onment of McLeod. The facts of this case must create the conviction that whenever the international rights and duties of the United States are made the subject of diplomatic controversy, they ought not, as a matter of law and reason, to be determined by the judicial authority of a single State. But it is a painful fact that the United States government, in similar cases as, for example, in the case of mob-violence against subject aliens has been compelled to make the same humiliating plea of incompetence and nonliability, although the case we have considered seems to show that the apparent difficulties might be removed by appropriate Congressional legislation.

CHAPTER III

AMERICAN POLICY AS TO THE LAW OF RECOGNITION: APROPOS OF THE CUBAN REVOLT

ONE of the interesting incidents in the diplomatic history of the United States was that which attended the controversy with Spain, and which grew out of the popular insurrections in Cuba. At the beginning of this controversy, Cuba formed a part of the Spanish dominion and was legally subject to the Spanish authority. Dissatisfaction with this authority had led to frequent protests on the part of the Cuban people. The insurrections in which the United States became especially interested covered two somewhat distinct periods. The first period, known as the "Ten Years' War," extended from 1868 to 1878, and was marked by a cruel disregard of the rules of civilized warfare and a wanton disregard of American property. The second period, of less duration but of even greater cruelty, extended from 1895 to 1898. The first stage. occurred during the administration of General Grant; the second stage during the presidency of Mr. McKinley.

§ 1. THE DIPLOMATIC QUESTION IN THE AMERICAN CONGRESS

A marked feature of this controversy between the United States and Spain was the diversity of views

in the American Congress regarding the international questions involved. Special attention was paid to the legality of recognizing the insurgent population. Proposals were made in Congress to recognize the belligerency of the revolting people; and even congressional resolutions were submitted recognizing their status as an independent republic. On the 9th day of December, 1896, the following resolution was introduced into the United States Senate: "Resolved, That the independence of the republic of Cuba is hereby acknowledged by the United States of America; and that the United States will use its friendly offices to bring to a close the war between Spain and Cuba." On the 31st day of December this resolution was favorably reported by the Senate Committee on Foreign Relations.

The fact that such a resolution passed its initial stage in the legislature of the United States is suggestive of an important question of international law. The question suggested by this resolution is, whether the United States could, under the existing circumstances, recognize the independence of the insurgent population, and at the same time assume to maintain friendly relations with the Spanish government; in other words, whether the act contemplated by the resolution was a pacific act of recognition, or a hostile act of intervention.

The fundamental principle underlying the fabric of international law is the independence of sovereign states in their relation to one another. As a moral personality, every state is, of course, under obligation to rule justly and respect the rights of its own subjects. But as a legal personality, such a state is not subject to the dictation of other states, and is not

responsible to other states for its own government, so far as the rights of other states are not affected. On the contrary, every encroachment made upon its authority within its own domain, without its own consent, is an attack upon its sovereignty, and hence a violation of the fundamental principle of international law.

What may be the exceptional and aggravating circumstances that may ever justify the interference of one state with the internal government of another, may be a serious question. But however justifiable such an act of intervention may be as a matter of morals or expediency, it is strictly illegal; it cannot be justified as a matter of law, and may be resented by the state whose sovereign rights are thus invaded.

From the time of Vattel to the present day all publicists have emphasized the inviolability of a nation's sovereignty. "It is the evident consequence of the liberty and independence of nations," says Vattel, "that all have a right to be governed as they think proper, and that no state has the smallest right to interfere with the government of another. Of all the rights that belong to a nation, sovereignty is doubtless the most precious and that which other nations ought the most scrupulously to respect, if they would not do an injury. It does not then," continues this writer, "belong to any foreign power to set itself up as a judge of another sovereign's conduct and oblige him to alter it. If he loads his subjects with taxes, and if he treats them with severity, the nation alone is concerned in the business, and no other is called upon to oblige him to amend his conduct and follow more wise and equitable maxims." (Law of Nations, Bk. II, ch. 4.)

It becomes, then, a matter of great importance whether an act of recognition on the part of one state does or does not infringe upon the rights of sovereignty belonging to another. The controversy, or at least the indecision, that arose among our law-makers at the time of the Cuban revolution, we may take as a sufficient reason for reviewing the general law of recognition, as it is accepted by publicists and embodied in the practice of nations, especially by the United States.

It may not seem necessary to say, at the outset, that the word "recognition," as used in the law, has a meaning not very different from that used in ordinary language, as the perception of something that actually exists as a fact. It is a principle of reason as well as of law, that recognition can properly be taken only of what exists as a fact. To profess to recognize as a fact that which is not a fact, is a misuse. of language as well as a perversion of law. For one state, under the name of "recognition," to interfere with the actual course of events in another, is an infringement upon the sovereignty of that other state. But if changes have actually taken place in a foreign nation that affect its existing government or its political authority, such changes may be recognized, when and only when they become accomplished facts.

International law takes account of three general forms of recognition, and determines the state of facts, under each form, that justifies such recognition, without violating the sovereignty of the nation which is affected. These forms of legal recognition are: (1) the recognition of a new government; (2) the recognition of belligerency; and (3) the recognition of independence.