
    WANNER, BARNES AND COMPANY (LIMITED) v. THE UNITED STATES.
    [No. 22757.
    Decided May 5, 1904.]
    
      On the Proofs.
    
    The claimant, a corporation created under the laws of Great Britain, doing business at Manila both before and after the cession of the Philippines to the United States, imports goods from the United States, upon which the.military authorities levy a tax or impost. Tiie principal question in the case is whether a tax by military authority could be imposed and collected on goods imported from the United States after the ratification of the treaty with Spain, April 11, 1899, but during the insurrection in the Philippines.
    I. A corporation created under the laws of Great Britain, doing business in the Philippines, must be regarded as a subject of ■Great Britain, and may maintain an action against the United States in this court.
    II. The imposition and collection of customs duties at Manila after the signature of the treaty with Spain and during the insur- ' reetion in the Philippines can hot be regarded as a tort; and of an action to recover bach such duties the court has jurisdiction.
    
      III. While a state of war existed in the Philippines it justified the exaction of customs duties by military authority upon goods imported from the United States both before and after the . ratification and promulgation of the treaty with Spain.
    IV. The question of war is one to be determined by the political department of the Government During the insurrection in the Philippines civil law was suspended and superseded by military law until such time as it might be possible to put the treaty with Spain and civil law in force.
    V.During the Philippine insurrection the military commander’s power to administer was absolute, but his power to legislate would not extend beyond the necessities of the case.
    VI. The necessities of the case in the Philippines justified the military commander in imposing and collecting customs duties as a military contribution and as a condition to the privilege of importing goods, the duties so collected being applied to the expenses of military government.
    VII. The importer being at liberty to carry away the goods without landing them , the payment of duties as a condition to landing them was, in law, voluntary and an acquiescence both in the exaction of the duties and in the use to which the money was afterwards put by the military authorities.
    
      The Reporters' statement of the case:
    This case was decided on the 5th May, 1904, but a motion to amend the findings was shortly thereafter made, which was overruled on the first day of the present term without an opinion being delivered.
    The following are the facts of the case as found by the court:
    I. The claimant above, named, Warner, Barnes & Co. (Limited), is a business corporation organized on September 12,1899, under the laws of the Kingdom of Great Britain and noAv existing thereunder, and a subject of the King of Great Britain, and at the time of the filing of the petition herein had an office for the general transaction of its business in the Borough of Manhattan, city of New York and State of New York, and another office for the general transaction of its business then and at all the times hereinafter mentioned at the port of Manila, Philippine Islands.
    II. The claimant is the successor in business of the firm of Warner, Barnes & Co., a cojDartnership organized in England under the laws of the Kingdom of Great Britain, which said firm was, between the 10th day of December, 1898, and the 12th day of September, 1899, composed of Edwin H. Warner, Charles I. Barnes, and William R. Anderson, all British subjects. On or about said 12th day of September, 1899, the said firm dissolved and ceased to do business as a partnership and reorganized under the laws of Great Britain as a business corporation, the claimant herein, and thereupon all the outstanding business, accounts, and claims of all kinds belonging to said firm were transferred by operation of law under the laws of Great Britain to the claimant, and the claimant is now, under such laws, authorized to collect and receive all the claims and demands of said firm which .were outstanding on the 12th day of September, 1899, and more particularly the claims and demands for duties paid prior to September 12, 1899, embraced in the schedule annexed to the petition.
    III. The business in which said firm prior to September 12, 1899, and the claimant thereafter, were engaged is that of a general commission, mercantile, and trading house in the port of Manila and other ports in the Philippine Islands. In the course of such business the said firm and the claimant imported a great variety of goods of all kinds from the ports in the Several States of the United States, and more particularly the ports of New York and San Francisco, as well as from foreign countries, into the said port of Manila; and in the course of such business the said firm and the claimant imported on various dates between the 11th day of April, 1899, and the 10th day of November, 1901, a large quantity of merchandise and articles the growth, produce, or manufacture of the several-States of the Union.
    IV. On the 10th day of December, 1898, a treaty of peace between the United States of America and the Kingdom of Spain was concluded and signed by their respective plenipotentiaries at Paris, in the French Republic. Said treaty was ratified by the Senate and by the President of the United States on the 6th day of February, 1899, and by Her Majesty the Queen Regent of Spain on the 19th day of March, 1899, and ratifications thereof' were exchanged in the city of Washington, in the District of Columbia, on the llth clay of April, 1899, and on the same clay the said treaty was proclaimed by the President of the United States.
    V. During the existence of the war with Spain the President of the United States issued the following order:
    “ Executive Mansion, July 12, 1S98.
    
