text:
    Joseph Fleming and William A. Marshall, trading under the Firm of Fleming & Marshall, v. James Page, Collector of the United States.
    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 the 3Gth-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 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 pew 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 yeár 1847, Tampico was so far under the dominion of the United States, that! goods, wares, .and merchandise imported froth 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, against 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 protést, 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 occüpation. 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 offpeace.
    “ On the 19th of December, 1846, the schooner Catharine, an American vessel chartered by the plaintiffs, cleared coast-wise 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, bn 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. Webster, 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 áct of July 30, 1846, reducing the duty on imports and for other purposes, provides that there. shall bé 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 iaws ?
    A foreign country is one exclusively within the sovereignty of a foreign nation, and’without the sovereignty of the United Slates. 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 pccupation by. the forces of the United States, was not exclusively within the sovereignty'bf 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 io the allegiance of those whom it fails to protect, and the cdnquered 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 conquered territory becomes a part of the domain of the conqueror, subject to the right of the nation to which it belonged to recapture it if they can. By reason of this right to recapture, the title of the .conqueror is not perfect until, confirmed by treaty of peace. But this imperfection in his title is, practically speaking, important only in case of alienation toade by the conqueror before treaty. If he sells, he sells subject to the right of recapture.
    But although, for purposes of sale, the title of the conqueror is imperfect before cession, for purposes of government and jurisdiction his title is perfect before cession. As long as he retains possession he is sovereign; and not the less sovereign because his sovereignty may not endure for ever.

      Grotius (ch. 6, book 3, <§> 4), speaking of the right to things taken in war, says that land is reputed lost which is so secured by fortifications that without their being , forced it cannot be repossessed by the first owner. And in ch. 8, book 3, treating of empire over the conquered, he shows tnat sovereignty may be acquired by conquest.
    Wolffius, in his treatise De Jure Gentium (ch. 7, De Jure Gentium in Bello, <5 863), states the doctrine very strongly.
    Puffendbrf, book 8, qh. 11, title “ How Subjection ceases ” ; same author, Treatise on the Duties of the Mán and the Citizen, book 2, ch. 10, § 2; Bynkershoek on the Law of War, Duponceau’s translation, T24; 2 Burlamaqui, 74; Vattel, book 3, ch. 13, and book 1, ch. 17; Martens on the Law of Nations, book 8, ch. 3, § 8; Wheaton, Elements of International Law, p. 440; 7 Co. 17, b; Dyer, 224, a, pl. 29; 2 P. Wms. 75; Cowper, 204; Dodson, 450; 2 Hagg. Consistory Rep. 371; 9 Cranch, 191; 7 Peters, 86; 2 Gall. 485; 4 Wheat. 246; 1 Opinions of Attorney-General, 119.
    These authorities seem to establish conclusively, —
    1st. That, by conquest and firm military occupation, of a portion of an enemy’s country, the sovereignty of the nation to which the conquered territory belongs is subverted, and the sovereignty of the conqueror is substituted in its place.
    2d. That although this sovereignty, until cession by treaty, is subject to be ousted by the enemy, and therefore does, not give an indefeasible title for purposes of alienation, yet while it exists it is supreme, and confers jurisdiction without limit over the conquered territory, and the right to allegiance in return for protection.
    ! It follows that Tampico, while in the military possession of our forces, passed from the sovereignty of Mexico to the sovereignty of the United States, and was subject in the fullest manner to the jurisdiction of the United States, and therefore could in no> correct sense be said to be foreign to the United States.
    . It. cannot be denied that these principles, established by the common consent of the civilized world, must govern the title to conquests made by the United States. As one of the family of nations, they are bound by the law of nations, and the nature and'effect of their acquisitions by conquest must be defined and regulated by that law.
    That (he United States may acquire territory by conquest results from their power to make war. They cannot in this respect be less competent than all the other nations of the world.' The right to acquire by conquest is an inseparable' incident to the right to maintain war.

      Mr. Justice Story, in the third volume of his Commentaries on the Constitution, says, at p. 160: — “ The Constitution confers on the government of the Union the power of making war and of making treaties; and it seems consequently to possess the power of acquiring territory either by .conquest or treaty.”
    And at p. 193:— “As the general government possesses the right to acquire territory, either by conquest or treaty, it . would seem to follow as an inevitable consequéñcé that it possesses the power to govern what it has so acquired.”
    Chief Justice Marshall, in the Am. Ins. Co. v. Canter, 1 Peters, ‘542, treats it as clear. “The Constitution,’* says.he,
    “ ctmfers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory either by conquest or treaty.”
    The messages of the President to Congress during the war, and the instructions from the heads of departments, contain au? thoritative declarations as to the right of the United States tn acquire foreign territory by conquest, and as to the effect of such conquest Upon the sovereignty of the conquered territory, in accordance with the principles above stated. Thus, the President, in his message of December, 1846, says: —“ By the law of nations a conquered territory is subject to be governed by.the conqueror during his military possession, and until there is either a treaty of peace or .he shall voluntarily withdraw from it. The old civil government being necessarily superseded, it' is the right and duty of the conqueror to secure his conquest, and to provide for the maintenance of. civil order and the rights ■ of the inhabitants. This right has been exercised and this duty performed by pur military and naval commanders, by the establishment of temporary governments in some óf the conquered provinces in Mexico, assimilating them as far as practicable to the free institutions of our own country.”
    See also the message of 7th December, 1847.
    The instructions from the Secretary of War to General Kearney, commanding the expedition to New Mexico and California, dated June 3, 1846, (House Doc. No. 60, 1st Sess. 30th Congress, p. 153,) which were • transmitted to General Taylor, with-liberty to observe the same course of conduct in the .departments that might be conquered by him, provide for the establishment of temporary civil governments, recommend the employment of such of the existing civil officers as were known to be friendly to the United States, and would take the oath of allegiance to them, and authorize him to assure the people of those provinces of the wish and design of the United States to provide for them a free government, with the least possible delay, similar to that which exists in our territories.
    See also the instructions of the Secretary of the Navy to the officers commanding the naval forces in the Pacific.
    Reference is also made to the circular from the Treasury Department to collectors and other officers of the customs, which contains the following clause: — “ Foreign imports, which may be reexported in our vessels to Matamoras,- will not be entitled to any drawback of duty; for if this were permitted, they would be carried from that port into the United States, and thus evade the payment of all duties. Whenever any other port or place upon the Mexican side of the Rio Grande shall have passed into the actual possession, of the forces of the United States, such ports and places will be subject to all the above instructions, which are applicable to the port of Matamoras.”

