The averment that territory named in the complaint is a part of
the United States is a conclusion of law and not admitted by a
demurrer.
The court takes judicial cognizance whether or not a given
territory is within the boundaries of the United States, and is
bound to take the fact as it really exists, however it may be
averred to be.
Who is the sovereign
de jure or
de facto of
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.
Jones v. United States, 137 U. S. 202.
The Isle of Pines, under the provisions of the Platt Amendment
and the Constitution of the Republic of Cuba, is
de facto
under the jurisdiction of the Republic of Cuba, and. as the United
states has never yet taken possession thereof, it has remained and
is foreign country within the meaning of the Dingley Tariff Act of
1897.
Delima v. Bidwell, 182 U. S. 1;
United States v.
Rice, 4 Wheat. 246.
The facts, which involve the political status of the Isle of
Pines and whether it is under the jurisdiction of Cuba or that of
the United States, and whether merchandise therefrom is subject to
duty, as coming from a foreign country within the meaning of the
Dingley Tariff Act, are stated in the opinion.
Page 205 U. S. 262
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Plaintiff brought his action in the Circuit Court of the United
States for the Southern District of New York against the then
collector of the port of New York to recover the value of certain
cigars seized by him, which had been brought to that port from the
Isle of Pines, where they had been produced and manufactured. This
seizure was made under the Dingley Act, so called (Act July 24,
1897, 30 Stat. 151, c. 11) and the regulations of the Secretary of
the Treasury thereunder. The Dingley Act provided for the
imposition of duties "on articles imported from foreign countries,"
and in plaintiff's complaint it was asserted that the Isle of Pines
was "in possession of and part of the United States," and hence
domestic territory. The government demurred, the demurrer was
sustained, the
Page 205 U. S. 263
complaint dismissed, and the case brought here on a writ of
error.
Whether the Isle of Pines was a part of the United States is a
conclusion of law not admitted by the demurrer. It was certainly
not such before the treaty of peace with Spain, and if it became
so, it was by virtue of that treaty. The Court takes judicial
cognizance whether or not a given territory is within the
boundaries of the United States, and is bound to take the fact as
it really exists, however it may be averred to be.
Jones v.
United States, 137 U. S. 202;
Lincoln v. United States, 197
U. S. 417;
Taylor v. Barclay, 2 Sim. 213.
August 12, 1898, a protocol of agreement for a basis for the
establishment of peace was entered into between the United States
and Spain, which provided:
"ARTICLE I. Spain will relinquish all claim of sovereignty over
and title to Cuba."
"ARTICLE II. Spain will cede to the United States the Island of
Porto Rico and other islands now under Spanish sovereignty in the
West Indies, and also an island in the Ladrones to be selected by
the United States."
30 Stat. 1742.
This was followed by the treaty of peace, ratified April 11,
1899, containing the following articles:
"ARTICLE I. Spain relinquishes all claim of sovereignty over and
title to Cuba."
"And as the island is, upon its evacuation by Spain, to be
occupied by the United States, the United States will, so long as
such occupation shall last, assume and discharge the obligations
that may, under international law, result from the fact of its
occupation, for the protection of life and property."
"ARTICLE II. Spain cedes to the United States the Island of
Porto Rico and other islands now under Spanish sovereignty in the
West Indies, and the Island of Guam in the Marianas or
Ladrones."
30 Stat. 1754, 1755.
In
Neely v. Henkel, 180 U. S. 109
(Jan. 14, 1901), the question was whether Cuba was a foreign
country or foreign territory within the Act of Congress of June 6,
1900 (31 Stat. 656, c. 793),
Page 205 U. S. 264
providing for the extradition from the United States of persons
committing crimes within any foreign country or foreign territory
or any part thereof occupied or under the control of the United
States. And it was held that Cuba was within this description. MR.
JUSTICE HARLAN, delivering the opinion of the Court, said:
"The facts above detailed make it clear that, within the meaning
of the Act of June 6, 1900, Cuba is foreign territory. It cannot be
regarded in any constitutional, legal, or international sense a
part of the territory of the United States."