    “ By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that upon the occupation and possession of any ports and places in the Philippine Islands by the forces of the United States, the following tariff of duties and taxes, to be levied and collected- as a military contribution, and regulations for the administration thereof, shall take effect and be in force in the ports and places so occupied. Questions arising under the said tariff and regulations shall be decided by the general in command of the United States forces in those islands. Necessary and authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder. Accurate accounts of collections and expenditures shall be kept and rendered to the Secretary of War.
    “ WlLLTAM MgKiNEET.”
    This order was published by the Secretary of War on the 13th day of July, 1898. By order of the Secretary of War, dated October 13, 1898, known as tariff circular No. 18, it was ordered that the operation of said order of the President of July 12, 1898, should be suspended until the 10th day of November, 1898, when the same should take effect and be in force, and that until that time the Spanish tariff which was theretofore in force should be enforced and collected thereunder. On or about the 15th day of November, 1898, the said order of July 12, 1898, was again put in force, pursuant to the order of the President, and continued thereafter in force, except as modified by certain amendments thereof made by order of the President from time to time, at all ports of entry in the Philippine Islands until March 8, 1902, and during the continuance of the Philippine insurrection. This order was so promulgated and enforced bjr the President of the United States, by virtue of his authority as Commander in Chief of the Army and Navy of the United States during the continuance of the Philippine insurrection, as a war measure made necessary by the state of war existing in said islands as a result of said insurrection; and the consequent duties upon exports from and imports into the-various ports of the Philippine Islands, including the ports of Manila and Iloilo, were exacted and collected as a condition of the privilege of such exportations and importations and as military contributions to the support and maintenance of the military government then organized and enforced in said islands. The revenues thus derived went into the military chest or treasury of said military government in the Philippine Islands, and were applied by said military government toward paying the expenses of said government in prosecuting the war against the insurgents and. in maintaining and carrying on said government. None of the revenues so collected, including the duties herein claimed for, were ever paid into the Treasury of the United States or subject to the jurisdiction of any official of the Treasury Department of the United States.
    VI. The duties which are the subject of this claim were not levied nor collected pursuant to the general statutes of the United States relating to the customs administration, nor by virtue of the authority of any general tariff law of the United States, nor in the exercise of the civil powers of government of the United States, but were collected solely as a military contribution, exacted by the military government of the Philippine Islands, and as a condition attached to the privilege of importing the goods upon which said duties were levied and collected into the Philippine Islands, all by virtue of and pursuant to the Executive order of July 12, 1898,' above set forth, and the amendments thereto, and during the time when the cities of Manila and Iloilo, at which said duties were levied and collected, were in the military occupancy of the forces of the United States, as an incident to the war then existing in the Philippine Islands.
    VII. The firm of Warner, Barnes & Co., between December 10, 1898, and September 12, 1899, and the claimant between September 12, 1899, and November 15, 1901, in the ordinary course of their business, brought certain articles of merchandise, the growth, produce, or manufacture of the several States, into the port of Manila from the ports of San Francisco, in the State of California, and of New York, in the State of New York.
    YIII. Upon the arrival of vessels at the port of Manila containing such articles of merchandise the military officer of the United States, then acting as collector of customs at that port, placed said vessels under military guard until they should be duly discharged, and no deliver}'- of imported, merchandise from such vessels was permitted to be made in said port of Manila to the importer until the duties assessed thereon had beeh duly paid. The said collector, upon the arrival of vessels containing such imported merchandise, preliminary to the assessment and payment of customs duties thereon, required the importer to enter said merchandise for payment of duty at the custom-house within ninety days after importation. In this case it appears these regulations were conformed to.
    IX. The amount of duties so assessed and levied upon such articles of merchandise and so collected by the military collectors from the. firm of Warner, Barnes & Co. between December 10, 1898, and April 11, 1899, is the sum of $9,904.69.
    X. The amount of duties so assessed and levied upon such articles of merchandise and so collected by the military collectors from the firm of Warner, Barnes & Co. and the claimant between April 11, 1899, and November 15, 1901, is the sum of $71,101.95.
    XI. Prior to the commencement, on April 21, 1898, of the war between the United States and Spain, the long-continued disaffection of the native inhabitants of the -Philippine Islands against the Spanish rule had resulted in a revolution against the Spanish Government in the island of Luzon, beginning in August, 1896. A condition of warfare resulted between the insurgents and the forces of the Spanish Government, in which many thousand soldiers of the regular army of Spain were employed.
    In May,' 1897, the revolutionists proclaimed and endeavored to establish a Philippine republic, with Emilio Aguinaldo as president. In December, 1897, a treaty of peace was entered into between the Spanish authorities in the Philippine Islands and Aguinaldo, representing the insurgents in his capacity as such president, pursuant to which Aguinaldo and other leaders of the insurgents left the islands, and were in Hongkong, China, at the time that the crisis in the relations between the United States and Spain at the opening of the year 1898 was approaching. In February, 1898, hostilities had been renewed by the insurgents in the Philippines, who alleged that the provisions of the treaty of 1897 had been violated by the Spanish authorities, and a-state of warfare then existed in the vicinity of Manila, with the rebel army a few miles from the city.
    This state of affairs prevailed at the time of the declaration of war between the United States and Spain, and continued thereafter with increasing vigor up to and beyond the time of the suspension of hostilities which preceded the treaty of peace of Paris. Meanwhile Aguinaldo had returned to the Philippine Islands and resumed his leadership of the insur-rectionary movement. In furtherance of this movement, a political organization was formulated for the administration of the affairs of civil government, and on June 18, 1898, Aguinaldo issued a proclamation establishing a dictatorial government. The government thus formed extended its operations throughout the Archipelago, but more especially the islands of Luzon and Panay, and proceeded to displace the Spanish civil officials and usurp their official places and power. It induced and compelled general recognition of its authority and jurisdiction by the inhabitants of the territory outside of Manila, gathered together, and organized large and formidable armies of insurgents, captured or expelled Spanish- garrisons at various places throughout the islands, seized their arms and military equipment, and occupied their military works and defenses.
    In September or October, 1898, the dictatorial government proclaimed and established by Aguinaldo assumed political form for emancipation from Spanish rule, and the feeling among the Filipinos was intense and general in its favor. The insurrectionary government thus formed made repeated demands for recognition on various officers of the United States forces then in the Philippine Islands, which demands Avere refused.
    
