Rican duties; from August 19, 1898, to February 1, 1899, under a customs tariff proclaimed by the President; from February 1, 1899, to May 1, 1900, when the Foraker Act took effect, under an amended tariff promulgated January 20, 1899, by order of the President.

In the United States, down to May 1, 1900, duties were collected under the general tariff laws.

I.

A suit was brought to recover back duties paid in the United States, under protest, on importations of sugar from Porto Rico in the autumn of 1899, after the exchange of the ratifications of the treaty of peace.

De Lima v. Bidwell.

Brown, J., delivering the opinion of the court, said:

1. That the question whether the duties were lawfully collected depended solely upon the question whether Porto Rico was then a "foreign country," the United States tariff of July 24, 1897, commonly called the Dingley Act, providing that certain duties should be collected on "all articles imported from foreign countries."

2. That a foreign country was defined by Chief Justice Marshall and Mr. Justice Story as one exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States."

3. That Porto Rico, ceded to and exclusively occupied and administered by the United States, seemed to be a domestic territory; but it was insisted that the island remained a "foreign country" under the tariff laws till embraced by Congress within the general revenue system.

4. That in United States v. Rice, 4 Wheat. 246, it was held that an action would not lie for duties on goods imported into Castine, Maine, during its occupation by the British in the war of 1812, the goods not being liable to American duties where imported, and no new right vesting in the United States on the reoccupation of the place.

5. That, somewhat conversely, in Fleming. Page, 9 How. 603, it was held that duties could not be recovered back which were paid on goods imported from Tampico, Mexico, when it was temporarily occupied by the United States during the Mexican war, it never having been ceded to the United States and never having ceased to be a foreign country. This was sufficient for the decision; but Chief Justice Taney, who delivered the opinion, proceeded to put the case on another ground, that, by the uniform construction of the tariff laws by the Treasury Department, as shown in the cases of Louisiana and Florida, no place in a newly acquired country was recognized as a domestic port, from which the coasting trade might be carried on, till Congress had passed an act establishing a custom-house there and authorizing the appointment of a collector.

a The Boat Eliza, 2 Gall. 4; Taber v. United States, 1 Story, 1; The Ship Adventure, 1 Brock. 235, 241.

6. That in Cross v. Harrison, 16 How. 164, the plaintiff, acting upon the dictum in Fleming. Page, sought to recover back duties paid to the acting collector at San Francisco, who was appointed by the military governor of California, on goods imported from foreign countries, 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, under an act of Congress of March 3, 1849, entered upon the discharge of his functions. The court, Wayne, J., delivering the opinion, held that California, after the cession, became "instantly bound and privileged by the laws of the United States as to duties on imports and tonnage;" and, while citing the cases of Louisiana and Florida and ostensibly taking a different view of the facts from that expressed in Fleming v. Page, distinctly repudiated, with the apparent acquiescence of Taney, who still remained Chief Justice, the doctrine that the port retained its foreign character till Congress had acted. The goods, it is true, were imported into San Francisco from foreign countries, but it was impossible to escape the conclusion that goods carried from San Francisco. to New York after the ratification of the treaty would not have been considered as imported from a foreign country.

7. That the practice of the executive departments, as shown in the cessions of Louisiana, Florida, Texas, California, and Alaska, was, with the single exception of Louisiana, where, under an order of Mr. Gallatin, Secretary of the Treasury, the prior duties were continued till Congress acted in 1804, strictly in line with the decision in Cross v. Harrison.

8. That the construction of the legislative department was shown in the Foraker Act, which distinguished between Porto Rico and foreign countries, by enacting (sec. 2) that the same duties should be paid on "all acticles 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."

9. That by this résumé it appeared that since Mr. Gallatin's order in 1803, there is not a shred of authority, except the dictum in Fleming . Page (practically overruled in Cross . Harrison) for holding that a district ceded to and in the possession of the United States remains for any purpose a foreign country."

10. That, were the question presented as an original one, the court "would be impelled irresistibly to the same conclusion."

11. That by the Constitution a treaty is a supreme law of the land; that one of the ordinary incidents of a treaty is the cession of territory; that, by the treaty of Paris, Porto Rico "became territory of the United States-although not an organized territory in the technical sense of the word;" and that whatever might be the source of

a Marshall, C. J., in Am. Ins. Co. v. Canter, 1 Pet. 511, 542.

Congress' power to govern territory, it was settled law that territory, when once acquired by treaty, "belongs to the United States, and is subject to the disposition of Congress."

12. That the contention that territory thus acquired "can remain a foreign country under the tariff laws" assumed either (1) that the word foreign applied under all changes to such countries as were foreign when the law was enacted, or (2) that they remained foreign till Congress has formally embraced them within the customs union of the States." The first assumption was obviously untenable; while the second presupposed both "that a country may be domestic for one purpose and foreign for another," and that such country, although everything might be done in it which a government can do within its own boundaries, might remain indefinitely, till Congress enacted other wise, a foreign country. The Constitution furnished no warrant for such views; and the court could not acquiesce in the "assumption that a territory may be at the same time both foreign and domestic."

