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- Copyright © by the American Society of International Law 1925
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1 The typewritten text of the earlier treaty submitted to the Senate differed from the text of the later treaty, but a search of the Senate archives brought to light the original, which was found to be identical. See Congressional Record, Jan. 24, 26, 1925, pp. 2494, 2547.Google Scholar The full text in English and Spanish is printed on the latter page.
2 Sen. Doc. No. 166, 68th Cong. 2nd Sess. 1924, reprinting Sen. Doc. No. 205, 59th Cong., 1st Sess., 1906 and Sen. Doc. No. 295, 67th Cong. 4th Sess. 1922, with other material.
3 This Journal, vol. 17, p. 100.Google Scholar
4 See Statements and Documents relative to the Isle of Pines Treaty between the United States and Cuba, published by the Cuban Society of International Law, 1925, including resolutions of that organization at its fifth annual meeting, March 2, 1922, declaring “(1) The Isle of Pines is in fact and by right Cuban territory, (2) Cuba will never consent to transfer any part of its territory to a foreign nation.” (p. 4.)Google Scholar
5 Article 4 distinguishes “Cuba and the adjacent Spanish Islands” to be relinquished by Spain under Article 1 of the protocol, from “Porto Rico and the other islands now under Spanish sovereignty in the West Indies” to be ceded to the United States by Article 2 of the protocol. Malloy, Treaties, etc. of the United States, p. 1689.Google Scholar
5a 30 Stat. 738.Google Scholar
6 Articles 1 and 2 correspond in terms to Articles 1 and 2 of the protocol. 7 By negotiating the treaty here considered.
8 Secretary Root to Senator Piatt, December 18, 1903, Sen. Doc. 166, supra, note 2, p. 284.Google Scholar See also Secretary Root to President of American Club of Isle of Pines, November 2, 1905, Sen. Doc. 205, supra, note 2, p. 11.Google Scholar
9 Pearcy v. Stranahan, 205 U. S. 257, 1907, this Journal vol. 1, p. 784, through Fuller, C.J.:Google Scholar “If, then, the Isle of Pines was not embraced in Article II of the treaty, but was included within the term Cuba in Article I, and therefore sovereignty and title were merely relinquished, it was foreign country within the Dingley Act.
“This inquiry involves the interpretation which the political departments have put upon the treaty. For, in the language of Mr.Gray, Justice, in Jones v. United States, 137 U. S. 202, who is the sovereign, de jure or de facto, of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens, and subjects of that Government. . . .Google Scholar
“All the world knew that it was an integral part of Cuba, and in view of the language of the joint resolution of April 20, 1898, it seems clear that the Isle of Pines was not supposed to be one of the other islands ceded by Article II. . . .
“We are justified in assuming that the Isle of Pines was always treated by the President’s representatives in Cuba as an integral part of Cuba. This was indeed to be expected, in view of the fact that it was such at the time of the execution of the treaty and its ratification, and that the treaty did not provide otherwise in terms, to say nothing of general principles of international law applicable to such coasts and shores as those of Florida, the Bahamas, and Cuba. Hall, 4th ed., 129, 130;Google Scholar Louisiana, v. Mississippi, 202 U. S. 1, 53;Google Scholar The Anna, 5 C.Rob.273.…
“It may be conceded that the action of both the political departments has not been sufficiently definite to furnish a conclusive interpretation of the treaty of peace as an original question, and as yet no agreement has been reached under the Piatt amendment. . . . The Cuban Government has been recognized as rightfully exercising sovereignty over the Isle of Pines as a facto government until otherwise provided. It must be treated as foreign, for this Government has never taken, nor aimed to take, that possession in fact and in law which is essential to render it domestic.” Justice Day, who had headed the American delegation at Paris in 1898, concurred. The court was unanimous, but Justices White and Holmes thought that some expressions in the opinion went beyond a mere interpretation of the acts of the political departments. See Wright, Control of American Foreign Relations, pp. 173, 343.Google Scholar
10 Cuban statement, supra, note 4, pp. 28–29.Google Scholar Secretary Hughes to Senator McCormick, Oct. 1922, Sen. Doc. No. 166, supra, note 2, p. 2.Google Scholar
11 In a memorandum of October 21 1898, the Spanish delegates said that the United States, after demanding that Cuba be independent, claimed “the sovereignty of Porto Rico and of the other islands surrounding Cuba (which will render impossible its independence without the will and gracious consent of the United States, which will always have it at their mercy owing to their control over the islands surrounding it like a band of iron) in the way of indemnity for the expenses of the war and of the damages which the said American citizens had suffered during the colonial insurrection." (Sen. Doc. No. 62, 55th Cong. 3rd Sess. pp. 82–83;Google Scholar Sen. Doc. No. 166, supra, note 2, p. 227.)Google Scholar The argument built on this passage overlooks the fact that the American delegation refused to accept this interpretation of their demands with the statement: “The enforced relinquishment of Spanish sovereignty will result in the freedom and independence of the Island of Cuba and not in the aggrandizement of the United States." (Sen. Doc. No. 62, p. 107.Google Scholar See also Cuban statement, supra, note 4, pp. 26–27.)Google Scholar It appears, however, that two of the American delegates at Paris, Wm, P. Frye and Cushman K. Davis, thought the United States had acquired the Isle of Pines. One of them, George Gray, and one of the Spanish delegates, de Villa Urrutia, expressed the opinion in 1924 that cession of the Isle of Pines to the United States was not considered in the Paris Conference. {Ibid., pp. 27, 51.)
