F 1786 .W61 Copy 1 THE CUBAN REVOLT AND THE CONSTITU TION. A PAPER BY EDWARD B. WHITNEY. [From the Vak Review, May, 1898.J X THE CUBAN REVOLT AND THE CONSTITU- TION. A PAPER BY EDWARD B. WHITNEY. [From the Yale ^Review, May, 1898,] ( \'\ THE CUBAN REVOLT AND THE CONSTITUTION. IN June, 1895, soon after the present Cuban war com- menced, President Cleveland recognized the existence of the insurrection and proclaimed the neutrality of the United States. By this step our so-called neutrality laws were put into operation, both as against the Cubans and as against the Spaniards.^ The operation of these statutes would have been in no wise different had the insurgents been recognized even as an independent state. They were, however, most anxious to be recognized as such. This would doubtless have aided the sale of their bonds, and perhaps would have embroiled us at once with Spain, thus indirectly assuring the result which they were fighting to attain. But to recognize a body as inde- pendent is simply to say that it is so; and to say that it is so when it is not so is to tell a lie. The Cubans were not inde- pendent, although we wished that they were, and hoped that they would get to be. The President had no right to tell a lie in the name of the American nation, and did not. Nor was there any reason for recognizing "belligerency." He had already recognized that a war was being waged, and that the insurgents were not mere bandits or rioters. They had no territorial or military contact with the United States, no sea- ports, no navy, no privateersmen. Spain, on the contrary, had seaports and a navy. For reasons of her own she preferred not to have the Cubans recognized as belligerents, technically speaking; but if we had done so, she could have exercised against our vessels the right of visitaftion, search, and seizure of contraband articles on the higlr^seas, while we would have forfeited the right to complain of the war's injuries to the property of our citizens on the island. A recognition of belligerency is a detriment to the neutral, which should be ' Tke Three Friends, 166 U. S. I, decided by the Supreme Court of the United States, March i, 1897. The opinion and arguments in that case discuss the nature and effects of recognition of belligerency. By Transfer. ™^0 1898] TJie Ctiban Revolt and the Constit2ttion. 9 avoided if possible. It is of material advantage only to a belli- gerent with whom the neutral comes actually in contact, on land or sea.^ Hence President Cleveland and his successor, up to the time when our own war with Spain brought us into practical alliance with the insurgents, gave them recognition neither of "bellig- erency" nor of independence. The reasons, however, were not understood by most of our people, who were misinformed on the legal aspects of the question. Many, moreover, were anxious to provoke the war between ourselves and Spain as soon as possible. The agitation was taken up in Congress, and both Houses at the session of 1895-6 passed a resolution expressing their opinion in favor of recognizing belligerency. In the following December a resolution actually declaring the independence of the Cubans, and offering mediation, was intro- duced and pressed in the Senate. It was met with a quiet statement from Mr. Olney, the Secretary of State, that such a resolution would only express the individual opinions of the gentlemen who should vote for it, and would have no legal efifect, since the recognition of independence of a new foreign state is an executive and not a legislative act. The statement precipitated a constitutional debate and the journalistic and senatorial attacks upon the Secretary were hot; but they sub- sided rapidly upon the production of the precedents upon which he relied,^ and the resolution was dropped. The con- troversy of 1898, when a large party in Congress attempted to take the whole jurisdiction over foreign relations out of Presi- dent McKinley's hands, is still fresh in memory. We have seen enough of Presidential and Congressional diplomacy, of their differences in method and efifect, to realize the very great importance of the constitutional question, how far the Presi- dent's power reaches in foreign affairs, and how far Congress ^ The alliance now (May 2) projected with Gomez' troops will doubtless involve a recognition of belligerenc}'. * See the two memoranda prepared in the executive departments and pre- sented by Senator Hale {Sen. Docs., 54th Congr., 2d Session, Nos. 40, 56); also speech of Senator White, February 25, 1897, and of Senator Spooner, April 15, 189S. lo Yale Review. [May has concurrent or superior jurisdiction. Had Congress the right to recognize Cuban belHgerency? Had it the right to recognize Cuban independence? Had it the right to direct the course of diplomatic correspondence, and decide when the ultimatum should be sent? It must be remembered that the Federal Constitution was built upon the theory, long accepted as gospel by our states- men, that the best form of government is one in which the three great branches, legislative, executive and judicial, are entirely independent of one another. One is to legislate, another to administer, the third to adjudicate. Neither is to direct the other. The powers of sovereignty are to be so distributed between them that there shall be no duplication, no concurrent jurisdiction, which might give rise to possible deadlocks and disputes. The theory is not always satisfied in practice, but as a general rule whatever power is granted to the executive branch is denied to the legislative, and vice versa; and certain it is that whatever power either derives from the Constitution is independent, and is not subject to direction from the other. The Constitution does not confide the whole subject of foreign affairs, or of diplomatic negotiations, in express lan- guage to either branch of the Government, but leaves the matter to implication from its express provisions. It empowers the legislative branch to regulate commerce with foreign nations, to define and punish piracies and offenses against the law of nations, to declare war, to grant letters of marque and reprisal, and to make all laws necessary to carry into execution any of these powers, or any of the other powers vested in the government of the United States, or in any department or officer thereof. It empowers the Executive—the President — with the advice and consent of the Senate, to make treaties, and to appoint ambassadors, other public ministers and consuls. It empowers him to receive ambassadors and other public ministers. Diplomatic negotiations are conducted by ambassadors and other public ministers, and in rare instances by special com- missioners. . The President's authority to send and receive these officials is absolutely independent of the legislature. It 1 898] TJie Cuban Revolt and the Constitution. 