MR. JUSTICE REED delivered the opinion of the Court.
This case brings before us for review the applicability of the Fair Labor Standards Act of 1938, 52 Stat. 1060, to employees allegedly engaged in commerce or the production of goods for commerce on a leasehold of the United States, located on the Crown Colony of Bermuda.
The leasehold, a military base, was obtained by the United States through a lease executed by the British Government. This lease was the result of negotiations adequately summarized for consideration by the letters of the Marquess of Lothian, the British Ambassador to the United States, of date September 2, 1940; the reply
The Fair Labor Standards Act covers commerce "among the several States or from any State to any place outside thereof." State means "any State of the United States or the District of Columbia or any Territory or possession of the United States." § 3 (b) and (c) of the Act.
Certain employees of contractors who had contracts for work for the United States on the Bermuda base brought this suit under § 16 (b) of the Act for recovery of unpaid overtime compensation and damages, claimed to be due them for the employer's violation of § 7, requiring overtime compensation. We do not enter into any consideration of the employees' right to recover if the Fair Labor Standards Act is applicable to employment on the Bermuda base, for the complaint was dismissed on defendant's motion for summary judgment on the ground that the applicability depended upon the "sovereign jurisdiction of the United States," that the executive and legislative branches of the Government had indicated that such leased areas were not under our sovereign jurisdiction and that this was a political question outside of judicial power. Connell v. Vermilya-Brown Co., 73 F.Supp. 860. The United States Court of Appeals for the Second Circuit, holding that the Act applied to the Bermuda base, reversed this judgment and remanded the case to the District Court for further proceedings on the merits. 164 F.2d 924. Our affirmance of this judgment approves that disposition of the appeal.
(1) We shall consider first our power to explore the problem as to whether the Fair Labor Standards Act covers this leased area. Or, to phrase it differently, is this a political question beyond the competence of courts to decide? Cf. Coleman v. Miller, 307 U.S. 433, 450; Colegrove v. Green, 328 U.S. 549, 552. There is nothing that indicates to us that this Court should refuse to decide a controversy between litigants because the geographical coverage of this statute is involved. Recognizing that the determination of sovereignty over an area is for the legislative and executive departments, Jones v. United States, 137 U.S. 202, does not debar courts from examining the status resulting from prior action. De Lima v. Bidwell, 182 U.S. 1; Hooven & Allison Co. v. Evatt, 324 U.S. 652. We have no occasion for this opinion to differ from the view as to sovereignty expressed "for the Secretary of State" by The Legal Adviser of the Department in his letter of January 30, 1948, to the Attorney General in relation to further legal steps in the present controversy after the judgment of the Court of Appeals. It was there stated:
Nothing in this opinion is intended to intimate that we have any different view from that expressed for the Secretary of State. In the light of the statement of the Department of State, we predicate our views on the issue presented upon the postulate that the leased area is under the sovereignty of Great Britain and that it is not territory
(2) We have no doubt that Congress has power, in certain situations, to regulate the actions of our citizens outside the territorial jurisdiction of the United States whether or not the act punished occurred within the territory of a foreign nation. This was established as to crimes directly affecting the Government in United States v. Bowman, 260 U.S. 94. This Court there pointed out, p. 102, that clearly such legislation concerning our citizens could not offend the dignity or right of sovereignty of another nation. See Blackmer v. United States, 284 U.S. 421, 437; Skiriotes v. Florida, 313 U.S. 69, 73, 78. A fortiori civil controls may apply, we think, to liabilities created by statutory regulation of labor contracts, even if aliens may be involved, where the incidents regulated occur on areas under the control, though not within the territorial jurisdiction or sovereignty, of the nation enacting the legislation.
(4) At the time of the enactment of the Act, June 25, 1938, the United States had no leased base in Bermuda. This country did have a lease from the Republic of Cuba of an area at Guantanamo Bay for a coaling or naval station "for the time required for the purposes of coaling and naval stations." The United States was granted by the Cuban lease substantially the same rights as it has in the Bermuda lease.
Neither this lack of specific reference in the legislative history to leased areas, however, nor the fact that the particular Bermuda base was acquired after the passage of the Act seems to us decisive of its coverage. "The reach of the act is not sustained or opposed by the fact that it is sought to bring new situations under its terms."