      Mr. Johnson-, for the defendant,
    Page, contended that Tampico, in the year 1847, although in the military occupation of the forces of the United States, was a foreign country within , the meaning of the first section of fhe Revenue Act of 30th July, 1846; and therefore plaintiffs below were not entitled to recover back the duties paid by them.

      Mr. Johnson said that the President, in the exercise of his constitutional power as .commander-in-chief of the army, determined that the war must support itself as far as practicable; that Mexico must be made to furnish contributions in every way. The operations of the army were therefore continued until it conquered as much territory, as originall-y belonged to the old thirteen States, and the capital of the enemy fell into its hands. Our flag covered all this country, and if the argument on the other side is sound, every port in Mexico became a domestic port of the United States. The government may acquire territory under the war power and by conquest; also, under the treaty-making power; and under either it is as much the property of the United States as the territory which belonged to us at the adoption of the Constitution. But with this admission we must stop. ■ The President is not' the government. The argument on the other side implies that the President can acquire whatever territory he chooses. The error is in supposing that an analogy exists between our government and that of England. Thu power to declare war is differently placed. The counsel says that the power to de- ■ clare war carries with it a right .to. conquer the country of the ■' enemy. Bujt Congress alone has the power to declare war, and the President is only the agent of Congress in carrying it on. Sir William Scott and Lord Mansfield may he right when they say, that, instantly upon the conquest of q. country, the laws of England are extended over it. But it is not so with us.
    The cases cited say that the conqueror becomes proprietor. But our Constitution says that Congress has the power to make rules for the. government of territories. If the argument on the other side be sound, it must be the President who has this power. The true view of the subject is, that the President, or rather the United States, had only a quasi ownership of the conquered country. We held it by a military title only. The treaty with Mexico recognized this as Mexican country. When she regained it, her title did not accrue under the treaty with us, but the original sovereignty was reestablished. Our. claim to California does not rest on conquest, but on the subsequent treaty. Instead of the extension of our laws over the acquired territory being the result of mere conquest, as in England, the President recommended that Congress should pass an act for this special purpose.

      Mr. Johnson then referred to and commented upon the following authorities and documents.
    The Foltina, 1 Dodson, 450; Campbell v. Hall, 1 Cowper, 204; Thirty hhds. of Sugar, 9 Cranch, 191; United States v. Rice, 4 Wheat. 246; 1 Black. Com. 257.
    Act of March 1, 1817, “ An act concerning the navigation of the United States.” 3 Stat. at Large, 351.
    Circular of Mr. Crawford, Secretary of the. Treasury, of 29th September, 1817, on the subject of that act.
    Act declaring the existence of war between the United States and Mexico, May 13, 1846. Session Laws of 1846, Stat. at Large-, 9.
    Treaty of peace with Mexico, February 2, 1848. Session Laws, 1848, Stat. at Large, 108.
    President Polk’s message to Congress, 1846-47. 1 Executive Documents, 2d Session 29th Congress, No. 4.
    President Polk’s Message to Congress, 1847-48. 1 Executive Documents, 1st Session 30th Congress, No. 8.
    Circulars of Mr. Walker, Secretary of the Treasury, to .collectors and officers of. the customs Avithin the United States, during .the existence of Avar with Mexico, 11th June, 1846 (1 Mayo, 326); 30th June, 1846 (Ibid. 328); 8th December, 1846 (Ibid. 358); 16th December, 1846 (Ibid. 358); 7th April, 1847 (Ibid. 425).
    President Polk to Secretary Walker, 23d March, .1847, 1 Mayo, 412.

      Secretary Walker to the President, 30th March, 1847, 1 Mayo, 413.
    President to Secretaries of War and Navy, 31st March, 1847, 1 Mayo, 415, 417.
    Instructions of Secretaries of War and Navy to officers, 3d April, 1847, 1 Mayo, 416, 417.
    Secretary Walker to' the President, 10th June, 1847, and ordérs of President thereon, 1 Mayo, ‘425.
    The same to the same, 5th November, 1847, 1 Mayo, 425, 426.
    The same to the same, 16th November, 1847, Ibid. 426,' 427.
    Commodore Conner’s despatch as to surrender of Tampico, 17th November, 1846. 7 Executive Documents, 1st Session 30th Congress, No. 60, p. 270.
    See also General Taylor’s despatch to Adjutant-General, 26th November, 1847, Ibid. 378.
    The construction contended for by the other side would render illegal the whole action of the government. A tariff was prescribed under the authority of the President, by which certain duties were levied upon goods when imported into Mexican ports when they were in our possession. Where did he get that power ? Not from any act of Congress laying those duties, but in virtue of his character as commander-in-chief of the army, and in the exercise of military authority over the conquered country. If these pórts were within the United States, the President would have no right to collect a revenue from them. The money was not only collected, but also disbursed by officers of the army and navy for the maintenance of the public service, without being brought into the treasury of the United States. All this practice must be condemned, and the money thus collected refunded, if the court should decide Tampico to have been an American port. All the inhabitants, too, must have become converted into American, citizens.

