THE GIFT OF
MAY TREAT MORRISON
IN MEMORY OF
ALEXANDER F MORRISON
AMERICA'S
FOREiaN POLICY
AMERICA'S
FOREIGN POLICY
ESSAYS AND
ADDRESSES
BY
THEODORE SALISBURY WOOLSEY
M. A.
PROFESSOR OF INTERNATIONAL LAW IN THE
LAW SCHOOL OF YALE UNIVERSITY
NEW YORK
THE CENTURY CO.
1898
Copyright, 1886, by Allen Thokndike Rice.
Copyright, 1895, 1896, by Tm; Forum Publishing Co.
Copyright, 1893, 1896, 1897, 1898, by The Yale Law Jouknal.
Copyright, 1892, 1894, 1895, 1896, by The Yale Publishing Compant.
Copyright, 1898, by The Century Co.
The DeVinne Pre88.
s
1415
W88*-
T
INTRODUCTION
HE essays and addresses gathered in this
little volume, with few exceptions, have
been called ont by pnblic events during the
5 past four years. For the courtesy of a permis-
j|r sion to reprint certain of them, I return sin-
5 cere thanks to the publications where they
first appeared. They were adapted for spe-
cial occasions, or to meet special questions,
g and differ much in stjde and form on this
J2 account. Nor has pains been taken to re-
move from them the references to time which
they contain. Nevertheless, it is hoped that
they have a certain unity and present value
^ in a discussion of the foreign policy of the
52 United States.
Z For some years our national government
o has seemed to me to be on the eve of an im-
t portant change of policy in its aims and
5 ideals. It has shown an ever-growing dispo-
sition to break away from our early habit of
political isolation, and to assert itself in the
rivalries of the world's politics. This change
V
432555
Tl INTRODUCTION
I have dreaded, and the opposite, the con-
servative view, animates many of my pages.
How this change was to come, no man
could anticipate. That we, as a people, are
nearer to its realization to-day than ever
before, is a fact which stares us in the face.
One important step in the new program,
call it colonialism or imperialism or what
you will, has been taken in the annexation
of the Hawaiian Islands. And the motive
for it largely was their strategical imjior-
tance and their convenience as a stepping-
stone to the Philippines.
The terms of peace to be agreed upon with
Spain will go far to decide our future des-
tiny. A wonderful chance of aggrandize-
ment seems to be within our grasp. Shall
we seize it? Ought we to resist it? Is it
consistent with our true mission, with our
highest development?
There are two sets of advocates of this
policy of imperialism. One reasons thus:
The capture of the Philippines is a divinely
ordered responsibility. Whether we wish it
or not, the civilization and Christianization
of these populous islands have been suddenly
laid upon our shoulders. Let us not prove
unworthy of the trust. The other sees in
the retention of Spain's colonies a chance to
provide ourselves with foreign markets, and
extend our foreign trade, which may never
recur. These views are both weighty, both
INTKODUCTION vii
sincere, yet both may be mistaken. How
can we be sure that this opportunity is a re-
sponsibility to be borne, and not a tempta-
tion to be resisted ? An opportunity is not
necessarily a reason. And, again, does the
possession of colonies, for a people organized
as we are, promise a healthful growth of
trade and markets, or such an entanglement
with the rivalries, jealousies, and ambitions
of other and powerful nations as to injure
both ?
Already in the manoeuvering of the Ger-
mans for position at Manila, we may see a
sample of the difficulties of the situation.
In this connection, let me say very frankly
that, if I understand the nature of the
American aright, the one thing which he
will not put up with is an attempt to limit
his prerogatives as conqueror or treaty-
maker. Generous and broad-minded he may
be in his terms of peace ; but to have those
terms dictated by a European concert, to be
put on the plane of Turkey or of Greece, or
even to be curbed in victory like Russia or
Japan, is a thing not to be endured. He
would fight in preference. And yet it is to
just such a necessity that the new policy
would expose him. From a single power
like Germany he has nothing to fear, because
Germany's real influence is continental. It
does not touch him nearly. It is not trans-
latable into colonial importance and naval
Mil INTKODUCTION
effectiveness. The mere cost of a contest
with the United States would endanger her
place in the European equilibrium. But let
a European coalition attempt the same thing,
and how can one power resist it, imless an
ally be called in, and the world be set by the
ears ?
The old theory of the balance of power
confined its working to the European system,
to land power, and to political, not commer-
cial, growth. There are signs that every one
of these limitations is being overridden. The
scramble for land in Africa and in China,
the reaching out for new markets, the inclu-
sion of Japan in the world's balance, all show
that we cannot be within the sphere of the
concert, yet not of it. We have to take the
bitter with the sweet, the limitations with
the privileges.
Much is said by irresponsible persons of
the erection of the United States into a great
military power as a result of the Spanish
war. But clearly this depends upon the
policy which we elect to pursue. If we
choose imperialism, then it is true, and the
lessons of organization and of armament
which the war is teaching are valuable in-
deed. On the other hand, if we are content
with our own ideals, the fact of this war will
be a bulwark of defense. For it shows that
this is a warlike people; that it does not
count the cost in following an ideal ; that it
INTKODUCTION ix
does not threaten merely, and that it knows
how. Such a reputation is worth armies and
navies in defense, while the small establish-
ment, small but efficient, which has been our
usage, is a pledge of unaggressiveness.
In one respect I believe that we might
well copy the older powers — in the protection
given to our subjects and their property the
world over. Not like a swash-buckler, but
like a guardian, calm but strong, we should
protect our interests and collect our dues.
And if this duty led us to Smyrna, to seize
an equivalent from the Porte for the Ameri-
can losses in Armenia, it might prove a use-
ful lesson to all the world.
A few words, finally, as to our attitude
toward Great Britain. The cordial sympa-
thy of that country with this during the
Spanish war; its belief in our honesty of
purpose in commencing that war ; a fancied
identity of commercial interests in China —
these reasons, together with a sense of our
common heritage of speech and law and
ideal, have led many to believe that these
two great nations could l^e harnessed to-
gether by a treaty of alliance, and made to
pull with even trace the car of progress.
Cordiality, mutual sympathy, belief in one
another's sincerity, pride in our joint inheri-
tance — these qualities the two peojjles maj^
cherish and should cherish; an alliance be-
tween the two governments is a far different
X INTRODUCTION
and more doubtful policy. It would entail
for us an immediate plunge into the whirl-
pool of continental politics ; the assumption
of unwelcome and unwonted responsibilities ;
the straying from the path of our natural
and wonted development. For, if either
party is attacked, alliance means war. Har-
mony, agreement, a good understanding —
these we can strive after ; these we can per-
haps insure by aid of an arbitration treaty,
upon which as a foundation the entente can
be built up. But let each nation play its
own hand, judge of its own duty, solve its
own problems in its own way.
What destiny the coming century has in
store for our beloved land, who can tell ? It
depends upon the moral qualities of our race,
exemplified in government. We shall need
high aim and integrity of purpose. We shall
need robust common sense. If these pages
contribute in any degree to a calm and sober
judgment of the vital issues of the future,
they will have served their end.
T. S. WOOLSEY.
Yale University, July 21, 1898.
CONTENTS
Our Foreign Policy, and its Relation to ^^^^
Domestic Problems 1
The Consequences of Cuban Belliger-
ency 25
Our Duty to Spain 37
Responsibility for the ^' Maine" ... 53
Cuba and Intervention 61
The War with Spain 71
The Future of the Philippines .... 103
The Law and the Policy for Hawaii . 115
An Interoceanic Canal in the light of
Precedent 133
An Interoceanic Canal from the Stand-
point OF Self-Interest 153
An Inquiry Concerning our Foreign Re-
lations , 169
The Fishery Question. 195
The Bering Sea Award .• 213
The President's Monroe Doctrine . . . 223
Some Thoughts on the Settlement of
International Controversies . . . 241
Some Cojdient upon the Arbitration
Treaty 261
The United States and the Declaration
OF Paris 273
OUR FOREION POLICY, AND ITS
RELATION TO DOMESTIC
PROBLEMS
AN ADDEESS
Before the American Social Science Association,
Saratoga, September, 1897
OUR FOREIGN POLICY, AND ITS
RELATION TO DOMESTIC
PROBLEMS
C1TATE policy is an ever-changing thing.
1^ Rarely can a country, in the nature of
things in this mutable world, pursue an iden-
tical line of action seeking a certain end
until that end is accomplished. Sovereigns
and ministers die or change; unexpected
problems, unforeseen difficulties, arise ; the
nightmare of one generation may become the
ideal of another.
Moreover, new outlets for national expan-
sion are found, and a spirit of colonial adven-
ture crops out now and again which tempts
nations to their hurt. Thus the German
Empire to-day has been led into a policy of
naval development and African land-grab-
bing which is quite inconsistent with its
traditions, its genius, and its capacity.
Or the march of events brings about the
inevitable, and we see a state with its mind
made up to accept what a previous generation
2 OUK FOREIGN POLICY, AND ITS
would have aeceptecl only at the cost of war.
Even uow we are wondering whether Eng-
land has not acquiesced in Russia's passion-
ate deijire for a ,Me»il'itpiTanean outlet. If so,
in this centur'y-loiig hi'Ovement of Russia we
shoiiM ii;n>i: '^n • <3Xce^faon^: to the rule : she
would have pursued a single end until its
accomplishment. And in her case this would
be more probable than in that of any other
power, for her government reflects the
arbitrary rule of a single family. The more
representative the government, the less con-
tinuous the foreign policy. This is the law
which we should expect, and in our own case
this law obtains. As one party succeeds an-
other in power, it does not hesitate instantly
to undo what its predecessor had arranged.
Thus, to go back a few years only, Mr. Bay-
ard tried to protect seal life by diplomatic
agreement, Mr. Blaine by assertion of own-
ership; President Harrison attempted the
annexation of Hawaii, President Cleveland
negatived it; one party built up a set of
reciprocity treaties upon its tariff foundation,
the other altered the tariff and the treaties
lapsed. This want of continuity in its for-
eign policy must be a sad obstacle to our
successful diplomacy, but it is inevitable in a
government by the popular will. As it limits
the reliance which other states may place
upon our aid and our attitude, so it must
RELATION TO DOMESTIC rKOBLE:\rs 3
necessarily weaken our right to leadership
and powers of initiative.
While all this is true, in one respect this
country has pursued with fair consistency
a policy of abstention from European com-
plications. Maintaining an attitude of self-
defense and insisting upon its rights,
throughout the century now closing, it has
enlarged and defined its borders as against
Great Britain and Russia and Mexico,
France and Spain; but again and again
it has declined those steps which would
tend to make it a sharer in the problems
of continental Europe. Washington's posi-
tion at the end of the eighteenth century
has been our position throughout the nine-
teenth. And the reason is easy to see. Our
national expansion has been upon internal
lines. There has been room at home for all
the energy, the commercial growth, the
national development of which the countiy
was capable. A broad belt of continent was
to be conquered, and the century has been
devoted to the task. Is the work finished?
Must we now look outside of our own borders
to find room for our exj^ansive energy?
Have we achieved such results in material
growth, in political development, and in the
solution of social problems that we can fairly
go to less fortunate peoples, with our birth-
right in our hands, and say to them, " Come,
4 OUB FOREIGN POLICY, AND ITS
share our heritage with us " ? Is a forward
policy, an aggressive poHcy, an expansive
policy for the future, consistent with our in-
ternal growth and the wise solution of the
problems confronting us ? This is likely to
be one of the serious questions of the next
quarter-century. Already there is evident a
tendency to view our foreign relations from
a new point of view. We are dividing into
conservatives and forwards — to use a term
which avoids characterization. We do not
as yet share directly in European politics;
we do not lift our voice in the "concert" of
the powers. Our changing attitude is seen,
rather, with regard to European relations
with the states of the American continent.
If we examine various significant acts of
our national government and couple with
them the passionately urged opinions of
many of our senators and congressmen,
backed by a fairly extensive portion of
the press, we shall find, I think, a somewhat
indefinite i:)rogram, but one positively held
and urged, and with a single end in view —
the territorial growth of the United States
and the extension of its influence upon this
continent.
Disclaiming— as yet, at least— a desire to
share in European affairs, these forwards
say : " America for the Americans." They as-
sert that because we play no part in Europe,
EELATION TO DOMESTIC PROBLEMS 5
European powers must in turn refrain from
niingiing in American affairs, and that, in
fact, the time is ripe for a declaration that no
European sovereignty can be 23ermitted to
control territory on this side of the Atlantic.
It is, of course, a 110)1 sequltur to argue that,
since we havx no hand in European affairs,
they must put no finger into ours. For our
policy— as every policy must be— was and is
determined by our own sense of expediency ;
it is not a matter of right or of reciprocity.
One of the phenomena which indicates this
change of attitude alluded to is the growth
of belligerent feeling which has accompanied
the recent increase in our naval strength.
Perhax^s the naval growth is itself a sign,
but I prefer to think not. For the revolu-
tion in naval architecture since our Civil War
has demanded a completely new navy to put
us in the same relative position as formerly.
The prime object of a navy is to protect the
persons and the commerce of a state's sub-
jects the world over. In building a navy
before enacting such laws as will give us a
share in the world's carrying-trade, we are
open to the charge of putting the cart before
the horse. Nevertheless there are many in-
terests to guard in foreign ports besides a
carrying-trade, and the United States must
perform, with other powers, the duty of
policing the seas, of furnishing protection
6 OUR FOEEIGN POLICY, AND ITS
to its subjects among the uncivilized races,
of ceremonial observance, of neutrality en-
forcement, besides making itself ready for a
possible war of self-defense. But if, instead
of trying to build up our trade and protect-
ing our citizens and enforcing our laws, we
use this weapon to threaten others with, it is
an abuse. Fortunately there are as yet no
very flagrant instances of such abuse. The
truculent spirit which I have in mind, which
we are apt to call Jingoism, has not been
often translated into action. But it is sug-
gested by our attempt, during the Harrison
administration, to protect the seals of Bering
Sea as a matter of right instead of by inter-
national agreement ; by the sensational chase
of the Chilian ship Itata^ a vessel, as our
courts later declared, engaged in legitimate
commerce ; by the reproof of a navy officer
who failed to protect General Barrundia from
the laws of his own country, violated by
him, when he was within its jurisdiction;
most of all, by the frequent and ridiculous
outbursts of temper on the part of individuals
in and out of Congress, who insist that the
navy shall blow some one or something which
displeases them out of the water. It is the
unpleasant habit of " pulling a gun," which
obtains in certain parts of our country, raised
to a national usage.
Another example of a similar tendency is
RELATION TO DOMESTIC PROBLEMS 7
seen in the extension and more emphatic
assertion of that article of out national policy
which we call the Monroe Doctrine.
When we were small and weak as a people,
it was natural to think that the imposition of
a European sovereignty upon a minor Ameri-
can state, against its will, might threaten us
as well as hurt it. But the richer and more
powerful we grow, and the less this danger
really exists, the more vociferously we pro-
fess to fear it.
This topic has been so thoroughly threshed
out in recent discussion, however, that I turn
to another which is perhaps more important,
namely, the position we shall elect to take in
regard to a Central American canal connect-
ing the oceans. Here what is wanted now,
and what has been consistently planned for
in our past diplomacy, is such a condition of
security and stability, of peaceful construc-
tion and peaceful maintenance, as will enable
such a beneficent public work to be built.
This has been attempted by guaranteeing its
neutrality and its freedom from the exclusive
control of any single nation. This policy the
forwards seek to change. If a treaty stands
in their way, as the Clayton-Bulwer conven-
tion does, it must be abrogated. If a canal
is to be built, we, and we alone, they declare,
must control it. And why ? Solely because
such control will add to the effectiveness of
8 OUK FOllEIGN POLICY, AND ITS
our fleet by giving it peculiar facilities of
mobilization and operation upon both our
coasts. The price which we must pay for
this privilege is such an increase of our army
as to garrison and hold the canal against
local insurrection or foreign attack ; a large
increase of our vulnerable sea-coast ; and the
reputation of a national breach of faith. To
this heavy cost in taxes, in risk of foreign
embroilment, and in dishonor, should be
added the damage to our commerce which
would be likely from its use of a canal sub-
ject to the hazards of war, instead of free
from those hazards, as an international
guaranty of neutrality would make it.
Perhaps the most striking feature of that
wave of public excitement which was aroused
by the Venezuelan difficulty of 1895-96 was
the revelation, by Congress and by a large
section of the public press, of deep-seated
hatred of England.
Was this an inheritance from the last
century ! Was it an outgrowth of the Civil
War ? Was it the result of Irish influence in
American politics, or because England was a
gold-standard country or believed in free
trade ? Or was it simply an evidence of the
nervous, excitable, volatile American temper-
ament, which now and then leads this peace-
ful people into an absurdity of warlike desire
such as followed the Virginius capture and
RELATION TO DOMESTIC PROBLEMS 9
the attack upon the Baltimore's crew in Val-
paraiso ? Whatever the explanation may be,
whether it is one or all of these, the existence
of the feeling is a phenomenon which has
snrprised calm observers in this conntry and
has shocked and amazed the British people.
More and more it can be used by demagogues
in this country to further their own ends.
Is it a question of tariff I Then that tariff
which will make England smart must be the
right one. Is it a question of currency? Our
system must run counter to that of the " rob-
ber" nation to be satisfactory. Or is there
an arbitration treaty proposed to lessen the
chance of war and insure a ready and peace-
ful settlement of nearly all disputes ? It must,
per se, be a mistake because of its origin ;
some insidious British wile lies hid in it.
There was another reason for the defeat of
the arbitration treaty. It came up for ratifi-
cation at a time when the Senate was engaged
in contest with the executive branch of the
government over the right of initiative in
our foreign relations. "We order you to
recognize the independence of Cuba," said
the Senate. " You cannot, and we will not,"
replied Mr. Cleveland and Mr. Olney, follow-
ing an unbroken line of precedents. Accord-
ingly, the arbitration treaty was so amended
by the Senate as to keep the power of refer-
ence to the treaty courts in its own hands,
10 OUR FOEEIGN POLICY, AND ITS
which was one of the very things which the
people at hirge desired to avoid.
To curtail the powers granted by the Con-
stitution to the executive, to keep alive an
active distrust of and hostility to Great
Britain, to play an aggressive part in our
relations with other powers, to assume a
headship of the states of the American con-
tinent, with a vague yet dangerous responsi-
bility for them to correspond — such is the
forward policy. And it is more — and more
definite— than this. It contemplates the an-
nexation of Hawaii, on account of its stra-
tegical position at the meeting-place of the
lines of travel in the Pacific. This, the first
and easiest step in the program, is also the
least objectionable, judged by itself alone, yet
seems to be not without complications. It
desires some form of control over Cuba also,
because Cuba would be the key to a Central
American canal. It even dreams of Mexico
and Canada as our eventual possessions.
Thus it aims at extension of territory as
an aid to extension of power. The question
whether this people needs now, or will soon
need, more land to grow over, is one about
which anybody may have an opinion. We
see now that the Louisiana purchase was a
far-sighted sagacious step. The annexation
of Texas and conquest of California may be
criticized as a wrong to Mexico, but were
RELATION TO DOMESTIC PEOBLEMS 11
essential to our symmetrical development.
And lately Alaska has begun to evidence
Mr. Seward's skill in land-speculation. May
it not be that further extension, in years to
come, will prove to be equally praiseworthy I
Possibly. Yet there are two or three consid-
erations which should not be lost sight of.
Except in the case of Alaska, these earlier
additions were of contiguous territory. They
did not present the problem of ingrafting dis-
tant colonial government upon our system.
Moreover, they were of territory practically
unoccupied. They did not involve the diffi-
culties of administering the affairs of alien
races in full control and ownership of foreign
soil. And, most of all, they were to provide
room for a nation's growth of population, not
to enhance its strategical position.
If the annexationists allege the need of
wider limits for our growing millions, it is
one thing. With the census maps before us,
we can judge of the necessity. But if their
reasons are political and military, if their
coveted soil is already thickly settled, it is
quite another. When Jingoism ceases to be
merely the stock in trade of the demagogue,
and aspires to expression in political action,
it is time to judge it seriously.
What now is the conservative policy to
contrast with these aspirations ? It may be
expressed by a single phrase— the settlement
12 OUK FOREIGN POLICY, AND ITS
of domestic problems uncomplicated by for-
eign questions. Slavery and States' rights,
as great political problems, have been settled.
But the currency, the tariff, the way of escape
from machine politics, are difficulties which
still confront us, besides various minor but
by no means unimportant movements, such
as the reform of the civil service, a better
banking system, forest preservation, reform
in municipal administration, and railway-
traffic regulation. The first two of these
have formed the dividing-lines of our politi-
cal parties since the war. It has been hoped
that a compromise tariff could be framed
which might be stable. Although drawn on
the lines of protection, it should be so mod-
erate and so productive of revenue as to dis-
arm the opposition of the free-traders. But
of this, unhtippily, there is no sign. The
pendulum even now has swung back, the
highest of high tariffs has been enacted, after
a year or two of over-stimulation the reaction
will come, and the whole dreary contest must
be fought over again. Even more dangerous
is the currency question, with which a faulty
banking system is entangled. Our currency
defects have grown out of a popular delusion
which was fostered by the necessities of the
Civil War and the legal-tender decisions. By
this delusion a large number of honest and
in the main sensible citizens have been led to
EELATION TO DOMESTIC PEOBLEMS 13
believe that the government stamp upon
metal or paper originates value. If value is
created by stamp in accordance with a vote,
the next step is naturally to create as much
value as possible and put it in the hands
of the people as widely as possible. This
menace to the stability of our measures of
value introduces a cause of insecurity, of
bad times, from which our chief commercial
rivals are free. Like us, they may suffer
from over-production, from over-expansion
of credits ; they are liable to vast strikes and
serious panics ; they are peculiarly subject to
the malign influences upon connnerce of the
hostile rivalries, the attitude of armed ex-
pectancy, which pervade Euroj^e; but they
at least know in what medium their contracts
are to be carried out. They are free from the
supremest blight which trade can be sub-
ject to.
This is all a commonplace; we shut our
eyes to it when we can ; Init now and then
the evil rises to tragic proportions, and all
proj^erty interests are forced together into
an ill-assorted union in simple self-defense.
Now, to cure this most dangerous condition
will require not only long-continued agita-
tion and education and the honest and able
efforts of a whole united party ; it needs also
an exemption from the kind of complication
which caused it, that is, from war, or any
14 OUR FOREIGN POLICY, AND ITS
other great national expenditure which its
ordinary resources are unequal to. This,
perhaps, will suggest a certain subtle connec-
tion between Jingoism and the fiat-money
advocates.
Still more of a commonplace is the effect
upon legislation of our caucus system and of
the mastery of the party through the mastery
of the intricate machinery of the party. That
mastery will always be better understood by
the man with special interests to serve than
by the man who only tries to serve his coun-
try. How much wearisome talk there is as
to the duty of good citizens to go into poli-
tics ! They do go in, if they can get in, but
their families must be supported meanwhile ;
and unless they too make a living out of
politics, except in rare instances, they will
find the machine men in control. They are
powerless in the grip of the caucus. If you
change the machinery by some popular up-
rising, and flatter yourself that by so doing
virtue is secured, you presently find that the
rascals have got the better of the new machi-
nery but too easily. If you do away with all
machinery, and legislate by the direct vote of
the people, you will but substitute govern-
ment by newspaper for government by
caucus. If you attack the evil at its root,
and try to limit universal suffrage by quali-
fications, you attempt the impossible. The
EELATION TO DOMESTIC PROBLEMS 15
tendency is all in the other direction. " Fa-
cilis descensus Averno ; . . . sed revocare
graduni, . . . hoc opus, hie labor est."
With these various evils we are face to
face. Even now cool-headed men, not too
optimistic, are asking themselves whether
we are not watching the breakdown of our
representative system of government. Un-
less that system can be reformed and puri-
fied, the breakdown may come, and it will
not be a safe oi* an agreeable spectacle.
Perhaps I have been led aside from my
argument a little. What I desire to insist
upon here is the urgent and absolute neces-
sity, if we are to have a strong, a united, a
prosperous nation, of settling these vital
questions, settling them right, and settling
them soon.
And this leads us to our main contention,
namely, that such settlement is absolutely
impossible if the program of the forwards
is carried out ; for we cannot set our house
in order if we must spend our energies in
its defense or in attacks upon a neigh l)or.
An aggressive policy is the forward policy,
and it leads to foreign complications, to ex-
pensive armaments, and to war. This was
clearly true of the problems that are now so
happily behind us. Slavery required slave
territory for expansion and for the political
balance. This led to a desire for Cuba, to
16 OUK FOKEIGN POLICY, AND ITS
filibustering in Nicaragua, to the annexation
of Texas, the conquest of Cahfornia, and the
shame of the Mexican War.
The States' rights doctrine was also an
aggressive one. It bred civil war and
threatened the dissolution of the Union. And
this is natural; for every policy which
threatens the rights of others, abroad or at
home, must inevitably lead to a defense
of those rights. Aggression implies resis-
tance.
There is one unvarying demand in all the
forward policy, in the cry for more territory,
in the hostility toward Great Britain and
Spain, in the assertion of our headship of
this continent, in the claim of control over
an isthmus canal, and that is for ships, sol-
diers, and money. Without these this policy
is pure bluster. To make it effective no one
can tell the cost. This means heavy taxa-
tion. Thousands of miles of seaboard, dozens
of harbors and coast cities, must be pro-
vided Avitli defense. We must build a navy
to match England's, must maintain an army
to man our defenses, to garrison our foreign
possessions, to hold our canal, to warrant
our claim to dictate to a continent.
Our wonderful progress in wealth has
been owing hugely to two causes, cheap
land and the freedom from a standing
army, that millstone about the neck of an
RELATION TO DOMESTIC PROBLEMS 17
industrial nation. As our cheap-land sup-
ply is giving out, we are asked voluntarily
to throw after it the other advantage and
assume the military burden.
We spent in 189G upon our army and
nav}^ establishments seventy-eight millions
of dollars. Yet in return for this large
expenditure our navy stands only fifth in
armored ships and seventh in officers and
men, while the army, with less than twenty-
five thousand enlisted men, is little more
than a police force to secure internal secu-
rity. Simply <loubling the army and trebling
the navy would cost one hundred millions
additional yearly, without counting a system
of coast and harbor defense. Even with
this increase we should be poorly equipped
to carry on a foreign war. To tell the truth,
our enormous pension expense is our sub-
stitute for the cost of a military establish-
ment, and could not be maintained if that
were assumed.
Is it not clear that the tariff question, for
instance, must be immensely complicated l)y
an increase in taxation sufficient to carry
out this new policy? It could not be settled
on its merits. The need of revenue would
affect every schedule, and hardly to the ad-
vantage of the manufacturer, for the duty
must be low enough to admit goods fi-eely
in order to be productive. Or else internal
18 OUR FOREIGN POLICY, AND ITS
taxation and an income tax must be re-
sorted to.
But this is not the worst of its results.
The forward policy tends to keep us con-
stantly in hot water in our foreign relations.
Already we have a " question," a '' diffi-
culty," with Germany over the interpreta-
tion of the most-favored-nation clause, with
China in regard to innnigration, with Canada
about the seals, with Spain about Cuba, with
the Japanese over their rights in Hawaii.
But in the brave time coming we shall show
our mettle to every state in turn which tries
to limit our pretensions. If this leads to
rumors of war, as we know by hard expe-
rience, our trade suffers. It is no exaggera-
tion to say that the consequences of the
Venezuelan policy led straight to Bryanism,
for the apprehension of war with England
crushed the promising trade revival, and
business depression led to political upheaval.
If our aggressiveness should lead to war
itself, we are tempted to issue forced loans
and call them money. The discontent from
hard times, the distress and loss of credit
from war, either one, would imperil the hope
of establishing a sound financial system.
There is another connection between burn-
ing questions of foreign policy and the solu-
tion of domestic problems which is no less
certain and even more insidious. The old
RELATION TO DOMESTIC PROBLEMS 19
solidity of our political parties has been
broken in upon. AVe have Gold Republicans
and ISilver Kepublieans, their dift'erences too
deep for common action. We have Silver
Democracy and Populistic Democracy, and
Populism of several shades. And we have
a growing tendency toward that indepen-
dence which picks and chooses its candidates
and its principles without regard to consis-
tency or party loyalty. This state of flux, of
instability, is the despair of the politician.
What a godsend to him, therefore, would be
such a foreign embroilment as would replace
or at least overshadow in the party platform
and in the popular mind these diflicult in-
ternal problems ! To divert the people from
the real questions at issue ; to excite their war-
like desires by emphasizing some petty injury
or fancied danger ; to sweep them into a vor-
tex of passion, miscalled patriotism — what a
golden opportunity for the demagogue, but
what a detriment to good government and
useful legislation ! " Patriotism " has already
been given a heavy load to carry. How often
during the past year or two the hesitancy
of a thoughtful mind to recognize Cuban
belligerency or to intervene for Cuban inde-
pendence, to face England down in Vene-
zuela, to play the bully whenever and
wherever opportunity offers, has been de-
nounced as a want of j^atriotism ! 80 that
20 OUR FOREIGN POLICY, AXD ITS
the conservative citizen who deplores the
effect of foreign adventure upon his coun-
try's prosperity and business is declaimed
at from the lofty heights of patriotic fervor,
until he too begins to think that black is
white, and wrong is right, and love of
country means love of a row. Yet the
demagogue is not the real patriot, nor is
truth falsehood. So the perplexed citizen
betakes himself to his " Faerie Queene," and
draws temporary solace from the piteous
story of Una and the red-cross knight,
buft'eted by the wiles of Archimago.
The g'uilefull great eiicliaunter parts
The Rederosse knight from Truth :
Into whose stead faire Falshood steps
And workes him woeful! ruth.
The extreme difficulty of settling domestic
questions of vital importance rightly if they
are complicated by foreign embroilment ; the
positive danger to the integrity of our poli-
tics if the pseudo-patriotic chord can be
played upon at will by the demagogues ; the
mistake of substituting foreign adventure
for internal development in our country's
advancement— these are the reasons for be-
lieving that the old way is the best way.
Danger from the aggressions of other coun-
tries, in my judgment, does not really exist.
RELATION TO DOMESTIC PROBLEMS 21
This luitioii is too populous, too rich, too
strong, potentially, in war, as well as too iso-
lated, to fear for its own integrity. Its dan-
gers lie in its own follies, its own ignorance,
its own blunders. With a moderate settled
tariff, a sound and stable monetary system, a
conservative diplomacy l)acked by a rational
method of settling its disputes by arbitra-
tion, we may build, on the foundations which
our fathers laid, the fair structure of an en-
during state, which shall continue to be the
world's great object-lesson in self-govern-
ment, whose instrument shall be the plow-
share, not the sword, which shall be trusted
by the nations, and which, through the arts
of peace, the skill of its artisans, the honest
toil of its farmers, the wide-spread education
of its people of every degree, may, in God's
providence, attain the only kind of headship
worth having, that of character and of
worth.
THE CONSEQUENCES OF CUBAN
BELLIGERENCY
Yale Law Journal,
March, 1896
THE CONSEQUENCES OF CUBAN
BELLIGERENCY
SOINIE timo since tliore appeared in a
leading New York paper tliis statement :
" Sefior Palma, now delegate of the Cuban
revolutionary party in the United States,
will be the accredited minister of the new
republic at Washington, if President Cleve-
land acknowledges the belligerency of Cuba."
It is hardly probable that any student of our
foreign relations would be deceived by so
palpable a blunder as this. The recognition
of belligerency, when accorded to a people
trying to fight their way up to statehood,
carries with it no right of diplomatic inter-
course. If it did, it would be barely distin-
guishable from a recognition of indepen-
dence. But there are various consequences —
positive and negative — which do flow from
the recognized belligerent status, which may
not be so clear, and I have thought it might
be of interest to see them briefly set forth.
Not that a recognition of the Cuban bel-
25
26 THE CONSEQUENCES OF
ligerents is at once necessary or proper.
That is not a matter to be decided by senti-
ment. If one state takes the part of an
insurgent body in another, through sym-
pathy with its wrongs, and desires to aid it,
that is intervention, not recognition. The
recognition of Cuban belligerency should be
governed by the interests of this country
which are involved; by the ascertained
existence of a civil and military organiza-
tion, responsible for its acts and conforming
to the rules of war ; and by the gravity and
character of the contest. Or, to put it more
specifically, if the United States finds its
trade considerably affected by the acts of
war of a new de facto state, possessing a
definite territory where the old sovereign no
longer controls, it recognizes that new body
as a belligerent, and holds him responsible
for his conduct for its own sake.
In regard to these essential facts in Cuba
it is rather difficult to find out the truth.
Until the Cubans possess some of the ports
of the island and carry on war by sea, our
shipping interests cannot be much involved.
On the other hand, there must be losses of
sugar and tobacco property in the interior
belonging to Americans, the responsibility
for which will need determination.
However, it is not the expediency of a
recognition of Cuban belligerency, but the
CUBAN BELLIGERENCY 27
legal eousequences flowing from such recog-
nition, that I would here discuss. Perhaps
a consideration of the latter will aid in de-
ciding the former. As between the parent
state and the insurgent body, the relations
are not changed by an outside recognition
of the latter's belligerency. In theory the
insurgents may be considered traitors and
be dealt with in accordance with municipal
law ; but in point of fact the executive branch
of the state will probably accord them the
rights of belligerents, being guided first by
the dictates of humanity, and second by the
danger of retaliation.^
But as between the insurgent body and
other powers, a new. relation is introduced,
that of neutrality. The revolutionary flag
will be recognized, so that ships bearing it,
in spite of the lack of ordinary clearance
papers, will be received at foreign ports as
having a definite standing. Thus, early in
our Civil War, the Sumter put in at Cura(;ao,
Holland having recognized the belligerency
of the Confederacy. The commission of the
Smnter^s captain was accepted as granted by
a lawful belligerent, and the ship admitted
on the same footing with ships of the North,
though Mr. Seward tried to fasten a piratical
character upon her. A better standing will
be gained for the borrowing of money, — an
1 Case of the Amy Warwick, 2 Black. 635.
28 THE CONSEQUENCES OF
act which is based upon future expectations,
— because the recognition is a stamp of suc-
cess up to a certain point, and therefore en-
courages those expectations.
The insurgent men-of-war will be entitled
to the same hospitalities as well as limited by
the same restrictions in neutral ports as the
ships of the parent state, except so far as
these may be modified by previous treaty.
For, not having acquired statehood and the
right of negotiation, the revolutionary body
can have made no treaties. Neutrality thus
becomes a real and practical thing, and its
machinery — neutrality laws, foreign enlist-
ment acts, or whatever other name such
regulations may bear — is put into operation.
If a " recognized " insurgent blockades a port
after due notification, the neutral submits to
such blockade. It admits his right to search
for and seize contraband articles belonging to
its subjects and destined for his enemy's use,
on the high seas. The insurgent thus gains
considerably from recognition of his belliger-
ency. He gains in caste ; he gains in rights ;
he gains in the facilities for carrying on war.
But his enemy gains as well and as much,
also, with reference to third parties.
A state of war is declared to exist. As a
lawful belligerent the parent state may block-
ade, and search and capture for carr^dng con-
traband, and exercise all the rights of war
CUBAN BELLIGERENCY 29
and insist upon all the neuti-al duties, wliicli
during an unrecognized insurrection would
not come into being.
Thus, during the\"ivil War of 18(51-65, the
blockade of the Southern ports, a powei'ful
and unmatched weapon in the hands of the
North, was a belligerent right, its observance
a neutral dutj^, which foreign recognition of
Southern belligerency made possible. For
blockade is a war right solely. When Presi-
dent Lincoln laid the blockade he virtually
recognized the Ijelligerency of the Confeder-
ate States himself. During war, too, the
neutral state is responsible for the conduct of
its subjects ; it is held to a stricter and more
exact accountability than it can be as a mere
friend regarding the internal disorders of a
fellow-State with very possible complacency.
There is another and most valuable conse-
quence of the recognition of belligerency
which the parent state enjoys : it is no longer
responsible for the acts of the insurgents.
They may injure the i)erson or destroy the
property of neutral subjects by land or by
sea, and their de facto government is alone
answerable. This is a tremendous weight
oft' the shoulders of the existing state. If the
insurgent body dissolves, its responsibility
for such damage vanishes. It is the neutral
who is injured that suffers without redress.
Yet that neutral has a certain interest, as
30 THE CONSEQUENCES OF
well as the other two bodies, in the results
of this recognition. A state of war is de-
clared to exist between two friendly belliger-
ent bodies. For such a state of things its
neutrality laws provide. Its citizens can be
told just what they can deal in without
seizure as contraband. Certain seaports
are either open, or closed by blockade. It
knows just what its duties are. The air is
cleared. A state, jealously watching over
the welfare of its subjects and their com-
merce, desires most of all to know exactly
the conditions which apply to them. And
it may have a certain sympathy for a strug-
gling, perhaps a long-suffering, community,
which finds exj)ression in this way.
There are thus three sets of interests which
are affected and altered by recognition of
belligerency— those of the insurgent as re-
gards neutrals, of the parent state as regards
neutrals, and of the neutrals as affected by
a state of war. Let us try to apply these
principles to the case of Cuba.
The insurgents would have a better chance
of selling bonds, a flag recognized by other
states, and war rights against neutral com-
merce.