"While by the Act of April 25, 1898, declaring war between this
country and Spain, the President was directed and empowered to use
our entire land and naval forces, as well as the militia of the
several states to such extent as was necessary to carry such act
into effect, that authorization was not for the purpose of making
Cuba an integral part of the United States, but only for the
purpose of compelling the relinquishment by Spain of its authority
and government in that island and the withdrawal of its forces from
Cuba and Cuban waters. The legislative and executive branches of
the government, by the joint resolution of April 20, 1898,
expressly disclaimed any purpose to exercise sovereignty,
jurisdiction, or control over Cuba 'except for the pacification
thereof,' and asserted the determination of the United States, that
object being accomplished, to leave the government and control of
Cuba to its own people. All that has been done in relation to Cuba
has had that end in view, and, so far as the court is informed by
the public history of the relations of this country with that
island, nothing has been done inconsistent with the declared object
of the war with Spain."
"Cuba is nonetheless 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
Page 205 U. S. 265
by other nations. The occupancy of the island by troops of the
United States was the necessary result of the war. That result
could not have been avoided by the United States consistently with
the principles of international law or with its obligations to the
people of Cuba."
"It is true that, as between Spain and the United States --
indeed, as between the United States and all foreign nations --
Cuba, upon the cessation of hostilities with Spain, and after the
treaty of Paris, was to be treated as if it were conquered
territory. But, as between the United States and Cuba, that island
is territory held in trust for the inhabitants of Cuba, to whom it
rightfully belongs and to whose exclusive control it will be
surrendered when a stable government shall have been established by
their voluntary action."
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.
Justice Gray 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."
By the joint resolution of April 20, 1898, 30 Stat. 738,
entitled
"Joint Resolution for the Recognition of the Independence of the
Cuba, Demanding That the government of Spain Relinquish Its
Authority and government in the Island of Cuba, and to Withdraw Its
Land and Naval Forces from Cuba and Cuban Waters, and Directing the
President of the United States to Use the Land and Naval Forces of
the United States to Carry These Resolutions into Effect,"
the United States disclaimed any disposition or intention to
exercise sovereignty or control over Cuba except in the
pacification thereof, and
Page 205 U. S. 266
asserted its determination, when that was accomplished, to leave
the control of the island to its people. What was the signification
of the word "Cuba" at that time?
The record of the official acts of the Spanish government from
1774 to 1898 demonstrates that the Isle of Pines was included in
the political division known as "Cuba." The first official census
of Cuba, in 1774; the "Statistical Plan of the Ever Faithful Isle
of Cuba for the Year 1827;" the establishment by the Governor
General, in 1828, of a colony on the island; the census of 1841;
the budgets of receipts and expenses; the census for 1861, 1877,
1887, and so on, all show that the Isle of Pines was,
governmentally speaking, included in the specific designation
"Cuba" at the time the treaty was made and ratified, and the
documents establish that it formed a municipal district of the
Province of Habana.
In short, 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. Those were
islands not constituting an integral part of Cuba, such as Vieques,
Culebra, and Mona Islands, adjacent to Porto Rico.
Has the treaty been otherwise interpreted by the political
departments of this government? The documents to which we have had
access, with the assistance of the presentation of the facts
condensed therefrom in the brief for the United States, enable us
to sufficiently indicate the situation in that regard, and we think
it proper to do this notwithstanding the determination of the case
turns at last on a short point requiring no elaboration.
The Spanish evacuated Havana January 1, 1899, and the government
of Cuba was transferred to a Military Governor as the
representative of the President of the United States. The President
ordered, August 17, 1899, a census to be taken as a first step
toward assisting "the people of Cuba" to establish "an effective
system of self-government." In accomplishing
Page 205 U. S. 267
this, the island was divided into 1,607 enumeration districts.
