To show what the learned judge meant when he said in the paragraph quoted by counsel, that the inhabitants became entitled to a threefold protection of the Constitution, the treaty, and the law of nations, I call attention further to his opinion (14 Pet., 417) where he refers to the acts of Congress which applied the ordinance of 1787 to the Territory of Mississippi and the Territory of Orleans. The ordinance of 1787 he declares to have become a part of the Constitution by reason of the sixth article thereof, which says:

"All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the Confederation."

Thus it appears that Mr. Justice Baldwin not only did not refer to the automatic operation of the Constitution in order to raise "this broad panoply" over the rights of the inhabitants of this territory, but he expressly sought for other grounds upon which to consider the Constitution as applicable to them, and found such grounds, first, in the incorporation of the territory into the Union; and secondly, in the extension of the ordinance of 1787 to the territory, that ordinance being, in his opinion, a contract rendered inviolable by the express provision of the Constitution.

Cross v. Harrison.

During the war with Mexico, the territory then known as California and New Mexico was conquered and taken possession of by the military forces of the United States, and administered under the law of belligerent right through officers appointed by the President.

In transmitting to Congress copies of the treaty of peace between the United States and Mexico, July 6, 1848, President Polk declared to Congress that "the war with Mexico having terminated, the power of the Executive to establish or to continue temporary civil government over these territories, which existed under the law of nations whilst they were regarded as conquered provinces in our military occupation, has ceased. By their cession to the United States, Mexico has no longer any power over them, and until Congress shall act the inhabitants will be without any organized government. Should they be left in this condition, confusion and anarchy will be likely to prevail."

From this it appears that President Polk and his advisers were of the opinion that military government, rightly assumed and carried on during the continuance of the war, became, ipso facto, terminated when a treaty of peace was executed and ratified.

Congress, although thus urgently appealed to by the President, failed to pass any law for the government of California and New Mexico until March 3, 1849, when an act was passed making the port of San Francisco a collection district. On September 9, 1850, an act was passed establishing a Territorial government for New Mexico. On the same day an act was passed admitting the State of California into the Union.

Notwithstanding the opinion of President Polk that the temporary civil governments over these territories, which existed under the law of belligerent right, were terminated by the treaty of peace, these governments were continued in operation by the military and other

officers designated by the President until the admission of California into the Union.

The question of the status of the government of California during the interval between the ratification of the treaty of peace and the extension of the revenue laws of the United States to the port of San Francisco came before the Supreme Court of the United States in 1853, in the case of Cross v. Harrison (16 Howard, 164).

In that case the court declared that 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 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 the temporary officers designated by the President were the executives, had its origin in the lawful exercise of a belligerent right over a conquered territory. It was 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.

The claim of the plaintiffs (in Cross v. Harrison) related to:

1. Duties paid by them on goods imported at San Francisco between February 3, 1848 (date of the treaty of peace), and May 30, 1848 (date of exchange of ratifications of treaty).

On this point the court concludes:

"The plaintiffs therefore can have no right to the return of any moneys paid by them as duties on foreign merchandise in San Francisco up to that date. Until that time California had not been ceded in fact to the United States, but it was a conquered territory, within which the United States were exercising belligerent rights, and whatever sums were received for duties upon foreign merchandises they were paid under them."

2. Duties paid by them on goods imported at San Francisco between May 30, 1848 (date of exchange of ratifications), and the date of notification of the ratification to the military governor (August 7, 1848). On this point the decision of the court is:

"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 notification of that fact by our Government to the military goyernor 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.

"It will certainly not be denied that those instructions were binding upon those who administered the civil government in California until they had notice from their own Government that a peace had been finally concluded; or that those who were locally within its jurisdiction, or who had property there, were not bound to comply with those regulations of the government which its functionaries were ordered to execute; or that anyone could claim a right to introduce into the territory of that government foreign merchandise without the payment of duties which had been originally imposed under belligerent rights, because the territory had been ceded by the original possessor and enemy to the conqueror; or that the mere fact of a territory having been ceded by one sovereignty to another opens it to a free commercial intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon which that may be done. There is no such commercial liberty known among nations, and the attempt to introduce it in this instance is resisted by all of those considerations which have made foreign commerce between nations conventional. "The treaty that gives the right of commerce is the measure and rule of that right." (Vattel, c. 8, par. 93.) The plaintiffs in this case could claim no privilege for the introduction of their goods into San Francisco between the ratifications of the treaty with Mexico and the official annunciation of it to the civil government in California, other than such as that government permitted under the instructions of the Government of the United States.