The word "possession" has been employed in a number of statutes both before and since the Fair Labor Standards Act to describe the areas to which various congressional statutes apply.
The word "possession" in the Act includes far-off islands whose economy differs markedly from our own. Thus the employees of Puerto Rico, Guam, the guano islands, Samoa and the Virgin Islands have the protection of the Act. See 29 C.F.R. 1947 Supp., 4393. Since drastic change in local economy was not a deterrent in these instances, there is no reason for saying that the wage-hour provisions of the Act were not intended to bring these minimum changes into the labor market of the bases.
Under subdivisions 2 and 3, supra, we have pointed out that the power rests in Congress under our Constitution and the provisions of the lease to regulate labor relations on the base. We have also pointed out that it is a matter
We think these facts indicate an intention on the part of Congress in its use of the word "possession" to have the Act apply to employer-employee relationships on foreign territory under lease for bases. Such a construction seems to us to carry out the remedial enactment in accord with the purpose of Congress.
MR. JUSTICE JACKSON, dissenting.
The serious question in this case is not as to the meaning of the Fair Labor Standards Act. It means just what it says when it provides that it shall apply in any Territory or possession of the United States and I would apply it to every foot of soil that, up to the time of this decision, has been regarded as our possession.
The real issue here, and it is a novel one, is whether this Court will construe the lease under which the United States occupies a military base in Bermuda as adding it to our possessions. The labor for which overtime under the Act is sought was performed for a government contractor on this military base. The base did not exist when the Act was passed and it does not either expressly or impliedly purport to cover work in that area, unless the word "possession" shall be construed to include the leased lands. Whether it is appropriate or permissible to hold
The Court of Appeals read the lease to give "sweeping powers" to the United States and declared that "the areas are subject to fully as complete control by the United States as obtains in other areas long known as `possessions' of the United States." It names as comparable possessions Alaska, Hawaii, Puerto Rico, Guam, Samoan Islands, Virgin Islands and the Canal Zone. This Court seems to approve that premise because it affirms, citing some if not all of the same examples; but it also says, ". . . it is difficult to formulate a boundary to its [the Act's] coverage short of areas over which the power of Congress extends, . . . to legislate upon maximum hours and minimum wages."
Thus application of the Act to the leased area is put on two grounds: first, that the area is a possession of the United States; and second, since the Act applies to those "engaged in commerce or in the production of goods for commerce,"
To consider the bases as possessions in that sense is incompatible with the spirit of the negotiations and with the letter of the lease by which the bases were acquired. It enlarges the responsibilities which the United States was willing to accept and the privileges which Great Britain was willing to concede. This will appear from the history of the transaction whose meaning we interpret.
When organized resistance in the Low Countries and in France went down and the German Wehrmacht stood poised on Europe's Atlantic seaboard, it was suspected, as it since has been proved, that the design for conquest embraced seizure of Atlantic islands as a pathway for future operations against the United States.
Among those who saw in the development of air warfare a necessity for moving our air defense outposts seaward from the cities which dot our own shores, an influential and respected group favored asking England to cede her island possessions in this hemisphere to us as an outright transfer of sovereignty. If this cession had been asked and granted, the Court would now rightly hold the bases to be our "possessions." But it was President Roosevelt himself who determined for this country that it was the part of wisdom neither to seek nor to accept sovereignty or supreme authority over any part of these islands. He decided that it was in our self-interest to limit the responsibilities of the United States strictly to establishment, maintenance and operation of military, naval and air installations. His reasons have been partially disclosed
Knowledge of that policy and purpose gives a measure of the novel and dubious grounds for the Court's present determination to put these bases upon the legislative and juridical footing of "Territories and possessions." It is a first step in the direction of the very imprudence that was sought to be avoided by the limited tenure devised for the bases.
