The times., 1901-05-28

| tive departments with respect to the
! status of newly acquired territories. prior
| to such status being settled by acts of
Congress had been. he went on. with a
single exception, strictly. in line with the
decision in Cross US. Harrison. supra
The only possessions in connection with
which the question has arisen are Louis
| tana, Florida, Texas, California. and
Alaska, and the orders in connection with
| their acquisition were reviewed in order
| and in regard to Louisiana it was stated
| that the court in Cross VS.. Harrison took
an entirely different view of the relations
| of California to the Union from that
which had been taken by Mr.. Gallatin as
to Louisiana in his instructions to the
| Collector of New Orleans, and that the
| Administration in 1S4S also differed from
MI Gallatfn, establishing a practice
| which has never since been departed
| from, of treating territory ceded to the
| United States and occupied by It's troops
/ as being domestic and not foreign terri
| tory
DISTINCTIoN-MADE.
AS showing the construction put upon
this question by the legislative depart
ment, Mr.. Justice Brown said it need
! only be added that section of the For
| aker act makes a distinction between for
eign countries and Porto Rico, by enact
| ing that the same duties shall be paid
! upon 'all articles imported into Porto
| Rico from ports other than those of the
! United States, which are required by law
.
( the United States from foreign countries.
! From this resume of the decisions of this
court, the Instructions of the executive
I departments, and the above act of Con-
! gress. it is evident that. from 1853, the
cate OF Mr.. Gallatin's letter, to the pres
ent time, there is not a shred-ef authori-
/ ty, the opinion read. except the Ciictum
/ in Fleming VS.. Page, for holding that a
! district ceded to and in the possession Of
/ the United States remains for any pur-
| pose a foreign country. Both these condi-
tlol:S must exist to produce change of
nationality for revenue purposes. The
practice of the executive departments
thus continued for more than half a CEN
tury, Is entitled to great weight, and
should not be disregarded nor overturned
except for cogent reasons. and unless it
be clear that such construction be erron-
eous.
And as an original question. the court
said they were irresistibly impelled to the
same conclusion. BY the cession of the
Treaty of Paris, Porto Rico became ter
ritory of the United States. as abso
lutely as if the annexation were made as
in the case of Hawaii, by act of Congress.
Territory thus acquired. Mr.. Justice
Brown continued, can remain a foreign
country under the tariff laws only upon
one OF two theories: either that the
word foreign" applies to such coun-
tries as were foreign at the time the
statute was enacted, Notwithstanding any
or that they remain foreign under
the tariff laws until Congress has form
ally embraced them within the customs
union of the States.
The theory that a country remains
foreign with respect to the tariff laws
until Congress has acted by embracing il
within the customs union, pre-supposes that
a country may be domestic for one purpose
and foreign for another. 1t may undoubt-
edly become necessary for the adequate
administration of a domestic territory to
pass a special act providing the proper
machinery and officers, as the President
would have no authority, except under
the war power, to administer ii himself;
but no act is necessary to make it do
mestic territory If once 1t has been ceded
to the United States
Porto Rico then being domestic at the
time the duties Were levied, the court
concluded that their exaction was Illegal:
them back; the Judgment of the Circuit
Court for the Southern, District of New
York was reversed and the case remanded
to that court for further proceedings in
consonance with the opinion.
CONTRARY To PRECEDENTs
From the judgment and opinion of the
court as announced by Mr. Justice Brown,
Mr.. Justice Gray simply announced his
dissent for the reason that they seemed to
be in conflict with previous decisions of
the court. Mr.. Justice McKenna formal
ly and at length announced the dissent
of himself and Justices Shiras and White,
calling attention to the fact that Mr. JUS
ttce Brown was supported in this case by
four of his brethren and in the Downes
case, decided later, by the other four
The statement of the opinion" con-
tinued Mr.. Justice -McKenna, lis that
whether the cargoes of sugar were SUBJ
Ject TO duty depends solely upon the ques-
tion whether Porto Rico was a foreign
country at the time they were shipped
and foreign country is defined to be-
following Chief Justice Marshall lone
f.n Of
elgh nation and without the sovereignty
OF the United States. This makes SOW
erelgnty the test and gives a rule as sure
ana exact in its application as it is clear
and simple In its expression. There Is no
difficulty in applying it. Difficulty comes
with attempts 10 limit 1t. The difference
between our country and one not ours
would seem to be of substance, not need
ing words to explain the difference, but
defying words TO confound il, and having
the consequence of carrying, not only one
law, but all laws. The court does not go
50 far, and why? Is there weakness In |
theNlogtc or does its consequences repeI?
The argument OF the court certainly pro-
ceedS as If the test is uniVersal-illustra ra-
tions are used to make 1t unmistakable
Ihe several opinions cited by Mr.. Jus
tice Brown Were reviewed, and the decla-
ratiSn Of the opinion that in the Tampico
case the military commander would have /
no power to make a domestic port of
ed the query:
put WHY u!I II remain q foreign port! |
Castine did not remain a domestic port
We. however, need not dwell any longer
on this point, for, under the-latest utter |
ancsS OF this court, the test of dominion
breaks down. Cuba is under the dominion !
OF the United States We held in the Nee |
ly case that 1t is a foreign country"
Much was made. too, of the fact that |
all parties relied upon Cross VS. Harri- |
sor TO sustain their positions, which sug- |
gested the maxim of Marshall, that gen |
eral expressions in every opinion are TO |
be taken in connection with the case In |
which those expressions are used"
ONLY ONE EXCEPTION.
Continuing, Mr.. Justice McKenna said: |
The line of judicial precedents relied |
upon in the opinion of the court in the |
case at bar ends with Cross VS.. Harrison. !
and the practice and rulings of the execu-
tive departments of the Government are |
considered They are said 20 be in accord |
ance with the ruling ascribed to Cross VS.
Harrison, with but a single exception |
II there is one legal exception the rule is !
gone. 1t is not a case where an exception |
can prove the rule; it is one where the
exception destroys thu rule. The eXcep-
ton was Louisiana. Between December
20, 1903, when possession was delivered 10 |
the United States and March 25 1901 |
when the act of February "a became ef-