Spain would hold the United States gov-
ernment to a stricter accountability in the
prevention of filibustering expeditions and
the detention of ships capable of being used
CUBAN BELLIGERENCY 31
for war. For all sneli breaches of neutrality
the United States would be responsible in
damages unless it could prove that it had
exercised reasonable care and diligence.
Spain also would possess the rights of a
belligerent against United States commerce,
which is not the case at present. Thus, if
the Cubans succeeded in capturing some or
all of the seaport towns of the island, Spain,
having control of the sea with her navy,
could and probably would shut out all neutral
trade from them through blockade. She
would have the right of capturing all war
material shipped from this country to Cuba
for the use of the insurgents, whatever the
ownership, even on the high seas. In en-
forcing these rights her gunboats could stop,
visit, and search any commercial vessel of
the United States. The Allianga incident
would often be repeated, but on the high
seas, while remonstrance or resistance would
be unlawful.
Again, Spain would be relieved of re-
sponsibility for all damage done by the
insurgents to the property of neutral sub-
jects in Cuba, while at present in such case
it is probable that she could be held liable.
The United States, in turn, confronted by
a war between two lawful belligerents, must
duly respect their war rights. Its mer-
chantmen must keep away from blockaded
32 THE CONSEQUENCES OF
ports, must submit to exasperating search,
can carry on trade in contraband only under
penalty of the loss of the goods, and often of
the ships as well, if caught in the act. Its
citizens owning property in Cuba would
find it indistinguishable from belligerent
property and subject to all the casualties of
war. Its citizens who evaded our laws and
sought service in the revolutionary army
would lose their right of protection and must
expect the same treatment that the insur-
gents met with. And its trade with the
island in certain contingencies would be
entirely cut off, so that the interchange of
breadstuffs and manufactures for sugar and
tobacco would be as dead as the cotton trade
between England and the South during our
Civil War, kept alive only by a few cargoes
which ran successfully the risks of blockade.
The treaty made with Spain more than
a century ago, except those articles which
are obsolete, has also a bearing on our sub-
ject, for its specific provisions must be added
to the general rules of international law.
Thus the list of articles which shall be con-
sidered contraband is there laid down, and
Article XIV forbids the subjects of either
state to accept letters of marque from an
enemy of the other, under penalty of being
punished as pirates. So that no United
CUBAN BELLIGERENCY 33
States citizen could fit out a privateer in
the Cuban interest. He would be violating
treaty obligation and our own statutes as
well.
Bearing these legal consequences in mind,
it is probable that our recognition of Cuban
belligerency would help Spain first and most,
the Cuban cause secondarily, and would be
decidedly injurious to the interests of the
United States, Recognizing this, one of the
international jurists in the Senate advocates
a recognition of independence rather than of
belligerency. That, of course, would be a
recognition of a fact which is non-existent,
and must be avowedly a war measure aimed
at Spain. France did this in 1778, by way
of expressing her hostility to England, and
war with England resulted as a matter of
course. What the senator's cause of war
with Spain is, he does not divulge. It is a
source of wonder that no one has yet in-
voked the Monroe Doctrine in the matter.
Thus it would seem to be for the interest
of the United States to let the present status
in Cuba continue, rather than to recognize
the insurgents' belligerency, an act which
would be quite at variance with our own
precedents. If recognition should be deter-
mined upon, however, Spain, though she
might feel aggrieved, would not really be
34 CUBAN BELLIGERENCY
injured ; she would not be put in a relatively
worse position for coercing Cuba. But to
couple with this recognition a request to
Spain to grant the independence of Cuba
is a slap in the face.
OUR DUTY TO SPAIN
Yale Law Journal,
March, 1896
OUR DUTY TO SPAIN
THE complaints which the Spanish
ministry is said to have made to our
government, of its laxness in preventing fili-
bustering expeditions, have called out from
the Secretary of the Navy an interesting
rejoinder. The statement of Mr. Long at-
tempts to show, on the part of the United
States, a diligence in preserving its neutrality
that is not only " due," but even unusual
under the circumstances. This correspon-
dence is not yet published. The mere fact of
its existence and probable tenor is known.
We cannot scrutinize the assertions of fact
and law and precedent therein contained.
Nevertheless, perhaps we may use the inci-
dent to advantage as a peg upon which to
hang two inquiries, the one relating to fact,
the other to law; the one recalling a bitter
national controversy long since settled, the
other concerning the duties of a state in
view of an insurrection against a friendly
power, an insurrection which cannot well be
recognized as belligerent.
37
132555
38 OUE DUTY TO SPAIN
What a faint and far-away memory that
phrase " due diligence " suggests ! And yet
in the Alahama-elaims arbitration, a quarter-
century ago, national responsibility and mil-
lions of dollars in damages rested ujDon its
interpretation.
The military engines which the Southern
Confederacy bought in neutral England pro-
longed the war, destroyed or drove to other
flags the commerce of the North, and gave
rise to the most serious complaints. Just
so to-day, those military suj)plies which Cuba
buys from the manufacturers of the United
States are prolonging the insurrection, may
make independence possible, and do much
to disturb our friendly relations with Sixain.
They likewise may serve as a basis for claims
for damages in no very distant future. There
is an apparent parallelism between the two
cases. Is it a real one ?
The salient features of our relations with
neutral powers during the Civil War were
these : the recognition of Southern belliger-
ency by the states whose interests were
affected, which thereby declared their neu-
trality ; the application of the rules of mari-
time capture to them by both sides in the
war thus recognized; the sale of military
supplies to the Confederates by neutral mer-
chants, the onus of preventing their delivery
resting uj)on the shoulders of the Northern
OUR DUTY TO SPAIN 39
government; finally, the desptiteli of armed
expeditions from British soil, conpled with
their illegal armament and enlistment of men
in British colonial ports, with great damage
to American commerce resnlting. There
was a Enropean sympathy for the Southern
cause also, which was galling to the North ;
but it is the unneutral act, not the unneigh-
borly sentiment, that international law takes
cognizance of.
Turn now to our relations with Cuba.
As the Cuban ports of importance are all
in Spanish hands, our shipping interests
have not been so affected as to make the
recognition of Cuban belligerency necessary.
Therefore there has been no blockade, no
right to capture contraljand on the high seas,
no right of search of American ships except
within Sj)anish jurisdiction. As in Great
Britain in our Civil War, there has been free
sale of military supplies in our markets to
the Cubans, but with the assumption that
the burden of preventing them from reach-
ing their destination rested upon Spain.
And lastly, armed expeditions, that is, the
combination of munitions of war with men
enlisted to use them, have been checked and
in large measure prevented l)y our govern-
ment, at great cost and with much trouble,
by many arrests, several trials, and a few
convictions, so that it can honestly say, as
40. OUR DUTY TO SPAIN
Secretary Long does say, that it has exer-
cised diUgence in this regard.
American sympathy for the Cuban cause
exists. It is natural, even inevitable. It is
galling to Spain. But we say again that ex-
pressions of sympathy are not within the
cognizance of the law.
Reviewing the two cases, we see that they
are not parallel, but in strong contrast.
The one was war, with neutral duties and
belligerent rights. The other is an insur-
rection, involving no neutral obligations,
strictly speaking, and no belligerent rights.
The one put the duty of preventing contra-
band articles from reaching their destination
where it belonged. In the other, Spain ap-
pears to shirk this duty ; to try and place it
upon the wrong shoulders. Negligence in
the Alahania, Florida, and Shenandoah cases
made Great Britain liable for the damage
they caused, while no such scandal in con-
nection with Cuba can be brought home to
the United States. Its seaboard is long and
intricate, the Cuban coast near, absolute
prevention of hostile exj^editions well-nigh
impossible. But l)y the use of both navy
and revenue service the coast has l)een so
efficiently policed as to make the despatching
of such expeditions very hazardous and very
uncertain. Due diligence has been observed.
Can more be demanded ?
OUR DUTY TO SPAIN 41,
And now for the second inquiry.
What is the law to govern a state in its
relations to a mere insurrection in a friendly
country ?
Is a state's own statutory law the sum
and measure of its duty in the case ?
How far does the character of lawful com-
merce attach to trade in military supplies
with the insurgents I
Such questions as these have forced them-
selves upon l)otli executive and judicial de-
partments in the United States within the
past three years. But there must naturally
be a difference in their point of view. The
executive is guided by the general principles
of international law, and by its own convic-
tion of national policy; while the courts,
though also applying international law, must
be specifically bound to employ and interpret
the statutes enacted for the enforcement of
that law. Violation of the rights of another
power, by the executive, calls for redress. So,
too, insufficiency of the statute, as inter-
preted, founds a valid claim for damages.
But an unpalatable interpretation of a statute
is not a ground for complaint, unless bad
faith can be proved. Where an insurrection
breaks out in another state it is to be re-
marked that one's own political relations
with that state are necessarily affected, for
it involves the commerce and the property
42 OUR DUTY TO SPAIN
rights of our citizens. If of a character to
warrant it, the insurrection will be recog-
nized as IjcUigerent. We are presupposing,
however, that for one reason or another this
course is inadmissible. There results no
recognized war. There can, therefore, be no
neutrality (since neutrality implies war), nor
any neutral duties. We have so-called neu-
trality acts, which operate without war, it is
true, but the " neutrality " is here merely a
convenient name, and not a proof of status.
The same thing in England is called a For-
eign Enlistment Act.
But though there may be no neutral duties
and rights, technically speaking, there are
nevertheless the duties which every state
owes to every other ; there are the rights of
commercial freedom which every state en-
joys, and there is the right of self-defense,
the duty of maintaining its own integrity,
which the insurgents' sovereign possesses.
These fundamental rights do not depend
for their operation upon any formal recogni-
tion of belligerency. Nor can I see that they
are called into being or changed in any way
by the newfangled recognition of insur-
gency — a phrase ascribed to the late Dr.
Wharton. When an internal disturl)ance in
a friendly state is serious enough to affect
another state's interests, the executive con-
sciousness of that fact finds expression. In
OUR DUTY TO SPAIN 43
our own case the form of expression will
usually be a reference in some message of
the President to give notice of the facts and
warn us to obey our own statutes. This is
what is meant by the ttn-m " recognition of
insurgency."
Now as to tlie private trade in war mate-
rial. It is certain that such trade with an
insurgent body is at least as lawful and
unrestricted as with a recognized belligerent.
The usage in tlie latter case is unquestioned.
Private trade in contraband is permitted.
Even where carrying contraband is forbid-
den by executive order, as is sometimes done/
this simj^ly means, in actual practice, that
the trade is liable to the penalty of confisca-
tion, if the offender is caught by the injured
belligerent. The neutral is never held re-
sponsible for the traffic in contraband so
long as it is purely a commercial transaction.
Accordingly, a body of law has grown uj) to
govern such cases. States define contraband
by treaty. Such goods may be seized, unless
the treaty substitutes preemption for confis-
cation. They may be seized on the high seas
even, if their hostile destination is clear. In
certain cases the ship is lial)le also. But the
burden of prevention is not saddled upon
the neutral. The law and usage are the
1 E. g., by both British and Spanish proclamations of
neutrality at the outset of our Civil War.
44 OUE DUTY TO SPAIN
resultant of two principles — the freedom of
neutral trade, and the belligerents' right of
self-defense.
In the case of insurgency rather than bel-
ligerency, the only question is whether the
freedom of trade in war material is not en-
larged, whether the right of seizure is not
restricted to the coast sea of the insurgents'
sovereign. In the case of an armed exjDedi-
tion like the Virginius there is authority and
reason for believing that search and seizure
on the high seas are warranted on the ground
of self-defense. A similar claim to prevent
the trade in war material would probably
not be submitted to. However, for our
present purposes it is not necessary to dis-
cuss this point. It is enough to emphasize
the general law that no government can be
held accountable for its citizens' traffic in
military supplies not furnished to a visiting
man-of-war, nor in the hands of an expedi-
tionary force. Its duty is fulfilled when its
subjects are warned of the risk of loss which
they incur by engaging in it.
The distinction already referred to, be-
tween contraband goods which are mere
commodities, and the same goods, it may
be, with an organized body of men to use
them, is a perfectly reasonable one. It is
the distinction between trade and an armed
expedition — between peace and war.
OUR DUTY TO SPAIN 45
An insurrection breaks out iu oue of two
states wliicli are at peace. The other is
bouud to prevent all jjersons within its juris-
diction from assisting to wage war against
its friend. Where a ship is armed or men
enlisted and an expedition set on foot, with
intent to assist the insurgent cause, that is
waging war. If such acts are made possi-
ble through the negligence of the authori-
ties, through lack of appropriate legislation,
or through a judicial breakdown involving
more than an unpalatable interpretation of
the law, they are unfriendly and a ground
for damages.
This, then, in its simplest terms, is the
sum of the rights and duties which obtain
between the United States and Spain at the
present time: to carry on trade with the
Cubans, even in w^ar material, subject to the
Spanish right of seizure within their own
coast sea; to prevent our soil from being
made a base from which Cuban sympathizers
wage war against Spain, These two are
the cardinal points, under the general prin-
ciples of the law of nations.^ Such general
principles in a vital matter like this should
and do find expression and sanction in local
1 The simplicity of the rule may be complicated by actions
which involve a violation or evasion of our revenue laws.
Thus a ship with contraband and a commercial crew may
clear for Havana, whereas her real destination is inferred
to be some landiug-place, not a port of entry, on the Cuban
46 OUE DUTY TO SPAIN
legislation, aud such statutes are interpreted
and enforced by the courts. Neither insuffi-
ciency of the law, nor difficulty in enforcing
it, will excuse a government. As our diplo-
matists kept urging upon England in the
Alahama discussion, " If the law is insuffi-
cient, amend it ; if sufficient, enforce it."
Our next inquiry thus relates to the ade-
quacy of our own statutes, and to the good
faith and effectiveness of their interpretation
and enforcement.
The statutes applicable to such aid as
Cuba has sought are two, Sections 5283 and
5286 of the Revised Statutes of the United
States.
The first is aimed at "every person who,
within the limits of the United States, fits
out and arms, or attempts to fit out and
arm, or procures, . . . etc., or is concerned
in, . . . etc., with the intent that such ves-
sel shall be employed in the service of any
foreign prince or state, or of any colony, dis-
trict, or people, to cruise or commit hostili-
ties against the subjects, citizens, or prop-
erty of any foreign prince or state, or of any
colony, district, or people, with whom the
United States are at peace. ..."
coast. In this eonnt'ction the Itata case at San Diego may
be recalled, which ship took French leave of the authorities,
aud failed to comply with the port regulations ; yet the court
acquitted her of the charge of violating the neutrality
statute.
OUR DUTY TO SPAIN 47
Here the offense is to be committed by
meaus of a vessel, and that vessel must be
armed. On this ground some prosecutions
have failed. Another point is that the vessel
is to be " employed in the service of any for-
eign prince or state, or of any colony^ district,
or people.^'' Do the Cuban insurgents corre-
spond to this latter description f
Mr. Justice Brown, in The Carondelet (37
Fed. Rep. 799), seems to hold to the contrary^
and Judge Locke, in The Three Friends (78
Fed. Rep. 175), took the same view. Justice
Brown said : " A vessel could hardly be said
to enter the service 'of a foreign prince or
state, or of a colony, district, or people,'
unless our government had recognized Hip-
polyte's faction as at least constituting a
belligerent." But the decision turned on
another point. The contrary view was taken
by Mr. Wharton and Attorney-General Hoar,
who l)elieved this statute applicable to and
intended for just such an insurgent body as
the Cubans form (166 U. S. Reps. 1) ; and
this view was upheld by the Supreme Court
in The Three Friends case, on apiDcal. Some-
thing of the same indefiniteness is found in
the wording of the British Foreign Enlist-
ment Act. This forbids similar aid given to
" any foreign prince, colony, province, a part
of any pro\'ince or people, or any person or
persons exercising or assuming to exercise
48 OUE DUTY TO SPAIN
the power of government in or over any for-
eign countrj^, colony, province, or part of
any province or people." In the English
case. The Salvador^ the lower court held, like
Judge Locke, that the statute did not apply
to unrecognized insurgents in Cuba. But
this decision was overruled by the Judicial
Committee of the Privy Council {The Sal-
vador^ L. R., 3 P. C. 218). In view of the judi-
cial interpretation of the American statute,
we may conclude that, though not quite so
comprehensive as the British one, it covers
the case of an unrecognized insurrection
perfectly well. In addition to this. Section
5286 is comprehensive enough to forbid
such an armed expedition as would be ob-
noxious to the general principles of inter-
national law already laid down. This reads
as follows : *' Every person who, within the
territory of the United States, begins, or sets
on foot, or prepares the means for, any mili-
tary expedition or enterprise to be carried
on from thence against the territory or do-
minions of any foreign prince or state, or of
any colony, district, or people, with whom the
United States are at peace, shall be deemed
guilty," etc. Plainly, this statute is opera-
tive without any recognition of belligerency,
and abundantly satisfies the requirements of
international law which forbid one state to
permit any hostile expedition to be prepared
OUR DUTY TO SPAIN 49
within its jurisdiction against another state,
its friend.
Tliis, then, is tlie answer to the questions
which we asked at the outset : that trade in
military material is lawful to the individual ;
that the duty of a state is measured, not l)y
its statutes, but by the requirements of inter-
national law ; that if those statutes, as inter-
preted by its courts, are insufficient to lay
down its international duties and prevent
their violation, that state is liable ; and that
in the case of 8pain and Cuba our statutes
are not faulty, although one could possibly
be made clearer and more comprehensive.
This Cuban insurrection, like the one in
the seventies, has put the United States into
a difficult position. Its trade has been cut
oif, its resources taxed, to preserve its neu-
trality. But, as several convictions show,
and as the records of the navy and revenue
service testify, it has performed its inter-
national duties with fidelity, with patience,
and with success.
RESPONSIBILITY FOR THE "MAINE"
Yale Law Journal,
March, 1898
RESPONSIBILITY FOR THE "MAINE"
THERE are two extreme views of the
responsibility of the Spanish govern-
ment in the matter of the Maine in case the
accident-on-board theory proves untenable.
The one holds that when a ship of war of
one country enters another's port that other
guarantees its safety from external dangers.
The other maintains that under similar cir-
cumstances the actual complicity of the
government must be proved to attach liabil-
ity to it. Neither of these views seems to me
to be warranted. Examine them a moment.
The first view is probably based upon a
mistaken understanding of such cases as that
of the United States privateer General Arm-
stronfi in the harbor of Fayal in 1814. An
English boat expedition tried to cut her out.
Her crew defended themselves for a time, then
set fire to the ship and took refuge on shore.
When claim for her value was made upon Por-
tugal, whose jurisdiction had been violated
by the attack, it was contested and finally re-
53
54 KESPONSIBILITY FOR THE "MAINE"
f erred to arbitration. The award declared that
protection had been due from the Portuguese
government, but that, since the crew had
defended itself instead of appealing to the
authorities, the latter were freed from further
responsibility. But to argue that, because
protection is due in a friendly port against
belligerent attack, therefore protection is
guaranteed against all attack, is to confuse
between an act which openly violates neu-
trality, sovereignty, and international law,
and an act which m^j be a skilfully devised
and secret evasion of the local police regula-
tions. In the one case the attack is twofold
— upon a friend's sovereignty as well as upon
an enemy's ship within that friend's juris-
diction. For its own sake as well as for its
visitor's sake resistance to open attack is
due. In the other case, with all the good
will in the world, and with efficient harbor
policing, it may not be possible to stop all
secret machinations. Why should a state
guarantee a degree of protection which
neither it nor any other power has the
ability to make absolutely effective! It is
the duty of the United States to prevent
fililuistering, but it does not guarantee that
it will be invariably successful. It uses those
measures which appear adequate for the
purpose, and denies further responsil)ility.
Now take the other view, that the Spanish
RESPONSIBILITY FOE THE ''MAINE" 55
government has no liability except for the
acts of its authorized agents. This is as
mueli too lax a theory as the other is drastic.
A government owes good faith, fair treat-
ment, a desire to protect, as well as the mere
order that its own servants shall keep their
hands off. Its duties are not merely nega-
tive ; they are positive. Its duty lies partly
in controlling other agencies than its own
official agencies, and a corresponding respon-
sibility attaches. Otherwise through mere
negligence a hostile-minded power could
accomplish its ends and yet claim exemption
from responsibility. A man is responsible
for the acts of a savage dog which he owns,
even when he does not himself set the animal
on. If we pursue this analogy a step further
it will bring us to the middle ground where
the law and justice of this question are con-
ceived really to lie. Suppose the dog in ques-
tion is not savage, has never bitten a man
before, but, being under considerable mental
excitement, suddenly takes it into his head
to commit a breach of the peace. If the
animal's master has had no reason to suspect
an outbreak, we do not blame him for not
having chained the dog up. To found a suit
for damages, negligence must be shown,
and a jury will be asked to pass upon the
question.
So is it in judging Spain's responsibility
56 EESPONSIBILITY FOR THE "MAINE"
for the loss of the Maine. Neither an acci-
dent on hoard, nor an ontside attack resulting
from the orders of the government, would
present any legal question. Between these
limits of undoubted responsibility lies a
middle ground. We deny, on the one hand,
that Spain can be held to have guaranteed
the safety of the Maine within her waters;
we deny, on the other hand, that Spain owed
our ship nothing more than the abstention
of her own officers from doing it an injury.
We assert that the right rule is that Spain
owed care and thought and good judgment
and the use of her ordinary, or, if necessary,
of extraordinary, agencies, — in a word, owed
due diligence, — to secure the safety of the
visiting man-of-war.
What is due diligence ; what sort of dili-
gence was due under the circumstances of
this case— is not this a fair question for a
jury for arbitration ! But, generally speak-
ing, due diligence would be that which was
proportioned to a reasonable suspicion of
risk, and to the results to be looked for from
a failure to be diligent.
An illustration will better explain what
is meant. The relations between the two
countries were somewhat strained when the
Maine steamed into Havana harbor. There
her berth was assigned her by the harbor-
master. If he was permitted or directed by
KESPONSIBILITY FOR THE "MAINE" 57
the officials in charge to place the ship over
a mine, thus niakin*^: the explosion at the
hands of some unauthorized irresponsible
fanatic at least possible, it was a failure of
due diligence. So if the government became
aware of a hostile feeling and movement
among any class in Havana, directed
against the Maine or the Americans, it was
bound to more than ordinary care to protect
it and them. When the Vizcaya came to
our own port during a very excited condition
of the public mind and temper, a greater
degree of diligence was due for her protec-
tion than in the case of the Maine, and great
diligence was shown.
It may well bq that the board of inquiry
will be unable to assign a cause, or fix the
blame, for the explosion. In that case, if
the principle we have laid down is sound,
the Spanish government can only be held
responsible in damages if it be shown to
have failed to exhibit due diligence in pro-
viding for the Maine's safety.
CUBA AND INTERVENTION
New York Independent,
March 17, 1898
CUBA AND INTERVENTION
THE Maine explosion does not necessarily
bring the relations between Spain and
the United States to a crisis, l)ut it certainly
does not make them more friendly. The old
difficnlty remains, with the added knowledge
that the report of the board of inquiry as to
the loss of our ship mmj be definite enough
to force the government's hand. There is,
too, a fast-growing belief that the adminis-
tration is at or near the intervention point.
This belief is not founded upon any definite
official statement ; it is, rather, the result of
a study of the preparations for war now
making on both sides, and of a conviction
that it is the logical consequence of the sit-
uation. There is, too, that subtle, unreason-
ing premonition of future events which, when
widely shared, insures their fulfilment, not as
the result of volition, but of impelling fate.
Let us briefly review the situation, to deter-
mine if intervention is a justifiable course.
There has been an insurrection in Cuba,
61
62 CUBA AND INTEKVENTION
which for three troubled years has disturbed
our friendship with Spain. At considerable
expense and with good success, our govern-
ment has prevented the despatching of armed
expeditions against the Spanish power in
Cuba. The revenue-cutters and also ships
of the navy have been used in this guard-
duty. Many detentions and arrests, several
trials, and a few convictions testify to
the fidelity of the United States in this
respect. Military supplies for the Cuban
insurgents have been sent out from our
ports, but that is a lawful traffic. The bur-
den of preventing it belongs to the Spanish
authorities in Cuba. Those authorities,
inefficient in the discharge of their own
duties, have incessantly complained of our
negligence. They appear to have completely
failed to appreciate our diligence in pre-
serving our neutrality. I use the word " neu-
trality" for want of a better one, though
there is no neutrality, technically si^eaking,
when there is no recognized war. Spain
also has our government to thank that no
recognition of belligerency has been accorded.
This would have been a lawful step, though,
in my opinion, an impolitic one for our own
interests. A recognition of Cuban indepen-
dence would not have been lawful at any
time during these three years, except as a
deliberate war measure.
CUBA AND INTEKVENTION 63
It is, then, my conviction that this coun-
try has not failed in its duty to Spain,
though the performance of that duty has
not been easy. A state will preserve its
neutrality in war at all costs and as a matter
of course. But it is a fair question whether,
in a case of insurgency indefinitely pro-
longed, the same state is bound to the same
duties.
There is another factor in determining
our position toward Spain which is impor-
tant. Our very considerable trade with
Cuba has been reduced to a fraction of its for-
mer volume. Many millions of the property
of our citizens, in sugar and tobacco, have
been destroyed by both Spanish and Cuban
soldiers. For all of this loss, in default of a
recognition of Cuban belligerency, Spain is
legally responsible. Yet who imagines that
such losses can be collected? We see our
property burned, our trade cut off, our com-
mercial intercourse hampered in a variety of
vexatious ways, yet with no end in sight.
In President Grant's time we bore with a
similar state of things for eight years. Are
we called upon to suffer such losses, to make
such sacrifices, for unappreciative Spain
indefinitely ?
And, thirdly, there is the argument based
upon the claims of humanity. So long as
the rules of civilized warfare were observed,
64 CUBA AND INTEKVENTION
SO loug, that is, as the non-combatant popu-
lation was not interfered with, there was
little choice between the two parties. Occa-
sional atrocities might be committed by
either side, but neither side was so conspicu-
ous a sinner as to warrant outside interfer-
ence. The Cubans at least held their own.
But there came a change of policy. The
non-combatant country population was
forced to settle within range of the guns of
the Spanish, intrenched in the towns, and
there, destitute of food, or of the means of
growing or getting food, it starved.
A report of our consuls upon the condition
of these people is soon to be made public,
which very possibly may strengthen this
argument. As a nation we have no special
racial or I'eligious sympathy with the native
Cuban population. But it would be incon-
sistent with the spirit of our age and with
the character of our civilization if we showed
no horror at such a measure of coercion, no
desire in some way to relieve such suffering.
Can any relief be effective which does not
remove the cause I
These are the three justifying reasons,
then, for intervention — for the attempt, by
national action, to heal this open sore: the
burden of neutrality; the dictates of our
commercial interests ; the call of humanity.
Any one of these is strong; together they
CUBA AND INTERVENTION 65
are very nearly corivineing. And if our
government should net upon tliera, I believe
the opinion of jurists would incline to be
that such action was warranted. This, at
least, was the conviction of the present ad-
ministration early in the year. Because of
its remonstrances and wishes, there was
made a change of Spanish policy in Cuba.
Weyler was recalled, trade was made freer,
aud a system of autonomous government
for the island w\ns set up.
So far as its effect upon the insurrection
goes, this change of policy has been futile.
Whether the condition of the non-combatant
population has been bettered is an open
question which our consuls must answer.
But it is clear that the trouble remains,
that the real question is not materially
altered. And I repeat the opinion that
some form of intervention by our govern-
ment is near at hand and would be justifi-
able.
Yet it does not follow that, because legal,
it would be good policy. The two are quite
distinct, to be argued on different lines.
Here are some of the considerations bearing
upon the question of policy in such inter-
vention.
Shall it be immediate, or should another
delay be allowed to test the scheme of au-
tonomy ?
6Q CUBA AND INTERVENTION
Shall it threaten armed enforcement of its
terms, or be dij)loniatic ?
Is it likely to be resisted by Spain and
to lead to war!
Are we prepared to carry on a war credi-
tably, even with so weak a power as Spain I
Would the damage to our trade through
a war be balanced by the future gain of get-
ting rid of this Cuban incubus!
Would not the expenses of a war be heavy,
and offer a dangerous temptation to the issue
of paper money ?
If a war were successful, would it not be
likely to result in the annexation of Cuba 1
Would not the annexation of Cuba be a
serious strain upon our institutions and
methods of government ?
Is there no way of uniting other powers
with our own in securing the pacification of
Cuba?
On the other hand, is Spain likely to find
allies in case of war with the United States!
These are questions which must be con-
sidered before embarking upon intervention,
even if we fully believe intervention to be a
right; for it is our own interests, broadly
interpreted, which, after all, must govern.
And in regard to these questions every man
will have and should have his own opinion.
It is enough to call attention to them. That
they are being seriously studied, the present
CUBA AND INTEllVENTION 67
attitude of Congress testifies. We hear but
little Jingoism now; the crisis is too close
at hand. JMay it be met firmly and wisely !
But little has been said in this discussion
of the Ma'uie incident. A finding of facts in
that case, which declares the explosion to be
either an accident from within, or the direct
result of action by the Spanish officials, will
involve no legal question of responsibility.
But such a finding is not likely.
If the disaster is found to have resulted
from an outside agency without specifying
it, the question of the responsibility of Spain
remains. This would depend upon the dili-
gence shown in protecting the visiting vessel.
Spain does not guarantee the safety of all
foreign men-of-war in her ports. Neither is
her responsibility limited to the action or
connivance of her own officers. But she does
owe a care or diligence in protection proi3or-
tioned to the danger of attack and to the
results likely to flow from negligence.
The question of due dlUgence and of bi-
demnity in such case might fairly be left to
arljitration.
THE WAR WITH SPAIN
AN ADDRESS
Before the Yale Club in New York,
May 13, 1898
THE WAR WITH SPAIN
WHEN two states, after a long interval
of peace with all civilized powers,
actually find themselves at war, it is a shock
and a surprise to each of them. The think-
ing men in each must inevitably question
the necessity of war, ponder upon its justice,
speculate as to its results.
A commercial people sees its trade inter-
rupted or its credit attacked with discontent ;
a sentimental people finds itself involved in
war, and shrinks from its passions and its
bloodshed; a practical people realizes the
enormous economic waste of war, and natu-
rally asks whether it is worth while. There
are a dozen different points of view, ranging
from peace at any price, to war for war's
sake; and, above all, there is the national
point of view, which regards the acts of its
own government with a certain partiality,
which, natural and proj^er though it is, is
hardly consistent with the judicial attitude.
Now all these many and various interests
71
72 THE WAR WITH SPAIN
and tendencies and prejudices find expres-
sion, and their resultant expressed in action
is national policy. It is wearisome, perhaps,
l)ut it is necessary, ever to insist upon the
distinction between law or justice or right,
on the one hand, and policy on the other.
A state may possess a right to enforce
which would be suicidal. Germany sends a
cruiser to little Hayti to collect an indem-
nity. But let B[a3^ti press a claim, be it
never so just, against Germany in the same
way, and snap would go the jaws. The
BeicJisJmnd would make but one mouthful
of the black and tan.
The national policy of Spain is easy to
understand, because she is the victim of
circumstances, not superior to them. She
is a power of the first rank only by courtesy.
Burdened with debt ; threatened with revolu-
tion; her peasantry ill educated and jn'iest-
ridden, though frugal and industrious;
between the gulf of Carlism and socialism
and the burden of her misgoverned colonies,
she is between the devil and the deep sea.
Yet she stands confronting an evil fortune,
somewhat bombastic, but brave nevertheless,
and extorts our admiration . Her policy, then,
is one of an almost passive resistance to an
inevitable fate, negative, not positive, sharing
neither the responsibilities of the European
concert nor its honors. She is like one of
THE WAR WITH SPAIN 73
her own grandees, who, poor and proud and
childless and well-nigh Iriendless, never
loses courage or dignity or calm, and so
awaits his end. We have a sentimental
regard for him. But if he stands in the
way he is pushed aside.
And what is our own national policy?
Have we any! Or, rather, are we not ever
halting between two? The one is freedom
from foreign complications and the settle-
ment of momentous domestic problems. The
other means territorial growth by annexa-
tion or conquest ; it means the headship of
this continent; it means a share in the
scramble for colonial aggrandizement ; and
in the background ever lies what the Euro-
peans call Monroeism, w^iich is either a
rational principle of self-defense — the first
law of nations — or a national fetish, mean-
ing anything you may happen to choose.
With these preliminary and rambling-
remarks, I beg you to consider whether our
present attitude toward Spain can be justi-
fied in law and is in harmony with sound
policy. And later I shall touch upon the
conduct of the war, so far as it has been de-
veloped, from the legal point of view.
Intervention by one state in the affairs of
another is an exceptional thing, and needs
to be justified. There are certain grounds
for justification given in the books, such as
74 THE WAR WITH SPAIN
self-defense and linmanity. But I am not
aware that any publicist pretends to be able
to lay down exactly the rules which shall
govern intervention. And the reason is,
because cases of intervention are so unlike
one another, and because national policy
enters so largely into them. Thus, Napo-
leon III intervened in Mexico, nominally to
secure indemnities for French losses, really
to check the political influence and trade
extension southward of this country, and
occupy the minds of his own people.
Thus, too, Russia intervened, in 1877, in
l^ehalf of Bulgaria. It was based in theory
upon religious sympathy and upon humanity.
It was a move, in fact, upon the Straits and
Constantinople, in pursuance of Russia's
century-long program.
Take another instance of intervention on
the ground of humanity, that of the powers
in Greece, in 1827, resulting in tlie destruc-
tion of the Turkish fleet at Navarino and
Greek independence. Here is a somewhat
close parallel to our own action in Cuba. In
both cases there was oppression, misgov-
ernment, revolt, cruelty, and resort to a war
of extermination. Ibrahim Pasha was the
prototype of Weyler. Greece found sym-
pathy and aid in liberal England, as Cuba
lias done here.
And each case will be found, I think, to
THE WAK Wnil SPAIN 75
he in liarmoiiy with the broad underlying
tendency of the century. For, in spite of
all their hanipering jealousies, the powers
have pushed, are pushing, the Ottoman
sovereignty out of Europe. The carving of
an independent Greece out of barbarous
Turkey, unintended though it may have
been at the outset of the intervention, was
an early step in this direction.
So, likewise, though we may not all see it
yet, the expulsion of the Spaniard from un-
happy Cuba, whatever government succeeds,
will be a mark of progress, of civilization,
because it will open the island to civilizing
influences under the auspices of its own
sons. Grood government it may not have.
There is no magical efficacy in the republican
label. Better government it will have be-
cause none could well be worse, and because
it will be its own. This, too, will be in
line with the century's tendency and our
own prejudices, which incline toward the
freedom of American soil from the grasp of
European officialism.
It may yet be that we shall carry this
parallel one step further, and find in some
hitherto unhistoric spot a counterpart to
Navarino.
That intervention on the ground of
humanity is justifiable is a matter of pre-
cedent, then, as well as a theory. And so
76 THE WAR WITH SPAIN
far as facts go, our action in behalf of Cuba
is as fair an instance of it as any of the
earlier examples. For it is clear, from the
accounts of correspondents and visitors of
various nationalities, from the reports of our
consuls, from the experiences of the Eed
Cross Societj^, yes, from the confession of
Spain herself in the appropriation of money
to relieve starvation, that in a very garden
of fertility thousands upon thousands of
wretches have died from lack of food. And
we cannot but infer that this is a result of
the concentration system devised by General
Weyler.
But it is not on the score of humanity
alone — to check a war of extermination, to
prevent barbarities practised upon non-com-
batants—that the President justifies inter-
vention. He declares that the interests of this
country are deeply involved, that it is con-
fronted by a condition of things close to its
own shores which has become intolerable;
and he specifies the damage to our property
and trade, and the burden laid upon our
shoulders of preserving our neutrality, as
examples of this. In short, it is a case of
self-defense, defense of this country's vital
interests, though not, of course, of the stability
of its institutions and form of government.
It is interesting to compare this plea with
the similar one which President Cleveland
THE WAR WITH SPAIN 77
put forth when he intervened between
Venezuela and Great Britain in their boun-
dary disjHite. His statement was as follows :
" It may not be amiss to suggest that the
doctrine upon which we stand is strong and
sound, because its enforcement is important
to our peace and safety as a nation, and is
essential to the integrity of our free insti-
tutions and the tranquil maintenance of our
distinctive form of government."
In Venezuela there was no injury to our
trade, actual or threatened; there was no
policing of our shores necessary. The most
that could be said or could be feared was
this, that Great Britain was showing a dis-
position to edge up on a weak South Ameri-
can republic in the matter of territory, acting,
of course, in behalf of its British Guiana
colony; that such a disposition remotely
threatened to be applied to ourselves, after
it had absorbed the intervening ground, and
that therefore it was time to check it.
It requires imagination to see this danger
and appreciate this argument, but Congress
and the country generally had plenty of
it, and backed the President in his theory
of self-defense.
In Cuba we have seen millions of Ameri-
can property destroyed by both parties, and
with small chance of future compensation.
We have seen our trade reduced to a frac-
78 THE WAR WITH SPAIN
tion of its former value. We have been j^nt
to serious trouble and exf)ense in guarding
our neutrality. We have suffered political
disturbance and business panic from the
neighborhood of this long-standing evil.