But if American interests neither require nor admit of the assumption that the bases have become our possessions, the bounds of the grant as understood and expressed by Great Britain deny it with even more compelling force. The confined character of the granted privileges
Details of the formal lease do but emphasize the common purpose of Great Britain to so confine the concession and that of President Roosevelt to so circumscribe our responsibilities. The leasehold right of the United States, in war time or emergency, to conduct military operations on land, water or in the air, which was the heart of the matter for us, is without bounds or restrictions except for a pledge of good neighborliness and friendly cooperation in their exercise.
The leasehold terms, however, are well chosen, carefully to deny every commercial and political right to the United States except as they are incidental and appurtenant to this primary military usufruct. American nationals cannot go there for any purpose other than governmental except in conformity to Bermudian laws. Its immigration laws are relaxed only to admit "any member of the United States Forces posted to a Leased Area" and "any person (not being a national of a Power at war
Private trade and commerce by our citizens likewise are wholly in control of the Colony and are no more dependent upon our laws than in any other part of the United Kingdom or any foreign country. Bermudian customs duties are waived only on material for construction and maintenance of our bases, for consumption by our garrisons and supporting personnel, and on their household goods; and we undertake to prevent abuse of this customs privilege and to prevent resale of such imports. This is not greater than the immunity allowed by every foreign country to our diplomatic corps and staffs, and the power reserved by Britain over imports and customs is wholly inconsistent with the concept that these are our possessions.
The lease also expressly and unconditionally provides that no business can be established in the leased arda and that no person shall habitually render any professional services except for the Government and its personnel. No wireless or submarine cable may be operated except for military purposes. Are such stifling restraints by another state consistent with the idea of our possession?
Payment of local income and property taxes are only waived as against those in the area when they are members of our armed forces, employees engaged in our works or contractors with our Government. In short, no actual possession of the United States used by the Court as a standard of reference is so insulated from the United
Possessions such as Puerto Rico, Guam, the guano islands, Samoa and the Virgin Islands, which the Court mentions as standards for the treatment of Bermuda, are, in vital respects, as different from it as night from day. Not one of them is subject to even a frivolous claim adverse to our complete ownership. They belong to us or they belong to no one. They are ceded territory over which United States sovereignty is as complete and as unquestioned as over the District of Columbia and they are subject to no dual control or divided allegiance. They are incorporated into our economy, freely trading in our markets, and "protected" by our tariff walls. They are integrated with our social and, in some degree at least, with our political life as well; some of them being authorized to send delegates to our Congress.
On the other hand, however, Bermuda never has ceased in its entirety to be a Crown Colony of Great Britain. Social, industrial and labor conditions prevailing at the Island bases are such that both nations made every effort to insulate them from the damaging effects of our limited occupation for military purposes. It seems to me unsound policy as well as capricious statutory interpretation for the Court blindly to mingle them by imposing statutory policies that were not shaped with their existence or peculiarities in mind. It may be that, in some matters, the same policies suited to our legitimate possessions will also be considered adaptable to the bases. But it is not necessarily or presumptively so, and where the bases are to be brought into our scheme of things, it should be deliberately and consciously done by the Congress, in particular matters and with particular
It should be enough to dispose of this matter to point out that the United States has no supreme authority or sovereign function in Bermuda, where every commercial
Guantanamo Naval Base, also referred to, is a leased base in Cuba upon which we have agreed that "no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise." But Guantanamo has been ruled by the Attorney General not to be a possession;
Among responsible agencies of the United States, this Court alone insists that the Bermuda bases are possessions. The Department of Justice files a brief urging the Court against this position; the Department of State warns of its dangers and harmful effects upon our foreign relations; the Wage and Hour Administrator ruled administratively against coverage in Bermuda.
Heretofore it has been thought that the Court should follow rather than overrule the Executive department in matters of this kind.
In summary: Congress made the Act applicable in our "possessions." There is no indication or reason to believe that, had Congress considered the matter, it would have regarded our tenure in the Bermuda base as creating a "possession," or would have applied an Act regulating private employment to an area where no such private enterprise could exist. There is no indication of a purpose to apply the Act to an exclusively military operation? indeed the Act indicates the contrary by exempting government employees from its operation.
It would not concern the United Kingdom, or the Colony of Bermuda, if the United States should require its contractors to pay overtime, upon any assumptions which do not imply a possession adverse to theirs. But I do think it will cause understandable anxiety if this Court does it by holding, as matter of law, that the leased areas are possessions of the United States, like those we
I would reverse the judgment below and direct dismissal of the complaint.
