Joseph Fleming and William Marshall, Trading Under the Firm of Fleming Marshall v. James Page, Collector of the United States

• Decision Date: 01 January 1850
• Citation: 9 How. 603,50 U.S. 603,13 L.Ed. 276
• Parties: JOSEPH FLEMING AND WILLIAM A. MARSHALL, TRADING UNDER THE FIRM OF FLEMING & MARSHALL, v. JAMES PAGE, COLLECTOR OF THE UNITED STATES
• Court: U.S. Supreme Court

50 U.S. 603

9 How. 603

13 L.Ed. 276

JOSEPH FLEMING AND WILLIAM A. MARSHALL, TRADING UNDER

THE FIRM OF FLEMING & MARSHALL,

v. JAMES PAGE, COLLECTOR OF THE UNITED STATES.

January Term, 1850

THIS case came up from the Circuit Court of the United States for the Eastern District of Pennsylvania, on a certificate of division in opinion between the judges thereof.

It 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

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 30th 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 the 15th of 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 the 14th of 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 the 13th of 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 the 15th of 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 the 29th of December, 1846, military possession was taken by the United States of Victoria, the capital of Tamaulipas;

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 the 19th of December, 1846, the schooner Catharine, an American vessel chartered by the plaintiffs, cleared coastwise from Philadelphia for Tampico.

'On the 13th of 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 the 18th of 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 the 14th of 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 the 14th of 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:——-

'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 30th 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 30th 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, Statutes at Large, 42.

Upon the above certificate of division in opinion, the case came up to this court.

It was argued by Mr. McCall and Mr. Wabster, for the plaintiffs, and by Mr. Johnson (Attorney-General), for the defendant.

Mr. McCall, for the plaintiffs, contended, that Tampico, at the time of the shipment of the goods, being in the firm possession of the United States by conquest and military occupation, was not a foreign country within the meaning of the act of July 30, 1846, and, consequently, that the goods brought in the Catharine were not liable to duty.

The act of July 30, 1846, reducing the duty on imports and for other purposes, provides that there shall be collected on the goods, wares, and merchandise therein enumerated, imported from foreign countries, certain rates of duty.

The first question, then, is, What is a foreign country, within the meaning of the revenue laws?

A foreign country is one exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States. This is the well-settled meaning of the word 'foreign,' in acts of Congress. 1 Gall. 58, 55; 1 Story, 1; 2 Gall. 4, 485; 1 Brock. 241; 4 Wheat. 254.

If, then, Tampico, during its occupation by the forces of the

United States, was not exclusively within the sovereignty of Mexico, it follows that it was not a foreign country, and consequently the goods brought from it were not liable to duty.

Tampico, during its military occupation by our forces, was under the sovereignty and within the jurisdiction of the United States. The sovereignty of Mexico over it was superseded by that of the United States.

This change of sovereignty, as a consequence of firm military occupation, is as settled as any other principle of the law of nations, and has been repeatedly recognized by the highest authority in this country. United States v. Rice, 4 Wheat. 246.

It might suffice to refer simply to the case of Castine, which contains a lucid exposition of the law of nations on the point in question, and is conceived to be decisive of the present case. It is proposed, however, to bring to the attention of the court some additional authorities on the subject of the legal effect of the capture and firm possession—such as existed in the case of Tampico and the State of Tamaulipas—of a portion of an enemy's territory.

The result of the authorities may be briefly stated as follows. The duty of allegiance is reciprocal to the duty of protection. When, therefore, a nation is unable to protect a portion of its territory from the superior force of an enemy, it loses its claim to the allegiance of those whom it fails to protect, and the conquered inhabitants pass under a temporary allegiance to the conqueror, and are bound by such laws, and such only, as he may choose to impose. The sovereignty of the nation which is thus unable to protect its territory is displaced, and that of the successful conqueror is substituted in its stead.

The jurisdiction of the conqueror is complete. He may change the form of government and the laws at his pleasure, and may exercise every attribute of sovereignty. The...