§ 171. Dooley v. United States.

Applying the doctrine of De Lima v. Bidwell, the Supreme Court in another of the Insular Cases (Dooley v. United States), held that though, after the treaty of peace providing for the annexation of Porto Rico, the military government might continue until Congress should provide the island with a civil government (according to the doctrine of Cross v. Harrison), the island was no longer "foreign territory" and, therefore, under the then existing revenue laws of the United States, providing for the levying of customs duties on goods imported from foreign countries, that duties might not be levied upon importations into the United States from Porto Rico, nor from the United States into that island. With reference to these latter, the court said: "The spirit as well as the letter of the tariff laws admits of duties being levied by a military commander only upon importations from foreign countries; and, while his power is necessarily des potic, this must be understood rather in an administrative than in a legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. For instance, it is clear that, while a military commander during the Civil War was in the occupation of a southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. His power to administer would be absolute, but his power to legislate would not be without certain restrictions in other words, they would not extend beyond the necessities of the case. Thus, in the case of The Admittance (Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240) it was held that neither the President nor the military commander could establish a court of prize competent to take jurisdiction of a case of capture, whose judgments would be conclusive in other admiralty courts. It was said that the courts established in Mexico during the war were nothing more than the agents of the military power, to assist it in preserving order in the conquered terri8 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

tory, and to protect the inhabitants in their persons and property, while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize, although Congress, in the exercise of its general authority in relation to the national courts, would have power to validate their action. The Grapeshot, sub nom. The Grapeshot v. Wallerstein, 9 Wall. 129, 19 L. ed. 651. So, too, in Mitchell v. Harmony (13 How. 115; 14 L. ed. 75) it was held that, where the plaintiff entered Mexico during the war with that country, under a permission of the commander to trade with the enemy and under the sanction of the executive power of the United States, his property would not be liable to seizure by law for such trading, and that the officer directing the seizure was liable to an action for the value of the prop erty taken. To the same effect is Mostyn v. Fabrigas, 1 Cowp. 180. In Raymond v. Thomas (91 U. S. 712; 23 L. ed. 434) a special order, by the officer in command of the forces in the State of South Carolina, annulling a decree rendered by a court of chancery in that State, was held to be void. In delivering the opinion Mr. Justice Swayne observed: Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires. Without questioning at all the original validity of the order imposing duties upon goods imported into Porto Rico from foreign countries, we think the proper construction of that order is that it ceased to apply to goods imported from the United States from the moment the United States ceased to be a foreign country with respect to Porto Rico, and that, until Congress otherwise constitutionally directed, such merchandise was entitled to free entry."

6

The same four justices dissented in the Dooley case that had dissented in the De Lima case. The dissent, however, was not

with reference to the validity of the duties levied prior to the ratification of the treaty of peace, but only with reference to those exacted after that date. These, the dissentient judges held to have been validly levied. After summarizing their arguments in the De Lima case, the dissenting opinion declares that, inasmuch as the court had just decided in Downes v. Bidwell that, despite the treaty of cession, Porto Rico had remained in a position where Congress could impose a tariff duty on goods coming from that island into the United States, it should not be held that that island ceased to be "foreign" within, at least, the meaning of the tariff laws. "The command in tariff laws," reads the opinion, "that import duties should be collected on all merchandise coming from foreign countries,' is but a provision that they are to be levied on merchandise arriving from countries which are not a part of the United States, within the meaning of the tariff laws, and which are hence subject to such duties. It must follow that, as long as a locality is in a position where it is subject to the power of Congress to levy an import tariff duty on merchandise coming from that country into the United States, such country must be a foreign country within the meaning of the tariff laws.”

In the case The Diamond Rings,10 decided in 1901, the court applied the doctrine of De Lima v. Bidwell in fixing the status of the Philippine Islands subsequent to the treaty of cession. The fact that resistance on the part of the natives to the control of the United States continued to be made, was held to be without weight."1

9 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088. 10 183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138.

11" The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory, or territory ceded by way of indemnity. The territory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occupied by the troops of the United States during the Mexican war, 'cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was a part.' Thorington v. Smith, 8 Wall. 1; 19 L. ed. 361. The Philippines were not simply occupied, but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation. . The sovereignty of Spain over the Philippines and possession under claim of

§ 172. Duties of President Prior to Congressional Action. The absolute power of Congress to determine the political or governmental rights in annexed territories constitutionally attaches from the moment that they become subject to the sovereignty of the United States. Until Congress exercises this right, however, and provides them with governments and laws, they remain under the control of the federal executive. This duty devolves upon the President as a result from his general obligation to see that the authority and peace of the United States are everywhere maintained throughout its territorial limits. Thus, after the treaty of peace with Spain in 1899, Porto Rico remained under the control of the President until by the act of April 12, 1900, known as the "Foraker Act," Congress provided a government for that island. So also it was by an exercise of the same authority that the President, after the same treaty of cession, appointed commissions for the government of the Philippine Islands.

12

On March 2, 1901, Congress enacted '2 that "All military, civil, and judicial powers necessary to govern the Philippine Islands shall, until otherwise provided by Congress, be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct for the establishment of civil government and for the maintaining and protecting the inhabitants of said islands in the free enjoyment of their title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her, or that uncivilized tribes may have defied her will, did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting. them took nothing less than the whole grant. If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter remained unaffected. We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but on the contrary, that it is preserving order and suppressing insurrection in the territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable."

12 This was as an amendment to the act making appropriation for the support of the army for the fiscal year ending June 30, 1902.

liberty, property, and religion." This act changed the basis of the Philippine government from a presidential to a congressional one, but did not change its form, the President being given by Congress practically the same powers that before that time he had exercised by virtue of his position as Chief Executive.

By the Act of July 1, 1902, entitled "an act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes," Congress not only approved and ratified the previous acts of the Philippine Commission, but went on to define the general lines of action that body should take, especially with regard to the introduction of local self-government as fast as circumstances should warrant. The constitutional source of the power of the United States to establish and maintain governments over territories not annexed to itself but in the possession of its military forces is derived both from the expressed power given it to declare and wage war, and from the fact of its exclusive authority in all that relates to international affairs, which fact, as we have seen, properly implies the right, in the absence of express prohibitions, to exercise all the powers possessed by sovereign States generally.

From this same source was derived the power of the United States to administer Cuba, and to establish consular courts in oriental countries.1 13

13 See chapter XXXV.