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repeal, alteration, or suspension of old ones, the extension of acts of Congress, the creation of offices, the imposition of new taxes and the appropriation of their revenue — in fine, the powers of Congress. Sir William Anson says of English practice: “Colonies “acquired by conquest or cession fall at once under “the legislative powers of the Crown in Council, sub"ject always to these limitations, that Parliament "might intervene and make provision for the govern
ment of the colony, and that the Crown could not “make laws 'contrary to the fundamental principles' "of English law, nor presumably enforce such laws “if found among the colonists at the time of ces“sion.”1 The power to legislate for annexed territory thus vested in the Crown in Council is not enjoyed by the President when the United States acquire territory; it vests in Congress, whose jurisdiction attaches at once, and within this jurisdiction there is no room for an executive prerogative of legislation, even
permission of Congress. “That Congress can"not delegate legislative power to the President,” says the Supreme Court, “is a principle univer" sally recognized as vital to the integrity and main“tenance of the system of government ordained by “the Constitution.”3
The prohibition against executive legislation in United States territory is not affected by the judgment of the Supreme Court upon the Kearny Code of New Mexico. This code was promulgated by
1 The Law and Custom of the Constitution, The Crown, ad Ed. 274.
2 See infra, p. 121.
General Stephen M. Kearny in 1846, while in command of our forces in hostile occupation of New Mexico. It was argued that the code lapsed upon the termination of the belligerent status of the territory by its formal cession to the United States, leaving the old Mexican law as the law of the land. But the Court decided that the Kearny Code was entitled to respect as the law in force at the date of cession." Here the Court recognized a code of purely executive, indeed of belligerent, origin; yet its decision is not an authority for the exercise of general legislative powers in annexed territory, for this is a part of the United States, while the Kearny Code was proclaimed in a foreign land. In other words, the powers of legislation which, according to Leitensdorfer v. Webb, may be exercised by the President as commander-in-chief of our forces in belligerent occupation of foreign territory, where Congress has no jurisdiction, are not enjoyed in the United States, where Congress is supreme. Nor is the prohibition affected by the decision in Cross v. Harrison: After the ratification of the treaty ceding California to the United States had been communicated to our military governor in occupation of the territory, he ordered that the duties of the Tariff Act should be collected upon foreign imports, created the office of collector, and appointed a civilian thereto, with a salary. In dismissing a suit for the recovery of duties paid under protest, the Court said: “It has “been sufficiently shown that the plaintiffs had no "right to land their foreign goods in California at “the times when their ships arrived with them, ex
1 Leitensdorfer v. Webb, 20 Howard 176.
“cept by a compliance with the regulations which “the civil government were authorized to enforce“first under a war tariff, and afterward under the
existing Tariff Act of the United States. By the “last, foreign goods, as they are enumerated, are “made dutiable; they are not so because they are
brought into a collection district, but because they “are imported into the United States. The Tariff “Act of 1846 prescribes what that duty shall be. "Can any reason be given for the exemption of for"eign goods from duty because they have not been “entered and collected at a port of delivery? . “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 the “provision in the Constitution which enjoins that all duties, imposts, and excises shall be uniform
throughout the United States. Indeed, it must be “very clear that no such right exists, and that there
was nothing in the condition of California to ex" empt importers of foreign goods into it from the “payment of the same duties which were chargeable “in the other ports of the United States."1 The gist of this paragraph is that a tariff act is so far effective in territory annexed after its passage that the President, in possession, is expected to collect the duties; but the Court did not appear to be thoroughly satisfied with this position, for at the close of the opinion we read: “We do not hesitate to say, if “the reasons given for our conclusions in this case "were not sound, that other considerations would
1 Cross v. Harrison, 16 Howard 164, 198. (The italics are mine.)
“bring us to the same results”; and the last of these considerations, which are generally of a practical nature, is “that the Congress has by two acts
adopted and ratified all the acts of the government "established in California upon the conquest of that “ “territory, relative to the collection of imposts and tonnage from the commencement of the late war “with Mexico to the 12th November, 1849, ex' pressly including in such adoption the moneys raised “and expended during that period for the support of “the actual government of California after the ratifi“cation of the treaty of peace with Mexico. This "adoption sanctions what the defendant did. It “does more — it affirms that he had legal authority “for his acts." From the opinion in Cross v. Harrison we gain the impression that these acts of the President in California were made good by Congress, rather than warranted by his own powers.
In applying the rule that the President is without legislative power in United States territory to the present case, I do not suggest an invariable test by which administrative decrees issued from Washington directly, or through the military government in the islands, are to be approved as executive regulations or condemned as acts of legislation. It is sufficient to know that decrees plainly of the forbidden sort are promulgated in the Philippines.
The remarkable instance is the legislative activity of the Commission now installed in the Philippines. The First Philippine Commission was appointed before the ratifications of the Treaty of Paris had formally completed our legal title to the islands. It was instructed to investigate, to conciliate, to report recommendations, but not to govern. The very different office of the present Commission is indicated by the following passage from the President's instructions of April 7, 1900: “Beginning with the “ first day of September, 1900, the authority to “exercise, subject to my approval, through the Sec“retary of War, that part of the power of govern“ment in the Philippine Islands which is of a “legislative nature is to be transferred from the
Military Governor of the islands to this Com"mission, to be thereafter exercised by them in the “place and stead of the Military Governor, under "such rules and regulations as you shall prescribe, "until the establishment of the civil central
govern“ment for the islands contemplated in the last fore“going paragraph, or until Congress shall otherwise “provide. Exercise of this legislative authority will “include the making of rules and orders, having the “effect of law, for the raising of revenue by taxes, “customs duties, and imposts; the appropriation and
expenditure of public funds of the islands; the “establishment of an educational system throughout “the islands; the establishment of a system to se"cure an efficient civil service; the organization and “establishment of courts; the organization and es“tablishment of municipal and departmental gov“ernments; and all other matters of a civil nature “ for which the Military Governor is now competent “to provide by rules or orders of a legislative "character." 2
1 See Report of the Philippine Commission, I, 185.