I am authorized to state that THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON join in this opinion.
Those documents are published in Department of State publication No. 1726, Executive Agreement Series 235.
Article I, "(1) The United States shall have all the rights, power and authority within the Leased Areas which are necessary for the establishment, use, operation and defence thereof, or appropriate for their control, . . ."
Article XI, "(4) It is understood that a Leased Area is not a part of the territory of the United States for the purpose of coastwise shipping laws so as to exclude British vessels from trade between the United States and the Leased Areas." P. 1565.
Article XIII, "(1) The immigration laws of the Territory shall not operate or apply so as to prevent admission into the Territory, for the purposes of this Agreement, of any member of the United States Forces posted to a Leased Area or any person (not being a national of a Power at war with His Majesty the King) employed by, or under a contract with, the Government of the United States in connection with the construction, maintenance, operation or defence of the Bases in the Territory; but suitable arrangements will be made by the United States to enable such persons to be readily identified and their status to be established." P. 1565.
Article XIV, "(1) No import, excise, consumption or other tax, duty or impost shall be charged on —
"(c) goods consigned to the United States Authorities for the use of institutions under Government control known as Post Exchanges, Ships' Service Stores, Commissary Stores or Service Clubs, or for sale thereat to members of the United States forces, or civilian employees of the United States being nationals of the United States and employed in connection with the Bases, or members of their families resident with them and not engaged in any business or occupation in the Territory;" P. 1566.
Article XXIX, "During the continuance of any Lease, no laws of the Territory which would derogate from or prejudice any of the rights conferred on the United States by the Lease or by this Agreement shall be applicable within the Leased Area, save with the concurrence of the United States." P. 1570.
There are also articles arranging for postal facilities and tax exemptions.
"While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof."
Id., 361. See Joint Resolution No. 24, April 20, 1898, on the recognition of the independence of Cuba, 30 Stat. 738; the Act of March 2, 1901, in fulfillment thereof, 31 Stat. 898, Art. VII; Treaty with Cuba proclaimed June 9, 1934, 48 Stat. 1682, 1683, Art. III.
"The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries, — "
"The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority."
Neutrality Act, 40 Stat. 231, § 1, 18 U.S.C. § 39 (1917) ("The term `United States' . . . includes the Canal Zone and all territory and waters, continental or insular, subject to the jurisdiction of the United States.");
Bank Conservation Act, 48 Stat. 2, § 202, 12 U.S.C. § 202 (1933) (". . . the term `State' means any State, Territory, or possession of the United States, and the Canal Zone.");
Federal Communications Act, 48 Stat. 1064, 1065, § 3 (g), as amended, 47 U.S.C. § 153 (g) (1934) ("`United States' means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone.");
Food, Drug, and Cosmetic Act, 52 Stat. 1040, § 201 (a), 21 U.S.C. § 321 (a) (1938) ("The term `Territory' means any Territory or possession of the United States, including the District of Columbia and excluding the Canal Zone.");
Federal Firearms Act, 52 Stat. 1250, § 1 (2), as amended, 15 U.S.C. § 901 (2) (1938) ("The term `interstate or foreign commerce' means commerce between any State, Territory or possession (not including the Canal Zone), or the District of Columbia, and any place outside thereof; . . .");
Investment Company Act, 54 Stat. 795, § 2 (a) (37), as amended, 15 U.S.C. § 80a-2 (37) (1940) ("`State' means any State of the United States, the District of Columbia, Alaska, Hawaii, Puerto Rico, the Canal Zone, the Virgin Islands, or any other possession of the United States.");
Nationality Act, 54 Stat. 1137, § 101 (e), 8 U.S.C. § 501 (c) (1940) ("The term `outlying possessions' means all territory . .. over which the United States exercises rights of sovereignty, except the Canal Zone.");
War Damage Corporation Act, 56 Stat. 174, 176, § 2, 15 U.S.C. § 606b-2 (a) (1942) ("Such protection shall be applicable only (1) to such property situated in the United States (including the several States and the District of Columbia), the Philippine Islands, the Canal Zone, the Territories and possessions of the United States, and in such other places as may be determined by the President to be under the dominion and control of the United States. . . .").
