During the war between the United States and Mexico, the port of
Tampico, in the Mexican State of Tamaulipas, was conquered, and
possession of it held by the military authorities of the United
States, acting under the orders of the President.
The President acted as a military commander prosecuting a war
waged against a public enemy by the authority of his government,
and the conquered country was held in possession in order to
distress and harass the enemy.
It did not thereby become a part of the Union. The boundaries of
the United States were not extended by the conquest.
Tampico was therefore a foreign port within the meaning of the
Act of Congress passed on 30 of July, 1846, and duties were
properly levied upon goods imported into the United States from
Tampico.
The administrative departments of the government have never
recognized a place in a newly acquired country as a domestic port
from which the coasting trade might be carried on unless it had
been previously made so by an act of Congress and the principle
thus adopted has always been sanctioned by the circuit courts of
the United States and by this Court.
This was an action brought by Fleming and Marshall against Page,
collector of the port of Philadelphia, in one of the state courts
of Pennsylvania in 1847 to recover back certain duties on goods,
wares, and merchandise imported into the port of Philadelphia from
Tampico, in Mexico, in March and June of that year. The case was
afterwards, in 1848, taken into the Circuit Court of the United
States for the Eastern District of Pennsylvania and was tried May
term, 1849, when the jury found for the plaintiffs. A motion was
thereafter made on
Page 50 U. S. 604
behalf of the United States to set aside the verdict and for a
new trial on the grounds:
1st. That the learned judge erred in charging the jury that, in
the year 1847, Tampico was not a portion of a foreign country
within the meaning of the first section of the Act of Congress of
the United States passed 30 July, 1846, entitled "An act reducing
the duties on imports, and for other purposes."
2d. That the learned judge erred in charging the jury that in
the year 1847, Tampico was so far under the dominion of the United
States that goods, wares, and merchandise imported from that port
into Philadelphia in March and June of that year were not subject
to the payment of duties.
3d. That the learned judge erred in charging the jury that upon
the facts in evidence, the plaintiffs were entitled to a verdict
for the amount of duties paid under protest on 15 June, 1847, on
merchandise imported in the schooner
Catharine, from
Tampico, into the port of Philadelphia in March and June, 1847.
And the following case was stated for the opinion of the
court:
"
FLEMING AND MARSHALL v. PAGE"
"This action is brought by the plaintiffs, merchants, residing
in the City of Philadelphia, the defendant, the late collector of
the port of Philadelphia, to recover the sum of one thousand five
hundred and twenty-nine dollars, duties paid on 14 June, 1847,
under protest, on goods belonging to the plaintiffs, brought from
Tampico while that place was in the military occupation of the
forces of the United States."
"On 13 May, 1846, the Congress of the United States declared
that war existed with Mexico. In the summer of that year, New
Mexico and California were subdued by the American armies, and
military occupation taken of them, which continued until the treaty
of peace of May, 1848."
"On 15 November, 1846, Commodore Conner took military possession
of Tampico, a seaport of the State of Tamaulipas, and from that
time until the treaty of peace it was garrisoned by American forces
and remained in their military occupation. Justice was administered
there by courts appointed under the military authority, and a
custom house was established there, and a collector appointed,
under the military and naval authority."
"On 29 of December, 1846, military possession was taken by the
United States of Victoria, the capital of Tamaulipas,
Page 50 U. S. 605
garrisons were established by the Americans at various posts in
that state, and at the period of the voyages from Tampico of the
schooner
Catharine, hereinafter mentioned, Tamaulipas was
reduced to military subjection by the forces of the United States,
and so continued until the treaty of peace."
"On 19 December, 1846, the schooner
Catharine, an
American vessel chartered by the plaintiffs, cleared coastwise from
Philadelphia for Tampico."
"On 13 February, 1847, she was cleared at the custom house at
Tampico, on her return voyage to Philadelphia, under a coasting
manifest, signed by Franklin Chase, United States acting
collector."
"The
Catharine brought back a cargo of hides, fustic,
sarsaparilla, vanilla, and jalap, the property of the plaintiffs,
which was admitted into the port of Philadelphia free of duty. The
Catharine cleared again coastwise from Philadelphia for
Tampico, on 18 March, 1847, and in June, 1847, brought back a
return cargo of similar merchandise, owned by the plaintiffs, which
the defendant, acting under the instructions of the Secretary of
the Treasury, refused to admit unless the duties on the merchandise
brought by the
Catharine on her former voyage were paid,
as well as the duties on the goods brought by her on this
voyage."
