must be the criterion to determine the comparative merits of the antagonist systems.

Prior to this time (namely, on the 12th of February, 1869), a decree, with an explanatory statement, had been issued by the Captain-General, taking from the jurisdiction of the ordinary courts a large class of crimes, and forcing American citizens charged with such crimes to be tried before a court-martial, in violation of the provisions of the treaty of 1795. When it is remembered that this decree was issued about the time when it was officially announced to the undersigned that "the rebels have no communication with each other, they occupy no place as a center of operations, nor have they in the whole island a single city, a single town, a single village or hamlet, nor even a point on the coast where they might collect their forces and date their orders and proclamations," Admiral Polo will comprehend the magnitude of this assault upon the rights secured to citizens of the United States by the treaty of 1795.

The English translation of the text of this decree is as follows:

"In use of the extraordinary faculties with which the provisional Government of the nation has invested me, I decree the following:

"ARTICLE 1. Crimes of infidencia shall be tried by ordinary court-martial. "ART. 2. Prosecutions already commenced shall follow the legal process prescribed by the laws for the tribunals of justice.

"ART. 3. All aggressions, by act or by word, against any of the delegates of the Government, shall be considered as a crime against the authority, and will subject its author to trial by court-martial.

66

"HABANA, February 12, 1869."

"DOMINGO DULCE.

SUPERIOR POLITICAL GOVERNMENT OF THE EVER-FAITHFUL ISLAND OF CUBA-OFFICE OF THE SECRETARY.

"For the better understanding of the decree published yesterday (the 12th of February) it is made known that under the word infidencia, which is made use of in article 1, are understood the following crimes: Treason, or lesa nacion, rebellion, insurrection, conspiracy, sedition, harboring of rebels and criminals, intelligence with the enemy, meetings of journeymen or laborers and leagues, expressions, cries, or voices subversive or seditious, propagation of alarming news, manifestations, allegations, and all that, with a political end, tends to disturb public tranquillity and order, or that in any inode attacks the national integrity.

"It is also made known that robbery in uninhabited districts, whatever may be the number of the robbers, and in populated districts, if the number of the robbers be more than three, shall be tried by court-martial, as also the bearers of prohibited arms. And by order of his excellency the superior political governor, the same is published in the Gazette for the general knowledge." On the 15th of April, 1869, the same policy which had prompted the authori ties in Cuba to deprive citizens of the United States of personal rights guaranteed to them by treaty led to a decree of embargoes of property, which, so far as it applied to the properties of citizens of the United States, was also in direct violation of the rights secured by the treaty of 1795. The publication of this decree was followed by the publication of another decree (made on the 1st day of April), interfering with the free alienation of property on the island. And two days later another decree was published, creating an administrative council, to take charge of the embargoed estates. Under the operation of these several decrees a vast amount of the property of citizens of the United States is understood to have (illegally, and in violation of law and right) come into the possession of subjects of Spain, without having yet been accounted for or refunded.

When these decrees came to the knowledge of the undersigned, he addressed the following communication to the predecessor of Admiral Polo, under date of April 30, 1869:

"I am instructed by the President to inform you that this Department has received from the United States consulate in Cuba a decree dated the 1st day of April current, and promulgated by the Captain-General of the island on the 15th of this month, which virtually forbids the alienation of property in the island, except with the revision and assent of certain officials named in the decree, and which declares null and void all sales made without such revision and assent.

"In view of the intimate commercial relations between Cuba and the United States, and of the great amount of American property constantly invested there in commercial ventures as well as in a more permanent form, the President views with regret such sweeping interference with the rights of individuals to alienate or dispose of their property, and he hopes that steps may be speedily taken to modify this decree so that it shall not be applicable to the property of citizens of the United States, and thus prevent disputes and complaints that can not fail to arise if its execution is attempted as to such property."

