At first 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 by the United States; whereas, in the latter case, it was declared that military occupation by the forces of another State did operate to render the port foreign to the United States. If these two decisions had been given by an international tribunal, or had had reference to the status of the territories received internationally, they undoubtedly would have been inharmonious. For, looked at from the international side, a country belongs to that power which is in effective control of it. Therefore, thus viewed, Castine belonged to Great Britain while its military forces were in paramount control of it. In like manner, Tampico, viewed internationally, was a part 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.3

In Neely v. Henkel,4 with reference to the status of Cuba. during the American occupation, the Supreme Court say: "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 troops of the United States was the necessary result of the war. The 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."

3 In De Lima v. Bidwell (182 U. S. I; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041) the court say: "It is not intended to intimate that the cases of United States v. Rice and Fleming v. Page are not harmonious-. In fact they are perfectly consistent with each other. In the first case it was merely held that duties could not be collected upon goods brought into a dome-tic port during a temporary occupation by the enemy, though the enemy subsequently evacuated it; in the latter case, that the temporary military occupation by the United States of a foreign port did not make it a domestic port, and that goods imported into the United States from that port were still subject to duty. It would have been obviously unjust in the Rice case to impose a duty upon goods which might already have paid a duty to the British commander. It would have been equally unjust in the Fleming case to exempt the goods from duty by reason of our temporary occupation of the port without a formal cession of such port to the United States."

This reasoning, based simply on principles of justice or expediency, hardly seems convincing, but that the two cases are not necessarily inharmonious has been shown above in the text.

The dissenting justices in the De Lima case, however, held that the two cases were harmonious, but not upon the grounds stated by the majority. That which, in their opinion, justified the court in holding in the Fleming case that Tampico was not within the scope of the United States tariff laws was because Congress had not so legislated as to bring it within a collection district or to establish a custom house there. "At Castine," they say, "the instrumentalities of the custom laws had been divested, at Tampico they had not been invested."

4 180 U. S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448.

In Dooley v. United States,5 one of the "Insular Cases" decided in 1901, the doctrine of Fleming v. Page is applied in fixing the status of Porto Rico while under the military government of the United States, but prior to the ratification of the treaty of peace ceding the island to the United States. The court say: "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 the 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."6

5 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. eft 1074.

6 President McKinley was criticized, and with justice, for issuing on December 21. 1898, that is, orr a date prior to the ratification of the treaty with Spain ceding the Philippines, an executive order in which he declared: "With the signature of the treaty of peace between the United States and Spain by their respective plenipotentiaries at Paris on the 10th instant, and as the result of the victories of American arms, the future control, disposition, and government of the Philippine Islands are ceded to the United States. In fulfilment of the rights of sovereignty thus acquired, etc." The treaty was not ratified by the treaty-making power of the United States until the following February, and did not go into effect until April 11, 1899.