compl whii

lowed 1-26

SEMIANNUAL INDEX

TO

TREASURY DECISIONS
UNDER

CUSTOMS AND OTHER LAWS .

Vol. 7 - January to June, 1904.

LESLIE M. SHAW ,
Secretary of the Treasury.

WASHINGTON :
GOVERNMENT PRINTING OFFICE .
1904 .
COURT DECISIONS. 41

2. If O'Neill Brothers were the consignees, was “ the consignment made to them
without their consent, ” within the meaning of those words, as used in article 1231 of
the customs regulations ?
The facts are found by the court and are not in dispute. Whatever may be said in
answer to the first question, as above stated, we are clearly of opinion that if O'Neill
Brothers were the consignees, the consignment was made to them without their con
sent, within the meaning of those words, as used in article 1231 of the customs regu
lations. That article provides that
When the proceeds of any sale of goods remaining unclaimed more than a year are
insufficient to pay the charges and duties, the consignees are liable for such duties
unless it be shown that the consignment was made without their consent.
This rule of the Secretary of the Treasury, for the practical administration of the
customs laws in this respect, promulgated under authority conferred by law , is in
accord with justice and common sense . The facts, as found by the court below ,
clearly show that this consignment of wool waste and mixed cotton and wool was made
without the authority, express or implied, of the defendants in error. The goods
were not sent by the consignors in response to an order for the same. What defend
ants in error ordered was cotton waste, an article to be imported free of duty. The
consignment here in question was of wool waste and mixed cotton and wool, dutiable
at 10 cents per pound. Such a shipment is as clearly made without the consent of the
consignee as if no order for a different article had been sent. The facts found do not
support the assertion that the defendants in error “ ordered 50 bales of waste and they
were forwarded 50 bales of waste.” The order of one article is not colorable authority
for the shipment of an entirely different article, especially where the articles ordered
are on the free list and those shipped are dutiable.
In such case, the party to whom the shipment is made is not bound, in order to free
himself from liability, to enter a bond for reexportation of the goods thus sent without
authority. Such entry of bonds and reexportation would, as said by the court below ,
expose the party to liabilities, both to the Government and to the shippers, which he
was not obliged to assume.
We are of opinion that the defendants in error in this case , on the facts found by
the court below , are within the exception to article 1231 of the customs regulations
66
above quoted , it being clearly shown that the consignment in question was made
without their consent.”
The judgment of the court below is therefore affirmed .

(T. D. 25314. )
E.ractions by military commander in Philippine Islands on impor
tations from United States .
WARNER 1. UNITED STATES.
U. S. Court of Claims. Washington, D. C. , May 5, 1904. No. 22757.
IMPORTATIONS INTO PHILIPPINE ISLANDS FROM UNITED STATES - MILITARY TARIFF.
Held that there was a state of war existing in the Philippine Islands at the time
of, and for a period subsequent to , the exchange of ratifications of the treaty of
peace between Spain and the United States, April 11 , 1899, and that duties on
merchandise imported from the United States during that period , which were
levied by the military authorities in those islands during the continuance of the
war, being exacted during the continuance of the war solely as a military con
tribution, are not recoverable.
Petition for the return of customs duties exacted by the United States military authorities in
the Philippine Islands from Warner, Barnes & Co. , claimants.
This case having been heard by the Court of Claims, the court, upon the evidence,
makes the following findings of fact :
I. The claimant above named , Warner, Barnes & Co. (Limited ), is a business corpo
ration organized on September 12, 1899, under the laws of the Kingdom of Great
42 COURT DECISIONS.

Britain and now 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 Sex
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 copartnership organized in England under the laws of ihe 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 there
upon 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 suid 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 datis between the 11th day of April, 1899, and the 10th day of
November, 1901 , a large quantity of merchandise and articles the growth, proluce. Of
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 ratificd 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 , iu tbe District of
Columbia, on the 11th day of April, 1899 , and on the same day 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 1 , 1848 .
By virtue of the authority vested in me as Commander in Chief of the Army and
Navy of the Cnited 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 occipied. Questions arising
under the said tariff and regulations shall be decided by the general in command of
the l'uited States forces in those islands. Necessary and authorized expenses for the
administration of said tariff aud regulations shall be paid from the collections there
under. Accurate accounts of collertions and expenditures shall be kept and rendered
to the Secretary of War.
WILLIAM MCKINLEY.
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 is
it was ordered that the operation of said order of the President of July 12, 1898. should
he suspended until the 10th day of November, 1898 , when the same should take effer :
and be in force, and that until that time the Spanish tariff which was theretofore in
COURT DECISIONS . 43

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 continu
ance of the Philippine insurrection. This order was so promulgateil and enforced by
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 main
tenance 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 govern
ment 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 col
lected, 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 adminis
tration , 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 Septem
ber 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 .
VIII. 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 cus
toms at that port, placed said vessels under military guard until they should be duly
discharged, and no delivery 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
been 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 $ 9,964.69.
X. The amount of duties so assessed and levied upon such articles of merchandise
and so collerted 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 $71,161.95.
44 COURT DECISIONS .

