President, as commander-in-chief, were unlimited in the sense that he could exact any impost duty that he saw fit upon any merchandise coming into the island from anywhere, simply because, as already stated, at that time, Porto Rico was a foreign territory in the military possession-not within the sovereignty of the United States. After the acquisition, however, the military powers of the President in this respect were restricted to the imposition of duties upon merchandise imported into the island from foreign countries only; for, as said by Mr. Justice Brown in that case, "the spirit as well as the letter of the tariff laws admit of duties being levied by a military commander only upon importations from foreign countries." And this, of course, made the decision of the case turn upon the question whether Porto Rico was a "foreign country" within the meaning of the tariff laws of the United States, the same as in the De Lima case, now under consideration. Said Mr. Justice Brown in this case:

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 status of Porto Rico 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 Rico, 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 has been ceded to us, the cession accepted, possession delivered, and the island occupied and administered without interference by Spain or any other Power, was a foreign country or domestic territory, it would seem that there could be as little hesitation in answering this question as there would be in determining the ownership of a house deeded in fee simple to a purchaser who had accepted the deed, gone into possession, paid taxes and made improvements without let or hindrance from his vendor. But it is earnestly insisted by the government that it never could have been the intention of Congress to admit Porto Rico into a customs union with the United States, and that, while the island may be to a certain extent domestic territory, it still remains a "foreign country" under the tariff laws, until Congress has embraced it within the general revenue system.

After reviewing a number of cases previously decided by the Supreme Court, involving questions of this character, and certain regulations of

the executive departments relating to the only possessions in connection with which the question of the status of newly acquired territory previous to any action by Congress had arisen, and which were supposed to favor the contention of the government, as well as the construction put upon this question by Section 2 of the Foraker Act 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," he said:

From this résumé 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 a 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. 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. But were this presented as an original question we should be impelled irresistibly to the same conclusion.

*

*

Then he proceeded to emphasize the importance and binding force of a treaty as being, constitutionally, placed upon the same footing and made of like obligation, with an act of legislation, and said that 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; 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.

"It follows from this," he said, "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."

That the territory thus acquired is subject to the legislative authority of Congress is made apparent by the court; in fact Mr. Justice Brown said:

It is an authority which arises, not necessarily from the territorial clause of the Constitution, but from the necessities of the case, and

from the inability of the States to act upon the subject. Under this authority Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. In short, when once acquired by treaty, such territory belongs to the United States, and is subject to the disposition of Congress.

Then he went on to say that 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, he said, was obviously untenable, because 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. "So when the Constitution of the United States declares in Article 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 restriction ceases to operate the moment such territory is admitted as a State." By parity of reasoning, he said, 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." Reverting to the other alternative of his proposition, he said:

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 be continued 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.

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 acts making appropriations for its postal service, for the establishment of lighthouses, for the maintenance of quarantine stations, for erecting public buildings, have that effect? Will an act establishing a complete local government, but with the reservation of a right to collect duties upon commerce, be adequate for that purpose? None of these, nor all together, will be sufficient, if the contention of he Government be sound, since acts embracing all these provisions have been passed in connection with Porto Rico, and it is insisted that it is still a foreign country within the meaning of the tariff laws. We are unable to acquiesce in this assumption that a territory may be at the same time both foreign and domestic.

In conclusion, the court was of opinion that at the time these duties were levied Porto Rico 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 were entitled to recover them.

Mr. Chief Justice Fuller, Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice Peckham concurred in this opinion without adding a single remark to it.

Mr. Justice McKenna, with whom concurred Mr. Justice Shiras and Mr. Justice White, delivered a dissenting opinion, in which, to begin with, he refutes the contention that in order to settle the controversy in this litigation it was enough to settle whether Porto Rico was foreign country or domestic territory, "to use the antithesis of the opinion of the court," and, outlining the same reasoning for the doctrines in the Downes case, he asks whether these expressions "foreign" or "domestic" are to be taken abstractly and unqualifiedly-to the full extent that those words implied or limitedly, in the sense that the word “foreign" is used in the customs laws of the United States. "If abstractly," he says, "the case turns upon a definition, and the issue becomes single and simple. If at the time the duties, which are complained of, were levied, Porto Rico was as much a foreign country as it was before the war with Spain, if it was 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 intentions, it could not be applied. Between these extremes there are other relations, and that Porto Rico occupies one of them and its products hence were subject to duties under the Dingley Tariff Act can be demonstrated."

Then he proceeds to discuss the statements of the court and refers at great length to the cases of Fleming v. Page, United States v. Rice, and Cross v. Harrison, examined by the court, and reaches the conclusion that Porto Rico did not become territory of the United States by the mere effect of the treaty and its ratification, and that congressional action was necessary before it could become incorporated as a part of the territory of the United States and thereby cease to be foreign so far as the revenue laws of the United States were concerned.

Mr. Justice Gray wrote a separate dissenting opinion in which he merely said that he was compelled to dissent from the judgment in this case, because it appeared to him irreconcilable with the unanimous opinion of the court in Fleming v. Page and with the opinion of the majority of the justices in the case, the same day decided, of Downes v. Bidwell.

PEDRO CAPÓ-RODRÍGUEZ.

(To be continued in the next number.)