tional law applicable to the status of the Spanish subjects and of the native inhabitants. It did not assume that Congress could deprive the inhabitants of ceded territory of rights to which they might be entitled. The grant by Spain could not enlarge the powers of Congress, nor did it purport to secure from the United States a guaranty of civil or political privileges.

"Indeed a treaty which undertook to take away what the Constitution secured or to enlarge the Federal jurisdiction would be simply void.

"It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.' The Cherokee Tobacco, 11 Wall. 620. (Citing also Mr. Justice Field in Geofroy vs. Riggs, 133 U. S. 258, p. 267. See § 335, p. 23, vol. II).

"And it certainly cannot be admitted that the power of Congress to lay and collect taxes and duties can be curtailed by an arrangement made with a foreign nation by the President and two-thirds of a quorum of the Senate. See 2 Tucker on the Constitution, §§ 354, 355, 356."

The opinion concludes by attempting to refute the views expressed in Justice White's opinion as follows (182 U. S. p. 373):

"The concurring opinion recognizes the fact that Congress, in dealing with the people of new territories or possessions, is bound to respect the fundamental guarantees of life, liberty, and property, but assumes that Congress is not bound, in those territories or possessions, to follow the rules of taxation prescribed by the Constitution. And yet the power to tax involves the power to destroy, and the levy of duties touches all our people in all places under the jurisdiction of the government.

"The logical result is that Congress may prohibit commerce altogether between the States and territories, and may prescribe one rule of taxation in one territory, and a different rule in another.

"That theory assumes that the Constitution created a government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original States and territories, and substitutes for the present system of republican government, a system of domination over distant provinces in the exercise of unrestricted power.

"In our judgment, so much of the Porto Rican act as authorized the imposition of these duties is invalid, and plaintiffs were entitled to

recover.

"Some argument was made as to general consequences apprehended to flow from this result, but the language of the Constitution is too plain and unambiguous to permit its meaning to be thus influenced. There is nothing in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution' in giving it a construction not warranted by its words.

"Briefs have been presented at this bar, purporting to be on behalf of certain industries, and eloquently setting forth the desirability that our government should possess the power to impose a tariff on the

products of newly acquired territories so as to diminish or remove competition. That, however, furnishes no basis for judicial judgment, and if the producers of staples, in the existing States of this Union, believe the Constitution should be amended so as to reach that result, the instrument itself provides how such amendment can be accomplished. The people of all the States are entitled to a voice in the settlement of that subject.

"Again, it is objected on behalf of the government that the possession of absolute power is essential to the acquisition of vast and distant territories, and that we should regard the situation as it is to-day rather than as it was a century ago. We must look at the situation as comprehending a possibility-I do not say a probability, but a possibility that the question might be as to the powers of this government in the acquisition of Egypt and the Soudan, or a section of Central Africa, or a spot in the Antarctic Circle, or a section of the Chinese Empire.'

"But it must be remembered that, as Marshall and Story declared, the Constitution was framed for ages to come, and that the sagacious men who framed it were well aware that a mighty future waited on their work. The rising sun to which Franklin referred at the close of the convention, they well knew, was that star of empire, whose course Berkeley had sung sixty years before.

"They may not indeed have deliberately considered a triumphal progress of the nation, as such, around the earth, but, as Marshall wrote: It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception.'

"This cannot be said, and, on the contrary, in order to the successful extension of our institutions, the reasonable presumption is that the limitations on the exertion of arbitrary power would have been made more rigorous.

"After all, these arguments are merely political, and political reasons have not the requisite certainty to afford rules of judicial interpretation.'

"Congress has power to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the government of the United States, or in any department or officer thereof. If the end be legitimate and within the scope of the Constitution, then, to accomplish it, Congress may use 'all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistant with the letter and spirit of the Constitution.'

"The grave duty of determining whether an act of Congress does or does not comply with these requirements is only to be discharged by applying the well settled rules which govern the interpretation of fundamental law, unaffected by the theoretical opinions of individuals.

"Tested by those rules our conviction is that the imposition of these duties cannot be sustained."

Mr. Justice Harlan concurred in this opinion of Chief Justice Fuller, but he also wrote a brief dissenting opinion (182 U. S. 375-391). The concluding sentence of this opinion (182 U. S. p. 391), is as follows:

"In my opinion Porto Rico became, at least after the ratification of the treaty with Spain, a part of and subject to the jurisdiction of the United States in respect of all its territory and people, and Congress could not thereafter impose any duty, import or excise, with respect to that island and its inhabitants, which departed from the rule of uniformity established by the Constitution."

V.

HENRY W. DOOLEY, LOUIS G. SMITH, AND CHARLES W. OGDEN, TRADING AS COPARTNERS UNDER THE FIRM NAME OF DOOLEY, SMITH & COMPANY, PLAINTIFFS IN ERROR, VS. THE UNITED STATES, ACTION No. 1.

In error to the Circuit Court of the United States for the Southern District of New York.

No. 501, October term, 1900, Transcript filed December 10, 1900 (Ins. Cas. Rec. p. 755).

For Dooley, Smith & Co.:

HENRY M. WARD, 45 William Street, New York City, Attorney, JOHN G. CARLISLE (formerly Secretary of Treasury of the United States), WILLIAM G. CHOATE, JOSEPH LAROCQUE, WILLIAM EDMOND CURTIS, of counsel.