Yet there was no sign of its coming to an
end. Truly it has been an intolerable con-
dition. To my mind this is a genuine case
of necessary defense of national interests;
the Venezuela intervention, a fictitious one.
It was natural that Spain should fail to
see the force of our complaints, of our rea-
soning. She had complaints of her own.
For though admitting diplomatically, at a
very recent date, that the conduct of this
country had been correct, she was conscious
of a wide-spread sentiment adverse to her
and her methods ; she knew that the Cuban
insurrection had its headquarters in this
country; she learned of the constant des-
patch of military supplies to her rebellious
subjects ; she saw that in spite of our watch-
fulness armed expeditions w^ere fitted out,
and some of them landed in Cuba success-
fully, while of those seized and tried by our
courts not all were convicted. And con-
stantly recurring in Congress came attempts
to recognize Cuban belligerency or indepen-
dence, pressed in language so abusive and in
ways so hostile that Spanish resentment was
abundantly justifiod. I shall say but a few
THE WAll WITH SPAIN 79
words ill regard to Spanish enticism of oui"
national attitude. An anti-Spanisli senti-
ment was inevitable, but it is upon illegal
acts, not hostile feelings, that national com-
plaints can be founded. The sending of
war material to the insurgents by individ-
uals in this country is a lawful trade, the
right and duty of prevention belonging to
the Spanish authorities in Cuba. They have
assumed the air of expecting us to do their
work for them.
The equipment and despatch of filibuster-
ing expeditions, so called,— that is, ships
carrying an organized and armed body of
men intending to carry on war with a state
with which w^e are at peace, — has been checked
by the government, though not absolutely
prevented. Our long seaboard makes com-
plete prevention difficult. We have exer-
cised proper diligence, using war-ships as
well as revenue-cutters, and have made the
business highly dangerous and uncertain.
More cannot be asked. As for the debates
in Congress, they are supposed to be domestic
and privileged communications, not officially
known outside. The unpleasant language
may be vulgar and indecorous, without being
properly the object of foreign complaint.
Or, to put the distinction as clearly as pos-
sible, if the United States government fulfils
its neutral duties, no indemnity can be col-
80 THE WAll WITH SPAIN
lected from it, no matter what the expres-
sions of its legislators have been. And in
fact, if every abusive characterization of a
foreign government in our halls of Congress
were to be noticed and resented by its
object, we should be in water at least tepid
most of the time. Rarely these abusive ex-
pressions come home to roost, as when
a former senator from New England had
packed his bag and was setting forth as
minister to China, when he learned that he
was i^ersona von grata and must lose his job,
all on account of some very natural and
commendable anti-heathen sentiments which
he had expressed and forgotten long since.
Now, if the position taken and the argu-
ments advanced are sound, this country had
a legitimate reason for insisting upon the
pacification of Cuba, and w^as justified in
taking steps to secure it. That means
intervention of some kind. Yet it by no
means followed that war was necessary, or
at least immediate. This President McKin-
ley realized. His attempt to get what he
wanted through diplomacy met the approval
of all truly patriotic men. Spain made con-
cessions, brought in a new scheme of au-
tonomy, and asked time to show its efficacy.
It can be shown, I think, that the form of
government offered was not as liberal as
that which the English colonies enjoy. It
THE WAR WITH SPAIN 81
was not to reu;ulate its own commercial
intercourse Avitli other countries, nor to be
free from the sovereign's veto. But apart
from this, there were two reasons why it
could not succeed: first, because the good
faitli of the Spanish government in offering
it was distrusted upon historical grounds;
and, second, because the insurgents w^ould
have independence or nothing. So long as
the insurrection continued, the problem re-
mained unsolved. Yet, on the chance that
the liberal government in Spain might man-
age to yield all that this country could fairly
demand, all but the nominal sovereignty of
the island, Mr. McKinley stuck manfully
to his negotiations. The Maine explosion
forced his hand. Whether we confess it or
not, illogical or not, it was the fact of that
catastrojjhe, working upon the passions of
the great body of the people, wiiich made
peace no longer jDracticable. Not that self-
restraint was thrown away. I wonder what
other people would have awaited so patiently
an official and technical report of such tre-
mendous import. Suppose, after the German
Kaiser had stirred England to its center by
putting his finger into the Transvaal mess,
an English ship of war had been sunk in
Kiel or Bremen harbor by an explosion
apparently from an outside source. Is it
probable that the delicate balance of respon-
82 THE WAll WITH SPAIN
sibilitj^ for the loss, with a financial indem-
nity taekecl on, would have been calmly
argued or arbitrated, and national j)assion
choked down? I trow not. Yet, legally
speaking, such was our proper course. For
neither could the Spanish government be
held to have guaranteed the Ma'me^s safety,
on the one hand, nor to be free from all
responsibility, except for the authorized acts
of her officers, on the other. So that the
nice adjustment of liability for an event
which might be the result of negligence in
policing the harbor of Havana, or a delib-
erate act of the authorities, or an accident,
was really possible only through the judg-
ment of disinterested parties. To pursue
the righteous object, the pacification of Cuba,
as an unconnected matter, and by further
diplomacy; to arbitrate the liability for
the loss of the Mahie—thsit would have
been the ideal, the logical course. But
there are moments in the life of nations, as
well as of individuals, when logic does not
point the road. The youth of to-day, like
his savage ancestor centuries ago, chooses
his mate when the supreme passion flames
up in his breast, and considerations of for-
tune and position are forgotten. The man
vindicates his rights when his blood is up,
and pays a five-hundred-dollar fee to recover
a five-dollar claim. The nation, stirred be-
THE WAR WITH SPAIN 83
yond endurance, throwing logic and econo-
my to the winds, interprets its dnty to suit
its passion, and ruslies into war.
It may not be in accordance with the law
of love, but since the dawn of history it has
been the characteristic of our fallen human
nature. And statesmen have to take account
of it, as w^ell as of budgets and balances. vSo
the time came when our President, though
himself still inclined to the peaceable way,
and though the armistice offei-ed to the in-
surgents invited further delay and negotia-
tion, no longer struggled against the rising
tide. He had sought a lawful object in a
proper way, until circumstances were too
strong. We should honor him for what he
did, rather than blame him for what he could
not do.
And when we study the conditions in
Spain, we can understand why the American
demands involved an impossibility. For
ignorance of the real character and resources
of this country, backed by invincible pride,
would have unseated both the ministry and
the dynasty which offended them. So that
it is probable that endless negotiation would
never have brought Sagasta and the queen
regent to an admission of Cuban indepen-
dence.
I do not declare, in this review of the
events of the past year, that the right of the
84 THE WAE WITH SPAIN
United States to undertake armed interven-
tion in Cuba is i^roved, nor that its policy
in doing so is flawless. But I do believe
that this intervention is as justifiable as any
has ever been in the past, and is undertaken
from as correct motives. And though the
policy of war with Spain is open to criticism,
I am inclined to think that it must have
come to that in the end.
It was curious, when the supreme moment
came, to see how regard for facts and pre-
cedents still governed. Though determining
upon the independence of Cuba, Congress
nevertheless did not recognize the indepen-
dence of the insurgent body which stood for
free Cuba. Into its motives we need not
look too deeply, but it is something that it
has not violated its own precedents nor the
law of common sense, even as a war measure.
Yet it must be said that such a step might
have added weight to our disclaimer of all
wish to possess Cuba, by pointing out the
party which should possess it. Far better
will it be, if we have the power, to call upon all
the citizens of the liberated island, Spanish-
and Cuban-born alike, to join in framing the
new order.
But this is looking too far ahead, and
crossing a bridge before we come to it.
Meanwhile we have war on our hands.
There has never been a moment's doubt as
THE WAR WITH SPAIN 85
to its eventual outcome. As has been well
said, it is money at three per cent, against
money at twelve per cent.; for a nation's
credit is the weapon of first importance.
With a determined and united i)eople, and
potential strength almost incalculable, the
result must be certain ; yet the early opera-
tions of an untested fleet might well be
watched with some uneasiness. This the
events at Manila have effectually dispelled.
But it is not the actual combat that it falls
to me to discuss. The naval expert is study-
ing this, with an eager curiosity w^hich is
changing week by week into confidence and
enthusiasm, as his theories are confirmed by
results of an astonishing character. Our
attention is rather to be directed to the effect
of this war upon commerce. There w^ere two
reasons for doubting whether the old rules of
capture, in all their harshness and complete-
ness, would be applied. One was the growth
of the neutral influence and interest; the
second related to the change in modern com-
mercial usages.
When the first armed neutrality — a league
principally made up of the Baltic powers —
announced as part of its program the rule
that free ships make free goods, it marked
an epoch. For the neutrals thus showed
their intention to combine to advance their
interests, even by force and in violation of
86 THE WAR WITH SPAIN
the accepted law. It was the first conspicu-
ous proof of the neutral's consciousness of
his own importance. And throughout the
century now ending, the neutral influence
has grown. When it cannot prevent war
altogether, it can limit its disastrous effects
upon trade. It must not be thought that
any neutral, and least of all Great Britain,
would disregard the primary rules govern-
ing blockade and contraband and the right
of search. If for no other reason, he could
not afford to lay down so hampering a pre-
cedent. But we could fairly expect to find,
in the interpretation of treaties, in the
powers' attitude toward privateering, in
their dislike to submit to search, in their
desire that the postal service shall be undis-
turbed, in their resistance to frivolous cap-
ture, a strong and united neutral intention
to make their trade as free from belligerent
interruption as possible. And this may
possibly go the length of offering mediation
on the basis of Cuban independence, after
a Spanish reverse or two has given the
opening.
Quite as influential in limiting the bellig-
erents' right of capture is modern trade
usage.
Once upon a time the merchant loaded
his grain or his goods upon his own or an-
other's ship, and sent them to find a market ;
THE WAR WITH SPAIN 87
or, if shipped upon order, yet the title did
not pass, the payment was not made, until
delivery. Traces of this, of course, survive ;
but the prevalent usage to-day completes
the sale of produce before shipment. Ameri-
can grain and cotton for English use are
l^aid for by accepted bill of exchange, and
their new ownership attaches to them while
still in this country. And so the result, in
very many cases, must be that Spain will
find no enemy's property afloat to capture.
I was curious to know how the Spanish gov-
ernment and prize courts would meet this
difficulty. For where the produce of Ameri-
can soil, presumptively American property,
screened itself from capture under a bill of
sale which might or might not be genuine, it
would have been but natural to stretch a
point and at least subject the question to
judicial investigation. If this should result
in acquitting the goods, it would at least
have delayed them, perhaps for months, and
have cost the ship heavily. This in turn
was likely to be resented by the neutral.
But all such speculations have been set at
rest by the early announcements of both com-
batants that they will be governed by the
rules of the declaration of Paris of 1856,
though Spain reserved the right to issue
letters of marque. It will be recalled that
the declaration provided for the abolition
88 THE WAR WITH SPAIN
of privateering, for effective blockades, and
for the security of neutral goods under an
enemy's flag and enemy's goods under the
neutral flag. It bound only its signatories,
of whom Spain was not one. By adopting
its rules, Spain thus gave up her undoubted
right to seize the goods and the produce of
the United States loaded on ]3oard English,
German, Dutch, and French ships.
I believe it is not extravagant to say that
this was a deliberate surrender by Spain of
her very best means of distressing her enemy.
In spite of all the newspaper talk of coast
attack, the likelihood of it has been small.
It is too far from a Spanish base, it risked
too much from a fleet attack in flank, it
promised no adequate return, and unless
the town shot at was fortified and defended
the attack would be unlawful. No landing
in force was practicable, nor had the United
States colonies to be attacked. There re-
mained, therefore, only fleet combat or the
war upon commerce. This last was legal and
practicable, both as against American ships
and American goods in neutral ships. No-
thing in the treaties between Spain and the
United States forbade it ; nothing in the law
of nations even discouraged it. Shij)s of
war are built especially for it, as commerce-
destroyers ; it is the sole ol)ject of privateer-
ing, a right which we ourselves, in company
THE WAR WITH SPAIN 89
with Spain, have for forty years resolutely
held fast to. And the attack upon Ameri-
can commerce, or rather upon the marketing
of American products, had the possibility of
much mischief. Cutting off the coast trade
was perhaps possible, Ijut would not be so
safe and easy as a patrol of the Channel en-
trance, and the seizure of American-owned
goods borne mostly by the neutral. For
wiiatever interfered with the regularity of a
voyage increased its cost in insurance and
freights, and diminished correspondingly the
value of its lading. This meant dearer wheat
abroad, cheaper wheat in the West. It might
even mean a considerable dislocation of our
railway and terminal through system, sub-
stituting Canadian ports for New York and
Baltimore, Philadelphia and Boston, in order
to escape the suspicion of carrying enemy's
goods. And the result might have been
Western discontent, and opposition to the
war. How, then, are we to account for the
surrender by Spain of the chief weapon in
her armory ? The expkmation must be found
in the two facts which have Ijeen alluded to,
the change in trade usage and the neutral
influence. May we not imagine the neutral
powers saying to Spain : "Defend your honor
and your island, if it must be, but see to it
that our commerce is damaged as little as
possible " ?
90 THE WAR WITH SPAIN
lu our own action there is less to occasion
surprise. Every one of the rules of the decla-
ration of Paris except privateering has been
advocated by the executive for many years,
and inserted in many treaties. Privateering
to-day is an anachronism. It would not be
profitable or practicable. Ships of war can
do the same work better. But apart from
such considerations, the United States had
a definite object to work for, the expulsion
of the Spanish from Cuba. Preying upon
Spanish commerce, except as it interfered
with a plan of campaign ; distressing our
enemy, and incidentally the neutral, by seiz-
ing Spanish goods under the neutral flag—
these were so unessential to our main object
as to be unimportant. We had weapons
better forged, while Spain had none.
This, then, is the principal feature of the
war thus far, that neither combatant means
to seize enemy's goods in neutral bottoms.
More than this, it is a marked step in the
history of naval capture; it is the virtual
accession to the declaration of Paris of
two out of the three states refusing in 1856
to sign that instrument. It should be fol-
lowed by their formal accession in happier
times.
Two or three minor questions have been
raised, or at least suggested, by tlie war thus
far, which may not be without interest. One
THE WAR WITH SPAIN 91
relates to a declaration of war. Was it
necessary, to legalize captures'?
The international rule is that war legally
dates from the actual outbreak of hostilities.
Now the capture of enemy's property is a
mark of the outbreak of hostilities, and the
inference is that the seizure of the other
party's property creates a status which legal-
izes an act otherwise doubtful. Thus the
argument is that war exists because a cap-
ture has been made, and a capture is legal
because w^ar exists, wdiich sounds rather
sophistical. Yet formal declarations of war
are neither necessary nor usual to-day.
Strained relations lead to a specific demand
of some sort, with an ultimatum or threat
attached. Failure to comply with tlie terms
of this ultimatum means war. So, too, a
legislative act to authorize war is construed
as a declaration. But though no formal
announcement of war is due to an enemy, it
is customary to the neutral to let him know
what rules of capture likely to affect his
interests are to be enforced. And this, as
we have seen, has been made. Congress
voted a formal declaration, too, apparently
for domestic reasons. And by proclamation
the President has given the customary grace
to Spanish ships in our ports or bound hither
before war began. But this is not in terms
made retroactive. I should imagine, then,
92 THE WAR -WITH SPAIN
that the only question will arise in the case
of the captures of the first few days; that
the legality of such captures is a proper
question for a prize court ; and that the
chance is that it will be sustained. Unless
special reasons exist, coast fishermen should
be exempt from capture, in conformity to
modern usage. The same rule, it may be
added, holds good as to scientific expedi-
tions.
No serious questions affecting the blockade
of the westerly Cuban ports have as yet
arisen. By courtesy one or two neutral men-
of-war have been passed through it. One
warning, at the harbor's mouth, has been
given to merchantmen sailing before the
notice and the fact became notorious. But
very soon every vessel trying to enter will
be good prize.
We have pledged ourselves to make this
blockade effective. By this is meant that it
shall be highly dangerous, not that it shall
be actually prohibitory. If the blockading
squadron is driven away temporarily by
stress of weather, no new notice is due ; but
if by the Spanish fleet, the blockade must
begin again de novo.
In our treaties with various countries,
now neutrals, contraband goods are specified.
But although it is only fair to the neutral
that he should know accurately and in ad-
THE WAE WITH SPAIN 93
vance what kinds of property he may law-
fully carry, it is equally true that these lists
of contraband, many of them antiquated,
can be enlarged to keep pace with the adap-
tation of new materials or combinations to
warlike uses. It will be proper, therefore,
for our own government to draw up a full
list of articles which it will consider contra-
band, and submit it to the neutral powders.
Coal has a doubtful character. Under cer-
tain circumstances it has as direct a relation
to w^ar as gunpowder itself; under others
it merely serves manufactures and com-
merce. Thus there is no uniformity of
treatment. In the present war the British
government considers it contraband. This
announcement is supplemented by a rule,
identical, I believe, with that followed by it
in the Civil War, which allows its sale at
British coaling-ports to ships of war of both
combatants alike, in limited quantities and
infrequently. Gunpowder could not be
similarly sold, without a breach of neutrality.
As contraband, traffic in coal is lawful, of
course, but subject to the liability of capture.
The port regulations concerning it are fair,
and will help that nation's vessel most which
happens to be farthest from its home base
of supplies.
The United States is committed by its
past usage to the English doctrine ranking
94 THE WAll WITH SPAIN
coal "occasionally contraband." But the
continental view is not in line with this, nor,
indeed, nniform itself.. France holds directly
the contrary; so does Russia; while Ger-
many goes even further than England. As
for Italy, her treaty with the United States
in 1871 does not mention coal as contraband,
yet declares that the articles enumerated,
"and no others, shall be considered as
comprehended under this denomination."
Clearly there is room in this direction for
differences, since both France and Italy are
partial to Spain, and will be likely to defend
their theory that coal is not contraband.
It may have been noticed that Spain is said
to have terminated her treaties with the
United States of America. War in itself
would have done this. But it cannot be
intended that a provision to take effect only
in case of w^ar should be abrogated by war,
for that would be a denial of its existence
ah initio and altogether.
There is one such proviso, in Article XIII,
treaty of 1795, which grants a year, in case
of war, for the subjects of either country,
within the other, to withdraw with their
proj)erty. So that if Spain should expel all
Americans within this time-limit, it would
be in violation of contract; and if injury
is done them, satisfaction must be made by
the government.
THE WAIl WITH SPAIN 95
As to the right of search, it may not be
clear to every one that an}' ship may be
stopped and searched on the high seas. For
she may be carrying contraband to a hostile
destination, or she may be bound for a
blockaded port. And, as Lord Stowell said,
you may search her, no matter what her
character, destination, and cargo ; for until
you have searched her, you cannot certainly
tell what her character, destination, and
cargo are. Moreover, capture may be justi-
fied at the very outset of the voyage, if cir-
cumstances make the ship's destination clear.
Mail-steamers, however, are to be regarded
with great leniency, and if the usage of our
Civil War is followed, if disturbed at all,
their mails should be forwarded wath seals
unbroken.
There are certain other consequences of
war, which may not be familiar, nor widely
applicable, yet are likely to raise a question.
I mean the personal results which flow from
the hostility of the two countries. By our
law every subject of the one state is at war
with every subject of the other. In theory
all Spanish property within the United
States may be confiscated, but the courts
say that there must be a special act of legis-
lation to do it, and such a barbarity would
be abhorrent to the modern mind. What
does happen is this: All partnerships are
96 THE WAR WITH SPAIN
dissolved. All contracts, including insur-
ance policies, are suspended. Debts are
uncollectable during war, but revive at the
return of peace. Each state considers as
its enemy's subjects not only those born
and naturalized such, but also foreigners
resident within its jurisdiction for any pur-
pose. Thus Germans and their property
injured by a bombardment of Manila would
have no claim to indemnity. So, also, the
property of an English wine-merchant resi-
dent in Xeres would be subject to capture.
In fact, the same is true of an American's
share in the same house. No trading with
Spain on the part of any one in the United
States is permissible, and " trading " is a wide
term. In case of a partnership house on
neutral soil the law is curious and incon-
sistent. Suppose such a house in France
with three partners, an American, a French-
man, a Spaniard. We should not enforce
the prohibition to trade with an enemy
against the American's share, but we would
capture and condemn the Spaniard's share.
And so on in great detail.
One more inquiry, which is likely to be
a practical one. Suppose Manila and Porto
Rico to be captured and occupied by our
forces. The usual rules for the government
of occupied territory would presumably be
put in force. These are practically the local
THE WAR WITH SPAIN 97
laws and usages, under the local authorities
and judges, but sanctioned and backed by
martial law. Occupation does not vest
sovereignty in the occupant. Sovereignty
is in suspense, as it were, until decided by
the terms of peace. Such is the general
scheme. But at Manila what duties would
we levy, and for whose l^enefit would they
be spent? We have a precedent to guide
us on this point, which may be found in two
decisions of the Supreme Court, the cases
arising during the Mexican War (Fleming
vs. Page, 9 Howard, 603 ; Cross vs. Harrison,
16 Howard, 164). The law is well stated
by Dana in his edition of Wheaton (note
162, p. 421), from which I quote : " During
the Mexican War, certain ports of the coun-
try, which were in the firm possession of the
United States forces, were decided not to be
ports of the United States in such sense that
the ordinary revenue laws established for the
Union would take effect there, but were
places held by the nation for a special pur-
pose of war, — whether to be permanently
held or not being matter of future determina-
tion, — and subject, while so held, to such
special revenue regulations as the proper
department of the government should estab-
lish. In the absence of any provisions by
Congress for such cases, the President, as
commander-in-chief, had authority to pre-
yy THE WAE WITH SPAIN
scribe them. As regards goods imported
into the United States from a place so held,
they are to be considered as importations
from a foreign country." Mr. Dana also
cites the ease of Castine, held by a British
force during the War of 1S12. Our Su-
preme Court denied that it could be con-
sidered a part of the United States dur-
ing such occupation, within the meaning
of the revenue laws, or that duties upon
goods then imported could be afterward
collected.
If we occupy Manila, then, the Dingley
tariff is not ij^so facto applicable, though
legislation could make it so. The proba-
bility is, however, following modern usage,
that the Spanish tariff w^ould be enforced,
and the proceeds, with the other taxes, be
used for the administration of the islands.
It would be legal to cover a balance into our
treasury — legal, but highly impolitic, for it is
just that same sort of administration which
is costing Spain her colonies. Dana wrote
thirty years ago. The theory, perhaps, has
not changed since then, but the usage has
become everyw^here recognized that occu-
pied territory does not belong to the tem-
porary conqueror. His will is its law, it is
true, but its law expressed in the language
of the law already existing ; he collects taxes,
but through the usual local agencies, if they
THE ^VAK WITH SPAIN 99
are available, and for the local benefit ; he
is trustee, in short, not bandit.
These are some of the legal questions
raised by the war, set forth, I feai', in but
a dull and frag-nientary way. Others are
coming. The State Department seems fully
equal to them. There is a wider, a more
serious problem, however, which the people,
and not a department, must solve, deliber-
ately, wisely, counting the cost. If the result
of the war is to leave the United States in
possession of various Spanish colonies, what
shall be done with them ? The joressure to
retain them will be strong, as coaling-sta-
tions, as indemnity, as an act of humanity
giving refuge to the victims of Spanish
misrule, as an act of policy launching this
country upon a new career. With Hawaii
annexed, with Porto Rico and the Philip-
pines conquered, with coaling-stations ga-
lore, with a Nicaragua Canal, a navy suited
to our ambitions and resources, an army
large enough for foreign service, and a civil
service adapted to colonial use, we should
be ready to pose as a world power, though
rather late in the field. It is a brilliant
program ; is it a wise one ? Will these new
activities help in the solution of the old
problems— a stable currency, a compromise
tariff, a reformed public service? Is it the
true mission of a people which is working
100 THE WAR ^^^TH SPAIN
out the problem of self-government to run
oft' into colonial aggrandizement? To me
the prospect is not reassuring. We seem to
have come to the j)arting of the ways. There
need be no superstitious reverence for the
policy of our early days, as outlined in the
noble words of Washington's farewell ad-
dress. What we must judge of is the best
and wisest and safest policy for to-day.
Whether this is to be forward and aggres-
sive, or devoted to internal development and
conservative, every citizen must decide for
himself. If he wishes an election to turn on
the claim to a slice of China, or the support
of a candidate for the presidency in Mexico,
our demagogues wall not deny him. Nothing
could be more convenient for the dodging of
troublesome issues; nothing more alluring
than to play on the pseudo-patriotic chord.
There is danger in our strength ; we should
beware even of our nobler aspirations. The
plainest of common sense is a better guide
than the fervor of sentimentalism or the
ambition of the Jingoes, Of one thing, how-
ever, let us make sure ; that our future shall
be determined hy us and not for us. Our
isolation allows us independent action. And
if a German emperor or a French president
attempts to limit, to threaten, or to dictate,
he shall know that we are no part of his
system, that our sense of right, not his will,
is our law.
THE FUTURE OP THE PHILIPPINES
The New York Times,
May 30, 1898
THE FUTURE OF THE PHILIPPINES
ONE of the marked characteristics of the
American people is its cheerful opti-
mism. Too keen to hide from itself its
blunders, it is nevertheless too hopeful to
dwell long upon their harmfulness, and, it
must l3e confessed, too impatient to be guided
always by the lessons of experience. This
is a sign of youth and of strength. It be-
tokens a nation accustomed to command
success.
There is an example of this optimism at
the present time. We command the harbor
of Manila, but have not occupied the Philip-
pines. This is a serious and a separate task.
We have sailed into the port of San Juan in
Porto Eico, have knocked down a portion
of the fortifications, and have sailed out
again. What the sequence of these two
actions will bo we cannot know. But we
guess it, and begin to discuss the future of
both islands as if we held them in tlie hollow
of our hands. Truly Columbia is the milk-
maid of the fable.
103
_j4 the FUTUKE of the PHILIPPINES
In accordance with this national char-
acteristic, and disregarding the fate of the
milkmaid and her fairing, let ns consider
what the policy of the United States shonld
be if the close of the war with Spain finds
the Philippines in its possession.
There are three— yes, four— interests to
be kept in sight. These api:)ertain to the
former sovereign, to the inhabitants them-
selves, to the other trading powers whose
commercial and j^olitical balance may be
affected, and to the United States.
1. The rights of Spain.
Military occupation does not wipe out the
sovereignty of an invaded territory. That
sovereignty may be incapable of assertion,
yet it survives until either revived or removed
by a treaty of peace. Spain will thus retain
rights, even in case of complete conquest,
which must be eventually weighed and
adjusted. What line this will take must
depend upon the influence of other powers,
upon our own sense of expediency, and upon
the fortune of war in other directions.
2. The rights of the Philippine islanders.
It would be unwarranted to say that no
cession of these islands would be legitimate
unless ratified by the wishes of their inhabi-
tants. In a highly civilized community this
is the modern tendency, though even then
yielding to political exigencies, as in xVlsace-
THE FUTURE OF THE PHILIPPINES 105
Lorraine. But it is a practical question
whether the Philippines could be anything
but a burden to this country if their transfer
proved to be against the will of their millions
of inhabitants, many already in revolt, and
absolutely foreign to our blood, our usages,
our laws, our ideals.
3. The interests of other powers.
Here the vital question is how far the
United States, by possession of the Philip-
pines, would place itself within the European
vortex, to be buffeted and cajoled, thwarted
and urged on, forced out from its safe and
comfortable isolation into the treacherous
sea of enmities and alliances. When Japan
made peace with China at Simonoseki she
received a slice of the mainland. Russia,
France, and Germany combined to prevent
this cession, and Japan had to content her-
self with an indemnity and Formosa. When
we begin to trench upon the trading pre-
serves of the great military powers, shall
we be similarly treated 1 Would we submit
to such treatment?
4. The rights and true interests of the
United States.
The right of conquest is something. The
consciousness of ])ringing a better govern-
ment is something. The prospect of a
favoral)le vantage-ground for the extension
of our Oriental trade is a temptation. But
106 THE FUTURE OF THE PHILIPPINES
tlie problem is terribly complex. Here are
some of tlie considerations to be kept in
mind while we are trying to solve it : .
We are waging a war which we believe to
be just. It is in defense of humanity and of
our sorely tried national interests. Its ob-
ject is the pacification of Cuba. The entire
civilized world save Great Britain believes
that it is a war of selfish aggression. We
declare that our motives are pure, and enact
in the most formal way a self-denying ordi-
nance to assure the world that we shall not
retain Cuba. If under these circumstances
we do seize and propose to retain, not Cuba
at once, perhaps, but Porto Eico and the
Philippines, one or both, with what face can
we maintain our altruistic professions? In
appearance and in fact we should be hypo-
crites.
But can we part with our prospective con-
quests! Too weak to stand alone as they
are, we could not add them to the numbei'
of bastard republics. Nor could we give
them or sell them to this power and to that,
lest all the slighted powers should resent
it, and demand an equivalent. The most-
favored-nation clause and the balance-of-
power principle seem to run singularly close
together. Yet to hand them back to Spain,
no matter on what condition, would be a
deliberate surrender of their peoples to the
THE FUTiniE OF THE PHILIPPINES 107
i»:riii(ling tyranny from which, at great cost,
we have rescued their Cuban brothers. Are
we not, then, by process of exclusion, forced
to accept as our own what the fortune of
war may give us, even if it be a white ele-
phant! Possibly. There must be a balan-
cing of considerations. Unless we do retain
our conquests, however, the line of least
resistance would seem to lead to Spanish
ownership again.
What are the objections to the retention
by the United States of the Philippines as a
future part of its territory ? Are they prac-
tical and sound, or are they chiefly ethical,
like the one already given 1
One relates to the form of government
which could be applied to them. Our con-
quests hitherto, as well as our purchases.
New Mexico and California, as w^ell as Loui-
siana and Alaska, have brought us territory
barely inhabited at all. But here are thickly
populated islands, whose people are so mixed
in race, so uncertain in quality of civilization,
so destitute to all appearance in self-govern-
ing capacity, as to make it doubtful whether
they could ever be brought into our Union
as an integral part. For the present, at
least, they must be governed with a strong
hand. This might mean indefinite martial
law; it might mean government by a com-
mission or a governor appointed by the
108 THE FUTUEE OF THE PHILIPPINES
President, relying upon a military force for
support. Either method might succeed
temporarily, though either method is liable
to abuse. But neither offers a permanent
solution. The satrap system is too repugnant
to our political ideas. Nor can we confide in
the selection of officials to man such a system
until our civil service is better developed.
Another objection is to be found in the
military burden involved. Some effort is
necessary to picture to ourselves the change
of military and naval establishment which
would be necessary if the United States
became a colonial power. This sort of am-
bition grows by what it feeds upon. Porto
Rico, Hawaii, the Philippines, would only
whet, not satisfy, the taste. We should
require a foothold in China to compete in
trade facilities w^itli other powers. We
should insist upon the exclusive control of
a Central American interoceanic canal.
Indeed, many urge this at present, looking
at the question from the theoretical and
strategical, not the practical, point of view.
We should need Cuba as the key to the east-
ern approach to this canal. We should need
coaling-stations and dry-docks — in other
words, fortified and garrisoned ports — at
convenient points in the Pacific and South
Atlantic. All this means more territory to
defend, more soldiers to defend with, more
THE PUTUEE OP THE PHILIPPINES 109
ships to keep up the connection— not only-
more, but very many more. How gladly
Britain would limit her responsibilities if
she could ! But it would be construed as a
sign of weakness, and she fears the conse-
quences. She cannot let go. We are more
fortunate because we have not taken hold.
We are a rich and prosperous peoj^le. This
is largely owing to two causes (aside from
race and form of government), cheap land
and freedom from militarism. Just as the
cheap government land is becoming a thing
of the past, and men are wondering whether
they can grow wheat at a profit and fertilize
also, we are asked to assume the military
burden.
One other objection to a national policy
which must involve large expenditures,
closer political relations with other powers,
and trade rivalries reaching to the ends of
the earth, relates to its effect upon domestic
problems. We have several questions upon
which national parties divide — a stable cur-
rency, a compromise tariff, and reform in
various departments of national. State, and
municipal politics. These must be settled
soon and wisely, as many believe, if this
republic is successfully to endure. But
how can they be properly settled or advan-
tageously considered if burning questions
of foreign policy are complicated with them ?
110 THE FUTURE OP THE PHILIPPINES
Take, for instance, the one hundred and
fift}'- or two hundred millions of additional
income which this policy of colonial expan-
sion would require, or the much larger sum
needed in case of actual war. (For war
would be more likely than at present, just
as a man is more likely to injure another if
he has a weapon than if he has none.) To
raise such revenue involves a dozen consid-
erations like these: a national debt, issuing
paper money, abolition of pension payments,
lowering tariffs to make them more pro-
ductive, an income tax, heavier internal
taxation.
Is it not likely that currency reform and
sound tariff legislation would be very much
interfered with, if not altogether prevented,
by the financial necessities of a colonial pol-
icy ? While, on the other hand, the financial
advantages of that policy, through extension
of trade and finding new markets, can add but
indirectly and insignificant!}^ to the national
income ; for the colonial requirements nuist
first be met, otherwise our administration
would be no better than Spain's. The fact is
that the advocates of a colonial policy are
carried away by the success of Grreat Britain
in this direction, as Germany has been, for-
getting that English development has been
the result of geographical isolation and cen-
turies of effort.
THE FUTURE OF THE PHILIPPINES 111
Without wasting rhetoric, these are mat-
ters to ))e seriously weighed ])efore we decide
to keej) the Philii)pines— if we shall find
ourselves their masters. Aud, for one, I am
inclined to think that if, before the war is
fought to a fiiud issue, peace should be re-
stored, whether through mediation or Span-
ish initiative, on the basis of Cuban indepen-
dence and a restoration of Manila, it would
be a happy escape from a most perplexing
situation.
THE LAW AND THE POLICY
FOR HAWAII
Yale Eeview,
February, 1894
THE LAW AND THE POLICY
FOR HAWAII
FOR more than two i^enerations the his-
tory of the minor states on this continent
has been kaleidoscopic. Revolution has fol-
lowed revolution, monarchy has followed
republic, and republic monarchy; while all
too frequently from a congenial soil has
sprung that poisonous growth, the dictator.
It is not safe to draw too broad conclusions
hastily, and certain exceptions occur to every
one. But, on the whole, the chaotic politics
of Central and South America lead one to
question the genius of the Latin races for
self-government; they go far to prove that
no magical potency lies in a republican form
of government. It is human character, not
political form, that tells in the stability of
institutions. An incidental result of these
frequent political changes has been to oblige
the United States accurately to define its
diplomatic position in view of tlieni, and to
lay down rules for the recognition of new
115
116 THE LAW AND THE POLICY
governments. Its usage in this regard may
be considered settled. It is clearly stated
in a despatch of Mr. Livingston's, Secretary
of State, to Sir Charles Vaughan, April 30,
1833 : " It has been the x^i'inciple and the
invariable practice of the United States to
recognize that as the legiil government of
another nation which by its establishment
in the actual exercise of political power
might be supposed to have received the
express or implied assent of [the] people."
To show the application of this principle
to revolutionary changes similar to the recent
overturn in Hawaii, several examples are
selected from recent state papers. In his
third annual message (1883), referring to the
contest just terminated between Bolivia,
Chile, and Peru, President Arthur concludes :
" When the will of the Peru^dan people shall
be manifested, I shall not hesitate to recog-
nize the government approved by them."
And, again, Mr. Frelinghuysen, in a despatch
to Mr. Logan, March 17, 1884, declares : " The
Department of State will not recognize a rev-
olutionary government claiming to represent
the people in a South American state until
it is established by a free expression of the
will of that people." Similarly, President
Hayes states (first annual message, 1877) :
" It has been the custom of the United States,
wdien such [revolutionary] changes of gov-
FOR HAWAII 117
ernment have heretofore occurred in Mexico,
to recognize and enter into official relations
with the (/(' facto government as soon as it
shall appear to have the approval of the Mex-
ican people, and should manifest a disposition
to adhere to the obligations of treaties and
international friendship." A single instance
more, Mr. Seward to Mr. Culver, November
19, 1862, in the matter of Venezuela : "A rev-
olutionary government is not to be recog-
nized until it is established by the great body
of the population of the state it claims to
govern."
This rule represents not only the usage of
this country in the matter of recognition ; it
is also in accord with the principles of inter-
national law. All states are equal. Each
state may determine its own form of govern-
ment, may change it at will. The govern-
ment de facto is the government de jure.
That is a government de facto which is ca-
pable of insisting on the rights and fulfilling
the duties of the state. Such capacity will
spring from the undoubted expression of the
will of the people. Recognition, before proof
of such popular backing is furnished, is pre-
mature. It assunK^s a fact which is not yet
manifest.
With these simple, well-established rules
in mind, we are in a position to judge of
the propriety of the early diplomatic moves
118 THE LAW AND THE POLICY
ill the Hawaiian question now confront-
ing us. The position of a queen in the
Hawaiian Islands is as legal as that of an
emperor in Russia. The personal character
of that queen does not affect the legality of
her goyerninent. A change of the constitu-
tion under which she governs is an internal
question solely. Early in the present year
there occurred a revolutionary outbreak in
Honolulu. A new government was set up,
calling itself provisional. What was the
attitude of the United States toward it?