      At the time of the signing of the protocol at Washington, on August 12, 1898, an insurgent army, under command of Aguinaldo, closely invested the city of Manila, and at the time of the surrender of that city asked to be allowed to hold possession of the same from that time until the ratification of the treaty of Paris. This request was denied. In consequence of this denial and of the refusal of the officers of the United States to recognize the insurgent government and its alleged authority, there was much friction between the insurgent forces and the forces of the United States, and very pronounced unwillingness to submit to the authority of the United States was manifested by the insurgents.
    This feeling on the part of the insurgents gradually grew into a strong sentiment of distrust of and animosity toward the United States Government, based upon the apprehension that the United States Government would not, after the treaty of peace with Spain was ratified, recognize nor permit the independence of the Filipinos, and as a result the whole force of the movement which had been directed against Spain for the purpose of obtaining the independence of the Filipinos began to assume the same relations toward the United States Government for the same purpose.
    This situation culminated in a declaration of war against the United 'States by Aguinaldo in behalf of the Filipino republic on February 4, 1899, and on the same day a battle took place between the army of the insurgents and the United States forces in Manila, resulting from an attack made by the insurgent forces, which attack had for its purpose the conquering and expulsion of the military forces and sovereignty of the United States from Manila and also from the Philippine Islands. This attack was renewed by the insurgents on February 6, 1899, and again on February 10, 1899, with the same purpose in view. On February 22,1899, a concerted uprising of the adherents of the insurrection in Manila was attempted, under instructions from officers of the Filipino government to massacre all the Americans and Europeans in that city. At the time of this commencement of hostilities between the forces of the insurgents and the United States forces the army of the insurgents about and within the neighborhood of Manila numbered between 25,000 and. 30,000, and was quite efficiently organized after the Spanish fashion, and the total forces of the insurgents at the time throughout Luzon were between 50,000 and 60,000. These forces the insurgents were in position to keep recruited to full strength on very short notice and without limit. The result of the hostilities thus commenced was a state of warfare throughout the Philippine Islands, and especially in the island of Luzon and the island of Panay, which called into action in said islands the troops of the United States to the total number of 126,468 between February 4, 1899, and July 4, 1902. The number of troops engaged in military operations against the forces of the insurgents during that time and at different periods was as follows: In 1898, 22,073; in 1899, 29,722; in 1900, 69,420; in 1901, 67,393; in January, 1902, 36,944. The number of engagements between the respective forces during the continuance of said insurrection and consequent warfare was in 1899, 538; in 1900, 1,150; in 1901, 656; a total of 2,744. This warfare was carried on on the part of the insurgents through operations of various armies until November, 1899, when the plan was changed to a guerrilla warfare, and so continued until its close. This guerrilla warfare required more troops on the part of the United States from 1900 on than prior to that time, and necessitated the occupancy of a large number of garrisoned posts or stations throughout the Philippine Islands by the United States forces, reaching the number of between 500 and 600. The number of deaths among the United States troops in the Philippine Islands during this period from all causes was 4,374, and the number wounded in action was 3,022.
    At the time of the armed insurrection above set forth, and the resulting warfare in the Philippine Islands, there was a very general sympathy on the part of the masses of the Filipinos, especially in the islands of Luzon and Panay, in favor of the insurrection and in support of the insurgent government,-and at the time the Filipino government had sway throughout Luzon, throughout the Visayan Islands, except Negros, and in northern Mindanao, and after February 4, 1899, the whole force of the movement which had been directed against Spain was directed against the United States. This sentiment of sympathy with and support of the insur-rectionary movement was very strong in Manila, which was the center of activity upon the part of the insurgent leaders in the way of encouraging and aiding the insurrection. One form of aid of the insurrectionary movement and government was a contraband trade between merchants and traders in Manila and the insurgents outside, in the course of which contributions were levied, upon such trade by the officers of the insurgent government and paid by the agents of such traders. The general diffusion of this insurrectionary movement and of the sympathy of the Filipino people with the same, and their support thereof, continued practically undiminished and unaffected, even after the United States forces had taken possession of over 500 posts or stations throughout the islands. The result of this insurrectionary movement and the armed hostilities against the United States in the Philippine Islands growing out of the same, as above described, was a state of war throughout the Philippine Islands, which continued until July 4, 1902, when the same was officially declared to be at an end. During this time said islands were hostile territory.
    Nil. The city of Manila was captured by the forces of the United States on August 13, 1898, and thereafter was held in military occupancy by the United States forces as an incident of the war with Spain until the treaty of peace at Paris concluded that war, and from that time as an incident of the insurrectionary war in the Philippine Islands against the United States until the conclusion of the same. During the whole of the period of said insurrectionary war Manila was the base of the military operations of the United States troops in the island of Luzon and of supply for the maintenance of the military forces of the United States in the Philippine Islands.
    On February 11,. 1899, as the result of a hostile engagement with an armed force of insurgents in the possession of the city of Iloilo, in the island of Panay, that city was captured by the military forces of the United States, and was thereafter, and until July 4, 1902, held in military occupancy by the forces of the United States as an incident of the insurrectionary warfare prevailing throughout the Phil•ippine Islands against the Government of the United States, and was the base of the military operations of the United States troops in said island of Pariay, and of supply for said forces.
    On the military occupancy of the city of Manila being-established, an organization for the administration of the affairs of civil government by military authority for the city of Manila and the Philippine Islands was created and established. The jurisdiction of this military government was extended as rapidly as the success of the American forces and the exigencies of the military situation permitted. This military government was extended to and established in the city of Iloilo as soon as it was taken possession of by the United States forces. These military governments continued in force until July 4, 1902.
    XIII. The state of war in the Philippine Islands above described was recognized and proclaimed by the executive officers of the United States at various times, for example:
    President McKinley directed, on March 2, 1901, under the Spooner amendment (31 Stat. L., 910), that “ power to govern the Philippines shall remain in the persons now exercising the same under the military government of said islands.”
    In a report dated March-18, 1901, in regard to the legality of an order for the deportation of George T. Rice to the United States, the War Department referred to a state of war then existing in the Philippines. ■
    In a report dated May 3, 1901, the War Department referred to the insurrection in the Philippines as initiated by the battle of Manila on February 4,1899, and as bringing on a state of war, which continued since then.
    Secretary of War Root, in December, 1901, in passing upon the claim of Lieut. Horton W. Stickel, Corps of Engineers, for personal property thrown overboard from a transport in the Philippines, said: “ The insurrection in the Philippines against the sovereignty of the United States and the authority of the government of the Philippine Islands is of such a character and extent as requires the United States to prosecute its rights by military force, and therefore creates a condition of war in said archipelago.”
    The military government, which on December 21, 189S, President McKinley ordered to be extended from Manila city, bay, and harbor to the whole of the ceded Philippine Islands, was continued by. the President during the existence of the insurrection in those islands; and the military officers, who were given the direction of said military government by order and authority of the President, put into force and execution various orders relating to the collection of internal revenue and of customs duties as acts of military necessity and according to the rules of war, including the continuance in force and the execution of an Executive order published by the Secretary of War, by direction of the President, on the 13th day of July, 1898, providing for the levy and collection of import and export duties upon articles imported into and exported from the Philippine Islands, which order was promulgated as a war measure incident to the then existing war with Spain.
    XIY. The existence of a state of war in the Philippine Islands, from the time of the declaration of war by the Filipino insurgents, on February 4, 1899, and the commencement of the armed hostilities of the insurgents, on the same day, was recognized by the Congress of the United States, and the action of the Executive in establishing a military government in the Philippine Islands and enforcing various war measures incident to that government was recognized, ratified, and sanctioned by the Congress of the United States in various enactments.
    
      Mr. Frederic R. Goudert for the claimant:
    1. All the questions of law arising in this case were decided in favor of the claimant in three of the so-called insular cases: De Lima v. Bidwell, 182 U. S., 1; Dooley v. U. S., 182 U. S., 222; 11¡, Diamond Rings v. U. 8., 183 U. S., 170.
    Under the decision in the Diamond Rings case, the Philippines acquired the status of a domestic territory of the United States at the date of the ratification of the treaty, April 11, 1899, and from that time were no longer a foreign country within the meaning of the tariff laws. Under the decision in the Dooley case the military officers had no power to impose duties upon merchandise arriving at Manila from ports of the United States.
    
