Fleming v. Page
50 U.S. 603 (1850)

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U.S. Supreme Court

Fleming v. Page, 50 U.S. 9 How. 603 603 (1850)

Fleming v. Page

50 U.S. (9 How.) 603

Syllabus

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

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