at the time of the arrival of the goods at the port of New York, a foreign country, but a part of the United States, to which it was ceded. The board is authorized to take judicial cognizance of all laws, executive proclamations, and public documents, showing the political relations of this country to the Kingdom of Spain, and to the island of Porto Rico, which was formerly one of the colonies of that Kingdom. These facts need no affirmative proof (Jones v. United States, 137 U. S., 202; 11 Sup. Ct. Rep., 80).

War was declared between the United States of America and the Kingdom of Spain April 25, 1898 (30 Stat., 364). Military possession was taken of the island by the Army of the United States, and the acquisition of the territory was confirmed by a treaty of peace between the two belligerent governments December 10, 1898. This treaty was ratified by the Senate February 6, 1899, and the ratifications of the two governments were exchanged April 11, 1899, all of which will appear from the proclamation of the President, dated April 11, 1899 (30 Stat., 1754).

Under article II of this treaty, "Spain cedes to the United States the island of Porto Rico" and other islands under Spanish sovereignty. Article IX provides that "the civil rights and political status of the native inhabitants of the territory hereby ceded shall be determined by Congress."

The question presented is whether the cession of the island of Porto Rico, under the terms of this treaty, makes it a part of the United States without further legislation by Congress, in the sense that it has ceased to be a foreign country for tariff purposes, within the meaning of section 1 of the present tariff act.

The Constitution of the United States (article VI, sec. 2) provides that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." This provision has been frequently construed by the Supreme Court of the United States; and it has been held by that court that not all treaties are construed to fall within its scope, but only such as, not being executory in their character, operate within themselves, without the aid of legislative action or provision. When the terms of a treaty import a contract between two nations, by which one or both the contracting parties agree to perform a particular act, it is held accordingly that the treaty addresses itself to the political, not to the judicial, department, and that the legislature must execute the contract before it can become a rule of the court (Foster v. Neilson, 2 Pet., 253). The rule governing treaties under our Constitution is thus stated by Chief Justice Fuller (In re Cooper, 143 U. S., 472, 502):

A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute.

It is manifest that the treaty of Paris contains no provision which regulates the tariff relations of the island of Porto Rico with the United States, or which operates to put in force any particular rates of duty on imported merchandise. It would seem to follow that all such questions, including rights arising under navigation laws, were left, in the language of the treaty itself, "to be determined by the

Congress." (See opinion of Attorney-General Griggs, T. D. 19783, July 30, 1898.)

It is now a settled proposition, no longer subject to dispute, that the General Government of the United States possesses the right to acquire territory, either by conquest or by treaty. While it has been a subject of controversy as to what clause of the Constitution this power is strictly referable, the existence of the power has been settled by unanimous decisions of the courts (2 Story on the Constitution, sec. 1324; Am. Ins. Co. v. Canter, 1 Pet., 511; Romney v. United States, 136 U. S., 1).

It is a matter of public history that the island of Porto Rico, prior to the treaty of peace with Spain, was rescued from the sovereignty of that country by conquest, and was occupied by the Army of the United States, and that the title thus acquired was only confirmed and perfected by the provisions of the treaty itself. We know, further, that the President, in his capacity as commander-in-chief of the United States armies, and in exercise of the war power, has established a so-called war tariff in that island, with a schedule of rates of duty on imported merchandise, separate and distinct from those levied by the Dingley tariff act of 1897. This tariff depends for its validity on military authority, and not on any act of ConThe constitutional right of the President to establish such a war tariff in a conquered territory cannot at this late day be questioned; it was fully sustained by the Supreme Court, in Fleming v. Page (9 How., 603), decided in 1850, and în Cross v. Harrison (16 id., 164), decided in 1853. It was settled by these decisions that a "war tariff," imposing rates of duty either different from or the same as those levied by Congress in a general law, on merchandise imported into the United States, may be established by the President of the United States in his military capacity, and enforced in territory obtained by conquest and occupied by the armies of the United States. And this may be done through the instrumentality either of military officers or of civil appointees. We shall make further reference to other points covered by these two decisions, which are relied upon both by the counsel for the Government and the counsel for the importers to retain their respective contentions.