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 Phil .
ippine 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 war
fare 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 Philip
pine 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 Hong.
kong, 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 insurrectionary movement. In furtherance of this movement, a
political organization was formulated for the administration of the affairs of civil gor.
ernment, and on June 18, 1898, Aguinaldo issued a proclamation establishing a dicta
torial government. The government thus formed extended its operations throughout
the archipelago, but more especially the islands of Luzon and Panay, and proceedel
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 estab
lished by Aguinaldo assumed political form for emancipation from Spanish rule , and
the feeling among the Filipinos was intense and general in its favor. The insurret
tionary government thus formed made repeated demands for recognition on various
officers of the United States forces then in the Philippine Islands, which demands
were 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 l'nited
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 U'nited 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 l'nited States Government for the same purpose.
COURT DECISIONS . 45

This situation culminated in a declaration of war against the United States by

Aguinaldo in bebalf 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 sover
eignty 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 effi
ciently organized after the Spanish fashion, and the total forces of the insurgents at
the time througbout Luzon were between 50,000 and 60,000. These forces the insur
gents 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 num
ber 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 conse
quent 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 occu
pancy of a large number of garrisoned posts or stations throughout the Philippine
Islands by the l’nited States forces, reaching the number of between 500 and 600.
The number of deaths among the United States troops in the Philippine Islands dur
ing 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 insur
rection 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 insurrectionary move
ment 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
46 COURT DECISIONS .

continued until July 4, 1902, when the same was officially declared to be at an eod.
During this time said islands were hostile territory.
XII. 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 opera
tions of the United States troops in the island of Luzon and of supply for maintenance
of 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 Noilo , 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 inci
dent of the insurrectionary warfare prevailing throughout the Philippine Islands
against the Government of the United States, and was the base of the military opera
tions of the United States troops in said island of Panay , 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 jurisdic
tion of this military government was extended as rapidly as the success of the Ameri
can forces and the exigencies of the military situation permitted. This military gor
ernment 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-fo:
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 Dos
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 depor
tation 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 bring .
ing 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 ani
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 , 1898, 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 intoforce and execution various
orders relating to the collection of internal revenue and of customs duties as acts
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 los
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
COURT DECISIONS. 47

the Philippine Islands, which order was promulgated as a war measure incident to the
then existing war with Spain .
XIV . 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 commence
ment 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.
CONCLUSION OF LAW .
On the foregoing findings of fact the court decides as a conclusion of law that the
plaintiff can not recover, and that its petition be dismissed .
Wright, 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 lawful 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 mili
tary 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 war, and during the same
period of time the United States bad called into action troops to the total number of
126,468 to operate against the insurgent forces. During this war the total number of
engagements was 2,744. The number of deaths from all causes among the troops
of the United States during the war was 4,374, 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 was accordingly done, and these levies
and collections were by the same authority continued throughout the war with the
Filipinos, until Congress, by appropriate legislation, substituted their will for that of
the military government. The revenues 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 insur
gents. 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 between 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 con
sequence 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.
48 COURT DECISIONS.