"Thereupon the plaintiffs, on 14 June, 1847, paid under protest
the duties on both voyages, amounting to $1,529, and brought this
action to recover back the money so paid."
"The question for the decision of the court is whether the goods
so imported by the
Catharine were liable to duty. If the
court are of opinion that they were not so liable, then judgment is
to be entered for the plaintiffs, for the sum of $1,529, with
interest from 14 June, 1847."
"If they are of opinion that they were liable to duty, then
judgment is to be entered for the defendant."
"It is agreed,"
"that all instructions from the several departments of the
government to any of its officers, and all documents of a public
nature, touching the war with Mexico or our relations with that
country, which either party may desire to bring to the attention of
the court, shall be considered as if made part of this case."
"McCALL,
for Plaintiffs"
"ASHMEAD,
for Defendant"
The cause having come on to be argued on the case stated, the
judges of the circuit court were opposed in opinion on the
following point:
Page 50 U. S. 606
"Whether Tampico, in the year 1847, while in the military
occupation of the forces of the United States, ceased to be a
foreign country within the meaning of the first section of the Act
of Congress passed 30 July, 1846, entitled, 'An act reducing the
duty on imports, and for other purposes,' so that goods, wares, and
merchandise of the produce, growth, and manufacture of Mexico, or
any part thereof, imported into the port of Philadelphia from
Tampico during said military occupation were not subject to the
payment of the duties prescribed by the said act, but entitled to
be entered free of duty as from a domestic port."
The first section of the Act of 30 July, 1846, above referred
to, is as follows:
"That from and after the first day of December next, in lieu of
the duties heretofore imposed by law on the articles hereinafter
mentioned, and on such as may now be exempt from duty, there shall
be levied, collected, and paid, on the goods, wares, and
merchandise herein enumerated and provided for, imported from
foreign countries, the following rates of duty,"
&c., Session Laws, Stat. 42.
Upon the above certificate of division in opinion, the case came
up to this Court.
Page 50 U. S. 614
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
The question certified by the circuit court turns upon the
construction of the Act of Congress of July 30, 1846. The duties
levied upon the cargo of the schooner
Catharine were the
duties imposed by this law upon goods imported from a foreign
country. And if at the time of this shipment Tampico was not a
foreign port within the meaning of the act of Congress, then the
duties were illegally charged, and, having been paid under protest,
the plaintiffs would be entitled to recover in this action the
amount exacted by the collector.
The port of Tampico, at which the goods were shipped, and the
Mexican State of Tamaulipas, in which it is situated, were
undoubtedly at the time of the shipment subject to the sovereignty
and dominion of the United States. 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 its 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 country. The United States, it is true, may
extend its boundaries by conquest or treaty, and
Page 50 U. S. 615
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 treatymaking 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 his
power are purely military. As commander-in-chief, he is authorized
to direct the movements of the naval and military forces placed by
law at his command, and to employ them in the manner he may deem
most effectual to harass and conquer and subdue the enemy. 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 operation 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
Page 50 U. S. 616
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.
Again, there was no act of Congress establishing a custom house
at Tampico, nor authorizing the appointment of a collector, and
consequently there was no officer of the United States authorized
by law to grant the clearance and authenticate the coasting
manifest of the cargo in the manner directed by law where the
voyage is from one port of the United States to another. The person
who acted in the character of collector in this instance acted as
such under the authority of the military commander and in obedience
to his orders, and the duties he exacted, and the regulations he
adopted, were not those prescribed by law, but by the President in
his character of commander-in-chief. The custom house was
established in an enemy's country as one of the weapons of war. It
was established not for the purpose of giving to the people of
Tamaulipas the benefits of commerce with the United States or with
other countries, but as a measure of hostility, and as a part of
the military operations in Mexico; it was a mode of exacting
contributions from the enemy to support our army, and intended also
to cripple the resources of Mexico and make it feel the evils and
burdens of the war. The duties required to be paid were regulated
with this view, and were nothing more than contributions levied
upon the enemy, which the usages of war justify when an army is
operating in the enemy's country. The permit and coasting manifest
granted by an officer thus appointed, and thus controlled by
military authority, could not be recognized in any port of the
United States, as the documents required by the act of Congress
when the vessel is engaged in the coasting trade, nor could they
exempt the cargo from the payment of duties.