      2. The insurrection in the Philippines did not create a condition of war within the meaning of international law, but from the beginning to the end of the insurrection the Government was preserving order and suppressing insurrection in territory of the United States. The insurgents were never recognized as and never had the status of belligerents.
    3. The claimant was engaged in trade between two ports of the United States — New York and Manila; not between a port of the United States and a port or ports in the possession of the insurgents. Manila was never at any time from the elate of its capture from Spain in the possession of the insurgents, and was at all times after the ratification of the treaty of peace a domestic port of the United States. There was no trade with the enemy involved in this case. There is an essential distinction between trade carried on between the port of Manila and the port of New York, and trade between either of those ports and a port in the actual possession of the insurgents. The military commander had a right to prohibit or limit in any Avay trade between ports in the possession of the enemy and domestic ports, but had not the right, under the’decision in the Dooley case (182 U. S., 222), to levy duties upon trade between the port of Manila and ports of the United States in the absence of constitutional legislation to that effect by Congress.
    4. The political departments of the United States never declared that trade between the Philippine Archipelago and domestic ports of the United States was unlawful. Without such declaration the court can not assume that the trade was unlawful. (Matthews v. McStea, 91 U. S., 7; Hamilton v. Dülin, 21 Wall., 73, 96, 97.)
    5. The Government, far from prohibiting or restricting commerce with Manila and other Philippine ports in the possession of the United States, encouraged such commerce in every way, and made the Philippine ports open to the commerce of all the world, whereas during the civil war trade between the Union territory and territory within the Confederate lines was prohibited except upon compliance with certain regulations and the payment of certain fees.
    6. The insurrection in the Philippines never acquired the dignity or status of a public Avar. There Avas no poAver actually possessing territorial de faqto- sovereignty. The military operations on the part of the United States were simply police measures for the preservation of peace and order throughout the immense- territory of the islands and the sending of detachments of troops to various points in the islands for the maintenance of law and order. There was no organized government on the part of the insurrectionists, and they did not have at any time de facto sovereignty over any defined territory.
    7. The act of July 1, 1902, did not legalize the exaction of these duties. This claim was filed before the passage of that act, and under the decision in De Lima v. Biclnoell the exaction of the duties could not be ratified by Congress so as to annul the claim.
    
      Mr. Henry M. Ward for the claimant:
    1. The claimant being a foreign corporation is entitled to maintain this suit under section 1068 of the Revised Statutes. A foreign corporation is an alien within the meaning of that section. (Barrow v. Steamship Go., 170 TJ. S., 100; TJ. S. v. Northwestern Express Go., 164 U. S., 686.)
    2. Whether or not the petition sounds in tort, the claim is founded ’ upon the Constitution or upon a' law of Congress, the words “ sounding in tort ” in the act of March 3, 1887, relate only to claims for damages liquidated or un-liquidated. (Dooley v. U. S., 182 U. S., 222; TJ. S. v. Lynah, 188 U. S., 445.)
    3. The duties paid between December 10, 1898, and April 11, 1899, were duties on articles exported from a State in violation of article 5 of section 9 of the Constitution. This point was not raised or passed upon in the first Dooley case or in the case of Armstrong v. U. 8. (183 U. S., 243.)
    
      Mr. Benjamin Mieou for claimant. Messrs. Herbert <£ Miaou were on the brief:
    Counsel for the Government do not contend that after the treat}^ of peace the Philippines remained foreign territory, but that they became what counsel termed “ hostile territory.”
    
      . “A foreign country was defined by Mr. Justice Marshall and Mr. Justice Story to be exclusively one within the sovereignty of a foreign nation and without the sovereignty of the United States.” (De Lima v. Bidwell, 182 U. S., 180.)
    The courts have sustained the right to levy duties by order of the President upon goods coming from the United States into a foreign country we were occupying, but have distinctly denied such right as to domestic territory. The right has always been made to depend on the territory having been foreign, not its having been hostile; but even if the hostile territory doctrine contended for was correct, it would not avail here. The duties claimed for were levied at the port of Manila after the treaty of peace. The United States had possession of that port and city long before the treaty. By the treaty, according to the Diamond Rings case, the sovereignty of the entire Philippines passed to the United States, including title to the port and city of Manila, in our possession before the treaty and never out of our possession to this day. If after the treaty the insurgents ever had a de facto government, in control of hostile territory, the city and port of Manila were never within the limits of such hostile territory.
    We are not contending that the treaty destroyed the right of the President to levy duties. After war is over in a country ceded to us as a result of that war, we admit the right of the President to rule such country, enforce laws therein, and levy duties until Congress legislates for its government. This is distinctly recognized to be his right in all the cases bearing upon this subject. The President has this right while we are temporarily occupying foreign territory in time of war, and the making of peace does not change this right; but it works a change I once heard a minister say prayer worked — “ Prayer can not change the Lord, but it can change us.” When the treaty went into effect we were changed as to the Philippines. From then on we ceased to be a foreign country as to them. Until then goods to the Philippines from the United States came from a foreign country and were subject to duty under the President’s order. Afterwards they did not come from a foreign country and were not so subject; but his order was still enforceable as to goods that came from Germany, France, Austria, or any country that was foreign.
    To October 23, 1899, the duties claimed for were levied under the President’s order of July 12, 1898; from that date to November 15, 1901, under General Order 49 of the military authorities; from November 15, 1901, to March 8, 1902, under what is called the “ tariff revision law of 1901,” passed by the Philippine Commission September 17, 1901. It is contended that this latter law was enacted under legislative sanction of the Spooner amendment passed March 2, 1901. That amendment provided :
    “All military, civil, and judicial powers necessary to govern the Philippine Islands shall * * * until otherwise provided by Congress, be vested in such person and persons, and shall be executed in such manner as the President of the United States shall direct, * *
    
      “ The true distinction,” says Judge Banney, “ is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution.”
    
      {Fidel v. Ciarle, 143 U. S., 649.)
    The Spooner amendment, in so far as it conferred authority on the President, delegated power to make the law, which the Supreme Court says can not be done.
    But the tariff revision law of September 17, 1901, was not ■passed by the Philippine Commission under authority of the Spooner amendment, President McKinley not having up to that time given the Commission directions for the establishment of civil government under that law. The Secretary of War reported to the President, November 27, 1901:
    “ These provisions,” referring to the Spooner amendment, “ were immediately communicated to the Commission by cable, with the following directions: ‘ Until further orders government will continue under existing instructions and orders.’ The conditions at that time diet not permit, nor, great as has been the improvement, do they now loermit, the abandonment of military government throughout the archipelago.”
    It is contended that Congress has ratified the levying of • these duties. Congress, in the first place, could not delegate to the President- the power to make laws, and the line would be as effectively passed by the court sustaining a ratification of an act Congress had been without power to authorize as it would be by sustaining the authorization in the first instance. The following decisions lay down the correct rúle as to ratification. (.Mattingly v. District of Columbia, 97 TJ.-S., 687; Cooley Constitutional Limitations, 7 ed., pp. 5-14- - 545; Kimball v. Town of Rosedale, 42 Wis., 413; People v. Lynch, 51 Cal., 15; Granacla County v. Brogden, 112 TJ. S., 261.)
    It is not necessary to determine whether Congress attempted to ratify the levying of these duties. When the duties were improperly levied, a cause of action arose that was property of which, under the fifth amendment to the Constitution, a person could not be deprived without due process of law, or without compensation. (Darlington on Personal Property, p. 107; Westervelt v. Gregg, 12 New York, 203; Rubbarcl v. Brainard, 35 Conn., 576; Johnson v. Jones, 44 Ill., 162; Griffin v. Williams, 21 Ind., 370.)
    We do not believe that anyone intentionally violated the law or exceeded authority. The problem was a new one, an emergency problem that had to be met promptly as it- arose, and the Government could not be expected to be infallible. The President, the Insular Bureau, and its law officer are all to be congratulated on the masterful way in which the new problems presented by foreign possessions were met; yet when it came to enforcing against goods that came from the United States the President’s order, the military order, and the act of the Philippine Commission, it was an error; not an unnatural one, that anybody is to be censured for, but one that the Government should now make good.
    There are some things in which Congress ratified the action of the President, as it properly should have done, after the very able way in which he had met an emergency; but it did not attempt to ratify his action in any matter it could not previously have authorized. CareNil reading of the legislative acts relied on to prove ratification shows this.
    
