837.014P/324
The Secretary of State to
Senator Joe T. Robinson
Washington, January 2,
1925.
My Dear Senator Robinson: I have received your
letter of December 31, 1924, regarding the proposed treaty between the
United States and Cuba relating to the Isle of Pines in which you state
you understand that about December 1904 Secretary Hay addressed a
communication to Representative Jenkins bearing upon the question
whether by this treaty the treaty-making power of the United States is
disposing of property belonging to the United States or is divesting the
Government of sovereignty over any part of its territory.
In reply I take pleasure in enclosing herewith a copy of a letter
addressed to Representative J. J. Jenkins on December 15, 1903, which is
I think the letter to which you refer. I am also enclosing a memorandum
regarding the status of the Isle of Pines.
[Page 2]
In this connection I should like to draw your attention to the
following:
The opinion of the Supreme Court of the United States in Pearcy v. Stranahan, 205
U. S. 257, is significant, not only as a judicial decision disposing of
the question before the Court, but as expressing the views of Mr.
Justice William R. Day who concurred in that opinion. Judge Day, then
Secretary of State, signed the protocol of August 12, 1898, embodying
the basis for the establishment of peace and he was the head of the
United States delegation which signed the Treaty of Peace with Spain on
December 10, 1898.2 No one who had the
privilege of knowing Judge Day would doubt for a moment that when he
concurred in the opinion of the Court, delivered by Chief Justice Fuller
in Pearcy v. Stranahan, he
believed that opinion to be a correct statement of the status of the
Isle of Pines. You thus have in the opinion of the Supreme Court the
deliberate judgment of the distinguished jurist who negotiated the
treaty as to what it meant in this particular. You will readily
understand how careful Judge Day would have been, in view of his
connection with the negotiation of the Treaty, that no error should be
made in anything that the Court might say about it.
It is in this view that the following paragraph in the opinion is of
especial importance, (p. 266):
“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.”
I think, therefore, that the argument that the Isle of Pines was ceded to
the United States by the Treaty of Peace is without foundation. The
Island belonged to Cuba, and, as the Supreme Court said (p. 272) while
the sixth clause of the Piatt Amendment “gave opportunity for an
examination of the question of ownership and its settlement through a
treaty with Cuba”, Congress “has taken no action to the contrary of
Cuba’s title as superior to ours.”
The Treaty, as you are doubtless aware, contemplates the relinquishment
by the United States in favor of Cuba of all claim of title to the
island, thus providing, in the opinion of this and preceding
administrations, an equitable solution of a problem of many years’
standing. The present undetermined status of the Isle of Pines
constitutes one of the few remaining questions capable of prejudicing
the intimate relations between the United States and Cuba, and it is my
earnest hope that the Senate in its present session will give its
consent to the ratification of the Treaty.
[Page 3]
Permit me to emphasize the following points: The failure to ratify the
Treaty would not give the Island to the United States. To accomplish
that purpose it would be necessary to negotiate another treaty with
Cuba, but I am satisfied that Cuba would not consent to relinquish the
Island. It would be a waste of money to attempt to buy it and the
considerations which appeal to Cuba would, in my judgment, preclude her
from putting the matter upon a pecuniary basis. She considers herself
entitled to the Island and looks to the United States to perform an act
of justice. The failure of the Treaty, then, would simply leave the
status of the Island unsettled; it would still remain under Cuban
administration; and we should have stirred up ill-feeling. While we
cannot obtain the Island for ourselves by refusing to ratify the Treaty,
we can by its ratification put an end to an unpleasant question and
strengthen the bonds of friendship between the two peoples.
I am [etc.]
[Enclosure 1]
The Acting Secretary of
State to Representative J. J.
Jenkins, Chairman of the House Judiciary
Committee
Washington, December 15,
1903.
