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Fleming v. Page. 9 H.

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 governmen 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 may demand the [* 615 ] 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 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 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

19 Stats. at Large, 9.

Fleming v. Page. 9 H.

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, [* 616] 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.

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 estab lished, 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

Fleming v. Page. 9 H.

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 strongerground [* 617 ] 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 dis. trict, 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 sea-coast. 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

1 2 Stats. at Large, 418.

Fleming v. Page. 9 H.

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 [* 618 ] bear upon the question we are considering. For, *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

Marriott v. Brune. 9 H.

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.

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WILLIAM H. MARRIOTT, Plaintiff in Error, v. FREDERICK W. BRune, JOHN C. BRUNE, and WILLIAM H. BRUNE, Copartners, trading under the firm of F. W. BRUNE AND SONS.

9 H. 619.

Under the tariff act of July 30, 1846, 9 Stats. at Large, 46,) duty is to be assessed, not upon the weight of sugar in the invoice, but the weight when landed; although no express direction is contained in any law to make an allowance for loss of weight of sugar by drainage; and although the aggregate value is thus reduced below the aggregate cost named in the invoice.

Appraisers have not authority to fix weights or quantities, only valuations.

A protest, made before duties are finally adjusted and closed, is in season, under the act of February 26, 1845, (5 Stats. at Large, 727,) although moneys had been pre viously advanced on account of the duties.

ERROR to the circuit court of the United States for the district of Maryland, in an action against the collector of the port of Baltimore, to recover back moneys alleged to have been illegally exacted as and for duties upon sugars. The questions upon which the case depended, were, whether the importers were bound by the weights declared in the invoice made at the place of exportation, and must pay duty upon the aggregate weight therein stated, or only on the amount landed. And also whether the requirement of the act of February 26, 1845, respecting a protest, had been complied with. The protest relied on was as follows:

Baltimore, April 9, 1847.

"GEN. WM. H. MARRIOTT, Collector of the Port of Baltimore. "Dear Sir: Having been informed that it is the intention of the secretary of the treasury not to make allowance on the payment of duties on such articles as may result here less in quantity, from loss in weight or leakage, than at the time of shipment, for instance, sugar, molasses, &c., and on which a duty ad valorem, of the invoice is exacted, we hereby protest against the payment of such entire amount of duty, being of opinion that the law at present in force, authorizes an allowance for actual loss in weight or gauge, as shown by the difference in the invoice and the returns of the weighers and gaugers of such cargoes after delivery in this port.

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