      Mr. Webster, in reply and conclusion, said that there was a difference between the Territories and the other parts of the United States. Judges were there appointed for terms of years, which the Constitution forbade as to other parts of the country. Hence, the part of the Constitution which directs that duties must be equal in all the ports of the United States does not apply to Territories. A foreign country is that which is without the sovereignty of the United States, and exclusively within the sovereignty of some other nation. In the Castine case, this court decided that, the question must be tested by the sovereignty. If that is in the United States, then the port is not a foreign port. Its. being held under a military power makes ho difference. We think it is the fact, of sovereignty which decides to what nation the port belongs. The difference between this country and England, as. to the source of the war-making power, is supposed by the Attorney-General to create a difference in the rule which governs exports and imports; but he shows no reason or authority for this conclusion. If the fact of sovereignty exists, it is no matter whether there was a war .or not. His argument is, that the acquisition accrues to Congress, because Congress possesses the war-making power. We' agree that the acquisition accrues to the government which conquers it, and if he could show that it does not accrue to the crown in England until there is some act of acceptance; then his argument would have weight. But there is no casé to show this. The presumption is, that the acquisition accrues to the power which makes the conquest; and that sovereignty vests immediately. 1 Cowper,. 208. The- best exposition of this matter is, contained in Executive Documents, House, No. 20, 2d Session of the 30th Congress. The right to conquer the territory of the enemy, and levy contributions,1 is claimed under the laws of nations. Congress could not have directed-the mode of carrying on the war. The consequences of acts done under the. laws of nations are just the-same in this .government as in all others. The theory that a conquest accrues to the king in England is merely technical. • As to Florida, the treaty was not ratified until, 1821 or 1822, although made in 1819. The Treasury Circular of 29th June, 1845, recites a circular from the Department issued in the Florida case, saying that goods from Pensacola must pay duties until Congress created a collection district there. But this was a- misapprehension of the true ground of this decision. The Attorney-General (Ex. Doc., 2d Session 25th Congress, p. 358), in the case of the Olive Branch, said that the jurisdiction of the former sovereign continued until - possession was. delivered. The reason was, that' Florida was not ceded. The vessel sailed from Pensacola on the 14th of July, and possession was'not delivered to the United States until the 17th of July.
    The Attorney-General says, that our title to California rests: upon-treaty, and not upon' conquest. But it was oúrs before the treaty was .made, and goods were brought' from there into the United States free of duty. In the case of- Tampico,' how can we move an inch without seeing that it was an American port? Here áre instructions from the executive department, of the government to regulate things there for a year before Congress took up the matter. An effort is made to connect this subject with the military contributions. But they are not alike. This case relates to our own office in the city of Philadelphia. It has no connection with contributions levied in Mexico, or collecting duties there. Tampico belonged to us just as much as Castine belonged to the British. Possession for one purpose is possession for all purposes. If it did not belong to us, whose was it ? Did it belong to Mexico ? Suppose a British or French fleet had attacked it whilst our flag was -flying oyer it, would it.not have been considered as making war upon the United States ?
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The question certified by the Circuit Court turns upon the construction of the act df Congress of July 30, 1846. ' The duties levied upon the cargo of the schooner Catharine were the duties imposed by this law-upon goods imported from a foreign country. And if at the. time of this shipment Tampico was not a foreign port within the meaning of the act of Congress, then the duties were illegally charged, and, having been paid under protest, the plaintiffs would be entitled to recover in this action the amount exacted by the collector.

The port of Tampico, at which the goods were shipped, and the Mexican State of Tamaulipas, in which it is situated, were undoubtedly at the time of the shipment subject to the sovereignty and dominion of the United States. The Mexican authorities had been driven out, or had submitted to' our army and navy;. and the country was in the exclusive and firm possession of the United States, and 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 government 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 enémy’s country. The United States, it is true, may extend- its boundaries by conquest or treaty, and may demand the 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 ter? ritory 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 acquires territory by treaty or conquest holds it accordirig 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 hot 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 subjéctión was simply that of a military-commander prosecuting a war waged against a public enemy bv the authority of his., government. And the eountry 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 íemáined 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 ; ñor did our laws extend over it. Tampico was, therefore, á foreign port when-this shipment was made.

Again, there was no act ;of Congress establishing a customhouse 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 perse n 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 hy the President in his character of commandér-in-chief. The custom-house was established in an enemy’s country, as one of the weapons of war. It was established, 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 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 ány 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 théy 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 stronger ground 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 district, 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 províncé had been ceded to the -United States, were both made upon the same grounds. And in the latter case, after á 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 thát 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 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. If 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 customhouse 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 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 térritory 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. Arid certainly its subjugation did riot 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 depártments of government, there is such a Wide difference between the power conferred On the President of the Unitéd 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 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, ánd that the cargoes were'liable to the. duty charged upon them. • And we shall certify accordingly to the Circuit Court. ■

Mr. Justice McLEAN dissented.

Order.

This cause came on to be heard- on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and on the point or question on which the judges of. the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that Tampico was a foreign port within the meaning of the act of Congress of-July 30, 1846, entitled “An act reducing the duties on imports, and for other purposes,” and that' the goods, wares, and merchandise as set forth and described in the record were liable to the duties charged upon them, under said act of Congress. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

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text:
    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 & Sons.
    By the eleventh section of the act of Congress passed on the 30th of July, 1846 (Stat. at Large, Pamphlet, page 46), the duties upon imported sugar are fixed at thirty per cent, ad valorem.

    The true construction of .this law is, teat the duty should be charged only upon that quantity of sugar and molasses which arrives in our ports, and not upon the quantity which appears by the invoice to have been shipped; an allowance, being proper for leakage.
    The proviso in the eighth section, viz. “ that under no circumstance shall the duty be assessed upon an amount less than the invoice value,” is not in hostility with the above construction, because the proviso refers only to the price, and not to the quantity.
    A protest made after the payment of the duties charged, and after the case had been closed up, will not enable a party to recover back the money from the collector; but if the protest be made in a single case, with a design to include subsequent cases, and the money remains in the hands of the collector without being paid into the treasury, and it was so understood by all parties, such a protest will entitle the importer to recover the money from the collector.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Maryland.
    , It was an action of assurr>psit brought by F. W. Bruñe & Sons against William H. Marriott, the collector of the port of Baltimore, to recover hack certain duties upon importations of sugar and molasses, which, it was alleged, had- been illegally charged, and paid under protest.
    The importations were made in various vessels, and at various times, between the 2d of February, 1847, and the 4th of November, 1848.
    On the 3d of February, 1847; the Secretary of the Treasury addressed to Mr. Marriott the following letter : —

      “ Treasury Department, February 3d, 1847.
    “ Sib, — For your information and government, in regard to allowances to be made for deficiencies and leakage on imports, where quantities are ascertained by weighing, gauging, or measuring, I transmit a copy of my instructions to the collector of New Orleans, of the 30th ultimo, fixing the principles on which said allowances are to be made.
    “ I am, very respectfully, your obedient servant,
    “ (Signed,) R! J. Walker, Secretary of the Treasury. “ Wm. H. Marriott, Esq., Collector of the Customs, Baltimore.
    The copy of the instructions referred to in the above letter was as follows: —
    “ Tréasury Department, January 30th, 1847;
    “ £5ir, — In reference to the subject stated ip your letter of the 7th instant, respecting allowances for deficiencies and invoice value, I would remark, that the law makes no distinction between articles subject heretofore to specific rates of duty, but now liable to ad valorem duty, in the mode of ascertaining quantities with a view to fix the values on which the duties are to be assessed. Whatever allowance, therefore, would have been made under former laws on árticles subject to. specific duty, would inure under existing laws on articles of thé saíne description now liable to ad valorem rates of duty. Consequently, where the specific duty was heretofore levied on the actual quantity landed, as ascertained from actual weighing, gauging, or measuring, the same course is to be pursued in regard to the same description of articles under existing rates of duty.
    “ If, therefore, the quantity of any article falls short of the amount given in the invoice, on due ascertainment, as before slated, an abatement of the duties to the extent of the deficiency should be made. If, on the contrary, it be found to exceed the quantity stated in the invoicé, the aggregate cost or value must be made to correspond with such increase, and the duties estimated and assessed accordingly.
    “ The allowances authorized by the 58th and 59th sections of the act of 2d March, 1799, chap. 128, to which you refer, are still to be allowed. It is therefore to be observed, that the allowance made in the 59th section, of two per cent, for leakage, applies solely to the case of liquors known in commerce as such, and as contradistinguished from liquids of any other description.
    “ I aril, very respectfully, your obedient servant,
    “R. J. Walker, Secretary of the Treasury.
    “ Denis Prieur, Collector of the Customs, New Orleans."

