3 In De Lima v. Bidwell (182 U. S. 1), 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 occupation 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 and expediency, hardly seem 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 also 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 said, “ the instrumentalities of the custom laws had been divested; at Tampico they had not been invested.”
In Neely v. Henkel (180 U. S. 109), with reference to the status of Cuba during American occupation, the Supreme Court says:
“ 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 occupancy of the island by the troops of the United States was the necessary result of the war. That 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.
It cannot be doubted that when the United States enforced the relinquishment by Spain of her sovereignty in Cuba, and determined to occupy and control that island until there was complete tranquility in all its borders and until the people of Cuba had created for themselves a stable1 government, it succeeded to the authority of the displaced government so far at least that it became its duty under international law and pending the pacification of the island, to protect in all appropriate legal modes the lives, the liberty, and the property of all those who submitted to the authority of the representatives of this country. That duty was recognized in the Treaty of Paris; and the act of June 6th, 1900, so far as it applied to cases arising in Cuba, was in aid or execution of that treaty and in discharge of the obligations imposed by its provisions upon the United States. The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in 8 of article I. of the Constitution as all others vested in the government of the United States, or in any department of the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.”
In Dooley v. United States (182 U. S. 222), 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 said: “ [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 merchandize imported from Porto Rico to the United States authorized the military commander in Porto Rico to exact duties upon goods imported into that island from the United States. The fact that, notwithstanding the military occupation of the United States, Porto Rico remained a foreign covintry within the revenue laws, is established by the case of Fleming v. Page.”