Was its traditional usage observed ? On the
contrary, amid the conflicting statements
of fact, we can at least make sure of this:
before the people of Oahu had a chance to
pronounce upon their desire for the change,
before the other islands could even hear of
it, before the new" regime could demonstrate
its capacity for fulfilling the obligations of
the state, l)efore it had gained possession of
all the government buildings and proved its
power, its recognition w^as granted by the
United States. This action was premature ;
it was contrary to our usage in similar cases ;
it was in the highest degree improper. That it
was soon followed by similar recognition
by the representatives of the other states
which maintain diplomatic relations with
Hawaii does not excuse it. For, in the first
place, our recognition unquestionably gave
FOR HAWAII 119
the new government a standing which it
might not otherwise have had, and, again,
recognition by one state is apt to be sjDeedily
followed by the recognition of other states,
lest they suffer in influence with the new
government. Emphatically it is the first
step wiiich counts. It will be noticed that
no mention is made of the charge that the
avowed sympathies of the United States
minister, and the landing of marines, nomi-
nally to preserve order, assisted in effecting
this revolution. For the latter act there was
a precedent at the time of the accession of
King Kalakaua. Moreover, the troops had
orders to take no part in the contest, but
merely to protect property. Into the ques-
tions of veracity raised by Mr. Blount's
report and Mr. Stevens's denials, as well as
into the question of motive in landing ma-
rines, for the purposes of the present argu-
ment it is not necessary to go. The hasty
recognition of the provisional government
by the United States was wrong. If it was
the sequel of a conspiracy hatched by Mr.
Stevens, it could be no more than wrong-
more scandalous, it is true, but in nature
similar. This closes the first act in the little
drama.
The second act is now on the stage. Here
we find a sovereign and independent state,
calling itself a provisional government, that
120 THE LAW AND THE POLICY
is, organized provisionally to secure certain
objects. What these objects were is best
stated in the proclamation of the revolu-
tionary committee, issued January 16, 1893 :
" The Hawaiian monarchical system of gov-
ernment is hereby abrogated. Provisional
government for the control and management
of public affairs and the protection of public
peace is hereby established, to exist until
terms of union with, the United States of
America have been negotiated and agreed
upon." What is the status of this govern-
ment in the eye of international law I Does
its provisional character make it any the less
a sovereign state 1 Granting that its origin
was owing to a wrongful act on the part of
the United States, is its subsequent legality
impaired ? Both of these questions must be
answered in the negative. The intervention
of France in our Revolutionary War was
technically illegal, was an act of war, but
the recognition of the United States was not
thereby invalidated. Our recognition of
Texan independence was wrong, in being
likewise premature, but no one questioned
the legality of the Texan status. Not only
our recognition of the new government in
Hawaii, not only its recognition by other
states, but also every subsequent act, proves
its sovereignty. We have accredited a
minister to it, we have received a minister
FOR HAWAII 121
from it. Nor does its avowed provisional
character alter our duties or its rights. If a
government is organized to secure certain
objects, who shall decide wdien and whether
those objects are achieved or are impossible,
or what other olgects shall succeed them I
Is the dictum that the objects for which this
provisional government was formed have
proved nugatory, and that, therefore, ijjso
facto it has lapsed, and the former govern-
ment reverts, one which it is competent for
any other than itself to pronounce ? Surely
not, otherwise its sovereignty w^ould be a
very qualified article. What this new^ gov-
ernment shall do with its own, what it shall
develop into, whether it shall withdraw in
favor of the deposed queen or form itself
into a f)ermanent republic, is a matter purely
for internal decision.
The recognition of a provisional govern-
ment is no new" thing. It w^as made in the
case of Costa Rica in 1868. The " National
Defense Committee " w^as recognized in 1870
as the government of France. The Calderon
government was recognized in 1881 as the
" existing provisional government " of Peru.
When we ask, then, what should be our
attitude toward the provisional government
of Hawaii, if w^e observe our own usage and
the rules of international law, there can be
but one answ^er. Its rights are the same,
122 THE LAW AND THE POLICY
our relations to it are the same, as in the
case of its predecessor. To restore the
queen by intervention would be a fresh
w^'ong. Any forcible interference in the
affairs of Hawaii, even to insist on a plebis-
cite whose result should determine in whose
hands the government shall reside, w^ould
be illegal. For Hawaii is a sovereign state.
One wrong cannot be cured by another.
Our duty is simple. It consists in keeping
our hands off.
In international relations, questions of
policy must be argued on different lines
from questions of law\ While the law is or
should be simple, capable of precise state-
ment, a nation's policy is the result of a
complexity of motives, of facts which of
necessity may not have been brought clearly
into view. To attempt to define the proper
policy for the United States to pursue
toward Hawaii, then, is to tread on more
uncertain ground. Yet even here we have
a former usage to guide us ; to change this
should require justification.
In a despatch of Mr. Webster's, December
19, 1842, our policy toward Hawaii was
stated as follow^s : " The United States
have regarded the existing authorities in
the Sandwich Islands as a government
suited to the condition of the people and
resting on their own choice ; and the Presi-
FOR HAWAII 123
dent is of opinion that the interests of all
commercial nations reqnire that that govern-
ment shonld not be interfered with by for-
eign powers. Of the vessels which visit the
islands, it is known that the great majority
belong to the United States. The United
States, therefore, are more interested in the
fate of the islands and their government
than any other nation can be, and this con-
sideration induces the President to be quite
willing to declare, as the sense of the govern-
ment of the United States, that the govern-
ment of the Sandwicli Islands ought to be
respected; that no power ought either to
take possession of the islands as a conquest
or for the purpose of colonization, and that
no i^ower ought to seek for any undue control
over the existing government, or any exclu-
sive privileges or preferences with it in mat-
ters of commerce."
In his message a few days later President
Tyler deemed it "not unfit to make the
declaration that [this] government seeks no
peculiar advantages, no exclusive control
over the Hawaiian government, but is con-
tent with its independent existence, and
anxiously wishes for its security and pros-
perity."
Developing this idea, Mr. Legare wrote
Mr. Everett, in 1843, to the efeect that the
Hawaiian Islands bore such peculiar rela-
124 THE LAW AND THE POLICY
tions to ourselves that we might even feel
justified, consistently with our principles, in
interfering by force to prevent their falling
(by conquest) into the hands of one of the
great powers of Europe. And in 1850, sus-
pecting French designs upon the Sandwich
Islands, Mr. Clayton wrote that their situa-
tion and " the bonds, commercial and of other
descriptions, between them and the United
States are such that we could never with
indifference allow them to pass under the
dominion or exclusive control of any other
power. We do not ourselves court sover-
eignty over them."
The following year Mr. Webster reiterated
the same policy in an admirable despatch,
disclaiming the desire " to exert any sinister
influence over the councils of Hawaii," and
expecting " to see other powerful nations
act in the same spirit." " This government
still desires to see the nationality of the
Hawaiian government maintained, its inde-
pendent administration of public affairs re-
spected, and its prosperity and reputation
increased." This was after an intrigue of
the French commissioner in Hawaiian affairs
had come to light. With a single excep-
tion, all our state papers alluding to this
topic, the messages of our presidents, the
despatches of our secretaries of state, bear
witness to the same policy of independence
FOR HAWAII 125
for Hawaii, an iudepeiideuce free from the
interference of foreign states, uncontrolled
by our own.
This one exception is a despatch of Mr.
Marcy in 1853. In September he had written :
"While w^e do not intend to attempt the
exercise of any exclusive control over them,
we are resolved that no other power or state
shall exact any political or commercial privi-
leges from them which we are not permitted
to enjoy, far less to establish any protec-
torate over them."
But by December he seems to have changed
his mind, and writes : " I do not think the
present Haw^aiian government can long re-
main in the hands of the present rulers, or
under the control of the native inhabitants
of these islands, and both England and
France are apprised of our determination not
to allow them to be owned by or to fall
under the protection of these powders or of
any otlier European nation. It seems to be
inevitable that they must come under the
control of this government, and it would be
but reasonable and fair that these powers
should acquiesce in such a disposition of
them, provided the transference was effected
by fair means." This was but a passing idea,
of which nothing came, and in 1868 Mr,
Seward wrote that " the public mind in the
United States was not in a condition to
126 THE LAW AND THE POLICY
entertain the question of the annexation of
the Sandwich Islands." Mr. Blaine's pub-
lished correspondence conveys repeatedly
the same impressions.
This practically uniform policy toward
Hawaii — jealousy of its possible control by
some other power, while not seeking to alter
its independent status ourselves — appears
in the reciprocity treaty of 1875. After ar-
ranging for the free interchange of certain
specified products by the two countries, Arti-
cle IV stipulates as follows: "It is agreed
on the part of his Hawaiian Majesty, that,
so long as this treaty shall remain in force,
he will not lease or otherwise dispose of or
create any lien upon any port, harbor, or
other territory in his dominions, or grant
any special privilege or rights of use therein,
to any other power, state, or government,
nor make any treatj^ by which any other
nation shall obtain the same privileges, rela-
tive to the admission of any articles free of
duty, hereby secured to the United States."
Bearing in mind the policy thus described
and witnessed to, we are ready to ask if
there is anything in the present situation in
Hawaii to necessitate a reversal of this
policy.
The population of the Hawaiian Islands
has a very large foreign admixture, out-
numbering the natives in the proportion of
FOR HAWAII 127
three to two. This is chiefly Portuguese, but
the wealth and trade are largely in the
hands of the Americans. Through the
efforts of American missionaries the island
population w^as Christianized. Now sixty
per cent, of its inhabitants attend church
regularly, while ninety-five per cent, can read
and write. Their government has been a
constitutional monarchy. The foreign ele-
ment showed its power in 1887 by forcing
upon the crown a new constitution more fa-
vorable to itself. The queen, recently de-
posed, attempted the abolition of this constitu-
tion, but drew back before the storm which her
action created. Distrusting her, and adverse
to certain government measures relating to
the opium traffic and the Louisiana lottery,
the American element overthrew the queen,
and set up a government of its own, with
the avowed object of annexation to the
United States. The annexation idea was
acceptable to President Harrison, and a
treaty to secure that object was signed.
Before it was ratified by the Senate, how-
ever, came the change of administration
and recall of the treaty.
Now, it is noteworthy that neither j^arty
in Hawaii seems hostile to the interests of
this country. The recent queen referred
her cause to this government; the revolu-
tionary party desired the closest possible
128 THE LAW AND THE POLICY
connection with it. Moreover, both parties
seem to promise reasonably well to observe
the obligations of state toward the United
States. The monarchy can show the educa-
tion and peaceful temper of its native popu-
lation, together with its fifty years' record
of creditable national life and treaty obser-
vance. The provisional government repre-
sents, it is said, probably with truth, the
wealth, intelligence, and enterprise of the
foreign element. Whichever faction holds
the mastery of affairs, there seems no menace
to this country's interests. If those interests
are threatened, we have the treaty of 1875
to fall back upon. If that treaty should be
abrogated, we have a settled policy, in line
with the Monroe Doctrine, to appeal to. The
conclusion is irresistible that the trade rela-
tions between Hawaii and this country are so
strong, the established policy of this country
so well understood, that its interests are in
no danger whatever.
Nor does the annexation of the Hawaiian
Islands seem to promise great material ad-
vantage. Annexation of territory beyond
sea is not looked upon with favor by our
people. This was shown in the cases of
Cuba and Santo Domingo. Already we have
free commercial intercourse with Hawaii ;
nine tenths of its exports come to the United
States ; eight tenths of its imports are from
Foil HAWAII 129
our shores. What profit would this country
reap from annexation, commensurate with
the responsibihties and burdens which it
must assume f The real and only advan-
tage from annexation would be gained by
the islands themselves. In a question of
state policy w^e must consider our own
interests, not those of others.
If, then, our rights are not menaced, our
self-interest not specially appealed to, w^hy
should we go counter to our established
policy! There exists no sufficient reason.
While fostering our trade relations in every
legitimate way, both law and policy demand
that we keep our hands off* Hawaii.
AN INTEROCEANIC CANAL IN THE
LIGHT OF PRECEDENT
Yale Keview,
November, 1895
AN INTEROCEANIC CANAL IN THE
LIGHT OF PRECEDENT
SOONER or later, by private enterprise
or by national aid, it is likely that some
portion of the Central American isthmus
will be crossed by a ship-canal joining the
oceans. The vast importance of such a
waterway to the world's commerce, its vast
importance particularly in the development
of the United States, needs no demonstra-
tion. To enable an interoceanic canal,
however, to attain its highest usefulness ; to
make for it a sure passageway for the flags
of all nations, unblocked in war, secure from
the vicissitudes of semi-tropical politics; to
use it as not abusing it— this is a problem
which demands study and statesmanship.
To show, if it may be, that the neutraliza-
tion of such a canal under the guaranty of
the chief commercial powers is the status
most in accordance with precedent and his-
tory and our own policy, is the object of
these pages.
133
134 AN INTEROCEANIC CANAL
The iuternational status of an interoceanic
canal is a question of much perplexity, upon
which the history of the past throws but a
partial light. Such a canal is not a mere
strait like the Dardanelles, the Danish Belts,
or the chaimel of Magellan, naturally formed
and indestructible. Exclusive jurisdiction
over these waters as a matter of right has
never been conceded by the United States,
and their passage is now free to all nations.
On the other hand, it is, in theory at least,
entirely subject to the sovereignty and con-
trol of the state within whose jurisdiction it
lies. For example, the North Sea Canal in
Germany, or, if constructed, the ship-canal
across southwestern France from the Gra-
ronne to the Mediterranean, will be con-
trolled by those countries alone. Other
states may insist upon a commercial use on
the footing of the most favored nation ; but
they cannot prevent an exclusive military
use by the possessory gov^ernment.
There is, however, a vital difference be-
tween such canals as these and the inter-
oceanic variety, analogous though they are.
The former are built, guarded, managed by
agencies of their own nationality, all ade-
quate to the purpose. The latter, in point
of fact, must lack every one of these char-
acteristics. No country through which an
interoceanic canal has been proposed can
IN THE LIGHT OF PRECEDENT 135
itself afford the capital for its construction.
Its military and naval strength are inade-
quate for protection. "Without sure protec-
tion, neither management nor construction
would be practicable, for capital is timid.
As compared with the simple status of the
North Sea Canal, notice, therefore, the com-
plex character of one across Panama or
Nicaragua. The elements of complexity
are three :
A weak state granting the concession,
without capital or credit or military power.
A foreign construction company, depen-
dent upon its chartering government for that
security and permanence which are its very
breath of life.
A treaty, between the givers of concession
and of charter, which authorizes the work
and grants to the chartering power the rights
under which it acts. Here are limitations
up(^n the jurisdiction of the sovereign on
every hand — limitations, too, which may be
capable of indefinite expansion under pres-
sure. And this danger introduces a fourth
element into the problem. No commercial
state can afford, in justice to its own com-
merce, to permit that commerce in its use
of such a canal to suffer any, even the least,
discrimination against it. Nor will any one
state permit another, save as the result of
necessity, the military use of such a canal,
136 AN INTEROCEANIC CANAL
from which use it is itself debarred. Con-
trary as they are to the free, liberal, en-
lightened spirit of our time, such exclusive
rights can only be the result of major force.
Both the states in question, therefore, the
one conceding the right to dig a canal, and
the other chartering and protecting the com-
pany for its construction, must be ready to
give appropriate guaranties of equal rights
to all other interested states.
The problem restated, then, is this: How
can an interoceanic canal be constructed and
administered, securely and continuously,
when the resources of the state in which it
lies are inadequate to the purpose ? Toward
the solution of this problem are presented
here those historical precedents which seem
to bear upon it. And foremost should be
studied the Suez Canal, the only interoceanic
waterway in existence which presents the
features described.
The Suez Canal was dug by a French
company under a concession from the Khe-
dive of 1856, confirmed by the Sultan, his
suzerain. Article XIV of this concession
embodied a formal declaration that the
canal should be always open as a neutral
passageway to merchant ships of every na-
tionality. But this was clearly insufficient.
For Egypt, even with the possible backing
of Turkey, was too weak to make the decla-
IN THE LIGHT OF PEECEDENT 137
ration good. A much stronger guaranty
was needed for its effectiveness. Moreover,
nothing prevented Turkey in case of war
from blocking the canal or even breaking it.
The world's commerce was not guaranteed
against the guarantor. For the security of
this commerce, a European concert was
needed. What shape should this take!
Twenty years before a spade was struck
into the sands of Suez, Prince Metternich
had answered this question. In 1838 Mo-
hannned Ali had asked his opinion in regard
to a Suez Canal project, and received this
reply : that if he wished to secure the accom-
plishment of his plan he should look to a
neutralization of the canal by a European
treaty. On this line the solution of the
problem has been worked out, not without
difficulties. The first step was taken in 1873.
At Constantinople, in December of that year,
was signed an agreement that the Suez Canal
should be open to transports and ships of
war of all signatories alike. Accepted by
TurJ^ey and the canal company, this act
was acceded to by nearly all the European
l^owers, including Russia. Thus the prin-
ciple of European control was initiated.
In 1877 came the war between Russia and
Turkey. It was of the greatest importance
to commerce that the canal should be free
from its operations. To this end Great
138 AN INTEEOCEANIC CANAL
Britain issued a declaration that any
attempt to blockade the canal or its ap-
proaches would be regarded as a menace to
India and an injury to the commerce of the
world, which would compel the abandonment
of British neutrality. This threat drew from
Prince Gortchakoff the announcement that
Eussia desired neither to interrupt nor
threaten the canal's navigation, but, on the
contrary, considered it an international
enterprise, affecting the world's commerce,
which must remain free from all attack.
The Arabi outbreak in 1882 threatened the
security of the canal still more seriously,
and proved even more forcibly the insuffi-
ciency of a merely Egyptian guaranty, the
necessity of European control. France
timidly declined the responsibilities of joint
occupation, and thereby lost her share in
the dual control. Great Britain shelled the
insurgents out of Alexandria, occupied the
canal as a base, and defeated Arabi's forces,
acting throughout at the request of the
Khedive. Her subsequent occupation of
Egypt, without the urgent solicitation of the
Khedive, is another matter, having a bearing
upon the protection of the canal, but not
upon its international status. It was in-
duced rather by the English ownership of
Egyptian bonds, and by the threatening rise
of a fanatical invader out of the deserts. By
IN THE LIGHT OF PRECEDENT 139
those who are always suspicious of England's
good faith, her renunciation of sole control
of the canal, while occupying Egypt, is a
fact to he pondered.
Nor did the purchase of canal shares by
the British government give it additional
political rights. Were the Emperor of Ger-
many to own a thousand square miles of
land in Texas, it would none the less be sub-
ject solely to the sovereignty and jurisdiction
of the State and the nation. So in the Suez
Canal the jurisdiction of the sovereign w^as
not qualified by English financial control.
The relations of state and corporation w^ere
laid down by the concession under which
the English government enjoyed rights in
common with other shareholders. And this
would be true in our own case were the
United States to lend its credit to a Nicaragua
canal. Eights in the line of management
would be gained thereby, but the political
status would not be affected.
In the case of Suez this status was not
yet definitely and satisfactorily determined.
By force of circumstances Great Britain
had assumed, single-handed, responsibilities
which properly belonged to Europe, and
which she desired Europe to assume. An
invitation to the powers with this end in
view in 1883 remained unaccepted for two
years. Then, in 1885, a commission repre-
140 AN INTEROCEANIC CANAL
senting ten states met in Paris to draw up
for consideration an international act which
should offer a definite form of control, capa-
ble of guaranteeing at all times and for all
powers the free use of the Suez Canal.
This was the basis upon which was built
the convention of Constantinople of 1887.
Its conditions are briefly these :
The Suez Canal shall forever be free and
open, in time of war as well as in time of
peace, to the vessels, whether merchantmen
or men-of-war, of all nations.
Neither it nor its approaches to the dis-
tance of three marine miles shall ever be
blockaded.
The canal itself, the various works con-
nected with it, and the Sweetwater Canal,
which furnishes its fresh- water supply, shall
ever be inviolable.
No act of war shall take place upon it,
though belligerent ships may be using it,
and a twenty-four hours' interval shall elapse
between the departures of hostile ships from
either terminal.
No troops or material of war shall l^e
landed along it, and no ships of a belligerent
shall be stationed in its ports, but neutral
states may maintain not to exceed two ships
of war each for its protection.
When, in the opinion of the representatives
of the powers in Egyx^t, the security of the
IN THE LIGHT OF PKECEDENT 141
canal is tlireateued, the government of the
Khedive shall first be called uj)oii for its
protection. Failing this, the Porte shall
have the duty of treaty execution laid upon
it ; and if Turkey sliould prove unequal to
the task, the signatory powers shall act in
concert with her.
No permanent fortifications are per-
mitted.
No contracting power shall enjoy special
territorial or commercial advantages in it.
The sovereignty shall reside, as before, in
Turkey.
The accession of as many powers as pos-
sible shall be secured to this treaty.
These stipulations have been agreed to by
Austria, France, Germany, Great Britain,
Holland, Italy, Spain, and possibly others.
Russia and Turkey held aloof, but in 1888
Turkey yielded to pressure and acceded.
The present status of the Suez Canal, there-
fore, is that of neutrality guaranteed and
protected by the leading powers of Europe
with the exception of Russia.
The details of this arrangement have been
given at some length, since they furnish the
most valuable, in fact the only, precedent
for the settlement of similar questions else-
where — a settlement, it is right to add, which
has not yet borne the test of war.
In our own diplomacy there is abundant
142 AN INTEllOCEANIC CANAL
proof that for the most part similar ideals
have prevailed.
Five routes have been proposed for a canal
across the Central American isthmus. These
are, in the order of southing, the Tehuan-
tepec route in Mexico ; the Honduras route ;
the Nicaragua route along the San Juan
River and the lakes ; the Panama route ; the
Darien or Atrato route— these last two lying
in the territory of the United States of
Colombia.
Of these five the first two were imprac-
ticable; our treaties with their sovereign
states therefore touch upon railway, not
canal, transit. The treaties negotiated by
the United States which do relate to inter-
oceanic canals and their status are three:
with New Granada, now the United States
of Colombia, in 1846 ; with Great Britain in
1850; with Nicaragua in 1867. The provi-
sions of these treaties relating to a canal are
here summarized.
1. The United States and New Granada,
1846, Article XXV.
Commerce of the United States crossing
the Isthmus of Panama is put on an equal
footing as to tolls, duties, or other charges,
with the merchandise of New Granada. Any
transit route constructed shall be always free
and open to the United States. In return,
and to render these rights secure, the United
IN THE LIGHT OF PllECEDENT 143
States "guarantee positively and efficaciously
to New Granada, by the present stipulation,
the perfect neutrality of the before-men-
tioned isthmus, with the view that the free
transit from the one to the other sea may
not be interrupted or embarrassed in any
future time while this treaty exists ; and, in
consequence, the United States also guaran-
tee in the same manner the rights of sover-
eignty and property which New Granada
has and possesses over the said territory."
This treaty is still in force, but may be
terminated by either party on twelve
months' notice. Under this guaranty the
Panama Railway was built and operated, and
the United States has in fact landed troops
for its protection.
2. The United States and Great Britain,
1850, commonly known as the Clayton-Bul-
wer treaty.
This primarily sets forth the views and
intentions of the contracting powers " with
reference to any means of communication
by ship-canal which may be constructed
between the Atlantic and Pacific oceans, by
the way of the river San Juan de Nicaragua,
and either or both of the lakes of Nicaragua
or Managua." In the second place, it lays
down a general principle. Its main provi-
sions are as follows :
Each government declares that it will
144 AN INTEROCEANIC CANAL
never "obtain or 'maintain for itself any
exclusive control ovei- the said ship-canal,"
nor fortify the same, nor acquire any exclu-
sive privileges in it, nor fortify, colonize, or
exercise dominion over any portion of Cen- •
tral America.
The canal in case of war shall be free from
blockade to an indefinite distance from its
terminals. *
It shall be under the joint protection of
the two governments, and its neutrality shall
be guaranteed, that it may be forever free
and open.
All other- states shall be asked to enter
into similar engagements. And this is not
only a specific contract, but a general prin-
ciple for the protection of any other- prac-
ticable communications by rail or by canal
across the isthmus. Comment on this much-
abused and much-debated treaty is reserved
for another place.
3. The United States and Nicaragua, 1867,
Articles XIV, XV.
This grants to the United States and its
citizens the right of transit across Nicaragua
from ocean to ocean, on any route of com-
munication, natural or artificial, by land or
water, which may be constructed, on equal
terms with itself. All rights of sovereignty
are reserved.
" The United States hereby agree to extend
IN THE LIGHT OF PRECEDENT 145
tlieir protection to all such routes of com-
munication, as aforesaid, and to guarantee
the neutrality and innocent use of the same.
.- They also agree to employ their influence
with other nations to induce them to guar-
antee such, neutrality and protection. Free
transit is granted United States troops and
ships under conditions. After protection,
when necessary, has been afforded by United
States tr9ops, they must be withdrawn."
It is terminable at twelve months' notice.
One common feature runs through all
, these treaties : that whatever canal is built
shall be neutralized, that is, exempted in
some way from all the operations of war.
The same idea appears in the agreement
between the United States of Colombia and
Lieutenant Wyse, acting for the French
Panama Canal Company. By Article V of
this instrument the "government of the
republic declares neutral in all times the
ports of both extremiijes of the canal and
the waters' of the latter from one ocean to
the other," but forbids the passage of the
war- ships of its enemies unless they have
gained the right by treaty.
When we ask, however, how this neu-
tralization is to be secured, there is a lack
of uniformity. In the case of De Lesseps's
Panama Canal, it was declared by the sov-
ereign of the country. The Panama Canal
10
146 , AN INTEEOCEANIC CANAL
of 1846 was to owe its neutrality to the
United States alone. Our treaties of 1850
and 1867, just cited, contenij^late a neutrali-
zation joined in by other powers, that is, a
general concert of nations.
This remained our policy until about 1880.
With ihe beginning of work by De Lesseps
at Panama came a change. Secretaries
Blaine and Frelinghuysen argued for a neu-
tralization to be undertaken by the United
States exclusively, and finding the Clay-
ton-Bulwer treaty in the way of this pre-
tension, attacked that. Mr. Blaine said it
needed modification ; Mr. Frelinghuysen
called it voidable; both by implication ad-
mitted its existence. It is true that the
Clayton-Bulwer treaty left a string of mis-
understandings behind it. It was entirely
satisfactory to neither party. But what
cannot be denied — and this is emphasized
here — is the fact that throughout the entire
history of this country's attitude toward a
Central American canal, the neutralization of
that canal has been held desirable, a status
to be effected sometimes by the sovereign of
the route, sometimes by the United States
alone, more often by many states acting
together.
As in the case of Egypt and the Suez
Canal, neutralization by the sovereign solely
is not stroug enough to build on and to build
IN THE LIGHT OF PRECEDENT 147
under. So that really the choice must lie
between a neutral status ^'uaranteed hy the
United States alone, and one guaranteed by
many commercial powers. To the former
policy there are two very serious objections.
The first is this: A guaranty of neutrality
by a single state in the nature of things
cannot be effective. You vnay protect in case
of attack, but you cannot neutralize. The
guaranty of the neutrality of a state is a
guaranty that it shall not be a combatant in
war, nor be affected by its operations. As
against the guarantor this is good ; as against
all third powers it is worthless. For how
can one state prevent another from the ex-
ercise of its sovereignty, of which the right
to make war is an important feature ?
In Wharton's " Digest of the International
Law of the United States" this view is
clearly presented (last paragraph, § 145) :
"Neutralization is the assignment to a par-
ticular territory or territorial water of such
a quality of permanent neutrality in respect
to all future wars as will protect it from
foreign belligerent disturbance. This qual-
ity can only be impressed by the action of
the great powers by whom civilized wars
are waged and by whose joint interposition
such wars could be averted. As the neu-
trality of the isthmus is by the convention
before us [with New Granada, 1846] guar-
148 AN INTEROCEANIC CANAL
anteed only by the United States, it is not a
neutralization in the above sense, but only
a pledge and guaranty of protection." And
again and more specifically, the United States
do not possess, and could not raise for a con-
sidei'able time, ships and men enough to make
their sole guaranty of the neutrality of a Cen-
tral American state or of the waters of a
Central American canal good against all
assailants. It is easy to say that the power
of this great country is illimitable. That
may be true. But to translate this power
into ironclads requires a change of national
policy, years of time, and unlimited expen-
diture.
There is, then, both a legal and a practical
difficulty— though both, in truth, are practi-
cal—in the way of a guarantj'- of the neu-
trality of a canal by the United States singly.
But let all commercial powers act in unison,
and see how simple the thing may become.
Protection becomes effective, and the canal
status fixed, because each power for itself
unites in the protection, lays down the status,
and renounces the right to injure. "Neu-
tralization" becomes actual and practical
because each power, in the exercise of its
sovereignty, promises to respect the neu-
trality. The empty phrase becomes a fact.
The argument, then, thus far is tliis :
We find in the history of the Suez Canal
IN THE LIGHT OF PRECEDENT 149
a powerful precedent for the policy of gen-
eral rather than single-handed canal pro-
tection.
We find in our own treaties and diplomacy
a uniform desire to keep an interoceanic
canal free from all the operations of war,
sometimes inclining to the role of sole pro-
tector, more often desirous that this respon-
sibility shall be assumed by all commercial
states.
We find that " neutralization " is incapable
of being effected by the act of a single pro-
tecting power; that "protection" demands
superior force at command to be adequate.
We should now be in position to consider
the second part of our question, which is
this : In order to exempt a proposed Nicara-
gua or other interoceanic canal from the
dangers and operations of war, is it better
for the self-interest of the United States that
this should be attained by a general or a sole
guaranty! This question is considered in
the next chapter.
AN INTEROCE ANIC CANAL FROM THE
STANDPOINT OF SELF-INTEREST
Yale Review,
February, 1896
AN INTEROCEANIC CANAL FROM THE
STANDPOINT OF SELF-INTEREST
WHAT does the United States want of
an interoceauic canal? How can it
best get what it wants? These are ques-
tions of policy which may shortly require an
answer.
It is often asserted, in and out of Congress,
that the United States must " control " any
such waterway, and it is commonly believed
that by lending the national credit to the
company, by seeing the work through, the
right to such control will be acquired. The
first of these statements is indefinite; the
second is mistaken. The fixing of rates,
the choice of ofiicials, the physical and finan-
cial regulation of the canal, might indeed be
gained by this government, as by any other
controlling stockholder, subject to the condi-
tions of the concession; but the political
control, the right to determine its interna-
tional status, its use in war-time, its protec-
tion — this is an attribute of sovereignty
153
154 AN INTEROCEANIC CANAL
qualified by treaty. As has been argued in
the case of Great Britain and the Suez
Canal, the rights of the stockholders and the
rights of the sovereign have no real connec-
tion ; they lie in different planes.
Though no control in a real sense is ac-
quired by financial ownership, it may be
gained by a surrender of sovereignty. The
simplest form which this could take would
be the transfer of sovereignty over the region
in which the canal lies. This region might
be ceded to another state or be raised to
statehood itself with the condition of neu-
trality attached to it. For instance, the
annexation of Nicaragua by the United
States, or the cession of canalized territory
to it, would give us real control.
More complicated is the condition which
results from ei partial surrender of its juris-
diction by the sovereign in favor of one or
more powers. This would be effected by
formal treaty. An example of this is our
protection of the Panama Railway, under the
treaty of 1846 with New Granada, which
carries the right of landing troops and ex-
ercising jurisdiction for a specific purpose.
But is there not another right of action in
Central American affairs based on the Monroe
Doctrine, which belongs to the United States
exclusively, and which by common report is
as well grounded as any treaty stipulation !
FROM THE STANDPOINT OF SELF-INTEREST 155
This is apt to be construed as warranting
the United States in interfering to prevent
any and all European claims upon our neigh-
bors in the South which involve territory.
Now, without going at length into the his-
tory of the Monroe Doctrine, it is enough to
say that it is a very good thing when prop-
erly used and interpreted. For it is still the
settled policy of the United States to prevent
European powers from armed interference
in the politics of South and Central American
states against their will.
The French intervention in Mexico during
our Civil War is an instance where the Mon-
roe Doctrine was properly applicable. But
being somewhat vague and never crystallized
into a law, a great deal of extraneous matter
has been read into it, until it has become a
political fetish superstitiously worshiped by
the whole tribe of Jingoes. They will have
it mean the right of interference by the
United States, instead of what it really is —
a protest against foreign interference. They
would make of it a law overriding treaties,
instead of an expression of policy quite sub-
ordinate to treaties. They hail it as the
Lmerican policy, forgetting that Canning
first suggested it. They build upon it a
"manifest destiny" theory, overlooking the
fate of the house in Holy Writ built upon
sand.
156 AN INTEROCEANIC CANAL
The United States has a peculiar interest
in the affairs of those countries lying to the
south of it, as being itself the most powerful
and influential state on this continent. It
has a peculiar interest in any canal which
will bring its western and eastern coasts
many thousands of miles nearer by water.
To it, therefore, belongs the right, nay, the
duty, of securing the use of such canal by
its vessels of every class, in war and in peace,
under the most favorable terms.
Emphasizing all this, it is asserted that
the Monroe Doctrine is not the instrument
fit to accomplish these results. As well use
a saw to drive a nail. You blunt your tool
and do not gain the end desired.
The proper weapons are to be sought for
in our treaties, made and to be made, and in
those general principles of law which govern
the intercourse of nations.
As to the principles of law, for lack of
specific rules to cover this new question, we
have the wider expressions of that order
which binds the civilized world together.
Such are the principle of non-intervention ;
the most-favored-nation treatment ; freedom
of navigation ; freedom of intercourse ; neu-
tral interests paramount to belligerent in-
terests; good faith; observance of treaties.
As to treaties, the precedents for the treat-
ment of an interoceanic canal have already
FROM THE STANDPOINT OF SELF-INTEREST 157
been cited. The issue was there defined
between canal protection assumed by the
United States alone, and canal neutraliza-
tion carried out by a concert of nations,
precedent being in favor of the latter. In
the following pages some considerations are
presented to show that sole protection and
sole control by this country are neither prac-
ticable nor desirable. This is an argument
from the standpoint of self-interest.
What does the United States want of an
interoceanic caiian Clearly it is its unin-
terrupted use under all circumstances by
merchantmen and men-of-war alike, whether
itself a belligerent or a neutral, on the footing
of the most favored nation. Our most ardent
patriots have never claimed lower tolls than
other countries, nor exclusive commercial
use. But is there nothing more? Is there
not a darling wish entertained by some, for
which no price seems too dear, and which
would make the canal of peculiar value to
our own land ? There certainly is. Though
not often formulated clearly, but wrapped
rather in the cerement of stately words, this
wish appears to be for an exclusive use of the
canal by the navy of the United States when
a belligerent. Suppose, for example, Eng-
land and this country to be at war : then our
ships could pass the canal, could mass or
separate for attack and defense, while her
158 i.N INTEROCEANIC CANAL
ships would be debarred. The value of such
a right is at once apparent. But is it attain-
able, and what would be the cost f
The difficulties in the way are these :
First, no power of the first class would
permit the negotiation of such an arrange-
ment without a protest which would probably
lead to war. To suppose that Germany, for
instance, or Great Britain would consent to
such a provision in our favor would tax the
credulity of a child. The very first result of
such a treaty would be a combined demand
of Nicaragua by all the maritime powers
that they each and all be put on the footing
of the most favored nation, that their war-
ships be granted transit at all times as well
as ours. This demand would be reasonable,
for how could they afford to tie one hand
behind their backs in advance of a contest ?
To meet it successfully would require a
defensive alliance of the United States and
Nicaragua, backed by a fleet as large as the
combined fleets of the remonstrants.
But suppose, for argument's sake, that
foreign powers display no such sensitiveness
as to their interests and their rights, and
fail to combine against us. Suppose that
our sole guaranty of the canal, couj^led with
its exclusive military use, is permitted to
pass unnoticed or with a diplomatic remon-
strance merely. Suppose the canal garri-
FROM THE STANDPOINT OF SELF-INTEKEST 159
soned by our trooiDS, in violation of the
Cla}i:on-Bulwev treaty, which had been offi-
cially declared to be aljrogated. What
follows ?
We are the sole protectors and guarantors ;
we must maintain, therefore, on the spot a
force sufficient for this end, or the canal may
be broken, even ruined. Single-handed we
must crush out riot and revolution. Strange
responsibilities in Central American politics
must be assumed, constant influence exerted,
or else our protection would be nugatory.
And, apart from local dangers, a war may
arise to which we are a party. We should
require an army of occupation as large as
any which our enemy could land, a fleet
equal to that which he could eciuip, and the
canal would be made simply the first scene
of the struggle. It is apparent that this
would involve a complete change in the
policy which has guided this republic from
its earliest years, that it would result in a
struggle far from our natural base, on dis-
advantageous rather than advantageous
ground, against, not in accord with, the sen-
timent of the political world.
There is another objection to the exclusive
war use of a canal by the United States,
coupled with that guaranty of its neutrality,
whether sole or general, which all our treaties
have contemplated. The two are inconsis-
160 AN INTEEOCEANIC CANAL
tent. The exclusive use in war would conflict
with the neutral status. Imagine the per-
petual neutrality of Belgium qualified by an
exclusive right of transit across its territory
granted to German armies. All powers must
approach a canal on an equal footing, or its
neutrality will become an alliance between
its sovereign and the favored nation.
