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From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port; and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were in no correct sense imported into the United States. The subsequent evacuation by the enemy, and resumption of authority by the United States, did not, and could not, change the character of the previous transactions."

In Fleming v. Page2 the question arose whether duties levied upon goods entering the United States from the port of Tampico, at the time it was in the military possession of the United States, were properly levied under the Act of Congress which imposed duties upon goods imported from a foreign country. Taney, who rendered the opinion of the court, said: "The Mexican authorities had been driven out, or had submitted to our army and navy and the country was in the exclusive and firm possession of the United States and governed by the military authorities, acting under the orders of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country, in the sense in which these words are used in the acts of Congress. The country in question had been conquered in war. But the genius and character of our institutions are peaceful and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the General Government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. A war, therefore, declared by Congress can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's territory. The United States, it is true, may enlarge its boundaries by conquest or treaty and may

29 How. 603; 13 L. ed. 276.

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demand the cession of territory as a condition of peace in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expense of the war; but this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and power are purely military. He may invade the hostile country and subject it to the sovereignty and authority of the United States; but his conquests do not enlarge the boundaries of this Union nor extend the operations of our institutions and laws beyond the limits before assigned to them by the legislative power. It is true, that, when Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries. But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest, holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States while it was occupied by their arms did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President under which Tampico and the State of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they

were in an enemy's country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States. nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest; nor could they be regulated by the varying incidents of war, and be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign; nor did our laws extend over it. Tampico was, therefore, a foreign port when this shipment was made."

At first it may appear that the doctrine declared in Fleming v. Page is not in harmony with that uttered in United States v. Rice; for in the former case it was held that mere military occupation was not sufficient to annex the territory occupied by the United States; whereas, in the latter case, it was declared that military occupation by the forces of another State did operate to render the port foreign to the United States. If these two decisions had been given by an international tribunal, or had had reference to the status of the territories received internationally, they undoubtedly would have been inharmonious. For, looked at from the international side, a country belongs to that power which is in effective control of it. Therefore, thus viewed, Castine belonged to Great Britain while its military forces were in paramount control of it. In like manner, Tampico, viewed internationally, was a part of the United States, and other States would have held the United States responsible for anything that might have occurred there while it was in possession. But when, as was the case both in United States v. Rice and Fleming v. Page, the question was purely one of domestic municipal law, it was within the province of the Supreme Court to determine in each case the status of the territory concerned according to the peculiar municipal or constitutional law which it was interpreting

and applying. In other words, in the Fleming v. Page case the Supreme Court would not have been justified in declaring that Tampico did not, during American occupancy, belong to the United States in an international sense; whereas it was justified in holding that from the viewpoint of American constitutional law it was not a part of the United States, any more than, for example, was Cuba. during the time of its administration by American authorities.3

In Neely v. Henkel, with reference to the status of Cuba, during the American occupation, the Supreme Court say: "Cuba is none the less foreign territory, within the meaning of the act of Congress, because it is under a military governor appointed by and representing the President in the work of assisting the inhabitants of that island to establish a government of their own, under which, as a free and independent people, they may control their own affairs without interference by other nations. The

3 In De Lima v. Bidwell (182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041) the court say: "It is not intended to intimate that the cases of United States v. Rice and Fleming v. Page are not harmonious. In fact they are perfectly consistent with each other. In the first case it was merely held that duties could not be collected upon goods brought into a domestic port during a temporary occupation by the enemy, though the enemy subsequently evacuated it; in the latter case, that the temporary military occupa tion by the United States of a foreign port did not make it a domestic port, and that goods imported into the United States from that port were still subject to duty. It would have been obviously unjust in the Rice case to impose a duty upon goods which might already have paid a duty to the British commander. It would have been equally unjust in the Fleming case to exempt the goods from duty by reason of our temporary occupation of the port without a formal cession of such port to the United States."

This reasoning, based simply on principles of justice or expediency, hardly seems convincing, but that the two cases are not necessarily inharmonious has been shown above in the text.

The dissenting justices in the De Lima case, however, held that the two cases were harmonious, but not upon the grounds stated by the majority. That which, in their opinion, justified the court in holding in the Fleming case that Tampico was not within the scope of the United States tariff laws was because Congress had not so legislated as to bring it within a collection district or to establish a custom house there. "At Castine," they say, "the instrumentalities of the custom laws had been divested, at Tampico they had not been invested."

4 180 U. S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448.

occupancy of the island by troops of the United States was the necessary result of the war. The result could not have been avoided by the United States consistently with the principles of international law or with its obligations to the people of Cuba. It is true that as between Spain and the United States - indeed, as between the United States and all foreign nations - Cuba, upon the cessation of hostilities with Spain and after the treaty of Paris, was to be treated as if it were conquered territory. But as between the United States and Cuba that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action."

In Dooley v. United States, one of the "Insular Cases" decided in 1901, the doctrine of Fleming v. Page is applied in fixing the status of Porto Rico while under the military government of the United States, but prior to the ratification of the treaty of peace ceding the island to the United States. The court say: "During this period the United States and Porto Rico were still foreign countries with respect to each other, and the same right which authorized us to exact duties upon merchandise imported from Porto Rico to the United States authorized the military commander in Porto Rico to exact duties upon goods imported into the island from the. United States. The fact that, notwithstanding the military occupation of the United States, Porto Rico remained a foreign country within the revenue laws, is established by the case of Fleming v. Page.'

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5 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

6 President McKinley was criticized, and with justice, for issuing on December 21, 1898, that is, on a date prior to the ratification of the treaty with Spain ceding the Philippines, an executive order in which he declared: "With the signature of the treaty of peace between the United States and Spain by their respective plenipotentiaries at Paris on the 10th instant, and as the result of the victories of American arms, the future control, disposition, and government of the Philippine Islands are ceded to the United States. In fulfilment of the rights of sovereignty thus acquired, etc." The treaty was not ratified by the treaty-making power of the United States until the following February, and did not go into effect until April 11, 1899.

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