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government. It would appear, however, that during this latter period, the President's power is not so absolute as in the period prior to annexation. Absolute power, according to American constitutional doctrines, is only justified by military necessity, and, therefore, with the cessation of hostilities and the annexation of the territory by which it is brought within the general province of the American doctrine, there spring up certain limitations upon the President's governing power.13 The extent of these limitations will be discussed in a later chapter dealing with martial and military law, and with the doctrines laid down by the Supreme Court in the "Insular Cases" determining the political status and the civil rights of the inhabitants of the islands acquired in 1898 from Spain.

the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the galaries of the judges and the police, and for the payment of the expenses of the army. Private property taken for the use of the army is to be paid for, when possible, in cash at a fair valuation, and when payment in cash is not possible receipts are to be given. All ports and places in Cuba which may be in the actual possession of our land and naval forces will be opened to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the prescribed rates of duty which may be in force at the time of the importation." Moore Digest of Int. Law, VII, § 1143. The order was issued July 18, 1898.

13 See, for example, the language of the court in Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

CHAPTER XXVIII.

THE ANNEXATION OF TERRITORY BY TREATY.

§ 168. Congressional Action not Needed to Complete Annexation of Territory Acquired by Treaty.

That, under the treaty-making power provided in the Constitution, a foreign country may be brought under the sovereignty of the United States, and thus, from the viewpoint of international law, become a part of it, is, as we have seen, beyond question. In De Lima v. Bidwell,1 one of the "Insular Cases," decided in 1901, was urged the point, however, that, before such an annexed territory can become "domestic" territory and as such be brought, ipso facto, under the operation of the federal laws generally, an act of Congress to that effect is necessary.

Prior to this De Lima case, this question had been several times raised, especially with reference to the immediate applicability of the revenue laws of the United States to annexed territories, but had never been thoroughly discussed, nor had administrative practice always been harmonious with judicial pronouncements, or these judicial pronouncements harmonious with one another.

In Fleming v. Page,2 decided in 1850, it was held, as we have seen, that conquest and military occupation of a foreign district did not, ipso facto, make that district a part of the United States, and, therefore, that duties were properly levied upon goods imported therefrom into the United States under the act of Congress imposing duties upon imports from foreign countries. Taney, however, in his opinion went further than the facts of the case necessitated, and adverted to the circumstance that the administrative department of the government had, as a rule, continued to treat territory acquired by treaty as foreign until Congress by legislation had extended over it its revenue laws.3

1182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.

29 How. 603; 13 L. ed. 276.

3 He said: "This construction of the revenue laws has been uniformly given by the administrative department of the government in every case that

§ 169. Cross v. Harrison.

In Cross v. Harrison, however, decided in 1853, it was held by a unanimous court, including Chief Justice Taney himself, that by the ratification of the treaty of 1848 between Mexico and the United States, California became a part of the United States, and the tariff laws of the United States then in force ipso facto applicable to it.

The treaty which fixed the boundary between Mexico and the United States was ratified May 30, 1848. The de facto military government continued in force after this date, but, after official 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 of the United States had taken possession of Pensacola, it was decided by the Treasury Department, that goods imported from Pensacola before an act of Congress was passed erecting it into a collection district, and authorizing the appointment of a collector, were liable to duty. That is, although Florida had by cession, actually become a part of the United States, and was in our possession, yet under our revenue laws, its ports must be regarded as foreign until they were established as domestic by act of Congress; and it appears that this decision was sanctioned at the time by the Attorney-General of the United States, the law officer of the government. And, although not so directly applicable to the case before us, yet the decisions of the Treasury Department in relation to Amelia Island, and certain ports in Louisiana, after that province had been ceded to the United States, were both made upon the same grounds. And in the latter case, after a custom-house had been established by law at New Orleans, the collector at that place was instructed to regard as foreign ports Baton Rouge and other settlements still in the possession of Spain, whether on the Mississippi, Iberville, or the seacoast. The department in no instance that we are aware of, since the establishment of the government, has ever recognized a place in a newly-acquired country as a domestic port, from which the coasting trade might be carried on, unless it had been previously made so by an act of Congress. The principle thus adopted and acted upon by the Executive Department of the government has been sanctioned by the decisions in this court and the circuit courts whenever the question came before them. We do not propose to comment upon the different cases cited in the argument. It is sufficient to say that there is no discrepancy between them. And all of them, so far as they apply, maintain that under our revenue laws every port is regarded as a foreign one, unless the custom-house from which the vessel clears is within a collection district established by act of Congress, and the officers granting the clearance exercise their functions under the authority and control of the laws of the United States."