      On the 24th of March, 1847, the Treasury Department issued the following circular, through the medium of the telegraph: —

      “ E. Mag. Telegraph, March 24, 1847, Washington.

    “ Sir, — By direction of the Secretary of the Treasury, you ate requested to make no allowances for deficiencies to invoices until further advised.
    “(Signed,) Me. Young, Chief Clerk.

    “ L. M. Chasteau, U. S. Tel.”

    On the same day, the following circular was transmitted through the post-office: —

      Circular to Collectors and other Officers of the Customs.

    “ Treasury Department, March 24, 1847.
    “ The attention of the Department having been specially called to the subject of allowances for deficiency, drainage, leakage, and breakage, under the existing laws, and particularly in reference to the provisions of the 58th and 59th sections of the act of 2d March, 1799, it is decided that in all cases where allowances are claimed under said sections, or either of them, the appraisers, or other proper officers, shall first ascertain whether any deficiency, damage, leakage, or breakage has occurred during the voyage of importation, by stress of weather or other accident at sea, and if so, and the actual-leakage, deficiency, of breakage cannot be otherwise ascertained, then to make the allowance as the case may be, for draught, tare) leakage, or breakage, to the extent authorized by said sections; but if said damage,’ deficiency, leakage, or breakage, so-occurring as before mentioned, shall'be found by said appraisers or other officers to be less thari the amount authorized by said sections,, then the allowance shall only be for the actual, damage, deficiency, leakage, or breakage ; and if the amount be ascertained, to be actually greater than the amount allowed in said sections, the actual damage, deficiency, ■ leakage, .or breakage shall still be allowed, subject to limitations and restrictions imposed by former circulars.
    “ It must be remembered that draught can be allowed only on articles imported in bulk, and tare' on articles imported in casks, barrels, bags, boxes, or other packages, and leakage in the case of liquors; but when there is an allowance for tare, draught, leakage, or breakage, it must be confined to a separate allowance for one of them, and cannot be extended to two or more.
    “ Under the 58th section, the allowances for draught or tare are only permitted on ‘ articles subject to duty by weight9; and under the 59th section, the allowance for leakage and breakage is confined to liquors ‘ subject to duty by the gallon ’; and there are no duties imposed by the act approved 30th July, 1836, either by weight or gallon; it is an extremely liberal construction to allow in any case any operation whatever to those sections, even to the limited extent permitted by these instructions.
    “(Signed,) R. J. Walker, Secretary of the Treasury.99

    On the 9th of April, 1847, Bruñe & Sons addressed the following protest to the collector at Baltimore: —
    “ Baltimore, 9th April, 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.
    . “ We desire that this protest should extend to all our importations of sugar and molasses since the operation of the present tariff, viz.: —
    Water Witch, from Aricibo, entered 17th November, 1846.
    J. E. Ridgway, from Aricibo, entered 8th February, 1847.
    Juliet, from St. Thomas, entered 15th February, 1847.
    United States, from Ponce, entered 26th February, 1847.
    San Jacinto, from Havana, entered 26th February, .1847.
    Creed, from Cardinas, entered 1st March, 1847.
    At New York, O. Thompson, from Aricibo, entered 3d March, 1847.
    At New York, Sophia, from Ponce, entered 4th March, 1847.
    At New York, Sarah Adams, from Ponce, entered 9th March, 1847.
    At New York, Seboris, from Mayaguez, entered 10th March, 1847.
    Francis Partridge, from Ponce, entered 2d April, 1847 ; and Oceola, from Mayaguez, entered this day.
    “ The protest upon our previous importations was not made at the time of entry, because we were informed that a fair allowance would be made, but regret now to learn that the original instructions of the Secretary of the Treasury have been countermanded. We are credibly informed that allowances have, in cases similar to the above, actually been made in neighbouring places, and we think ourselves entitled to equal consideration.
    “We have the honor to be, deaf Sir, your most obedient servants,
    “(Signed,) F. W. Bktjne & Sons.”
    On the 28th of June, 1847, Bruñe & Sons addressed the following letter to the Secretary of the Treasury: —
    “ Baltimore, June 28th. 1847.
    “ Sik, — We are informed by the . collector of the customs of this port, that he will refund us, on our importations of molasses, the differences of duty calculated at thirty per cent, ad valorem on invoice amount, and what the same would be, taking the net gauge of the casks here as the basis; in other words, allowing for the loss of molasses on the voyage. The collector says, that he'will make this return on importations made from the 1st of May last. Now, we have been protesting against the full dirty, which has been exacted from us since a length of time, qnd we would respectfully inquire whether, in your opinion, we are not entitled to a similar, return on all our importatioils since the 1st of December last, when the present tariff, went into (Operation. If such is your decision, will you. direct instructions to that effect to be given to the collector?
    . “ We would further respectfully ask whether you do not think the duty upon sugar (especially Muscovado, which from its nature is subject to a considerable loss on the voyage) should be estimated in the same manner as that' on molasses ; namely, calculating thirty cents ad valorem on the cost .of the weight landed here, not on the weight shipped; thus making an allowance for an unavoidable drainage, or rather only charging duty on the pounds of sugar actually brought into the country, and into consumption.
    “ Hoping you will favor us with an answer to our foregoing inquiries, we remain, &c., &c.”
    To which letter the following reply was received: —
    “ Treasury Department, August 9th;-1847.
    “ Gentlemen : — In reply to your letter of the- 6tn instant, covering a copy of your former letter of the 28th of June last, asking to have the principles of the circular of the 27th of May last applied in the case of importations of molasses made prior to the date of said circular, I beg respectfully to refer you to the inclosed copy of the decision of the Department on a similar application from Moses Taylor and others, importers of molasses at the port of New York, dated the 16th ultimo.
    “ I would add, that the Department has not deemed it expedient to apply the principles of the circular of the 27th of May last to the importations of sugar. Very respectfully,
    “ McC. Young,. Acting Secretary of the Treasury.

      “ Messrs. F. W. Beune & Sons, Baltimore.”
    The letter to Moses Taylor and others, referred to in the above letter, was as follows: —

      “ Letter from the Secretary of the Treasury to Moses Taylor and others, importers of molasses, New York.