1 1 is limited only to the extent of requiring the confirmation by the Senate of his nominations, the Senate thus acting in its executive capacity. Congress can indeed exercise great influ- ence through its power of appropriating money; but though it refuse to appropriate for the office, the President and Senate can send an ambassador if one is to be found who will go with- out salary and pay for his own outfit. The highest result of diplomatic negotiations is a treaty; and the power to make treaties is also absolutely uncontrolled by Congress, the President acting with the Senate in its executive capacity. Yet a treaty is part of the supreme law of the land. It is of equal rank with an act of Congress. A statute abro- gates a prior treaty with whose provisions it conflicts, but a treaty has equal power over a prior act of Congress. Thus a tariff duty on some article may have been intended by Congress to be the corner-stone of our revenue system, yet the article may be transferred to the free list by the action of the President and Senate in making reciprocity treaties with the countries from which it is imported. So our anti-Chinese legislation could be repealed by a new treaty with China. The President and Senate can do things by treaty which Congress cannot do by statute. Congress cannot modify the alien laws of a State; but a treaty with a foreign nation can give its citizens equal privileges with our own. By a treaty, without consulting the House of Representatives, we surrendered Texas in 1819, part of Maine in 1842, and British Columbia in 1846. While the first of these treaties was pending, Henry Clay introduced in the House a resolution reciting that, as Congress has power to dispose of our territory, no treaty to alienate any portion of it is valid without the concurrence of Congress; but upon opposi- tion it was dropped. Diplomatic business not relating to treaties consists partly in negotiating informal compacts of similar nature, and for the rest in such work as the collecting and giving of information, requests for protection of our citizens, assisting them in the protection of their personal and property rights, and procuring for them social introductions. None of these acts are legisla- tive in character. Diplomacy, therefore, is a matter entirely 12 Yale Review. [May entrusted to the President's responsibility; while at the same time it is eminently proper that he should ask the opinion of Congress before any step is taken which might require large appropriations, or which might decrease the revenue of the government, or which might lead to war. It has been cus- tomary for Congress to give its advice in the form of a resolu- tion; but sometimes it has been put in the form of a statute. Thus Congress has advised the President to make reciprocity treaties upon a certain basis with foreign countries. This advice is conveyed in the form of a statutory provision author- izing him to do so, but the statute conveys no authority to him, since his treaty-making power is conferred by the Consti- tution, and is unlimited. Still the provisions are very valuable as assuring him the moral support of Congress, without which he ought not to make such radical changes in our revenue laws. Among the exceptional cases in which the President ought to obtain the advice of Congress before taking any final steps, are those negotiations which may lead to war. War must be declared by Congress. It requires large appropriations and much legislative action. Before the President takes any step which might constitute a casus belli he should ask and obtain legislative approval. This was done in April, 1898, by President McKinley as a necessary preliminary to his threat of armed intervention in Cuba, The "recognition of belligerency" and "recognition of inde- pendence," which have been so much discussed within the past three years, are in their essence judicial acts. They are simply decisions, upon evidence duly presented, that belligerency or independence exists as a fact. The judiciary, however, for vari- ous practical and political reasons, refuse to take evidence and decide the question for themselves. It would often be absolutely impracticable to take the necessary evidence as to occurrences in foreign lands. It would also be most impolitic to exercise a jurisdiction which might bring the judges into collision with the executive government and bring the United States into collision with a foreign power. The judiciary, therefore, have always looked to the executive department of the government 1898] The Cuban Revolt and the Constitution. 13 for information upon this point; and when the executive department finds and announces that belhgerency or independ- ence exists, then, and not until then, does the judiciary find the same. Belligerency can indeed be recognized also by Congress, as through its powers to declare war and to define piracies. If war were declared against the Cuban insurgents, that would recognize their belligerency at once. So, if the insurgents put privateers upon the ocean, Congress could legislate that they be not treated as pirates. Ordinarily, however, recognition must come from the executive; and I believe that never up to this time has there been a legislative recognition. I have never seen a tenable suggestion of any method by v/hich the independence of a foreign country could be con- stitutionally recognized by a legislative act. An appropria- tion act might provide for the pay of a minister to the new state; but it would lie with the President whether to appoint him, and the effect of the appropriation would be simply that the President, when deciding to recognize, would have ready money to open diplomatic relations. It has been suggested that recognition could be made under the war power; but declaring war against a people recognizes them only as belliger- ents. We admitted all through the late Civil War that we were at war with the Confederates, but we never recognized them as independent. By its very definition a recognition of belligerency is a recognition that the belligerents constitute a state for all purposes of the war.