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 de-. cisions 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. I; 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.”

5

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."

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

• 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.

§ 165. Authority of De Facto Governments.

The government established and maintained by one State in military possession of territory of another, is, of course, a de facto one, but de facto in a somewhat different sense from that of a government established as a result of a rebellion or civil war. But in either case the authority of the de facto government is to an extent at least recognized. This is adverted to by the Supreme Court in Thorington v. Smith' in passing upon the status of the Confederate Government established during the Civil War.8

78 Wall. 1; 19 L. ed. 361.

8 The court say: "There are several degrees of what is called de facto government. Such a government, in its highest degree, assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the government de jure when restored. It is very certain that the Confederate Government was never acknowledged by the United States as a de facto government in this sense. Nor was it acknowledged as such by other powers. No treaty was made with it by any civilized State. No obligations of a national character were created by it, binding after its dissolution, on the States which it represented, or on the National Government. From a very early period of the Civil War to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States.

But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1) that its existence is maintained by active military power within the Territories, and against the rightful authority of an established and lawful government; and (2) that while it exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force. One example of this sort of government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. A like example is found in the case of Tampico, occupied during the war with Mexico by the troops of the United

§ 166. Status of Conquered Domestic Territory.

In New Orleans v. New York Mail Steamship Co. was considered the status of territory of the Southern Confederacy which had been conquered by the federal forces. The court held that the federal forces in possession might exercise the same absolute authority as in the case of territory conquered from a foreign State, 10

States. It was determined by this court, in Fleming v. Page (9 How. 603; 13 L. ed. 276), that although Tampico did not become a port of the United States in consequence of that occupation, still, having come together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the national forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part. The central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance that its authority did not originate in lawful acts of regular war, but it was not, on that account, less actual or less supreme. And we think that it must be classed among the governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible."

920 Wall. 387; 22 L. ed. 354.

10 "Although the City of New Orleans was conquered and taken possession of in a civil war waged on the part of the United States to put down an insurrection and restore the supremacy of the National Government in the Confederate States, that government had the same power and rights in territery held by conquest as if the territory had belonged to a foreign country, and had been subjugated in a foreign war. The Prize Cases, 2 Black, 635; 17 L. ed. 459; Mrs. Alexander's Cotton, 2 Wall. 404; 17 L. ed. 915; Mauran v. Ins. Co., 6 Wall. 1; 18 L. ed. 836. In such cases the conquering power has a right to displace the pre-existing authority, and to assume, to such extent as it may deem proper, the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its