Lead Opinion
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 infringment 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.,
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 defence in this connection.
By Rev. Stat. sec. 2931, it was enacted that the decision of
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 secs. 2931, 3011, were repealed and new regulations established, by which an appeal was given from the decision of the collector “as to the'rate and amount of the duties chargeable upon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 duties 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, Petitioner,
“Under the Customs Administrative Act, the libellant, in order to have the benefit of the 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 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,
Conceding then that section 3011 has beén repealed, and that no remedy exists under the Customs Administrative Act, does it follow that no action whatever will lie ? If there be an ad
The case of Elliott v. Swartwout,
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,
The- criticism to be made upon the applicability of these cases is, that they dealt only with imported merchandise and with the duties collеcted 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 Bev. 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,
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 Bico was a “ foreign country ” at the time the sugars were shipped, since the tariff act of July 24,1897, c. 11, 30 Stat. 151, 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 Boat Eliza,
The status of Porto Bico 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 Bico, 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,
Ve 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,
A case, somewhat to the converse of this, was that of Fleming v. Page,
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
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 custom house 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
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 Mice case to impose a duty upon goods Avhich 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 Avithout a formal cession of such port to the United States.
The next case is that of Cross v. Harrison,
The court further held in this case that “ after the ratifica-, tion of the treaty, California became apart 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. 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.”
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 militаry governor of California was authorized to prescribe a scale of duties upon importations from foreign countries 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 im
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, supra. 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 Mаjesty 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
In a letter to President Jefferson of July 9,1803, Mr. Gallatin, then Secretarj^ 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 U nited 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, p. 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 hаd 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 of 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 impos
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 N ew Orleans, is iñanifestly inconsistent with the position subsequently taken by this court in Cross v. Harrison, supra, wherein it is said (p. 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 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 evidеnt 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
An opinion of Mr. Wirt, then Attorney General, of August 20, 1821, in the case of The Olive Branch, 1 Ops. Atty. Gen. 314, 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, (á 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.
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. Yorhies, 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 of growth, produce or manufacture of the United States, as no such duties can be imposed in any other port 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
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.” I.bid. 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,
This correspondence with reference to California took place in 1848. The decision in Fleming v. Page,
Alaska : This territory was ceded to us by Bussia 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 Bussian 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 positipn was indorsed 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 Harrison v. Cross,
As showing the construction put upon this question by the legislative department, we- need only to add that sec. 2 of the Foraker act makes a distinction between foreign countries and Porto Eico, by enacting that the same duties shall be paid upon “ all articles imported into Porto Eico 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 time, there is not a shred of authority, except the didmm in Fleming v. Page, (practically overruled in Gross 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,
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 that two-thirds of the senators present concur; ” and by Art. YI, “ this Constitution and the laws
As was said by Chief Justice Marshall in The Peggy,
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,
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. Sandford,
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,
Territory thus acquired 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 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 bom; and ceases to apply to such as thereafter reach their majority. So, when the Constitution of the United States declares in Art. I, sec. 10, that the States 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 laws. 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.
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
A single further point remains to be considered : It is insisted that an act of Congress, passed March 21, 1900, c. 339,31 Stat. 151, applying for the benefit of Porto Eico the amount of the customs revenue received on importations by the United States from Porto Eico since the evacuation of Porto Eico by the • Spanish forces, October 18, 1898, to January 1, 1900, together with any further customs revenues collected on importations from Porto Eico 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, аnd a recognition of the fact that Porto Eico 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 farther 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
Ve are therefore of opinion that at the time these duties were levied Porto Pico 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 Cowrt for the Southern District of New York is therefore reversed and the case remanded to that court for further proceedings im consonance with this opinion.
Dissenting Opinion
Mr. Justice Shirks, 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 Pico 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 Pico was as much a foreign country as it was before the war with Spain; if it ivas 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
(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
United States v. Rice,
Fleming v. Page,
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 custom house at Tampico, and authorizing the appointment of a collector, “ and, consequently, there was no officer of ■ the United States аuthorized 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
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 custom house there and 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 the 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
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 department's and of their independence. Why should it then be discarded as dicktm ? 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,
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 has 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 of February, 1848, and the 13th of November, 1849.” The first of those dates wás 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 some time
“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 rulеs 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
And further replying to the contention that there was neither treaty nor 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
“ 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 hme 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 provision.” And, responding to the argument, the court decided through Chief Justice
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 “it 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,
If the laws of. Congress instantly aрplied, 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 Í 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 either 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
“ 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 cеase 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 statehient, 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 sake w;e 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. Th.e opinion of the court says: “ On March 1, 1845, Congress adopted a joint resolution consenting to the annexation
4. But independent of precedent the court says it is “irresistibly impelled to the same conclusion.” The argument is mainly based upon the treaty-making 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 to 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 treaty-making 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 treaty-making 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 Kico, and, we suppose, it will not be contended in determining whether the treaty has rendered the act inoperative, the
This court said, speaking by Mr. Justice Brown, in Holden v. Hardy,
“ 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 tеrritory 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 represents 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 treaty-making 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 every one, 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 on one of'two theories : either that the word ‘foreign ’ applies to such countries as were foreign at the time, the statute
The law against selling liquors to minors, it is said, contemplates all minors — those existing and those which may come into being afterwards. Yery 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 pountry 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 custom laws as well
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 pаrticular, 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 treaty-making 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 treaty-making 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 cam not 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 ceded by the treaty,”
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
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.
Dissenting Opinion
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,