The court then examines the practice and rulings of the executive department of the United States with respect to the status of newly acquired territories prior to their status being settled by acts of Congress and finds these rulings and practice, with the single exception of an order of Secretary of State Gallatin in 1803, to be in conformity with the position of the court in Cross v. Harrison.

As showing the construction put upon this question by the legislative department, the court quotes from section 2 of the Foraker Act establishing civil government in Porto Rico, which "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.'"

The opinion, then, summing up the precedents, says: "From this résumé of the decisions of this court, the instructions of the executive department, 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 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. M'Donough, 8 Pet. 308; 8 L. ed. 955; Pollard v. Kibbe, 14 Pet. 353; 10 L. ed. 490; Hallett v. Doe ex dem. 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; 8 Sup. Ct. Rep. 446; 31 L. ed. 389, and other cases cited."

The court then goes on to declare that even were the question presented as an original one, it would be irresistibly impelled to the conclusion which the precedents had furnished. This result, it is argued, is deducible from the fact that by the Constitution treaties equally with acts of Congress are declared to be the supreme law of the land, and that one of the ordinary inci dents of a treaty is the cession of territory. "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."

"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.

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."

§ 171. Dooley v. United States.

Applying the doctrine of De Lima v. Bidwell, the Supreme Court in another of the Insular Cases (Dooley v. United States), held that though, after the treaty of peace providing for the annexation of Porto Rico, the military government might continue until Congress should provide the island with a civil government (according to the doctrine of Cross v. Harrison), the island was no longer "foreign territory" and, therefore, under the then existing revenue laws of the United States, providing for the levying of customs duties on goods imported from foreign countries, that duties might not be levied upon importations into the United States from Porto Rico, nor from the United States into that island. With reference to these latter, the court said: "The spirit as well as the letter of the tariff laws admits of duties being levied by a military commander only upon importations from foreign countries; and, while his power is necessarily despotic, this must be understood rather in an administrative than in a legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. For instance, it is clear that, while a military commander during the Civil War was in the occupation of a southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. His power to administer would be absolute, but his power to legislate would not be without certain restrictions in other words, they would not extend beyond the necessities of the case. Thus, in the case of The Admittance (Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240) it was held that neither the President nor the military commander could establish a court of prize competent to take jurisdiction of a case of capture, whose judgments would be conclusive in other admiralty courts. It was said that the courts established in Mexico during the war were nothing more than the agents of the military power, to assist it in preserving order in the conquered terri8 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

tory, and to protect the inhabitants in their persons and property, while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize, although Congress, in the exercise of its general authority in relation to the national courts, would have power to validate their action. The Grapeshot, sub nom. The Grapeshot v. Wallerstein, 9 Wall. 129, 19 L. ed. 651. So, too, in Mitchell v. Harmony (13 How. 115; 14 L. ed. 75) it was held that, where the plaintiff entered Mexico during the war with that country, under a permission of the commander to trade with the enemy and under the sanction of the executive power of the United States, his property would not be liable to seizure by law for such trading, and that the officer directing the seizure was liable to an action for the value of the property taken. To the same effect is Mostyn v. Fabrigas, 1 Cowp. 180. In Raymond v. Thomas (91 U. S. 712; 23 L. ed. 434) a special order, by the officer in command of the forces in the State of South Carolina, annulling a decree rendered by a court of chancery in that State, was held to be void. In delivering the opinion Mr. Justice Swayne observed: Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires.' Without questioning at all the original validity of the order imposing duties upon goods imported into Porto Rico from foreign countries, we think the proper construction of that order is that it ceased to apply to goods imported from the United States from the moment the United States ceased to be a foreign country with respect to Porto Rico, and that, until Congress otherwise constitutionally directed, such merchandise was entitled to free entry."

The same four justices dissented in the Dooley ease that had dissented in the De Lima case. The dissent, however, was not

with reference to the validity of the duties levied prior to the ratification of the treaty of peace, but only with reference to those exacted after that date. These, the dissentient judges held to have been validly levied. After summarizing their arguments in the De Lima case, the dissenting opinion declares that, inasmuch as the court had just decided in Downes v. Bidwell that, despite the treaty of cession, Porto Rico had remained in a position where Congress could impose a tariff duty on goods coming from that island into the United States, it should not be held that that island ceased to be "foreign" within, at least, the meaning of the tariff laws. "The command in tariff laws," reads the opinion, "that import duties should be collected on all merchandise coming from foreign countries,' is but a provision that they are to be levied on merchandise arriving from countries which are not a part of the United States, within the meaning of the tariff laws, and which are hence subject to such duties. It must follow that, as long as a locality is in a position where it is subject to the power of Congress to levy an import tariff duty on merchandise coming from that country into the United States, such country must be a foreign country within the meaning of the tariff laws."

In the case The Diamond Rings,10 decided in 1901, the court applied the doctrine of De Lima v. Bidwell in fixing the status of the Philippine Islands subsequent to the treaty of cession. The fact that resistance on the part of the natives to the control of the United States continued to be made, was held to be without weight.1

11

9181 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. 10 183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138.

11"The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory, or territory ceded by way of indemnity. The territory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occupied by the troops of the United States during the Mexican war, 'cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was a part.' Thorington v. Smith, 8 Wall. 1; 19 L. ed. 361. The Philippines were not simply occupied, but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation.

The sovereignty of Spain over the Philippines and possession under claim of