416 How. 164; 14 L. ed. 889.

notice of the treaty was received, the commander in charge ceased collecting the military duties which he had been imposing, and substituted therefor duties imposed by the revenue laws of the United States. He reported this to the President and his action was approved. By a letter of October 9, 1848, the Secretary of War instructed the commander that "the government de facto can of course exercise no powers inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the States and Territories of our Union. For this reason no import duties can be levied in California on articles of growth, produce, or manufacture of any State or Territory of the United States, and no such duties can be imposed in any part of the Union on the productions of California; nor can duties be charged on such foreign productions as have already paid duties in any port of the United States." 5

5 The Secretary of the Treasury also at this time issued a circular (October 7, 1848), in which he declared: "By the treaty with Mexico, California is annexed to this Republic, and the Constitution of the United States is extended over that Territory and is in full force throughout its limits." "Congress also," he added, “by several enactments subsequent to the ratification of the treaty, have distinctly recognized California as a part of the Union, and have extended over it in several particulars the laws of the United States. Under these circumstances the following instructions are issued by this Department:

"First. All articles of the growth, produce, or manufacture of California shipped therefrom at any time since the 30th of May last are entitled to admission free of duty into all ports of the United States.

"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. "Third. Although the Constitution of the United States extends to California, and Congress has recognized it by law as a part of the Union and legislated over it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized the appointment of any officers to collect the revenue accruing on the import of foreign dutiable goods into that territory. Under these circumstances, although this Department may be unable to collect the duties accruing on importations from foreign countries into California, yet if foreign dutiable goods should be introduced there and shipped thence to any port or place of the United States they will be subject to duty, as also to all the penalties prescribed by law when such importation is attempted without payment of duties."

Acting in accordance with these instructions, the existing tariff and navigation laws of the United States were enforced by the de facto government. In Cross v. Harrison the legality of this action was sustained. In passing upon the status and power of the government after the treaty of peace, the court said: "It was urged that our revenue laws covered only so much of the territory of the United States as had been divided into collection districts, and that out of them no authority had been given to prevent the landing of foreign goods, or to charge duties upon them, though such landing had been made within the territorial limits of the United States. To this it may be successfully replied that collection districts and ports of entry were no more than designated localities within and at which Congress had extended a liberty of commerce in the United States, and that so much of its territory as was not within any collection district must be considered as having been withheld from that liberty. It is very well understood to be a part of the laws of nations, that each nation may designate, upon its own terms, the ports and places within its territory for foreign commerce, and that any attempt to introduce foreign goods elsewhere within its jurisdiction is a violation of its sovereignty. It is not necessary that such should be declared in terms, or by any degree or enactment, the expressed allowances being the limit of the liberty given to foreigners to trade with such nations. Upon this principle, the plaintiffs had no right of trade with California with foreign goods, excepting from the permission given by the United States under the civil government and war tariff which had been established there. And when the country was ceded as a conquest, by a Treaty of Peace, no larger liberty to trade resulted. By the ratifications of the Treaty, California became a part of the United States. And 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. The right claimed to land foreign goods within the United States at any place out of a collection district, if allowed, would be a violation of that provision in the Constitution.

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