For the United States:

In the Circuit Court: HENRY L. BURNETT, United States District Attorney for the Southern District of New York.

In the Supreme Court, JOHN W. GRIGGS, Attorney-General of the United States, and JOHN K. RICHARDS, Solicitor-General.

The Goetze, De Lima and Downes cases were brought to recover duties paid in New York on goods brought from Porto Rico; the Dooley, Smith & Company cases were brought to recover duties paid on goods brought into Porto Rico from New York. There were two actions; one to recover duties collected prior to, and the other for duties collected after, May 1, 1900, under the provisions of the Foraker act. This action related to duties prior to the Foraker act and the complaint prayed judgment for the return of duties paid during three separate periods as stated in the opinion (182 U. S. Rep. 222):

"1. From July 26, 1898, until August 19, 1898, under the terms of the proclamation of General Miles, directing the exaction of the former Spanish and Porto Rican duties.

"2. From August 19, 1898, until February 1, 1899, under the customs tariff for Porto Rico, proclaimed by order of the President.

"3. From February 1, 1899, to May 1, 1900, under the amended tariff customs promulgated January 20, 1899, by order of the President." For Petition and Complaint, see Ins. Cas. Rec. p. 757.

A demurrer was interposed upon the ground of the want of jurisdiction, and the insufficiency of the complaint. The Circuit Court, LACOMBE, J., sustained the demurrer upon the second ground, and dismissed the petition following the decision of TOWNSEND, J., in the Goetze case, p. 21, Ins. Cas. Rec., and 103 Fed. Rep. 73. (Pro forma, November 30, 1900, Ins. Cas. Rec. p. 764.)

A writ of error was allowed and the cases were advanced on the Supreme Court calendar. (Motion papers not included in Ins. Cas. Rec.)

Briefs were filed in Supreme Court for the plaintiffs in error by HENRY M. WARD, Attorney, and J. G. CARLISLE, and WILLIAM EDMOND CURTIS of counsel; (Ins. Cas. Rec. pp. 771-802 and for analysis and list of authorities cited, see Table of Contents, Ins. Cas. Rec. pp. xxixxxx.) An oral argument on jurisdictional questions was made before the Supreme Court by Mr. WARD on January 9, 1901 (Ins. Cas. Rec. pp. 803-815,) and an oral argument on the general questions involved by MR. CARLISLE in this case, the second Dooley case, and the Armstrong case referred to at p. 500 post of this Appendix. (Ins. Cas. Rec. pp. 817845. For analysis of these arguments, see Table of Contents, Ins. Cas. Rec. pp. xxx.) The briefs filed with, and arguments before, the Supreme Court on behalf of the United States were the same as those used in other Porto Rican cases argued in January, 1901, by the Attorney General and Solicitor General. (Ins. Cas. Rec. contra. p. 846.) This case was decided May 27, 1901.

OPINION BROWN, J., IN DOOLEY VS. UNITED STATES.

Mr. Justice BROWN delivered the opinion in this case (182 U. S. 223-236), Chief Justice FULLER and Justices HARLAN, BREWER and PECKHAM Concurring with him. Mr. Justice WHITE delivered a dissenting opinion in which Justices GRAY, SHIRAS and MCKENNA concurred. (182 U. S. 236-243.)

A large part of Mr. Justice Brown's opinion relates to procedure and whether or not the action should be brought in the Court of Claims or in the Circuit Court; it was held that the action was properly brought. That part of the opinion which relates to the exaction of duties in Porto Rico prior to the Foraker act is as follows (182 U. S. 230):

"2. In their legal aspect, the duties exacted in this case were of three classes: (1) the duties prescribed by General Miles under order of July 26, 1898, which merely extended the existing regulations; (2) the tariffs of August 19, 1898, and February 1, 1899, prescribed by the President as Commander-in-Chief, which continued in effect until April 11, 1899, the date of the ratification of the treaty and the cession of the island to the United States; (3) from the ratification of the treaty to May 1, 1900, when the Foraker act took effect.

"There can be no doubt with respect to the first two of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace. While it is true the treaty of peace was signed December 10, 1898, it did not take effect upon individual rights, until there was an exchange of ratifications. (Haver vs. Yaker, 9 Wall. 32.) Upon the occupation of the country by the military forces of the United States, the authority of the Spanish Government was superseded, but the necessity for a revenue did not cease. The government must be carried on, and there was no one left to administer its functions but the military forces of the United States. Money is requisite for that purpose, and money could only be raised by order of the military commander. The most natural method was by the continuation of existing duties. In adopting this method, General Miles was fully justified by the laws of war. The doctrine upon this subject is thus summed up by Halleck in his work on International Law, (vol. 2, page 444): The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists and decisions of courts-in fine, from the law of the nations. . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. He, nevertheless, has all the powers of

a de facto government, and can at his pleasure either change the existing laws or make new ones.'

"In New Orleans vs. Steamship Co., (20 Wall. 387, 393, ) it was said, with respect to the powers of the military government over the city of New Orleans after its conquest, that it had the same power and rights in territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war. In such cases the conquering power has the right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war. These principles have the sanction of all publicists who have considered the subject.' See also Thirty Hogsheads of Sugar vs. Boyle, (9 Cr. 191); Fleming vs. Page, (9 How. 603); American Ins. Co. vs. Canter, (1 Pet. 511).

"But it is useless to multiply citations upon this point, since the au