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to say that there are no limitations. They are certainly not those which counsel urge. Besides, the contention of counsel is answered by the Canter case. The difference between military occupation of a territory and its cession at the treaty of peace was noted. “If ceded by the treaty," the court said, “the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or such as its new master may impose.” What is the significance of this? It would seem like useless language; its purpose often defeated if the Constitution and laws of the conqueror, and, to drop from the abstract and supposing this country the conqueror, if our Constitution and laws immediately apply on cession of territory. The terms which may be granted or received would be, to a certain and important extent, predetermined. Neither we nor the conquered nation would have any choice in the new situation—could make no accommodation to exigency, would stand bound in a helpless fatality. Whatever might be the interests, temporary or permanent, whatever might be the condition or fitness of the ceded territory, the effect on it or on us, the territory would become a part of the United States with all that implies. It is only true to say that counsel shrink somewhat from the consequences of their contention, or if "shrink" be too strong an expression, deny that it can be carried to the nationalization of uncivilized tribes. Whether that limitation can be logically justified we are not called upon to say. There may be no ready test of the civilized and uncivilized, between those who are capable of self-government and those who are not, available to the judiciary, or could be applied or enforced by the judiciary. Upon what degree of civilization could civil and political rights under the Constitution be awarded by courts? The question suggests the difficulties, and how essentially the whole matter is legislative, not judicial. Nor can those difficulties be put out of contemplation, under the assumption that the principles which we may declare will have no other consequence than to affect duties upon a cargo of sugar. We need not, however, dwell on this part of the discussion. From our construction of the powers of the government and of the treaty with Spain the danger of the nationalization of savage tribes cannot arise.

These views answer, in our judgment, the chief arguments of the opinion, but to make a complete reply and to justify a different conclusion we should consider and interpret the treaty with Spain. We will, however, not do so now. It has been done in the concurring opinion in Downes v. Bidwell, and it is not necessary to anticipate the statements and reasoning of that opinion.

We said at the outset that it could be demonstrated that Porto Rico occupied a relation to the United States between that of being a foreign country absolutely and of being domestic territory absolutely, and because of that relation its products were subject to the duties

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imposed by the Dingley act. And, concluding, we say, we believe that, in this opinion and the one referred to, we have made that demonstration; made it from the Constitution itself, the immediate and continued practice under the Constitution, judicial authority and the treaty with Spain. And that demonstration does more than declare the legality of the duties which were levied upon the sugars of the plaintiff in error. It vindicates the government from national and international weakness. It exhibits the Constitution as a charter of great and vital authorities, with limitations indeed, but with such limitations as serve and assist government, not destroy it; which, though fully enforced, yet enable the United States to have—what it was intended to have—“an equal station among the Powers of the earth,” and to do all “Acts and Things which Independent States may of right do.” And confidently do, able to secure the fullest fruits of their performance. All powers of government, placed in harmony under the Constitution; the rights and liberties of every citizen secured-put to no hazard of loss or impairment; the power of the nation also secured in its great station, enabled to move with strength and dignity and effect among the other nations of the earth to such purpose as it may undertake or to such destiny as it may be called.

The judgment of the Circuit Court should be affirmed.

True copy.


Clerk Supreme Court, U. S.

Supreme Court of the United States.

No. 456.–OCTOBER TERM, 1900.

Elias S. A. De Lima et al., Plaintiffs ) In error to the Circuit Court in Error,

of the United States for the

Southern District of New George R. Bidwell.



[May 27, 1901.]

Mr. Justice GRAY dissenting.

It ap

I am compelled to dissent from the judgment in this case. pears to me irreconcilable with the unanimous opinion of this court in Fleming v. Page, 9 How. 603, and with the opinions of the majority of the Justices in the case, this day decided, of Downes v. Biduell.

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True copy.


Clerk Supreme Court, U. S.


Supreme Court of

of the

the United


No. 507.--OCTOBER TERM, 1900.

Samuel B. Downes, doing business under in error to the Circuit Court the firm name of S. B. Downes & Com

of the United States for pany, Plaintiffs in Error,

the Southern District of

New York.
George R. Bidwell.


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This was an action begun in the Circuit Court by Downes, doing business under the firm name of S. B. Downes & Co., against the collector of the port of New York, to recover back duties to the amount of $659.35 exacted and paid under protest upon certain oranges consigned to the plaintiff at New York, and brought thither from the port of San Juan in the Island of Porto Rico during the month of November, 1900, after the passage of the act temporarily providing a civil government and revenues for the Island of Porto Rico, known as the Foraker act.

The District Attorney demurred to the complaint for the want of jurisdiction in the court, and for insufficiency of its averments. The demurrer was sustained, and the complaint dismissed. Whereupon plaintiff sued out this writ of error.

Mr. Justice BROWN announced the conclusion and judgment of the


This case involves the question whether merchandise brought into the port of New York from Porto Rico since the passage of the Foraker act, is exempt from duty, notwithstanding the third section of that act, which requires the payment of “fifteen per centum of the duties which are required to be levierl, collected and paid upon like articles of merchandise imported from foreign countries."

1. The exception to the jurisdiction of the court is not well taken. By R. S. sec. 629, subdivision 4, the Circuit Courts are vested with jurisdiction “ of all suits at law or equity arising under any act providing for a revenue from imports or tonnage,” irrespective of the amount involved. This section should be construed in connection with sec. 643, which provides for the removal from State courts to Circuit Courts of the United States of suits against revenue officers on account of any act done under color of his office, or of any such


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