      
      Mr. Charles E. Magoon, law officer, Bureau of Insular Affairs, War Department (with, whom was Mr. Assistant Attorney-General Praclt) for the defendants:
    1. The claimant, being an English corporation, is not competent to maintain an action in this court against the United States. Section 1068, Revised Statutes, does not confer the right to maintain such action in this court upon foreign corporations. The term “ alien,” as used in said section, signifies natural persons; alienage, like citizenship, results from the phenomena of nature called birth.
    2. The case stated in the petition is one sounding in tort and therefore not within the jurisdiction of this court. (,Sehillinger v. U. S., 155 U. S., 163; Bill v. U. 8., 149 U. S.; Gibbons v. Ü. 8., 8 Wall., 269.)
    3. If this action be for the recovery of specific property by virtue of superior ¿n’oju’ietary right, then claimant has failed to adduce evidence sufficient to sustain a judgment for restitution against the United States. It devolves upon the claimant to show conclusively that the money it seeks to recover is now in the Treasury of the United States (U. 8. v. Boss, 92 U. S., 281.) The United States did not levy and collect taxes, customs, or military contributions from the inhabitants of the Philippine Islands as indemnity for the costs of the war; it went no further than to permit the military government to raise revenues by duties and taxes and to devote the funds to the maintenance and purposes of the government of the islands. (Brussels Project of an International Declaration of the Laws and Customs of War, art. 5; Lieber’s Instructions, sec. 1, par. 10; Id., sec. 2, par. 9.) The Treasury Department on March 1, 1899, formerly determined that the moneys derived from taxes and duties imposed in the islands subject to military occupancy did not belong to the Federal Government of the United States and were not to be covered into its Treasury. (Letter from Secretary of Treasury to Secretary of War; Halleck’s Int. L., vol. 2, ch. 33, sec. 11.)
    4. The levy and collection of customs duties involved herein are justified — •
    
      (1) As conditions imposed by competent authority upon the privilege of trading with the inhabitants of territory subject to military occupancy by the military forces of the United 'States under the laws of Avar.
    (2) As military contributions exacted for the purpose of providing funds for defraying the expense of the administration of the affairs of civil government in territory subject to military occupancy by the military forces of the United States under the Lays of Avar..
    (3) As customs duties or taxes imposed by an exercise of national powers of legislation possessed by the United States, accomplished by the action of the President as Commander in Chief, taken pursuant to authority derived from the Lavs of Avar and of nations, at a time and as. to territory wherein the United States Avas engaged in the prosecution of a Avar against its sovereignty, which said exercise of powers by the President was assented to and approved by Congress by the 'enactment lmoAvn as the Spooner amendment, and thereafter specifically, definitely, in Avhole or in part, “ approved, ratified, and confirmed ” by the act of Congress of July 1, 1902, entitled “An act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands.”
    This case turns upon the legality of maintaining the military occupancy of Manila and Iloilo during the period of time in which the exactions complained of Avere enforced.
    The right to subject territory to military occupancy is one of those knoAvn as belligerent rights. The authority to exercise this right is derived from the Lavs of Avar. The conferring of such authority is dependent upon the existence of Avar. In time of Avar between independent nations the right extends to all territory of the opposing states; that is to say, either combatant may occupy any portion of his adversary’s territory when the fortunes of Avar enable him to do so. In domestic Avarfare the right is confined to such portion of the nation’s territory as is the theater of actual hostilities and military operations or directly and immediately affected thereby.
    The President is without authority to subject any portion of the nation’s territory to military occupancy unless there exists a real or apparent necessity for such occupancy. This necessity may be created by a foreign invasion or by an insurrection of such extent as to require the United States to protect or enforce its sovereign and proprietary rights by military force. The necessity arising, the President, as the Chief Executive, is bound to adopt measures calculated to preserve the nation’s rights and enforce the nation’s authority. When conditions afford “ color of title ” for the exercise of such authority, the President may act without awaiting permission of Congress, and' his determination of Avhat steps are required to meet the emergency is conclusive upon all branches of this Government. (The Prise Oases, 2 Black, 635.)
    The President determined that the condition 'of Avar against the sovereignty of the United States preArailed in the Philippine Islands as the result of the efforts of armed bodies of insurgents to overthroAV and expel that sovereignty and establish an independent government. The treaty of peace with Spain did not terminate that condition, for the elemental reason that it.did not terminate the attempts of the insurgents to accomplish the purposes of the insurrection by force of arms.
    That actual Avar prevailed in the Philippine Islands during the time these customs duties Avere collected is shoAvn by the following facts:
    The maximum number of troops in the Philippine Islands during the year of 1898 was 22,073; in 1899, 29,722; in 1900, 69,420, and in 1901, 67,393. These were the largest in any one month during the aboA^e years. The total aggregate number of troops that served in the Philippines between June 30, 1898, and December 31, 1901, was 115,077.
    The report of the Adjutant-General for the jrear 1902, page 11, shows that the number of troops that served in the Philippine Islands between June 30, 1898, and July 4, 1902, when the insurrection ended, Avas 126,46S, and the total number of engagements, skirmishes, etc.,'with the enemy between February 4,1899, and July 4, 1902, Avas 2,811.-
    The engagements with the enemy in that country during the Avar with Spain, and prior to February 4, 1899, were limited to the operations and attack on-Manila, July 31 to August 13, 1898.
    The number of engagements of all sorts against the insurgents after February 4-, 1899, was, as near as it is possible to determine at present, in 1899, 338; in 1900, 1,150, and in 1901,656; total, 2,744.
    The posts and stations garrisoned by the United States forces in 1898 were confined to Manila and its suburbs; for the years 1899, 1900, and 1901 the number so garrisoned can not with any degree of accuracy be given, owing to the almost continuous operations and changes, many places being occupied for a few days only. The army returns give little information on this point, but the printed rosters of different dates from headquarters at Manila, showing stations and location of troops from time to time, indicate that at times the number so occupied was between 500 and 600. None of the rosters were issued, so far as known, prior to March, 1900, and after that at regular intervals, and it is therefore impracticable to give the data desired by years.
    The number of deaths there among the troops from all causes was 4,374, and the number of wounded in action was 3,022. (See reports of the Secretary of War for 1898, 1899, 1900, 1901, and 1902; also reports of the Lieutenant-General Commanding the United States Army for said years.)
    The doctrine is well received that a sovereignty engaged in suppressing an insurrection against its authority may exercise the rights of a belligerent.
    “ It is a' proposition never doubted that a belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights.” {The Prize Oases, 2 Black, 673.)
    In time of war trade between territories and people known to the laws of war as enemies is unlawful. {Matthews v. MeStea, 91 U S-, 9; U. S. v. Grossmayer, 9 Wall., 72; Lieber’s Instructions, sec. 5, par. 1; Birkhimer on Military Government, pp. 204, 230.)
    The right to regulate trade with territory subject to its jurisdiction is a well-established right of military government. (Halleck’s International Law, vol. 2, chap. 33, sec. 9, p. 445.)
    
