that our presence in Cuba to-day is a proof of bad faith, or in the assertion that our withdrawal must be absolutely unconditional. Three years ago I said:

"The early installation of a Cuban government is desirable, not only for the sake of the Cubans, but because, pending this event, the United States must undertake the provisional control of the island. The undertaking will be sufficiently vexatious, even assuming, as I do, that it will be confided to trained soldiers and not to uniformed politicians. Yet it will be better to prolong our control than to recognize prematurely a Cuban government. When the authority of Spain shall disappear, the authority of the United States must replace it and prevail until a responsible local government shall be ready to assume control. The Government of Cuba, which shall be definitely recognized by the United States, and may thereafter claim recognition from other nations, must be organized or ratified by the people of Cuba, freely deliberating and acting under the protection of our impartial authority. Although the United States will not assume to present Cuba with a plan of government, they should condition recognition upon the adoption of a plan which shall establish a new nation upon principles of justice.

"A further condition of recognition may be the ratification of a treaty containing such engagements and guarantees as may be necessary to secure the interests of the United States."1

I see no reason for altering these opinions.. I have attributed a broad meaning to that " pacification" of Cuba, which is to be a signal for our withdrawal (The Law and Policy of Annexation, page 177); and I do not condemn the Resolution of 1901 merely because it contains conditions, but proceed to examine its several articles in a convenient order.

III.

THE FIRST SEVEN ARTICLES.

4. That all acts of the United States in Cuba during its military occupancy thereof, are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.

This article recognizes the obligation of the new republic to consider the military government of the United

1

Notes on the Foreign Policy of the United States, June, 1898, p. 6.

States as its legitimate predecessor, an obligation imposed independently by the principles of public law commonly accepted by civilized people. Even a de jure government coming into its own upon the collapse of its de facto predecessor is generally expected to respect private rights which have vested under the usurper, to respect his laws until they shall be changed, and to refrain from punishing persons for obeying his orders.

The chief interest in this article is likely to center upon its effect upon private claims to property arising during the military régime. On principle, as well as by the terms of the article, the new government of Cuba is not obliged to respect as a vested right any claim to property based upon an act of the military government. To confer a vested, or in the phrase of the article a "lawful" right, the military government must exercise lawful powers, and the question is what restraints are imposed upon it.

A notable restraint is imposed by the act of Congress of March 3, 1899, ordaining that "no property, franchises or concessions of any kind whatever shall be granted by the United States, or by any military or other authority whatever, in the island of Cuba during the occupation thereof by the United States."

Possibly some restraint may be inferred from provisions of the Treaty of Paris under which the United States formally occupied the island. Although the treaty is an agreement between the United States and Spain, it is a public record of obligation to which Cuba may be entitled to refer as a real party in interest.

Finally, while a military government in a foreign land, even a friendly and peaceful country like Cuba enjoys such vast powers that it may be said to be a law unto itself, it is not generally, and certainly the government in Cuba is not, a shapeless power without any law of its being. On the contrary, we have here a power of orderly, though simple, structure exerting authority according to some rule of procedure; and we perceive that the "acts" competent to create vested rights are essentially "laws," which indeed are the only source of "rights." And reminding ourselves that these laws are simply the decrees of a military government, we conclude that the "lawful rights" contemplated

by the article are such only as are based upon orders issued in conformity to the rules of this government. Evidently a claim of property based upon a decree issued in violation of the military rules is not entitled to respect at the hands of the new government.

IV.

6. That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty.

Possibly some private interests would be promoted by distinguishing this island from the "Cuba " in which Congress has forbidden all grants of "property, franchises or concessions" during the term of our occupation, but, be this as it may, I shall assume that the matter will be determined by public considerations.

Assuming that the ownership of the island is reserved. for negotiation between friendly states, each ready to ascertain and respect the rules of public law, I think it will fall to Cuba for this reason, among others, that the Spanish dependency we set out to free and, in the Treaty of Paris undertook to occupy temporarily, included the Isle of Pines in one of its provinces. However, the disposition of the Isle of Pines does not appear to be a matter of vital importance. While its retention by the United States might be resented as an abuse of power it would detract little from the physical integrity of Cuba, and nothing from her political independence.

V.

5. That the Government of Cuba will execute, and as far as necessary extend, the plans already devised, or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba as well as to the commerce of the southern ports of the United States and the people residing therein.

Yellow fever in Cuba has long menaced the United. States, and, at times, has been carried here in despite of our efforts. The United States, now having opportunity, may

justly demand a reasonable assurance of immunity. But the purpose of this article is very broad, including the welfare of Cuba as well as that of the United States. Would it not be better to limit our expressed concern in the sanitation of Cuba to the protection of our own country? Broad reasons of state, which I shall consider later, dissuade us from assuming a more intimate concern in Cuban affairs than is absolutely necessary, and in point of fact protective measures demanded for our own safety must tend, in themselves, to better the condition of the island.

Coming to the practical recommendations of the article, we find that sanitation is to be effected by executing "plans already devised, or other plans to be mutually agreed upon." Possibly "the plans already devised," which are to stand until changed by agreement, are formulated so precisely that any disregard of them can be brought to the notice of the Cuban authorities as a palpable breach of contract. Yet, considering the vexed questions in sanitary science, and the seeming aversion of Cubans to costly expenditures for the cleansing of cities, there seems to be room for much irritating controversy, with the advantage on the side of Cuba, in whose hands alone is placed the execution of sanitary measures. The United States have only the right to complain.

Viewing the article as a whole it appears to evince a very broad interest in the sanitation of Cuba without asserting an effective control in respect of the vital matter— the welfare of the United States. We can complain to Cuba should yellow fever enter our country through her neglect, but we cannot prevent its being carried from the island.

I do not advise that the United States request the general power of sanitary police in Cuba, for among sovereign powers none is more searching and despotic. Cuba could not be independent with a corps of United States officials suppressing nuisances, installing works of sanitation and sending the bills to the local taxpayers. But by narrowing our interest in the sanitation of the island to the point of our intimate concern, could we not properly request efficient powers for our protection? Would it be unreasonable to ask that, for a term of years at least, vessels clearing

from Cuban ports should carry a clean bill of health from United States officials stationed therein and having a jurisdiction defined by agreement? This would not involve a discreditable impairment of Cuban sovereignty, and foreign states could not justly infer a political union between the United States and Cuba because in the ports of the island we exercised powers beneficial to the world at large.

VI.

2. That said Government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government, shall be inadequate.

This article commends the wholesome principle that a state should not borrow beyond its reasonable ability to repay, but does not define it. "Reasonable sinking fund," "ordinary revenues," "current expenses of the government" are very flexible terms in the very flexible processes of public finance. Perhaps the first may be practically determined in some measure by accepted principles of finance, but there is no legal standard of reasonableness. Then what, broadly speaking, are the current expenses of a state if not whatever the state spends, without regard to the items? Perhaps, as a matter of convenient bookkeeping, interest and sinking fund charges should not be included in a current expense account, but this is not required by any general rule applicable here; and even if it be assumed that this method of accounting is intended to be prescribed for Cuba by the particular law of this article, we are still unable to attribute precision to the article as a whole: For what are "ordinary revenues?" Clearly these include at the very least all proceeds of taxation, and if no limit be set upon the taxing power of a Cuban government, how can we avoid the conclusion that the "ordinary revenues of the island" will include whatever taxes the legislature may choose to levy?

In fine, the requirement that the sums applicable to sinking fund and interest charges shall be the difference between "current expenses," which perchance may here be partially defined, and "ordinary revenues," which depend upon an unlimited taxing power, is too vague to suggest in