tionists: Acts done by the authority of the government; e. g., proscriptions and confiscations, and, possibly, the plain disregard by legislatures and courts of rights accorded by the Cuban constitution.

Intervening actively in cases within the first category the United States would act, nominally, as a policeman assisting a weak government to maintain the peace, yet inevitably substituting to a greater or less degree their own authority and their own responsibility for the authority and responsibility of the Cuban government. However vexatious this condition might prove to be there would, at least, be no state of war with its inconvenient consequences, unless, perhaps, we should drift into a conflict with the gov ernment we had set out to maintain.

In offenses of the second category, the Cuban government is itself the offender. Now, a strict construction of the clause might eliminate these offenses from its purview on the ground that Cuba consents to our intervention for the "maintenance" of a government whenever it is incapable of performing its duties unaided, and not for the purpose of calling to account a government guilty of willful dereliction. Without positively rejecting this construction, I think that the broader meaning I have given is correct, and that a Cuban government is asked to extend a formal invitation to the United States to chastise it for misdeeds, as well as to assist it in performing its duties. Intervening actively on account of offenses in the second category, the United States would appear as the enemy of the Cuban government.

.X.

The Third Article brings into prominence the great question of the proposed relation of the Cuban Republic to the United States, and this will be considered first from the standpoint of international law, and then in the light of the particular rule we have imposed upon ourselves in the promise" to leave the government and control of the island to its people."

There is nothing in the Joint Resolution to prevent Cuba from claiming and receiving that formal recognition which is the sign of membership in the family of nations. She

will enjoy notable prerogatives of sovereignty: The right to fly a national flag, to send and receive ministers and consuls, to negotiate treaties for all common and many extraordinary purposes, and to maintain an army and navy. Unlike a protected state, she will suffer no hindrance to foreign intercourse in the person of a resident representative of the protecting power, nor, like the South African Republic, will she be compelled by convention to submit her treaty projects to a "suzerain." A foreign state will find in Cuba a fellowsovereign competent to observe all the forms, and assume all the responsibilities attending friendly international intercourse. And, in case of trouble, she will not find Cuba disabled by any provision of the Joint Resolution from redressing or resenting injuries without seeking the permission or assistance of the United States. Neither the Third, nor any other Article constitutes the United States the constant sponsor for Cuba. Whether a foreign state, pressing Cuba for redress of injuries, shall be confronted by the United States is a question of circumstance-in theory, as much a question of circumstance as our attitude toward foreign pressure upon Nicaragua or Colombia or the other Spanish-American states. It seems, therefore-though one hesitates to predict the precise status of a country like Cuba -that Cuba will be, in international law, neither a vassal nor a protected state, but an independent sovereign, shadowed, however, by an express liability to intervention from the United States.

From the independence of Cuba, internationally, we may infer important consequences. In the event of war between the United States and another nation Cuban territory ought not to be involved. Another consequence might be, that should we intervene against a Cuban government, we could not hold foreign nations from recognizing the existence of a state of war, by arguing, as England did in the case of the Transvaal, that we were merely chastising a vassal. I suspect that the notion that we could make this argument, provided we obtained Cuba's consent in advance, had something to do with the phrasing, if not the presence of the Third Article of the Resolution; yet the argument, if not fallacious, would be dishonorable, for it is based on the

condition of dependency, whereas we have promised Cuba independence.

Does the independence of Cuba from an international standpoint relieve the United States from the imputation of violating in the Resolution of 1901, especially in the Third Article, the promise of the Resolution of 1898? Technically, I think it has this effect; and, still clinging to technicality, it may be shrewdly argued that anyway Cuba is not actually taken from "the government and control of its people," merely because the United States demand leave to intervene upon the happening of uncertain events. Technicalities dismissed, the United States will be defenceless against the charge of violating the spirit, if not the letter, of their promise, for they seek a formal sanction for what is potentially a power to interfere pretty much at pleasure with "the government and control" of Cuba. The effect of this breach of faith must be serious. The Cuban government, launched by the United States with an expression of contempt for its capacity, will inevitably be embarrassed by our mistrust: Stigmatized as an object of suspicion, is it not likely to lack the self-reliance essential to administration, and to fail in the end, if only because failure was taken for granted? Looking further afield, we may expect that repudiation of our promise to Cuba will intensify that mistrust of the United States on the part of Spanish-American republics generally which every interest of politics and business prompts us to allay; and especially may we apprehend its effect on canal negotiations with Colombia or Nicaragua.

The disadvantages to the United States in insisting upon the acknowledgment of a right of intervention are not outweighed by the advantages claimed.

Our political interest in Cuba is, as I have shown, safeguarded by ample power to enforce our established policy. Our business interests are large, and will increase to our profit and to the benefit of the republic of Cuba, which will find in the development of its resources and the employment of its people the best assurance of stability. The United States may accord due protection to these interests in virtue of their sovereign powers, without exacting a

humiliating concession from Cuba, and, considering the magnitude and propinquity of the interests, the powers will, without doubt, be exerted effectively in case of need.

XI.

Summarizing the results of our inquiry; Article I should be excised. A provision against cession should be incorporated in the Cuban constitution.

Article II should be excised because it deals ineffectively with the debt question. A debt limitation may be placed in the constitution.

Article III involves a breach of our promise to Cuba, and, moreover, an unnecessary demand for power.

law.

Article IV is an adequate and useful statement of public

Article V should perhaps be narrowed in purpose to the interests of the United States quarantine, and be amended so as to secure their better protection.

Article VI does not call for a positive expression of opinion, for the possession of the Isle of Pines is not a matter of vital interest, either to the United States or to Cuba.

Article VII should be amended so as to give to the United States full sovereignty over specified tracts..

XII.

THE EFFECT OF THE RESOLUTION.

The Preamble to the Joint Resolution reads:

That in the fulfilment of the declaration contained in the Joint Resolution approved April 20, 1898, entitled: "For the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the Island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect," the President is hereby authorized to "leave the government and control of the Island of Cuba to its people," as soon as a government shall have been established in said island, under a constitution which, either as a part thereof, or in an ordinance appended thereto, shall define the future relations of the United States with Cuba substantially as follows:

And the Eighth and last Article provides:

That by way of further assurance, the Government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.

The Preamble and Eighth Article furnish the text for a discussion of the practical bearing of the Joint Resolution on our conduct toward Cuba.

In the Preamble Congress treats the declaration of 1898 as a promise to be put in the way of performance by the act of our national legislature, though the President was competent to renew the pledge by his own act. The disposition of Cuba is a question of foreign policy within the immediate sphere of executive competency; the provisional government of Cuba is really a United States army under immediate executive control. And the President, being entrusted with the "pacification" of Cuba, had authority to determine the fact of its accomplishment, and thereupon to withdraw our troops and recognize a Cuban government. Congress has now interposed, and, by authorizing the President to withdraw upon its terms, has forbidden him to withdraw at his discretion. In this respect the Joint Resolution has the force of a statute imposing restraints upon executive action.

Restraining conditions are plainly defined in the first seven articles of the Resolution; and the word "substantially" in the last line of the Preamble does not accord to the President any power of qualification.

The Eighth Article suggests a vexatious question. The articles of the Resolution are not only to be embodied in the organic law of Cuba; "by way of further assurance" the first seven are to be incorporated in a permanent treaty with the United States. Is the ratification of this treaty a condition precedent, or a condition subsequent to withdrawal? If precedent, the President is ordered to retain physical control over the island until the terms of Congress have been made the subject of treaty contract between the United States and Cuba; in this case the treaty may be practically dictated by the United States. If subsequent, he is to withdraw upon the establishment of a government