declaring that it was his son's property, and | for what the common law then was in that that no other brother or sister survived the state, but those made after the cession, said James D. Mitchell. The verdict was for while entitled to very high respect as the dethe defendant. The plaintiff was never per- cisions of a state court, are not to be resonally in possession of the premises, but garded as authority for what the common was simply claiming under James D. Mit-law was prior to 1801. That question was chell as his heir at law. The defendant was not involved in those cases. in possession at the time the plaintiff commenced his suit, holding for his son under a claim that his son was the heir at law of James D. Mitchell. He was not a mere trespasser or intruder within the meaning of the rule, but took possession on the death of the life tenant, ousting no one, and claiming title for his son as heir at law. The question then became one of superiority of title as between the two claimants, the defendant being in possession. Upon these facts it would seem that in other states which follow the common law the plaintiff would have been entitled to recover on proof that he was the sole heir at law of James D. Mitchell, the latter having been devisee of Francis J. Mitchell, and their possession, together with that of the widow of James D. Mitchell, as his devisee, having been continuous, peaceable, exclusive, uninterrupted, and adverse to all persons from 1817 to 1841, when Elizabeth died and the defendant took possession. But the court held that in Maryland a plaintiff in ejectment was bound to recover, not only on the strength of his own title, but must show that he had a legal title to the land and a right of possession, and that he could not establish legal title in himself without first showing the land had been granted by the state. The case decides that upon a question of a conflict of title, the plaintiff must prove that the state had at some time granted the land. It was not a case of prior peaceable possession, interfered with by the defendant without pretense or color of title, and simply as a mere trespasser or intruder. The cases of Hall v. Gittings, 2 Harr. & J. 125, decided in 1807; Cockey v. Smith, 3 Harr. & J. 20, 26, decided in 1810; and Wilson v. Inloes, 11 Gill & J. 351, 358, decided in 1840,-are cited by the court, and justify the statement that there seems to be a particular rule in Maryland, by which it is necessary in actions of ejectment, where there is a real contest as to title, to show either a grant from the lord proprietary, or the state as successor, or else very strong facts and circumstances, as secondary evidence upon which to presume a grant, as mentioned in Cockey v. Smith, 3 Harr. & J. 20, 26. None of the cases presents the phase of a mere trespasser intruding, without color of title, upon the possession of the plaintiff and ousting him by a plain tort. It will be observed they were all decided since the cession. A Declaration of Rights preceded the first Constitution of Maryland, and was affirmed by it. 1 Kilty's Laws of Maryland, § 3, Declaration of Rights. It was therein provided that the people of that state were entitled to the common law of England. The decisions of the courts of Maryland prior to the cession might be regarded as authority There are, however, some cases in that state arising before the cession, in actions of ejectment, where possession alone seems to have been regarded as sufficient to maintain the action as against an intruder. They are Hutchins v. Erickson, 1 Harr. & McH. 339, and House v. Beatty, 3 Harr. & McH. 182. There was no opinion delivered in either case (and those reports contain but few opinions in any of the decided cases), but the facts stated in the first show that prior possession was relied on as against an intruder, by counsel, who referred to the very case of Allen v. Rivington, 2 Wms. Saund. 111, which was cited to maintain the same proposition by Kent, Ch. J., in 10 Johns. 337, and by Mr. Justice Matthews in Sabariego v. Maverick, 124 U. S. 261, 31 L. ed. 430, 8 Sup. Ct. Rep. 461. The case certainly looks in the direction of maintaining the proposition charged by the court in this case. The facts in the other case do not make it so clear. Neither is very satisfactory authority, but they certainly do not maintain the proposition of the plaintiff in error, and we have found no case that does. Upon the whole, we think the almost universal character of the rule laid down by the trial court, taken in connection with the slight evidence in its favor in the two cases arising before the cession, and the absence of cases to the contrary, are enough to show that the rule prevailed in 1801 in Maryland the same as elsewhere. There are no cases to which our attention has been called involving this question in the District of Columbia, which hold a different doctrine from that laid down herein by the trial court. In a very late case, the opinion in which was written by Mr. Chief Justice Alvey of the court of appeals, formerly Chief Justice of Maryland (Staffan v. Zeust, 10 App. D. C. 260), he made use of the following language: "The action of ejectment is, strictly speaking, a possessory action, the plaintiff being required to show a present legal right to the possession of the premises as against the defendant. This may be done by evidence to establish the fact of prior possession by the plaintiff, even though that possession be for a time less than twenty years; such possession being sufficient to give rise to the presumption of title as against a defendant who has subsequently acquired possession by mere entry without any lawful right; provided, however, that such prior possession of the plaintiff was not voluntarily relinquished without the animus revertendi. Allen v. Rivington, 2 Wms. Saund. 