"I am requested by the Secretary to say to you that he has been told that the counsel of the Hornet' will probably insist upon and try to make much of the recognition of Cuba by Peru, Chile, and Mexico, and will claim that the United States have offered their 'mediation' in behalf of the Cubans, which by the public law can only be offered as between recognized belligerents. The Secretary desires me to say to you in answer to this: "1st. That we have no intelligence that Chile has acted at all in this matter. "2d. That Mexico has not recognized a state of belligerency, but has authorized the Cuban flag to be received in their ports. "3d. That it is not true that the United States have offered to mediate between the parties. They have only offered to Spain their ‘good offices' to bring about a settlement which is a very different thing, and one that may well be done by a neutral between a sovereign power and insurgents in arms against it. "4th. That the light in which the Cubans are regarded can in no event make any difference on an arraignment for an alleged violation of the provisions of the statutes of 1818." Mr. J. C. B. Davis, Assistant Secretary, to Mr. Phelps, U. S. Dist. Att'y, New "The contest [in Cuba] has at no time assumed the conditions which amount to a war in the sense of international law, or which would show the existence of a de facto political organization of the insurgents sufficient to justify President Grant's a recognition of belligerency. "The principle is maintained, however, that this nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive, or to independent nations at war with each other." President Grant, First Annual Message, Dec. 6, 1869. See, as to the position of President Grant and Mr. Fish on the question of recognizing Cuban belligerency, J. C. Bancroft Davis, Mr. Fish and the Alabama Claims, 20-21, 35-36; The Atlantic Monthly, February, 1894, 217-218. Special message, June 13, 1870. "The question of belligerency is one of fact not to be decided by sympathies for or prejudices against either party. The relations between the parent state and the insurgents must amount, in fact, to war in the sense of interna tional law. Fighting, though fierce and protracted, does not alone constitute war; there must be military forces acting in accordance with the rules and customs of war-flags of truce, cartels, exchange of prisoners, &c.—and to justify a recognition of belligerency there must be, above all, a de facto political organization of the insurgents suffi cient in character and resources to constitute it, if left to itself, a state among nations capable of discharging the duties of a state, and of meeting the just responsibilities it may incur as such toward other powers in the discharge of its national duties. "Applying the best information which I have been enabled to gather, whether from official or unofficial sources, including the very exaggerated statements which each party gives to all that may prejudice the opposite or give credit to its own side of the question, I am unable to see, in the present condition of the contest in Cuba, those elements which are requisite to constitute war in the sense of international law. "The insurgents hold no town or city; have no established seat of government; they have no prize courts; no organization for the receiving and collecting of revenue; no seaport to which a prize may be carried or through which access can be had by a foreign power to the limited interior territory and mountain fastnesses which they occupy. The existence of a legislature representing any popular constituency is more than doubtful. "In the uncertainty that hangs around the entire insurrection there is no palpable evidence of an election, of any delegated authority, or of any government outside the limits of the camps occupied from day to day by the roving companies of insurgent troops. There is no commerce; no trade, either internal or foreign; no manufactures. "The late commander in chief of the insurgents, having recently come to the United States, publicly declared that 'all commercial intercourse or trade with the exterior world has been utterly cut off,' and he further added, "To-day we have not ten thousand arms in Cuba.' "It is a well-established principle of public law that a recognition by a foreign State of belligerent rights to insurgents under circumstances such as now exist in Cuba, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion. Such necessity may yet hereafter arrive, but it has not yet arrived, nor is its probability clearly to be seen. "If it be war between Spain and Cuba, and be so recognized, it is our duty to provide for the consequences which may ensue in the embarrassment to our commerce and the interference with our revenue. "If belligerency be recognized, the commercial marine of the United States becomes liable to search and to seizure by the commissioned cruisers of both parties they become subject to the adjudication of prize courts. "Our large coastwise trade between the Atlantic and the Gulf States, and between both and the Isthmus of Panama and the States of South America (engaging the larger part of our commercial marine) passes, of necessity, almost in sight of the island of Cuba. Under the treaty with Spain of 1795, as well as by the law of nations, our vessels will be liable to visit on the high seas. In case of belligerency, the carrying of contraband, which now is lawful, becomes liable to the risks of seizure. and condemnation. The parent Government becomes relieved from responsibility for acts done in the insurgent territory, and acquires the right to exercise against neutral commerce all the powers of a party to a maritime war. To what consequences the exercise of those powers may lead, is a question which I desire to commend to the serious consideration of Congress." President Grant, special message, June 13, 1870. "A recognition of the independence of Cuba being, in my opinion, impracticable and indefensible, the question which Annual message, next presents itself is that of the recognition of belligerent rights in the parties to the contest. 