowable and lawful by Mr. Polk and his cabinet." We are
disposed to ask again, was the language inadvertent? Did not the
Court use it with full consciousness of its meaning and its
necessity? Was the Court in confusion as to the principles which
applied, and jumbled them together without seeing or making a
distinction between the force of the act of Congress of itself and
the action of the President in giving it efficacy, the necessity of
its being recognized as "allowable and lawful by Mr. Polk and his
cabinet?" Surely not. Rights were involved which depended upon the
legality of the war tariff both before and after cession, and that
legality was intended to be and was passed upon and sustained. An
automatic effect was not given to the act of Congress as it is
given in the case at bar. The act was applied by the President not
in simple execution of it, but as giving it legal effect. And it
was this that the Court said "was a rightful and correct
recognition under all the circumstances." "Rightful," because "it
was constitutional, although Congress had not passed an act to
extend the collection of tonnage and import duties to the ports of
California." In other words, an act of Congress was not necessary
to extend the collection of duties; the power of the President was
sufficient, and of that power the Court left no doubt. Speaking of
the duties which were collected under the war tariff after the
cession, it was observed,
"but after the ratification of the treaty, California became a
part of the United States, or a ceded, conquered territory. Our
inquiry here is to be whether or not the cession gave any right to
the plaintiffs to have the duties restored to them which they may
have paid between the ratifications and exchange of the treaty and
the notification of that fact by our government to the military
governor of California. It was not received by him until two months
after the ratification, and not then with any instructions or even
remote intimation from the President that the civil and military
government which had been instituted during the war was
discontinued. Up to that time, whether such an intimation had or
had not been given, duties had been collected under the war tariff,
strictly in conformity with the instructions which had been
received from Washington. "
Page 182 U. S. 214
Comment would seem to be unnecessary to make this passage clear.
If the act of Congress applied by cession, it applied immediately.
It could not be delayed by taking time for notice. Besides, it
would by its own force displace all other provisions, and would not
need for operation upon rights or the creation of rights, that the
President give instructions or intimations, near or remote, "that
the civil and military government which had been instituted during
the war was discontinued." But we need not comment further. We may
use the language of the Court in summarizing its conclusion:
"Our conclusion from what has been said is that the civil
government of California, organized as it was from a right of
conquest, did not cease or become defunct in consequence of the
signature of the treaty or from its ratification. We think it was
continued over a ceded conquest, without any violation of the
Constitution or laws of the United States, and that, until Congress
legislated for it the duties upon foreign goods imported into San
Francisco were legally demanded and lawfully received by Mr.
Harrison, the collector of the port, who received his appointment,
according to instructions from Washington, from Governor
Mason."
This explicit statement, as well as the analysis and review
which have first been made, leaves no ground to sustain the
conclusion that
Cross v. Harrison held that the tariff
laws of the United States were immediately operative in California
without regard to the exercise of the President's discretion
putting them in force. But, purely for argument's sake, we may
concede the contrary. The decision must have been, in any
conception, based on the provisions of the treaty with Mexico. The
Court said so. But the treaty with Spain, instead of providing for
incorporating the ceded territory into the United States, as did
the treaty with Mexico, expressly declares that the status of the
ceded territory is to be determined by Congress. This difference in
the treaties removes
Cross v. Harrison as a factor in the
judgment of the case at bar, supposing its interpretation, in the
opinion we are reviewing, be correct.
3. The opinion of the Court says:
"On March 1, 1845, Congress adopted a joint resolution
consenting to the annexation
Page 182 U. S. 215
of Texas upon certain conditions, 5 Stat. 797, but it was not
until December 29, 1845, that it was formally admitted as a state.
9 Stat. 108. In this interval, and on July 29, 1845, the Secretary
of the Treasury issued a circular letter directing the collectors
to collect duties upon all imports from Texas into the United
States until Congress had further acted. Of course, there could be
no question that Texas remained a foreign state until December 29,
when she was formally admitted. The circular therefore is of no
pertinence to the question here involved."
We think otherwise. Even after her admission as a state, it was
deemed necessary to extend the laws of the United States to her. 9
Stat. 1. She was an example, as Florida was, as to what Congress
believed to be necessary, and Oregon and Alaska are like examples.
The simple rule of the automatic action of the custom and revenue
laws seemingly did not occur to anybody; not even as to
incorporated territory nor to a new state formed from foreign
territory. Nor, as we have seen, did such theory seem to be
sustainable when Chief Justice Taney announced in
Fleming v.
Page a contrary conclusion.
4. But, independent of precedent, the Court says it is
"irresistibly impelled to the same conclusion." The argument is
mainly based upon the treatymaking power invested in the President
and Senate. A treaty made by that power is said to be the supreme
law of the land -- as efficacious as an act of Congress and, if
subsequent and inconsistent with an act of Congress, repeals it.
