evolved from a correct construction of the
Constitution as a matter of first impression, and as
shown by the history of the government which has
been previously epitomized. As it is appropriate
here, I repeat the quotation which has heretofore
been made from the opinion, delivered by Mr. Chief
Justice Marshall, in American Ins. Co. v. 356 Bales
of Cotton, 1 Pet. 511, 7 L. ed. 242, where,
considering the Florida treaty, the court said (p.
542, L. ed. p. 255):

 "The usage of the world is, if a nation be not
entirely subdued, to consider the holding of
conquered territory as a mere military occupation
until its fate shall be determined at the treaty of
peace. If it be ceded by the treaty the acquisition is
confirmed, and the ceded territory becomes a part
of the nation to which it is annexed, either on the
terms stipulated in the treaty of cession or on such
as its new master shall impose."

 In Fleming v. Page, the court, speaking
through Mr. Chief Justice Taney, discussing the
acts of the military forces of the United States while
holding possession of Mexican territory, said (9
How. 614, 13 L. ed. 281):

 "The United States, it is true, may extend its
 boundaries by conquest or treaty, and may demand
 the cession of territory as the condition of peace in
 order to indemnify its citizens for the injuries they
 have suffered, or to reimburse the government for
 the expenses of the war. But this can be done only
 by the treaty-making power or the legislative
 authority."

 In Cross v. Harrison, 16 How. 164, 14 L. ed.
 889, the question for decision, as I have previously
 observed, was as to the legality of certain duties
 collected both before and after the ratification of
 the treaty of peace, on foreign merchandise
 imported into California. Part of the duties collected
 were assessed upon importations made by local
 officials before notice had been received of the
 ratification of the treaty of peace, and when duties
 were laid under a tariff which had been promulgated
 by the President. Other duties were imposed
 subsequent to the receipt of notification of the
 ratification, and these latter duties were laid
 according to the tariff as provided in the laws of the
 United States. All the exactions were upheld. The
 court decided that, prior to and up to the receipt of
 notice of the ratification of the treaty, the local
 government lawfully imposed the tariff then in force


in California, although it differed from that provided
by Congress, and that subsequent to the receipt of
notice of the ratification of the treaty the duty
prescribed by the act of Congress, which the
President had ordered the local officials to enforce,
could be lawfully collected. The opinion
undoubtedly expressed the thought that by the
ratification of the treaty in question, which, as I have
shown, not only included the ceded territory within
the boundaries of the United States, but also
expressly provided for incorporation, the territory
had become a part of the United States, and the
body of the opinion quoted the letter of the
Secretary of the Treasury, which referred to the
enactment of laws of Congress by which the treaty
had been impliedly ratified. The decision of the
court as to duties imposed subsequent to the
receipt of notice of the ratification of the treaty of
peace undoubtedly took the fact I have just stated
into view, and, in addition, was unmistakably
proceeded upon the nature of the rights which the
treaty conferred. No comment can obscure or do
away with the patent fact, namely, that it was
unequivocally decided that if different provisions
had been found in the treaty a contrary result would
have followed. Thus, speaking through Mr. Justice
Wayne, the court said (16 How. 197, 14 L. ed.
903):

 "By the ratification of the treaty California
 became a part of the United States. And, as there
 is nothing differently stipulated in the treaty with
 respect to commerce, it became instantly bound
 and privileged by the laws which Congress had
 passed to raise a revenue from duties on imports
 and tonnage."

 It is, then, as I think, indubitably settled by the
 principles of the law of nations, by the nature of the
 government created under the Constitution, by the
 express and implied powers conferred upon that
 government by the Constitution, by the mode in
 which those powers have been executed from the
 beginning, and by an unbroken line of decisions of
 this court, first announced by Marshall and followed
 and lucidly expounded by Taney, that the treaty-
 making power cannot incorporate territory into the
 United States without the express or implied assent
 of Congress, that it may insert in a treaty conditions
 against immediate incorporation, and that on the
 other hand, when it has expressed in the treaty the
 conditions favorable to incorporation they will, if the
 treaty be not repudiated by Congress, have the
 force of the law of the land, and therefore by the