Sir: The President has referred hither a
copy of your letter to him of the 9th instant, inclosing a copy of a
resolution with respect to the Isle of Pines introduced in the House
of Representatives on the preceding day, which reads as follows:
“Whereas it is commonly reported that a treaty negotiated
between the President of the United States and the Republic
of Cuba granting and ceding the Isle of Pines to the
Republic of Cuba is pending in the Senate of the United
States for ratification or rejection; and
“Whereas by the terms of the treaty of Paris the Kingdom of
Spain relinquished sovereignty over the Isle of Pines as
part of the Island of Cuba; and
“Whereas by the action of this Government in establishing and
recognizing the independence of the Republic of Cuba it was
expressly provided that the Isle of Pines should not be
within the constitutional boundary of that Republic; and
“Whereas this Government has been administering the affairs
and exercising sovereignty over the Isle of Pines ever since
the treaty of Paris was ratified; and
“Whereas section three of article four of the Constitution of
the United States provides that ‘the Congress shall have
power to dispose of and make all needful rules and
regulations respecting the territory and other property of
the United States’: Therefore,
“Resolved, That the Committee on the
Judiciary be instructed to inquire into the facts
hereinbefore recited and report to this House as soon as
practicable:
[Page 4]
- “First. Whether the Isle of Pines is ‘territory or
other property belonging to the United States’
within the sense and meaning of the
Constitution.
- “Second. Whether a treaty granting and ceding
territory of or belonging to the United States to a
foreign government without action on the part of
Congress is authorized by the Constitution.
“Resolved, That the Committee on the
Judiciary may report at any time under the foregoing
resolution.”
Your letter invites a hearing of the Departments severally concerned
in the constitutional and diplomatic questions involved in the
negotiation for the relinquishment in favor of the Republic of Cuba
of any title that the United States may have to the Isle of Pines
under the Treaty of Peace between the United States and Spain.
So far as the Department of State is concerned, the question is as to
its power and authority to negotiate the pending treaty with Cuba
whereby the United States of America relinquishes in favor of the
Republic of Cuba all claim of title to the Isle of Pines, situate in
the Caribbean Sea near the southwestern part of the Island of Cuba,
which has been or may be made in virtue of Article II of the Treaty
of Peace between the United States and Spain, signed in the City of
Paris on the tenth day of December eighteen hundred and
ninety-eight.
Article I of the Treaty of Peace with Spain provides that: “Spain
relinquishes all claim of sovereignty over and title to Cuba”
subject to its temporary occupation by the United States. Article II
reads:
“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.”
In this manner, Spain divested herself of title and claim of title to
all her West Indian possessions—not merely as to the mainland of the
respective islands of Cuba and Porto Rico but as to all the islands,
islets, keys and rocks pertaining to either island. As a historical
fact, Spain, at the time of concluding the Treaty of Peace,
possessed no territory in the West Indies which was not included in
or dependent upon the administrative jurisdiction of the one or the
other of the main islands named.
Under Spanish rule Cuba and Porto Rico each constituted an
administrative province or district, styled a Gobierno General and
administered by a Governor-General. The Gobierno of Porto Rico
included the outlying islands of Culebra and Vieques and all
adjacent islets and keys. The Gobierno of Cuba embraced the numerous
islands and keys stretching in almost continuous chains along more
than one-third of the insular coast, and lying at varying distances
therefrom, much as Key West and the Dry Tortugas jut from the
[Page 5]
Florida peninsula, or as
Nantucket and Santa Catalina lie off the mainland of Massachusetts
and California.
The Isle of Pines is not specifically mentioned in the Treaty of
Peace. The first statutory reference to it, subsequent to the Treaty
of Peace, is found in the so-called Piatt Amendment to the Army
Appropriation Act, approved March 2, 1901. That Amendment, in laying
down the general conditions under which the military occupation of
Cuba should cease and the future relations of the United States with
Cuba should be determined, provided among other terms:
“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.”
The Constitution of Cuba, thus spoken of in the future tense, had in
fact been adopted February 21, 1901, eleven days before the Piatt
Amendment became law. By the 2nd Article the constitutional
boundaries of Cuba were thus defined:
“Article 2. The territory of the Republic is composed of the
Island of Cuba, as well as the adjacent islands and keys,
which, together therewith, were under the sovereignty of
Spain until the ratification of the Treaty of Paris on
December 10, 1898.”