The authority of the President to establish the war tariff in Porto Rico being assumed to be lawful, as we think it is, a further inquiry is whether this tariff act ceased or terminated ipso facto by reason simply of the cession of the island to the United States April 11, 1899. We have seen that there is nothing in the treaty itself relating to or regulating tariff rates or duties, such as are sometimes found in similar treaties acquiring territory, as in the case of Louisiana in 1803 (2 L. U. S., 251); also, in the joint resolution providing for the annexation of Hawaii in 1898 (30 Stat., 750). The only mode by which such a military government, with its system of tariff and other laws, can be terminated is by action of Congress. This question is discussed to some extent in Leitensdorfer v. Webb (20 How., 176). As appears from the facts of that case, upon the conquest of Mexico by the arms of the United States, in 1846, General Kearney, holding possession of the territory now comprising New Mexico, by virtue of the power of conquest and occupancy, and under the authority of the President, ordained a provisional or temporary government for the acquired country, and promulgated a code of laws

called the Kearney Code. The treaty of peace between the United States and Mexico, embracing the cession of this territory, was signed February 3, 1848. It was contended that, "whatever may have been the rights of the occupying conqueror as such, these were all terminated by the termination of the belligerent attitude of the parties, and that with the close of the contest every institution which had been overthrown or suspended would be revived and re-established." This was answered by the court, per Justice Daniels:

The fallacy of this pretension is exposed by the fact that the territory was never relinquished by the conqueror, nor restored to its original condition of allegiance, but was retained by the occupant until possession was matured into absolute permanent dominion and sovereignty; and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms. We conclude, therefore, that the ordinances and institutions of the provisional government would be revoked or modified by the United States alone, either by direct legislation on the part of Congress or by that of the territorial government in the exercise of powers delegated by Congress.

In other words, it was held that the Kearney Code remained in force until the act of Congress of September 9, 1850, was approved, establishing a territorial government for the Territory of New Mexico, and was repealed then only so far as its provisions conflicted with the act organizing the Territory, or with the laws enacted by the territorial legislature.

This conclusion is in harmony with the rule that "according to the established principles of the laws of nations, the laws of a conquered or ceded country remain in force till altered by the new sovereign' (Mitchell v. United States, 9 Pet., 711); or, as stated by Chancellor Kent (1 Com., 178, n.), "the laws, usages, and municipal regulations in force at the time of the conquest or cession remain in force until altered by the new sovereign." The rule was applied to the Republic of Texas, when certain existing laws were held to remain in force until her admission into the United States as a State, which was effected by a joint resolution of Congress (Calkin v. Cocke, 14 How., 227).

The same result would seem to follow as a corollary, from the power conferred on Congress by the Constitution, "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States" (article IV, section 3).

Speaking of the status of conquered territory and the power of Congress to make rules and regulations for its government, the following language was used by Judge Story (2 Story on the Constitution, 5th ed., sec. 1324):

The territory does not, when so acquired, become entitled to selfgovernment, and it is not subject to the jurisdiction of any State. It must consequently be under the dominion and jurisdiction of the Union, or it would be without any government at all. In cases of conquest the usage of the world is, if a nation is not wholly subdued, to consider the conquered territory as merely held by military occupation until its fate shall be determined by a treaty of peace; but during this intermediate time it is exclusively subject to the government of the conqueror. In cases of confirmation or cession by treaty, the acquisition becomes confirmed and stable, and the ceded territory

becomes a part of the nation to which it is annexed, either on terms stipulated by the treaty, or on such terms as its new master may impose. And, again, the same author observes (ib., sec. 1328):

The power of Congress over the public territory is clearly exclusive and universal, and their legislation is subject to no control, but is absolute and unlimited, unless so far as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it

has been settled.