It is with regret that the undersigned finds himself unable to accept the declaration in Admiral Polo's note, made in connection with the seizure of private estates and the transfers of private property, that it was not without waiting for manifestations of disloyal sentiments and purposes that the decrees were made respecting the sales and embargoes. The undersigned is of opinion that a recurrence to the correspondence which he has had the honor to conduct with the Spanish legation in this capital, and through the legation of this Government at Madrid, will recall many instances of interference with the private rights and property of citizens of the United States who have had no connection with the insurrectionary movements in Cuba, and many where Spain has practically admitted the precipitancy of her officers in their haste to lay hands on private property, and has in many instances promised, and in a very few instances has granted, the restoration of property thus unlawfully seized. And in this connection the undersigned must be permitted to express the regret with which he observes the introduction into a diplomatic note of the cases of "eminent banking and commercial houses of New York and other places," which, by agreement between the two Governments, have been referred for adjudication to an international commission, and the prejudgment and denunciation of these eminent houses as having "lent their names to a pretext."

On the 7th of July, 1869, the captain-general of Cuba decreed: "ARTICLE 1. There shall continue closed to import and export trade, as well for vessels in foreign commerce as also those in the coasting trade, all the ports situated from Cayo Bahia de Cadiz to Punta Mayso, on the north, and from Punta Mayso to Cienfuegos, on the south, with the exception of those of Sagua la Grande, Caibarien, Nuevitas, Gibara, Baracoa, Guantanamo, Santiago de Cuba, Manzanillo, Santa Cruz, Zaza, Casilda, or Trinidad, and Cienfuegos, in which there are established custom-houses or collection offices.

Those who attempt to enter the closed ports or to hold communication with the coast shall be pursued, and, on being apprehended, prosecuted as infractors of the laws.

"ART. 2. In accordance with the same, there shall also be prosecuted vessels carrying powder, arms, or military supplies.

"ART. 3. The transportation of individuals for the services of the insurrection is much more grave than that of contraband, and will be considered as an act decidedly hostile, being proceeded against in such case as an enemy, the vessel and its crew.

"ART. 4. If the individuals to which the preceding article refers come armed, they will afford proof in fact of their intentions, and will be tried as pirates, the same as the crew of the vessel.

"ART. 5. There shall also be held to be pirates, in conformity with law, vessels which may be seized bearing a flag not recognized, whether the same be armed or not as vessels of war.

"ART. 6. On the high seas contiguous to those of this island the cruisers shall confine themselves to exercise over such vessels as may be denounced, or those that by their proceedings excite suspicion, the rights stipulated in the treaties signed by Spain with the United States in 1795, with Great Britain in 1835, and with other nations subsequently, and if in the exercise of these rights vessels should be found recognized as enemies of the integrity of the territory, they shall be brought into port for the corresponding legal investigation and trial."

This extraordinary decree caused a profound sensation in the United States, and the undersigned, as soon as it was received, addressed a note of inquiry to the predecessor of Admiral Polo, dated July 16, 1869, the material parts of which he takes the liberty of transcribing, as Admiral Polo seems to be under a misapprehension respecting it:

"The decree of the captain-general, De Rodas, assumes powers and rights over the trade and commerce of other peoples inconsistent with a state of peace, and which the United States can be expected to allow their vessels to be subjected to only when Spain avows herself to be in a state of war, or shall be manifestly exercising the rights conceded only to belligerents in the time of war.

"The first article of the decree proposes to close certain ports, embracing a large extent of the Island of Cuba, against the peaceful commerce of foreign countries. Without contesting the right of a government in time of peace to exclude from its ports the trade and commerce of a friendly people, the undersigned assumes that the exercise of this power is to be understood purely as a municipal act, to be executed and enforced wholly within the recognized exclusive jurisdiction of Spain, and only as to ports which are in the possession of the Spanish authorities. In case the success of the insurrectionary party should put any of the ports declared to be closed in their possession, the United States, as a maritime nation, will regard an effective blockade to be necessary to the exclusion of their commerce.

"The second article of the decree is vague in the absence of the limits within which it proposes to prohibit the carrying of powder, arms, or military supplies.