12 Evidence for this is found in letters by Assistant Adjutant General John J. Pershing, August 14,1899, and Assistant Secretary of War G. D. Meikeljohn, Jan. 15,1900, asserting American sovereignty over the Isle of Pines (later repudiated by Secretary of War Root, supra, note 8), and the official land maps of the United States, 1899 and 1902, including the Isle of Pines as United States territory. Though no written order has been disclosed, these acts are supposed to have been verbally authorized by President McKinley, and a specificstatement to this effect was made with reference to the latter by Commissioner of the General Land Office Herman. (Cong. Rec. Dec. 8, 1903, p. 57, Jan. 20, 1925, p. 2220..Google Scholar See Cuban statement, supra, note 4, pp. 13–19.)Google Scholar
13 Amendment to Army Appropriation Bill, March 2, 1901, 31 U. S. Stat. 897.Google Scholar
14 Malloy, op. tit, p. 363.Google Scholar
15 Hall, International Law, 9th ed. p. 149;Google Scholar Wright Territorial Propinquity, this Journal, Vol. 12, pp. 520–521.Google Scholar In his letter of October 16, 1922, to Senator McCormick, Secretary Hughes said the wish of the United States “to quitclaim in favor of Cuba any shadow of title it might have" was doubtless “influenced by the proximity of the island to Cuba and the consequently applicable principles of international law, and by the fact that the Isle of Pines had uniformly been administered as an integral part of Cuba." Sen. Doc. No. 166, p. 2.Google Scholar
16 Pearcy, v. Stranahan, supra, note 9.Google Scholar
17 Moore, Digest of International Law, Vol. 1, p. 297.Google Scholar
18 Great Britain contended in 1817, before the commissioners under the Treaty of Ghent, that 23 years acquiescence in British occupation and improvement of one island in Passamaquoddy bay, and 30 years of others “will justly furnish an argument that the United States have no claim at this day to any of those islands." Hyde, International Law, Vol. 1, p. 195.Google Scholar See, also, Cobbett, Cases and Opinions on International Law, Vol. 1, p. 109.Google Scholar
19 Speech by Senator Copeland of New York, Cong. Eec. Jan. 20, 1925, p. 2217.Google Scholar See also press interview with Senator Borah of Idaho, New York Times, Deo. 21, 1924.Google Scholar
20 Borah interview, supra, note 19.
21 Constitution, Art. 4, sees. 3, 4; Fort Leavenworth Railroad Co. Lowe, v., 114 U. S. 525, 541;Google Scholar Wright, Control of American Foreign Relations, pp. 88–89, this Journal, Vol. 13, p. 253.Google Scholar
22 Art. 5, Malloy, op. tit., p. 654;Google Scholar Moore, Digest of International Law, Vol. 5, pp. 172–174.Google Scholar
23 Opposing a proposed amendment requiring three-fourths of the whole number of both Houses of Congress to ratify a treaty “ceding, contracting, restraining, or suspending the territorial rights or claims of the United States or any of them” Edmund Randolph said: “This is priding in the Virginia sovereignty, in opposition to the majority. This suspected Congress, these corrupt sixty-five and corrupt twenty-six, are brought so low they cannot be trusted, lest they should have it in their power to lop off part of Virginia—cede it, so as that it should become a colony to some foreign state. There is no power in the Constitution to cede any part of the territories of the United States. The whole number of Congress, being unanimous, have no power to suspend or cede territorial rights. But this amendment admits, in the fullest latitude, that Congress have a right to dismember the empire.” Elliott, Debates, Vol. 3, pp. 602, 660.Google Scholar The context indicates that territorial claims of the States was in Randolph's mind and the debate was on this question, Ibid., pp. 499-504.
24 Geofroy, v. Riggs, 133 U. S. 258, 267, 1890;Google Scholar Kent, Commentaries, Vol. 1, pp. 166, 176;Google Scholar Wright, Control of American Foreign Relations, pp. 57, 121, 247-248;Google Scholar this Journal, Vol. 13, pp. 248–251.Google Scholar
25 Act of August 29, 1916, 39 U. S. Stat. 545.Google Scholar
26 This Journal, Vol. 18, p. 786.Google Scholar
27 Crandall, Treaties, their making and Enforcement, p. 107;Google Scholar Wright, Control of American Foreign Relations, p. 239.Google Scholar
28 Fiske, “Manifest Destiny,” American Political Ideas, p. 101.Google Scholar
29 Watts, v. U. S., 1 Wash. Terr. 282, 294, 1870.Google Scholar