mits it to be done. In our situation that sovereignty is the ‘con-stitutional delegation to Congress of the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."" (P. 196-199.)

For the reasons already suggested, it can not be that the learned judge who delivered the opinion of the Board of Appraisers was right when, after quoting almost as fully as we have done from the opinion in Cross v. Harrison, he said: "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 California with the authority of the Presi dent." (R., p. 18.) This statement is contrary not only to the facts, but to the law, and the court did substantially hold "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."

That the military government continued as a government de facto is expressly admitted in the opinion of the court, and is of course true; that it had any legislative powers whatever is a matter upon which it was necessary for the court to touch, because no claim had been made that it had exercised such powers; and still we are quite ready to concede that so far as local legislation was concerned such a government could exercise legislative power. This concession arises from the necessities of the situation of newly annexed territory and can have no possible application to an attempt to legislate on matters of common and general interest to the new territory and to the nation at large. The case of Leitensdorfer v. Webb (20 How., 176), cited at p. 10 of the record, is therefore not in point. The authorities which control upon this question are those which we have already cited, showing the distinction between the law municipal and the law political, and summed up in the passage already quoted from the opinion of Judge Field in Chicago, &c., Ry. Co. v. McGlinn (114 U. S., 546), which we will venture to repeat here, in part:

"It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another the municipal laws of the country-that is, laws which are intended for the protection of private rights-continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to another, but private property remains as before, and with those municipal laws which are designed to secure its peaceable use and enjoyment.

"As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced.”

The government de facto which necessarily continues to exist until replaced by a new government is, of course, limited in its legislative power to that character of laws which also necessarily and presumptively continue in force until altered; that is to say, to what Judge Field, in the above quotation, called "the municipal laws of the country." But even if general power of legislation is to be inferred in such a de facto government, it would, of course, be preposterous to suppose that it could enact laws in violation either of constitutional provisions or of general national laws, which take effect immediately

upon the annexation. This is the exact theory which was adopted by the Government upon the annexation of California, and which was held in Cross v. Harrison to be the true exposition of the law.

We submit that nothing but "an almost willing misunderstanding" of the opinion of the court can torture it into a declaration of the certainly novel-principle that a military government, left in authority by a declaration of peace and an annexation of the country which it occupies, does not merely continue as the only existing government, for the enforcement of the local laws of the country annexed and the general and national laws of the annexing country, but is vested with general legislative power; or can ignore in it the plain recognition that those general laws of the annexing country, which in terms or by necessity apply to it as a whole, are in force from the time of the annexation.

It will not have escaped the attention of the court that a prominent part in solving the problem of the collection of duties in California was taken by General Halleck, a distinguished authority upon the subject of international law. We refrain from quoting at length his exposition of the case of Cross v. Harrison in his work on International Law, which the court will find in Chapter XXXIII, section 4, 1st edition, p. 815.

The suggestion made in the opinion of the Board of General Appraisers as an argumentum ab inconvenienti that under his power of establishing a war tariff the President might, while he continued to govern in Porto Rico after annexation, have admitted all goods into Porto Rico free of duty, and that, if our argument is sound, goods so admitted would be entitled to free entry into our ports, is easily answered; for, if our argument is sound, it is not true that the President could have admitted goods into Porto Rico free of duty, as our argument assumes that the general tariff laws of the United States imposed a duty upon goods imported there.

The President's power to establish a war tariff and to ordain that there should be no duties on importations into the island-if that power be a consequence of the other-ceased when the treaty became effective.

Dutiable goods brought into a port of the United States where no duties were collectible would simply continue to be subject to duties, wherever taken. This point is fully considered and decided in Cross v. Harrison, and it is there also suggested that such action as that supposed on the part of the President would be "a neglect of his constitutional obligation to take care that the laws be faithfully executed" (p. 198).

8.

Practice of the Government as to California and Alaska.

The case of Cross vs. Harrison shows, among other things, that since 1848 at least the construction of the law upon which the Government has acted has been strictly consonant with our contention, and absolutely discordant with that which Judge Taney imputes to it in the cases of Louisiana and Florida.

Whether upon a question of this character the court would attach much importance to governmental construction may well be doubted, especially in view of the rarity of the cases in which, and of the short

spaces of time within which, there can have been any occasion for applying such construction. But if the question is to be determined by the action of the Government, there is still a further precedent upon which we may rely, in the case of the fourth and only remaining instance in which the question has arisen.

We refer to the action of the Government in regard to Alaska.

The treaty of cession was ratified on June 20, 1867, and possession was delivered at the same time. (Tr. & Conv., p. 939.) No act of Congress extending the revenue laws to Alaska and erecting a collection. district was passed until July 27, 1868. (15 St. at L., 40th Cong., 2d sess.,c. 273, p. 240.) A period of more than one year, therefore, elapsed before Alaska, according to the contention of our opponents, "became a part of the United States for tariff purposes."

