levied upon goods entering the port of Tampico, Mexico, at the time it was in the military possession of the United States, were properly levied under the act of Congress laying duties upon goods imported from a foreign country. Chief Justice Taney, who rendered the opinion of the court, said:

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 captured 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 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 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.

Upon first thought it may appear that the doctrine declared in Fleming v. Page is not in harmony with that uttered in United States v. Rice, for, in the former case, it was held that mere military occupation was not sufficient to annex the territory occupied to the United States, whereas, in the latter case, it was declared that military occupation by the forces of another state did. not operate to render the port foreign to the United States. If these two decisions had been given by an international tribunal, and had had reference to the status of the territories viewed internationally, they undoubtedly would have been inharmonious. Looked at from the international side, a country belongs to that power which is in effective control of it. Thus viewed, therefore, Castine belonged to Great Britain while its military forces were in paramount control of it. In like manner, Tampico, viewed internationally, was a port of the United States, and other States would have held the United States responsible for anything that might have occurred there while it was in possession. But when, as was the case both in United States v. Rice and Fleming v. Page, the question was purely one of domestic municipal law, it was within the province of the Supreme Court to determine in each case the status of the territory concerned according to the peculiar municipal or constitutional law which it was interpreting and applying. In other words, in the Fleming v. Page case the Supreme Court would not have been justified in declaring that Tampico did not, during American occupancy, belong to the United States in an international sense; whereas it was justified in holding that, from the viewpoint of

American constitutional law, it was not a part of the United States, any more than, for example, was Cuba during the time of its administration by American authorities.13

During the Great War the armed forces of Germany were in occupation of all the territories of Serbia and Montenegro. The question may be asked as to what international status these States had during this period of occupation. The answer is that, remembering that it lies within the right of each International State to determine the other States which it will recognize as coequals with itself in the family of nations, it is certain that as long as Serbia and Montenegro were in the com

13 For further discussion by the United States Supreme Court of the cases referred to in the text see De Lima v. Bidwell, 182 U. S. 1. In Neeley v. Henkel (180 U. S. 109), with reference to the status of Cuba during American occupation, the Supreme Court said: "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."

In Dooley v. United States (182 U. S. 222), one of the "Insular Cases" decided in 1901, the doctrine of Fleming v. Page was 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 merchandise 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 country within the revenue laws, is established by the case of Fleming v. Page."

plete military occupation of Germany, that country would not admit that these countries were international States in esse; although, if there was no intention of ultimate annexation, Germany might have admitted that they were international persons in posse. Certainly, however, the allies of Serbia and Montenegro would have continued to recognize their international existence. But this would have been not because they asserted that an international State could exist without territory but because they regarded Serbia and Montenegro as still entitled to the territories of which the Germans were in de facto but not in de jure occupation. In the case under consideration, the view of the allies would have been that the de facto military occupation by the Germans was a temporary and tentative one.

CHAPTER XX

DE FACTO AND DE JURE GOVERNMENTS

DISTINCT from the question of the recognition by one State of another body-politic as a sovereign and independent State, is the question as to recognition of a given political organization as the Government of that independent entity. Here, as in the case of the recognition of the State itself, the matter is one for the determination of the political departments of the recognizing or nonrecognizing Governments, according to their judgment as to what the facts warrant or their own public policies dictate.

The question as to the locus standi of foreign Governments is raised in the courts of other Governments when they are called upon to consider the right of the foreign Governments to sue, or their liability to be sued, and when the legal effect to be given to their acts is in question.

De Facto and De Jure Governments. In Part One of the present volume 1 the distinction between de facto and de jure Governments was discussed from the standpoint of municipal law, and the point emphasized that a given Government may be regarded as merely de facto if looked at from the point of view of those who deny its legal legitimacy, while it may properly be declared to be de jure in character when considered from the point of view of those who support it. When, then, a Government is spoken of as de facto merely, it is always to be understood, in municipal law, that it is viewed from the stand

'P. 178.