The War Damage Corporation Act and the Defense Base Act, 56 Stat. 1035, 42 U.S.C. § 1651 (1942), infra, note 16, use terms different from "possession" to describe these leased areas. When these acts were passed, however, the problems posed by the bases were specifically considered by Congress. Hearings on H.R. 6382, House of Representatives, 77th Cong., 2d Sess., p. 27; 88 Cong. Rec. 1851. Thus they afford no touchstone as to the meaning of the Fair Labor Standards Act, where such problems were not specifically considered.
"The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows."
Substandard conditions included excessive hours of labor. Overnight Motor Co. v. Missel, 316 U.S. 572, 577.
"(1) at any military, air, or naval base acquired after January 1, 1940, by the United States from any foreign government; or
"(2) upon any lands occupied or used by the United States for military or naval purposes in any Territory or possession outside the continental United States (including Alaska; the Philippine Islands; the United States Naval Operating Base, Guantanamo Bay, Cuba; and the Canal Zone);. . . ."
This extension was necessary because of the prior limited language of the Act which covered injuries "occurring upon the navigable waters of the United States," the term "United States" being defined to mean "the several States and Territories and the District of Columbia, including the territorial waters thereof." 44 Stat. 1424, 33 U.S.C. §§ 902, 903.
It will be noted that Guantanamo Bay and the Canal Zone were included in the lists as "possessions."
"The Fuehrer is at present occupied with the question of the occupation of the Atlantic Islands with a view to the prosecution of war against America at a later date. Deliberations on this subject are being embarked upon here. Essential conditions are at the present:
"a. No other operational commitment,
"b. Portuguese neutrality,
"c. Support of France and Spain.
"A brief assessment of the possibility of seizing and holding air bases and of the question of supply is needed from the GAF."
3 Nazi Conspiracy and Aggression (GPO 1946), p. 289; 3 Trial of Major War Criminals (GPO 1947), p. 389, Document No. 376-PS received in evidence Dec. 10, 1945; see Nazi Conspiracy and Aggression: Opinion and Judgment (GPO 1947), p. 45.
The former points out, of the President, that "He also knew the penurious condition of the native populations of most of the islands, and consequently did not want to assume the burden of administering those populations. Therefore he had changed, during my absence from Washington, from his original idea of outright purchase of the bases to that of ninety-nine-year leases. I had originally favored outright cession, but was willing to agree to leases instead." P. 834.
I. Statutes which explicitly cover the leased bases:
55 Stat. 622, as amended, 42 U.S.C. § 1651 (1).
II. Statutes employing the phrase "places subject to the jurisdiction of the United States" or similarly sweeping language:
38 Stat. 270, as amended, 12 U.S.C. § 466; 58 Stat. 624, as amended, 10 U.S.C. Supp. I, § 1213; 56 Stat. 176, 15 U.S.C. § 606b-2 (a); 61 Stat. 512, 16 U.S.C. Supp. I, § 776a (c); 40 Stat. 231, 18 U.S.C. § 39; 35 Stat. 1136, 18 U.S.C. § 387; 35 Stat. 1138, as amended, 18 U.S.C. § 396; 54 Stat. 1134, as amended, 18 U.S.C. § 396a; 49 Stat. 494, 18 U.S.C. § 396b; 35 Stat. 1148, 18 U.S.C. § 511; 40 Stat. 559, as amended, 22 U.S.C. § 226; 42 Stat. 361, 22 U.S.C. § 409; 52 Stat. 631, as amended, 22 U.S.C. § 611 (m); 58 Stat. 643, 22 U.S.C. § 701; 32 Stat. 172, as amended, 46 U.S.C. § 95; Rev. Stat. § 4438a, as amended, 46 U.S.C. § 224a (6); 35 Stat. 1140, 46 U.S.C. § 1351; 40 Stat. 217, 219, as amended, 50 U.S.C. §§ 31, 37; 54 Stat. 1179, 50 U.S.C. App. § 512; 56 Stat. 177, as amended, 50 U.S.C. App. § 633 (4), (6); 56 Stat. 185, 50 U.S.C. App. § 643a; 58 Stat. 624, 50 U.S.C. App. § 777; 56 Stat. 390, 50 U.S.C. App. § 781; 60 Stat. 211, 50 U.S.C. App. § 1828 (c).