Let us suppose, on the other hand, that
our policy follows more moderate counsels.
Guided by European precedent and the pro-
visions of our own treaties, it renounces the
attempt to shoulder singly the task of canal
protection. Calling in the cooperation and
aid of all powers likely to make commercial
use of the canal, this country, taking the
lead, proposes to place it on a footing of
neutrality guaranteed by all. All have a
common right of passage, in peace and in
war, for war-ships and for merchantmen.
The coast sea off the terminal ports, for a
distance of fifty or a hundred miles, is also
exempted from the operations of war.
Proper provision is made, as in the Suez
Canal convention, for the avoidance of
the hostile meeting of belligerent ships.
Military occupation for internal security,
protection from outside pressure, are joint,
not single. A violation of the integrity of
the canal is an attack upon, and will be
resented by, the whole commercial world.
FROM THE STANDPOINT OF SELF-INTEllEST IGI
With absolute confideiic'e it may be asserted
that such a status, such a solution of the
problem as this, would give the United
States every advantage which it could hope
to reap from the canal, save and except the
exclusive right, as against an enemy, of using
it in case of w^ar. Is this single privilege
worth what it would cost — the abandonment
of settled policy, the yearly expenditure of
army and navy enormously increased, the
greater danger of political complication?
This price is real, not imaginary. A nation
with a chip on its shoulder cannot rely on
bluff and bluster alone. That this is more
or less clear to the advocates of a " spirited
foreign policy " is let drop occasionally. " I
would be willing to go to war to prevent
England from obtaining control of the Nica-
ragua Canal, or from interfering in our con-
trol of that waterway," a member of the
House is reported to have said recently, amid
a chorus of approval, as if the two were
equivalent statements.
We may w^ell agree with him as to his
first proposition, but just as surely does it
follow that our control would be regarded
with similar jealousy by other states.
Why go to war, however, — an expensive
and uncertain business,— when the same end
could be reached by general concert of
powers ? Why go to war with Great Britain,
1G2 AN INTEROCEANIC CANAL
in particular, on the subject of canal control,
when by a solemn treaty that country already
has renounced canal control f
But here arises a serious question. That
Clayton-Bulwer treaty of forty-eight years
ago, which has just been alluded to, is it
now in force? Is it really a good thing to
get rid of, if in force I
The charge has been made that it is no
longer valid because long ago violated by
Great Britain. This violation lay in re-
taining control over certain Central Ameri-
can territory in spite of the treaty, the excuse
and defense being that the treaty was not
intended to refer to the status existing at
its negotiation. Since then— very slowly
and very exasperatinglj^, it is true — all such
territorial claims have been yielded, the
Mosquito protectorate quite recently, until
nothing clouds the validity of this treaty
except what is past. Now, so far as appears,
no responsible official in this country has
ever claimed that this treaty is actually void,
but merely that it should be amended or, at
worst, is voidable. A treaty unlimited in
its terms as to duration must certainly be
held binding until notice of its abrogation
has been given. No such notice exists in
this case. Two secretaries of state have
argued that there was ground for terminating
it, and a committee of Congress once reported
FROM THE STANDPOINT OP SELP-INTEEEST 163
in favor of its abrogation ; there the matter
dropped. To say that this treaty is no
longer binding, therefore, is to be inaccnrate.
Even admitting that there is reason for its
abrogation, it must be considered still in
force. And what I desire to emphasize here
is the extreme impolicy of such abrogation,
the very decided present value of this Clay-
ton-Buhver treaty to the United States.
What state is it, as we are so constantly
told, which arbitrates with the strong and
bullies the weak! Great Britain. What
state is it, on the same authority, which for
schemes that are subtle, for earth hunger,
for trade expansion by fair means and foul,
for the liking to have a finger in every other
nation's pie, is most notorious ? Again Great
Britain. She, then, is the power most to be
dreaded as a meddler in Central American
affairs. If so, the Clayton-Bulwer treaty
is an instrument made to our hand. It is
a bulwark of defense, a contract to be en-
forced, not surrendered. Listen once more
to its terms:
"The governments of the United States
and Great Britain hereby declare that neither
the one nor the other will ever obtain or
maintain for itself any exclusive control
over the said ship-canal; agreeing that
neither will ever erect or maintain any for-
tifications commanding the same, or in the
164 AN INTEBOCEANlC CANAL
vicinity thereof, or occupy, or fortify, or
colonize, or assume or exercise any dominion
over Nicaragua, Costa Rica, the Mosquito
Coast, or any part of Central America."
Does Great Britain covet Corn Island,
commanding one terminal of the Nicaragua
Canal; does she "exercise dominion over"
Corinto, to hold as indemnity for a debt ;
does she seek to control the future canal in
any way ? We appeal to Article I of this
treaty. We do more — we enforce it. To an
aggressive power it is a strait-jacket.
In a frank and striking passage which is
contained in one of Mr. Blaine's despatches
to Mr. Lowell,^ this is well expressed: "I
am more than ever struck by the elastic
character of the Clayton-Bulwer treaty, and
the admirable purpose it has served as an
ultimate recourse on the part of either gov-
ernment to check apprehended designs in
Central America on the part of the other;
although all the while it was frankly admitted
on both sides that the engagements of the
treaty were misunderstandingly entered into,
imperfectly comprehended, contradictorily
interpreted, and mutually vexatious." Why,
then, should we seek to do away with it?
The only possible reason can be, because tve
seek to control, to occupy, to fortify, to do
the things we there renounce — in short, to
assume the aggressive ourselves. This, then,
1 November 29, 1881. MSS. lust. Gr. Brit. For. Eel., 1881.
FROM THE STANDPOINT OF SELF-INTEREST 1G5
is tho real object and ideal of the opponents
of this treaty. They would throw away the
shield to grasp the spear more firmly. They
would prevent the building- of a canal, unless
permitted exclusive rights in it. They would
choose a policy without regard to cost and
consequence. Here, then, we have come to
the parting of the ways.
In the one direction lie " peace with honor,"
a growing trade, a traditional policy, the
military and naval establishments of to-day,
the enforcement of the Clayton-Bulwer
treaty, a well-considered plan for general
protection and guaranty of the canal which
commerce cries out for.
In the other lie single control, the abroga-
tion of every treaty which stands in the way,
an army and navy to make our position good,
the exclusive use of the canal, as against our
enemies, by our navy in time of war. In
short, it is to prefer belligerent to neutral
interests, and to launch forth into the
troubled sea of foreign politics.
To enforce or to abrogate the treaty of
1850; to use the canal on the same terms
with other states, or to insist upon exclusive
military privileges in it— these are the real
points at issue. Between these policies let
the American people choose, counting the
cost of each, and striving to see which will
bring it honor and true ascendancy and the
highest good.
AN INQUIRY CONCERNING OUR
FOREIGN RELATIONS
Yale Review,
August, 1892
AN INQUIRY CONCERNING OUR
FOREIGN RELATIONS
THE number of controversies with foreign
powers which have arisen of late must
have impressed every student in the depart-
ment of foreign relations. Upon putting
together the facts involved in several of
these "difficulties," and comparing their
causes, the question has presented itself,
whether one main cause has not led to all of
them, and if so, whether this does not indi-
cate a change of foreign policy.
This policy was originally outlined by
Washington in his farewell address, in that
noble passage beginning : " Observe good
faith and justice toward all nations; culti-
vate peace and harmony with all." It was
believed to consist in the avoidance of en-
croachments upon, as well as of entangle-
ments with, other states. Long ago Ave
reached the position of indifference to for-
eign influences which Washington aimed at.
Too often have we failed of the good faith
169
170 AN INQUIRY CONCERNING
and justice which he inculcated. But the
pecuUar advantages of our position are the
same, our duties are the same, now as then. If
there appears a change in our foreign policy,
we have a right to question it ; we may still
test it by the spirit of our early diplomacy.
THE BERING SEA CONTROVERSY
Ever since the recognition of our indepen-
dence by Great Britain, our fishery relations
with her colonies have been in an unsettled
condition. One arrangement has followed
another, the treaty of 1818, in its terms per-
petual, being the basis upon which they have
been built up. At several periods in our
history we have had to complain of high-
handed treatment of our fishermen and of the
illegal seizure of their smacks by the pro-
vincial authorities. Nor have our fishermen
been without fault, in fishing within for-
bidden waters, occasionally in entering upon
a forbidden traffic. But now the tables
are turned. Since 1885 United States ships
have seized some and warned away many
more of the British Columbian sealers for
operating in the waters of Bering Sea. The
controversy resulting, as yet unsettled, is
the first on our list to claim attention.
The habits of the fur seals and tlie methods
of capture are as follows : During the winter
OUR FOREIGN RELATIONS 171
season the seals are widely scattered in the
Pacific Ocean, In April they travel north-
ward, and repair to certain breeding-islands
lying in the Bering Sea. One group of
these islands belongs to Russia, another to
the United States. It has been the practice
of our government to farm out its seal-fishery
to a company, under conditions of rental, tax
per skin, and limitation of slaughter. This
company's employees protect the seals in the
Pribjdoff Islands from depredation. After
the females have landed, they keep near
shore with their young. The bachelors of a
certain age are quietly driven inland and
there killed. After some months, when the
bearing and breeding processes, thus ren-
dered undisturbed, are completed, the seals
all put to sea again. It is in the spring and
early summer, when the seals are on their
way to the rookeries, in the open sea, trav-
ersing the passages between the fringe of
Aleutian Islands, which mark ofi: the Bering
Sea from the Pacific, or cruising the coasts,
that latterly they have been intercepted by
what we term the seal-poachers. These
men, belonging to the United States as well
as to British Columbia, by their indiscrimi-
nate killing of females as well as of males,
and losing many, as they must, through the
sinking of the carcasses, have seriously
diminished the source of supply.
172 AN INQUIEY CONCEENING
Now it is of considerable importance to
both Great Britain and the United States that
this sealing industry should be preserved,
for the skins are cured and dressed in Lon-
don, while the direct revenue is paid to this
country. A close season and a regulated
slaughter are probably essential to preserve
this interesting animal from extinction. The
real question then is, whether such regulation
shall be brought about through diplomatic
agreement, or whether we can establish it
through force as a matter of right. Over
our own sealers, and over foreign sealers in
our own coast sea, we undoul)tedly have
jurisdiction. But have we lawful jurisdic-
tion over the operations of foreigners many
miles from land, where most of our captures
have been made?
Such jurisdiction cannot arise from our
ownership of the seals, for they are wild
animals uninclosed, and can be owned by
nobody.
It cannot arise from the contention that
their slaughter by foreigners is coidra boiios
mores, for that is a meaningless phrase, upon
which no legal rights of capture can be
founded.
Nor, once again, can it arise from the
assertion that the Bering Sea is a mare
elansiou, and not a part of the liigh sea, since
that assertion cannot be substantiated in
OUR FOBEIGN DELATIONS 173
fact. The Bering Sea is too vast to be
under the control of any one nation. The
territory of the United States borders less
than half of it. Russia gave up a similar
claim. It is inconsistent with the spirit of
modern politics. If we have exclusive juris-
diction over the Bering Sea, then, it must
spring from our ownership of adjacent land,
and from that alone. For it must always
be kept in mind that jurisdiction is not a
thing separate and complete in itself, but
only an incident to the possession of certain
territory. Our question, therefore, presents
itself thus: Has the United States through
its possession of Alaska acquired exclusive
jurisdiction over the Bering Sea? Here it
must first be remarked that the i^resumption
is against us. The vast exclusive claims to
jurisdiction over broad stretches of sea, once
in vogue, have become obsolete. Portugal
and Spain no longer assert peculiar rights
in great tracts of ocean, with a papal bull as
a warrant. England no longer compels for-
eign ships to lower their topsails to her in
the narrow seas. American fishermen may
fish as freely as Canadians iu the Gulf of St.
Lawrence, if they keep offshore. Even the
waters of the Bay of Fundy, after tedious
disputation with Great Britain, are agreed
to form i^art of the high seas.
But the Alaska purchase was made from
174 AN INQUIRY CONCERNING
Russia, and it seems to be from Russia
that we derive the rights of jurisdiction to
which we lay chiim. As expressed in its
diplomatic correspondence, our government
asserts that Russia had controlled the fish-
eries of those waters from their discovery
until 1867 ; that until 1886 they had been in
undisturbed possession of the United States ;
that thereby an exclusive right had been
acquired in them. Our exclusive jurisdic-
tion being thus derived from Russia, we
must prove that she owned and exercised it,
and that the Alaska purchase treaty con-
veyed it.
It is a fact that Russia once claimed ex-
clusive rights over the coasts and waters of
the Bering Sea from the Straits to the fifty-
fourth degree of north latitude. But neither
Great Britain nor the United States would sub-
mit to such pretensions. Chancellor Kent and
John Quincy Adams denied and opposed the
claim. The result of our diplomatic protests
is seen in the treaty of 1824 between Russia
and the United States. "It is agreed that
in any part of the Great Ocean, commonly
called the Pacific Ocean or South Sea, the
respective citizens . . . shall be neither dis-
turbed nor restrained, either in navigation
or in fishing, or in the power of resorting to
the coasts" at unsettled points for trading.
In 1825 a similar treaty was made by Russia
OUK FOREIGN RELATIONS 175
with Great Britain. Both treaties were lim-
ited to ten years. It is not practicable to
argue that tlie Bering Sea was not a portion
of the Pacific Ocean in the view of these
treaties. The Bering Sea is a body of water
three times as large as the Grulf of Mexico,
separated from the Pacific by a string of one
hundred and fifty islands, mostly mere islets,
in a line measuring perhaps twenty-five hun-
dred miles, with spaces as wide as two hun-
dred miles between them — a separation only
in name. The claim of our government that
Russia had exercised undisturbed exclusive
sovereignty over the Bering Sea until 1867
is upset, therefore, by two treaties and by our
own diplomatic history. Moreover, as Lord
Salisbury has urged, the fact of non-use of a
right, even if proved, does not imply aban-
donment of that right.
Again, by Article I of the convention for
the cession of Alaska was surrendered " all
the territory and dominion now possessed
by his said Majesty on the continent of
America and in the adjacent islands, the
same being contained within the geographi-
cal limits herein set forth." Lines are drawn
across the ocean "within which the terri-
tories and dominion conveyed are contained,"
but no mention is made of jurisdiction over
a great stretch of sea as a thing granted.
No jurisdiction was or could be granted,
176 AN INQUIRY CONCERNING
except what attached to the land ceded, and
that passed as a thing' of conrse. Whatever
rights we have in Bering Sea away from
Land exist only by virtue of ownership of
tliat land, and are not distinguishable from
similar rights attaching to governmental
possession of land elsewhere.
Russia based her claim to exclusive juris-
diction over these waters upon her owner-
ship of all the territory inclosing them. Her
claim was successfully resisted. We now own
less than half the coast that Russia did, and
yet are found setting up the same claim.
Are not these principles clear?
The Bering Sea is part of the high seas,
and sealing, beyond the three-mile limit in
it, can be prevented only by an exercise of
sovereignty over it. Such right of sover-
eignty we denied to Russia. Such right
we now claim, as derived from Russia. Such
right, if Russia possessed it, could only be
an incident to the ownership of the coasts,
and could not exist and be conveyed inde-
pendently. There is no evidence of an
attempt to convey it independently. Its
territorial right in a portion of the coast
bordering the Bering Sea does not give this
countrj^ exclusive jurisdiction over the said
sea for a certain purpose, or for any pur-
pose. Our fishery disputes with Canada, the
precedents in our own history, maritime
OUK FOREIGN RELATIONS 177
law, common sense, all discredit the idea.
It is a great and an undue stretch of the
jurisdiction of the Uiiit(3d States to capture
twelve ships and warn off a great many more
for engaging in a species of fishery many
miles from land.
THE BARRUNDIA AFFAIR
Barrundia, formerly minister of war in
Guatemala, had been exiled in 1885, and re-
sided in Mexico. Taking up weapons against
his native state, he was disarmed by the
Mexican authorities and conducted to Aca-
pulco, there being requested to leave the
country whose neutrality he had violated.
He accordingly took passage on the Pacific
Mail steamer Acapulco for Salvador. She
touched at Guatemalan ports, but Barrundia
felt secure under the United States flag. At
the first port, Champerico, the Guatemalan
authorities demanded Barrundia's surrender,
but the captain of the Acapulco refused to
allow any officers on board.
The Guatemalan government then re-
quested the American minister, Mr. Mizner,
to direct Captain Pitts of the Acapidco to
surrender his passenger, charging him with
sedition, treason, and conspiracy against the
government. Mr. Mizner asked for and
received assurances of a fair trial and no
12
178 AN INQUIKY CONCEKNING
death penaltj^, in Barrundia's behalf, as Gua-
temala was then under military law.
The AcapuJco came into port at San Jose
August 27, 1890. Commander Reiter of the
Banger boarded her, and was asked by Pitts
to protect his passenger. He replied that
he could not act without authority from the
governor of the port. Pitts then wired Mr.
Mizner, who answered that the Acapuko was
within the jurisdiction of Guatemala, and
that the authorities had a right to arrest any
one charged with offenses against the laws
of their country. To the Guatemalan minis-
ter of foreign affairs he made a similar
reply, that the United States could not
object to the exercise of local jurisdiction
over the AcapuJco while in Guatemalan
waters ; and then reminded him of his prom-
ise. Colonel Torielle then boarded the Aca-
pulco with a few soldiers, and demanded
Barrundia. Pitts again appealed to the
officers in the American man-of-war, who
replied that the matter was out of their
jurisdiction. The arrest was then attempted.
Barrundia drew pistols, fired at Colonel Tori-
elle, and in a scuffle was shot by the Guatema-
lan soldiers. Mr. Mizner protested against the
shooting as in violation of the promise made
him. Shortly after, Barrundia's daughter
shot at Mizner in the legation, charging him
with being the cause of her father's death.
OUR FOREIGN RELATIONS 179
There is notliing very unusual in this petty
tragedy. Nothing- is clearer than that a mer-
chant ship within the waters of a foreign
state is under that state's jurisdiction. One
of our men-of-war could have furnished
Barrundia an asylum, had he reached it, but
surely it is not the business of our navy to
exert itself actively in rescuing political ex-
iles from the laws of their offended states.
Asylum, when it ceases to be passive, is rescue
— a very different matter.
Both Commander Reiter and Mr. Mizner,
then, judged by the rules and precedents of
international law, acted with absolute pro-
priety. Suppose that tlie Trod, with Mason
and Slidell on board, had sailed into New
York harbor, would the right of their seizure
have been questioned by any power on earth "I
And yet— and this is the point of this whole
relation— the action of these two gentlemen
j)roved so unacceptable to their government
that the one was recalled, and the other re-
moved from his command with a reprimand.
The Secretary of the Navy wrote to the latter :
" It was your plain duty to proceed at once to
meet the steamer before she cast anchor in
the port, to warn the captain of the danger,
and to offer to his passenger, should he desire
it, an asylum on board your ship." Having
learned the facts, " it is impossible to sup-
pose that you would have failed to offer the
180 AN INQUIRY CONCERNING
fugitive an asylum. Such an act could have
violated no rights of the territorial govern-
ment, for no rights over the person of the
passenger could have yet vested; while it
would have maintained the implied promise
of protection which the United States makes
to all who in good faith embark under its
flag. By remaining inactive you neglected
your obvious duties, and placed your govern-
ment in the position of renouncing those
who had sheltered themselves under its flag."
Here, as in the Bering Sea affair, we no-
tice a marked extension of the jurisdiction
claimed by the United States. It announces
to its naval officers the duty of protecting
all political refugees sailing under its mer-
chant flag, even when within the waters of
the country to which those refugees belong,
by strategy, if not by force — the duty of
bringing asylum to them, instead of permit-
ting them to seek it. This was destined to
bear fruit.
THE "iTATA" case
In Chile, in 1890 and early in 1891, Bal-
maceda, by his arbitrary and unconstitu-
tional conduct, had driven a portion of the
country into rebellion, but the Congression-
alists had no ammunition. Arms and gun-
powder they therefore must buy. This the
OUE FOREIGN RELATIONS 181
Itata., a merchant steamer, tried to do at the
Californiaii port of San Diego. She was
hospitably received at San Diego, spent
some time tliere quietly, then coaled, and
was about to put to sea. At this point it
was reported that a smaller boat, presumably
loaded with materials of war destined for
the Itaia., was waiting for her off an island
out at sea. The Itata was accordingly seized
on the charge of attempted breach of the
neutrality laws, and a deputy United States
marshal put in charge. Unwilling to be thus
balked of his object, her captain put to sea,
without his clearance papers and with the
deputy on board. The latter was landed at
the entrance of the bay. The Itata met her
tender, shipped its cargo, and sailed for Chile.
Thereupon began that sensational chase by
the new cruiser Charleston., which ended, not
in the capture intended, but in the surrender
of the Itata by the Congressional leaders
after she had eluded her pursuer.
When we apply the recognized law to this
seizure, chase, and surrender, we are struck by
the unusual zeal of our government. Hither-
to it has been considered lawful for our mer-
chants to sell arms to all the world, at peace
or at war. Fitting out an armed expedition
is illegal, but this was in no sense such ; it
was a purely commercial transaction. Bal-
maceda had his rights of capture of these
182 AN INQUIRY CONCERNING
contraband articles, but it has never before
been the pohcy of this government to assist
others in enforcing their war rights of cap-
ture for breach of blockade or for carrying
contraband. It is true that the fact of
transhipment of arms outside the three-mile
limit does not alter the nature of the trans-
action, but the transaction was not a guilty
one, and there was no reason for such con-
cealment. In leaving without clearance and
in carrying oif a deputy marshal (said, by
the way, to be merely a private detective,
and not an officer of the government), the
Itata may have technically violated our
revenue laws ; but that was the worst with
which she could be charged, and that was
the result of an improper seizure. And how
must one characterize the chase of the Itata
over thousands of miles of open seal Pur-
suit hot and continuous, by a revenue-cutter,
for breach of revenue laws, has been known,
extending to the high seas. But the Charles-
ton started from San Francisco, five hundred
miles aw^ay, and scoured the ocean for her
prey, with the intention of capturing her,
even if it led to a collision with a Congressional
cruiser in Chilean waters. Sucn a pursuit,
with such an object, appears to be absolutely
novel. A state at peace has no jurisdiction
over the ships of other nationalities on the
high seas, except on suspicion of piracy.
OUK FOEEIGN llELATIONS 183
Such a stretch of jurisdiction on the part
of the most powerful state on this continent
must necessarily appear an alarming matter
to all its neighbors. The Itata wa-s brought
back to San Diego, lay there awaiting trial
for several months, and then the case against
her was dismissed, as well as that against the
tender Robert and M'uuiie. They had com-
mitted no breach of our laws in the judg-
ment of our courts.
This Itata matter naturally created a
sentiment among the Congressionalists hos-
tile to this country. Her surrender, dictated
by the desire of that party to stand well with
the government at Washington, and by their
lack of a political status, left a sore spot,
which their sudden success did not lessen.
Obtaining ammunition from a European
source, the Congressionalists at last were
enabled to take the field, and Bahnaceda and
his party chiefs were defeated. In view of
the wish of the United States to advance its
political and commercial influence in Chile,
this failure of our minister resident and of
our admiral to " pick the winner " was most
unlucky. The poor Balmacedists fled, fear-
ing the vengeance which their cruelties had
provoked, and some naturally sought asylum
at the United States embassy. At the cost
of much discomfort this was accorded by
Mr. Eagan, as it had been accorded to the
184 AN INQUIRY CONCERNING
Congressional fugitives when Balmaceda
was supreme.
Now this right of asjdum in the South
American republics is one that is governed
by a usage rather different from that in vogue
on the European continent. The legations
are permitted to shelter political fugitives
almost universally, and Chile in this instance
did not attempt to question Mr. Eagan's
privilege. At the same time, the corre-
spondence of our various secretaries of
state shows that, though recognizing this
difference of usage, they do so with reluc-
tance, believe that it should be construed
strictly, and deem it inconsistent with true
equality of states.
Thus, in the printed personal instructions
to diplomatic agents (1885), we find that
"this government does not sanction the
usage, and enjoins upon its representatives
in such countries the avoidance of all pre-
texts for its exercise."
Mr. Frelinghuysen to Mr. Langston, in
Hayti (1883), uses the same words.
Mr. Fish to Mr. Preston, in Hayti (1875),
argues at some length against the frequent
recourse to asylum in the legation, " espe-
cially in the governments to the south of
us," since " such a practice obviously tends
to the encouragement of offenses for which
asylum may be desired."
OFE FOKEIGN RELATIONS 185
Mr. Fish to Mr. Gushing, in Spain (1875),
characterizes the practice as an annoyance
and embarrassment to the ministers whose
legations are thus used, and to their govern-
ments, and as a wrong to the government
and people where it is practised ; to be mis-
chievous in its tendencies, and to tend to
political disorder.
Mr. Seward, in 1868, expresses himself
thus : " The right of a foreign legation to
afford an asylum to political refugees is not
recognized by the law of nations as applica-
ble to civilized or constitutionally organized
states." The chronic revolutionary condition
of many of the South American nations has
caused the usage to be recognized. "We
have, how^ever, constantly employed our
influence for several years to meliorate and
improve the political situation in these
republics, with an earnest desire to relin-
quish the right of asylum there. In the
year 1867 we formally renounced that right
in the republic of Peru."
Mr. Webster, in 1851, to Mr. Peyton, in
Chile, writes : " Acquiescence by the govern-
ment of Chili on former occasions in the
exercise of the hospitality of asylum in its
larger sense may preclude that government
from objecting to the continued granting
such hospitality to the same extent. At the
same time, if that government makes objec-
186 AN INQUIKY CONCEENING
tion to the granting of that hospitality to a
pai'ticular political refugee, the minister of
the United States, in whose house such
refugee is sheltered, should advise him that
this shelter can no longer be afforded."
Mr. Clayton to Mr. McCauley (1849) states
that " though the privileges of asylum in
South America are more liberally dispensed
than in the leading European states, they
should be in all cases carefully guarded."
Mr. Calhoun, in 1844, is the only secretary
of state to take the opposite tone : " The
right of diplomatic asylum in revolutionary
times and in revolutionary countries should
be indulgently construed."
Taking this almost uniform policy as our
test, we find that the asylum extended the
Balmacedists by Mr. Eagan, acting under
instructions from Washington, was exces-
sive, in that it was granted to so large a
number, in that its duration was unlimited,
and particularly in that a safe-conduct out
of the country was insisted upon, and finally
obtained, as a corollary to the right of
asylum.
While the controversy over this matter
was in progress, many seamen of the United
States steamship Baltimore, on shore leave
in Valparaiso, were assaulted by what looked
like an organized mob, and two were killed.
This deplorable affair caused great excite-
OUK FOKEIGN KELATIONS 187
ment, and something: like a war spirit was
aroused in this country. Arrests were made
of persons suspected of the violence, and
the Chilean government, hardly established
yet, expressed its regret, though not very
feelingly. The slow criminal process in
Valparaiso dragged along, and several of the
sus]3ects finally received light sentences.
Meanwhile the Baltimore returned to San
Francisco, where an examination of witnesses
of this affray was conducted by the judge-
advocate of the navy. This, of course, was
ex parte, the Chilean government having no
counsel present. According to the evidence
there adduced, the riot was proljably caused
by race feeling, but the first blow was struck
by an American seaman, and the men had
visited several saloons, though "perfectly
sober."
Our seamen ashore in A-^alparaiso are not
under the jurisdiction of the United States.
Chilean law and procedure alone are appli-
cable to them. It is only when we have
reason to believe that gross injustice has
been done that we have a claim to review
their findings. In the New Orleans lynch-
ing we insisted that the Italian government
should await the action and decision of our
courts. Why did we not owe the same re-
spect to the Chilean judge ? And were not
the unwillingness of the executive to show
188 AN INQUIEY CONCERNING
this, and its appeal from Chilean jurisdiction
in taking fresh ex-parte evidence and basing
action upon it, an attempt to escape from
the consequences and rights of that juris-
diction and to set up our own in place of it —
in other words, a fresh example of the en-
lai'ged view of our rights of sovereignty to
which we are fast accustoming our people
and in which we are training our navy?
Looked at from this point of view, it will
be seen that all these instances related show
one and the same tendency— an attempt on
the part of this government to stretch its
claims of jurisdiction unduly. Now what
does this mean, and what will it involve ? It
means, in the first place, a departure from the
old and safe policy of the fathers. It means
courting rather than avoiding foreign en-
tanglements. It means one collision after
another, each with its sulphurous war-cloud
about it. It means the violation of former
precedents, setting up new ones in their
stead which may prove awkward, even
dangerous. It will encourage aggressions
upon weak neighbors. It will make this
country hated and distrusted by its natural
friends. It will weaken its commercial posi-
tion on this continent, throwing trade into
other channels than our own. Years must
pass before Chile can forget her bitter ex-
OUR FOREIGN RELATIONS 189
periences at the hands of the United States
and open her arms to our trade freely.
International trade is largely based on
sentiment.
And, again, what will this new policy, if
persisted in, involve f If we assume an ad-
vanced position, we must be prepared to
maintain it. We shall need a larger army;
a navy of the first rank ; an increase of taxa-
tion to pay for these; a reversal of our
military and naval policy to maintain
them.
We should have, then, also a much larger
admixture of foreign influences and foreign
questions in our domestic politics. A presi-
dential campaign might be decided, not by
the belief of a party as to questions of cur-
rency or the tariff or the civil service, but
by its spirited foreign policy. Would this
be likely to give us better government!
Can we afford to turn aside from the
problem which is ever before us : how a great
free people can best work out its own salva-
tion, can purify the ballot, can make capital
safe and labor contented, maintain the law
and keep corruj^tion under, develop its re-
sources and promote general prosperity?
The tendency wliich has been emphasized,
to stretch the jurisdiction of this country
beyond the law and the usage, is not one
which will stand still. It must be checked at
190 AN INQUIKY CONCERNING
once or grow greater. Every instance of it
will raise a controversy. Every controversy
will bi'iug lis nearer to the necessity of
striving to be the dominant inflnence in the
domestic politics of every American state.
Can one imagine withont dread this country
embarked upon such a sea of adventure?
The Monroe Doctrine, a doctrine of non-
interference on the part of European states
in this continent, would be changed into a
license to interfere on our own part. Place
the burden of i-esponsibilities involved in
such a position upon our government, con-
trast with this the heavy cost, the empty
glory, the nature of the return, — a harvest of
dislike, distrust, commercial jealousy, and
discrimination, — what has the political head-
ship of this continent to offer in compensa-
tion?
Are not those words of Washington,
uttered then with reference to European
powers and European influence, still applica-
ble, not objectively,— for we have outgrown
the possibility of fear,— but subjectively-.
" Against the insidious wiles of foreign influ-
ence (I conjure j^ou to believe me, fellow-citi-
zens) the jealousy of a free people ought to be
constantly awake ; since history and experi-
ence prove that foreign influence is one of
the most baneful foes of republican govern-
ment. . . . The great rule of conduct for
OUR FOREIGN RELATIONS 191
US ill regard to foreign nations is, in extend-
ing our coiiiniercial relations, to have with
them as little political connection as pos-
sible"? Let us look to it that we do not
reverse this wise counsel.
THE FISHERY QUESTION
North American Review,
March, 1886
13
This article was published in the " North
American Review" as long ago as 1886.
The reciprocity agreement criticized in it
has never been revived. Nor has any per-
manent settlement of this old difficulty
been arrived at. The article is reprinted
here because it is believed that its con-
clusions are as applicable now as then,
and that the present entente between Great
Britain and the United States might ren-
der a settlement possible.
THE FISHERY QUESTION
ONCE more, for the seventh time since
our history as a nation began, the fish-
ery question is before us for solution. In
1783 the first grant of fishing privileges in
Canadian waters was secured, though not
without endangering the treaty of peace
with Great Britain. After the War of 1812
it was found impossible to obtain the revival
of these privileges, and it w^as not until 1818
that our fishery relations with Great Britain
were put on a permanent footing. By the
treaty of 1818 the United States consented
to a very serious limitation of the rights
which it had formerly enjoyed.
Between 1836 and 1851 came the move-
ment of the provinces to limit the conces-
sions of the treaty of 1818 by a new con-
struction of the three-mile limit, and the
passage of certain harassing laws by their
legislatures.
In 1854 the reciprocity treaty was signed,
which gave our fishermen the right to fish
195
198 THE FISHERY QUESTION
in waters previously closed to them, but at
the price of free entry of Canadian lumber,
fish, and certain other products. This
arrangement was allowed to terminate in
1865, and six years later, in 1871, came a
new form of reciprocity under the treaty of
Washington, the same treaty which provided
for the settlement of the AJahama claims.
This granted free fishing on the one side
and the free entry of fish on the other, but
with a provision for striking a balance be-
tween the money values of the privileges
which each country had received.
In midsummer last, this, in turn, expired,
and after consenting to a temporary exten-
sion of the treaty to avoid breaking in upon
the fishing season, the administration is now
face to face with the fishery question once
more.
Is a permanent solution practicable ?
For a long time past it has been the policy
of maritime states to build up their fisheries
in various ways. They were a useful indus-
try, furnishing a cheap and valuable food
product, and forming a convenient reservoir
for seamen in case of war. Thus, by the
comity of states, coast fishermen have long
been exempted from the operations of naval
warfare, from the capture and condemnation
as enemy's property to which even yet the
mercantile marine is subject. This policy
THE FISHERY QUESTION 197
the United States has imitated. Until 1854
it has consistently tried to protect and fos-
ter the coast fisheries at the national expense.
In the treaty of 1783, for example, the free
navigation of the Mississippi was granted
as an equivalent for the right to fish in
provincial waters. In 1799 a bounty of
thirty cents per barrel was granted on all
exports of pickled fish. In 1813 the cod-
fishermen received a tonnage bounty under
conditions. For bankers of over thirty tons
this was four dollars per ton. In 1819 this
was increased for smaller craft, and in 1846
a duty of twenty per cent, ad valorem was
laid on all imports of fish. Finally, in one
of the protocols to the treaty of Washington,
a million dollars were offered for the right
to fish in Canadian waters, not otherwise
opened, in perpetuity. Under the stimulus
of these bounties and duties the tonnage
employed in the coast fisheries rapidly in-
creased. On the whole, the thirty or forty
years following 1818 were prosperous ones
for New England fishermen, in spite of some-
what frequent collisions between them and
the provincial officials. Our fishermen were
often tempted to smuggle; they could not
be always kept from fishing in waters not
opened to them by treaty; serious mis-
understanding arose over the three-mile limit
inside which they could not fish, and how it
198 THE FISHERY QUESTION
was to be measured. Many American smacks
were seized on suspicion, some confiscated,
some rescued l^y their crews, some dis-
charged, but without chance of damages
for illegal detention. Both parties to the
treaty grew dissatisfied, a new arrangement
was desired, and the treaty of 185-4: was the
result. Then, for the first time, our fisher-
men paid for enlarged fishery rights, as it
were, out of their own pockets. For, though
they had a wider range for their fishing, they
lost the protected market for their fish.
More than this, the reciprocity treaty built
up formidable competition in Canadian
waters. Under the old system the provincial
fishermen were in bondage to the traders
who supplied their outfits. But, soon, with
the American market for their catch, and
with a demand on the spot for their provi-
sions, bait, wood, and other articles, they
were able to own their boats. We are now
told that, under the similar working of the
1871 arrangement, they are outgrowing their
boats, and own many fishing- smacks. The
treaty of 1854 seems to have been allowed
to expire at the wish of our fishermen. Prob-
ably the immediate effects of the reciprocity
treaty outweighed in their minds the pos-
sible evils of a return to the basis of the
treaty of 1818. For the next four years an
experiment was tried by the Canadian gov-
THE FISHERY QUESTION 199
ernment. A license of so much per ton was
charged American smacks, which opened to
them the whole inshore fisheries of the prov-
inces. This was fifty cents the first year,
one dollar the next, and two dollars after
that. Under the two-dollar arrangement
the fourth year but twenty-five vessels were
licensed. As the smacks were from fifty to
eighty tons burden, this indicates that our
fishermen, about 1870, did not consider the
Canadian inshore fisheries worth an average
of one hundred and fifty dollars apiece to
them.
When the license system failed, the prov-
inces prepared to enforce the rigor of the
law ; but a new agreement was at hand, and
the home government moderated their zeal.
The new reciprocity treaty of Washington,
with its results, is still fresh in our minds.
The most unaccountable and unjust deci-
sion of the Halifax Commission awarded a
sum of five and one half millions as the ex-
cess of value of the privileges enjoyed by the
United States over those granted to Great
Britain, in spite of the fact that the entire
market value of all fish taken by our fisher-
men, during the term of the treaty, in treaty-
opened waters, did not equal this sum. This
again showed the willingness of the govern-
ment to aid its fishing interests at the
national expense. In fact, except during the
200 THE FISHERY QUESTION
first reciprocity treaty, the government has
consistently pursued the policy of encourag-
ing the fishing industries in the Northeast at
the public cost.
An important question now presents itself.
