OBSERVATIONS ON THE

STATUS OF CUBA

The status of Cuba since the ratification of the Treaty of Paris is anomalous. Viewed as a whole it might be called unique, could this distinction be safely applied to any political condition.

I

The first paragraph of the First Article of the Treaty of Paris reads: "Spain relinquishes all claim "of sovereignty over and title to Cuba." Here is a parting with territory by Spain, yet there is no cession, nor even a surrender in the sense of a transfer. At the end of the peace negotiations Spain did what at their commencement she protested could not be done; she abandoned Cuba, after vainly striving to induce the United States to accept it from her hands. Yet the island, though abandoned, did not become a derelict, being straightway occupied, although not annexed, by the United States.

In these circumstances Cuba remains as foreign to our domestic system as it was when under the dominion of Spain. It is not within the purview of the Constitution, nor of any law of the United States; nor within the territorial jurisdiction of Congress, for this is the legislature of the United States, and not of This paper is reprinted, somewhat revised, from Yale Law Journal, June, 1900, with the permission of the editors.

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any other country. This limitation of congressional power is prescribed by the rule that the acts of a legislature have no force in foreign territory, except, of course, as they may be held to affect citizens abroad. This rule is sometimes stated in terms recognizing the inability of one state to depreciate the sovereignty of another by asserting jurisdiction in the latter's territory, and were this the whole reason for the rule there might be difficulty in applying it to Cuba, where there is no sovereignty to be depreciated. But the sufficient reason for the rule is that a legislature is without territorial jurisdiction beyond the limits of the country in which it is sovereign.1

The second paragraph of the First Article of the Treaty of Paris reads: "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 pro"tection of life and property."

In considering the nature and effect of this occupation from the standpoints of the different parties interested in Cuba we shall gain an approximate idea of the status of the island.

II

From the standpoint of the United States Cuba is a foreign country in our occupation and control. The occupation is not beneficial to us, as it would 1 See supra, p. 24.

be, presumably, had we annexed the island. In fact, it is decidedly burdensome, a vexatious result of a costly war waged for the avowed purpose of freeing Cuba from Spain in order to turn it over to its own people. However this fact may be esteemed in foreign chancelleries, or in Cuba itself, it entitles the United States to assert, upon occasion, any right, privilege, or immunity that enures to a disinterested occupant of territory as distinguished from a sovereign proprietor, and leaves them responsible only for the discharge of the specific obligations of the Treaty of Paris, and such duties, sufficiently onerous, as may be attached by international law to an occupation of this peculiar kind.

Our control over Cuba savors of the protectoral relation in many respects, yet it is not a formal protectorate, because, apart from uncivilized regions, the subject of this relation is a state of more or less substantial powers.

There is no sovereign state of Cuba, and we shall only add to the embarrassments of a sufficiently difficult problem by relying upon such fictions as an embryo state, or an effective sovereignty in the Cuban people. It is true that municipal and provincial systems of government are in operation in the island, and a complete judicial system, all officered by Cubans, but these agencies do not emanate from a local sovereignty; they exist by the ordination or permission of the United States. To be short, whatever real sovereignty there is in Cuba to-day is vested in the representatives of the United States who administer the government of Cuba. Cuba can

be called a "state" only as the term may be used to dignify a community having a certain standing of its own, yet lacking even the trappings of sovereignty.1

The government of Cuba is, really, the President of the United States, the island being ruled by his subordinates who execute his orders, or their own, which he adopts if he does not revoke. It cannot be said that this government is independent, organically, of the United States, for the President enjoys his powers by virtue of his office, and in no respect, either within or without the United States, is that office separable from the Federal Government of which it is a coördinate branch. The government of Cuba is rooted in Washington, not in Havana. It is an offshoot of the executive department of the United States, projected into and holding its place in a foreign territory with the assent of Congress. Hence, although the island of Cuba is not within the jurisdiction of Congress, the government of Cuba is subject to certain powers which the federal legislature is authorized to exert in regard to the executive department.

Whether Congress is competent to order this government to pass specific laws for the island, and thus legislate effectively for it through the medium of the executive department without bringing it, technically, within congressional jurisdiction, I do not discuss. The impropriety of this action should be a sufficient reason for avoiding it.

Our control over Cuba may be called "military" in view of its origin, the agencies by which it is 1 See supra, p. 39.