"The transportation on the high seas, in time of peace, of articles commonly known as contraband of war is a legitimate traffic and commerce which can not be interfered with or denounced unless by a power at war with a third party in the admitted exercise of the recognized rights of a belligerent. The freedom of the ocean can nowhere and under no circumstances be yielded by the United States. The high seas contiguous to those of the Island of Cuba are a direct pathway of a large part of the purely domestic trade of the United States. Their vessels trading between their ports in the Gulf of Mexico and those of the Atlantic coast pass necessarily through these waters. The greater part of the trade between the ports of the United States on the eastern side of the continent and those on the Pacific Slope of necessity pass in sight of the Island of Cuba.

The United States can not, then, be indifferent or silent under a decree which, by the vagueness of its terms, may be construed to allow their vessels on the high seas, whatever may be their cargo, to be embarrassed or interfered with. If Spain be at war with Cuba, the United States will submit to those rights which public law concedes to belligerents. But while Spain disclaims a state of belligerency, or until the United States may find it necessary to recognize her as a belligerent, the Government of the United States can not fail to look with solicitude upon a decree which, if enforced against any vessel of the United States on the high seas, can not but be regarded as a violation of their rights that may lead to serious complications.

"The sixth article of the decree refers to certain rights claimed to be stipulated by the treaty entered into between Spain and the United States in 1795. "The undersigned desires to call the attention of Mr. Roberts and of the Government of Spain to the fact that the treaty of 1795 confers upon neither of the contracting parties any rights on the high seas over the vessels of the other in time of peace.

"The articles of the treaty of 1795 from I to XI, inclusive, define and regulate the reciprocal relations and obligations of the parties without reference to either party being engaged in war. The portion of the treaty from the twelfth article to the eighteenth contemplates exclusively their relations as neutrals, the duties and powers of each toward the other when one or the other may be engaged in war with a third party. The eighteenth section recognizes and regulates the right of visit or of approaching time of war, for the inspection of the passport and the identification of the nationality of a vessel of commerce by the vessels of war, or by any privateer of the nation which shall be at war. It confers no right; it limits and prescribes the manner of exercising a belligerent right when such may exist.

"The clear object and intent of this provision of the treaty is the avoidance of discussion and annoyance and the prevention of abuse or indiscretion in the exercise of a belligerent right. Its location in the treaty, the recognition of the right of a privateer (who has no existence except in war) as having the same power and right in the particular referred to with a national vessel of war, and the whole scope and aim of the eighteenth article of the treaty, established beyond possibility of question that it refers only to the rights which one of the parties may have by reason of being in a state of war.

"The treaty authorizes nothing but the inspection of the passport of the vessel of trade met with, while the sixth article of the decree of General De Rodas contemplates a search as to the character of the vessel beyond the limitation fixed by the treaty.

"If Spain be engaged in the war, it is essential to the rights, as well as to the definition of the duties, of the people of the United States that they be publicly and authoritatively advised thereof and admonished as to their obligations and liabilities in their new relation with a friendly power. And such admonition admits of no avoidable delay in view of the vast commerce that will thus be subjected to restriction, limitation, and possible detention. "The undersigned therefore respectfully desires to be informed by Mr. Roberts, at the earliest practicable moment, whether, in the issuance of this decree, it is to be understood by the United States that Spain recognizes that she is in a state of war and claims the rights of a belligerent.

"The undersigned has the honor further to say to Mr. Roberts that the Government of the United States can not fail to regard the continuance of the decree referred to, or any exercise on the high seas near the Island of Cuba, by any vessel of war or privateer of Spain, of the right to visit or board any vessel of the United States, under color of the provisions of the treaty of 1795, as involving the logical conclusion of a recognition by Spain of a state of war with Cuba.

"Before concluding, the undersigned begs to call Mr. Roberts's attention to the very grave complication which might ensue from any interference with a vessel of the United States engaged in a lawful voyage, passing near the Island of Cuba. The United States maintain the right of their flag to cover and protect their ships on the high seas.