13. That the court could not consider the provisions of the act of Congress of March 24, 1900," applying for the benefit of Porto Rico duties collected in the United States on importations from the island after its evacuation by Spain, as a declaration by Congress that Porto Rico remained as to the tariff laws a foreign country.

14. That the court therefore held that, in the autumn of 1899, "Porto Rico was not a foreign country within the meaning of the tariff laws but a territory of the United States," and that the duties sued for should be refunded; and the judgment of the court below was reversed.

McKenna, J. (with whom Shiras and White, JJ., concurred), dissented, maintaining:

1. That, between the extreme views (1) that Porto Rico, when the duties were levied, remained as much a foreign country as it was before the war with Spain, and (2) that it was as much domestic territory as New York, there were other relations, one of which was occupied by the island, and that for this view there existed the authority of the organ of the court's present opinion, who, in Downes 7. Bidwell (infra), held, against the dissent of the judges who agreed with him in the present case, that Porto Rico, though domestic territory, might be legally subjected to tariff duties.

2. That the principle on which Fleming . Page was decided, as stated in the opinion of Chief Justice Taney, remained a proper principle for judicial application, and should not be discarded as dictum.

3. That Gouverneur Morris, who wrote the provision of the Constitution which empowers Congress "to dispose of and make all needful rules and regulations respecting the territory or other property of the

@31 Stat. 151.

United States," afterwards declared that it was intended to confer power to govern territory as "provinces and allow them no voice in our councils," and in his mind it certainly contemplated after-acquired territory. In Scott. Sanford, 19 How. 393, it was declared to be confined to previously acquired territory. This conflict of views was but an incident in the evolution of opinion. But 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"-distinctions which were conspicuous in the opinion of Mr. Justice Johnson, at circuit, in American Insurance Co. . Canter, 1 Pet. 511. Mr. Webster, in his argument of that case before the Supreme Court, said: "What is Florida? 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, through Chief Justice Marshall, decided that the judicial power of the United States, as declared by the Constitution, did not extend to Florida.

4. That the court in Cross . Harrison did not hold that the tariff laws of the United States became immediately operative in California upon the ratification of the treaty of peace, independently of the exercise of the President's discretion in putting them in force. On the contrary, it held that California remained, even after the ratification of the treaty, under the government which the President had in the exercise of belligerent rights instituted during the war. And as it was thus admitted that there was, after the cession, an interval of time during which the laws of Congress did not apply, to whom does it belong to determine what the duration of that interval shall be? Clearly to the political, and not to the judicial, department of the Government. But, conceding, merely for the sake of the argument, the contrary, the decision rested on the provisions of the treaty of peace. The statement of Mr. Justice Wayne that territory ceded to the United States becomes "instantly bound and privileged," etc., was immediately accompanied by the qualification "as there is nothing differently stipulated in the treaty in respect to commerce." The cession of California was effected by a definition, in the treaty, of the "boundaries of the United States," and it was to this act of incorporation that Mr. Justice Wayne referred when he said that "after the ratification of the treaty, California became a part of the United States." The treaty with Spain, on the contrary, expressly declared that the status of the ceded territory should be determined by Congress.

5. That, as to executive practice, if there was one legal exception, such as was admitted to exist in the case of Louisiana, it destroyed the

alleged rule. Nor was the Louisiana precedent inconsistent with Cross. Harrison, correctly interpreted. Even after the admission of Texas as a State, it was deemed necessary to extend the laws of the United States to her." She was an example, as was Florida, of what Congress believed to be necessary, and Oregon and Alaska were like examples.

6. That the opinion in the case at bar assumed that the cession of Porto Rico was unconditional, but that necessarily depended upon the terms of the treaty. To set the word "foreign" in antithesis to the word "domestic" proved nothing. The question was simply whether a particular tariff law applied; and to answer this in the affirmative on the ground that by the Constitution all laws, and particularly all customs laws, apply, in spite of any provisions in the treaty of cession, was to introduce a restrictive principle fraught with grave consequences. Mr. Justice Gray also dissented, on the ground that the judgment of the court appeared to be "irreconcilable with the unanimous opinion of this court in Fleming . Page, 9 How. 603, and with the opinions of the majority of the justices in the case, this day decided, of Downes v. Bidwell."

De Lima e. Bidwell (May 27, 1901), 182 U. S. 1.

II.

An action was brought to recover back duties paid under protest on certain oranges imported at New York from Porto Rico in November, 1900, after the Foraker Act took effect.

Downes v. Bid

well.

Mr. Justice Brown, in announcing "the conclusion and judgment" of the court, said:

1. That it having been decided that upon the ratification of the treaty of peace Porto Rico" ceased to be a foreign country, and became a territory of the United States," the question remained whether it became “*a part of the United States" within the clauses of the Constitution which declare that "all duties, imposts, and excises shall be uniform throughout the United States," and that "vessels bound to or from one State" can not be obliged to enter, clear, or pay duties in another;" or. more broadly, “whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories.”

2. That, neither in the Articles of Confederation, nor in the ordinance of 1787, nor in the Constitution itself, was there anything from which it could be inferred that the territories were considered a part of the United States. "The Constitution was created by the people of the United States, as a union of States, to be governed solely by representatives of the States;" and the clauses in question are explained by others which expressly relate to the States.