    “ Treasury Department, July 15th, 1847.
    “ Gentlemen : — The Department duly received the letter signed by yourselves and other importers of molasses, at the port of New York, dated the 2d ultimo, asking to have the principles established by the circular instructions of the 27th of May last, for estimating the loss or deficiency in the article of molasses occasioned by fermentation, stress of weather, or accident during the voyage of importation, applied to all importations of molasses, made prior to the date of said instructions, running back to the. day the present tariff went into operation.

      “ In reply, I would respectfully state that the Department does not feel authorized, under the circumstances of the case, to give a retrospective effect to the regulations referred to, as desired in your application. Very respectfully,
    “ It. J. Walkek, Secretary of the Treasury.”
    On the 5th of June, 1848, the following circular was issued by the Treasury Department: —

      “ June 5th, 1848.

      “ Your attention is called to circular instructions of the Department, 24th March, 1847, on subject of allowance for'deficiency, &c. It is represented, that at some of the ports, notwithstanding, those instructions, allowance is made for tare and draught beyond actual deficiency. This must in no case be permitted, nor can any allowance be made in any case, whether under the name of tare, or draught, or otherwise, beyond the actual deficiency which has occurred during the voyage of importation by stress of weather or accident at sea.
    “ As regards allowance for lost or missing packages, or sepárate articles, included in the manifest, but not found in vessel at unlading in United States, you will he governed by regulation in circular of 31st December, 1847, p. 1; but in cases where no such package has been lost or missing, .no allowance or abatement of duties can be made for any alleged deficiency in any.of [the] packages imported, such allowance or abatement being exclusively confined to actual deficiency of any article which may be discovered in packages when opened, as prescribed in last proviso to 21st section of act of 30th August, 1842, it 'being observed, as enjoined, in circular of 18th December, 1847, that such allowance can then only be made in cases where [it] satisfactorily appears to appraisers that the package had not been before opened after shipment for United States, and where the package has not passed out of custody of officers of customs.”
    The general protest made on the 9th of April, 1847, by Messrs. Bruñe & Sons, has .been, already set forth. Afterwards they made a special protest in each of six several importatioiis,. but there were thirteen other importations made after the 9th of April, 1847, respecting which they relied upon the efficacy of the general protest of that day.
    After the decision of fhe court in Cary v. Curtis, 3 Howard, 236, Congress passed an act, on the 26th of February, Í845, which, among other things, provides: — “ Nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest be made in writing, and signed by the claimant,. at and before the payment of such duties, setting forth distinctly and specifically the. grounds of objection to the payment thereof.” See this act, and the sécond section of the act of 1839, which it was designed to alter and-explain, 5 Stat. at Large, 349.
    Ope of the questions before the court was, whether under this act the general protest made on the 9th of .April, 1847, would cover importations made after that day.
    On the 4th of November, 1848, Bruñe &. Sons brought their' action against Marriott in the Circuit Court. At April term, 1849, the cause came on for trial, when the following state- , ment of facts wag agreed upon by the counsel. • It is not necessary to copy the tabular statements referred to, because the explanation of them is deemed sufficiently intelligible.

      “ Statement of Facts.

    “It is admitted • that the schedule A, herewith filed, to be taken as part of this statement, in its first, second, and third columns, correctly exhibits the importations of sugar and molasses by the plaintiffs into the port of Baltimore, between the 8th of February and the 8th of November, A. D. 1847,. both inclusive, and likewise the names of the vessels by which, and the places,from which,, such importations were made, and the dates of the entries of such importations j that column four exhibits the kind of goods so imported, and how they were contained ; that column five exhibits the quantity in pounds of the sugar, and in gallons of the molasses, shipped in the West Indies, as stated in the invoices which accompanied such importations ; that column seven exhibits the dutiable value in foreign currency (including all costs and charges) of thé goods mentioned in the said invoices,- which in column eight is changed into American currency, and upon this value, duties were computed and exacted by the defendant of the plaintiffs, and paid by them in order to get possession of their said goods, and that the amounts of duties so exacted and paid are stated in column nine.
    “ It is further admitted, that all the goods imported by the plaintiffs, as aforesaid, after their arrival and entry at the custom-house, were by the direction of the defendant submitted to the examination of weighers and gaugers, officers belonging to the custom-house, and who made returns of the weight and gauge respectively of the goods submitted to them, which returns are correctly exhibited in column six.
    “ It is further admitted, that if column eight correctly exhibits the value at the place of shipment of the quantity of goods mentioned in the invoices, including costs and charges, and exhibited in column five as having been shipped, then column ten exhibits the proportionate value at the place of shipment of the diminished quantity of goods, as ascertained by said officers to have arrived in Baltimore, and exhibited in column six, including their proportionate share of costs and charges; that column eleven exhibits the amount of duty, at thirty per cent, ad valorem, on the goods as valued in column ten; that column twelve exhibits the excess of duties alleged by the plaintiffs to have been overpaid by them, and the aggregate of the sums in this column'constitutes the claim, without interest, which they seejk to recover in this action.
    . “ The plaintiffs also claim interest on the alleged over-payments appearing in column twelve, from the time of such payments respectively, and which interest is to be hereafter correctly ascertained.
    “It is agreed that column ten of schedule B exhibits the value in American currency of the deficiency of the goods upon arrival, as compared with the invoices, agreeably .to the ascertainment of the actual quantity of goods arrived, by the gauger and weigher respectively, no account being taken of costs and charges, except in the case of molasses, the proportion of commission being allowed on that article.
    , “ It is also agreed, that column eleven in said schedule exhibits the amount of thirty per cent, on the value of such deficiency so exhibited.
    “ It is further admitted, that the above-mentioned deficiency between the quantity of goods which arrived, according to the returns of the government officers; and that appearing in the invoices, occurred on, and was produced by, the voyage of importation. And it is also admitted, that allowances for damage to sugar and molasses injured by a peril of the sea on the voyage of importation are calculated in the mode contended for by the plaintiffs as the true mode of ascertaining their alleged over-payments.
    “ It is further admitted, that upon the 9th of April, 1847, the plaintiffs addressed and delivered to the defendant the general notice or protest in writing signed by them, and herewith filed, marked C; and likewise, at the time of the entries of the cargoes of the Uzardo, Samuel G. Mitchel, Isabella, G. W. Russell, W. J. Watson, and Aristes, respectively addressed and delivered to the defendant a- special notice or protest in writing, signed by -them, and copies of which protests are herewith filed, marked D.
    “It is further submitted, whether the protest of the 9th April, 1847, can be applied to the excess of duties claimed to have been paid unjustly upon the cargoes of any vessels on whose cargoes the deficiencies were ascertained and finally adjusted before the date of said protests, and whether it can be applied to the cargoes of those vessels whose deficiencies were not finally adjusted by the impost clerk, and whose duties were not finally charged to the collector in his accounts until after said protest, although said deficiencies were ascertained in fact by the gauger and> weigher respectively; and whether such general protest can be applied to any subsequent importations and payments of the plaintiffs in regard to which there was no especial protest.
    “ And it is admitted, that the deficiencies upon all the cargoes arriving before the- Sarah Adams had been ascertained by the gauger and weigher-respectively, and returned by them to the defendant, and had been finally adjusted by the impost clerk, and that the duties on such cargoes had been charged to the defendant in his accounts with the treasury before the 9th of April, 1847; but it is admitted, that although the gauger and weigher had returned to the defendant the deficiencies on the cargoes of the Sarah Adams, Sebois, and Magnolia, yet that the impost clerk, whose .duty it is to compare siich returns with the invoices, did not ac.t'thereon and ascertain and adjust the true amount of duties due on such cargoes, and report thereon to the defendant, until after the said 9th of April, 1847.
    “ And it is further admitted, that the gauger and weigher did not make their returns of the deficiency in the cargo of the Frances Partridge until the 10th of April, 1847.
    “It is also admitted, that the custom,of the importing merchants of Baltimore in the sale of sugar and molasses is as follows, viz.: — Sugar is sold per pound, that is, at a given price per.hundred pounds, and molasses per gallon, upon the quantity returned by the weigher and gauger as having been imported, without any reference in either case (as to the price) whether a deficiency in quantity has been suffered on the voyage of importation or not, and also that in no case is the cask in-' which the sugar or molasses is contained sold separately by said importing merchants.
    “ Arid it is also admitted, that in all importations of sugar from Porto Rico no charge for casks appears in the invoices, but that in importations of molasses from that island,, and of sugar and molasses from- Cuba, a separate charge is made for the cask.
    “ It is agreed, that any acts of Congress, and the instructions of the Secretary of the Treasury, and his correspondence with the plaintiffs, may be referred to by either party for whatever purpose they may be legally available.
    “ Upon the foregoing statement of facts, the questions to be submitted to the court are, —
    “ First. Whether the amount of duties, or any part thereof, exacted by the defendant and paid by the plaintiffs was illegally exacted, by reason of being charged upon the. entire amount and value of the goods appearing in the invoices to have been shipped, without any allowance for the deficiency in weight or gauge .from the voyage of importation, as shown by the returns of the government officers; and,
    “ Secondly. Whether the plaintiffs can recover back in this suit the duties so exacted, [or] any part thereof.
    “ If upon these questions the opinion of the court should be in favor of the plaintiffs, then the court shall give judgment for the plaintiffs, with costs; hut. if on these questions the opinion of the court should be in favor of the defendant, then judgment shall be entered for the defendant, with costs. And it is further agreed, that if the judgment in this case should be in favor of the plaintiffs, the amount, including interest, for which the judgment. shall be entered up may be hereafter calculated, in conformity with the principles which the court shall decide to govern the base, with' liberty to either party to appeal from the judgment of the court, and with the further agreement, as part of this statement, that the court shall be at liberty to draw such inferences from the facts above stated as a jury might or would draw therefrom, and that either party shall hereafter have power to add to this statement any fact , admitted by the other party to exist, which may be deemed essential by the court for the proper decision of the above questions.

