Again, there was no act of Congress establishing a custom-house at Tampico, nor authorizing the appointment of a collector; and consequently there was no officer of the United States authorized by law to grant the clearance and authenticate the coasting manifest of the cargo, in the manner directed by law, where the Voyage is from one port of the United States to another. The person who acted in the character of collector in this instance acted as such under the authority of the military commander, and in obedience to his orders; and the duties he exacted and the regulations he adopted were not those prescribed by law, but by the President in his character of Commander-in-chief. The permit and coasting manifest granted by an officer thus appointed and thus controlled by military authority could not be recognized in any port of the United States as the documents required by the act of Congress when the vessel is engaged in the coasting trade, nor could they exempt the cargo from the payment of duties.

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quote further from the opinion of the court, as follows:

This construction of the revenue laws has been uniformly given by the administrative department of the Government in every case that 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, that 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 customhouse 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 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.

The case of Cross v. Harrison (16 How., 164) involved the question of the legality of continuing, after peace, the government which had been established in Upper California during the war with Mexico. The decision was rendered by a court composed of seven of the nine judges that sat in the case of Fleming v. Page (supra), and was promulgated only about three years later than that decision, to which the attention of the court was repeatedly cited in the briefs of counsel.

The President of the United States had authorized the military and naval commanders, in the exercise of the belligerent rights of the conqueror, to establish a civil and military government for the conquered territory, with power to impose duties on imports and tonnage, for the support of such government. A "war tariff" was promulgated under this authority, and one Harrison was appointed collector of customs, and proceeded to collect certain duties on foreign merchandise imported into San Francisco, in obedience to the law and instructions of the government existing in the conquered territory. On February 3, 1848, a treaty of peace was made between the United States and Mexico. On March 3, 1849, an act of Congress was passed, making San Francisco one of the regular collection districts of the United States, and on November 13, 1849, one Collier entered upon the duties of his office as collector, having been duly appointed by the President.

The duties in question were collected by Harrison, and comprised two classes:

(1.) Those that accrued between February 3, 1848, the day on which the treaty of peace and the cession of California to the United States was signed, and on March 3, 1849, the day on which the act of Congress was approved, constituting Sar. Francisco a port of entry.

(2.) Those that accrued between March, 1849 (when the said act of Congress was passed, making California a collection district), and November 13, 1849, when the new collector (Collier) appointed under the act arrived at San Francisco and entered on the duties of his office. These duties had been paid under two separate tariff acts—

(1.) Under the special war tariff" which had been established by the military, under the authority of the President, and which prevailed "until some time in the fall of 1848."

(2.) At the rates prescribed by the tariff act of 1846, which had been enacted by Congress, but had been authorized by Colonel Mason, the military governor of California, on his receiving information of the exchange of ratifications of the treaty with Mexico. "This was done with the assent of the Executive of the United States, or without any interference to prevent it."

It was said by Mr. Justice Wayne, speaking for the court, in reference to the substitution of the rates of the tariff act of 1846 for those of the war tariff:

We cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct recognition, under all the circumstances, and when we say rightful we mean that it was constitutional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California.

It was held by the court that no recovery would lie by the appellant

Cross against Harrison for the duties levied under the war tariff, or under the tariff act of 1846. As to the war tariff, it was said:

No one can doubt that these orders of the President, and the action of our army and navy commander in California, in conformity with them, was according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty

of peace.

In reference to the duties collected after the cession of California, the following language is used (pp. 191 et seq.):

But after the ratification of the treaty, California became a part of the United States, or a ceded conquered territory. Our inquiry here is to be whether or not the cession gave any right to the plaintiffs to have the duties restored to them, which they may have paid between the ratifications and exchange of the treaty and the notifications of that fact by our Government to the military governor of California. It was not received by him until two months after the ratification, and not then with any instructions or even remote intimation from the President that the civil and military government, which had been instituted during the war, was discontinued. Up to that time, whether such an intimation had or had not been given, duties had been collected under the war tariff, strictly in conformity with the instructions which had been received from Washington.