      The Federal Government of the United States may rightfully exercise authority derived from the laws of war in regulating or restricting trade with domestic territory wherein the condition of war prevails as a result of insurrection. {The Prize eases, 2 Black, 635; Hamilton v. Dillon, 21 Wall., 73; Mitchell v. U. /S'., 21 Wall., 350; Jecker v. Montgomery, 18 How., 110; The Reform, 3 Wall., 617; The Sea Lion, 5 Wall., 630; Ouachita Ootton, 6 Wall., 521; 0 off el v. Hall, 7 Wall., 542; Mrs. Alexander's Ootton, 2 Wall., 404; Lamar v. Brown, 92 U. S., 187; New Orleans v. Steamshif Go., 20 Wall., 393.)
    Under the laws and usages of war, when territory becomes subject to military occupancy, all the powers of the executive, legislative, and judicial branches of government are to be exercised as to that territory by the commander of the military forces maintaining the occupancy. Where the military occupancy is maintained bjr the military forces of the United States, the powers of the several branches of government are to be exercised by the President in his capacity as Commander in Chief of the Army and Navy, or by such persons or governmental instrumentalities as he may designate. (Brussels Project concerning the Laws and Customs of War; Gross et al. v. Harrison, 16 Plow., 164; Leitensdorferv. Webb, 20 How., 176; New Orleans v. Steamship Go., 20 Wall., 394.)
    In New Orleans v. Steamshif Go., the court say:
    “ The conquering power has a right to displace the preexisting authority and to assume to such an 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.”
    See also Dooley v. U. S. (182 U. S.), Gross v. Harrison (16 Plow., 182), Thirty Hogsheads of Sugar (9 Cranch, 991), Fleming v. Page (9 How., 603), Am. Ins. Go. v. Canter (1 Pet., 511).
    The war of the insurrection in the Philippines continued until the 4th of Juty, 1902, on which date the President issued a proclamation of peace and amnesty declaring the insurrection to be at an end.
    
      The action of the President in establishing customs duties on goods brought into the Philippines from the United States was not only a proper exercise of authority derived from the laws of war, but was further authorized by the Congressional legislation known as the Spooner amendment to the army appropriation bill, approved March 2, 1901 (31 Stat. L., 910). {Dooley v. ü. N, 182 U. S., 230.)
    The action of the President in prescribing, levying, and collection customs duties on merchandise entering the Philippine Islands from the United States, in addition to being a proper exercise of authority conferred upon him as Commander in Chief by the laws of war, and the Congressional enactment known as the “ Spooner amendment,” Avas subsequently ratified and confirmed by act of Congress. The Congressional enactment, approved July 1, 1902, entitled “ An act temporarily to proAÚde for the administration of the affairs of civil government in the Philippine Islands, and for other purposes” (32 Stat. L., 691), provides as f oIIoavs :
    “ Sec. 2. That the action of the President of the United States heretofore taken by virtue of the authority vested in him as Commander in Chief of the Army and NaA^y, as set forth in his order of July twelfth, eighteen hundred and ninety-eight, Avhereby a tariff of duties and taxes as set forth by said order Avas to be levied and collected at all ports and places in the Philippine Islands upon passing into the occupation and possession of the forces of the United States, together Avith the subsequent amendments of said order, are hereby approved, ratified, and confirmed, and the action of the authorities of the government of the Philippine Islands, taken in accordance with the provisions of said order and subsequent amendments, are herebjr approved: Provided, That nothing contained in this section shall be held to amend or repeal an act entitled ‘ An act temporarily to provide revenue for the Philippine Islands, and for other purposes,’ approved March eighth, nineteen hundred and two.”
    In The Prize Gases (2 Black, 610) the court say:
    “ If it were necessary to the technical existence of á war that it should have a legislative sanction, we 'find it in almost every act passed at the extraordinarj'- session of the legislature of 1861, which was Avholly employed in enacting laAvs to enable the Government to prosecute the war Avith vigor and efficiency. And, finally, in 1861, we find Congress £ ex majore cautela ’ and in anticipation of such astute objections, passing an act ‘ approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.’
    “ Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well-known principle of law, '■orrmis ratihahitio retrotrahitur et mandato equiparatur,’ this ratification has operated to perfectly cure the defect.”
    See also, Hcunilton v. Dillin (21 Wall., 96) ; Dooley v. United States (182 U. S., 234).
    An unbroken line of decisions, reaching from the early daj^s of the written law, establishes the maxim that every subsequent ratification has a retroactive effect and is equivalent to a prior mandate. (Fleckner v. U. S. Bank, 8 Wheat., 363; Marsh v. Fulton County, 10 Wall., 676;- Norton v. Shelby County, 118 U- S., 451; Grenada County v. Brogdon, 112 U. S., 271.)
    The test of the ratification is, Does the. legislative body or other governmental agency attempting such ratification possess authority to do the act, or confer authority to do the act in the first instance ? In the case at bar the question is, Did Congress possess authority, after the treaty of peace and cession had been ratified and exchanged, to impose customs duties on goods entering the ports of the Philippine Islands from the States of the Union ? This question must be answered in the affirmative. (Downes v. BidweTl, 182 U. S., 244; Mattingly v. District of Columbia, 97 U. S., 687; Thomson v. Lee County, 3 Wall., 327; Campbell v. City of Kenosha, 5 Wall., 194; State v. Squires, 26 Iowa, 340.)
    
      Mr. Paul Fuller in reply:
    1. The claimant is an alien within, the meaning of section 1068 of the Revised Statutes. (Society for the Propagation of the Gospel v. Wheeler, 22 Fed. Cases, 756, 764, 765; Barrow Steamship Co. v. Kane, 170 U. S., 100; U. S. v. Northwestern Express Co., 164 U. S., 686.)
    