Under the working of the reciprocity treaties
how have our fishermen fared ? As matters
are at present situated, are they right in
wishing to discontinue all reciprocity ar-
rangements — to return to the basis of the
treaty of 1818? And what are their rights
under the treaty of 1818? This treaty is
by its terms perpetual, and is the founda-
tion upon which all other agreements have
been built. It granted the right to fish along
the northern, the western, and part of the
southern coasts of Newfoundland; off the
Labrador coast from Anticosti indefinitely
northward, and along the shores of the Mag-
dalen Islands. For shelter and the purchase
of wood and water only were American
fishermen to have access elsewhere. Certain
rights of landing and drying fish were also
granted, but these are no longer valuable, as
fish are now differently cured and handled.
Besides this they have, of course, the high-
sea fisheries, which are free to all men, and
which include the greater portion of the cod
and halibut and two thirds of the mackerel
catch. Some few herring have been caught
off Grand Manan, some codfish bait, like
THE FISHEKY QUESTION 201
caplin, in the bays of Newfoundland, and a
few cod and lialil)ut there and in other j^laces.
But it is principally the inshore mackerel-
fishing in the autumn along the coasts of
Nova Scotia, New Brunswick, and Canada,
that the reciprocity treaties have opened
to us. This was once of considerable
value. The mackerel-men met the incom-
ing shoals off the Atlantic coast from New
Jersey to the capes, in the spring. A
little later they followed them up to Block
Island, Cape Cod, and the Massachusetts
Bay. The Maine coast was a favorite
ground, and many vessels went no farther
eastward. But the majority sailed past the
Nova Scotia coast, through the Gut of Canso,
and spent the late summer in the Bay of St.
Lawrence, fishing broad. Not until autumn
did they avail themselves of the treaty-
opened waters, particularly in the bight of
the bay of Prince Edward Island and off
Margaree, where mackerel were found close
in, in large quantities.
But now two things have combined to
make this late inshore mackerel-fishing of
little value. For a number of years, after
1876, the mackerel seem to have deserted
those waters. They are a capricious fish,
very uncertain in their appearance and
movements, sometimes swarming in vast
numbers along certain coasts, and then for
202 THE FISHERY QUESTION
years deserting them almost altogether.
Now they are frequenting the Bay of St.
Lawrence again, but during 1878, 1879, 1880,
and 1881 the bay fishing was a failure. And,
secondly, the introduction of the purse-seine
has completely changed the fishermen's pro-
gram. All attempts to use the purse-seine
in the gulfs have proved failures, with few
exceptions, so that, since 1870, our mackerel-
men have confined their operations more
and more to our own shores.
In 1873, 254 fishing-vessels caught 77,011
barrels of packed mackerel in Canadian
waters, of which 25,670 came from within the
three-mile limit. In 1877, 60 vessels caught
7319 barrels, and in 1882, one vessel caugl}t
275 barrels, of which not over 100 barrels
came from waters opened by the reciproc-
ity treaty. The value of these 100 barrels
was a few hundred dollars; the amount
paid for the privilege of catching them,
$•458,333, besides the remission of duty at
one cent per pound on many million pounds
of Canadian fish. These striking figures ^
prove how little use our fishermen make of
the privileges bought for them by the treaty
of Washington. They show sufficiently one
reason why they believe a further resort to
reciprocity undesirable. But, in their view,
1 "Report of United States Fish Commission, 1881,"
p. 520.
THE FISHERY QUESTION 203
there is another and a stronger reason. Tlie
remission of duty on Canadian fish has -built
up a powerful eonipetition in the provinces,
and lowers the profits on their own catch.
In 1869, during the interval between the
reciprocity treaties, the " Halifax Chronicle "
said: "From the making of the reciprocity
treaty until the abrogation, Nova Scotia in-
creased in wealth and population at a most
extraordinary rate ; from its abrogation until
the present, we have retrograded with the
most frightful rapidity. Want of a good
market has depreciated the value of our coal-
mines, has nearly pauperized our fishermen,
farmers, and miners ; and should this want
not be supplied in the only wnry it can be,
by a new treaty w^ith the United States,
Nova Scotia will in five years be one of the
least desirable countries to live in on this
continent." ^
Between 1850 and 1870, for example, the
settlements along the Gut of Canso were
greatly prospered; the small traders made
their fortunes; the farmer-fishermen flour-
ished. When, owing to the introduction of
the purse-seine, Americans no longer resorted
there, the settlements became deserted. The
traders moved away, and the wharves are
rotting down. This is a single illustration
of the value to the provinces of the American
1 Quotod in Cape Aim "Advertiser" of July 2, 18G9.
204 THE FISHERY QUESTION
trade at their own doors, and of the free
American market for their fish. Their mack-
erel-fishery was created by the treaty of
1854, and since 1873 their exports of pickled
mackerel to the United States have averaged
75,000 barrels, about one quarter of our
entire consumption. Their fishing capital
in boats and vessels, their enterprise, and
their power of competition, have all largely
increased in the mackerel and in other
fisheries.
The articles in provincial newspapers, the
speeches of Canadian politicians, the de-
mands of their diplomacy, all prove the same
thing — the vast importance to them of a free
American market for fish. That Canadian
competition and the removal of the duty
lowered the price of fish and the profits of
our fishermen hardly needs demonstration.
Canadian competition means larger imports :
shortly after the treaty of 1871 took eftect,
one quarter larger ; in 1880 more than twice
as large as the average during the interval
between the reciprocity treaties when duty
was on. This larger supply means lower
prices than would otherwise have obtained.
The remission of a duty of one cent per
pound also lowers prices; not by one cent,
but by a fraction of a cent, according to the
amount imported. Mackerel averaged fifty-
five cents per barrel lower during the reci-
THE FISHERY QUESTION 205
proeity treaties than during the interval
between them.^ In view of facts such as
these, can there be any reasonable doubt
that, with the fisheries conducted as at pres-
ent, reciprocity inflicts a serious pecuniary
damage upon our fishing industries? Can
there be any doubt that the Canadians are
deriving great profit from it I Our fishermen
naturally protest against the renewal of a
reciprocity arrangement. The Canadian
fishermen are eagerly desirous of one.
Now, does it follow from all this that no
fishery arrangement with Great Britain is
desirable! Can we simply fall back upon
the treaty of 1818, and declare that we want
nothing more? I do not think so.
The uncertain nature and habits of the
mackerel have been already alluded to.
They have completely deserted the Bay of
Fundy. For years they were scarce through-
out the whole Gulf of Newfoundland ; mean-
w^hile they became plentiful oft' the coast of
Maine. But no one can predict how long
this state of things will continue. In a few
years the situation may be entirely changed.
The mackerel may abandon our own shores
and swarm again in the gulf. Already they
are growing more plentiful there. Five
years hence our fishermen may clamor for
the privileges which they now despise. And,
1 Documents, Halifax Commission Award.
206 THE FISHEKY QUESTION
again, there are signs that the purse-seine
may be discarded. The mackerel-men may
return to the old-fashioned hook-fishing, or
to jigging. The purse-seine is vastly de-
structive of fish, large and small of all
qualities being captured together. Not a
year has gone by since 1870 without protests
against its use. Thus, in 1878, a delegation
of fishermen from Portland and Gloucester
went to Washington to secure the passage
of a law prohibiting the use of the purse-
seine in the mackerel-fishery. If this should
take place, we must again resort to Canadian
waters, for hook-fishing works there better
than on our own coast.
What does follow is that reciprocitj^ is no
longer wise or admissible. It is reciprocity
only in name. What we grant the Canadians
is of constant and great value. What they
grant us is of fluctuating and doubtful
value. This, then, is the point upon which
I should insist : that free fishing and the free
entry of fish should no longer be coupled to-
gether. They have no necessarj^ relation.
The one was taken simply as the most con-
venient diplomatic equivalent for the other.
With our present knowledge, to balance one
against the other is a pure speculation, and
likeh^ to be a losing one. Let each question be
argued on its own merits. Shall we secure the
opening of all Canadian waters for our fisher-
n\7
THE FISHERY QUESTION 207
men 1 I believe that a wise and statesmanlike
foresight demands this. Nothing is more
fooli^^h than to argue that, because we do not
need it now, we shall never need it. A change
in the habits of the fisli, or a change in the
methods of the fishermen, would make it
indispensable ; and both are possible. If we
rely on the treaty of 1818 alone, when our
smacks resort again to the gulf we shall at
once have a repetition of the difficulties and
controversies which marked the old order of
things. Arbitrary arrests ; armed resistance ;
the question of the three-mile limit ; the right
to navigate the Gut of Canso ; the right of
transhipment; bitter feeling; cruisers con-
fronting one another ; unpleasant diplomatic
struggles— all these rise up from the past to
witness against it. How shall we secure the
opening of Canadian waters ? I reply, hi/ the
l)aym€nt of a lump simi for the right to fish in
perpetuity. This was tried in 1871. It is
in accordance with the precedents of our
past history. It would open forever privi-
leges which may become of very great value.
It would solve the fishery question finally.
It would heal a long-open sore. This is a
good time to buy, when what our neighbors
have to sell seems worthless. They need the
trade of our fishermen. It is a wise policy
for them to encourage this without equiva-
lent. They could well afford to open to us
208 THE FISHERY QUESTION
their waters simply for the traffic our vessels
would bring. Matters have changed since
1871. The refusal of a million for this privi-
lege then does not imply the refusal of half
that sum now.
With all waters opened to our fishermen,
they can compete on favorable terms with
all rivals, and enable us to approach our
second inquiry with less restraint.
Hitherto we have regarded solely the
interests of our fisheries. When we ask if
a duty shall be laid on foreign fish, however,
it affects the nation at large. This is purely
an internal question, and our inquiry might
properly end here. But the statement of
this second question may be of interest. It
is this: Shall we protect the fishermen's
market by a duty on all foreign fish, and
raise the average value of their catch at the
expense of the fish-eating population ! This
is a tax on the food of the poor. It is not a
heavy tax. Duty-free, Canadian imports of
fish bear a comparatively small proportion
to our whole consumiition : of mackerel,
one fourth; of other fish, less. Our lake
fisheries, and those along the southern coast,
are growing, free from competition. The
consumption of fresh fish has largely in-
creased, owing to quicker transportation
and better packing, so that salted fish is
THE FISHERY QUESTION 209
relatively less valuable. This modifies, but
does not change, the question.
Having bought for our fishermen enlarged
fishery rights, is it necessary to maintain for
them a protected market? The conditions
of this problem may change, and, if we leave
ourselves free, we may change our policy
from time to time, but may leave it a purely
internal question. But with reciprocity —
giving free entry of fish for the free rights
of fishing — we make it an affair of foreign
policy ; we give up our liberty of action, and
tie our hands for years.
14
THE BERING SEA AWARD
Yale Law Journal,
1894
THE BERING SEA AWARD
DURING the year 1893 one more instance
was added to a list already consider-
able and honorable, of disputes successfully
settled by special arbitration on the part
of Great Britain and the United States.
The award of the commission, to which
the settlement of five questions relating to
the sealing controversy was referred, was
made in August. It may be of interest
to attempt very briefly to state what was
and what was not decided by this award,
and to characterize the policy of our gov-
ernment and the arguments of our counsel
in view of it.
The facts agreed upon between the parties
were that the fur-seal was largely dimni-
islied in numbers and seemed threatened
with extinction. But there existed an ir-
reconcilable difference of opinion as to the
cause of this, the experts of the United
States, most of them, holding that pelagic
slaughter was accountable for it, while those
213
214 THE BERING SEA AWARD
of Grreat Britain maintained that these un-
happy results sprang from the unscientific
methods of killing on the Pribyloff Islands
practised by the licensees. The question
at issue was this: Has the United States
acquired, either through an exclusive juris-
diction over the waters of the Bering Sea
or through a property right in seals breeding
there, the right to protect them in the open
sea by force, or must such protection spring
from the joint action of the two govern-
ments? And if the latter is true, what
regulations are necessary to accomplish the
purpose? The fact that Great Britain was
willing to join in the reference of this latter
question is an important one. It indicated
clearly, what she had maintained throughout,
though not always with sufficient energy to
overcome the hampering influences of the
British colonies on this continent, that she
desired to preserve the seals from threatened
extinction, that the real question was one of
method, but that she objected to the asser-
tion of exclusive right m the matter by the
United States. This fact should be taken
as the key to her policy. It certainly made
the task of our government simpler, and, as
may appear later, its second policy of doubt-
ful expediency.
With this preface let us see what the actual
award was.
THE BERING SEA AWARD 215
In the first place, it decided that, though
the United States succeeded to all the rights
of Russia in Alaska, its islands and waters,
as acquired by the Seward purchase of 1867,
exclusive jurisdiction over the Bering Sea,
outside of a coast sea stretching a cannon-
shot from land, was not one of them. In
this all the arbitrators concurred save one,
Senator Morgan.
Again, the same arbitrators decided that
Great Britain had never recognized an ex-
clusive jurisdiction on the part of Russia
over the seal-fisheries in the Bering Sea out-
side of the usual territorial waters.
Thirdly, it decided unanimously that the
Bering Sea, as mentioned in the treaty of
1825 (between Great Britain and Russia),
formed part of the Pacific Ocean.
And, lastly, it decided, the United States
arbitrators both dissenting, that this country
has " no right to the protection of a property
in the seals frequenting its islands in the Be-
ring Sea, when the same are found outside the
ordinary three-mile limit." Thus the claim
of the United States to an exclusive right to
protect the Pribyloff seals at sea, whether
arising from jurisdiction or from ownership,
was denied.
Proceeding now to the regulations for
their protection, made necessary by this
denial of the right of our country alone to
216 THE BERING SEA AWARD
deal with the subject, the arbitrators, by a
vote of four to three, the Canadian and both
American members dissenting, laid down the
following scheme :
Sealing shall never be carried on within
sixty geographical miles of the Pribyloff
Islands.
Within the Bering Sea, excluding this
sixty-mile zone, and over a wide stretch of
the North Pacific Ocean (north of the lati-
tude of Port Harford in southern California,
and east of the one hundred and eiglitieth
degree of longitude), sealing shall be allowed
on these conditions only : by sailing-vessels ;
under special license; carrying a distin-
guishing flag ; from August 1 to May 1 ;
using neither nets, guns, nor explosives ;
with provision for reporting number and
sex of the take, and date and place of cap-
ture; and with vague regulation of the fit-
ness of the crews. From these regulations
the Indians were exempted under certain
conditions.
Subject to revision after five years, these
rules will govern the action of the two powers
until they agree to abolish or modify them.
Whether they are fitted to secure their object,
the preservation of the fur-seal, the sequel
only can show. Doubtless in part they are
difficult of determination, e. g., the position
of the sixty-mile limit in foggy weather ; and
THE BERING SEA AAVARD 217
in part they may prove easy to evade. Their
close season is rather short, but they cover
very much more water than the mere Bering
Sea. Much good may fairly be hoped for
from them.
One or two points in the controversy were
not decided. Though suggesting the total
stoppage of sealing on land and sea for two
or three years by both governments, this
was not insisted upon.
The liability of the United States for
damages on account of the captured sealers
seems clear from this award, but no sum of
damages was assessed. This will require
future negotiation. It will be interesting to
see whether nidirect damages for increased
insurance and for loss of prospective earn-
ings will be claimed, as in the Alahama cases.
For damages on the score of loss of prospec-
tive earnings during the pendency of the
arbitration proceedings, the treaty of April
18, 1892, which renewed the modus viveifdi,
itself provides. It must be remembered that
the freedom of the seas is upheld, so that
subjects of third states are not debarred
from hunting seals in any manner they may
choose. Perhaps Russia and Japan and
Mexico, France and Germany, may be per-
suaded to accede to these rules. Otherwise
there may be similar trouble with their sub-
jects, or a transfer of sealing- vessels to their
218 THE BERING SEA AWARD
flags. To include them was Mr. Bayard's
intention in the negotiation undertaken near
the close of the first Cleveland administra-
tion, and Russia had signified her assent.
This leads us to notice how completely the
outcome of the whole matter proves to be on
the lines then followed. Canada blocked the
way, but surely it would have been wiser to
persist in trying to secure what was wanted
by further negotiation, rather than to try
threats and force, to assume a position which
has since proved, and which might have been
seen to be, untenable. This mistaken line
of action has resulted in further destruction
of seal life, in the incurring of considerable
liability for seizures, and in a good deal of
unnecessary friction.
Little stress was laid in the argument of our
counsel upon the claim to jurisdiction over
the Bering Sea. This was found untenable
ground. But the claim to a property right in
the Pri])yloff seals after their departure from
the islands was strongly and ingeniously
urged. Here was an animal, whose skin is the
basis of a considerable industry, with well-
defined habits attaching it to a certain portion
of the United States soil, putting to sea for
the major part of the year, but always with
the intention of returning. On land, the bear-
ing, breeding, and nursing processes were
regulated and protected by a beneficent gov-
THE BEKING SEA AWARD 219
ernment. The killing process, which also
awaited a part of the herd, was properly
restricted. A property right in the seals
existed at the islands ; it did not lapse when
they put to sea, but, like the ownership of
pigeons in the air, of deer escaped from a
preserve, of bees away from their hives,
must be held to survive. The only practical
alternative was extinction. The freedom of
the seas for most purposes, of course, was
admitted to exist ; but when in conflict with
a case like the present, the laws of humanity,
of self-defense, of state necessity, must be
paramount. There were thus philosophical
arguments as to the nature of property in
seals, and a strong humanitarian plea for
their preservation. A precedent for extraor-
dinary jurisdiction over a portion of the high
seas was found in the British regulation of
the pearl-oyster fishery in Australasia.
The counter-arguments of the British
counsel were directed mainly to prove
legally and historically a lack of jurisdiction
over the Bering Sea vesting in the United
States.
One may be allowed to say that the prop-
erty claim was more subtle and ingenious
than sound. It was novel, being for the
first time applied to a free-swimming animal.
Moreover, it does not seem to carry with it
as a corollary the right to protect by force
220 THE BERING SEA AWARD
against the acts of subjects of other states,
in viohition of other and better-established
principles— the freedom of the high seas, and
the immunity from search in time of peace.
It furnishes a powerful plea for the protec-
tion of seal life, rather than legal proof that
one country has the right to undertake this
desirable work single-handed.
In view of the award, a property right in
the seal at sea must be declared non-existent.
The issue is likely to be happier for its fail-
ure to be established. Such an inroad upon
the broad principle of a free high sea, which
this country has been foremost in maintain-
ing, would have been regrettable, and might
have led to other and more serious trouble.
THE PRESIDENT'S MONROE
DOCTRINE
The Forum,
February, 1896
THE PRESIDENT'S MONROE
DOCTRINE
AMONG the fundamental rights of every
- state is that of independence. Now,
independence means the right to be let alone.
In the exercise of its independence each state
deals with every other as it sees fit : it fosters
trade or restricts it ; it quarrels or it makes
friends. This is the rule ; interference in the
affairs of another state is the exception, and
needs to be justified. The necessity of self-
defense is the most common excuse for such
interference. The balance-of -power principle
was based upon this, with the maintenance
of the Ottoman Empire and the Triple Alli-
ance as its latest manifestations. Interven-
tion to preserve the peace of Europe — such
as that which carved a neutral Belgium out
of the kingdom of the Netherlands — was
based upon this. And it was this which
called the Monroe Doctrine into being. Let
us fix firmly in our minds at the outset, then,
the undoubted fact that the declaration of
003
224 THE president's MONROE DOCTRINE
President Monroe was an interference in the
affairs of other states, to be justified only by
the necessity of self-defense.
A new instance of interference in the
affairs of other states has occurred. Presi-
dent Cleveland, in his message to Congress
of December 17, 1895, declares that he con-
ceives it to be his duty to ascertain and
lay down a boundary-line between British
Guiana and Venezuela, using every means
in his power to enforce it. This, of course,
is a threat of war. For this interference the
President states that the Monroe Doctrine is
his warrant. He believes that doctrine ap-
plicable to the case in question, and a failure
to enforce it dangerous to our safety.
Before taking up this question of applica-
bility, however, there are several statements
in the message which invite comment and
criticism, bearing strongly, as they do, upon
the President's general position and argu-
ment. He says: "It may not be amiss to
suggest that the doctrine upon which we
stand is strong and sound, because its en-
forcement is important to our peace and
safety as a nation, and is essential to the
integrity of our free institutions and the
tranquil maintenance of our distinctive form
of government."
Here he clearly puts the question of
enforcing the Monroe Doctrine in the Vene-
THE president's MONROE DOCTRINE 2l25
zuelan boundary dispute upon the proper
ground— the self-interest of the United
States. We are to enforce it— supposing it
to be applicable — because it is to our advan-
tage to do so; because to neglect it would
endanger our peace and safety, our free
institutions and form of government. He
bases his fresh use of the old doctrine on the
original ground, that of self-defense. That
this danger, which justifies our interference,
really exists, I find it very hard to believe.
It may well be asked whether our peace is
most threatened by an unsettled boundary
in South America, or by the message itself.
This question of our self-interest will be re-
ferred to later. What I wish to call attention
to here is that the President admits that his
action is based upon utility, not upon duty.
And yet this warrant alone does not seem
to satisfy him. He wants legal justification.
Accordingly, he argues that, though not i)er-
haps " admitted in so many words to the
code of international law," the doctrine is
yet a part of it, " since in international
councils every nation is entitled to rights
belonging to it ; and when the United States
is a suitor before the high tribunal that ad-
ministers international law, the question to
determine is whether or not we present
claims which the justice of that code of law
can find to be right and valid."
15
226 THE president's moneoe doctrine
This is principally rhetoric. There is, of
course, no "high tribunal," no "code of
international law," except in a metaphorical
sense. If the passage means anything —
which is uncertain — it means that the Monroe
Doctrine is a part of the body of interna-
tional law because it is in harmony with its
ideas of justice. This is an error. The
rules of international law are founded upon
the principles of natural justice, but every-
thing consonant with its ideas of justice is
not a rule of international law. The punish-
ment of the slave-trade as piracy — a just
rule, and one laid down in many treaties-
is a case in point. It is not a rule of inter-
national law, because it has never been made
such by the common consent or agreement
of nations. Even were the premise sound,
the conclusion would therefore be false. In
this contention the President has been led
away by Lord Salisbury, and tries (and
fails) to prove what is not necessary to his
position— that the Monroe Doctrine is a
part of the body of that law which governs
the relations of states. It is a poVinj, not a
/«?(?, either national or international, and its
application to each specific case— granting
that action is justifiable at all — must be
argued on grounds of policy alone.
" The Monroe Doctrine finds its recognition
m the principles of international law, which
THE pkesident's monkoe doctkine 227
are based upon the theory that every nation
shall have its rights protected and its just
claims enforced."
Is it necessary to remark that there is no
such theory? Every state has the right of \
self-defense. That is the first law of nations.
But to say that every state has a right to be
protected and to have its just claims enforced
by some other state is simply ridiculous. No ;
it is more— it is monstrous. It is a plea for
universal tranquillity at the expense of uni-
versal interference and disturbance. It is a >
plea in behalf of the status quo of the world,
while inconsistently it threatens to disturb
that status by enforcing the just claims of
some states against others. The justice of
the claim, it is natural to infer, will be de-
cided by an ex-parte commission.
There are other statements which are
equally faulty,— as where it is said that the
doctrine was intended to apply to every
stage of our national life, which is something
that neither the President nor we can know,—
but I pass to the final sentence.
While deprecating the idea of war — a
war which no one dreamed of until the mes-
sage threatened it— the President exclaims :
" There is no calamity which a great nation
can invite which equals that which follows
a supine submission to wrong and injustice,
and the consequent loss of national self-
228 THE president's moneoe doctrine
respect and honor, beneath which are
shielded and defended a people's safety and
greatness."
Here is a complete mixing up of two
persons: the one submitting to injustice,
namely, Venezuela; and the one losing its
self-respect, that is, ourselves. Or does
the President mean that we have a divine
mission to follow Great Britain or any other
state around and check its aggressions?
Does he mean that we are knights errant, in
search of wrongs to right, of injustice to
repel, under penalty of losing our safety and
greatness? Whichever version we adopt, —
whether we merge our individuality in that
of Venezuela, or tilt at windmills like Don
Quixote,— it may be questioned if our safety
and greatness are thus best preserved.
This is more than mere dialectics. The
President has threatened Great Britain with
war in a certain contingency ; he has thrown
business already into great confusion, and
jeopardized the nation's finances, on the
ground that our Monroe Doctrine is a bind-
ing law, is necessary to the safety of our
institutions and form of government, and is
applicable to the Venezuelan boundary dis-
pute. If these contentions cannot be main-
tained, his action must be condemned as an
offense to a friendly power, and a very seri-
ous blunder.
THE president's MONHOE DOCTRINE 229
His argument for the applicability of the
Moiiroe Doctrine is entitled to fair considera-
tion and is a principal point at issue. It is
as follows:
Speaking of the allied powers, Austria,
Prussia, Russia, and France (England hav-
ing withdrawn), President Monroe said that
" we should consider any attempt on their
part to extend their SJ^stem to any portion
of this hemisphere as dangerous to our peace
and safety. . . . We could not view any
interposition for the purpose of oppressing
them [that is, the South American republics
whose independence we had recognized] or
controlling in any other manner their destiny,
by any European power, in any other light
than as the manifestation of an unfriendly
disposition toward the United States."
The President, with these words in mind,
says: "If a European power, by an exten-
sion of its boundaries, takes possession of the
territory of one of our neighboring repub-
lics, against its will and in derogation of its
rights, it is difficult to see why to that extent
such European power does not thereby at-
tempt to extend its system of government to
that portion of this continent which is thus
taken. This is the precise action which
President Moin'oe declared to l^e ' dangerous
to our peace and safety,' and it can make no
difference whether the European system is
230 THE president's moneoe docteine
extended by an advance of frontier or other-
wise."
The argument is perfectly clear and needs
no elaboration. An unsettled boundary
dispute between a British colony and Vene-
zuela, a disposition to " edge up " on the
latter in the matter of territory, is an at-
tempt to extend the European system to a
sister republic and to control its destiny.
On the face of it this is a possible inference,
but only by emphasizing the letter — not the
spirit and real intent — of Monroe's message,
and by almost a perversion of words. Apply
the same language to our Maine boundary.
The valley of the St. John was disputed
ground. By the Ashburton compromise it
was divided between the disputants. Is it
a proper use of language to say that the suc-
cess of Great Britain in acquiring the coun-
try north of the St. John River to the St.
Lawrence watershed, which we had justly
claimed, " extends a European system to the
United States, or controls its destiny"?
Venezuela's is a perfectly parallel case.
Were she to lose the whole region in dispute
by arbitration or by aggression, in neither
case would a new system be extended over
her, or her destiny be controlled.
But let us look at the real spirit and intent
of the Monroe Doctrine. One hesitates to
repeat its origin, so often has it been related.
THE PEESIDENT'S MONllOE DOCTRINE 231
The allied powers had twice tried their hand
at intervention — in Spain and in Naples.
This intervention was in favor of absolntism,
not of estal)lisluHl government ; for in Naples
a liberal movement was put down, in Spain
a royalist insurrection was helped up. Em-
boldened by success, they then proposed to
apply their new principles to this continent,
and to restore to Spain those colonies of
hers which were trying to gain or had gained
their independence. Then Monroe declared
that such intervention would be regarded
by the United States as dangerous to itself.
He announced a policy. That policy forbade
the substitution of monarchical for republi-
can forms of government on this continent
by European force. It did not forbid the
existence of monarchies here, as Dom Pedro
could testify. It did not forbid any step
which the republics themselves chose to
take, but simply what was forced upon
them. It was the policy which fitted the
liour and the occasion. It was opportunism.
This is shown by the sequel. When Clay,
in Januarj^, 1824, proposed, in moderate
language, a legislative resolution embodying
the President's doctrine, no action was taken
upon it. As the latest authoi'ity, Professor
Snow,^ well says: "The attempt to give a
permanent character to the Monroe Doc-
^ "American Diplomacy," p. 294.
232 THE PKESIDENT'S MONROE DOCTRINE
trine failed. It would appear that Con-
gress, considering the danger past, did not
approve of adopting a general policy of this
kind in the absence of specific cause."
In 1826 came the Panama Congress. A
league of states was proposed, which, among
other things, was " to take into consideration
the means of making effectual the declara-
tion of the President of the United States
respecting any ulterior design of a foreign
power to colonize any portion of this con-
tinent, and also the means of resisting all
interference from abroad with the domestic
concerns of the American governments."
After much debate and delay, delegates
were" appointed from the United States.
They never left this country, and the con-
gress amounted to nothing. Mr. Dana, in
his edition of Wheaton's " Elements of Inter-
national Law," comments upon it as follows : '
" It seemed to aim at introducing, in behalf
of republicanism, the same principle of inter-
ference which had been attempted abroad in
behalf of despotism."
In 1848, Yucatan, in the throes of internal
conflict, offered its dominion to the United
States, to Spain, and to Grreat Britain. Presi-
dent Polk urged Congress to prevent its
transfer to any European power as a colony,
and to reaffirm the Monroe Doctrine. Cal-
houn was a member of Monroe's cabinet in
THE president's MONROE DOCTRINE 233
1823. He was in a j)osition to know what
the Monroe dodarations meant and to what
they were ap})Ueable. Speaking in opposi-
tion to Polk's suggestion, he said: "They
were but declarations— nothing more; . . .
we are not to have quoted on us, on every
occasion, general declarations to which any
and every meaning may be attached." And,
again, he argued that the doctrine must be
limited by the conditions under which it
was spoken, else "it would have involved
the absurdity of asserting that the attempt
of any European state to extend its system
of government to this continent, the smallest
as well as the greatest, would endanger the
peace and safety of our country." The dec-
laration, then, according to Calhoun, was a
policy only, to be followed or not, as inter-
est dictated, and was based upon the right
of self-defense and nothing else.
We approach now the Mexican adventure
of Maximilian. By the power of French
bayonets Napoleon III overturned the re-
public, and had that Austrian prince chosen
emperor by a travesty of an election ; in
short, he committed exactly those aggres-
sions from which the Monroe Doctrine
warned foreigners away. It was a genuine
case of self-defense on the part of the United
States, for the French action was really
taken to check the growth of our commerce
234 THE president's MONROE DOCTRINE
and influence in that quarter. A demon-
stration of force was proper, since the offen-
sive act had been ah'eady consummated.
The hands of our government having been
tied during the Civil War, after the close of
that struggle a force was moved to the
Mexican border. The French support was
withdrawn, and Maximilian fell. Thus was
the Monroe Doctrine reapplied on its origi-
nal lines. This episode proves two things :
first, that the principles announced by Presi-
dent Monroe were not obsolete in 1867, and
are presumably still our guidance; second,
that the doctrine, forty years after its birth,
had met with no enlargement.
Mr. Sewai'd, in a despatch to Mr. Kil-
patrick in 1866, gives his idea of the Mon-
roe Doctrine thus (I quote from the United
States " Digest of International Law," by
Wharton, the official collection of the gov-
ernment) : " The government of the United
States will maintain and insist, with all the
decision and energy which are compatible
with an existing neutrality, that the repub-
lican system which is accepted by any one
of those [South American] states shall not
be wantonly assailed, and that it shall not
be subverted as an end of a lawful war by
European powers ; but beyond this position
it will not go, nor will it consider itself
bound to take part in wars in which a South
THE president's MONROE DOCTRINE 235
American republic may enter with a Euro-
pean sovereign, when the object of the latter
is not the establishment, in place of a sub-
verted republic, of a monarchy under a
European prince."
This history and these comments suffi-
ciently show that it was the substitution of
a monarchical for a republican form of
government, by European forces, at which
the Monroe Docti'ine was aimed. President
Woolseyi concludes his treatment of the
subject with this most applicable sentence:
" To lay down the principle that the acquisi-
tion of territory on this continent by any
European power cannot be allowed by the
United States would go far beyond any
measures dictated by the system of the
balance of power ; for the rule of self-j^reser-
vation is not applicable in our case — we fear
no neighbors. . . . But to resist attempts of
European powers to alter the constitutions
of states on this side of the water is a wise
and just opposition to interference. Any-
thing beyond this justifies the system which
absolute governments have initiated for the
suppression of revolutions by main force."
Such icas the Monroe Doctrine. Any-
thing other than this is the doctrine of
somebody else.
1 "Introduction to thi! Study of luternational Law,'' 6th
ed., p. 56.
236 THE peesident's monkoe doctrine
There is another striking difference be-
tween the old version and the new. Presi-
dent Monroe's message nowhere threatens
force. This fact has been often commented
upon. His strongest expression is that we
should look upon certain actions as evidence
of an unfriendly disi^osition. But President
Cleveland is not so tame. After suggesting
a commission to report upon the Venezuelan
boundary, he says: "When such report is
made and accepted, it will, in my opinion,
be the duty of the United States to resist by
every means in its power, as a wilful aggres-
sion upon its rights and interests, the ap-
propriation by Great Britain of any lands, or
the exercise of governmental jurisdiction
over any territory, which, after investiga-
tion, we have determined of right belong to
Venezuela." But for this threat the message
would have been regarded as a political
manifesto ; with this threat it is a menace to
the peace of two great states.
There is one more consideration,— one
already suggested,— the vital point of the
whole matter. We may grant, though con-
trary to fact, that the Monroe Doctrine is
applicable to the Venezuelan boundary dis-
pute. Proof must still be furnished that a
failure to enforce it would endanger our
peace and safety. If they are not so en-
dangered, we have no ground for interfer-
THE president's MONROE DOCTRINE 237
ence. The Monroo Doctrine declares this.
President Cleveland implies it. The com-
mentators who have been quoted say it.
Does British control over the wild frontier
region in dispute between Venezuela and
Guiana really threaten the safety of the
United States f If so, why and how? We
are entitled to specifications. For, unless
the danger can be shown, an interference
is unwarranted. Does Canada put our in-
stitutions in jeopardy"? Does British Co-
lumbia imperil our form of governments
If not, why does this danger lurk in distant
Guiana I England has as constitutional a
form of government as our own. She is a
good colonizer. She carries order, justice,
capital, into the wilds with her. Are such
developments inimical to our safety ? Is
there anything which can truly imperil our
institutions or which we should truly fear,
except the consequences of our own igno-
rance, our own dishonesty, our own con-
ceit?
At the risk of tediousness, may I gather
again the threads of my discourse! The
Monroe Doctrine is not a law ; it binds us to
no action ; it was a policy devised to meet a
particular case. That case was the forcible
substitution of monarchical for republican
forms of government in American states by
European action. It was an act of self -de-
238 THE PllESIDENT'S MONROE DOCTRINE
fense, on no other ground justifiable. It
was not backed by threats of force.
Mr. Cleveland's doctrine is an entirely
distinct one. Under threats, it attempts to
settle for them the disputed boundary-line
of two friendly states. It ^drtually asserts
the right to pass judgment upon any con-
troversy over territory which an American
state may have with a European one, and to
enforce the decision. It is interference in
the affairs of another state which the neces-
sity of self-defense does not justify. It is a
long and dangerous step toward that assump-
tion of the headship of this continent which
Mr. Olney so tersely describes when he says
that the United States is " practically sov-
ereign" throughout America, and that "its
fiat is law." A glorious and happy future
this, where the responsibilities are ours, the
profit another's; where dreams of empire
under the guise of a protectorate replace
peaceful development; where our own will
is our only law !
SOME THOUGHTS ON THE SETTLE-
MENT OF INTERNATIONAL
CONTROVERSIES
Paper Read June 16, 1896
SOME THOUaHTS ON THE SETTLE-
MENT OF INTERNATIONAL
CONTROVERSIES
EVER since the early years of this cen-
tury the British government has been
attempting to secure a riglit to search for-
eign ships suspected of trading in slaves.
Through diplomatic pressure, and even by
direct purchase, many treaties have been
negotiated for this purpose, and largely by
this instrumentality the slave-trade on its
old lines has been well-nigh abolished. This
is a rare and remarkable, perhaps even a
unique, instance of national humanitarian-
ism. States are not altruistic. From the
nature of their organization they cannot be.
The object of a state's existence is to secure
the greatest possible good for its own sub-
jects, not for the subjects of another. We
do not expect a business corporation, a col-
lege, or even a church, to prefer the welfare
of a similar institution to its own. That
16 241
242 SOME THOUGHTS ON THE SETTLEMENT
would be wrong as well as foolish ; it would
be a betrayal of trust. So it is with the
state. In the present condition of human
society, then, selfishness rather than altruism
is the necessary and fundamental principle
of the state.
Now, since each state will be reaching out
for certain advantages for its subjects, it
may often happen that two states at the
same time grasp after the same advantage
and thus come into conflict. Conflict is the
law of state life and growth. It is as inevi-
table as a law of nature. But conflict, the
striving after the same good, each for its
own, does not mean war. In the early
stages of human society it might have done
so. Now, however, the restraining influ-
ences are numerous and intricate. They
are of two general kinds, humanitarian and
economic. A powerful deterrent is also
found in the growth in importance of the
neutral influence, which discourages war
betAveen its friends because it dislikes to
have its trade disturbed. I need not enlarge
upon these facts; they have come under
the observation of all of us; I wish merely
to bring into juxtaposition the inevitable-
ness of collisions between states and the
remoteness of war nevertheless, to show the
great middle ground whioh we are to at-
temjjt to explore.
OF INTERNATIONAL CONTROVERSIES 243
Where the Niagara Kiver emerges from
Lake Erie it is a broad and sluggisli flood of
waters almost imperceptibly flowing seaward.
