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 Insurrection of "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." 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 1896. 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 * President Cleveland, Annual Message, Dec. 7, 1896. President ley's 1897. Recognition of the belligerency of the Cuban insurgents has often been canvassed as a possible if not inevitable step both McKin- in regard to the previous ten years' struggle and durMessage, 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. The wise utterances of President Grant in his memorable message of December 7, 1875, are signally relevant to the present situation in Cuba, and it may be wholesome now to recall them. At that time. a ruinous conflict had for seven years wasted the neighboring island. During all those years an utter disregard of the laws of civilized warfare and of the just demands of humanity, which called forth expressions of condemnation from the nations of Christendom, continued unabated. Desolation and ruin pervaded that productive region, enormously affecting the commerce of all commercial nations, but that of the United States more than any other by reason of proximity and larger trade and intercourse. At that juncture General Grant uttered these words, which now, as then, sum up the elements of the problem: * * "Turning to the practical aspects of a recognition of belligerency and reviewing its inconveniences and positive dangers, still further pertinent considerations appear. In the code of nations there is no such thing as a naked recognition of belligerency unaccompanied by the assumption of international neutrality. Such recognition without more will not confer upon either party to a domestic conflict a status not theretofore actually possessed or affect the relation of either party to other states. The act of recognition usually takes the form of a solemn proclamation of neutrality which recites the de facto condition of belligerency as its motive. It announces a domestic law of neutrality in the declaring state. It assumes the international obligations of a neutral in the presence of a public state of war. It warns all citizens and others within the jurisdiction of the proclaimant that they violate those rigorous obligations at their own peril and can not expect to be shielded from the consequences. The right of visit and search on the seas and seizure of vessels and cargoes and contraband of war and good prize under admiralty law must under international law be admitted as a legitimate consequence of a proclamation of belligerency. While according the equal belligerent rights defined by public law to each party in our ports disfavors would be imposed on both, which while nominally equal would weigh heavily in behalf of Spain herself. Possessing a navy and controlling the ports of Cuba her maritime rights could be asserted not only for the military investment of the Island but up to the margin of our own territorial waters, and a condition of things would exist for which the Cubans within their own domain could not hope to create a parallel; while its creation through aid or sympathy from within our domain would be even more impossible than now, with the additional obligations of international neutrality we would perforce assume. a Here follows the passage given above, pp. 196–197. "The enforcement of this enlarged and onerous code of neutrality would only be influential within our own jurisdiction by land and sea and applicable by our own instrumentalities. It could impart to the United States no jurisdiction between Spain and the insurgents. It would give the United States no right of intervention to enforce the conduct of the strife within the paramount authority of Spain according to the international code of war. "For these reasons I regard the recognition of the belligerency of the Cuban insurgents as now unwise and therefore inadmissible. Should that step hereafter be deemed wise as a measure of right and duty the Executive will take it." President McKinley, Annual Message, Dec. 6, 1897. Referring to the foregoing passage, President McKinley, in his special message to Congress, April 11, 1898, on the relations of the United States to Spain by reason of the warfare in Cuba, said: "6 Nothing has since occurred to change my views in this regard; and I recognize as fully now as then that the issuance of a proclamation of neutrality, by which process the so-called recognition of belligerents is published, could, of itself and unattended by other action, accomplish nothing toward the one end for which we labor-the instant pacification of Cuba and the cessation of the misery that afflicts the island." (H. Doc. 405, 55 Cong. 2 sess. 8.) 10. COLOMBIA. § 68. "A state of war' has not in a formal sense, either before or after the 20th of April last, been recognized by the GovernInsurrection, 1885. ment of the United States as existing in the United States of Colombia, nor have the insurgents now in arms against the latter Government been recognized by the Government of the United States as belligerents, nor, so far as the Government of the United States is advised, have the insurgents in question been recognized by the United States of Colombia as belligerents." Mr. Bayard, Sec. of State, to Mr. Garland, Attorney-General, July 1, 1885, 156 MS. Dom. Let. 151. This letter relates to the insurrection in Colombia, which formed a subject of discussion in the case of the Ambrose Light, 25 Fed. Rep. 443. In that case the court held that the Secretary of State of the United States had given an "implied recognition" of the belligerency of the insurgents in a note addressed to the Colombian minister at Washington, April 24, 1885. A criticism of the decision of the court may be found in 33 Albany Law Journal, Feb. 13, 1886, p. 125. With reference to the insurrection prevailing in Colombia in 1900, Mr. Hay, Secretary of State, advised the Colombian minister at Washington, August 1, 1900, that the United States had not at any time considered the status of the insurgents such as to require an examination of any possible claim on their part to belligerent rights. (For. Rel. 1900, 405.) |