ernment to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens.

A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest, or the acquisition of territory nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the move- Powers ments of the naval and military forces placed by law at his command, dentasComand to employ them in the manner he may deem most effectual to har- mander-inass and conquer and subdue the enemy. He may invade the hostile Chief to country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this employ it, Union, nor extend the operation of our institutions and laws beyond invade, to the limits before assigned to them by the legislative power.

of the Presi

govern the

army and

to

subjugate,

tend the

It is true that, when Tampico had been captured, and the State not to exof Tamaulipas subjugated, other nations were bound to regard the limits of country, while our possession continued, as the territory of the Union. United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor main- Tampico tains the exclusive possession of the conquered country. The cit- ours, as against for izens of no other nation, therefore, had a right to enter it without eign counthe permission of the American authorities, nor to hold inter- tries. course with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.

But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States while it was occupied by their arms, did not depend upon the laws of nations, but upon our own Constitution and Acts of Congress. The power of the President, under which Tampico and the State of Tamaulipas were conquered and held in subjection, was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they were in an enemy's country, and not their own: the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy when he surrenders to a force which he is unable resist. But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest; nor could they be regulated by the varying incidents of war, and

be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign, nor did our laws extend over it. Tampico was therefore a foreign port when this shipment was made.

Again, there was no Act of Congress establishing a customhouse 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 Collection person who acted in the character of collector in this instance, acted of duties by as such under the authority of the military commander, and in obedimilitary authority. ence 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 custom-house was established in an enemy's country, as one of the weapons of war. It was established, not for the purpose of giving to the people of Tamaulipas the benefits of commerce with the United States, or with An act of other countries, but as a measure of hostility, and as a part of the military operations in Mexico; it was a mode of exacting contributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and burdens of the war. The duties required to be paid were regulated with this view, and were nothing more than contributions levtions may ied upon the enemy, which the usages of war justify when an army is operating in the enemy's country. 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 Acts of Congress, when the vessel is engaged in the coasting trade, nor could they exempt the cargo from the payment of duties.

hostility.

Contribu

be levied.

This construction of the revenue laws has been uniformly given by the Administrative Department of the government in all cases that have 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 an Act of Congress, and it appears that this decision was sanctioned at the time by the AttorneyGeneral 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 custom-house had been established by law at New Orleans, the collector at that place was instructed to regard as foreign ports Baton Rouge and other set

tlements still in the possession of Spain, whether on the Mississippi, Iberville, or the sea-coast. 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.

In the view we have taken of the question, it is unnecessary to notice particularly the passages from eminent writers on the laws of nations which were brought forward in the argument. They speak altogether of the rights which a sovereign acquires, and the powers he may exercise in a conquered country, and they do not bear upon the question we are considering. For in this country the sovereignty of the United States resides in the people of the several States, and they act through their representatives, according to the delegation and distribution of powers contained in the Constitution. And the constituted authorities to whom the power of making war and concluding peace is confided, and of determining whether a conquered country shall be permanently retained or not, neither claimed nor exercised any rights or powers in relation to the territory in question, but the rights of war. After it was subdued, it was uniformly treated as an enemy's country, and restored to the possession of the Mexican authorities when peace was concluded. And certainly its subjugation did not compel the United States, while they held it, to regard it as a part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws.

Neither is it necessary to examine the English decisions which have been referred to by counsel. It is true that most of the States have adopted the principles of English jurisprudence so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions, not only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the Government are brought into question. Our own Constitution and form of government must be our only guide. And we are entirely satisfied that under the Constitution and laws of the United States Tampico was a foreign port, within the meaning of the Act of 1846, when these goods were shipped, and that the cargoes were

Constitu

liable to the duty charged upon them. And we shall certify accordingly to the Circuit Court.

CROSS VS. HARRISON, 16 Howard's S. C. Rep. 189.

"Indeed, from the letter of the then Secretary of State, and from that of the Secretary of the Treasury, 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 ized acts of was a rightful and correct recognition under all the circumstances, military and when we say rightful, we mean that it was constitutional, algovernment In collecting though Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California.

tion author

revenue.

President

government fornia.

California, or the port of San Francisco, had been captured by the arms of the United States as early as 1846. Shortly afterward, the United States had military possession of all of Upper Belligerent California. Early in 1847, the President, as constitutional Comright of the mander-in-Chief of the army and navy, authorized the military and to institute naval commander of our forces in California to exercise the belligermilitary ent rights of a conqueror, and to form a civil government for the conand civil quered country, and to impose duties on imports and tonnage as over Cali- military contributions for the support of the government and of the army which had the conquest in possession. We will add, by way of note, to this opinion, references to all of the correspondence of the government upon this subject; now only referring to the letter of the Secretary of War to General Kearney, of the 10th of May, 1847, which was accompanied with a tariff of duties on imports and tonnage, which had been prepared by the Secretary of the Treasury, with forms of entry and permits for landing goods, all of which was reported by the Secretary to the President on the 30th of March, 1847. Senate Doc. No. 1, 1st Sess., 30th Congress, No doubt of 1847, pp. 567,583. No one can doubt that these orders of the Presiauthority. dent, and the action of our army and navy commander in California in conformity with them, were 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.

of the U. S.,

"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."

After treaty But after the ratification of the treaty, California became a part of California the United States, or a ceded, conquered territory. Our inquiry here became part is to be whether or not the cession gave any right to the plaintiffs a ceded con- to have the duties restored to them which they may have paid bequered tertween the ratifications and exchange of the treaty and the notifiritory. cation 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, Civil and which had been instituted during the war, was discontinued. Up to military that time, whether such an intimation had or had not been given, government during the duties had been collected under the war tariff, strictly in conforwar insti- mity with the instructions which had been received from WashPresident. ington.

tuted by the

The ratification of the treaty of peace was proclaimed in California by Colonel Mason, on the 7th of August, 1848. Up to this time, it must be remembered that Captain Folsom, of the Quartermaster's Department of the Army, had been the collector of duties under the war tariff. On the 9th of August he was informed by Lieut. Halleck, of the Engineer Corps, who was the 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 tariff of the United States will be substituted in its place." The view taken by Governor Mason of his position has been given in our statement. The result was to continue the existing government, as he had not received from Washington definite instructions in reference to the existing state of things in California.

His position was unlike anything that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties both as regards the principle upon which he should act, and the actual state of affairs in California. He knew that the Mexican inhabitants of it had been remitted by the treaty of peace to those municipal laws and usages which prevailed among them before the territory had been ceded to the United States, but that a state of things and population had grown up during the war, and after the treaty of peace, which made some other authority necessary to maintain the rights of the ceded inhabitants and of immigrants, from misrule and violence. He may not have comprehended fully the principle applicable to what he might rightly do in such a case, but he felt rightly, and acted accordingly. He determined, in the absence of all instruction, to maintain the existing government. 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 gov- Origin of ernment of which Colonel Mason was the executive, had its origin this governin the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the Presi- How instident 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, It did not or as a necessary consequence of the restoration of peace. The cease by President might have dissolved it by withdrawing the army and navy of peace; officers who administered it, but he did not do so. Congress could Dissolved have put an end to it, but that was not done. The right inference by power of from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary gress. intention can be made. Whatever may have been the causes of the 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 a state government which was subsequently recognized by Congress under its power to a lmit new States into the Union.

11

ment;

tuted.

restoration

President,

or by Con