1875. In a former message to Congress I had occasion to consider this question, and reached the conclusion that the conflict in Cuba, dreadful and devastating as were its incidents, did not rise to the fearful dignity of war. Regarding it now, after this lapse of time, I am unable to see that any notable success, or any marked or real advance on the part of the insurgents, has essentially changed the character of the contest. It has acquired greater age, but not greater or more formidable proportions. It is possible that the acts of foreign powers, and even acts of Spain herself, of this very nature, might be pointed to in defense of such recognition. But now, as in its past history, the United States should carefully avoid the false lights which might lead it into the mazes of doubtful law and of questionable propriety, and adhere rigidly and sternly to the rule, which has been its guide, of doing only that which is right and honest and of good report. The question of according or of withholding rights of belligerency must be judged, in every case, in view of the particular attending facts. Unless justified by necessity, it is always, and justly, regarded as an unfriendly act, and a gratuitous demonstration of moral support to the rebellion. It is necessary, and it is required, when the interests and rights of another Government or of its people are so far affected by a pending civil conflict as to require a definition of its relations to the parties thereto. But this conflict must be one which will be recognized in the sense of international law as war. Belligerence, too, is a fact. The mere existence of contending armed bodies, and their occasional conflicts, do not constitute war in the sense referred to. Applying to the existing condition of affairs in Cuba the test recognized by publicists and writers on international law, and which have been observed by nations of dignity, honesty, and power, when free from sensitive or selfish and unworthy motives, I fail to find in the insurrection the existence of such a substantial political organization, real, palpable, and manifest to the world, having the forms and capable of the ordinary functions of gov ernment toward its own people and to other states, with courts for the administration of justice, with a local habitation, possessing such organization of force, such material, such occupation of territory, as to take the contest out of the category of a mere rebellious insurrection, or occasional skirmishes, and place it on the terrible footing of war, to which a recognition of belligerency would aim to elevate it. The contest, moreover, is solely on land; the insurrection has not possessed itself of a single sea-port whence it may send forth its flag, nor has it any means of communication with foreign powers except through the military lines of its adversaries. No apprehension of any of those sudden and difficult complications which a war upon the ocean is apt to precipitate upon the vessels, both commercial and national, and upon the consular officers of other powers, calls for the definition of their relations to the parties to the contest. Considered as a question of expediency, I regard the accordance of belligerent rights still to be as unwise and premature, as I regard it to be, at present, indefensible as a measure of right. Such recognition entails upon the country according the rights which flow from it difficult and complicated duties, and requires the exaction from the contending parties of the strict observance of their rights and obligations. It confers the right of search upon the high seas by vessels of both parties; it would subject the carrying of arms and munitions of war, which now may be transported freely and without interruption in the vessels of the United States, to detention and to possible seizure; it would give rise to countless vexatious questions, would release the parent Government from responsibility for acts done by the insurgents, and would invest Spain with the right to exercise the supervision recognized by our treaty of 1795 over our commerce on the high seas, a very large part of which, in its traffic, between the Atlantic and the Gulf States, and between all of them and the States on the Pacific, passes through the waters which wash the shores of Cuba. The exercise of this supervision could scarce fail to lead, if not to abuses, certainly to collisions perilous to the peaceful relations of the two states. There can be little doubt to what result such supervision would before long draw this nation. It would be unworthy of the United States to inaugurate the possibility of such result, by measures of questionable right or expediency, or by any indirection. Apart from any question of theoretical right, I am satisfied that, while the accordance of belligerent rights to the insurgents in Cuba might give them a hope, and an inducement to protract the struggle, it would be but a delusive hope, and would not remove the evils which the Government and its people are experiencing, but would draw the United States into complications which it has waited long and already suffered much to avoid." President Grant, Seventh Annual Message, December 7, 1875 "Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part 1895. of the eastern interior of the island, menacing even some populations on the coast." Insurrection of 1896. President Cleveland, Annual Message, Dec. 2, 1895. See, also, opinion of "As the contest has gone on, the pretense that civil government exists on the island, except so far as Spain is able to President Cleve- maintain it, has been practically abandoned. Spain land's message, does keep on foot such a government, more or less imperfectly, in the large towns and their immediate suburbs. But that exception being made, the entire country is either given over to anarchy or is subject to the military occupation of one or the other party. It is reported, indeed, on reliable authority that, at the demand of the commander in chief of the insurgent army, the putative Cuban government has now given up all attempt to exercise its functions, leaving that government confessedly (what there is the best reason for supposing it always to have been in fact) a government merely on paper. It was at first proposed that belligerent rights should be accorded to the insurgents-a proposition no longer urged because untimely and in practical operation clearly perilous and injurious to our own interests." 66 1897. * * * President Cleveland, Annual Message, Dec. 7, 1896. Recognition of the belligerency of the Cuban insurgents has often been canvassed as a possible if not inevitable step both President McKin- in regard to the previous ten years' struggle and durley's Message, ing the present war. I am not unmindful that the two Houses of Congress in the spring of 1896 expressed the opinion by concurrent resolution that a condition of public war existed requiring or justifying the recognition of a state of belligerency in Cuba, and during the extra session the Senate voted a joint resolution of like import, which, however, was not brought to a vote in the House of Representatives. In the presence of these significant expressions of the sentiment of the legislative branch it behooves the Executive to soberly consider the conditions under which so important a measure must needs rest for justification. It is to be seriously considered whether the Cuban insurrection possesses beyond dispute the attributes of statehood, which alone can demand the recognition of belligerency in its favor. Possession, in short, of the essential qualifications of sovereignty by the insurgents and the conduct of the war by them according to the received code of war are no less important factors toward the determination of the problem of belligerency than are the influences and consequences of the struggle upon the internal polity of the recognizing state. |