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.]

CHARLES E. HUGHES

[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 herein before recited and report to this House as soon as practicable:

126127-40-6

"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

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 Platt 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 Platt 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 Platt 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 Platt 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

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 selfdeclared 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 ayuntamiento 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

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.

2a

A treaty was accordingly negotiated under and within the statutory powers conferred by the law of each country. 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]

ALVEY A. ADEE

Memorandum of the Department of State on the Status of the Isle of Pines 20

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.

23

The first treaty by which the United States relinquished claim to the Isle of Pines was signed on July 2, 1903 (not printed), and submitted to the Senate on Nov. 10, 1903. Injunction of secrecy was removed on Nov. 24, 1903. The treaty lapsed, as it carried a provision (article IV) that ratifications should be exchanged within seven months from date of signature and no final action was taken on it by the Senate within that period. A similar treaty not carrying any time limit was signed in Washington on Mar. 2, 1904 (post, p. 11), and submitted to the Senate on Mar. 3, 1904. The other articles of the two treaties are the same except that in article I of the treaty signed on Mar. 2, 1904, the clause "which has been or may be made in virtue of Articles I and II of the Treaty of Peace between the United States and Spain" replaces the clause "which has been or may be made in virtue of Article II of the Treaty of Peace between the United States and Spain" in the unratified treaty of July 2, 1903.

Filed separately as file No. 837.014P/301a.