      “ Brown & Bruñe, for Plaintiffs.

    W. L. Marshal, for Defendant.”
    Upon this statement of facts the opinion of the Circuit Court, as delivered by Mr. Chief Justice Taney, was, that the allowance for drainage and leakage ought to be made, and that the reduction ought to be made according to the dutiable value of the portion lost. With respect to the sufficiency of the protest, the court held that the protest of 9th April, 1847, could not apply to payments .previously made, and the plaintiff was not entitled to recover them ; but that it covered all cargoes where the duties had not before been finally assessed and adjusted by the collector. '
    The court thereupon entered judgment for the plaintiffs, on the case stated, for' the damages laid, in the declaration, and costs, to be released on payment of §5,274.29, with interest from the 19th of May, 1849, until paid, and costs of suit.
    From this judgment Mr. Marriott sued out a writ of error, and brought the case up to this court.
    It was argued by Mr. Johnspn (Attorney-General), for the plaintiff in error, and Mr. Bruñe, for the defendants in error.

      Mr. Johnson made the following points: —
    1. That the duties were properly assessed upon the amount of the invoices, under the eighth section of the Tariff Act of 1846.
    2. That the loss of the sugars from drainage entered into the estimation of their value at the time of purchase, and their cost to the importer at the time of landing in this country. •

      3. That the general protest of 9th April,-1845, 4s not sufficient to cover the duties on sugars imported subsequent thereto, but that a protest in each subsequent importation is required by law. Act of 26th' February, 1845 (5 Statutes at. Large, 727). ■
    4. That the protest mus( be made at ánd before the payment of the estimated duties, this payment being necessary to obtain the goods by the importer. Act of 26th February, 1845 (5 Statutes at Large, 727); ■§> 49 of the Act of 2d March, 1799 (1 Statutes at Large, 664).
    In the course of his argument, Mr. Johnson referred to the following Treasury circulars, in addition to those above stated: — Mr. Secretary Walker to Collectors and other Officers of the Customs, 25th November, 1846 (1 Mayo, 349); 24th March, 1847 (Ibid. 360); 27th May, 1847 (Ibid. 362); 31st December, 1847 (Ibid. 404, et seq.; see voce “ Allowances,” 405; see also voce “Invoices,” 407); 5th June, 1848 (printed copy); 12th June, 1848 (printed copy); 1st February, 1849 (printed copy). Mr. Secretary Meredith, 27th July, 1849 (printed copy); 10th August, 1849 (printed copy).