      2. The contention made by the defendant that this is a case sounding in tort is disposed of in the decision in the, first Dooley ease (182 U. S., 222). The petition in this case and in the Dooley case are substantially identical in form.
    3. The order of July 12, 1898, imposing customs duties upon goods brought into territory in the Philippines which had been conquered from Spain, and was held by'force of arms during the existence of a public war, was a proper exercise of the war power of the President, but as such it could remain in force only during the existence of the war with Spain. When, that war came to an end, the tariff laws of the United States • imposing duties upon imports from foreign countries into the United States became applicable to the Philippine Islands. It was thereupon the duty of the President, as the Executive, to put those laws into effect, but as there Avas no law of the United States authorizing the collection of duties in the Philippine Islands upon articles brought from the United States, the President had not the poAArer to collect such duties, and the order of July 12, 1898, no longer applied to articles brought to Manila from domestic ports of the United States. (Halleck on International Law, vol. 2, cha.p. 33, sec. 9, p. 445; Fleming v. Page, 9
    How., (503; Fourteen Diamond Bings, 183 U. S.,- 178, 181; Dooley v. ü. N, 182 U. S., 222.)
    4. The United Statns_dicLnat recognize the,ins,urg'ents.Jis. belli gerents^and such recpgiii.tion»-is-the..bagis,_pf .the conten-Júon^xfMm,JJnited-States Jn.-this=case. Had the insurgents had the status of belligerents the territory occupied by them would haA’e been, in contemplation of laAv, foreign. (Berk-heimer on Military Government, p. 53.)
    The granting to the insurgents of certain of the rights of belligerents in the interest of humanity Avas not a recognition of their legal status as belligerents. (Lieber’s Code, secs. 152, 154; Proclamation of General MacArthur, December', 1900.)
    5. Although there Avas material Avar in the Philippines, there Avas not legal AArar. The distinction between the íavo is vital. (The Three Friends, 166 U. S., 1, 64; The Diamond Bings, 183 U. S., 176.)
    
      6. There is no distinction between territory which is for- - eign and territory which is hostile. Territory which is hostile is if so facto foreign. (27. 8. v. Rice, 4 Wheat., 246; Gross v. Harrison, 1C How., 164; Fourteen Diamond Rings, 183 U. S., 176.)
    7. While the military commander had the right to impose restrictions upon trade with the Philippine insurgents, the trade in this case was between domestic ports of the United States. (Proclamations of President McKinley of December 21,1898, and of May 19,1898.)
    No restriction was ever placed upon trade with Manila. On the contrary, it was encouraged in every way. (Executive order of December 21, 1898; President McKinley’s Proclamation of May 18, 1898; proclamation 0f the military commander in the Philippines of August 14, 1898.)
    8. The act of July 2, 1902, was not an efficient ratification of the collection of these duties. Such a ratification would be equivalent to the passing of a retrospective statute impairing vested rights. The claim having been filed in this court prior to the passage of the act of July, 1902, the claimant acquired a vested right to its. prosecution, which could not be taken away bjr Congress. (DeLima v. Bidwell, 182 U. S., 198; Brown v. 27. 8., 8 Cr., 110; Baron v. Denman, 2 Exch., 167.)
   Weight, J.,

delivered the opinion of the court:

Plaintiff is a corporation organized under the laws of Great Britain and is a subject of that Kingdom, and was, during the war between Spain and the United States, and the latter Government with the Filipinos, engaged as a general commission mercantile trading house in the port of Manila and other ports in the Philippine Islands, and as a part of its business imported goods of various kinds from the United States, the growth, produce, or manufacture of the several States of the Union. As a result of the war with Spain the port of Manila passed to the control of the military authority of the United States, and by the exchange of ratifications of the treaty by the two Governments concerned, April 11, 1899, the sovereignty possessed by the Kingdom of Spain in the Philippine Islands was transferred to and accepted by the United States.

Previous to, at the time of, and after the treaty of peace there existed in the said islands an organized, armed insurrection against the laAvful authorities therein, and on the 4th day of February, 1899, the organized military forces of the Filipinos, headed by Aguinaldo, began war against the United States forces in the Philippine Islands, which continued until July 4, 1902. At the time the war began the organized military force 'of the Filipinos was between 50,000 and 60,000, which force was kept recruited more or less effectively during the period of the Avar, and during the same period of time the United States had called into action troops to the total number of 126,468 to operate against the insurgent forces. During this Avar the total number of engagements Avas 2,144. The number of deaths from all causes among the troops of the United States during the Avar was 4,314, and 3,022 were wounded in action.

During the war with Spain the military authorities of the United States imposed certain tariff duties and taxes upon importations into the ports of the Philippine Islands in possession of such military authorities, and ordered the same to be levied and collected as a military contribution, which Avas accordingly done, and these levies and collections Avere by the same authority continued throughout the Avar with the Filipinos, until Congress, bjr appropriate legislation, substituted their Avill for that of the military government. The reArenues thus derived went into the custody of the military commander, and were applied by him toward paying the expenses of the then existing military government, and in the prosecution of the war against the insurgents. None of the revenues so levied and collected were ever paid into the Treasury of the United States, nor were they subject to the jurisdiction or order of any officer of the Treasury Department.

By this suit plaintiff seeks to recover of the defendant so much of the tariff duties as were levied and collected from it betwen the date of signing the treaty of peace between Spain and the United States and the exchange of ratifications thereof April 11,1899, and for all so collected after the latter date until November 15, 1901.

Certain preliminary questions have been made by the defense herein, such as (1) the plaintiff’s incapacity to sue in this court by reason of alienage to Great Britain in consequence of its corporate existence instead of being a natural person; and (2) the action is one sounding' in tort, and of which we have no jurisdiction.

In respect to the first objection we are satisfied to determine it against .the Government’s contention on the principle as frequently held, that for the purposes of jurisdiction a corporation is a citizen of the State in which its corporate capacity was endowed with existence, and by extending this qualification to the plaintiff we perceive no reason why it should not 'be regarded as a citizen or subject of Great Britain, thus enabling it to maintain this suit in view of the comitj’- existing between the Governments of the United States and Great Britain.

In respect to the second objection before noted, we think the decision in Dooley v. United States (182 U. S., 222) disposes of it favorably to the jurisdiction of this court.

We are now brought to consider the important question in issue upon which our judgment is invited, namely, whether exaction of the tariffs on importations by the plaintiff from the United States into the port of Manila, which were levied and collected by the military authorities, can be sustained. If such exaction was in a time of peace in the Philippine Islands, when the civil law prevailed, or could be enforced by the civil authorities, and after the exchange of ratifications of the treaty of peace between the United States and Spain, it is not denied that under the authority of the Insular eases, so called, the collection was illegal for the reason that the United States was not a foreign country with respect to said islands within the meaning of the tariff’ laws of the United States.