This must be granted, and also that "one of the ordinary incidents
of a treaty is the cession of territory," and that "the territory
thus acquired is acquired as absolutely as if the annexation were
made, as in the case of Texas and Hawaii, by an act of Congress."
But to tell us of the sources of the treatymaking power and to
define the extent of that power helps us very little to the
solution of the present problem.
The question occurs what has the treatymaking power done? Is the
treaty with Spain inconsistent with the Dingley Act, and was it
intended to work the repeal of that act? That act when passed was
undoubtedly intended to apply to products from Porto Rico, and, we
suppose, it will not be contended, in determining whether the
treaty has rendered the act inoperative, the
Page 182 U. S. 216
terms of the treaty are not to be looked at? Assuredly the
treaty cannot have an automatic force contrary to its terms. That
is, it cannot be contended that the automatic force of the treaty
is greater than the force of the treaty itself.
This Court said, speaking by MR. JUSTICE BROWN, in
Holden v.
Hardy, 169 U. S. 366:
"In the future growth of the nation, as heretofore, it is not
impossible that Congress may see fit to annex territories whose
jurisprudence is that of the civil law. One of the considerations
moving to such annexation might be the very fact that the territory
so annexed should enter the Union with its traditions, laws, and
systems of administration unchanged. It would be a narrow
construction of the Constitution to require them to abandon these,
or to substitute for a system which represented the growth of
generations of inhabitants a jurisprudence with which they had had
no previous acquaintance or sympathy."
The statement being accepted, may not a fiscal system be as
important as other matters of administration? May not a change of
taxation, new burdens of taxation suddenly imposed, be worthy of
consideration?
"The opinion of the case at bar has not discussed the treaty. It
takes it for granted that the cession of Porto Rico was absolute,
and the conclusion that it is not a foreign country within the
meaning of the revenue laws is deduced from that. But necessarily
that depends upon the treaty, and interpretation is called for. The
power of Congress over ceded territory is asserted in the opinion
in somewhat absolute terms -- it 'involves the right to govern and
dispose of it.' This being so, it would seem to be certain that the
treatymaking power would not forestall Congress, or accept with the
cession of territory the destruction of the fiscal and industrial
policies of the country. We should hesitate to so pronounce for
reasons which must occur to everyone, except upon the compulsion of
the clearest expression."
The opinion of the Court further says:
"Territory thus acquired [by treaty] can remain a foreign
country under the tariff laws only upon one of two theories: either
that the word 'foreign' applies to such countries as were foreign
at the time the statute
Page 182 U. S. 217
was enacted, notwithstanding any subsequent change in their
condition, or that they remain foreign under the tariff laws until
Congress has formally embraced them within the customs union of the
states."
Both theories are rejected as untenable. The first because,
"while a statute is presumed to speak from the time of its
enactment, it embraces all such persons or things as subsequently
fall within its scope." But what constitutes the scope of a statute
-- its letter inevitably, or may its spirit be regarded as
interpreting and applying its letter? In other words, shall the
purpose of its enactment be executed or defeated? There can be but
one answer to these questions, nor can confidence in the answer be
lessened by the analogies used by the Court.
The law against selling liquors to minors, it is said,
contemplates all minors -- those existing and those which may come
into being afterwards. Very true, but the purpose of the law is
that. The same with territories (to use another illustration of the
opinion) being bound as states when they come into the Union. But
these illustrations assume that the territory referred to was
incorporated by the treaty into the United States, an
ever-recurring and misleading fallacy, in our judgment.
Let us, however, look at the argument under the wrong assumption
of incorporation. The provisions of the Constitution for the
admission of new states contemplate the consequences of statehood
-- contemplate territories ceasing to be bound as such and becoming
bound as states. In other words, those provisions regard the
future, and have their purpose fulfilled, not defeated, by
territories becoming states. But a tariff law does not contemplate
additions to or subtractions from itself. It may be said to be
occasional. It regards certain conditions, and may be dependent
upon them, whether it be enacted for revenue only or for protection
and revenue. Its entire plan may be impaired or be destroyed by
change in any part. The revenues of the government may be lessened,
even taken away by change; the industrial policy of the country may
be destroyed by change. We are repelled by the argument which leads
to such consequences, whether regarding our own country or the
foreign country made "domestic." If "domestic" as to what comes
from it, it is "domestic" as to what goes to it, and its customs
laws, as well
Page 182 U. S. 218
as our customs laws, may be cast into confusion, and its
business and affairs deranged before there is possibility of
action.
As we have already said, to set the word "foreign" in antithesis
to the word "domestic" proves nothing. Their opposition does not
express the controversy. The controversy is narrower. It is whether
a particular tariff law applies. That, indeed, may be the
consequence of the principle that all laws apply, or that customs
laws apply by reason of the provision of the Constitution which
requires duties, imposts, and excises to be uniform throughout the
United States, and the treatymaking power cannot prevent the
application of that provision. That principle is asserted by
counsel, and is very simple, but, applied as counsel apply it, is
fraught with grave consequences. It takes this great country out of
the world and shuts it up within itself. It binds and cripples the
power to make war and peace. It may take away the fruits of
victory, and, if we may contemplate the possibility of disaster, it
may take away the means of mitigating that. All those great and
necessary powers, are, as a consequence of the argument, limited by
the necessity to make some impost or excise "uniform throughout the
United States."