111; Smith ex dem. Teller v. Lorillard, 10 Johns. 338, 356; Christy v. Scott, 14 How. 282, 292, 14 L. ed. 422, 426; Sabariego v. Maverick, *70 124 U. S. 296, 300, 31 L. ed. 444, 445, 8 Sup. Ct. Rep. 461." Although this exact question was not involved, it shows that the court of appeals of the District was not of opinion that the law in regard to ejectment was in any exceptional condition here. The Chief Justice cites the same case in 2 Saund., so frequently cited, to show the rule in this particular. After a careful consideration of the question we are of opinion that the case of Sabariego v. Maverick, 124 U. S. 261, 31 L. ed. 430, 8 Sup. Ct. Rep. 461, expresses the true rule in this District as well as elsewhere, and therefore the trial court was right in the direction given to the jury, and the judgment of the Court of Appeals, af. firming that of the trial court, must be affirmed. (180 U. S. 109) v. CHARLES F. W. NEELY, Appt., WILLIAM HENKEL, United States Marshal for the Southern District of New York. Judicial notice of relations with Cuba-extradition-from foreign territory under control of United States-occupation of Cuba-military government constitutional guaranties in case of crimes against foreign country-power of Congress to interfere in government of Cuba. 1. Judicial notice may be taken that the island of Cuba was at the date of the act of Con gress of June 6, 1900, and still is, occupied by, and under the control of, the United States. Argued [No. 387.] December 10, 11, 1900. Decided APPEAL from the Circuit Court of the United States for the Southern District of New York to review a decision denying an application for a writ of habeas corpus to obtain discharge from restraint in extradition proceedings. Affirmed. See same case below, 103 Fed. Rep. 631. The facts are stated in the opinion. Messrs. John D. Lindsay and De Lancey Nicoll for appellant. Assistant Attorney General Beck for appellee. * Mr. Justice Harlan delivered the opinion of the court: By 5270 of the Revised Statutes of the United States it is provided: "Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, cirCuba is foreign territory within the meaning of the act of Congress of June 6, 1900, cuit judge, district judge, commissioner, auamending U. S. Rev. Stat. § 5270, so as to thorized so to do by any of the courts of the provide for extradition of persons violating United States, or judge of a court of record laws of foreign territory occupied by, or un- of general jurisdiction of any state, may, upder the control of, the United States, not- on complaint made under oath, charging any withstanding the fact that the Island is un-person found within the limits of any state, der a military government appointed by and representing the President of the United States in the work of assisting the inhabitants of that island to establish a govern ment of their own. 8. It is competent for Congress by legislation to enforce or give efficacy to the provisions of the treaty of Paris between the United States and Spain, by which the United States agreed to assume and discharge the obligations that might, under International law, result from the fact of its occupation of Cuba, for the protection of life and property there. 4. The fundamental guaranties of life, liberty, and property, made by the Federal Constitution, such as those relating to the writ of habeas corpus, bills of attainder, ex post facto laws, and trial by jury for crimes, have no relation to crimes committed without the Jurisdiction of the United States against the laws of a foreign country. 5. The occupancy and control of the island of Cuba under military authority of the United States cannot be deemed to be an unconstitutional and unauthorized interference with the internal affairs of a friendly power, by virtue of the joint resolution of Congress of April 20, 1898, declaring that "the people of Cuba are, and of right ought to be, free and independent," since this declaration was not intended as a recognition of the existence district, or territory with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testiniony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government for the surrender of such person according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." This section was amended by Congress June 6th, 1900, by adding thereto the following proviso: "Provided, That whenever any foreign country or territory, or any part thereof, is occupied by or under the control of the Unit 110 ed States, any person who shall violate, or On the 28th day of June, 1900, a warrant who has violated, the criminal laws in force was issued by Judge Lacombe of the circuit therein, by the commission of any of the fol- court of the United States for the southern lowing offenses, namely: Murder, and as- district of New York commanding the arrest sault with intent to commit murder; coun- of Charles F. W. Neely, who, "being then terfeiting or altering money; counterfeiting and there a public employee, to wit, certificates or coupons of public indebted- finance agent of the department of posts in ness, bank notes, or other instruments of the city of Havana, island of Cuba, on the public credit, and the utterance or circula- 