The case then clears itself to the single question: If a State of war existed in the Philippine Islands did that ipso facto justify the exaction of the tariffs that were collected? That such war did exist before and after the exchange of ratifications of the treaty with an armed military power in said islands is beyond dispute, and whether such war was declared or recognized in a particular manner or not it seems to us is but to beg the question. All men must be held to intellectual honesty to see and know the things that are plainly given them to see and know. We have already shown that an organized armed military force of over 50,000 men was opposed to and contesting with the United States the right of sovereignty in said islands, the treaty with Spain to the contrary notwithstanding. To overcome this armed force the United States employed 126,468 of its mili-tray forces in 2,744 separate engagements;' lost 4,374 of its soldiers by death from all causes, and 3,022 were wounded in action. Important belligerent rights were conceded to the insurgent forces, and the laws of war were applied to intercourse between them and the United States military forces. Their soldiers, when captured, were treated as prisoners of war, and not held for treason; and, generally, all things were done as if the war had been a public one with a foreign nation. If these facts do not prove the existence of a state of war, then they are futile for every purpose. Moreover, a sufficient statement for this purpose is that the President and the Congress did once and again recognize a condition of war in the archipelago, and applied to it the usual measures incident to the treatment of a public war, and did thus invoke all the military power and aixthority vested in the Government in the prosecution of such war.

A war thus, recognized, and-prosecuted ought forever to set at rest the fact of its existence, and the acts of the legislative and executive authorities in that respect,- subject to judicial notice, should be equally as binding upon the judicial department of the Government as upon the legislative and executive. Any decision to the contrary would have no effect except in the case in which it might be made, because the fact could not be so changed, and will exist in history as a fact for all future time.

The question of war is one to be determined by the political department of the Government. The Protector (12 Wall., 700), where the court, among other things, said: “Acts of hostility by the insurgents occurred at periods so various and of such different degrees of importance and in parts of the country so remote from each other, both at the commencement and the close of the civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the Government to fix the dates; and, for obvious reasons, those of the executive department which may be and, in fact, was, at the commencement of the hostilities, obliged to act during the recess of Congress, must be taken.” (Williams v. Suffolk Ins. Co., 13 Pet., 415, 420; cited in Thomas v. U. S., 39 C. Cls. P., 1.)

At the time the ratifications of the treaty of peace were exchanged the treaty had thereafter the force of law, but b}r reason of the war existing in the islands at the time it failed to become effective, and it, as well as all other merely civil law, was suspended and superseded 'by military law until such time as it might be possible to put the treaty and civil law in force and establish proper administrative and judicial authorities to administer and enforce the same. The vital point is that until the military forces of the United States had suppressed armed resistance against its authority and established its sovereignty in the islands the Government could not give the effect to the treaty' contemplated by the high contracting parties. The case of Dooley, supra, and other Insular cases are not inconsistent with this view.

If the court had in mind the facts disclosed by this record, it could hardly have made a more pertinent exception than it did in the Dooley ease, where it was said: “His (military commander’s) 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.” No war, in fact, existed in Porto Pico, into which the importation had been made forming the subject of the Dooley case, nor had war existed there at any time. While the government there was for the time being-in the military commander from the necessities of the case, yet he was not called upon to exercise the military authority incident to a state of war, nor did the necessities of the case demand the exercise of such power.

In time of war, within the military district of its operation, no restrictions are placed upon the power and authority of the military commander except such as are imposed by the common consent of all civilized people. His power is absolute within the radius of his jurisdiction. He may jjrohibit or restrict all trade or commerce within his lines. As a condition to commerce within his military district he may ' impose contribution to assist in the expenses of the war or in giving such care to indigent noncombatants as humanity may require. These principles are, it seems to us, elementary and have their existence in long-established and universal usage. They pervade the pages of history. Authorities are unnecessary to prove their existence, but recognition has been given them in Matthews v. McStea (91 U. S., 9); Prize cases (2 Black., 635); Hamilton v. Dillin (21 Wall., 73).

The tariffs paid by the plaintiff were not levied or collected bjr virtue of the general statutes of the United States relative to customs, nor by authority of any general law, nor in the exercise of the civil powers of the Government, the latter never having been in force in consequence of the prevailing war throughout said islands; but such tariffs were collected solely as a military contribution, exacted by the military government, and as a condition annexed to the privilege of importing goods upon which the duties were levied, and this is distinguishable from Diamond Rings (183 U. S., 176), where the question was as to the enforcement of the statute at Chicago, Ill., against property taken there from Luzon.

So far as appears from the evidence, the privilege of sailing away with its goods was not prohibited to the plaintiff, and while it does appear it was prohibited from landing the goods without first making payment of the duties, this does not deprive such payment of the nature of being-voluntary. Plaintiff knew, or must be held as knowing, the military conditions that existed at the port to which it had sailed, and doubtless it made the importation in the expectation of having to pay the duties that were paid by it. The money was not covered into the Treasury of the United States, but was applied by the military government toward its own expenses in prosecuting the war against the enemies of the United States, and, so far as appears, the plaintiff acquiesced both in the payment and such use of the money.

We have expressed no opinion concerning the effect of the ratification by Congress, so much discussed on the trial, of the acts of the Commander in Chief, deeming the question immaterial to the issue involved. In time of war the Commander in Chief has the same powers as other civilized governments, and the exercise of them needed no ratification to give to them effective force.

Congress, however, by the act approved July 1, 1902 (32 Stat. L., 691), did provide as follows:

“ Sec. 2. That the action of the President of the United States heretofore taken by virtue of the authority vested in him as Commander in Chief of the Army and biavy, as set forth in his order of July twelfth, eighteen hundred and ninety-eight, whereby a tariff of duties and taxes as set forth bjr said order was to be levied and collected at all ports and places in the Philippine Islands upon passing into the occupation and possession of the forces of the United States, together with the subsequent amendments of said order, are hereby approved, ratified, and confirmed, and the actions of the authorities of the government of the Philippine Islands, taken in accordance with the provisions of said order and subsequent amendments, are hereby approved: Provided, That nothing contained in this section shall be held to amend or repeal an act entitled ‘An act temporarily to' provide revenue for the Philippine Islands and for other purposes,’ approved March eighth, nineteen hundred and two.
“ Sec. 3. That the President of the United States, during such time as and whenever the soA^ereignty and authority of the United States encounter armed resistance in the Philippine Islands, until othenvise provided by Congress, shall continue to regulate and control commercial intercourse with and within said islands by such general rules and regulations as he, in his discretion, maj’- deem most conducive to the public interests and the general welfare.”

.It follows, from the vieAvs we have expressed, that in oxir opinion the petition should be dismissed, and the judgment of the court is that it be done accordingly.

Nott, Ch. J., and Howry, J., did not sit, and took no part in the decision of the case.  