other arrangements designed to mitigate the rigors of warfare. The inhabitants of the Confederate States on the one hand, and the States which adhered to the Union on the other, became enemies, and subject to be treated as such, without regard to their individual opinions or dispositions; while during its continuance commercial intercourse between them was forbidden, contracts between them were suspended, and the courts of each were closed to the citizens of the other. Brown v. Hiatts, 15 Wall. 177, 184." United States v. Pacific Railroad, 120 U. S. 227, 233 (1887). "The rights and obligations of a belligerent were conceded to it [the Confederate Government], in its military character, very soon after the war began, from motives of humanity and expediency by the United States.” Thorington v. Smith, 8 Wall. 1, quoted in Baldy v. Hunter, 171 U. S. 388, 393 (1898). Position of Mr. "The President recognizes the right of every power, when a civil conflict has arisen within another state, and has attained a sufficient complexity, magnitude, and completeness, to define its own relations and those of its citizens and subjects toward the parties to the conflict, so far as their rights and interests are necessarily affected by the conflict. "The necessity and the propriety of the original concession of belligerency by Great Britain at the time it was made have been contested and are not admitted. They certainly are questionable, but the President regards that concession as a part of the case only so far as it shows the beginning and the animus of that course of conduct which resulted so disastrously to the United States. It is important, in that it foreshadows subsequent events. "There were other powers that were contemporaneous with England in similar concession, but it was in England only that the concession was supplemented by acts causing direct damage to the United States. The President is careful to make this discrimination, because he is anxious as much as possible to simplify the case and to bring into view these subsequent acts, which are so important in determining the question between the two countries." Mr. Fish, Sec. of State, to Mr. Motley, minister to England, May 15, 1869, in relation to the Alabama claims. (S. Ex. Doc. 11, 41 Cong. 3 Sess. 4-5.) Mr. Motley was also instructed, in his private as well as his official intercourse, "to place the cause of grievance against Great Britain, not so much upon her recognition of the insurgents' state of war, but upon her conduct under and subsequent to such recognition." See Moore, International Arbitrations, I. 499, 512 et seq. Mr. Fish, in an instruction to Mr. Motley, Sept. 25, 1869, amplified his view, as follows: "The President does not deny, on the contrary he maintains, that every sovereign power decides for itself, on its responsibility, the question whether or not it will, at a given time, accord the status of belligerency to the insurgent subjects of another power, as also the larger question of the independence of such subjects and their accession to the family of sovereign states. "But the rightfulness of such an act depends on the occasion and the circumstances, and it is an act, like the sovereign act of war, which the morality of the public law and practice requires should be deliberate, seasonable, and just, in reference to surrounding facts; national belligerency, indeed, like national independence, being but an existing fact, officially recognized as such, without which such a declaration is only the indirect manifestation of a particular line of policy. "But circumstances might arise to call for it. A ship of the insurgents might appear in the port of the neutral, or a collision might occur at sea, imposing on the neutral the necessity to act. Or actual hostility might have continued to rage in the theater of insurgent war, combat after combat might have been fought for such a period of time, a mass of men may have engaged in actual war until they should have acquired the consistency of military power, to repeat the idea of Mr. Canning, so as evidently to constitute the fact of belligerency and to justify the recognition by the neutral. Or the nearness of the seat of hostilities to the neutral may compel the latter to act; it might be his sovereign duty to act, however inconvenient such action should be to the legitimate Government." (For. Rel. 1873, III. 336.) 1868. 9. CUBA. § 67. "I have the honor, by the President's direction, to offer a few suggestions as a basis for orders to the Commander of Insurrection of the North Atlantic Squadron during the existing civil war in Cuba. Those hostilities must be regarded as strictly of a domestic character. As such they can not impart to Spain, under the public law or our treaties with her, any belligerent rights on the high seas, nor have we recognized such rights anywhere as possessed by those who are in arms against Spanish authority in that island. The right of search for contraband is a right to be exercised against a public enemy only on the high seas. It can not there lawfully be exercised against a neutral who has not recognized both parties as belligerents. If, therefore, the commander of our men-ofwar should ascertain that a vessel of the United States is about to be searched on the high seas by a Spanish vessel they may be authorized to resist such search with all the force at their disposal. If, also, they should fall in with a vessel of the United States which has been captured by a Spaniard on the high seas on the ground of being a carrier of contraband, or on any other pretext involving a claim to belligerent rights in that quarter, they may be authorized to recapture the prize if they should feel competent for that purpose. * * * It is presumed to be unnecessary to suggest that the naval commanders should be ordered to be careful as to facts, to be firm and vigilant in protecting their countrymen, but at the same time avoid giving occasion for unnecessary or unprofitable controversy with Spain by touching upon her unquestionable rights." Mr. Fish, Sec. of State, to Mr. Borie, Sec. of the Navy, May 18, 1869, 81 MS. H. Doc. 551—13 "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 a recognition of belligerency. President Grant's "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 receiv ing 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 next presents itself is that of the recognition of belligerent rights in the parties to the contest. Annual message, 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 |