And yet during that period goods from Alaska were, under a decision by the Secretary of the Treasury, admitted free of duty.

Synopsis Treasury Decisions, 1868, No. 74, p. 20.

By the courtesy of the Treasury Department we are enabled to quote in full in Appendix II of this brief the letter of the Secretary of the Treasury to the collector of the port of New York, of April 6, 1868, referred to in this citation.

Later, in a question arising as to the extension to Alaska of the general laws relative to Indians, we find the doctrine of Cross v. Harrison applied to that part of the United States by the Secretary of State, Mr. Seward, as follows:

"I understand the decision of the Supreme Court of the United States, in the case of Harrison v. Cross (16 How., 164–202), to declare its opinion that upon the addition to the United States of new territory by conquest and cession, the acts regulating foreign commerce attach to and take effect within such territory ipso facto, and without any fresh act of legislation expressly giving such extension to the preexisting laws. I can see no reason for a discrimination in this respect between acts regulating foreign commerce and the laws regulating intercourse with the Indian tribes. There is indeed a strong analogy in the two subjects. The Indians, if not foreigners, are not citizens, and their tribes have the character of dependent nations under the protection of this Government. As Chief Justice Marshall remarks, delivering the opinion of the Supreme Court in Worcester v. The State of Georgia (6 Peters, 557), 'the treaties and laws of the United States contemplate the Indian Territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union.'

* * *

"The same clause of the Constitution invests Congress with power to regulate commerce with foreign nations with Indian tribes.

and

"The act of June 30, 1834 (4 Stat., 729), defines the 'Indian country' as, in fact, all that part of the United States west of the Mississippi and not within the States of Missouri and Louisiana, or the Territory of Arkansas.' This, by a happy elasticity of expression, widening as our domain widens, includes the terri tory ceded by Russia."

Whart. Dig. Int. Law, § 4, ch. 1, p. 15.

9.

Summary of the argument as to the construction and application of the tariff act.

Whether when the treaty of Paris took effect the island of Porto Rico became a subject province, a dependency, a colony, a territory, or a polity of a sort which can not be precisely defined by any word in our language, it did then immediately become a part of the dominions of this nation, and therefore ceased to be a foreign country; and, as the tariff act imposes duties only on goods brought from foreign countries, the exaction of which we complain was not warranted by law.

This conclusion does not depend upon the question whether, when Porto Rico became part of our dominions, the tariff act took effect in that island. It is a question of an exaction made at the port of New York. No one denies that the tariff act applies there, and the only question is as to the plain meaning of two plain English words.

If, however, it were conceded that those words, when used in a tariff act, have a different meaning than when used anywhere else, and there signify any region, whether within the dominions of the United States or such as in the ordinary use of the words would be called foreign, in which the tariff laws of the United States are not in force, this conclusion is not varied; for immediately upon the annexation, the tariff act, with all other general laws of the United States not locally applicable took effect there; and Porto Rico thereupon, ceased to be a foreign country "within the meaning of " that act.

V.

IN CONCLUSION.

The well-recognized intentions and purposes of the makers of the Constitution, its evident spirit, the plain meaning of its words, the judicial interpretation of its provisions, all lead inevitably, as we think we have demonstrated, to these clear results:

1. The people of the United States, in and by the Constitution, organized and erected one and the same government, of defined and limited powers, for all people who might inhabit within the domains of the nation; exercising in the States, it is true, a part only of the ordinary functions of government, but nowhere capable of exercising any powers except those delegated to it. The whole purpose and theory of the Constitution is the establishment in a permanent form, unalterable except by the people themselves, of fundamental principles of government applicable in all time and in every place.

2. The power to govern the people inhabiting the Territory of the nation, which is delegated by the Constitution to Congress, is, like all other powers, limited and defined by the Constitution; and that branch of the Government, like the others, is incapable of transcending the limits so established.

3. The Constitution limits the general power of taxation delegated by it to the Congress by the mandate that all duties, imposts, and excises shall be uniform throughout the entire domain of the nation.

We believe, however, that we have also succeeded in our endeavor to prove that neither the treaty of Paris nor the act of Congress under color of which the payment was enacted, which the appellant seeks to recover, are capable of the construction that they violated the constitutional provisions which we have just attempted to summarize; that the tariff act as a general law of the United States is also of full force and effect throughout the national domain; that it does not contemplate the imposition of any tax upon goods transported from one place within the limits of that domain to another, and, moreover, that its plain and simple language is not susceptible of the construction that it provides for such a tax.

For the reason, then, that the exaction of which the appellant claims was neither warranted by the law nor sanctioned by the Constitution, it is submitted that the decision of the court below should be reversed. and the cause remanded with the appropriate directions.

EDWARD C. PERKINS,

ALBERT COMSTOCK,
EVERIT BROWN,

Of Counsel with the Appellant.