To meet the requirements of the Piatt Amendment, a change became
necessary in this regard, as well as in some other respects, and,
accordingly, the Constitutional Convention of the Republic of Cuba,
on June 12, 1901, added an Appendix to the Constitution of Cuba,
substantially in the terms of the Piatt Amendment. The Sixth Article
of that Appendix reads:
“Article VI. The Island of Pines shall be omitted from the
boundaries of Cuba specified in the Constitution, the title
and ownership thereof being left to future adjustment by
treaty.”
The law of the United States and the Constitution of Cuba are thus
brought into perfect accord so far as the ownership of the Isle of
Pines is concerned. Each party waives claim thereto, subject to the
attainment of a mutual conventional understanding. The Congress of
the United States has expressly relegated to the treaty making power
the duty of adjusting the title to the Isle of Pines. The Cuban
Constitutional Convention, having by Article II of the Constitution
declared all the adjacent islands and keys to, be part of the
territory of the Republic, subsequently amended the Constitution by
specifically omitting the Isle of Pines from that enumeration and
leaving the ownership thereof to be adjusted by treaty.
A peculiar situation thus confronted the treaty making power of the
two countries. Neither claimed the sovereignty of the Isle of
[Page 6]
Pines. The Act of March 2,
1901, estopped the United States from an ex
parte assertion of ownership under the provisions of
Article II of the Treaty of Peace, by requiring the agreement of
Cuba thereto. The Cuban Constitution waived, with similar condition,
such an assertion on the part of the Republic. The supreme law of
each nation made it mandatory upon its executive to seek a
conventional adjustment of the matter with the other, in accordance
with the facts and the equities of the case. Neither party was in a
position, as self-declared and recognized master of the territory in
question, to cede or grant it to the other. No such extreme
condition interposed to tax the national sentiment of either. All
that became incumbent upon the two governments was to agree whether,
under the terms of Article I of the Treaty of Peace between the
United States and Spain, the Isle of Pines was territorially
embraced in the generic denomination of “Cuba” and as such came
within the Spanish relinquishment of sovereignty and title thereto;
or whether, finding that the Isle of Pines was not a part of the
Cuban domain, under Spanish rule, it fell within the alternative
enumeration of “other islands” than Cuba and Porto Rico then under
Spanish sovereignty in the West Indies, and, as such, was ceded to
the United States by Article II of the Treaty of Peace.
Thus presented, the question before the negotiators was simplified.
There was no possible doubt as to the antecedent status of the Isle
of Pines. Its past and present history made it difficult to be
differentiated from the “Cuba” of Article I of the Treaty of Peace
and to be constructively regarded as one of the “other islands”
embraced in the intendment of Article II. For centuries it had been
an integral part of the gubernative domain of Cuba. Politically and
judicially it pertained to the municipal jurisdiction of Habana,
being an ayun-tamiento or municipal district of the judicial
district of Becujal, in the Province of Habana. Its inhabitants
voted for municipal officers as citizens of Habana. They cast their
votes in like manner for Deputies to the national Cortes at Madrid.
They were identified with the people of Cuba, and this merger of
their franchises and interests continued under the military
occupation of Cuba by the United States, but with some enlarged and
purely local municipal privileges. Under the general orders of the
United States military governor, they voted in the general election
for a delegate to the Constituent Assembly, casting their votes as
belonging to the Third Circuit of the Province of Habana, and thus
shared in framing and adopting the Constitution of the Republic of
Cuba. They subsequently voted in the same manner for Presidential
electors. In short, the weightier considerations led to the
conclusion that (as well phrased in the preamble to the Resolution
submitted in the House of Representatives on December
[Page 7]
8, 1903) “by the terms of the
treaty of Paris the Kingdom of Spain relinquished sovereignty over
the Isle of Pines as part of the Island of Cuba”, and that in virtue
of such relinquishment, as distinguished from the cession of other
islands in the West Indies, the Isle of Pines was to be deemed an
integral part of the territory over which, in pursuance of the
Resolution of Congress of April 20, 1898, the relinquishment of
Spain’s authority and Government had been demanded, and which
territory, in obedience to the same mandate of law, the United
States in due time ceased to occupy and turned over to the people of
Cuba. By like mandate of law, it became the duty of the treaty
making power to declare this conclusion and give it effect by a
treaty which should adjust the title to the Isle of Pines.