In respect to the first objection we are satisfied to determine it against the Gorena
ments contention on the principle that it has been frequently held , that for the par
poses 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 plais
tiff 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 comity existing
between the Governments of the United States and Great Britain .
In respect to the second objection before noted , we think the decision in Doolesa
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 evi
lected by the military authorities, can be sustained . If such exaction was in a timeof
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 cases , so called, the collection was illegal for the reason that the United Statrs
was not a foreign country with respect to said islands witbin 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 Phil.
ippine Islands, did that ipso facto justify the exaction of the tariffs that were collerted
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 o
beg the question. All men must be held to intellectual honesty to see and know th
things that are plainly given them to see and know. We have alreaiy shown that ...
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 be
contrary potwithstanding. To overcome this armed force the United States emplogre!
126,468 of its military forces in 2,744 separate engagements ; lost 4,374 of its solellis
by death from all causes, and 3,022 were wounded in action. Important belligeren
rights were conceded to the insurgent forces, and the laws of war were appliet 1.
intercourse between them and the Cnited States military forces. Their soldiers , wbre
captured, were treated as prisoners of war, and not held for treason ; and, general's ,
all things were done as if the war had been a public one wi! h a foreign nation . I
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 api
the Congress did once and again recognize a condition of war in the archipelago, an!
applied to it the usual measures incident to the treatment of a public war, and did this
invoke all the military power and authority vested in the Government in the prostata
tion 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, sub
ject 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 fai
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 Geor .
ernment. 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 diffe:
ent degrees of importance and in parts of the country so remote from each other, buth
at the commencement and the close of the civil war, that it would be difficult , if I :
impossible, to say on what precise day it began or terminated . It is necessary, there
fore , to refer to some public act of the political departments of the Government tots
the dates; and for obvious reasons, those of the executive department which may
-

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COUNT DECISIONS. 49

and ,in fact, was, at the commencement of hostilities, obliged to act during the recess
of Congress, must be taken . (Williams 0. Suffolk Insurance Company, 13 Pet. , 415,
420 ; cited in Thomas r. United States, 39 C. C. , -. )
At the time the ratifications of the treaty of peace were exchanged, the treaty had
thereafter the force of law, but by 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 mili
tary 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 case, 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 existed in Porto Rico, 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 necessi
ties 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 the 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 prohibit 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 o. 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 by virtue of the general
statutes of the United States relative to customs, nor by authority of any general law,
por 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 tiff, 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 .
75
50 COURT DECISIONS.

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 them effective force.
Congress, however, by the act approved July 1 , 1902 (32 Stat. , 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 Nary.
as set forth in his order of July twelfth, eighteen hundred and ninety - eight, whereby
a tariff of duties and taxes as set forth by 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 : Prorili,
That nothing contained in this section shall be held to amend or repeal an Act entitled
“poses,"
An Actapproved
temporarily to provide revenue for the Philippine Islands and for other pur
March eighth , nineteen hundred and two.
SEC. 3. That thePresident of the United States, during such time as and whenever
the sovereignty and authority of the United States encounter armed resistance in the
Philippine Islands, until otherwise provided by Congress, shall continue to regulait
and control commercial intercourse with and within said islands by such general rules
and regulations as he, in his discretion, may deem most conducive to the publie inter
ests and the general welfare .
It follows, from the views we have expressed, that in our opinion the petition shoki
be dismissed, and the judgment of the court is that it be done accordingly .
Nott, Chief Justice, and Howry, J., did not sit, and took no part in the decision of
the case .

( T. D. 25315.)
Borate of manganese .
HEMPSTEAD 1. THOMAS.
U. S. Circuit Court of Appeals, Third Circuit. Philadelphia, Pa. , Jay 9. 15# 4.
Suit 1537.

BORATE OF MANGANESE - BORATE MATERIAL - CHEMICAL COMPOUND-NOSCITIK A

Sociis .
The provision in paragraph 11 , tariff act of July 24 , 1897, for other - borate
material” includes only borate materials found in nature in a raw condition , such
as the “ borates of lime or soda " enumerated in the same provision , and does no
include borate of manganese, or bormangan, a manufactured article which is
made from manganese and borates of lime or soda, which is held to fall within the
provision in paragraph 3 of said act for chemical compounds and salts.
Appeal from the circuit court of the United States for the eastern district of Pennsylvania.
This appeal was taken by William 0. Hempstead , trading as the firm of 0. G.
Hempstead & Son , from the decision in Hempstead c. United States ( 123 Fed . Rep .,
346 ),affirming the decision of the Board of General Appraisers in the case of more
Hempstead , G. A. 5155 (T. D. 23768), which had affirmed the classification by C. Wesley
Thomas, collector of customs at the port of Philadelphia , of certain imported merchan
dise.
Before ACHESON, DALLAS, and GRAY, Circuit Judges.
Gray, circuit judge : This is an appeal by the importers from a decree of the cir uit
court of the United States for the eastern district of Pennsylvania , affirming the autog
of the Board of General Appraisers. The undisputed facts appear to be as follows
0. G. Hempstead & Son imported into the port of Philadelphia, at various dates
between December 4 , 1899, and March 29, 1900, 16 separate lots of merchandis ,