6th day of May in the year of our Lord one tion of the same; forgery or altering, and thousand nine hundred, or about that time, uttering what is forged or altered; embezzle- having then and there charge of the collecment or criminal malversation of the public tion and deposit of moneys of the departfunds, committed by public officers, employment of posts of the said city of Havana, did ees, or depositaries; larceny or embezzlement unlawfully and feloniously take and embezzle of an amount not less than one hundred dol- from the public funds of the said island of lars in value, burglary, defined to be the Cuba the sum of $10,000 and more, being breaking and entering by night-time into the then and there moneys and funds which had house of another person with intent to com- come into his charge and under his control mit a felony therein, and the act of break-in his capacity as such public employee and ing and entering the house or building of finance agent, as aforesaid, and by reason another, whether in the day or night time, of his said office and employment, thereby with the intent to commit a felony therein; violating chapter 10, article 401, of the Penal the act of entering or of breaking and enter- Code of the said island of Cuba,-that is to ing the offices of the government and public say, a crime within the meaning of the said act authorities, or the offices of banks, banking of Congress approved June 6th, 1900, as aforehouses, savings banks, trust companies, in- said, relating to the 'embezzlement or crimsurance, or other companies, with the intent inal malversation of the public funds comto commit a felony therein; perjury or the mitted by public officers, employees, or desubornation of perjury; rape; arson; piracy positaries." The warrant directed the acby the law of nations; murder, assault with cused to be brought before the judge in order intent to kill, and manslaughter, committed that the evidence of probable cause as to his on the high seas, on board a ship owned by guilt could be heard and considered, and, if or in control of citizens or residents of such deemed sufficient, that the same might be cerforeign country or territory and not under tified, with a copy of all the proceedings, to the flag of the United States or of some oth- the Secretary of State, that an order might er government; malicious destruction of or issue for his return and surrender pursuant attempt to destroy railways, trams, vessels, to the authority of the above act of Congress. bridges, dwellings, public edifices, or other buildings, when the act endangers human life, and who shall depart or flee, or who has departed or fled, from justice therein to the United States, or to any Territory thereof, or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States, and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered, as hereinafter provided, to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hunderd and seventy-seven of this title, so far as applicable, shall govern proceedings authorized by this proviso: Provided further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged: And provided further, That no return or surrender shall be made of any person charged with the commission of an offense of a political nature. If so held such person shall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of State of the United States, and such authorities shall secure to such person a fair and impartial trial." 31 Stat. at L. 656, chap. 793. The warrant of arrest was based on a verified written complaint of an assistant United States attorney for the southern district of New York. On the same day and upon a like complaint a warrant was issued against Neely by the same judge, commanding his arrest for the crime of having unlawfully and fraudulently, while employed in and connected with the business and operations of a branch of the service of the department of posts in Havana, Cuba, between July 1st, 1899, and May 1st, 1900, embezzled and converted to his own use postage stamps, moneys, funds, and property belonging to and in the custody of that department, which had come into his custody and under his authority as such employee, to the amount of $57,000, in violation of §§ 37 and 55 of the Postal Code of Cuba. Neely having been arrested under these warrants, application was made by the United States for his extradition to Cuba. The accused moved to dismiss the complaints upon various grounds. That motion having been denied, the case was heard upon evidence. In disposing of the application for extradition, Judge Lacombe said: "In the opinion of this court, the government has abundantly shown that there is probable cause to believe that Neely is guilty of the offense of 'embezzlement or criminal malversation of the public funds,' he being at the time a 'public officer,' or 'employee,' or 'depositary. Such an offense is obnoxious to the Penal Code in force in Cuba, article *115 401 of which provides that 'the public em- | which recited that the abhorrent conditions ployee who, by reason of his office, has in his existing for more than three years in the charge public funds or property, and who island of Cuba, so near our own borders, had should take (or consent that others should shocked the moral sense of the people of the take) any part therefrom, shall be punished,' United States, had been a disgrace to civiletc. There is no merit in the contention that ization, culminating in the destruction of a this article applies only to persons in the United States battleship, with two hundred public employ of Spain. Spain having with- and sixty-six of its officers and crew, while drawn from the island, its successor has be- on a friendly visit in the harbor of Havana, come the 'public' to which the Code, remain- and could not longer be endured. It was ing unrepealed, now refers. The suggestion therefore resolved: "1. That the people of that under this Penal Code no public the island of Cuba are, and of right ought employee could be prosecuted or punished to be, free and independent. 