I. Statutes employing the term "possessions,"
(a) in the phrase "States, Territories, and Possessions" or the like:
43 Stat. 1070, as amended, 2 U.S.C. § 241 (i); 42 Stat. 998, 7 U.S.C. § 3; 42 Stat. 159, 7 U.S.C. § 182 (6); 49 Stat. 731, 7 U.S.C. § 511 (i); 30 Stat. 544, as amended, 11 U.S.C. § 1 (10); 48 Stat. 2, 12 U.S.C. § 202; 39 Stat. 601, as amended, 61 Stat. 786, 14 U.S.C. Supp. I, § 29; 55 Stat. 11, 12, as amended, 14 U.S.C. Supp. I, §§ 302, 307; 48 Stat. 882, as amended, 15 U.S.C. § 78 (c) (16); 54 Stat. 790, 15 U.S.C. § 80a-2 (37); 44 Stat. 1406, 15 U.S.C. § 402 (c); 44 Stat. 1423, 15 U.S.C. § 431; 47 Stat. 8, as amended, 61 Stat. 202, 15 U.S.C. Supp. I, § 607; 61 Stat. 515, 15 U.S.C. Supp. I, § 619; 52 Stat. 1250, as amended, 15 U.S.C. § 901 (2); 56 Stat. 1087, 18 U.S.C. § 420g (2); 42 Stat. 1486, 21 U.S.C. § 61 (b); 52 Stat. 1041, 21 U.S.C. § 321 (b); Int. Rev. Code §§ 22 (b) (4), 251, 252, 1621 (a) (8) (B), 813 (b); 49 Stat. 1928, 27 U.S.C. § 222 (a); 28 U.S.C. § 411 (a); 61 Stat. 150, 29 U.S.C. Supp. I, § 161 (2); 61 Stat. 86, 90, 29 U.S.C. Supp. I, §§ 252 (d), 262 (e); 29 U.S.C. App. Supp. I, § 203.7; 55 Stat. 179, 30 U.S.C. § 4o; 54 Stat. 1086, 31 U.S.C. § 123; Rev. Stat. § 3646, as amended, 31 U.S.C. § 528 (c); 61 Stat. 787, 33 U.S.C. Supp. I, §§ 883a, 883b; 44 Stat. 900, as amended, 39 U.S.C. § 654 (c); 49 Stat. 2038, 41 U.S.C. § 39; 58 Stat. 682, as amended, 42 U.S.C. § 201 (g); 49 Stat. 624, as amended, 42 U.S.C. § 405 (d); 50 Stat. 888, 42 U.S.C. § 1402 (12); 60 Stat. 774, 42 U.S.C. § 1818; 35 Stat. 65, 45 U.S.C. § 52; 52 Stat. 1107, as amended, 45 U.S.C. § 362; 45 Stat. 1492, as amended, 46 U.S.C. § 85; 49 Stat. 888, 46 U.S.C. § 88; Rev. Stat. § 4472, as amended, 46 U.S.C. § 170; Rev. Stat. § 4370, 46 U.S.C. § 316 (a); 41 Stat. 996, as amended, 46 U.S.C. § 813; 39 Stat. 735, 46 U.S.C. §§ 819, 823, 826, 829; 40 Stat. 901, as amended, 46 U.S.C. § 835 (a), (d); 41 Stat. 998, 46 U.S.C. §§ 880, 882, 883; 41 Stat. 1003, 46 U.S.C. § 951; 49 Stat. 2016, 46 U.S.C. § 1244 (a), (b); 49 Stat. 1212, 46 U.S.C. § 1312; 48 Stat. 1065, as amended, 47 U.S.C. § 153 (e), (g); 48 Stat. 1084, 47 U.S.C. § 308 (c); 48 Stat. 1087, 47 U.S.C. § 314; 44 Stat. 568, 572, 573, 49 U.S.C. §§ 171, 176 (c), 179; 52 Stat. 977, 979, 980, 984, 998, 49 U.S.C. §§ 401 (3), (21) (b), (29), (30), 425, 486; 40 Stat. 415, as amended, 50 U.S.C. App. § 5; 60 Stat. 50, as amended, 50 U.S.C. App. § 32 (a) (2) (B); 54 Stat. 890, as amended, 50 U.S.C. App. § 308; 61 Stat. 31, 32, 50 U.S.C. App. Supp. I, §§ 324, 326 (a) (2), (3); 54 Stat. 859, as amended, 50 U.S.C. Supp. I, § 403 (b) (A); 56 Stat. 777, 50 U.S.C. App. § 574; 59 Stat. 542, 50 U.S.C. App. § 639a; 56 Stat. 182, as amended, 50 U.S.C. App § 640; 55 Stat. 206, 50 U.S.C. App. § 702; 56 Stat. 461-62, 50 U.S.C. App. §§ 791, 792, 793, 801; 56 Stat. 1041, 50 U.S.C. App. § 846; 56 Stat. 23, as amended, 50 U.S.C. App. § 901; 56 Stat. 245, as amended, 50 U.S.C. App. § 1191 (i); 57 Stat. 162, as amended, 50 U.S.C. App. § 1472 (a) (A);