"In conclusion, the undersigned expresses the hope that Mr. Roberts will speedily be at liberty to announce the formal abrogation of a decree which causes so much serious apprehension to the Government of the United States,

and against which this Government feels bound most earnestly to remonstrate."

In deference, as it was understood, to these views expressed by the undersigned on behalf of this Government, the decree of the Captain-General was modified as follows on the 18th of July, 1869:

"In view of the determinations adopted by the Government of the United States of America, as reported by his excellency the minister of Spain in Washington, under date of the 15th instant, and which were published in the Official Gazette of the following day, and in order at the same time to relieve legitimate commerce from all unnecessary interference, in use of the faculties which are conferred upon me by the supreme Government of the nation, I have determined to modify my decree of the 7th instant, leaving the same reduced to the first five and essential articles."

In consequence of these severe measures against the persons and properties of Cubans who shared the opinions of the liberal statesmen of Spain respecting the injuries which had been inflicted upon their native country, many fled from the island to the United States. And the undersigned can not disguise from himself that these Spanish subjects, driven from their native country, have attempted to abuse the hospitality of the United States, that they have tried to make use of their safety here in order to regain what they had lost in Cuba, and that they have been restrained only by the perpetual vigilance and zeal of the officers of the United States. Alas, if the ears of the ministers of Amadeo and of the republic could have opened to the complaints of their Cuban friends, what criminations might have been spared us! Admiral Polo, in his review of the vessels which, he says, have taken or attempted to take men and arms from the United States to Cuba, speaks particularly of the Mary Lowell, the Salvador, the Grapeshot, the Catherine Whiting, the Hornet, the Lillian, the Upton, and the Virginius. He also makes reference to the Florida, the Edgar Stuart, the Anna, the Fanny, and the Webster.

The imperfect and in many respects erroneous manner in which Admiral Polo has referred to the vessels which he has named, and his entire neglect to notice the many proofs of the constant vigilance and of the anxious desire of the United States to perform all their international duties to Spain, make it necessary for the undersigned to give a brief review of what was actually done by the United States in respect of these matters.

It may give precision to the review to first define succinctly what the United States understand to have been their duties toward Spain as a neighbor and as a friend.

The repeated references by Admiral Polo to the doctrines laid down in the course of the discussion at Geneva induce the undersigned to say at the outset not only that the particular references and citations are from the argument of counsel, which in forensic discussions among all nations is permitted to take a wider latitude of expression than is usual in official or judicial statements, which are supposed to express settled convictions; but also that these discussions at Geneva were predicated upon the admission of a recognized state of war; and that if Spain is prepared to concede that there is a state of war in Cuba, with belligerent rights in each party to the conflict, and shall accede to the three rules set forth in the treaty of Washington, then the United States may be prepared to concede to Spain what they claimed of Great Britain at Geneva, namely, that their duties as a neutral toward Spain as a belligerent will not thereafter be fully performed by simply acting upon information which may be furnished by Spanish agents, without themselves originating any action; that, in the language of their own countercase at Geneva, "they would not thereby be relieved from the duty of an independent, diligent, and vigilant watchfulness in order to prevent evil-disposed persons from violating their neutrality."

But the undersigned is also constrained to insist that the idea of neutrality in international discussions is inseparable from the idea of a belligerency to which the neutral is not a party; and to repeat that he is unable to comprehend how propositions for the regulation of the conduct of a neutral in a state of war can be pertinently applied to the conduct of one sovereign state toward another friendly sovereign state in time of peace. Thus, when Peru, between whom and Spain a state of war existed, requested the United States to detain a large number of vessels of war which certain contractors were constructing within the territories of the United States for Spain, it became the duty of the United States to detain the vessels; but, when the assent to their release was given by Peru, it was not regarded by Spain or by the United States as any violation of international duty to permit the vessels to be constructed and delivered and dispatched, notwithstanding the existence of an armed insurrection against Spain in Cuba. Nor can it be claimed that the United States have been guilty of any neglect or want of duty in allowing Spain on more than one occasion to make use of their public dockyards for the preparation of vessels of war.

