This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
In De Lima v. Bidwell,6 with reference to the island of Porto Rico, the court held itself governed by the doctrine declared in Cross v. Harrison. It agreed with the declaration in Fleming v. Page that by mere military occupation a port did not become "domestic," and as such subject to the general revenue laws of the United States, but with reference to the dictum of Taney that it remained foreign because the United States customs laws had not been formally extended over it, the majority in their opinion observed: "While we see no reason to doubt the conclusion of the court that the port of Tampico was still a foreign port, it is not perceived why the fact that there was no act of Congress establishing a custom-house there, or authorizing the appointment of a collector, should have prevented the collector appointed by the military commander from granting the usual documents required to be .issued to a vessel engaged in the coasting trade. A collector, though appointed by a military commander, may be presumed to have the ordinary power of a collector under an act of Congrt with authority to grant clearances to ports within the United States, though, of course, he would have no power to make a domestic port of what was in reality a foreign port."7
6 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.
After quoting at length, and with approval, from Cross r. Harrison, the majority opinion continues: "The opinion, which is quite a long one, establishes the three following propositions: (1) That under the war power the military governor of California was authorized to prescribe a scale of duties upon importations from foreign countries to San Francisco, and to collect the same through a collector appointed by himself, until the ratification of the treaty of peace. (2) That after such ratification duties were legally exacted under the tariff laws of the United States, which took effect immediately. (3) That the civil government established in California continued, from the necessities of the case, until Congress provided a territorial government. It will be seen that the three propositions involve a recognition of the fact that
California became domestic territory immediately upon the ratification of the treaty, or, to speak more accurately, as soon as this was officially known in California. The doctrine that a port ceded to and occupied by us does not lose its foreign character until Congress has acted and a collector is appointed was distinctly repudiated with the apparent acquiesence of Chief Justice Taney, who wrote the opinion in Fleming v. Page, and still remained the Chief Justice of the court. The opinion does not involve directly the question at issue in this case; whether goods carried from a port in- a ceded territory directly to New York are subject to duties, since the duties in Cross v. Harrison were exacted upon foreign goods imported into San Francisco as an American port; but it is impossible to escape the logical inference from that case that goods carried from San Francisco to New York after the ratification of the treaty would not be considered as imported from a foreign country."
7 See ante, p. 384. for manner in which the court harmonizes the doctrine stated in U. S. v. Rice with that declared in Fleming v. Page.
The court then examines the practice and rulings of the executive department of the United States with respect to the status of newly acquired territories prior to their status being settled by acts of Congress and finds these rulings and practice, with the single exception of an order of Secretary of State Gallatin in 1803, to be in conformity with the position of the court in Cross v. Harrison.
As showing the construction put upon this question by the legislative department, the court quotes from section 2 of the Foraker Act establishing civil government in Porto Rico, which "makes a distinction between foreign countries and Porto Rico, by enacting that the same duties shall be paid upon 'all articles imported into Porto Rico from ports other than those of the United States, which are required by law to be collected upon articles imported into the United States from foreign countries.' "
The opinion, then, summing up the precedents, says: "From this resume of the decisions of this court, the instructions of the executive department, and the above act of Congress, it is evident that, from 1803, the date of Mr. Gallatin's letter, to the present time, there is not a shred of authority, except the dictum in Fleming v. Page (practically overruled in Cross v. Harrison), for holding that a district ceded to and in the possession of the United States remains for any purpose a foreign country. Both these conditions must exist to produce a change of nationality for revenue purposes. Possession is not alone sufficient as was held in Fleming v. Page; nor is a treaty ceding such territory sufficient without a surrender of possession. Keene v. M'Donough, 8 Pet. 308; 8 L. ed. 955; Pollard v. Kibbe, 14 Pet. 353; 10 L. ed. 490; Hallett v. Doe ex dem. Hunt, 7 Ala. 899; The Fama, 5 C. Rob. 106. The practice of the executive departments, thus continued for more than half a century, is entitled to great weight, and should not be disregarded nor overturned except for cogent reasons, and unless it be clear that such construction be erroneous. United States v. Johnston, 124 U. S. 236; 8 Sup. Ct. Rep. 446; 31 L. ed. 389, and other cases cited."
The court then goes on to declare that even were the question presented as an original one, it would be irresistibly impelled to the conclusion which the precedents had furnished. This result, it is argued, is deducible from the fact that by the Constitution treaties equally with acts of Congress are declared to be the supreme law of the land, and that one of the ordinary inci dents of a treaty is the cession of territory. "The territory thus acquired is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress."
"The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union presupposes that a country may be domestic for one purpose and foreign for another. It may undoubtedly become necessary, for the adequate administration of a domestic territory, to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States. . . . This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the nonaction of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words."