10. The treaty with Spain by which Porto Rico and
 other territory was ceded to the United States,
 and by article 9 of which it is declared that the
 civil rights and political status of the native
 inhabitants therein "shall be determined by the
 Congress," shows an express purpose, not
 only to leave the status of the territory to be
 determined by Congress, but to prevent the
 treaty from operating to the contrary. [Per
 Justices White, Shiras, and McKenna.]

 11. The intention of Congress that Porto Rico is
 not to be incorporated into the United States,
 for the present at least, is shown by the act of
 April 12, 1900 (31 Stat. at L. 77, chap. 191), for
 temporarily providing revenue and a civil
 government for that island and for other
 purposes. [Per Justices White, Shiras, and
 McKenna.]

 12. Provisions of the Constitution of the United
 States which are applicable are in force in Porto
 Rico, whether the island be incorporated into
 the United States or not. [Per Justices White,
 Shiras, and McKenna.]

 13. Porto Rico, though not a foreign country in an
 international sense, since it was subject to the
 sovereignty of and was owned by the United
 States after the treaty of cession, continued to
 be foreign to the United States in a domestic
 sense, because it had not been incorporated
 into the United States, but was merely
 appurtenant thereto as a possession. [Per
 Justices White, Shiras, McKenna, and Gray.]

14. It must be presumed that the legislative
 department of the government, which within its
 lawful sphere is but the expression of the
 political conscience of the people of the United
 States, will be faithful to its duty under the
 Constitution, and therefore will terminate the
 occupation by the United States of territory
 which has been temporarily acquired, and
 which is demonstrated to be unfit to be
 incorporated into the United States, if it would
 be a violation of duty under the Constitution to
 hold it permanently. [Per Justices White,
 Shiras, and McKenna.]

15. The civil government of the United States
 cannot extend immediately and of its own force
 over territory acquired by war, even when
 possession is confirmed by treaty, but such


 territory must necessarily, in the first instance,
 be governed by the military power under the
 control of the President as Commander in
 Chief, until civil government is put in operation
 by the action of the appropriate political
 department, at such time and in such degree as
 that department may determine. [Per Mr.
 Justice Gray.]

 16. The regulation of the revenue of conquered
 territory, even after the treaty of cession,
 remains with the executive and military
 authority, in the absence of congressional
 legislation. [Per Mr. Justice Gray.]

 17. A temporary government which is not subject
 to all the restrictions of the Constitution may be
 established for conquered territory by
 Congress, if it is not ready to construct a
 complete government for such territory. [Per
 Mr. Justice Gray.]

 [No. 507.]

 Argued January8, 9, 10, 11, 1901.Decided
 May 27, 1901.

IN ERROR to the Circuit Court of the United States
for the Southern District of New York to review a
judgment sustaining a demurrer to a complaint in an
action to recover back duties paid under protest
upon importations from Porto Rico under the
Foraker act. Affirmed.


 Mr. Justice White, with whom concurred Mr.
 Justice Shiras and Mr. Justice McKenna, uniting
 in the judgment of affirmance:

 Mr. Justice Brown, in announcing the
judgment of affirmance, has in his opinion stated
his reasons for his concurrence in such judgment.
In the result I likewise concur. As, however, the
reasons which cause me to do so are different from,
if not in conflict with, those expressed in that
opinion, if its meaning is by me not misconceived, it
becomes my duty to state the convictions which
control me.

 The recovery sought is the amount of duty paid
on merchandise which came into the United States
from Porto Rico after July 1, 1900. The exaction
was made in virtue of the act of Congress approved