the employment of agents through whom the act is to be accomplished, such person is clothed with discretionary powers and quoad hoc is his judge. It follows that if the Governor as supreme executive and as Commander-in-Chief of the army of the Commonwealth is charged with the duty of suppressing domestic insurrections, he must be the judge of the necessity requiring the exercise of the powers with which he is clothed, and his subordinates who are employed to render these powers efficient and to produce the legitimate results of their exercise, can be accountable to none but him. We had better at the outset recognize the fact that the executive department is a co-ordinate branch of the government, with power to judge what should or should not be done within its own department, and what of its doings or communications should or should not be kept secret; and that with it in the exercise of these constitutional powers, the courts have no more right to interfere than has the executive, under like conditions, to interfere with the courts. This is an extreme opinion, it may be admitted; but upon the whole it does not overstate the case much.

The scope of this opinion is to be remarked. This is one of the cases rare by comparison where the place of executive power is exposed. It is not enough to say that in the exercise of executive powers the chief of the department has discretion within limits and that there can be no control of the exercise of that discretion. It is more than that; it is not too much to say that in the exercise of executive powers the head of the state has independence; and that therefore concerning the exercise of that power there can be no inquiry.

Whether the occasion was proper for the action cannot be judged by the judiciary; for the determination of the occasion was entirely without the scope of the judiciary, since it was within the sphere of a co-ordinate department. This irresponsibility is characteristic of executive power.24

At the time of the present writing the American people have the highest interest in one special phase of government by the executive-colonial administration. A case much relied upon in current discussion is Cross v. Harrison, 16 How. 164 (1853). In 1846 in the war with Mexico the United States troops took military possession of all of Upper California, including the port of San Francisco. Early in 1847 the President, in his capacity of Commander-in-Chief of the army and navy, authorized the military and naval commanders of the United States forces in California, in the exercise of the belligerent rights of a conqueror, to form a civil and military government for the conquered territory, with powers therein to impose duties on imports and tonnage. A war tariff was accordingly promulgated and the duties under it were levied, until official notice was received by the Military Governor that a treaty of peace had been made with Mexico by which Upper California was ceded to the United States. Thereupon the Governor directed that the duties levied should be such

24 DOMESTIC.-Faith v. Pearson, 6 Taunt. 439; Grisar v. McDowell, 6 Wall. 371; United States v. Blaine, 139 U. S. 306; The Orono, 1 Gall. 137; Benton v. Taylor, 46 Ala. 388; State v. Gleason, 12 Fla. 190; Parker v. State, 135 Ind. 534; State v. Cahen, 28 La. Ann. 645; Tyler v. Pomeroy, 8 Allen 480; Guthrie v. Hall, 1 Okl. 454; Commonwealth v. Henry, 49 Pa. St. 530; Slack v. Jacob, 8 W. Va. 612.

as were paid at other ports of entry according to the existing statutes.

The issue in the case was therefore as to the validity of these collections. The opinion was elaborate-one of the best of Mr. Justice WAYNE: Until California had been ceded in fact to the United States it was a conquered territory, within which the United States were exercising belligerent rights; and whatever sums were received for duties upon foreign merchandises, were paid under them thus. But after the ratification of the treaty California became a part of the United States, or a ceded, conquered territory. Our inquiry here is to be whether after the cession the duties could be collected. The existing government was continued by the definite instructions received from Washington in reference to the existing state of things in California. It was the government when the territory was ceded as a conquest; and it did not cease as a necessary consequence of the restoration of peace. Colonel Mason was fortunate in having his determination to continue the existing government sustained by the President of the United States and the Secretaries of his cabinet. It was said that the duties were illegally exacted because the laws of a ceded territory remain unchanged until the new sovereignty has changed them, and that this Congress had not done. But the acts of the executive are acts of the sovereign.

The questions in this last case in 1857 came up for discussion again in 1901, under circumstances almost exactly similar. This was an action begun by the firm of Dooley, Smith & Co., engaged in trade between Porto Rico and New York to recover certain duties exacted

and paid under protest at the Port of San Juan, upon several consignments of merchandise imported into Porto Rico from New York between July 28th, 1898, and May 1st, 1900, under the following schedules: from July 26, 1898, to August 19, 1898, under the proclamation of General Miles, directing the exaction of the former Spanish and Porto Rican duties; from August 19, 1898, to May 1, 1900, under the customs tariffs for Porto Rico, proclaimed by order of the President. It further appeared that part of the duties were collected thus before the exchange of the ratifications of the treaty of cession on April 11, 1899, and in part afterwards. Thus by the facts the question in this case was as to the validity of these collections-Dooley v. United States, 182 U. S. 222 (1901).

Mr. Justice BROWN delivered the opinion, which, because of the contrariety of view in the court, can hardly be called more than his own: There can be no doubt with respect to the exaction of duties under the war power, prior to the ratification of the treaty of peace. Upon the occupation of the country by the military forces of the United States, the authority of the Spanish government was superseded, but the necessity for a revenue did not cease. The government must be carried on, and there was no one left to administer its functions but the military forces of the United States. The most natural method was by the continuation of existing duties. In adopting this method General Miles was fully justified by the laws of war. Different considerations apply with respect to duties levied after the ratification of the treaty and the cession to the United States. We have no doubt, however, from the necessi

ties of the case, the right to administer the government of Porto Rico, continued after the ratification of the treaty and until further action by Congress. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance. The spirit as well as the letter of tariff laws admit of duties being levied by a military commander only upon the importations from foreign countries, and while his power is necessarily despotic, this must be understood rather in an administrative than in a legislative sense. In our opinion the authority of the President as Commander-in-Chief to exact duties upon imports from the United States, ceased from the ratification of the treaty of peace.

These decisions represent about all the law that we have in our decisions upon this pressing problem of colonial administration; and these decisions were decided with reference to a transition from military occupation to civil government. Within the next few years we are certain to have many questions determined which are at present unsettled. The greatest constitutional problem of all in this matter is not decided beyond question by the Supreme Court of the United States. That is whether the guarantees of civil rights contained in the constitution apply in the government of colonies. A fair argument may be based upon various decisions as to the territories to the effect that these limitations in the constitution apply only to government by the United States within the United States themselves. But whether this is so cannot be known until this question is adjudicated once for all by some new decision of the Su