So far as relates to the past, Spain has never been willing to concede that a state of war exists in Cuba. The rights and duties of the United States to

ward Spain, therefore, from the commencement of the insurrection, are to be measured by the rights and duties of one nation toward another in case an insurrection exists which does not rise to the dignity of recognized war.

What one power in such case may not knowingly permit to be done toward another power, without violating its international duties, is defined with sufficient accuracy in the statute of 1818, known as the neutrality law of the United States.

It may not consent to the enlistment within its territorial jurisdiction of naval and military forces intended for the service of the insurrection.

It may not knowingly permit the fitting out and arming or the increasing or augmenting the force of any ship or vessel within its territorial jurisdiction, with intent that such ship or vessel shall be employed in the service of the insurrection.

It may not knowingly permit the setting on foot of military expeditions or enterprises to be carried on from its territory against the power with which the insurrection is contending.

The learned and accomplished minister of Spain, toward the close of his able discussion of this subject, cites the authority of Lord Palmerston to establish that a sovereign power "should not permit its territory to be made use of as a place of shelter from which communication should be carried on for the purpose of disturbing the tranquillity of the neighboring states."

These duties of good neighborhood were recognized by this Government more than a quarter of a century before Lord Palmerston made the speech referred to by Admiral Polo; and the neutrality law of 1818 was then enacted for the purpose of defining the acts of disturbance which should be prevented, and of providing a punishment for such persons as might be found to be guilty of them.

But a friendly government violates no duty of good neighborhood in allowing the free sale of arms and munitions of war to all persons, to insurgents as well as to the regularly constituted authorities; and such arms and munitions, by whichever party purchased, may be carried in its vessels on the high seas, without liability to question by any other party. In like manner its vessels may freely carry unarmed passengers, even though known to be insurgents, without thereby rendering the government which permits it liable to a charge of violating its international duties. But if such passengers, on the contrary, should be armed and proceed to the scene of the insurrection as an organized body, which might be capable of levying war, they constitute a hostile expedition which may not be knowingly permitted without a violation of international obligation.

During the late Franco-German war each party was free to purchase arms and munitions of war in this country, and did so, and Frenchmen whose hearts were with their struggling countrymen at home, or Germans who wished to join the invading armies of Germany, were free to leave the shores of the United States for that purpose, so long as they left as private citizens, unarmed, and without engagement made in this country to enter the service of a belligerent. They did thus leave, in vessels of several different nationalities. Neither this Government nor any other neutral government which may have allowed its merchant marine to transport the arms and munitions of war or the passengers to Europe was guilty of a violation of its duties as a neutral.

Even recognized war, therefore, can not oblige neutral nations to contract the right of their citizens to engage in such commerce which is lawful in time of peace, or to abridge the liberties of persons enjoying the protection of their flag to such a point as to render illegal either of these proceedings, although in time of actual war the transportation on the high seas of articles known as contraband of war is to be made subject to the right of capture. But in time of peace no vessel of war has the right to capture, or even to interfere with, molest, or detain upon the high seas, a regularly documented vessel of another power.

This doctrine is not new in the intercourse of nations.

On the 10th day of April, 1858, Mr. Cass, then Secretary of State of the United States, wrote to Lord Napier, the envoy of Great Britain:

"Undoubtedly a right vested in the armed cruisers of ono state to stop and examine the merchant vessels of another might be so exercised as to contribute toward the suppression of crimes upon the ocean. But this power of armed intervention might also be exerted at the expense of the maritime rights of the world. Such an exercise of force, so liable to be abused, will never meet the concurrence of the United States, whose history abounds with admonitions warning them against its injuries and dangers. They have no disposition to surrender the police of the ocean to any other power, and they will never falter in their determination to enforce their own laws in their own vessels and by their own power, and to oppose the pretensions of every other nation to board them by force in times of peace.

* **

To permit a foreign officer to board the vessel of another power, to assume command in her, to call for and examine her papers, to pass judgment upon her character, to decide the broad inquiry whether she is navigated