Three enumerators took the census of the Isle of Pines, which was
described as a municipal district of the Judicial District of
Bejucal, in the Province of Havana. The report on the census, as
published by the War Department in 1900, stated:
"The government of Cuba has jurisdiction not only over the
island of that name, but also over the Isle of Pines, lying
directly to the south of it, and more than a thousand islets and
reefs scattered along its northern and southern coasts. . . . The
Isle of Pines, with an area of 840 square miles, is a municipal
district of the Province of Habana. . . . The total population of
Cuba, including the Isle of Pines and the neighboring keys, was, on
October 16, 1899, 1,572,797."
The population tables give the population of the Isle of Pines
as a municipal district of Havana Province, and so of the
statistics as to rural population, sex, nativity, and color, age
and sex, birthplace, conjugal condition, school attendance, foreign
whites, number and size of families, dwellings of families -- these
and like items are given as to the Isle of Pines as under the
Province of Habana.
In August, 1899, the Military Governor of Cuba appointed a Mayor
and First Assistant Mayor of the Isle of Pines.
On June 16, 1900, an election was held throughout the island at
which the people of Cuba in all their municipalities elected their
municipal officers, participated in by the inhabitants of the Isle
of Pines, as is stated in the report of the Committee on Foreign
Relations, Senate Document No. 205, Fifty-ninth Congress, though
this was denied in a minority report.
A constitutional convention was called and the inhabitants of
the Isle of Pines participated in the election of delegates
thereto, September 15, 1900.
The convention concluded its work by October 1, 1901, and
December 31, 1901, an election was held to choose governors of
provinces, provincial councilors, members of the house of
representatives, and presidential and senatorial electors,
under
Page 205 U. S. 268
an order of General Wood of October 14, 1901, No. 218, approved
by the War Department, which divided the Province of Habana into
four circuits, the third being composed of several ayuntamientos,
of which the Isle of Pines was one.
February 24, 1902, the electors met, chose senators, and elected
Senor Palma President and Senor Romero Vice President.
The government was transferred to Cuba, May 20, 1902, and in
making the transfer and declaring the occupation of Cuba by the
United States and the military government of the island to be
ended, the Military Governor wrote to "The President and Congress
of Cuba," among other things:
"It is understood by the United States that the present
government of the Isle of Pines will continue as a
de
facto government, pending the settlement of the title to said
island by treaty, pursuant to the Cuban Constitution and the Act of
Congress of the United States approved March 2, 1902[1]."
On the same day, President Palma replied:
"It is understood that the Isle of Pines is to continue
de
facto under the jurisdiction of the government of the Republic
of Cuba, subject to such treaty as may be entered into between the
government of the United States, and that of the Cuban Republic, as
provided for in the Cuban Constitution and in the act passed by the
Congress of the United States, and approved on the second of March,
1901."
31 Stat. 897.
At that date, the Isle of Pines was actually being governed by
the Cubans through municipal officers elected by its inhabitants,
and a governor of the Province of Habana, councilors, etc., in
whose choice they had participated.
And see Neely v.
Henkel, 180 U. S. 109,
180 U. S.
117-118.
February 16, 1903, the Senate of the United States, by
resolution, requested the President "to inform the Senate as to the
present status of the Isle of Pines, and what government is
exercising authority and control in said island."
In reply, the President submitted a report from the Secretary of
War which stated:
Page 205 U. S. 269
"The nature of the
de facto government under which the
Isle of Pines was thus left pending the determination of the title
thereof by treaty is shown in the following indorsement upon a copy
of the said resolution by the late Military Governor of Cuba:"
[Here follows the indorsement, dated February 20, 1903, of which
the following is a part:]
"At the date of transfer of the Island of Cuba to its duly
elected officials, the Isle of Pines constituted a municipality
included within the municipalities of the Province of Habana and
located in the judicial district of Bejucal. The government of the
island is vested in its municipal officers, subject to the general
control of the civil governor of the Province of Habana, who is
vested, under the Constitution of Cuba, with certain authority in
the control of municipal affairs. Under the military government of
Cuba the Isle of Pines was governed by municipal officials, subject
to the general authority of the civil governor, who received his
authority from the governor general. The Isle of Pines, as it had
existed under the military government, was transferred as a
de
facto government to the Cuban Republic, pending the final
settlement of the status of the island by treaty between the United
States and Cuba. The action taken by the military government was in
accordance with telegraphic orders from the honorable the Secretary
of War. The government of the island today is in the hands of its
municipal officers, duly elected by the people under the general
control of the civil governor of the Province of Habana and the
Republic of Cuba. As I understand it, the government of the Isle of
Pines is vested in the Republic of Cuba, pending such final action
as may be taken by the United States and Cuba looking to the
ultimate disposition of the island. No special action was taken to
protect the interests of the citizens of the United States who have
purchased property and have settled in the Isle of Pines, for the
reason that no such action was necessary. All Americans in the
island are living under exactly the same conditions as other
foreigners,
Page 205 U. S. 270
and if they comply with the laws in force, it is safe to say
that they will not have any difficulty or need special protection.
