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

tion author

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

66

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 Constitu- 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.

revenue.

President

government

over 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 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.

After treaty

"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."

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 of the U.S., 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, which had been instituted during the war, was discontinued. Up to military that time, whether such an intimation had or had not been given, 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.

Civil and

government

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 tuted. 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 President, 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 admit new States into the Union.

ment;

restoration

or by Con

Civil government es

not neces

by political power.

In confirmation of what has been said in respect to the power tablished as of Congress over this territory, and the continuance of the civil gova war right. ernment established as a war right, until Congress acted upon the subject, we refer to two of the decisions of this Court, in one of which it is said, in respect to the treaty by which Florida was ceded to the United States, "This treaty is the law of the land, and Rights of admits the inhabitants of Florida to the enjoyment of the privileges, citizenship rights, and immunities of the citizens of the United States. It is unsarily ac- necessary to inquire whether this is not their condition independcompanied ently of stipulations. They do not, however, participate in political power, they do not share in the government until Florida shall become a State. In the mean time Florida continues to be a territory of the United States, guarded by virtue of that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging Power of to the United States. Perhaps the power of governing a territory governing a belonging to the United States, which has not by becoming a State how it re-acquired the means of self-government, may result necessarily from sults. the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the natural consequences of the right to acquire territory." American Insurance Company vs. Canter, 1 Peters, 542, 543. (See also U. S. vs. Gratiot, 14 Peters, 526.)

territory

When military government in California ceased.

What laws

after con

trade.

"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."

"The second objection states a proposition larger than the case are in force admits, and more so than the principle is, which secures to the inquest. habitants of a ceded conquest the enjoyment of what had been their laws before, until they have been changed by the new sovereignty to which it has been transferred. In this case, foreign Right of the trade had been changed in virtue of a belligerent right, before the terconqueror ritory was ceded as a conquest, and after that had been done by a to regulate treaty of peace, the inhabitants were not remitted to those regulations of trade under which it was carried on whilst they were under Mexican rule; because they had passed from that sovereignty to another, whose privilege it was to permit the existing regulations of trade to continue, and by which only they could be changed. We have said, in a previous part of this opinion, that the sovereignty of a nation regulated trade with foreign nations, and that none could be carried on except as the sovereignty permits it to be done. In our situation, that sovereignty is the constitutional delegation to Congress of the power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.'"

"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 results. The plaintiffs carried these goods

voluntarily into California, knowing the state of things there. They knew that there was an existing civil government, instituted by the authority of the President as commander-in-chief of the army and naval forces of the United States, by the right of conquest; that it had not ceased when these first importations were made; that it was afterwards continued, and rightfully, as we have said, until California became a State, that they were not coerced to land their goods, however they may have been to pay duties upon them; that such duties were demanded by those who claimed the right to represent the United States (who did so, in fact, with most commendable integrity and intelligence); that the money collected. has been faithfully accounted for, and the unspent residue of it received into the treasury of the United States; and that the Congress has by two acts adopted and ratified all the acts of the government established in California upon the conquest of that territory, relative to the collection of imposts and tonnage, from the commencement of the late war with Mexico to the 12th November, 1849, expressly including in such adoption the moneys raised and expended during that period for the support of the actual government of California after the ratification of the treaty of peace with Mexico. This adoption sanctions what the defendant did. It does more; it affirms that he had legal authority for his acts. It coincides with the views which we have expressed in respect to the legal liability of the plaintiff for the duties paid by them, and the authority of the defendant to receive them as Collector of the port of San Francisco."

war are ene

JECKER US. MONTGOMERY, 18 Howard's S. C. Rep. 112. "As a principle applicable to the first of these inquiries, it may All citizens be averred as a part of the law of nations, forming a part, too, of States at of the municipal jurisprudence of every country, "that in a mies of each state of war between two nations, declared by the authority in other. whom the municipal constitution vests the power of making war, the two nations and all their citizens or subjects are enemies to each other." The consequence of this state of hostility is, that all intercourse and communication between them is unlawful. Vide Wheaton on Maritime Captures, ch. 7, p. 209, quoting from Bynkershoeck this passage: Ex natura belli commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli, commercia inter hostes esse vetita, ipsæ indictiones bellorum satis declarant.'

6

"The same rule has been adopted, with equal strictness, by this court. In the case of The Rapid, reported in 8 Cranch, 155, the claimant, a citizen of the United States, had purchased goods in the enemy's country, a long time before the declaration of war, and had deposited them on an island, near the boundary line between the two countries. Upon the breaking out of hostilities, his agent had hired the vessel to proceed to the place of deposit, and bring away these goods. Upon her return, the vessel was captured, and with the cargo was condemned as prize of war for trading with the enemy. In applying the law to this state of facts, this Court said, and said unanimously, "That the universal sense of nations has acknowledged the demoralizing effects that would result from the ad