2. That it is until his superior had heard the case and the duty of the United States to demand, and turned the offender over to the criminal law the government of the United States does for trial is matter of defense, and need not hereby demand, that the government of Spain be considered here. The evidence shows at once relinquish its authority and governprobable cause to believe that the prisoner ment in the island of Cuba and withdraw its is guilty of an offense defined in the act of land and naval forces from Cuba and Cuban June 6th, 1900, and which is also a violation waters. 3. That the President of the United of the criminal laws in Cuba, and upon such States be, and he hereby is, directed and emevidence he will be held for extradition." powered to use the entire land and naval But it was further said: "Two obstacles forces of the United States, and to call into now exist. He [the accused] has the actual service of the United States the been held to bail in this court upon a militia of the several states, to such extent as → criminal charge of bringing into this dis- may be necessary to carry these resolutions trict government funds embezzled in another into effect. 4. That the United States heredistrict. He has also been arrested in a by disclaims any disposition or intention to civil action brought in this court to recover exercise sovereignty, jurisdiction, or control $45,000, which, it is alleged, he has convert- over said island except for the pacification ed. When both of these proceedings have thereof, and asserts its determination, when been discontinued the order in extradition that is accomplished, to leave the govern will be signed. This may be done on Augustment and control of the island to its people." 13th at 11 A. M." 30 Stat. at L. 738. Subsequently, August 9th, 1900, Neely The adoption of this joint resolution was presented in the court below his written ap: followed by the act of April 25th, 1898, by plication for a writ of habeas corpus, and which Congress declared: "1. That war be, prayed that he be discharged from restraint and the same is, hereby declared to exist, in the extradition proceedings. He claimed and that war has existed since the 21st day on various grounds that the act of June 6th, of April, 1898, including said day, between 1900, under which he was arrested, detained, the United States of America and the Kingand imprisoned was in violation of the Con-dom of Spain. 2. That the President of the stitution of the United States. The application for the writ of habeas corpus having been denied, and an appeal having been duly taken, the petitioner was remanded to the custody of the marshall to await the determination of such appeal in this court. I. That at the date of the act of June 6th, 1900, the island of Cuba was "occupied by" and was "under the control of the United States," and that it is still so occupied and controlled, cannot be disputed. This court will take judicial notice that such were, at the date named and are now, the relations between this country and Cuba. So that the applicability of the above act to the sent case--and this is the first question to be examined-depends upon the inquiry whether, within its meaning, Cuba is to be deemed a foreign country or territory. pre We do not think this question at all difficult of solution if regard be had to the avowed objects intended to be accomplished by the war with Spain and by the military occupation of that island. Let us see what were those objects as they are disclosed by official documents and by the public acts of the representatives of the United States. On the 20th day of April, 1898, Congress passed a joint resolution, the preamble of United States be, and he hereby is, directed naval forces of the United States, and to call and empowered to use the entire land and into the actual service of the United States the militia of the several states to such extent as may be necessary to carry this act into effect." 30 Stat. at L. 364, chap. 189. The war lasted but a few months. The success of the American Arms was so complete and overwhelming that a Protocol of Agreement between the United States and Spain embodying the terms of a basis for the establishment of peace between the two countries was signed at Washington on the 12th of August, 1898. By that agreement it was provided that "Spain will relinquish all claim of sovereignty over and title to Cuba," and that the respective countries would each appoint commissioners to meet at Paris and there proceed to the negotiation and conclusion of a treaty of peace. 30 Stat. at L. 1742. Commissioners possessing full authority from their respective governments for that purpose having met in Paris, a treaty of peace was signed on December 10th, 1898, and, ratifications having been duly exchanged, it was proclaimed April 11th, 1899. 30 Stat. at L. 1754. 117 That treaty contained, among other provi- | changes as may from time to time be found sions, the following: "Art. 