It has been held by the United States circuit court of appeals, in Endleman v. United States (86 Fed. Rep., 456; 30 C. C. A., 186), that Congress possessed full legislative power over the Territories, unrestricted by the limitations of the Constitution, and on this principle that court sustained the act of Congress of May 17, 1884, prohibiting the sale of liquors in Alaska, under certain regulations set out in the act itself, and which were claimed to be unconstitutional. It was contended that Congress could not impose restrictions of this character upon trade and commerce, and that if it possessed the power to regulate the sale of intoxicating liquors within the Territory, as a police regulation, it could only enact laws applicable to all the Territories alike. The following language was used by the court:

*

The answer to these and other like objections urged in the brief of counsel for defendant is found in the now well-established doctrine. that the Territories of the United States are entirely subject to the legislative authority of Congress. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government as the organic law, but are the creation exclusively of the legislative department, and subject to its supervision and control. The United States, having rightfully acquired the territory, and being the only government which can impose laws upon them, has the entire dominion and sovereignty, national and municipal, Federal and State. Under this full and comprehensive authority, Congress has unquestionably the power to exclude intoxicating liquors from any or all of its Territories, or limit their sale under such regulations as it may prescribe. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the conditions and circumstances of the people. Whether the subject elsewhere would be a matter of local police regulation, or within State control under some other power, it is immaterial to consider. In a Territory all the functions of government are within the legislative jurisdiction of Congress, and may be exercised through a local government, or directly by such legislation as we have now under consideration.

It is not necessary that we should indorse the foregoing decision, as it is not required for us, under the facts of this case, to pass upon its accuracy in stating the principle discussed. Nor need we either affirm or question the principle asserted by Judge Cooley, that "the Constitution was made for the States, not for the Territories," (Cooley on the Constitution, 36). There are many adjudged cases, on the contrary, which hold that Congress cannot legislate for the Territories in a manner violative of certain prohibitions of the Constitution; for example, that Congress cannot pass a law for the government of a Territory which will prohibit the free exercise of religion, or abrogating the freedom of speech or of the press, nor abolishing the right of trial by jury, nor compel one to be a witness against

himself in a criminal proceeding, nor pass an ex post facto law, nor establish slavery except as a punishment for crime, nor violate other fundamental limitations of the Constitution designed to protect the life, liberty, or property of the citizen. (Reynolds v. United States, 98 U. S., 145; Cummings v. Missouri, 4 Wall., 237; Ex parte Garland, b., 333; Ex parte Milligan, b., 3; Webster v. Reid, 11 How., 437; Dred Scott v. Sanford, 19 id., 393; Am. Pub. Co. v. Fisher, 166 U. S., 464; Romney v. United States, 136 id., 1; Murphy v. Ramsey, 114 id., 15, 44; Thompson v. Utah, 170 id., 343; Callan v. Wilson, 120 id., 547.)

Mr. Justice Bradley, in reviewing the authorities on this subject, in Mormon Church v. United States (136 U. S., 1, 44, supra) after asserting that "the power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right of acquiring the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting territory or other property belonging to the United States," observes:

Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers than by any express and direct application of its provisions.

Congress, however, has taken no action to organize a territorial government in Porto Rico; nor has it passed any rules or regulations whatever for its government. It has not undertaken by legislative action to supersede the war tariff or other ordinances or laws promulgated by the military authorities in that island, all of which, we must assume, were necessary and proper for the government of its people in the transition state of the new territory from the status of military occupation to that of civil rule by Congress, under the Constitution. These laws, as we have said, did not cease eo instanti, at the time of the treaty of peace, nor did the military government established on the island terminate. The courts cannot say that Congress has abused its discretion by nonaction, nor can they undertake to fix any period of time within which the rights of that body, under the Constitution, shall be exercised for the government of the territory, which must be deemed to be still in a condition of political pupilage.

The case of Fleming v. Page (9 How., 603), as we have said, has a strong bearing upon the question under consideration. This case arose from the assessment of duties by the collector of customs at the port of Philadelphia on goods brought from Tampico, Mexico, while that place was in the military possession of the Army of the United States, the contention of the importers being that the articles had not been imported from a foreign country," within the meaning of the tariff act of July 30, 1846. But the court held that when Mexico was conquered by the armies of the United States, in 1846, it did not thereby become a part of the Union, but was a foreign country within the meaning of said tariff act, which levied duties on goods imported into the United States from foreign countries. Among other reasons given by Chief Justice Taney, who wrote the opinion of the court in that case, were the following (p. 616):