A treaty was accordingly negotiated under and within the statutory
powers conferred by the law of each country.2a It is now pending before the
Senate of the United States. While its text has not been made
public, it is proper to the purposes of this report to say that its
terms do not stipulate for “granting and ceding the Isle of Pines to
the Republic of Cuba”, as recited in the Resolution now submitted in
the House of Representatives. It simply relinquishes in favor of the
Republic of Cuba whatever claim of title has been or may be made in
virtue of the stipulations of Article II of the Treaty of Peace of
December 10, 1898.
I have [etc.]
[Enclosure 2]
Memorandum of the Department of State on the
Status of the Isle of Pines2b
The Isle of Pines is situated about fifty miles from the coast of
Cuba, and, therefore, as was indicated by the Supreme Court of the
United States in its opinion in the case of Pearcy versus Stranahan, 205, U. S.
257, under the principles of international law applicable to such
coasts and shores as those of Florida, the Bahamas, and Cuba, it
would ordinarily be regarded as an integral part of Cuba.
[Page 8]
Prior to 1898 the Isle of Pines was a Spanish possession apparently
governed as a municipal district of the Province of Habana,
Cuba.
With respect to Cuba the Joint Resolution passed by the Congress of
the United States April 20, 1898, provides (4) “That the United
States hereby disclaims any disposition or intention to exercise
sovereign jurisdiction or control over said island, except for the
pacification thereof; and asserts the determination when that is
accomplished to leave the government and control of the island to
its people.” (38 Stat. 378 [30 Stat.
738]).
The Treaty of Peace between the United States and Spain proclaimed
April 11, 1899, makes no specific mention of the Isle of Pines, but
by Article I of the Treaty, Spain relinquished all claim of
sovereignty over and title to Cuba, and by Article II Spain ceded to
the United States the Island of Porto Rico and other islands then
under Spanish sovereignty in the West Indies, as well as the Island
of Guam in the Marianas or Ladrones.
During the military occupation of Cuba by the United States the Isle
of Pines was apparently administered as a municipal district of the
Province of Habana. (Report of Census of Cuba published by War
Department in 1900.)
When the Government of Cuba was turned over to the Cubans May 20,
1902, there was an exchange of communications between the Military
Governor and the President of Cuba to the effect that the Isle of
Pines was to continue de facto under the
jurisdiction of the Government of Cuba, subject to treaty
arrangements as to the future disposition of the island.
The Piatt Amendment (Article VI) and Article VI of the Treaty of Cuba
proclaimed July 2, 1904,2c provide that
the Isle of Pines shall be omitted from the proposed constitutional
boundaries of Cuba “the title thereof being left to future
adjustment by treaty.” On March 2, 1904, a treaty was signed by
which the United States relinquished all claim of title to the Isle
of Pines under the said Treaty of Peace with Spain. The Senate of
the United States has not yet consented to the ratification of this
treaty.
It, therefore, appears that the United States has never taken
possession of the Isle of Pines as having been ceded by the Treaty
of Peace with Spain, and that the island has been uniformly governed
by the Republic of Cuba since that Republic came into existence, the
United States recognizing Cuba as rightfully exercising de facto sovereignty until otherwise provided
for.
In the case of Pearcy versus Stranahan, before mentioned, the court considered that it
was justified in assuming that the Isle of Pines had always been
treated by the representatives in Cuba of the President
[Page 9]
of the United States as an
integral part of Cuba. The court added that this was “no doubt 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 the general
principles of international law before mentioned.
The executive branch of the Government has apparently, as indicated
by the treaty it concluded with Cuba March 2, 1904, and its other
dealings with this subject above referred to, taken the ground that
under the Treaty of Peace with Spain the Isle of Pines was not one
of the “other islands now under Spanish sovereignty in the West
Indies” and ceded to the United States by the treaty, but was an
integral part of Cuba over which Spain relinquished claim to
sovereignty by the treaty. In any event, the United States has
undoubtedly indicated that it did not desire to assert any title to
the Island under the Treaty of Peace with Spain, but wished to
quit-claim in favor of Cuba any shadow of title it might have under
that treaty.