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, assuine and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property." "Art. XVI. It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occupancy thereof; but it will, upon the termination of such occupancy, advise any government established in the island to assume the same obligations." 30 Stat. at L. 1754-1761. necessary in the interest of good government. The people of Cuba, without regard to previous affiliations, are invited and urged to co-operate in these objects by the exercise of moderation, conciliation, and goodwill one toward another; and a hearty accord in our humanitarian purposes will insure kind and beneficient government. The military governor of the island will always be pleased to confer with those who may desire to consult him on matters of public interest." On the 11th day of January, 1899, the military governor, "in pursuance of the authority vested in him by the President of the United States, and in order to secure a better organization of the civil service in the island of Cuba," ordered that thereafter "the civil government shall be administered On the 13th of December, 1898, an order by four departments, each under the charge was issued by the Secretary of War stating of its appropriate secretary," to be known, that, by direction of the President, a divi- respectively, as the departments of state and sion to be known as the division of Cuba, con- government, of finance, of justice and public sisting of the geographical departments and instruction, and of agriculture, commerce, provinces of the island of Cuba, with head-industries and public works, cach under the quarters at Havana, was created and placed under the command of Major General John R. Brooke, United States Army, who was required, in addition to his command of the troops in the division, to "exercise the authority of military governor of the island." And on December 28th, 1898, General Brooke, by a formal order, in accordance with the order of the President, assumed command of that division, and announced that he would exercise the authority of military governor of the island. On the 1st day of January, 1899, at the palace of the Spanish governor general in Havana, the sovereignty of Spain was formally relinquished and General Brooke immediately entered upon the full exercise of his duties as military governor of Cuba. Upon assuming the positions of military governor and major general commanding the division of Cuba, General Brooke issued to the people of Cuba the following proclamation: charge of a secretary. To these secretaries "were transferred, by the officers in charge of them, the various bureaus of the Spanish civil government." Subsequently, by order of the military governor, a supreme court for the island was created, with jurisdiction throughout Cuban territory, composed of a president or chief justice, six associate justices, one fiscal, two assistant fiscals, one secretary or chief clerk, two deputy clerks, and other subordinate employees, with administrative functions, as well as those of a court of justice in civil and criminal mat ters. By order of a later date, issued by the military governor, the jurisdiction of the ordinary courts of criminal jurisdiction was defined. Under date of July 21st, 1899, by direction of the military governor, a code known, as the Postal Code was promulgated and declared to be the law relating to postal affairs in Cuba. That Code abrogated all laws then existing in Cuba inconsistent with its pro"Coming among you as the representative visions. It provided that the director genof the President, in furtherance and in con- eral of posts of the island should have the tinuation of the humane purpose with which control and management of the department my country interfered to put an end to the of posts, and prescribed numerous criminal distressing condition in this island, I deem offenses, affixing the punishments for each. it proper to say that the object of the present It is not disputed that one of the offenses government is to give protection to the peo-charged against Neely is included in those ple, security to person and property, to re-defined in the Postal Code established by store confidence, to encourage the people to the military governor of Cuba, and that the resume the pursuits of peace, to build up other is embraced by the Penal Code of that waste plantations, to resume commercial traffic, and to afford full protection in the exercise of all civil and religious rights. To this end the protection of the United States government will be directed, and every possible provision made to carry out these objects through the channels of civil administration, although under military control, in the interest and for the benefit of all the people of Cuba and those possessed of rights and property in the island. The civil and criminal code which prevailed prior to the relinquishment of Spanish sovereignty will remain in force, with such modifications and 21 S. C.-20. island which was in force when the war ensued with Spain, and which by order of the military governor remained in force, subject to such modifications as might be found necessary in the interest of good government. On the 13th day of June, 1900, the present military governor of Cuba, General Leonard Wood, made his requisition upon the President for the extradition of Neely under the act of Congress. The facts above detailed make it clear that within the meaning of the act of June 6th, 1900, Cuba is foreign territory. It cannot |