"We must consider them as having paid the duties upon their importations voluntarily, notwithstanding that they protested against the right of the collector to exact them. Their protest was made from a misconception of the principles applicable to the circumstances under which those duties were claimed, and from their misapprehension of what were the commercial consequences resulting from the treaty of peace with Mexico and the cession of California to the United States. That treaty gave them no right to carry foreign goods there upon which duties had not been paid in one of our ports of entry. The best test of the correctness of what has 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."

3. There then remained the claim for duties paid from August 7, 1848, to the time when the revenue system enacted by Congress for California was put into operation.

On this point, and as a summary of the decision on the whole case, the court say:

"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."

Having thus decided the case adversely to the contention of the importers on all points, the court proceeds to discuss the argument of their counsel that the laws of trade remain unchanged in a ceded country until the new sovereign changed them, and this Congress had not done, in which references were made to what was done in North Carolina and Rhode Island and in Louisiana and Florida.

Several considerations are advanced in the opinion as calculated to answer this contention, among them the very obvious and sound and all-sufficient one, that California was a case of conquest, while the others were not.

Among the various suggestions made by the court in opposition to the aforesaid argument of counsel, was the much-quoted dictum:

"By the ratification 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 duty on imposts and tonnage" (p. 197).

Finally the opinion declares:

"But we do not hesitate to say, if the reasons given for our conclusions in this case were not sound, that other considerations would bring us to the same result."

It will be perceived from a study of the case that the tariff law of the United States was not, in that instance, assumed to have been applied, of its own force, to the territory embracing California after the ratification of the treaty. The ratification of the treaty was proclaimed in California August 7, 1848. Up to this time an army officer had been the collector of duties, under a tariff prescribed and laid by the military governor of the Territory. On August 9, 1848, the collector was informed by Lieutenant Halleck, who was the so-called secretary of state of the civil government of California, that he would be relieved as soon as a suitable citizen could be found for his successor. He was also told that the tariff of duties for the collection of military contributions was immediately to cease, and that the revenue laws and tariffs of the United States would be substituted in its place. It was within the undoubted power of the de facto government of California to substitute for the military or war tariff any other system of revenue laws and tariffs which they deemed advisable, and in this instance it appears they did substitute for the war tariff the revenue laws and tariff of the United States. Hence the automatic operation of the tariff laws of the United States was not relied on, but an actual order of substitution was made by the military governor imposing the tariff schedule of the United States as a law upon the Territory.

If the laws of the United States took effect upon California eo instante it became American territory, then the delay in notifying the military governor of the exchange of ratifications could not stay their operation. It would, under such a principle, be possible for an Executive to postpone indefinitely the notification of a treaty of cession, and thereby defeat the operation of the Constitution.

Notwithstanding the fact that a portion of the reasoning of the court is opposed to the doctrine of Insurance Company v. Canter and Fleming v. Page, the decision, as a decision, is sound, and rightly rests upon the war power continued over a ceded conquest until Congress has legislated for it.

This is the view taken by Halleck. (Halleck on International Law.) On page 835 he calls attention to the fact that during the interval of three months which elapsed between the ratification of the treaty of cession of California and its official announcement in California tonnage and import duties were imposed and collected according to the war tariff instead of the tariff of the United States. "If," he says, "the revenue laws extended over California, eo instante, on the ratification of the treaty by which that territory was acquired, these duties were unlawfully collected. It was so claimed by those who had paid them, and suit was brought for their recovery. (Cross v. Harrison, 16 Howard.) This claim of the plaintiffs was distinctly repudiated by the Supreme Court in its opinion."

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It seems to have been overlooked that the treaty with Mexico, discussed in Cross v. Harrison, intended to make, as the court says it did make, the territory in question a part of the United States. This is apparent upon the face of it. Article 4 speaks of Mexicans held as captives by savage tribes "within the limits of the United States, as about to be established by the following article;" and the following article says: "The boundary line between the two Republics shall commence in the Gulf of Mexico thence westwardly along the southern boundary of New Mexico thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean. In order to designate the boundary line with any due precision, upon authoritative maps, and to establish upon the ground land marks which shall show the limits of both Republics." Article 8 speaks of territories previously belonging to Mexico "which remain for the future within the limits of the United States, as defined by the present treaty;" and gives the Mexicans there a right to retain "the title and rights of Mexican citizens, or acquire those of citizens of the United States, their election to be made within one year, those who should remain for a year without having declared their intention to retain the character of Mexicans to "be considered to have elected to become citizens of the United States."

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Article 11 several times expresses the same intent as to the new limits of the United States, and, in fact, the whole treaty is but an agreement (and supreme law) arranging the southwestern boundary of the United States, thereby putting into the United States a former part of the territory and citizens of the Republic of Mexico.