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:

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 Havana 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 Havana, 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 to-day 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 Havana 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, 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., 1, 53); The Anna (5 C. Rob., 273).

In August, 1902, the Treasury Department decided (T. D. 23922) 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 doubt whatever that it continues to be a part of Cuba, and that it is 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, ch. 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 people of 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:

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 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.

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 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, 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 the courts, and although referring to the conclusive settlement of that de facto status and the reservation by the legislative and executive departments of the determi

nation of the de jure status for future actions, 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 can not 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 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.

UNITED STATES OF AMERICA V. C. A. BIDDLE.

United States Court for China.

Ruling on the demurrer to the information.

Term "Common Law" Defined.

The information in this case charges C. A. Biddle with the crime of obtaining money under false pretences. A demurrer to the information. has been filed on the ground that the facts alleged in the information do not constitute an offence. The demurrer is based upon the contention that obtaining money under false pretences is a statutory and not a common-law offence, and since there is no United States statute on the subject, it is not a crime to obtain money under false pretences in China. The law defining and providing for the punishment of the crime of obtaining money under false pretences is found in 30 Geo. II, C. 24, Sec. 1, which was enacted to supply the defects of the common law relating to cheats. The American statutes on obtaining money under false. pretences follow in substance the English statute. (Bishop, New Criminal Law, Vol. II, book X, chap. XXX.)