That treaty gave them no right to carry foreign goods there (that is, into California) upon which duties had not been paid in one of our ports of entry. The best test of the correctness of what has just been said is this: That if such goods had been landed there duty free, they could not have been shipped to any other port in the United States without being liable to pay duty.

The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise, of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the Government. And the more so, as it was continued until the people of the Territory met in convention to form H. Doc. 509- -2

a State government, which was subsequently recognized by Congress, under its power to admit new States into the Union.

Our conclusion from what has been said is that the civil government of California, organized as it was from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty or from its ratification. We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it the duties upon foreign goods imported into San Francisco were legally demanded and lawfully received by Mr. Harrison, the collector of the port, who received his appointment, according to instructions from Washington, from Governor Mason.

After again asserting "the belligerent right of the United States to make a civil government in California," and that "collection districts and ports of entry are no more than designated localities within and at which Congress has 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 said (p. 197):

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 latter paragraph of Mr. Justice Wayne's opinion is relied on as sustaining the appellants' contention in the present case, that no duty can be lawfully assessed on these importations made from Porto Rico since the ratification of the treaty of peace with Spain; and, also, the following (p. 198):

Indeed, it must be very clear that no such right exists, and that there was nothing in the condition of California to exempt importers of foreign goods into it from the payment of the same duties which were chargeable in the other ports of the United States.

The ratifications of the treaty made California a part of the United States, and that as soon as it became so the territory became subject to the acts which were in force to regulate foreign commerce with the United States, after those had ceased which had been instituted for its regulation as a belligerent right.

These views must be interpreted in the light of the fact that the tariff act of 1846 was put in operation by the military governor of Cali fornia, with the authority of the President. There is no decision, therefore, that this act was operative ex proprio vigore, on the mere cession of California to the United States under the provisions of the treaty of peace. The contrary would appear from the last part of Mr. Justice Wayne's opinion, which reviews the history of tariff legislation in reference to the cases of Louisiana, Florida, and the other territory

acquired by treaty, from which it appears that these territories were "not considered, in a fiscal sense, as a part of the United States," and that goods brought from there were held dutiable until Congress had by special legislation extended our revenue system over them by establishing ports of entry and the President had appointed collectors of customs to execute these laws. The last two headnotes of the case, presumably prepared with the approbation of the court, read as follows:

The formation of the civil government in California, when it was done was the lawful exercise of a belligerent right over a conquered territory. It was the existing government when the territory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consequence of the restoration of peace; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

The tonnage duties, and duties upon foreign goods imported into San Francisco, were legally demanded and lawfully collected by the civil governor, whilst the war continued, and afterwards, from the ratification of the treaty of peace until the revenue system of the United States was put into practical operation in California, under the acts of Congress passed for that purpose.

We have discussed this case of Cross v. Harrison more at length because it is relied on in this case as an authority in support of the contentions both of the Government and of the importers, and contains the most elaborate discussion of the questions at issue of any reported decision of the Supreme Court.

Our conclusion is that while Porto Rico was unquestionably a part of the United States in the sense that it was owned by this Government and was completely under its sovereignty, yet inasmuch as it had not been brought under the domain of the nation by special legislative action of Congress, that it was foreign to the United States for fiscal or tariff purposes.

A question somewhat different would be presented had Congress undertaken to exercise its constitutional right to pass laws for the government of this newly acquired territory, and had passed a tariff act extending over the island, with rates of duty different from those imposed by the general tariff laws applicable to other parts of the country. The Constitution (article I, section 8) provides that "all duties, imposts and excises shall be uniform throughout the United States." Whether, in such case, Porto Rico would fall within the provisions of this clause of the Constitution, as being a part of the United States, does not arise in this case, and we decline for this reason to express any opinion on the subject.

We can find no instance in which territory has ever been acquired by the United States by conquest, treaty, or purchase where Congress has not seen fit by special legislation to extend tariff, navigation, and other laws of the United States to the territory thus acquired. This seems to be true from the time of the adoption of the Constitution by North Carolina and Rhode Island, and the admission of those States into the Union in 1790 (1 Stat., 178), down to the recent acquisition of Hawaii (30 Stat., 750). The same course was pursued in reference to Louisiana, Florida, Texas, and Alaska. We can perceive no difference