The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1901-05-27
JUDGE TOWNSEND'S DECISION


as foreign. The contract between the
United States and Spain in express
terms qualities what the appellants
claim is the legal effect of cession
The opinion in Cross VS.. Harrison
does not contain any discussion of this
the only question before us. Indeed
the constitutional questions which were
not involved in the decision because the
only controversy was as to the author
ity Of the military governor, after ces-
sion, to collect the regular duties in
force throughout the United States
without authority from congress, and
congress had ratified his action. This
alone would have been decisive. Be
yond this the only question involved in
the discussion was the right of the col
lector under the military governor dur
ing the interregnum to levy on goods
coming into the coded territory the
same duties as were enforced elsewhere
In the United States.
In what sense California was part
of the United States is not made clear.
Justice Wayne, indeed, said: "By the
ratification of the treaty California be-
came part of the United States. And,
as there is nothing stipulated in the
treaty with respect to commerce, it be-
came instantly bound and privileged by
the laws which congress had passed to
raise a revenue from duties upon i'm
ports and tonnage" But the suit rela-
ted to the claims of foreign importers;
the right claimed by them was to land
goods free from duty in territory I'M
der the sovereignty of the United States
and SO a part of the United States to all
foreigners: no question of the internal
relation OF California and the United
States was raised; and it is not at all
certain that these words Of Justice
Wayne do not mean simply that as to
foreign nations California had become
part OF the United States by perfec-
ted title and, therefore, foreigners could
not violate there the law allowing them
liberty to trade with the United States
under specified conditions.
But even If these words of the court
were intended to describe the internal
relations of the new territory, they were
used in reference to the treaty by
which California was coded, That trea-
ty not only did not negatively qualify
tained such phrases as these: Terri
tories previously belonging to Mexico
and which remain for the future with
In the limits of the United States as de-
fined by the present treaty (Article
WIZ I'm consideration Of the extern
sion acquired by the boundaries of the
United States as defined in the fifth ar
ticle of this treaty. (Article XIII, and
"considering that good part of the
territories which by the present treaty
are to be ccmprehended for the future
within the limits of the United States"
(Artice KID, besides the general pro-
vision for the Incorporation of the in
hnbitants as citizens already mentioned.
Apparently the intent of that treaty
was to include California within the
United States. Whatever is said in
Cross VS.. Harrison as to the relation of
the coded territory to the United States
so far at it is not merely obiter, serves
Simply to fix the effect of that and sim
liar treaties Of cession. But there is
nothing at all in this from which we
can derive any authority to declare un-
treaty of cession which
pcstpones the Incorporation of the coded
territory as an integral part of the
United States. The only phrase at all
bearing upon that issue is:
"Inasmuch as there is nothing stipu-
ated in the treaty with respect to COM
merce it becomes instantly bound and
privileged by existing tariff laws"
This indicates that treaty may make
provisions for tariff regulations not
Uniform with those existing throughout
The Union, thus postponing the COM
plete annexation Of the territory under
the uniformity clause in the Constitu-
ion
\ Cross VS.. Harrison, therefore, upon
The authority of which the appellants
chiefly rely, does not bear at all upon
he constitutionality of this treaty.
rhe discussion upon the constitutional
question simply assumes that Califor-
Tia had become part of the United
States The reference to, and interpre-
ations Of, said decision in subsequent |
decisions of the Supreme court show
hat the only point decided there was |
is stated by Mr. Justice Bradley, |
that the president as COMMANDMENTS
hief had the power to form a Temporal
v civil government for California as
conquered territory and to impose du-
les upon imports and tonnage for the
Import Of the government and for
Iiding to sustain the burdens of war,
which We're held valid until congress
aw fit to supersede them and an ac-
ion brought to recover back duties paid
nder such regulations was adjudged to
re not maintainable" (Hamilton VS..
,illin, 81 Wal S7)
1T was held in the case os Cross VS..
Harrison that the sovereignty of Cali
ornia was the United States in virtue
( the Constitution by which power
ad been given to congress to dispose
and make all needful rules and reg
lations respecting the territory and
Their property belonging to the United
tates, Ito show power of congress to
overn it. (Catron, j., in Scott VS.
andford, 10 How, 523.)
The other case emphasized by the ap-
Giants as bearing on the point is
VS.. Blake, 5 Wheat, 319.
eliance is placed on the following Ian
uage of Chief Justice Marshall:
1T will not be commended that the
CO the power extends to
laces to which the power itself does
nd collect duties imposts and excuses
lay be exercised, and must be exer-
sed, throughout the United States.
oes this term i. e. the United States,
ssignate the whole or any portion of ,