At the time these people purchased property they understood
distinctly that the question of ownership of the Isle of Pines was
one pending settlement, and in locating there, they took the risks
incident to the situation."
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;
Louisiana v.
Mississippi, 202 U. S. 153;
The Anna, 5 C. Rob. 273.
In August, 1902, the Treasury Department decided that duties
should be assessed on goods coming from the Isle of Pines at the
same rates as on similar merchandise imported from other
places.
On July 2, 1903, a treaty with Cuba was signed, relinquishing
any claim by the United States to the Isle of Pines under the
treaty of peace, but this failed of ratification, and on March 2,
1904, another treaty was signed, which relinquished all claim of
title under that treaty.
November 27, 1905, the Secretary of State wrote an American
resident of the Isle of Pines:
"The treaty now pending before the Senate, if approved by that
body, will relinquish all claim of the United States to the Isle of
Pines. In my judgment, the United States has no substantial claim
to the Isle of Pines. The treaty merely accords to Cuba what is
hers in accordance with international law and justice."
"At the time of the treaty of peace which ended the war between
the United States and Spain, the Isle of Pines was, and had been
for several centuries, a part of Cuba. I have no
Page 205 U. S. 271
doubt whatever that it continues to be a part of Cuba, and that
it has not and never has been Territory of the United States. This
is the view with which President Roosevelt authorized the pending
treaty, and Mr. Hay signed it, and I expect to urge its
confirmation."
There are some letters of an Assistant Secretary of War, or
written by his direction, and other matters, referred to, which we
do not regard as seriously affecting the conclusion that the
Executive has consistently acted on the determination that the
United States had no substantial claim to the Isle of Pines under
the treaty.
The only significant legislative action is found in the proviso
of the Act of March 2, 1901, the Army appropriation act (31 Stat.
895, c. 803), commonly called the Platt amendment (897), which
reads:
"Provided, further, that in fulfillment of the declaration
contained in the joint resolution approved April twentieth,
eighteen hundred and ninety-eight, entitled"
"For the Recognition of the Independence of the Cuba, Demanding
that the government of Spain Relinquish Its Authority and
government in the Island of Cuba, and to Withdraw Its Land and
Naval Forces from Cuba and Cuban Waters, and Directing the
President of the United States to Use the Land and Naval Forces of
the United States to Carry These Resolutions into Effect,"
"the President is hereby authorized to 'leave the government and
control of the island of Cuba to its people' so soon as a
government shall have been established in said island under a
constitution which, either as a part thereof or in an ordinance
appended thereto, shall define the future relations of the United
States with Cuba, substantially as follows:"
Then follow eight clauses, of which the sixth is:
"VI. That the Isle of Pines shall be omitted from the proposed
constitutional boundaries of Cuba, the title thereto being left to
future adjustment by treaty."
It appears that certain American citizens, asserting interests
in the Isle of Pines, had contended that it belonged to the
Page 205 U. S. 272
United States under the treaty, and the sixth clause of the
Platt amendment, while not asserting an absolute claim of title on
our part, gave opportunity for an examination of the question of
ownership and its settlement through a treaty with Cuba. The
Republic of Cuba has been governing the isle since May 20, 1902 --
the present situation need not be discussed -- and has made various
improvements in administration at the suggestion of our government,
but Congress has taken no action to the contrary of Cuba's title as
superior to ours.