But after sixteen miles of gentle current
there come two of tumultuous rapids and then
the fall itself. This is a not inapt image of
the march of events between the breaking out
of an international difficulty and the catas-
trophe of war. The quiet flow of river typi-
fies the diplomatic discussion of the dispute,
long drawn out, perhaps, and devious, but
there is safety in it all. At no point is the
ship of state helpless in the grasp of the
seetliing waters. The rapids are the type
of measures of a different sort, which the
publicists call preliminary to war. These
are retorsion, the law of tit for tat, to pun-
ish particularly some legal discrimination;
reprisals, the seizure of property of the
offender or his subjects in order to make
him realize his wrong and your own sense
of it; and embargo, a form of retorsion,
which, as we see in the events leading up to
the War of 1812, may be laid either to exert
pressure and remedy injustice or avowedly
as a war measure. Even here, in the midst
of the rapids, there are places and moments
when safety is not impossible. Our good
ship may hug the shore, the helmsman may
realize his danger, and the final mad rush
and deadly plunge be saved. The simile
244 SOME THOUGHTS ON THE SETTLEMENT
must not be pushed too far, but it will
answer to bring vividly before us the three
steps of negotiation and amicable arrange-
ment, of preliminary war measures, and of
war itself. With one more subdivision, our
toj^ic lies before us. An amicable interna-
tional settlement may be brought about
through simple and direct negotiation,
through the mediation of a third power,
or through arbitration. Each method has its
virtues. Neither one can be dispensed with.
It is a mistake to emphasize one to the ex-
clusion of the others. To insist upon a due
estimate of the three, to beg you to preserve
a j)roper proportion in your valuation of
them, is my very earnest desire.
When two sensible men quarrel, if sensible
men ever do quarrel, the best thing they can
do is to get together and talk their differ-
ence over. In nine cases out of ten they
can bring about a settlement. The claim is
seen to be unfounded or is softened; the
words or acts misunderstood become clear
and harmless; friendly and rational views
assert themselves. This typifies diplomatic
agreement. Or, on the contrary, our dispu-
tants are suspicious and stubborn. Their
quarrel is a misery to their neighbors. Pres-
ently a mutual friend begs them both to
let him examine their difference and sug-
gest a settlement. He is allowed to do so;
OF INTERNATIONAL CONTROVERSIES 245
both are impressed by the good sense of his
concdusions and agree to abide by them.
That is mediation. The settlement is sug-
gested, not asked for ; it is recommendatory,
not binding. Or, thirdly, and probably, this
kindly neighbor will be asked to be good
enough to go about his business, and the
quarrel grows brisker, with a lawsuit in the
background. But they are practical men and
economical men. A five-hundred-dollar fee
to litigate a fifty-dollar claim appeals to
neither, confident though he is of the justice
of his cause. In this frame of mind they
chance to meet, and agree to refer their dis-
pute to some other neighbor and to accept
his judgment as final. That is arbitration.
The submission is voluntary ; the decision is
final and binding.
But there is one remark to make if we
would exhaust the possibilities. Should one
of our disputants, in the passion of the mo-
ment, reflect upon the character of the other
or threaten his person, up goes the latter's
cane or fist, and the breach becomes a fight.
So a nation resorts to arms to defend its
honor or its national life.
This is a homely but a true simile of the
differences of states and their settlement.
Now, I believe it is accurate to say that the
mediator in international, as in private,
quarrels is apt to be shown the door. This
246 SOME THOUGHTS ON THE SETTLEMENT
is but natural, for he suggests a settlement
.before the contestants have shown that they
desire one. Mediation was unanimously
agreed upon as a means of settling future
difficulties by the signatories of the epoch-
making declaration of Paris in 1856. They
have fought one another since then, more
often than they have mediated. The media-
tion suggested ])y Napoleon III in our Civil
War was declined unheard. Our north-
eastern boundary disjiute was referred to
the arbitration of the King of the Nether-
lands in 1831. Instead of passing upon the
question submitted, he dodged it and recom-
mended a certain compromise line. This
was virtual mediation ; both parties de-
clined it. Without multiplying examples,
we may fairly say, tlien, that mediation has
not proved, and is not likely to prove, a very
useful instrument, and turn rather to the
others described.
Here at the outset let me say, without
hesitation and with all possible emphasis,
that in diplomatic correspondence we have
the simj^lest, the easiest, the most natural,
the best way of settling international con-
troversies. Whatever detracts from the
proper working of this is mischievous. It
is a quiet way. Many and many a question
is raised, discussed, and settled without ex-
citing the attention of Congress, the notice
OF INTERNATIONAL CONTROVERSIES 247
of the newspapers, the passions of the people.
How much better tliis is than to expose the
moves of a state department to the daily
inspection and criticism of the undiplomatic
world ! How much of national excitement,
alarm, hatred, and all uncharitableness might
have been saved these last few months, both
in England and in America, if the Venezuelan
and the Transvaal discussions had been con-
fined to dii3lomatic channels in the good old
Avay, instead of taking both publics into un-
usual confidence !
It is an effective way. Great victories
have been neutralized by it, as in the Con-
gress of Vienna in 1815. Important treaties
have been negotiated by it; commerce has
been doubled or cut off, boundaries laid
down, nations founded, by it. The very
successes of arbitration are largely ascrib-
able to it. It was diplomacy that inserted
the " three rules " in the treaty of Washing-
ton as the standard of neutral duties by
which Great Britain agreed to be judged.
These rules made the Geneva arbitration a
success, but the British case a failure.
It is a friendly way. It is both melan-
choly and ludicrous to read the frequent
criticisms, from certain sources, upon the
conduct of our resident foreign ministers.
If they dine out, and make pretty speeches
afterward (grace after meat), they are " un-
248 SOME THOUGHTS ON THE SETTLEMENT
American." If they observe punctiliously
the forms of diplomatic society, they are
"truckling to an aristocracy." If they ob-
serve ordinary judgment and common sense
in their dealings, they are charged with
" cowardice." If they fail to right the indi-
vidual complaint offhand, they "lack sym-
pathy." The ideal minister, in the eyes of
such critics, is the noisy bully who carries a
chip on his shoulder and has designs on the
tail of that beast or bird which symbolizes
the country of his residence. This is not a
fancy sketch, and the existence of tihis ideal
of conduct is most unfortunate. Ambassa-
dors are the friendly representatives of their
monarchs or executives, resident in a foreign
state in order to cultivate and maintain
peaceful relations with it.
Whatever interferes with their capacity
for this makes them undesirable. When a
man has an unfriendly feeling for another
country, he is persona non grata to it ; he is,
moreover, useless to his own government.
If a man be a boor in manners, a meddler
in politics, disagreeable instead of affable in
his personal relations, he cannot successfully
carry out the object of his mission. When,
as is the case with the United States, much
of our diplomacy is carried on directly by
the Department of State, this cultivation of
international good will becomes the chief,
OF INTERNATIONAL CONTROVERSIES 249
almost the sole, reason for the maintenance
of a resident at a foreign court.
And, finally, it is a responsible way. Here
is where the duty of adjusting foreign differ-
ences belongs. If capable of solution, in
nine cases out of ten diplomacy can and
will and does solve them. Such solutions
stir up no feeling, create no war scares,
leave no scar behind. They imply no inter-
national contest, while even so peaceful and
satisfactory a method as arbitration does
imply contest. It follows, therefore, as it
seems to me, that our State Department and
our diplomatic service and methods should
be strengthened in every possible way. It
should be a service, in fact, trained in law
and language, based upon fitness and upon
promotion from within, guided by experience,
able to compare in character with that of
any other country. It follows, also, that
whatever tends to weaken the diplomatic
method of settlement is to be deprecated.
Here lies a valid objection to any permanent
court of arbitration or even to any perma-
nent arbitral system which will work without
diplomatic adjustment. For, the moment
such a court or system is created, the sense
of responsibility of the diplomatic department
will be lessened. This is inevitable, for re-
sponsibility is proportioned to the possession
of power and the consequences of inaction.
250 SOME THOUGHTS ON THE SETTLEMENT
When any minor question between states,
at the instance of either, could, be sent to a
court for settlement, their departments of
foreign affairs would take very little interest
in effecting an earlier adjustment.
To strengthen the settlement by arbitra-
tion independent of diplomacy would there-
fore imply a weakening of the settlement by
diplomacy. This is not to discredit the
arbitration principle ; it is only putting it in
its proper place, locking hands with the
diplomatic principle, and not trying to work
independently of it.
What is the nature and what are the rules
of international arbitration! This is our
next inquiry. When the diplomatic repre-
sentatives of two disputant states have failed
to reach an agreement from within, they
may call in outside aid. The question in
dispute is accurately stated; the choice of
arbitrators is made; their time and place
of meeting, their form of award, the rules
which shall govern them, are arranged for.
Read any treaty which has created such a
tribunal, and you will see how minutely it
attempts to provide for every contingency.
Where a detail is not thus laid down, it is
governed by the rules of the Roman law.
Thus if a unanimous award is not necessary
under the treaty, a majority award is bind-
ing, because the Roman law so provides.
OF INTERNATIONAL CONTROVERSIES 251
This very point came up in the Halifax
fishery award.
Certain defects will vitiate the decision of
a board of arbitration. If it fails to pass
upon the exact questions submitted; if it is
unintelligible ; if it is inii)ossible of execution
or tainted with fraud— in all these cases the
award is not binding.
It will be convenient here to sum up the
arguments for arbitration as a means of set-
tling international disputes, and the objec-
tions to it, as well.
It is a peaceful substitute for the very
great evil of war. Taking a dispute out of
the hands of interested parties who have
failed to agree, it refers it to disinterested
parties, so constituted that there must be an
agreement. It has been tested, and it works.
Under a definite agreement to arbitrate,
rumors of war would cease, because the ex-
pectation of arbitration would take their
place in men's minds. On the other hand,
arbitration leaves a sting, a sense of being
cheated, in the mind of the loser. It cannot
settle all disputes, for those which involve
the honor or the existence or the policy of
the state are incapable of submission. This
is almost universally admitted. A good
illustration may be found in the Venezuelan
imbroglio. The question of boundary be-
tween Great Britain and Venezuela is a
252 SOME THOUGHTS ON THE SETTLEMENT
question of fact; it can be and should be
arbitrated. The question whether the in-
terests of the United States are seriously
involved in an attempt by a European power
to extend its territory in this hemisphere is
a delicate, almost intangible, question of pol-
icy, and quite unsusceptible of settlement in
this way.
Again, it is a surrender of the sovereignty
of the state. This is not a serious thing
where the end can be seen from the begin-
ning. Where, however, a permanent system
is entered upon, and whole classes of cases
are to be tried in this way, it is a serious
thing. It means that, unless a breach of
faith is committed, the state has surrendered
the right of war, one of the highest rights of
sovereignty, even if a matter comes up which
is deemed vital. Thus that first law of na-
tions, as of individuals, the right of self-de-
fense, is lost.
Comparing these considerations with one
another, I think it is clear that arbitration
is an expedient of the highest value for de-
ciding certain questions between states, but
one which must be used judiciously and
under restrictions. Questions of fact, of
damages, — speaking generally, questions of
a business nature, — are suited to this kind
of settlement, and these will largely outnum-
ber the others. But just as it has been urged
or INTEENATIONAL CONTROVERSIES 253
that diplomatic methods of settlement should
be improved by improving the machinery,
so perhaps can the method by arbitration be
bettered.
This brings us to tlie consideration of its
scope and its details. These are the ques-
tions which fill men's minds to-day. When
we speak of arbitration as it now exists, we
mean the ai^plication of that principle to a
single definite point, the decision to be made
by a judge or body of judges appointed for
the purpose. But when we dream of the
arbitration of the future, we picture to our-
selves a i^ermanent court of unblemished
character and the highest dignity, which
shall be always ready to pass upon all ques-
tions submitted, and to which most questions
shall be submitted.
I do not say that this is only a dream, but
perhaps we do not realize the tremendous
step from the one method to the other, and
the very serious difficulties in the way. The
believers in the new system generally make
up their court out of an equal number of
the highest judges of the nations engaging.
Some believe that no further provision need
be made for a tie vote; others would dis-
solve a tie by giving two votes to some one,
perhaps to a judge of each nation alternately.
But the plan depends upon a belief that na-
tionality would be sunk, and that partizan-
254 SOME THOUGHTH ON THE SETTLEMENT
ship would be triuinj^lied over by the judi-
cial instinct. A justice of the Supreme
Court of the United States has testified to
this belief. I do not believe that he knows
the secrets of his own heart. When the
Tilden election commission w^as chosen, cer-
tain of its members w^ere drawn from the
Supreme Court. Every member, every
judge, voted according to his political bias.
In the various causes celehrcs of arbitration,
in all vital points, the judges drawn from
the nations involved have voted for their
own cause and have been its most efficient
pleaders. Many a question between Great
Britain and this country has been referred
to a joint commission, but that commission
has rarely failed to divide, in matters of
law and matters of fact, upon the lines of
nationality. The idea of foreign judges
does not seem to appeal to the advocates of
this permanent court, but I believe such a
make-up to be preferable.
And yet here, too, we find difficulties.
We can perhaps answer for their impar-
tiality at the outset, but who can guarantee
the permanence of this quality, or, of the
friendship of their native states'? A fre-
({uent result of arbitration is the belief that
a certain member of the court has been
unfair. In a special case, where the court
has been immediately dissolved, this is bad
OF INTERNATIONAL CONTliOYEESIES 255
enough. But with a permanent court,
wliere the dislike or distrust of the man
might destroy confidence in all his subse-
quent decisions, it would be infinitely worse.
Besides such difficulties as these in the
make-up of the court, there are other and
weightier ones.
It must administer international law, with
its many uncertainties, a law which has
never been codified, and cannot be, in the
present state of opinion, so diverse are the
interpretations of the jurists and the politi-
cal interests of different states. It is easy to
say in reply that such a court would quickly
frame its own code by interpretation and
decision. It might attempt this, if the los-
ing state permitted. But would not the
novelty of a rule or its interpretation be a
valid ground of appeal from the decision?
The building up of a code would hardly be
a consolation to the defeated litigant. Yet
his condition of mind and will must never
be lost sight of. For it must not be forgot-
ten that the sanction of the court is to be
found in the popular backing and approval
of its actions. When its decisions have to
be enforced by war, it is a failure. When
its decisions do not command the confidence
of both disputants, its usefulness is gone.
We have not yet reached a golden age where
love is law, where suspicion and selfishness
256 SOME THOUGHTS ON THE SETTLEMENT
have fled away. This is by no means the
whole ease against a permanent court of
arbitration. I am merely trying, somewhat
disjointedly, to point out what a very violent
change from the present usage it involves,
and what serious objections there are to it.
But let us recur to a question already put,
and ask whether the principle of arbitration
cannot be enlarged, but in some other way,
and without so largely dispensing as a per-
manent court would do with the diplomatic
method. Cannot a permanent system of
arbitration be devised, instead of a perma-
nent court, which shall make constant use
of diplomacy and avoid the difficulties de-
scribed? In my opinion this is the true
course to pursue. We have a system, or at
least a usage, at present, which will work,
which has rarely failed of success when tried,
and which is, in truth, the basis for the cur-
rent demand for something wider and better.
Broaden and perfect the present usage, then,
and retain in it the resources of diplomacy,
rather than throw it aw^ay and jeopardize
the arbitration principle by adopting a new
and untried scheme. The time seems ripe
for such an experiment as this. Let Great
Britain and the United States define by
treaty those classes of cases which they
can safely submit to arbitration. As being
only an experiment, the treaty arrangement
OF INTEllNATIONAL CONTKOVERSIES 257
should be made for a limited time, say ten
years, with extension thereafter in case
neither state wishes to terminate it. When-
ever a question under the treaty arises, pro-
vide that a certain interval shall elapse
before further action is taken. If an agree-
ment has not been reached within this time,
bind the state departments of the two coun-
tries to refer the matter to a special board of
arbitration, whose make-up and compensa-
tion, the conditions of its award, and the
law applicable to that award, if need be, in
case other than questions of fact are to be
passed upon, shall be laid down through the
channels of diplomacy.
Such a system as this preserves the volun-
tary element which is the distinctive mark
of arbitration. By it the board can be
adapted in its character to the nature of
the question submitted. By it, too, the im-
partiality of the judges can be always more
nearly preserved. We retain the possibility
of settlement through diplomacy, but upon
failure of this method within a reasonable
time there succeeds the certainty of a trial
by arbitration to check the outburst of popu-
lar passion and threatenings of war. So,
too, we can test the wider development of
arbitration, yet without undue danger of its
breakdown. We can try in a single case a
board made up of the judges of the highest
17
258 INTERNATIONAL CONTROVERSIES
courts and determino its likelihood of impar-
tiality, remembering, however, that such
judges have but a mortal capacity for toil,
and that their time is already fully occupied.
Such a plan I believe to have the possi-
l)ility of success ; a permanent court I believe
would be doomed to failure. But let us
never forget our sense of pi'oportion. Put
the power and the duty to settle internation-
al disputes where they belong, in the hands
of the diplomatists, and strengthen those
hands. Upon their failure try arbitration,
and broaden, fortify, popularize arbitration.
For those questions which involve the honor,
the policy, the very existence of the state,
reserve that supreme exercise of its sover-
eignty, the right of war. War is a tremen-
dous waste, a crime against humanity, a
great evil, but not the greatest of evils.
SOME COMMENT UPON THE
ARBITRATION TREATY
The Forum,
March, 1897
SOME COMMENT UPON THE
ARBITRATION TREATY
REDUCED to its simplest terms, the ar-
' bitration treaty which has been signed
by representatives of Great Britain and the
United States provides as follows :
There shall be created three tribunals. To
one or more of these tribunals three classes
of questions shall be referred.
The make-up of the tribunals, their juris-
diction, and the classes of questions to be
submitted, may be seen in the table on the
next page.
The objections commonly urged against
any general arbitration agreement between
states are of three sorts: (1) Those based
upon the weakening in efficiency of the
diplomatic methods of settlement ; (2) those
springing from the impossibility of submit-
ting all questions to arbitral settlement ; (3)
those inherent in the make-up and working
of the tribunal as ordinarily devised.
Let us examine these objections, and see
2G1
262
SOME COMMENT
how the treaty laid before the Senate for
consideration succeeds in meeting them.
Diplomacy is the natural, friendly, effec-
tive, and quiet method of settling interna-
tional disputes. Whatever tends to weaken
its efficiency is to be deplored. The pre-
sumption should always ])e that a difference
will be arranged by diplomacy, not sub-
TRIBUNAL A.
TRIBUNAL B.
TRIBUNAL C.
QUESTIONS TO
BE SUBMITTED.
Tliree members:
one chosen by
each state, with
provision for
choice of third.
Five members:
two named by
each state, with
provision for
choice of fifth.
Six members :
three higher
judges from each
state. No provi-
sion for breaking
a tie.
I.
Pecuniary
claims under
£100,000 in
value.
Original and
final jurisdiction,
award by majority
vote.
n.
Pecuniary
claims over
£100,000 in
value. Also
claims growing
out of rights
"under treaty
or otherwise,"
but not terri-
torial.
Original juris-
diction, which is
also final if by
unanimous vote.
Jurisdiction up-
on appeal, if A
does not render
unanimous award.
Majori ty vote
final.
III.
Territorial
claims such as
relate to servi-
tudes, naviga-
tion, access,
fisheries, boun-
daries, etc.
Original juris-
diction. Award
final if by vote of
five to one, or if
by majority vote,
and no appeal is
made witliin three
months. If pro-
tested, mediation
to be tried before
hostilities.
UPON THE AllBITlUTION TREATY 2G3
mitted straightway to aii)itration. Imagine
the standing of a business house which made
a practice of collecting its bills by legal pro-
cess before their friendly presentation and
adjustment through correspondence ! Arbi-
tration is sought after as a substitute for
war, not as a suljstitutc for diplomacy. It
has been feared that the existence of a tribu-
nal ready to settle international differences
would greatly lessen the potency of the
diplomatic method. Diplomatists would
feel less responsibility for, and take less
interest in, a matter which, in all likelihood,
was soon to be transferred to other hands for
settlement.
Thus the amount of international litiga-
tion would largely increase. Thus the etfi-
ciency of processes which now arrange nine
tenths of the differences between states,
without causing a ripple of excitement,
would be seriously weakened. Arbitration,
like all other litigation, arouses hard feeling.
It is infinitely better than war; but it is
much inferior to diplomacy, because less
flexible and with no capability for com-
promise or adjustment.
In some measure the arbitration treaty
recognizes this, though not so fully as could
be wished. In its first article, the contract-
ing parties agree to submit to arbitration
"all questions in difference between them
264 SOME COMMENT
which they may fail to adjust by diplomatic
negotiatiou." Here the presumj^tion is ex-
pressed that diplomacy will have been tried.
That is right and wise. But tliere is an under-
lying presumption that diplomacy will fail.
That is a fault inherent in the arbitration prin-
ciple. Possibly it might be minimized by ex-
cluding the first class of differences, the minor
claims, which neither country would fight
over in any case. Or where individual, rather
than national, claims are being pressed, the
cost of arbitration could be deducted from the
amount recovered. Or a certain delay might
be compulsory, before recourse was had to a
treaty tribunal, during which the state de-
partments must try to effect a settlement.
Perhaps in some such way as this the too
free use of the international tribunal could
be checked, and the methods now effectively
employed could be preserved.
It has often been urged that no nation can
afford to tie its hands in advance by sub-
mitting to arbitration all possible questions,
including those wdiich involve its national
policy, its national honor, its national life.
To do so would be a surrender of national
sovereignty in its highest expression, a
waiver of that right of self-defense which is
the first law of nations. This is fully recog-
nized by the treaty. It specifies the classes
of questions which shall be submitted. These
UPON THE ARBITRATION TREATY 265
are : pecnniaiy claims ; differences involving
rights under treaty or international law;
territorial claims. By inference, all other
questions are held to be incapable of sub-
mission, those involving national policy
among them. So that we may direct the
search-light of the Monroe Doctrine at will
upon this continent ; we ma.v declare British
aggression upon Patagonia dangerous to our
safety and free institutions, without the risk
of being brought to book before a court of
arbitration.
On the other hand, the treaty does re-
quire the submission of just those differ-
ences the like of which the two nations have
already so often arbitrated. Fishery dis-
putes, as at Halifax; pecuniary claims, as
at Geneva; boundaries, as in the San Juan
case — all such must be referred to the new
tribunal, if not otherwise settled, and very
properly. They are questions of law, or
fact, or treaty interpretation, usually capa-
ble of this kind of settlement. A few cases
perhaps remain where national policy and
treaty obligations are so intermingled that
they ought not to be, as they seem to be,
included among the differences to be finally
decided by Tribunal B. For example, under
the Clayton-Bulwer treaty, the United States
binds itself to abstain from exclusive control
over an isthmian canal in Central America;
2GG SOME COMMENT
nevertheless tlie prevalent national belief is
that such exclusive control is our prerogative
and our policy. Here a question of policy,
under the guise of a right under treaty, might
be referred for final decision. For myself,
I am strongly inclined to the opinion that
the proper status of any canal across Cen-
tral America will be found to be its neutrali-
zation guaranteed by the commercial powers.
But its disposition is certainly a question of
policy open to argument ; and very likely the
Senate may withdraw this particular case
from the operation of the treaty.
Turn now to the third class of objections
to any permanent arbitration agreement—
those relating to the framing and working
of its machinery. It is here that the treaty
deserves most praise and confidence. It is
an ingenious, and should prove a successful,
attempt to substitute the judgment of a
court for the self-pronounced judgment of a
people. It does this, not by promising an
award, but by furnishing a trial. All pe-
cuniary claims are, it is true, to be finally
disposed of by it. The same is true of dif-
ferences growing out of rights whether under
treaty or the general law of nations. But
a majority of the serious cases which may
arise, which are called territorial claims by
the treaty, and include questions of access,
navigation, fisheries, boundaries, — in fact,
UPON THE ARBITRATION TREATY 267
most of those rights for which a nation
would go to war,— must go to trial, ])ut
with no certainty of a final judgment.
Through this failure to insure a binding
verdict, i^aradoxically enough, the treaty is
strong where it seems to be weak. It is
safe, because it does not attempt too much.
It bids fair to be effective, because it does
not promise efficiency. It is a hopeful
attempt at arbitration, although, technically
speaking, not arbitration at all; for the very
essence of arbitration lies in the finality of
its award, ^^^lat it offers is a refuge from
popular excitement— the chance of a settle-
ment, the certainty of a breathing-spell.
What it does not offer is a binding award on
all the questions between its members, to fit
like a strait- jacket upon the body politic and
tempt it irresistibly sometimes to break the
bonds. Notice the procedure in the third
class of cases. If the award is unanimous
or made by a vote of five to one, it is final.
But if made by any less majority it may be
protested, and is " of no validity." The next
step is a recourse to mediation, which is the
offer of good advice, with no obligation to
take it. Then diplomacy may try its hand
again. Finally, the question may be put to
the arbitrament of war.
In this chain of processes a final award is
reached, if the matter in dispute is clear to
268 SOME COMMENT
an overwhelniing majority of the tribunal.
But the certainty remains that if the question
has elements of doubt in it, two out of the
three judges who comprise each half of the
court can and will prevent a verdict. For
in matters essential yet uncertain they will
retain their national bias and point of view.
Nationality and human nature are stronger
than the judicial temperament. It has
always been so ; it is even desirable that it
should be so. We may safely conclude that
the framers of the treaty relied upon this
fact in inserting this provision, and did so
to prevent the infinite risk of a Ijreakdown
of machinery, in case a beaten litigant re-
fused to accept the award. They rested
upon the presumption of peace which it
contains, not upon the strength and com-
pleteness of its procedure.
Criticism there may be of this and that
detail. No code of international law exists
to guide the tribunals. The judges who are
to form Tribunal C are already overbur-
dened. The method of naming the umpires
may prove clumsy or bad. Still, such ob-
jections as these are overshadowed and out-
balanced by the strong probability that the
plan would work. It would prevent war
scares, because the popular mind, always
ready to take fright or to take fire, would
be conscious of various and lengthy pro-
UPON THE AKBITRATION TllEATY 269
cesses which must precede war; and the
]^opnlar interest soon tires. It would tend
to prevent war, because it insures a trial of
most differences, gathers light upon them
from several quarters, prevents action in
hot l^lood, and presupposes peace. Being
an experiment, to last for five years only
unless proved satisfactory, it is a working
basis upon which to build. It does not im-
peril the arbitration principle by attempting
too much. It is a step — a considerable step
—toward a better order of things.
When mountain-climbers reach ice they
put on the rope, and, cutting step after step,
slowly and carefully mount to their goal;
they do not risk all by a hasty scramble up
the incline.
Here are two nations, in speech, in laws,
in blood, in institutions, in ideals, akin.
Together they climb the slippery slopes of
the Mount of Lasting Peace and Brother-
hood. With this treaty they rope them-
selves together. The step-cutting has be-
gun. The ascent is slow ; but if it be made
sure, who can venture to set a limit to their
upward progress ?
THE UNITED STATES AND THE
DECLAEATION OF PARIS
Yale Law Journal,
February, 1894
THE UNITED STATES AND THE
DECLARATION OF PAEIS
THERE is a possibility that the acces-
sion of the United States to the decla-
ration of Paris is shortly to be urged upon
the Secretary of State. In such event the
reasons favoring this action may well be
worthy of our study. The articles of this
important international compact, made in
1856, at the close of the Crimean War, were
as follows:
" 1. Privateering is and remains abolished.
2, The neutral flag covers enemy's goods,
with the exception of contraband of war.
3. Neutral goods, with the exception of con-
traband of war, are not liable to capture
under enemy's flag. 4. Blockades in order
to be binding must be effective, that is to
say, maintained by a force suflicient really
to prevent access to the coast of the en-
emy."
This declaration was to be binding only
as between the parties to it. Spain, Mexico,
18 273
274: THE UNITED STATES
and the United States are the only commer-
cial states of importance which have thus
far failed to give in their adhesion, the two
former being restrained by the refusal of the
latter. The action of the United States was
thus exj)lained : The policy of this country
was against the maintenance of a large navy.
To supplement that navy in the work of
commerce-destroying and of enforcing the
rules of naval war against neutral trade, the
issue of letters of marque might be neces-
sary ; so that unless the declaration were so
amended as to exempt all innocent private
property, neutral or hostile, from capture,
the accession of the United States was de-
clared impolitic. This " Marcy amendment "
was not carried, owing to the influence of
Great Britain.
The question of accession again came up
during the first year of the War of the Re-
bellion. Dropping this Marcy idea, Mr.
Seward was willing to accede uncondition-
ally. The obstacle came from France and
particularly from Great Britain. For Mr.
Seward was warned that the accession of his
country could have no retroactive effect to
"invalidate anything already done," could
not be held, that is, to apply to the hostili-
ties already broken out between North and
South; with this limitation understood it
would be accepted. Mr. Henry Adams, in
AND THE DECLAIUTION OF PARIS 275
an interesting essay/ enlarges upon the
duplicity of Lord Russell in considering and
replying to this offer. But to my mind, for its
failure, Mr. Seward was not wholly blameless.
For, as always in the early years of the war, he
was proceeding on the assumption that the
United States could not, and that foreign
powers must not, recognize the belligerency
of the South. ISFow, in point of fact, the
government of the North had itself recog-
nized Southern belligerency, by refusing to
punish the crews of Southern men-of-war
as pirates in spite of the decision of the
court (Prize Causes, 2 Black, 635), and by
establishing a blockade of Southern ports,
which is a war measure. Holland, France, and
Spain, as well as Great Britain, had already
made formal recognition of the belligerency
of the Confederate States. President Davis
had been asked to bind his country to ob-
serve the rules of the declaration, and had
declined.
Under these circumstances, why was it not
reasonable to impose as a condition, upon a
convention of accession, the proviso that the
said accession should be prospective merely
and should not be held applicable to the
struggle at hand ! But such a proviso con-
flicted with that false and hampering theory
that the North was not at war with a bellig-
1 "Historical Essays," by Henry Adams (Scribner, 1891).
276 THE UNITED STATES
erent power, and the offer of accession was
withdrawn. This was more than thirty years
ago. Now, however, in a time of peace, with
no ulterior motives possible, the question of
accession is likely to be again brought for-
ward, and can be argued on general grounds.
The object of the present paper is to make
very briefly a plea for such action.
As the article relating to paper blockades
has been formally advocated by this country,
it may be left out of consideration. The
three other provisions of the declaration may
be arranged in a balance-sheet, somewhat as
follows :
The United States
in account with
The Signatories of the Declaration of Paris.
Dr. Cr.
For adoption of rules that
(1) Free ships make free goods.
(2) Enemy sliips do not infect
the neutral goods on board.
E. & O. E.
For renunciation of the right to
commission privateers.
The following propositions are laid down
without argument as our premises :
1. The interests of the United States are,
on the whole, on the side of neutral rather
than of belligerent rights.
2. The two rules on the debtor side of the
balance are already adopted by the policy of
the United States.
3. If the United States should engage in
war, the chances are largely that such war
AND THE DECLARATION OF PAKIS 277
would be with a power weaker than itself in
its war navy and naval resources.
The history of the American carrying-
trade during the Napoleonic wars is a strik-
ing illustration of the value of neutral privi-
leges. Although our ships had no right to
shelter enemy goods under their neutral flag ;
although the doctrine of occasional contra-
band enforced by Great Britain, sometimes
softened into preemption, greatly interfered
with our chief article of export, provisions ;
although the restrictive decrees of each bel-
ligerent, culminating in the utterly unjust
and unlawful paper blockades declared by
both, at times threw our trade into con-
fusion, nevertheless American tonnage in-
creased thirty, sixty, even one hundred,
thousand tons per year.
If the economists are correct, we are prob-
ably now approaching a time when our
vanished foreign carrying-trade will revive.
Cheaper production will enable our manu-
facturers to exchange commodities with
foreign countries more freely. Cheaper
ships, operating under less repressive ship-
ping and port regulations, will reach out for
their share of our own increased commerce
and of the commerce of the world. What
does such trade need in view of the chances
of war between our friends ? It needs, first,
fixed and stable conditions; second, the
278 THE UNITED STATES
greatest freedom possible, the least possible
iuterfereuce from the exercise of belligerent
rights. Now, very little argument is required
to show that in these respects the neutral
shipper is better off under the declaration
than the neutral shipper without it. Sup-
pose war between Grreat Britain and France.
Dutch or Danish ships, under the declara-
tion, could carry safely French goods not
contraband nor bound to a blockaded port,
while on a United States ship those same
goods, being unprotected by the declaration,
would be liable to capture. Under such
circumstances French goods would seek
other flags than ours. And, again, since
France until the declaration condemned
neutral goods sailing under an enemy's flag,
and since the declaration binds its signato-
ries only as relates to one another, every ton
of American wheat, every bale of American
cotton, borne on an English ship would be
subject to capture by French cruisers. This
state of things would be similarly true in
the event of any war between our friends
unless a prior treaty with them forbade.
We have treaties which lay down the prin-
ciple of " free ships, free goods," with Spain,
Russia, Prussia, Italy, and Sweden alone of
important commercial powers. Probably
France alone would claim the right to con-
demn our goods for seeking carriage on her
AND THE DECLARATION OF PAllIS 279
enemy's ships. Uucler the principles stated
it is clear that our neutral ships could not
compete on even terms with other neutral
ships for the carrying-trade. And if France
were a belligerent our goods might be sub-
ject to great inconvenience and even danger.
The rights of the declaration, then, are of
vital importance.
Turn now to the credit side of the account,
and estimate what we should be obliged to
surrender as the equivalent for these bene-
fits, the right to commission privateers. It
is the clinging to this right which has
hitherto stood in our way.
It is not a little curious that, while insist-
ing upon the right to issue letters of marque
to subjects of other countries, the United
States forbids its own subjects, by statutes
of 1797 and 1816, to take part in the equip-
ment or manning of privateers to act against
nations with which it is at peace. While
retaining this demoralizing form of warfare,
it denies to its citizens the right to share
in its profits when other nations employ it.
From this fact may fairly be drawn the
inference that privateering is a trade of
which this country in the abstract disap-
proves. More than this, the United States
has negotiated eleven treaties which recipro-
cally contain the same prohibition.
The value of privateering is still fm^ther
280 THE UNITED STATES
narrowed when we consider what it accom-
plishes. As the distinction in build and
equipment and armament between men-of-
war and other ships grows more marked,
the privateer grows less important in waging
war. War in the sense of an exercise of
force upon armed ships is not really the
object of privateering. Its reason for being
lies in its -capacity for attacking an enemy's
commerce, which, while primarily enriching
the privateersman, incidentally benefits the
state commissioning him. He may also,
though less readily, be useful in enforcing
the laws relating to the carrying of contra-
band and to blockade. But, to-day, war
navies are themselves built for a twofold
purpose— the heavy armored ships for fight-
ing, the fast protected or unarmored cruisers
with large coal-capacity for preying upon
commerce and enforcing belligerent rights
against the neutral. The rise of ships of
this latter class, virtually doing a privateer's
work, detracts from the necessity for his
existence. His importance is lessened by
still another consideration. The value of
privateering should be estimated not only
absolutely but relatively. It helps the
weaker naval power relatively more than
the stronger. Its abolition was the reason,
for instance, which induced Great Britain,
the strongest of all naval powers, to consent
AND THE DECLARATION OF PARIS 281
to allow the neutral to carry her enemy's
goods free under his flag. This surrender
of a right consistently exercised by Great
Britain since the time of the Consolato del
Mare was a very great concession.
Granting the premise that the United
States is more likely to be at war with a
power weaker in naval resources than itself,
than with one stronger, it follows that priva-
teering, considered apart from any equivalent
gained in return for its abolition, would be
more valuable to other countries than to us.
The safety of our own commerce is more
important than the destruction of the com-
merce of such an enemy.
If these arguments are sound, the United
States is in this position : A very valuable
privilege, involving a freedom of neutral
trade which would put it on the same foot-
ing with the most favored nations, is offered
it in exchange for the abolition of priva-
teering.
It disapproves of privateering in the ab-
stract. It forbids its citizens to engage in it
when neutral. It has not itself employed
privateers for two thirds of a century. It
has ships which can do a privateer's work
better than a privateersman, and with fewer
evil results. Privateering would, by the
doctrine of chances, help our enemies more
than ourselves. In itself considered, the
282 THE DECLAEATION OF PAEIS
retention of the right to commission priva-
teers is not valuable to the United States.
When the equivalent gained by its abolition
is kept in view, the argument for accession
to the declaration of Paris is overwhelming.
The freedom from capture of all innocent
private property at sea, even an enemy's, is
the next step in the neutral program. Our
accession to the declaration should help to-
ward this. Our accession should be coupled
with that of Spain and Mexico. A foreign
war affecting American commerce may break
out at any time and with scant warning. If
our accession to the declaration is a proper
step, it should be taken noiv,
[Note.— The fact that neither Spain nor
the United States in the war now in progress
has seen fit to employ privateers, that both
have conformed in their usage to the rules
of the declaration of Paris, may be men-
tioned as confirming the view here taken.]