It cannot be doubted that in adopting this attitude the Government of
the United States was 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.
The Secretary of State considers it desirable in the interest of
relations between the United States and Cuba that the treaty before
the Senate should be approved. The ratification of the treaty would
leave the situation with respect to Cuban exercise of authority over
the island as it is at the present time. Possible causes of friction
between the two Governments would be obviated and the uncertainty in
the minds of the inhabitants of the island as to its status would be
removed.
It is true that a certain amount of opposition to the ratification of
this treaty exists in the minds of persons who fear that their
interests in the island will be imperiled in the event that this
Government definitely renounced all claim of title to the Isle of
Pines. The opponents of the treaty contend that American citizens
were encouraged to purchase land in the island and to settle there
by statements of the United States Government officials, either
verbal or in writing, to the effect that the Isle of Pines was
United States territory. The opponents of the treaty, furthermore,
assert that as a consequence of such assurances large numbers of
American citizens acquired property in the island and have made
their homes there, believing that they would reside under the
jurisdiction of the United States, and they therefore contend that
the act of the Government in permitting Cuba to exercise control
over the island, and its intention, as expressed in the treaty, to
renounce any claim which it may have of
[Page 10]
title thereto, constitute a breach of good
faith and a betrayal of the interests of those American citizens who
reside or possess property in the island. There is no foundation for
this contention.
The written statements attributed to Government officials affirming
the sovereignty of the United States over the Island consist, so far
as I am aware, entirely of letters written in 1899 and 1900, in
answer to inquiries on the subject, by the then Assistant Secretary
of War, Mr. G. D. Meiklejohn, or by his direction. It should be
observed in this connection that Mr. Meiklejohn had no authority to
speak for the Government of the United States in the matter or to
bind the Government of the United States by anything he saw fit to
say on the subject. (Page 16, Senate Document No. 205, 59th
Congress, 1st Session, entitled “Adjustment of Title to the Isle of
Pines”). The oral statements said to have been made by United States
government officials are not of record and cannot therefore be
considered as evidence.
On the other hand, attention is called to the fact that the Isle of
Pines was particularly and definitely regarded and treated as a
municipality of the Province of Habana by the United States when it
took the census of Cuba under order of President McKinley, dated
August 17, 1899. The report of that census states in part: “The
Government of Cuba has jurisdiction not only over the island of that
name, but also over the Isle of Pines lying directly south of it …”,
and further, “The total population of Cuba, including the Isle of
Pines and neighboring keys was, on October 16, 1899, 1,572,797.” As
stated by Senator Foraker on page 6 of his report contained in
Senate Document No. 205, supra:
“Attention is particularly called to the fact that this census,
taken subsequent to August, 1899, shows that at the time when it
was taken there were in the Isle of Pines only 14 persons who
were natives of any other country than Cuba or Spain.
Practically all of the protestants must, therefore, have gone to
the Isle of Pines subsequent to the taking of that census, and
therefore with full knowledge that the Isle of Pines was being
regarded and treated, for governmental purposes, as belonging to
Cuba and as a part thereof. If the 14 persons citizens of other
countries than Spain and Cuba were citizens of the United
States, they should have taken notice of the fact that they were
enumerated as foreigners, which of itself indicated that the
Isle of Pines was not domestic territory of the United
States.”
With regard to the statement of opponents of the treaty that the
business and property of American citizens residing in the Isle of
Pines will be denied proper protection, in the event that Cuba
acquires by treaty complete jurisdiction over the island, it should
be observed that Article III of the treaty provides that:
“Citizens of the United States of America, who, at the time
of the exchange of ratifications of this treaty, shall be
residing or holding
[Page 11]
property in the Island of Pines, shall suffer no diminution
of the rights and privileges which they have acquired prior
to the date of exchange of ratifications of this treaty;
they may remain there or may remove therefrom, retaining in
either event all their rights of property, including the
right to sell or dispose of such property or of its
proceeds; and they shall also have the right to carry on
their industry, commerce, and professions being subject in
respect thereto to such laws as are applicable to other
foreigners.”
In this relation, it may be observed that for years past Cuba has
exercised complete jurisdiction over the Isle of Pines.