The treatymaking power is as much a constitutional power as the
legislative or judicial powers. It is a supreme attribute of
sovereignty, but often less determined in its exercise than others
-- more dependent on contingency, and may be less optional. It may
precede war or follow war -- command or be commanded by war. The
kind or direction of its exercise cannot always be predicted or
marked. There can be no verbal limitations upon it, and, wisely,
none were attempted. Whatever restraints should be put upon it
might have to yield to the greater restraints of life or death --
not only material prosperity, but national existence. These, of
course, are extreme contingencies, but they are not impossible, and
are necessary to be regarded when limitations are urged which take
no account of them. We do not mean to say that there are no
limitations. They are certainly not those which counsel urge.
Besides, the contention of counsel is answered by the
Canter case. The difference between military occupation of
a territory and its cession at the treaty of peace was noted. "If
it be ceded by the treaty,"
Page 182 U. S. 219
the Court said,
"the acquisition is confirmed, and the ceded territory becomes a
part of the nation to which it is annexed, either on the terms
stipulated in the treaty of cession or on such as its new master
shall impose."
What is the significance of this? It would seem like useless
language, its purpose often defeated if the Constitution and laws
of the conqueror, and, to drop from the abstract and supposing this
country the conqueror, if our Constitution and laws, immediately
apply on cession of territory. The terms which may be granted or
received would be, to a certain and important extent,
predetermined. Neither we nor the conquered nation would have any
choice in the new situation, could make no accommodation to
exigency, would stand bound in a helpless fatality. Whatever might
be the interests, temporary or permanent, whatever might be the
condition or fitness of the ceded territory, the effect on it or on
us, the territory would become a part of the United States with all
that implies. It is only true to say that counsel shrink somewhat
from the consequences of their contention, or, if "shrink" be too
strong an expression, deny that it can be carried to the
nationalization of uncivilized tribes. Whether that limitation can
be logically justified we are not called upon to say. There may be
no ready test of the civilized and uncivilized, between those who
are capable of self-government and those who are not, available to
the judiciary or which could be applied or enforced by the
judiciary. Upon what degree of civilization could civil and
political rights under the Constitution be awarded by courts? The
question suggests the difficulties, and how essentially the whole
matter is legislative, not judicial. Nor can those difficulties be
put out of contemplation, under the assumption that the principles
which we may declare will have no other consequence than to affect
duties upon a cargo of sugar. We need not, however, dwell on this
part of the discussion. From our construction of the powers of the
government and of the treaty with Spain the danger of the
nationalization of savage tribes cannot arise.
These views answer, in our judgment, the chief arguments of the
opinion, but to make a complete reply and to justify a different
conclusion, we should consider and interpret the treaty
Page 182 U. S. 220
with Spain. We will, however, not do so now. It has been done in
the concurring opinion in
Downes v. Bidwell, and it is not
necessary to anticipate the statements and reasoning of that
opinion.
We said at the outset that it could be demonstrated that Porto
Rico occupied a relation to the United States between that of being
a foreign country absolutely and of being domestic territory
absolutely, and because of that relation, its products were subject
to the duties imposed by the Dingley Act. And, concluding, we say
we believe that, in this opinion and the one referred to, we have
made that demonstration, made it from the Constitution itself, the
immediate and continued practice under the Constitution, judicial
authority, and the treaty with Spain. And that demonstration does
more than declare the legality of the duties which were levied upon
the sugars of the plaintiff in error. It vindicates the government
from national and international weakness. It exhibits the
Constitution as a charter of great and vital authorities, with
limitations indeed, but with such limitations as serve and assist
government, not destroy it; which, though fully enforced, yet
enable the United States to have -- what it was intended to have --
"an equal station among the Powers of the earth," and to do all
"Acts and Things which Independent states may of right do," and
confidently do, able to secure the fullest fruits of their
performance. All powers of government, placed in harmony under the
Constitution; the rights and liberties of every citizen secured,
put to no hazard of loss or impairment; the power of the nation
also secured in its great station, enabled to move with strength
and dignity and effect among the other nations of the earth to such
purpose as it may undertake or to such destiny as it may be
called.
The judgment of the circuit court should be affirmed.
MR. JUSTICE GRAY dissenting:
I am compelled to dissent from the judgment in this case. It
appears to me irreconcilable with the unanimous opinion of this
Court in
Fleming v.
Page, 9 How. 603, and with the opinions of the
majority of the Justices in the case, this day decided, of
Downes v. Bidwell.