      Mr. Bruñe, for the defendants in error,
    made the following point's: —
    L That they were only chargeable by law with duties upon the value of quantities of goods actually imported by them, as shown .by the returns of the weighmasters and gaugers, and not upon the value of any portions of such goods lost upon the voyage of importation.
    2. That, as there is no evidence in the case, by appraisement or otherwise, of any undervaluation in the invoice value of the goods shipped at the foreign ports, the invoice values must be held to be the true dutiable values of the goods 30 shipped; and, as fall dufies have been exacted from the defendants in error upon the whole quantity of goods shipped, and as if it had all arrived, without any allowance or deduction for such portion of such goods as was lost on the voyage, they may now recover the sums exacted by way of duty upon the portion of goods so lost.
    3. That the defendants in error, by the protest of the 9th of April, 1847, and their other protests subsequent thereto, have sufficiently complied with the provisions of the act of 1845, ch. 22; and under them the plaintiff in error is liable in this action for the sums exacted by way.of duty upon, goods lost by leakage or drainage on the voyage of importation,- belonging to all the cargoes entered on and after that day, as well as belonging to cargoes previously entered, but which were not then finally adjusted.
    In the argument of the first and second points, the counsel referred to the following acts of Congress: —1799, ch. 22, <§><§> 21, 49, 72 (1 Stat. at Large, 627); 1818, ch. 79, <§><§> 4, 5, -9, 15 (3 Stat. at Large, 433); 4823, ch. 21, <§><§> 1, 4, 5, 16 (3 Stat. at .Large, 729) ; 1828, May 19, <§> 8 (4 Stat. at Large, 273); 1832, July 14, <§><§> 7, 15 (4 Stat. at Large, 591, 593); 1842, ch. 270, <§><§> 16, 21, 24 (5 Stat. at Large, 548); 1846, July 30, §<§> 1, 4, 8.
    And to the following acts, authorizing allowances : —1799, ch. 22, <§<§> 52, 58, 59 (1 Stat. at Large, 627); 1818, ch. 79, <§4 15, 16 (3 Stat. at Large, 433); 1823, ch. 21, § 21 (3 Stat. at Large, 729); 1842, ch. 270, $ 21 (5 Stat. at Large,'548), to be taken in connection with <§> 22 of the act of 1818, and <§> 15 of the act of 1823, just cited.
    And to the following acts in construction of the proviso of the eighth section of the act of 1846, viz.: —1818, ch. 79, <§><§> 9, 11, 12; lé (3 Stat. at Large, 433); 1823, ch. 21, <§><§> 13, 14,21 (3 Stat. at Large, 729).
    For the construction of the term imports, to United States v. Lyman, 1 Mason, 482; United States v. Lindsey, 1 Gallison, 365; United States v. Vowell, 5 Cranch, 368.
    Upon the third point,, to the acts of 1839, ch. 82, § 2(5 Stat. at Large, 348); 1845, ch. 22 (5 Stat. at Large, 727); and to Elliot v. Swartwout, 10 Peters, 137; Swartwout v. Gihon, 3 Howard, 210, 239-241, 255; Casy v. Curtis, Ib. 251.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The plaintiff in error in this case seeks to reverse a judgment below, which enabled the Bruñes, as importers of certain sugars into Baltimore, to recover back from the collector a supposed excess-of duties, which had been paid upon, them. In some of the cargoes there was a small quantity of molasses, but both are regarded as resting on the same basis. The points involved are three in number.

1. What should be the true amount of duties in this case under our revenue system, looking to the general legislation on the subject, and to the nature of the transaction ?

2. Whether the result which may be thus' obtained should be affected or prevented by the special proviso in the eighth sec- . tion of the law of 1846 ?

3. Whether the protests, filed by the importers, were such as to enable them in point of law to recover back all which has .been allowed by the court below ?•

In considering the first question, it is. to. be noticed that the duties to be paid on imported sugar are now regulated chiefly by the act of Congress of July 30th, 1846. (9. Stat. at Large, 46.) By the eleventh section of that act the duties are fixed at thirty per cent, ad valorem. The collector here exacted that rate on the quantity of sugar named in the invoice and shipped from foreign ports. But the quantity which arrived and was entered here was less than that shipped, by drainage and waste, to the extent- of near five per cent.-; and' the defendants contended that the duty should be paid only on that diminished quantity.

The general principle applicable to such a case would seem to be, that revenue should be collected only from the quantity or weight which arrives here. That is, what is imported, —for nothing is imported till it comes within the limits of a port. (See cases cited in Harrison v. Vose, 9 Howard, 372.) And by express provision in all our revenue laws, duties are imposed only on imports from foreign countries; or the importation from them, or what is imported. (5 Stat. at Large, 548, 558.) The very act of 1846 under c msideration imposes'the duty on what is “imported from foreign countries.” (p. 68.) The Constitution uses like language on this subject. (Article 1, <§><§> 8, 9.) Indeed, the general definition of customs confirms' this view; for,- says McCulloch (Vol. I. p. 548), “Customs are duties, charged upon commodities on their being imported into or exported from a country.”

As to imports, they therefore can cover nothing which is not actually brought into our limits. That is the whole amount which is entered at the custom-house ; that is all which goes into the consumption of the country; that, and that alone, is what comes in competition with our domestic manufactures; and we are unable to see any principle of public policy which requires the words of the act of Congress to be extended so as to embrace more.

When the duty, was specific on this article, being a certain rate per pound, before the act of 1846, it could of course extend to no larger number of. pounds than was actually entered. The change in the law has been merely in the rate and form of the duty, and not in the quantity on which .it should be ¿Assessed.

On looking a little further into the principles of the case, it will.be seen that a deduction must be made from the quantity shipped abroad, whenever it does not all reach the United States, or we shall in truth asséss here what does not exist here. The collection of revenue on an article not existing, and never coming into' the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of Congress, nor required to enforce just rights:

It is also the quantity actually received here by which alone the importer is benefited. It is all he can sell again to customers. It is all he can consume. It is all he can reexport for drawback. (1 Stat. at Large, 680 — 689: 4 Stat. at Large, 29.)

Nor is his sugar improved in quality by the drainage, so as to raise any equity against him by it. The evidence in the ensuing case from New York, which was argued with this, shows that the article usually becomes ..of a worse color and quality than before, though if not drained at all it might ferment and become still more inferior.

Indeed, the reasonableness of this deduction seems countenanced by various other acts of Congress. In certain instances, where a loss usually occurs, and where a general and reasonable rate of reduction could be prescribed, they have authorized it expressly in several cases of the character referred to.

Thus, in the case of liquors, a certain fixed per- cent, is deducted in the measure, in all cases, for leakage (1 Stat. at Large, 166), and still more is deducted for breakage, when in bottles. (1 Stat. at Large, 672.) So another reduction is made in weight for tare and draft. (1 Stat. at .Large, 166.) The -last should be draff, meaning dust and dirt, and not what is generally meant by “draught” or “draft.”

But beside these instances, in cases of an actual injury to an article arriving here in a damaged state, a reduction from the value is permitted expressly on account of the diminished value. 1 Stat. at Large, 41, 166, 665.

The former cases, referred to for illustration, rest on their peculiar principles, and allowances in them are made by positive provisions in acts of Congress, even though the quantity and weight of the real article meant to be imported should arrive here. Because, knowing well that the whole is not likely to arrive, and being able to fix, by a general average, the ordinary loss in those cases with sufficient exactness, the matter has been legislated on expressly.

