municipal establishment, and in this exercise of sovereignty may provide the method, terms, and conditions under which internal improvements may be carried on, or forbid them to be carried on, although inchoate or even completed contracts therefor have previously been entered into.

Any rights of Dady & Co., for the construction of certain works in Havana, if vested, are preserved by the treaty of Paris.

Syllabus, Griggs, At.-Gen., July 10, 1899, 22 Op. 526.

“If Michael J. Dady & Co. had, at the time the treaty of Paris was signed, any rights under their alleged contract which can properly be called vested rights, those rights are undoubtedly preserved by the terms of the treaty."

The continuance of military government in the islands ceded by Spain to the United States, after the exchange of the ratification of the treaty of peace, by which the cession was made, was in harmony with the theory previously accepted and approved by the executive, legislative, and judicial branches of the Government of the United States.

Report of Mr. Magoon, law officer, Division of Insular Affairs, War Department, Oct. 19, 1899, Magoon's Reports, 11, 19.

The views set forth in this report were approved by the Secretary of War, and were acted upon by the War Department in the government of the islands.

3. ON REVENUE LAWS.

$94.

On the cession of Florida to the United States the jurisdiction and authority of the former sovereign continued in full force until possession of the ceded territory had actually passed. It follows that an importation of goods into the Floridas after the cession, but previously to the delivery of possession, was an affair between the importer and the Spanish Government, of which the Government of the United States had no right to complain.

But goods carried into a port of Florida before the delivery of possession, remaining in port on shipboard until after delivery and then brought into the United States, having never been entered in the Spanish custom-houses, would be subject to the revenue laws of the United States.

1 Op. 483, Wirt, 1821.

When Florida was ceded to the United States and possession of it had actually been taken it was held by the Secretary of the Treasury, whose opinion was sanctioned by the Attorney-General, that, under our revenue laws, its ports must be regarded as foreign until they were established as domestic by an act of Congress.

Fleming v. Page, 9 Howard, 603.

The mere fact that a territory has been ceded by one sovereignty to another does not open it to a free commercial intercourse with the world as a matter of course until the new possessor has prescribed by legislation some terms npon which intercourse may be conducted.

Cross v. Harrison, 16 Howard, 164.

"I understand the decision of the Supreme Court of the United States in the case of Harrison v. Cross (16 Howard, 164-202) 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 to and take effect within such territory ipso facto, and without any fresh act of legislation expressly giving such extension to the pre-existing laws. I can see no reason for a discrimination in this respect between acts regulating foreign commerce and the laws regulating intercourse with the Indian tribes. There is, indeed, a strong analogy in the two subjects. The Indians, if not foreigners, are not citizens, and their tribes have the character of dependent nations under the protection of this Government. As Chief Justice Marshall remarks, delivering the opinion of the Supreme Court in Worcester v. The State of Georgia (6 Peters, 557) the treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union.'

The same clause of the Constitution invests Congress with power 'to regulate commerce with foreign nations and with the

Indian tribes.'

"The act of June 30, 1834 (4 Stat. 729), defines the Indian country as, in fact, all that part of the United States west of the Mississippi and not within the States of Missouri and Louisiana, or the Territory of Arkansas.' This, by a happy elasticity of expression, widening as our domain widens, includes the territory ceded by Russia."

Mr. Seward, Sec. of State, to Mr. Schofield, Jan. 30, 1869, 80 MS. Dom. Let. 220.

When territory is acquired by treaty or conquest, or otherwise, its relation to the nation acquiring it depends upon the laws of that nation, unless controlled by the instrument of cession.

In the resolution annexing the Hawaiian Islands Congress affirmatively indicated its intent that such laws as our tonnage-tax laws are to remain undisturbed until it shall provide a form of government for such islands, or until the commission shall advise and Congress shall enact legislation therefor.

The fact that the Hawaiian Islands have been annexed to the United States does not relieve vessels from such ports from being considered as from foreign ports and as coming under the laws governing tonnage

tax.

Griggs, At.-Gen., July 22, 1898, 22 Op. 150.

In territory held by conquest, the military authorities in possession, in the absence of legislation by Congress, may make such rules or regulations and impose such duties upon merchandise imported into the conquered territory as they may deem wise and prudent.

The admission of merchandise into the ports of the United States from such conquered territory is governed solely by existing laws passed by Congress, and the President has no power to add to or detract from the force and effect of such laws.

Merchandise from the island of Porto Rico introduced into the ports of the United States is by law required to pay the same duties that would be charged upon merchandise imported from a foreign country, and the President has no authority to alter or modify the laws under which such duties are required to be paid.

Griggs, At.-Gen., Aug. 10, 1899, 22 Op. 560.

In July, 1898, Porto Rico was invaded by the military forces of the The insular cases. United States under General Miles.

August 12 a protocol between the United States and Spain was signed at Washington, which provided for the suspension of all hostilities, the evacuation of Porto Rico by Spain, and the negotiation of a treaty of peace which should include a cession of the island. (30 Stat. 1742.)

October 18 Porto Rico was evacuated by the Spanish forces.

December 10 a treaty of peace, by which the island was ceded to the United States, was signed at Paris.

February 6, 1899, the treaty was ratified by the President and Senate; March 19, by the Queen Regent of Spain; and, April 11, the ratifications were exchanged at Washington.

March 2 an act was passed by Congress making an appropriation to carry out the obligations of the treaty.

April 12, 1900, an act was passed, commonly called the Foraker Act, to provide temporary revenues and a civil government for Porto Rico. It took effect May 1, 1900. It imposed certain duties on goods going into Porto Rico from the United States, or coming into the United States from Porto Rico, but provided that they should in any event cease on March 1, 1902, or sooner if the legislative assembly of Porto Rico should enact and put into operation a system of local taxation to meet the necessities of the insular government."

Between the invasion of Porto Rico by the United States forces and the taking effect of the Foraker Act, duties were levied on commerce between the United States and Porto Rico as follows:

In Porto Rico, from July 26 to August 19, 1898, under a proclamation of General Miles, continuing the former Spanish and Porto

a

@ By a proclamation of July 25, 1901, President McKinley announced that such a system had been enacted and put into operation. By the terms of the act of April 12, 1900, all tariff duties as between the United States and Porto Rico ceased from and after the making of the President's proclamation.

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.

@ 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 v. 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.