(b) qualified, usually in a similar phrase, by the word "island" or "insular":
54 Stat. 1137, 1139, 8 U.S.C. §§ 501 (e), 604; 59 Stat. 526, as amended, 12 U.S.C. Supp. I, § 635; 38 Stat. 730, 15 U.S.C. § 12; 48 Stat. 74, as amended, 15 U.S.C. § 77b (6); 61 Stat. 726, 16 U.S.C. Supp. I, § 758a; 56 Stat. 1046, 21 U.S.C. § 118d; 56 Stat. 1063, 22 U.S.C. § 672 (b); Int. Rev. Code §§ 2563, 2602, 2733 (g); 49 Stat. 2011, as amended, 46 U.S.C. § 1204; 40 Stat. 388, 50 U.S.C. § 137; 53 Stat. 812, 50 U.S.C. § 98f.
II. Statutes listed under heading I above, the application of which to the leased bases might cause conflict with Bermudian law:
42 Stat. 998, as amended, 7 U.S.C. § 3 (Commodity Exchange Act); 42 Stat. 159, 7 U.S.C. § 182 (6) (Packers and Stockyards Act, 1921); 49 Stat. 731, 7 U.S.C. § 511 (i) (Tobacco Inspection Act); 54 Stat. 1139, 8 U.S.C. § 604 (Nationality Act of 1940); 59 Stat. 526, as amended, 12 U.S.C. Supp. I, § 635 (Export-Import Bank Act of 1945); 55 Stat. 11, 12, as amended, 14 U.S.C. Supp. I, §§ 302, 307 (Coast Guard Reserve Act); 38 Stat. 730, 15 U.S.C. § 12 (Clayton Act); 42 Stat. 1486, 21 U.S.C. § 61 (b) (Filled Milk Act); 56 Stat. 1063, 22 U.S.C. § 672 (b) (Settlement of Mexican Claims Act); Int. Rev. Code §§ 22 (b) (4), 813 (b); 29 U.S.C. App. Supp. I, § 203.7 (Rules and Regulations implementing the National Labor Relations Act as amended by the Labor Management Relations Act); 49 Stat. 624, as amended, 42 U.S.C. § 405 (d) (Subpoena provision of the Federal Old-Age and Survivors Insurance Benefits Act); 50 Stat. 888, 42 U.S.C. § 1402 (Low Rent Housing Act); 60 Stat. 774, 42 U.S.C. § 1818 (Atomic Energy Act); 35 Stat. 65, 45 U.S.C. § 52 (Federal Employers' Liability Act); 52 Stat. 1107, as amended, 45 U.S.C. § 362 (Railroad Unemp. Ins. Act); Rev. Stat. § 4370, as amended, 46 U.S.C. § 316 (a) Act for the Regulation of Vessels in Domestic Commerce); 41 Stat. 999, 46 U.S.C. § 883 (Merchant Marine Act, 1920); 49 Stat. 2017, 46 U.S.C. § 1244 (a) (Merchant Marine Act, 1936); 49 Stat. 1212, 46 U.S.C. § 1312 (Carriage of Goods by Sea Act); 48 Stat. 1065, 1084, 1087, as amended, 47 U.S.C. §§ 153 (e), (g), 308 (c), 314 (Communications Act of 1934); 44 Stat. 568, 572, 573, as amended, 49 U.S.C. §§ 171, 176 (c), 179 (b) (Air Commerce Act of 1926); 52 Stat. 977, 49 U.S.C. § 401 (3), (21) (b), (29), (30) (Civil Aeronautics Act); 52 Stat. 998, 49 U.S.C. § 486 (same); 56 Stat. 182, 50 U.S.C. App. § 640 (Amendment of Nationality Act of 1940); 55 Stat. 206, 50 U.S.C. App. § 702 (Exportation Restriction Act); 56 Stat. 23, as amended, 50 U.S.C. App. § 901 (Emergency Price Control Act of 1942).