Yet there are other cases of loss, from various causes, which may be very uncertain in amount, for which no fixed and inflexible rate of allowance can be prescribed, and which must, therefore, in each instance, be left to be regulated by the general provisions for assessing duties, and the general principles applicable to them, as before explained. Consequently, where a portion of the shipment in cases like these does not arrive here, and hence does not come under the possession and cognizaiice of the custom-house officers, it cannot, as heretofore shown, be taxed on any ground, of law or of truth and propriety, and does not therefore require tor its exemption any positive enactment by Congress.

Such is. the case of a portion being lost by perils of the sea, or by being thrown overboard to save the ship; or by fire, or piracy, or larceny, or barratry, or a sale and delivery on, the'voyage, or by natural decay. If there be a material loss, it can make no difference to the sufferer of the government whether, it happened by natural or artificial causes. In either case, the article to that extent is not here to be assessed, nor to be of any value to the owner.

To add to such unfortunate losses, the burden of a duty on them, imposed afterwards, would be an uncalled for aggravation, would be adding cruelty to misfortune, and would not be justified(by any sound reason or any express,provision of law. On the contrary, Congress, in several instances, when the articles imported actually arrived here, and were afterwards destroyed' by fire before the packages had. been opened and entered into the consumption of the country, have refunded or remitted the duties. 2 Stat.at Large, 201; 5 ibid. 284; . 6 ibid. 2,

But much more should duties not be exacted on what was lóst or destroyed on its way hither, and which never came even into the possession or control of the custom-house officers, and much less into the use of the community..

Something has been urged in argument on the estimate made by the appraisers, and the final character attached to it. However that may be, if one was made in this case it could be final only as to the price of the sugar, abroad, and not as to the quantity or weight reaching this country. The latter is fixed by another class of officers, authorized by law for that purpose; and if the appraisers undertake to fix it, their action in that respect is coram non judice, and a nullity.1*

The price abroad in this case depended on a variety of circumstances, as the size of the erop, the urgency of the demand in the market, the quality of the article, See.; and the invoice may be prima fade evidence of the result of these and other causes in establishing that price; but for « quarter of a century it has been departed from by the appraisers, if the •facts ascertained by them will warrant it; though their action and decision as to the price are understood not to. be here.in this respect in controversy.

The various circulars from the Treasury Department, which have been referred to, and which hive been construed in some cases to permit the deduction of the quantity no,t really arriving in this country, and in others to forbid it, are entitled to much respect in deciding on the true meaning of the' revenue laws. But when contradictory or obscure, they furnish less aid, and are never decisive or incontrollable. Their design is, of course^ to protect the revenue from evasions, and the policy of the courts is the same, when deciding how the laws ought to be executed on these subjects.'

But ás Congress wishes to foster an honest and honorable commerce fey its laws, no less than obtain revenue, it is neither the true policy nor right of Departments or of courts, nor is it presumed to be their desire, to thwart the views of Congress, or embarrass mercantile business, when not attended by equivocation and fraud, or to throw doubts and difficulties oyer the liberal course proper to be pursued generally towards the community in any branch of trade.

Thinking, then, as we do, that making this deduction is no,t only the legal, but the more reasonable and liberal course, it has our full approbation.

The second point of inquiry, concerning the restrictive effect of the proviso on the eighth section of the act of 1846, has been very earnestly urged as opposed to a construction allowing this deduction. It is argued, that allowing it would usually reduce the aggregate value below the invoice, and that this is prohibited by the words of the proviso, enacting, “ That under no circumstánce shall the. duty be assessed uporj an amount less than the invoice value, any law of Congress to.the contrary notwithstanding:” 9 Stat. at Large, 43.

But this proviso apparently relates to the enactment in the section where it stands, concerning thé owner, or his agent, raising the invoice or assessment to “ the true market value of such imports in the principal markets of the country whence the importation shall have been made.”

If, however, it was meant to be general, as seems more likely from previous laws, and to hold 'the owner to his invoice in all cases, by a species of estoppel, so far as not to let it be made lower than was originally admitted in the invoice, then the restriction manifestly relates to the price only. He néed not bp estopped about the quantity in the invoice, as the duty is not assessed on the quantity abroad, but on the quantity reaching home, and entered and 'ascertained by law by the measurer and weigher here." But he might properly be in respect to the price, as it is on the price abroad, and charges added, that the duty is by law to be assessed.

The -language of the proviso is not artistic, nor very clear, but, from the considerations just stated, we-think the words “ less than the invoice value ” must mean the same as invoice price. It can, too, bear no other construction consistent with its language and probable design, arid the evident design, looking to all the circumstances, must govern. 16 Peters, 367; Paine, C. C. 11; Bac. Abr. Statute, 1.

But what is calculated to remove all doubt, as to the true meaning of the proviso, is a clause in the act of April 20th, 1818, on this same subject. 3 Stat. at Large, 437.

The twelfth section provides, that, in “ all cases where the appraised value shall be less .than the invoice value, the duty-snail be charged on the invoice value in the same manner as if no appraisement had been made.”

This is plain and intelligible, and by value refers, of course, to the price- in the invoice, as that is to be fixed by the appraisers. Making the deduction, then, which was made below in this case, was no violation of this proviso, as it was a reduction in the quantity below the invoice, and not in the price.

The last question relates to the validity of the protests to the extent held in the Circuit Court.

There is no pretence that the protest by letter, dated the 9th of April, Í847, was not good in form and substance for'all the cargoes which had then been entered and the duties not paid. Though in some, of the previous entries no protest had been' made at the time, under an- impression that the duties on what had been lost would voluritarily be, refunded, yet, where the payment had been closed up, the court did not feel justified, nor do we, in embracing those cases under any existing equities, without the written protest required by the act of Congress. (S Stat. at Large, 727.) But where the duties had hot been closed up in any cases, when the written protest in April was filed, ■ — though the preliminary payment of the estimated duties had taken place, — the court justly considered the protest valid. Because, till the final adjustment, the money remains in the hands. of the collector, and is not accounted for with the government, arid more may be necessary to be paid by the importer.

The question as to subsequent entries being covered by this protest is not so clearly in favor of the importer. But as they all depended on a like principle, — ras from the circulars of the Department some doubt existed whether the excess of duties would ritif voluntarily be refunded, — as the amounts in each importation were small, and both parties thus became fully aware that the excess in all such cases was intended to be put in controversy and reclaimed^: — we are inclined to think-this written protest may fairly be regarded, as applying to all subsequent cases of a like character, belonging to the same parties.

Judgment affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of-Maryland, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with .costs and damages at the rate of six per centum per annum.