INDEX
INDEX
Absolutism, 231
Acapnlco, the Barrundia affair
at, 177
"Acapulco," tbe case of Gen-
eral Barrundia and the, 177-180
Adams, Henry, on the Declara-
tion of Paris, 274, 275
Adams, John C^uincy, denies
Russian jurisdiction over Be-
ring Sea, 174
Africa, land-grabbing in, x, 1
Aggressive policy, an, 15, 16, 18,
188-191
" Alabama," the case of the, 38-
40, 46, 196, 217, 247, 265
Alaska, acquisition of, 11, 107,
173-176: the waters of, 173-177;
the sealing question, 215
Aleutian Islands, the seal-fisher-
ies, 171
Alexandria, bombardment of, 138
" Allianca," the case of the, 31
Alsace-Lorraine, 104, 105
Altruism, not an attribute of
states, 241, 242
America, non-interference of Eu-
rope in affairs of, 4, 5 ; the
headship of, 10, 16, 73, 156, 190,
238; the expulsion of Europe
from, 75
" America for the Americans," 4
American temperament, the, 8, 9
" Amy Warwick," the case of the,
27
Arabi Pasha, outbreak by, 138
Arbitration, 9, 21. 56, 67, 213, 230,
244-247, 249-258, 261-269
Armed neutnility, the first, 85, 86
Armenia, Amcricaii losses in, xi
Army, the United .^tates, 16, 17,
99, 189
Arthur, Chester A., on the recog-
nition of the Peru\'ian govern-
ment, 116
Asylum, the right of, 179, 180,
184-186
Atlantic Ocean, American inter-
ests in the, 108
Atrato, proposed canal route at,
142
Australasia, the pearl-fisheries
of, 219
Austria, signatory to Suez Canal
agreement, 141 ; the Monroe
Doctrine and, 229
Autonomy, Cuban, 65
Balance of power, 106, 223
Ballot, the purification of the, 189
Balmaceda, General, tiie case of
the " Itata," 180-186 ; defeat of,
183
Baltic league, the, 85
"Baltinioic," the, affair in Val-
paraisii, 9, 186-188
Banking sytstem, the, 12
Barrundia, General, the case of,
6, 177-180
Bayard, Thomas F., sealing pol-
icy, 2, 218
Belgium, neutrality of, 160, 223
Belligerency, the recognition of,
25-34, 62. See also lNsr]!(;ENTS
Belligerent interests subservi-
ent to neutral interests, 156
Bering Sea controversy, 6, 170-
177, 213-220
Blaine, James G., the sealing
jiolicy of, 2; on the United
States' Hawaiian policy, 126;
Panama Canal policy, 146 ; on
the Clavton-Bulwer treaty, 146,
162, 164
Blockades, 28-32, 86, 88, 92, 95, 182,
273, 275-278, 280
Blount, Commissioner, action in
Hawaii, 119
Bolivia, war with Chile and
Peru, 116
Bounties on fish, 197
British Columbia, the seal-fish-
eries, 171
285
286
INDEX
Britisli Guiana, the boundary
question, 77, 224. 237
Brown, Justice, decision in the
case of the " Caroudelet," 47
Bryanism, 18
Bulgaria, Russian intervention
in, 74
Calderon, President, recognition
of his government of Peru,
121
Calhoun, John C, on the right
of asylum. 186 ; on the Monroe
Doctrine, 232, 233
California, the conquest of, 10,
16, 107
Canada, the United States look-
ing toward, 10; relations with
the United States, 18; possi-
bilities of profit by Spanish-
American war, 89; Usheries
disputes, 176, 195-209 ; recipro-
city, 194-196, 198-200, 202-206, 209;
the sealing coutroversy, 218
Canal neutralization, the princi-
ples of, 147-149, 153-165
Canals. See Central Ameri-
can Canals; Interoceanic
Canal
Canso, Gut of, the fisheries of
the, 201, 203, 207
Cape Cod, the fisheries of, 201
Capital and labor, 189
Capture, right of, 86-93, 95, 96
Carlism, 72
" Carondelet," the case of the, 47
Carrying-trade, the world's, 5. 6
Castiue, Me., during War of 1812,
98
Caucus system, the, 14
Central America, self-govern-
ment in, 115; application of the
Monroe Doctrine in. 1").")
Central American canals, 7, 8,
10, 16, 108, 133-149, 153-165, 265,
266. See also Interoceanic
Canal
Chauiperico, the case of Gen-
eral Barrundia at, 177
" Charleston," chase of the
"Itata" by the, 181, 182
Chile, war with Bolivia and
Peru, lie ; the case of the
"Itata," 180-183; right of
asylum in, 184-186 ; the case
of the "Baltimore," 186-188;
straincil rclatimis lictweeu the
United States and. l,ss. 189
China, the land-seranible in, x;
relations with the United
States, 18 ; an American sena-
tor's criticisms of, 80; the
China — continued
treaty of Simonoseki, 105;
American interests in, 108
Chinese imniigi'atiou, 18
Citizens, protection of, 6
Civilized nations, their duties
among uncivilized races, 6
Civil-service reform, 12
Civil War, the, 16, 27, 29, 32, 38-
40, 43, 46, 93, 95, 234, 246, 274,
275
Clay, Henry, on the Monroe Doc-
trine, 231
Clayton, John M., on the United
States' Hawaiian policy, 124;
on the right of asylum, 186
Clavton-Bulwer treaty, the, 7,
143, 146, 159, 162-165, 265
Cleveland, Grover, attittide to-
ward Hawaii, 2; attitude on
the Cuban question, 9, 25; in-
terference in the Venezuelan
boundary case, 76-78, 224, 228-
230, 236-238 ; sealing policy, 218 ;
his Monroe Doctrine, 223-238;
threats against England, 228,
236, 238
Coal, its status, 93, 94
Coaling-stations, 99, 108
Coast defense, 16, 17, 88
Coast fishermen, exemption
from capture, 92, 196
Colonial adventure and aggran-
dizement, 1, 73, 110
Commerce, the protection of a
nation's, 5; the blight of, 13;
effects of war on, 26, 28-32, 38,
39, 43-45, 49, 85-98, 273-282 ; the
modern customs of, 85-87, 89,
95 ; war upon, 88
Commerce-destroyers, 88
Commercial rivalry. 13
Compromise tariff, 109, 110
Concert of nations, 157
" Concert" of the Powers, 4
Confederate States, recognition
of their belligerency, 27, 29, 38,
275 ; trade with England, 32,
38-40
Conflict, the law of state life and
gro\vth, 242 ; not war, 242
Congress of Vienna (1815), the,
247
Conquest, the right of, 105
"Conservatives," the policy of
the. 11. 12, 100
Constantinople, the Russian
jxdiey eoncerniiig, 74; Suez
Canal con\ ention at, 137, 140
Contraband of war, 28, 30-32, 39,
40, 43-45, 86, 89, 92-95, 181, 182,
273, 277, 278
INDEX
287
Contracts, eflfect of war on, 96
Coi'iuto, Eugland's possible de-
signs against, 164
Corn Island, England's possible
designs on, 164
Costa Rica, tlie provisional gov-
ernment of, 121; the Clayton-
Bill wcr provisions concerning,
164
Credit, 12, 13, 18
Crimean War, the, 273
Cross versus Harrison, the case
of, 97
Cuba, its strategical position, 10,
108; American desire to annex,
15; (luestiou of recognition of
bellii,^erenc.v in, 25-34, 37, 43, 48,
62, 78 ; American losses in, 26,
63, 77, 78; question of recogni-
tion of independence of, 33, 34,
62, 78, 86; American expedi-
tious to, 37, 39, 40, 45-48; the
shipment of arms to, 38-40, 45-
48; relations with tlic United
States, :j'.i-4;» ; American sym-
pathy for, 40, 45, 64; the condi-
tion of the insurgents in, 47, 48 ;
the question of intervention
in, 61-67, 74, 80 et seq.; United
States' trade with, 63 ; the re-
concentra(U)S, 64, 65, 76 ; auton-
omy in, i;.-), 80, 81; possibilities
of Unite<l States' annexation,
66; the civilization of, 7."i; the
exi)nlsion of the Spanish from,
75, 90 ; starvation m, 76 ; the
pacification of, 80, 82, 106 : the
insurgents' claims, Hi; the in-
dependence of, 83, 84, 111 ;
blockade of. 92 ; the future of,
106 ; the Itey of an iuteroceanic
canal, 108 ; anti-annexation
feeling concerning, 128
Cuban question, the, 19
Culver, Mr., despatch from \V. H.
Seward, 117
Cura^-ao, the " Sumter " at, 27
Currency question, the, 9, 12, 13,
18, 66. 99, 109, 110
Gushing, Caleb, instructions
from Hamilton Fish, 184
Customs duties, effect of war on,
97, 98
Dana, Richard H., on interna-
tional law, 97, 98; on the Mon-
roe Doctrine, 232
Dardanelles, the, 74, 134
Darien, proposed canal route at,
142
Davis, Jefferson, declines to ac-
cepttheDeclaratiou of Paris, 275
Debts, effect of war on, 96
Declaration of Paris, 87, 88, 90,
246, 273-282
Declaration of war, 91
De facto governnu^uts, the recog-
nition of, 115 ct seq.
De I^csseps, Ferdinand, Panama
Canal scheme, 145, 146
Demagogy, l'.», 20
Dinichy tariff, its application to
coufiuered territory, 98
Diplomacy, 243, 244, 246-250, 253,
256-258, 261-264
Due diligence, what is, 37-40, 49,
56, 57, 62, 67, 79
Education, 21
Egan, Patrick, the " Itata " case,
183. 184, 186
Egypt, the Suez Canal, 136-141,
146, 148, 154, 160; outbreak of
Arabi Pasha in, 138; British
occupation of, 138
Embargo, 243
Enemy's goods under neutral
flag, 88, 90, 273, 276-279, 281, 282
England, relations witli United
States, xi,xii,3,lH, I'.t; relations
with Russia, 2; the gold stan-
dard in, 8; free trade in, 8;
deep-seated American hatred
of, 8-10, 16 ; naval strength, 16;
trade with the Confederate
States, 32, 38-40; French war
measures against, 33 ; the For-
eign Enlistment Act, 42, 47, 48 ;
neutrality during the Civil
War, 43 ; aid to Greece, 74 ; the
Venezuelan question, 76-78,
247, 251 ; her colonial system,
80, 109, 110; relations with Ger-
many, 81; attitude concerning
neutralitj', 86 ; attitude reg;n(l-
ing coal, 93; svnipathv with
the United States, 106; is(da-
tion of, 110 ; Suez Canal policy,
137-139, 141, 154; bombardment
of Alexandria, 138; foreign
suspicions of her good faith,
139, 163 ; canal treaties with the
United States, 142-144, 146, 159,
ICj-Hi."); possibility of war with
the United States, 157-159, 161-
164 ; possible designs in Nica-
ragua, 164; tisheries disputes,
170-177, 195-209 ; ceases to exact
maritime homage, 173 ; denies
Russian jurisdiction over Be-
ring Sea, 174; treaty with Rus-
sia (1825), 175; reciprocity,
194-196, 198-200. 202-206, 209 ; tlie
sealing controversy, 213-220;
288
INDEX
England— conlhiued
alleged aggi-esslons of , 228, 236,
265 ; President Cleveland's
threats agaiust, 228, 236, 238;
the Maine boundary qnestion,
230 ; offer of Yucatan to, 232 ;
her work of civilization, 237 ;
abolition of the slave-trade,
241; the ease of the "Ala-
bama," 247 (see also " Ala-
bama"); the Transvaal dis-
pute, 247; the arbitration
treaty, 261-269 ; recognizes the
Confederate States, 275 ; con-
cedes right of neutrals to
carry enemy's goods, 280, 281
Europe, United States' absten-
tion from complications in,
3, 4 ; principle of non-interfer-
ence in American affairs, 4, 5 ;
the standing armies of, 13 ;
sympathy for the Southern
cause, 39 ; the Turkish ques-
tion, 75; attitude cimcoiiiiiig
coal, 94; the United ^^tatfs anil,
105; concert regarding the
Suez Canal, 137-141, 100; appli-
cation of the Monroe Doctrine
to the Powers of, 155
Everett, Edward, letter from
Hugh S. Uegare, 123, 124
Fanatics, responsibility for, 55,57
Fayal, the case of the " General
Armstrong" at, 53, 54
Fer(B nutiirce, 170-172, 218, 219
Fiat-money, 13, 14
Filibustering expeditions, 30,
37, 39, 40, 44-49, 54, 62, 78, 79, 181
Financial control and rights of
sovereignty, 139
Financial' system, the United
States', 18, 21
Fish, Hamilton, on the right of
asylum, 184, 185
Fisheries question, 170-177, 195-
209, 265
Flag, the rights of the, 30
Fleming v. Page, case of, 97
*' Fh)rida," the case of the, 40
Forced loans, 18
Foreign aggression, the dangers
of, 20
Foreign carrying-trade, 277-281
Foreign enlistment acts, 28, 42,
47, 48
Foreign entanglements, 15-20,
73, 169, 188-191
Foreigners, the status of resi-
dents in a hostile country, 96
Foreign i)()licy, representative
government and, 2 ; in the
United States, 2; an aggres-
sive, 10
Foreign relations of the United
States, 18 ; an inquiry concern-
ing, 169-191
Forest preservation, 12
Formosa, ceded to Japan, 105
"Forwards," the policy of the,
4, 10, 15, 16, 18, 100
France, relations with theUuited
States, 3 ; war measures
against England, 33; attitude
concerning coal, 94 ; interfer-
ence with Japan, 105 ; share in
the Revolutionary War, 120;
recognition ot the National De-
fense Coiiiiiiittcc of, 121; sus-
pected of designs upon Hawaii,
124; a ship-canal across, 134;
Suez Canal policy. 138, 141 ; in-
tervention in Mexico, 155; the
sealing controversy, 217; the
Monroe Doctrine and, 229 ;
recognizes the Confederate
states, 275
Free ships and free goods, 85-90
Free trade, 8, 12
Frelinghuysen, Frederick T., on
the recognition of revolution-
ary governments, 116; on the
Clayton-l'.ulwer treaty, 146,
162 ; Panama Canal policy, 146 ;
on the right of asylum, 184
Fund}-, Bay of, the fisheries of
the, 173, 205
Garonne, a ship-canal from the,
134
" General Armstrong," the case
of the, 53, 54
Geneva arbitration, 247, 265. See
also "Alabama."
Germany, action at Manila, ix;
land-grabbing, 1 ; naval devel-
opment, 1 ; relations with tlie
United States, 18; relations
with Hayti, 72 ; relations with
England, 81; attitude concern-
ing coal, 94 ; interference with
Japan, 105; colonial system,
110; signatory to Suez Canal
agreement, 141 ; the sealing
controN'ci'sv. 217
Gold llcpulil'icans, 19
Gold standard, the, 8
Gortchakoff, Prince, on the Suez
Canal, 138
Government, by popular will. 2 ;
by caucus, 14 ; by newspaper, 14
Grand Manan, tlie fisheries of,
200
INDEX
289
Grant, U. 8., Cuban policy of, C3
Givat Belt, tlKs 134
GiTiit Britain. 8eo KN(ii,AND
Greece, the inilependeuce of, 74,
75
Guatemala, the Barrundiaallair,
C, 177-180
Gunpowder, contraband of war,
93
" Halifax Chronicle," on the
I'cciprocity treaty, 203
Halifax lisliory award, the, I'J'J,
205, 251, 2(>5
Harbor defense, Ifi, 17
Harrison, Benjamin, Hawaiian
policy, 2, 127 ; the scalinj; policy
of,C
Havana.the case of the "Maine,"
53-57, 01, 67,81, 82
Hawaii, its strategical i)osition,
10; annexation of, viii, 2, 10,
W, 108; the Japamsc (jiicstion
in, 18; the law and the' policy
for, 115-129; tlic iiruvisiomtl
government rec<>i;iiized by the
United States, 118-120 ; the po-
sition of the Queen, 118, 122,
127; its trade and population,
123, 124, 120-129 ; the opium traf-
fic and Louisiana lottery
scheme in, 127
Hayes, Rutherford B., on recog-
nizing de facto governments,
lie, 117
Hayti, rehitious with Germany,
72; the right of asjdum iii,
184
High seas, extraordinary juris-
diction over the, 219
Hippolyte, President, 47
Hoar, (4eorge F., views in the
" Caromlelet" case, 47
Holland, recognizes Confederate
belligerency, 27,275; signatory
to iSiiez Canal agreement. Ml
Honduras, proposed canal route
in, 142
Honolulu, revolution in, 118. See
also Hawaii
Humanitarianism, natioiuil, 241
Humanity, the claims of, G3, 04,
74-70, 99, 106
Ibrahim Pasha, 74
Hicome tax, 18, 110
Independeiu^e, the right of, 223
Independent parties, li)
India, the Sue/ (anal and, 138
Insuraiu-e policies, etl'ect of war
on, 96
Insurgents, the status of, 25-34,
40, 42, 43, 63
19
Intentourse, freedom of, 156
Internal development, 100
Internal revenue, 17, 18, 110
International controversies, the
settlenu'ut of, 241-258
International law, the applica-
tion of, 41, 43, 45, 48, 49; fh(-
Monroe Doctrine and, 225, 226,
228
Interoeeanic canal, in the light
of precedent, 133-149; from the
standpoint of self-interest, 153-
105; the question of an, 205
Intervention, in Cu])a, 61-67 ; the
l)rinciples of, 73-77
Italy, attitude concerning coal,
94; signatory to Suez Canal
agreement, 141; the New Or-
leans hneliinus, 187; treaties
with Uiiited States, 278
" Itata," the case of the, 6, 46,
180-183
Japan, the new status of, x ; re-
lations with the United States,
18; the Japanese in Hawaii,
18 ; the treaty of Simonoseki,
105; the sealing controversj',
217
Jingoism, 0, 11, 14, 67, 100, 155
Joint commissions, 254
Kalakaua, King, 119
Kent, Chancellor James, denies
Russian jurisdiction over Be-
ring Sea, 174
Kilpatrick, Judson, despatch
from W. H. Seward to, 234, 235
Labrador, the fisheries of, 200
I>ake fisheries, 208
Linigston, Minister, instructions
fioni Mr. Frelinghuysen to, 184
r.egal-tender decisions, 12
Legare, Hugh S., on the United
States' Hawaiian policy. 123,
124
Letters of marque. See Pkiva-
TEERING
Lincoln, Abraham, war mea-
sures, 29
Little Belt, the, 134
Livingston, Edward, on recog-
nized governments, 116
Locke, Judge, decision in the
case of the "Thi-ee Friends,"
47, 48
Logan, John A., despatch from
F. T. Fi'elinghuysi'U, 110
Logic and human passions, 82,
83
290
INDEX
London, the sealskin industry
of, 172
LoDir, Joliu D., Secretary of the
Navy, ;)7, 40
Louisiana lottery, scheme to in-
troduce it in Hawaii, 1'27
LouiBiaua Purchase, the, 10, 107
Lowell, James Russell, despatch
from James G. Blaine, 164
McCanlev, Mr., instructions
from I);mi<'l Webster, 186
Machine ixilitics, 12, 14
McKialey, William, Cuban pol-
icy. 65,'7G, 80, 81, 83, 91
Magdalen Islands, the fisheries
of the, 200
Magellan's Straits, 134
Mail service on the seas, 86, 95
Maine, the fisheries of, 201, 205;
the boundary question, 230, 246
" Maine," the case of the, 53-57,
61, 67, 81, 82
Managua Lake, proposed canal
route via, 143
Manila, the Germans at, ix ; the
American victory at, 85, 103;
the status of foreigners in, 96 ;
effect of capture on, 96-99 ; the
question of keeping, 111. See
also Philippines
Marcy, Williaiii L., on the United
States' IIa\v;iii;iu iidlicy, 125
Marcy anunduiciit, tlic, 274
Mare clausum, the question of a,
172-177, 215
Martial law in captured terri-
tory, 97
Mason and Slidell attair, the,
179
Massachusetts, the fisheries of,
201
Maximilian, his Mexican em-
pire, 233, 234
IVIediation, 244-246
Mediterraueau Sea, Russian
hopes in the, 2 ; iimiKised ship-
canal across France to the, 134
Men-of-war, resiionsibility for
visiting, 53-57, 67
Metternieli, Pi'iiice, on the Suez
Canal project, 137
Mexican War, 16, 97
Mexico, relations with theUnited
States, 3 ; United States' ac-
quisition of territory from, 10 ;
French intervention in, 74,155,
233, 234 ; recognition of dt;
facto gdverniiieiits in, 117 ; pro-
posed interoceaiiie cinal in,
142; the IJaniuidia affair, 177-
180; the sealing controversy.
Mexico — cnnlinued
217 ; non-signatory to the Dec-
laration of Paris, 273, 282
Militarism, lo'.)
Military occupation and sover-
eignty, 104
Military supplies, trade in, 31,
32, 38-41, 43-45, 49, 62, 78, 79,
181-183
Mississippi River, free naviga-
tion of the, 197
Mizner, Mr., and the Barrundia
affair, 177-ls()
Modus Vivendi, the, 217
Mohammed Ali, on the Suez
Canal project, 137
Monroe Doctrine, the, 7, 8, 33,
73, 128, 154-156, 190, 223-238, 2.52,
265 ; its origin, 155 ; President
Cleveland's, 223-238 ; a policy,
not a law, 226
Monroeism, 73
Morgan, Senator, dissent in the
Bering Sea award, 215
Mosquito Coast, the protector-
ate of the, 162, 164
" Most-favored-uation clause,"
18, 106, 156
Municipal corruption, 189
Municipal reform, 12, 109
Naples, intervention of the al-
lied powers in, 231
Napoleon III, intervention in
Mexico, 74, 233, 234 (see also
Mexico) ; suggests mediation
in the Civil War, 246
Napoleonic wars, the American
carrying-trade during the, 277
National credit, 12, 13, 21, 85
National debt, 110
National growth, 1, 11
National hunianitarianism, 241
Naturalized citizens, effect of
war on, 96
Naval architecture, revolution
in, 5
Naval supremacy, 85
Navarino, battle of, 74, 75
Navigation, freedom of, 156
Navy, the duties of a, 5 ; the
United States, 16, 17, 1H9
Netherlands, the partition of
Belgium from the, 223 ; the
Northeast boundary dispute
referred to the King of the,
246
Neutral goods under enemy's
tlag, HH,'273, 274, 276, 278
Neutial interests paramount to
belligerent interests, 156
INDEX
291
Neutrality, enforcement of, 6;
the i-iKlitH aurt duties of, 27-32,
37-4'.t, i)2-6i, 70, 78, 85-90, 242,
27;i-2.s2; ine.siTvatiim liy the
United States, 37-ti)
Neutralizatidii, Wliarton ou, li7,
148 ; of iutei'oeeauic eauals, 7,
8, 133 et seq., 200
Neutralization versus protection,
117-1-1'J, 137
New Brunswick, tlie fisheries of,
201
Newfoundland fisheries, the, 200,
201, 205
New Granada-, treaty with the
United States, U2, 143, 147, 154.
See also United States of
COLOMIUA
New Mexico, the acquisition ot,
107
New Orleans, the Italian lyneh-
iugs in, 187
New York, the " Vizcaya " in
the port of, 57 ; dangers to
commerce of, 89
Nicaragua, filihusterins in, 10;
treaty with the United States,
144, 145; possibilities of the
United States' position in, 159
Niearauiia (anal, the, 09,135,139,
142-144, 149, 154, 158, 101, 104, 165
Non-intervention, the principle
of, 156
Northeastern houndary dispute,
246
North Sea Canal, the, 134, 135
Nova Scotia, the fisheries of, 201,
203 ; the trade of, 203
Occupation, does not vest sov-
ereignty, 97
Occupied territory, the law con-
cerning, 98, 99
Oluey, Uicliiird. attitude on the
Cuixin question, 9; on the
headship of the United States,
238
Opium traffic in Hawaii, 127
Opportunism, 231
Pacific Ocean, American inter-
ests in the, 108; the sealing
cimtroversy, 170-177, 215, 216
Palma, Senor, 25
Panama, Isthmus of, neutrality
of, 143-149
Panama Canal, the, 135, 142, 145,
146
Panama Canal Company, agree-
ment with the United States
of Colombia, 145
Panama Congress, the, 232
Panama Railway, the, 143, 154
Panics, 13
Paper blockades. See Block-
ades
Paris, Suez Canal convention at,
140
Paris, Declaration of, 87, 88, 90,
240 ; the United States and the,
273-282
Parties, the disintegration of, 19
Partnerships, etfect of war on, 95,
96
Party politics, 12, 14, 19
Patriotism, 19, 20, 100
Pedio, Dom, 231
Pensions, 17, 110
Pei'u, war with Chile and Bo-
livia, 116 ; recognition of the
government by the United
States, 116 ; the right of asylum
in, 185
Peyton, Mr., instructions from
Daniel Webster to, 185, 186
Philippines, the conquest and
future of the, viii, 99, 103-111
Piracy, 27, 32, 182, 226, 275
Pitts, Captain, and the Barnmdia
affair, 177-179
Policing the seas, 5
Politiea) parties, succession of,
2; the dividing-lines of, 12; dis-
integration of, 19
Political refugees, the rights of,
180
Politics, the citizen in, 14
Polk, James K., on the Monroe
Doctrine, 232
Populism, 19
Populistic Democracy, the, 19
Port Harford, CaL, sealing
limits, 216
Porto Rico, eff'ect of capture of,
96; the acquisition of, 99;
American operations in, 103 ;
the future of, 100, 108
Portugal, the ease of the "Gen-
eral Armstrong," 53, 54; ex-
tinct naval dominion of, 173 -
Postal service ou the seas, 86, 95
Power, abuse of, ('>
Preston, Minister, insti'uctions
from Hamilton Fish, 184
Prit)vloff Islands, the sealing
question, 171. 214-216, 218
Prince Edward Island, the fish-
eries of, 201
Privateering, 32, 33, 86-90, 273,
274, 270, 279-282
Prizes, 92
Proclamation of a state of war,
91
Protection, 12, 17
292
INDEX
Protection of the fisheries, 197,
206, 208, 209
Protectiou ccrs^s neutralization,
147-149, 157
Provisional governments, the
status of. 118-121
Prussia, the Monroe Doctrine
and, 229; treaties with the
United States, 278
Railway traffic legislation, 12
" Ranwr," the Barrundia affair
and the, 178-180
Reciprocitv, 2, 194-196, 198-200,
202-206, 209
Reconcentradoe, the, 64, 65, 76
Red Cross Society, the, 76
Reiter, Coiiiinaiuler, and the
Barrundia afl'air, 178-180
Representative government, 2,
15
Reprisals, 243
Retorsion, 243
Revenue laws, violations of, 45,
46, 49, 182, 183 ; in captured ter-
ritory, 97, 98
"Robert and Minnie," the case
of the, 183
Roman law, the, 250
Russell, Lord John, attitude con-
cerning the Declaration of
Paris, 275
Russia, autocracy in, 2 ; relations
with England. 2 ; her Mediter-
ranean policy, 2 ; relations
with the United States, 3; in-
terveiitioTi in Bulgaria, 74; her
Dardanelles policy. 74: attitude
concerning coal, '.t4 ; interfer-
ence with Japan, 105 ; war witli
Turkey, 137 ; Suez Canal policy,
137, 141; the sealing contro-
versy, 171-177, 215. 217, 218 ; the
sale of Alaska, 174-176; treaties
Avith United States, 174, 278;
claim of jurisdiction over
Alaskan wat<'rs. 174-176; treaty
with l<;ngl;nul (1K25), 175; the
Moni'oe Doctrine and, 229
Sagasta, Seiior, 83
St. John River, the Maine boun-
dary question. 230
St. Lawrence River, the fislieries
of the. 173, 201. 202, 207; the
Maine lioundni'v question, 2:!0
Sallsliui-y, Lon!, on non-user, 175;
the Venezuelan boundary case,
226
" Salvador," the case of the, 48
San Diego, Cal., the case of the
"Itata" at, 46, 181-183
Sandwich Islands. See Hawaii
San Francisco, the case of the
"Baltiuiiire" at, 187
San Jose. Guatemala, the Bar-
rundia affair at. 178-180
San Juan, Porto Rico, American
operations at, 103
San Juan bouudar.y case. 265
San Juan River, proposed canal
route via, 142, 143
Santo Domingo, anti-annexation
feeling concerning, 128
Scientific expeditions, exemp-
tion from capture, 92
Sealing controversy, the, 2, 18,
170-177, 213-220
Search, right of, 28, 31, 32, 39, 43,
44, 86, 95, 241
Self-defense, wars of, 6; the
right of. 42, 44, 73, 74, 76-78, 223-
225, 227, 238, 264
Self-government, 21, 100, 115
Seward, WilliamiH., acquisition
of Alaska, 11, 215 ; jiosition con-
cerning the "Sumter." 27; on
the recognition of revolution-
ary governments, 117; on the
United States' Hawaiian
policy, 125, 126; on the right
of asylum, 185 ; on the Monroe
Doctrine, 234, 235 ; attitude to-
ward the Declaration of Paris,
274, 275
"Shenandoah," case of the, 40
Ship-canals. See Central Amer-
ican Canals; Interoceanic
Canal
Shipping, effects of war on, 26,
28-33, 39, 40, 43^6
Silver Democracy, the, 19
Silver Republicans, 19
Simonoseki, tlie treaty of, 105
Sixty-mile limit, tlie, 216
Slavery, 12, 15
Slave-trade, the, 226, 241
Snow, Professor, on the Monroe
Doctrine. 231.2;i2
South America, self-government
in, 115; de fa<'to governments
in, 116, 117 ; api>lic:itioii of the
Monroe Doctrine in, 155, 229 et
seq,; the right of asylum in,
184- 18<;; projiosed intervention
of the allied powers in, 231
SovereinntN-, not vested by occu-
pation, 97; financial control
and the rights of, 139
Spain, relations with the United
States. 3, 18; American hostil-
ity toward. 16; the Cuban
(luestimi. 18; rights under rec-
ognition of Cuban Ijelligereucy,
INDEX
293
Spain— continued
31-34; treatios botwoon the
Uuited States and, 32, 33, '.)4,
278; the diitv of tlie Uuited
Btates to, 37-4'.); neutrality
duriujtc tlie Civil War, 4;t; re-
spousibility for the " Maine,"
53-57, 61, 07, 82 (see also
"Maine ") ; relatious with the
Uuited States, 53-57, 61-67, 78,
94 ; the war with, viii, 71-100,
282; the victim of cireum-
stauces, 72 ; the national policy
of, 72 ; her expulsion froiu
Cuba, 75, 90 ; bad faith of, HI ;
national character, 83; posi-
tion on privateering, 87-89;
question ot expulsion of Amer-
icans from, 94; position as to
the Declaration of Paris, 87,
88,273, 282; her rights iu the
Philippines, 104 ; signatory to
Suez Canal agreement, 141 ;
extinct naval dominion of,
173; the right of asylum iu,
185 ; intervention of the allied
powers in, 331 ; offer of Yuca-
tan to, 232 ; recognizes the
Confederate States, 275
Spanisli taritf, its enforcement
in eonciuend territory, 98
Spirited foreign policy, the doc-
trine of a, 101, 189
Standing army, a, 10
State policy, l
States' lights, 12, 16
Statutes, interpretation of, 41,
46^9
Stevens, Minister, action in Ha-
waii, 119
Stowell, Lord, on the right of
search, 95
Strikes, 13
Suez CJaual, the, 136-141, 146, 148,
154, 160
" Sumter," the case of the, 27
Sweden, treaties with TJnited
States, 278
Sweetwater Canal, Suez, the, 140
Tariff question, the, 2, 9, 12, 17,
21,99
Taxation for war ])urpoHes, 10,
17, 189
Tehuantepec. proposed canal at,
142
Territorial claims, 262, 265, 266
Texas, the annexation of, 10, 16;
recogniti<m of independence
of, 120
"Three Friends," the case of
the, 47
Three-mile limit, the, 176, 195-197,
202, 215
Tilden Electoral Commission,
the, 254
Toriellc, Colonel, the Barrundia
aflair, 178
Trade, usages of, 86, 87, 89 ; the
elfeet of war on, 96
Transvaal (lis])ute, 247
Treaties, tlie power of making,
28; the obsei-vancc of, 150
" Trent," the case of the, 179
Triple Alliance, the, 223
Turkey, Russia's attitude
toward, 74 ; battle of Navarino,
74, 75; the expulsion of, 75;
the Suez Canal, 136, 137, 141 ;
war with Russia, 137; the
maintenance of, 223
Tyler, John, on the United
States' Hawaiian policy, 123
Ultimatum, the formulation of
an, 91
Uncivilized races, the duties of
civilized nations among, 6
United States, foreign policy,
vii-xii, 2,4, 109, 110; colonial-
ism, viii, 11, 99, 100, 108; rela-
tions with England, xi, xii, 3 ;
diplomacy in, 2; foreign rela-
tions, 2, 3, 9, 169-191; nati(inal
expansion, 3, 4; alistcntion
from European complications,
3, 4 ; relations with Spain, 3,
53-57, 61-67, 94; "conserva-
tives" and "forwards," 4;
non-interference iu European
affairs, 4, 5; non-interference
of Europe in affairs of, 4, 5 ;
belligerent feeling in, 5; the
interests of, in foreign ports,
5 ; the navy, 5, 99, 274 ; the Cen-
tral Anieriean canal qnesticm,
7, 8; Irisli inthicnct' in polities,
8; deep-seated hati<'d of Eng-
land, 8-10, 10 ; the tariff ques-
tion, 9; extension of power,
10; looking toward Canada,
10 ; powers of the executive, 10 ;
annexation of Mexican terri-
tory, 10; expansion of terri-
tory, 10, 11, 73, 108, 109; head-
ship of the American continent,
10, 16, 73, 156, 190, 238 ; wealth,
16; public lands, 16, 17, 109; the
army, 16, 17, 99, 189; military
and naval expenditures, 17;
etfects of recognition of Cuban
belligerency on, 25-34; losses
in Cuba, 20, 03, 77, 78; treaty
with Spain, 32, 33; prescrva-
294
INDEX
United States— continued
tion of ueutrality by, 37-49 ;
duty to Spain, ;i7-49; the ex-
ecutive and judicial depart-
ments, 41, 43 ; trade witli Cuba,
63 ; tlie war with Spain, 71-100 ;
national policy, 73; domestic
problems, 73; headquarters of
the Ciiliaii insuircction in, 78;
anti-Spanish sentiment in, 78,
79; the palience of, 81 ; position
on privateering, 88, 89, 279, 281,
282 ; attitude concerning coal,
93,94; treaty of 1795,94; civil
service, 99 ; ojttimism of the
people, 103; the European
powers and, 105; the Oriental
trade, 105; recognition of de
facto governments, 116; recog-
nizes the provisional govern-
ment at Hawaii, 118-120; the
Revolutionary War, 120; Ha-
waiian policy, 122-129; the
value of an interoceanic canal
to, 133 et seq., 153-165; treaty
with New Granada, 142, 143,
147, 154; canal treaties with
England, 142-144, 146, 159, 162-
165; protection of the Panama
Railway, 143, 154 ; treaty willi
Nicaragua, 144, 145; limits of its
streniith, 148; possiliilities of a
hostile situation in Nicaragua,
159; the sealing controversy,
170-177, 213-220; the purchase
of Alaska, 173-176; treaty with
Russia (1824), 174; urges Rus-
sian jurisdiction over Be-
ring Sea, 174-176; strained
relations with Chile, 188, 189 ;
enlarging views of rights of
sovereignty, 188-190; recipro-
city, 194-196, 198-200. 202-206,
209; the flsliery <|ncstion. 195-
209; enconran inent of lisher
ies, 197 ; the State Dciiai-tnieut,
248, 249 ; the arbitration treaty,
261-269; the Declaration of
Paris and the, 273-282
United States Congress, attitude
toward Spain, 78-80; refuses to
recognize Cuban iudepeu-
dence, 84; formally declares
war, 91
"United States Fish Connuis-
sion, Report of," cited, 202
United States of Colombia, pro-
posed canals across, 142, 143;
agreement with the French
Panama Canal Company, 145
United States Revised Statutes,
§^ 5283, 52Hi;, 46, 48
United States Senate, contest
with the executive, 9; action
on tlic arbitration treaty, 9
Universal sullrage. 14
Valparaiso, the " Baltimore "
attair in, 9, 186-188
Vaughan, Sir Charles, despatch
from Edward Livingston to,
116
Venezuelan boundary question,
the, 8, 18, 19, 76-78, 223-238, 247,
251 ; recogniti(m of a de facto
government in Venezuela, 117
"Virginius" art'air, tlie, 8, 44
Vienna, Congress of (1815), 247
"Vizcaya," United States pro-
tection for the, 57
War, 28, 30, 31, 71, 91, 94, 110; the
inception of, 91 ; abrogates
treaties, 94; personal results
of, 95, 96 ; the right of, 252
War of 1812, 195, 243
Washington, George, his fare-
well address, 3, 100, 169, 190, 191
Wcltster, Daniel, on the United
States' Hawaiian policy, 122-
124; ou the right of asylum,
185, 186
Weyler. General, recall of. 65;
the prototype of, 74; his con-
centration system, 76
Wharton, Dr. Fraueis, on recog-
nition of insurgency, 42 ; ou
neutralization, 147 ; liis "Digest
of International Law " quoted,
234, 235
Wharton, William P., views ou
the lifting out of Cuban expe-
ditions, 47
Wlieaton, Heury, his "Elements
of International Law" cited,
97, 232
Woolsey, President Theodore
D., on the Mouroe Doctrine,
235
Wyse, Lieutenant, .agreement
with the United States of Co-
lombia, 145
Yucatan, offers its territory to
Great Britain, Spain, and the
United States 232
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