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 Platt
amendment. The Isle of Pines continues at least
de facto,
under the jurisdiction of the government of the Republic of Cuba,
and that settles the question before us, because, as the United
States have never taken possession of the Isle of Pines as having
been ceded by the treaty of peace, and as it has been and is being
governed by the Republic of Cuba, it has remained "foreign country"
within the meaning of the Dingley Act, according to the ruling in
De Lima v. Bidwell, 182 U. S. 1, and
cases cited;
United States v.
Rice, 4 Wheat. 246. There has been no change of
nationality for revenue purposes, but, on the contrary, the Cuban
government has been recognized as rightfully exercising sovereignty
over the Isle of Pines as a
de 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.
Judgment affirmed.
MR. JUSTICE McKENNA concurred in the judgment.
MR. JUSTICE WHITE and MR. JUSTICE HOLMES concurred
specially.
MR. JUSTICE MOODY took no part.
Page 205 U. S. 273
MR. JUSTICE WHITE, concurring:
My reasons for agreeing to the conclusion announced by the court
are separately stated to prevent all implication of an expression
of opinion on my part as to a subject which, in my judgment, the
case does not require, and which, as it is given me to see it, may
not be made without a plain violation of my duty.
The question which the case raises, by way of a suit to recover
duties paid on goods brought from the Isle of Pines, is whether
that island, by the treaty with Spain, became a part of the United
States, or was simply left or made a part of the island of Cuba,
over which the sovereignty of Spain was relinquished.
I accept the doctrine which the opinion of the court announces,
following
Jones v. United States, 137 U.
S. 202, that
"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."
That the legislative and executive departments have conclusively
settled the present status of the Isle of Pines as
de
facto a part of Cuba, and have left open for future
determination the
de jure claim, if any, of the United
States to the island, as the court now declares, is to me beyond
possible contention. Thus, by the amendment to the act of 1891,
which was enacted to determine the
de facto position of
the island and to furnish a rule for the guidance of the executive
authority in dealing in the future with the island, it was
expressly provided "that the Isle of Pines shall be omitted from
the proposed constitutional boundaries of Cuba, the title thereto
being left to future adjustment by treaty." So, also, when the
island of Cuba was turned over to the Cuban government by the
military authority of the United States, that government was
expressly notified by such authority, under the direction of the
President, that
Page 205 U. S. 274
whilst the
de facto position of the Isle of Pines as a
part of Cuba was not disturbed, it must be understood that its
de jure relation was reserved for future determination by
treaty between Cuba and the United States. And this notification
and relation was in terms accepted by the President of the Republic
of Cuba. If the opinion now announced stopped with these conclusive
expressions I should, of course, have nothing to say. But it does
not do so. Although declaring that the
de facto position
of the Isle of Pines as resulting from legislative and executive
action is binding upon courts, and although referring to the
conclusive settlement of that
de facto status, and the
reservation by the legislative and executive departments of the
determination of the
de jure status for future action, the
opinion asserts that it is open and proper for the court to express
an opinion upon the
de jure status, that is, to decide
upon the effect of the treaty. In doing so, it is declared that all
the world knew that the Isle of Pines was an integral part of Cuba,
this being but a prelude to an expression of opinion as to the
rightful construction of the treaty. To my mind, any and all
expression of opinion concerning the effect of the treaty and the
de jure relation of the Isle of Pines is wholly
unnecessary, and cannot be indulged in without disregarding the
very principle upon which the decision is placed; that is, the
conclusive effect of executive and legislative action. In other
words, to me it seems that the opinion, whilst recognizing the
force of the executive and legislative action, necessarily
disregards it. This follows, because the views which are expressed
on the subject of the meaning of the treaty amount substantially to
declaring that the past action of the executive and legislative
departments of the government on the subject have been wrong, and
that any future attempt by those departments to proceed upon the
hypothesis that the
de jure status of the island is
unsettled will be a violation of the treaty as now unnecessarily
interpreted.
MR. JUSTICE HOLMES concurs.