Joseph McKenna

“ The statement of the opinion is that whether the cargoes of sugar were subject to duty depends solely upon the question whether Porto Rico was a foreign country at the time they were shipped, and a foreign country is defined to be, following Chief Justice Marshall, "one exclusively within the sovereignty of a foreign nation' and without the sovereignty of the United States.' This makes sovereignty the test, and gives a rule as sure and exact in its application as it is clear and simple in its expression. There is no difficulty in applying it. Difficulty comes with attempts to limit it. ”

“ There may be no ready test of the civilized and uncivilized, between those who are capable of self-government and those who are not, available to the judiciary, or which could be applied or enforced by the judiciary. Upon what degree of civilization could civil and political rights under the Constitution be awarded by courts? ”

“ Page was based is still a proper principle for judicial application. Does it not make government provident, not haphazard, ignoring circumstances and producing good or ill accidentally? Does it not leave to the executive and the legislative departments that which pertains to them? Did it not stand as a guide to the executive, -a warrant of action, so far as action might affect private rights? Indeed, what is of greater concern, so far as action might affect great public interests? It should, we submit, be accepted as a precedent. It is wise in practice ”

“ We are repelled by the argument which leads to such consequences, whether regarding our own country or the foreign country made 'domestic.' If 'domestic' as to what comes from it, it is 'domestic' as to what goes to it, and its customs laws, as well as our customs laws, may be cast into confusion, and its business and affairs deranged before there is possibility of action. ”

“ For after Florida had been ceded to the United States, and the forces of the United States had taken possession of Pensacola, it was decided by the Treasury Department that goods imported from Pensacola before an act of Congress was passed erecting it into a collection district, and authorizing the appointment of a collector, were liable to duty. That is that, although Florida had by cession actually become a part of the United States and was in our possession, yet, under our revenue laws, its ports must be regarded as foreign until they were established as domestic by act of Congress ”

“ The power of Congress over ceded territory is asserted in the opinion in somewhat absolute terms,-it 'involves the right to govern and dispose of it.' This being so, it would seem to be certain that the treaty-making power would not forestall Congress, or accept with the cession of territory the destruction of the fiscal and industrial policies of the country. ”

“ The law against selling liquors to minors, it is said, contemplates all minors,-those existing and those which may come into being afterwards. Very true, but the purpose of the law is that. The same with territories (to use another illustration of the opinion) being bound as states when they come into the Union. But these illustrations assume that the territory referred to was incorporated by the treaty into the United States, an ever-recurring and misleading fallacy, in our judgment. ”

“ The history of our country has examples of the acquisition of foreign territory,-examples of what relation such territory bears to the United States,-authorities, executive, legislative, and judicial, as to what was wise in statesmanship, as well as what was legal and constitutional, in withholding or extending our laws to such territory ”

“ The difference between our country and one not ours would seem to be of substance, not needing words to explain the difference, but defying words to confound it, and having the consequence of carrying, not only one law, but all laws. ”

“ They assert that Porto Rico, being a territory of the United States, tariff duties on its products are inhibited by the Constitution of the United States. Their judgment and his only unite in the case at bar, and we may assume that the reasoning of the opinion just announced is the road which has brought them together, and, assuming further that such reasoning is the best judicial support of the conclusion it is presented to establish, we address ourselves to the consideration of that reasoning. ”

“ The line of judicial precedents relied upon in the opinion of the court in the case at bar ends with Cross v. Harrison, and the practice and rulings of the executive departments of the government are considered. They are said to be in accordance with the ruling ascribed to Cross v. Harrison, with but a single exception. If there is one legal exception the rule is gone. It is not a case where an exception can prove the rule; it is one where the exception destroys the rule. The exception was Louisiana. ”

“ The case, therefore, is not inconsistent with the ruling in regard to Louisiana. For a period of time after the cession of Louisiana, President Jefferson treated it as foreign territory under the custom laws, and duties were levied upon its products, and no one disputed the legality of it. If the instance was not the same as in Cross v. Harrison, the principle was the same. There was not an immediate change upon the cession of either California or Louisiana. In California, duties were levied for a time under the war tariff, and afterwards under the act of Congress ”

“ Castine did not remain a domestic port. We, however, need not dwell any longer on this point, for, under the latest utterances of this court, the test of dominion breaks down. Cuba is under the dominion of the United States. ”

“ The case involved the legality of duties levied in Philadelphia upon goods imported from Tampico. Tampico was a port of Mexico temporarily occupied by the United States forces,-the exact condition which, in the Rice Case, made a port in one of the states of our Union English territory. Tampico was nevertheless held to be a foreign country within the meaning of our revenue laws. In other words, the military occupation and the sovereignty which attended it, which determined in the Rice Case, was rejected in the Fleming Case. ”

“ We submit that the administration of a government has more complexity-must consider more things-than the management of a piece of real estate. But even the conveyance of real estate may be conditional, all of the incidents of ownership not immediately applying. ”

“ It regards certain conditions, and may be dependent upon them, whether it be enacted for revenue only or for protection and revenue. Its entire plan may be impaired or be destroyed by change in any part. The revenues of the government may be lessened, even taken away by change; the industrial policy of the country may be destroyed by change. ”

“ Harrison in California: 'That war tariff, however, was abandoned as soon as the military governor had received from Washington information of the exchange and ratification of the treaty with Mexico, and duties were afterwards levied in conformity with such as Congress had imposed upon foreign merchandise imported into the other ports of the United States, Upper California having been ceded by the treaty to the United States. ”

“ It is only necessary for us to observe that distinctions always existed between territory which might be acquired (whether by purchase or by conquest) and that which was within the acknowledged limits of the United States, and also that which might be acquired by the establishment of a disputed line. These distinctions were conspicuous in the opinion of Mr. ”