This construction of the revenue laws has been uniformly given
by the administrative department of the government in every case
that has come before it. And it has indeed been given in cases
where there appears to have been stronger
Page 50 U. S. 617
ground for regarding the place of shipment as a domestic port.
For after Florida had been ceded to the United States and the
forces of the United States had taken possession of Pensacola, it
was decided by the Treasury Department that goods imported from
Pensacola before an act of Congress was passed erecting it into a
collection district, and authorizing the appointment of a collector
were liable to duty. That is that although Florida had, by cession,
actually become a part of the United States, and was in our
possession, yet, under our revenue laws, its ports must be regarded
as foreign until they were established as domestic, by act of
Congress, and it appears that this decision was sanctioned at the
time by the Attorney General of the United States, the law officer
of the government. And although not so directly applicable to the
case before us, yet the decisions of the Treasury Department in
relation to Amelia Island and certain ports in Louisiana after that
province had been ceded to the United States were both made upon
the same grounds. And in the latter case, after a custom house had
been established by law at New Orleans, the collector at that place
was instructed to regard as foreign ports Baton Rouge and other
settlements still in the possession of Spain, whether on the
Mississippi, Iberville, or the seacoast. The department in no
instance that we are aware of since the establishment of the
government has ever recognized a place in a newly acquired country
as a domestic port from which the coasting trade might be carried
on unless it had been previously made so by act of Congress.
The principle thus adopted and acted upon by the Executive
Department of the government has been sanctioned by the decisions
in this Court and the circuit courts whenever the question came
before them. We do not propose to comment upon the different cases
cited in the argument. It is sufficient to say that there is no
discrepancy between them. And all of them, so far as they apply,
maintain that under our revenue laws, every port is regarded as a
foreign one unless the custom house from which the vessel clears is
within a collection district established by act of Congress and the
officers granting the clearance exercise their functions under the
authority and control of the laws of the United States.
In the view we have taken of this question, it is unnecessary to
notice particularly the passages from eminent writers on the laws
of nations which were brought forward in the argument. They speak
altogether of the rights which a sovereign acquires, and the powers
he may exercise in a conquered country, and they do not bear upon
the question we are considering. For
Page 50 U. S. 618
in this country the sovereignty of the United States resides in
the people of the several states, and they act through their
representatives, according to the delegation and distribution of
powers contained in the Constitution. And the constituted
authorities to whom the power of making war and concluding peace is
confided, and of determining whether a conquered country shall be
permanently retained or not, neither claimed nor exercised any
rights or powers in relation to the territory in question but the
rights of war. After it was subdued, it was uniformly treated as an
enemy's country, and restored to the possession of the Mexican
authorities when peace was concluded. And certainly its subjugation
did not compel the United States, while they held it, to regard it
as a part of their dominions, nor to give to it any form of civil
government, nor to extend to it our laws.
Neither is it necessary to examine the English decisions which
have been referred to by counsel. It is true that most of the
states have adopted the principles of English jurisprudence, so far
as it concerns private and individual rights. And when such rights
are in question, we habitually refer to the English decisions, not
only with respect, but in many cases as authoritative. But in the
distribution of political power between the great departments of
government, there is such a wide difference between the power
conferred on the President of the United States, and the authority
and sovereignty which belong to the English crown, that it would be
altogether unsafe to reason from any supposed resemblance between
them, either as regards conquest in war, or any other subject where
the rights and powers of the executive arm of the government are
brought into question. Our own Constitution and form of government
must be our only guide. And we are entirely satisfied that, under
the Constitution and laws of the United States, Tampico was a
foreign port within the meaning of the act of 1846, when these
goods were shipped, and that the cargoes were liable to the duty
charged upon them. And we shall certify accordingly to the circuit
court.
MR. JUSTICE McLEAN dissented.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and on the point or question on which the
judges of the said circuit court were opposed in opinion, and which
was certified to this Court for its opinion, agreeably
Page 50 U. S. 619
to the act of Congress in such case made and provided, and was
argued by counsel. On consideration whereof, it is the opinion of
this Court that Tampico was a foreign port within the meaning of
the Act of Congress of July 30, 1846, entitled "An act reducing the
duties on imports, and for other purposes," and that the goods,
wares, and merchandise as set forth and described in the record
were liable to the duties charged upon them under said act of
Congress. Whereupon it is now here ordered and adjudged by this
Court that it be so certified to the said circuit court.