"The Department regards as unfortunate the conclusion of the Court [of Appeals] that the U.S. exercises as complete control in the leased areas as in other areas long known as `possessions' of the U.S., and its specific reference in this connection to the Philippine Islands, Swains Island, Samoa, Guam and the guano islands over all of which the U.S. exercises sovereignty, except the Philippines ovev which sovereignty was exercised until they were given their independence on July 4, 1946, and except the guano islands, over which, in general, the U.S. exercises exclusive jurisdiction and no other nation claims sovereignty.
"Any holding that the bases obtained from the Government of Great Britain on 99 year leases are `possessions' of the United States in a political sense would not in the Department's view be calculated to improve our relations with that Government. Moreover, such a holding might very well be detrimental to our relations with other foreign countries in which military bases are now held or in which they might in the future be sought. . .."
"Whatever may be our own differences of opinion concerning this much debated measure, its meaning is not debated outside the United States. Everywhere else the language of the treaty [with Great Britain] is given but one interpretation, and that interpretation precludes the exemption I am asking you to repeal.
"We consented to the treaty [with Great Britain]; its language we accepted, if we did not originate; and we are too big, too powerful, too self-respecting a Nation to interpret with too strained or refined a reading the words of our own promises just because we have power enough to give us leave to read them as we please. The large thing to do is the only thing that we can afford to do, a voluntary withdrawal from a position everywhere questioned and misunderstood.
"We ought to reverse our action without raising the question whether we were right or wrong, and so once more deserve our reputation for generosity and for the redemption of every obligation without quibble or hesitation.
"I ask this of you in support of the foreign policy of the administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure."
The repealer was passed as the Act of June 15, 1914, c. 106, 38 Stat. 385. See annotations in 48 U.S.C.A. §§ 1315, 1317.
(b) The Act of March 27, 1942, c. 198, 56 Stat. 174, designed to extend War Damage protection provides that such protection shall be applicable only (1) to property situated in the United States (including the several States and the District of Columbia), the Philippine Islands, the Canal Zone, the territories and possessions of the United States, and in such other places as may be determined by the President to be under the dominion and control of the United States. The terms of this Act, and its legislative history, indicate that the final clause was added to cover areas such as these bases. If the Congress had considered areas of this kind to be "possessions" such a clause would scarcely have been necessary.
"After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.. . ."
In an earlier case, The Amiable Isabella, 6 Wheat. 1, 71, Mr. Justice Story had said: "In the first place, this Court does not possess any treaty-making power. That power belongs by the constitution to another department of the Government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. . . ."
If, as Mr. Chief Justice Marshall stated, this Court should not, to deny rights asserted by the Executive, place a different interpretation on an agreement with another nation, a fortiori, it should not do so in order to assert rights which not only are not asserted by our Executive or by the Congress, but are denied by them and by the other sovereign involved. And, to add, to the agreement under which we occupy the leased areas, that as a matter of law the bases have become our possessions, is certainly more than a trivial change in that agreement, in direct contravention of the caution by Mr. Justice Story.