^ Similar reasoning will show that Congress cannot recognize the independence of a foreign country under its power to define piracies or offences under the law of nations. It has been sug- gested that Congress may recognize independence through its right to regulate commerce. That would be the case if it had the right to recognize commerce by treaty, but it has not. Independence of a foreign country is not recognized by any statute regulating trade with it. Thus we have long had statutes regulating trade with the Dominion of Canada, with ^ Lawrence, International Law, §162 ; Hall's Inter tiational Law, i.'Ca. Ed., p. 32 ; The Estrella, as explained at 166 U. S., pp. 57-8. 14 Yale Review. [May the colonies of New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island, and even with the single city of Chihuahua in Mexico. Nor can such a right be inferred from the fact that its exercise by the President might lead to war. If that argument were good, it would follow that the President has no right to recognize a new foreign state; but that right has been conceded to him, and has been exercised by him without question, in a very large number of cases during the past hundred years. There are many ways in which acts of the executive department might provoke a declaration of war from a foreign country. Circumstances are even conceivable in which the judiciary, or one of the States of the Union, might provoke hostilities. The President, however, is expressly given power to recog- nize independence of a foreign country in the most usual and proper method of performing that act, namely, by receiving an ambassador, foreign minister or consul. Recognition is sometimes effected by the President and Senate in sending a minister, or by the President in sending a commissioner, or, in case the new power is simply the suc- cessor of one previously recognized, as upon the revolutions in France, Brazil and Hawaii, by instructing the resident minister to maintain diplomatic relations with the new government. The political situation during the last years of the great Spanish-American revolution was similar in many respects to that which existed during the three years before the breaking out of the present war with Spain. Then, as of late, the Presi- dent was the conservative force, sympathizing indeed with the people of the United States in their strong desire for the suc- cess of the revolutionists, but impressed with the responsibility imposed by his oath of office, anxious to observe the duties of neutrality, and determined not to recognize the independence of the Spanish colonies until the moment when the independ- ence was an assured fact. Then, as of late, a strong party in Congress was determined to force the President's hand if possible, and to do everything which could be done by the legislative branch of the government to secure it instant recognition. The President was James Monroe. The leader 1898] The Ciiban Revolt and the Constitiition. 15 of the radicals in Congress was Henry Clay. Many of the men who assisted in establishing the Constitution were then still living, and every resource of ingenuity was exhausted in invent- ing some method of accomplishing the desired end by legisla- tive action. The history of these preliminary contests is, there- fore, most significant. The revolutions commenced in 1810. They met with great success, although with occasional reverses. They were not confined to the interior of the country, but the insurgents held seaports and maintained many privateers and merchant vessels upon the seas, sailing under many new flags. The present Argentine Republic, — then officially called the United Provinces of South America and generally known by the name of its metropolis, Buenos Ayres, — was free from Spanish control after 18 12, although it did not declare independence until 1816. New Granada and Venezuela were held by the patriots for a large part of the time after 181 5, and from 1819, when Bolivar entered Bogota, the Spaniards held but little ground. Chili was reconquered by the patriots early in 181 7, and remained pacified, except one minor seaport, after April, 181 8. By his annual message of December, 181 7, President Monroe announced that the belligerency of the principal insurgent governments had been recognized. Mr. Clay was not satisfied, and projected a motion to acknowledge the government of Buenos Ayres and perhaps Chili. This motion was never actually made, and his subsequent course shows that in all probability it was dropped on account of the constitutional ina- bility of Congress to adopt it. On March 24, 1818, when the house was in Committee of the Whole upon the appropriation bill, Mr. Clay moved an appropriation for a minister to the "independent provinces of the River Plata in South America" (meaning the Buenos Ayres government). This would involve the assertion by Congress of the right to acknowledge the independence of this province; but upon the following morn- ing Mr, Clay redrafted his amendment, striking out the word "independent," and providing that the appropriations should be available "whenever the President shall deem it expedient to send a minister to the said United Provinces." In support 1 6 Yale Review. [May of this, Mr. Clay said "that, without unconstitutional inter- ference with the executive power, with peculiar fitness we might express in an act of appropriation our sentiments, leav- ing him to the exercise of a just and responsible discretion." Even in this form the resolution was opposed by John Forsyth, the Chairman of the Committee on Foreign Affairs, and by William Lowndes, one of our greatest parliamentarians and then the leader of the house; the latter maintaining that "it is the exclusive right of the executive to manage our foreign relations," and that "we should present a single front," since the President only can communicate, negotiate and treat with foreign nations, so that the initiative should be left to him. Mr. Clay made two great speeches in support of his resolution, but it was defeated by seventy votes. On May 20, 1820, he succeeded against the opposition of Mr. Lowndes, and by a majority of five, in passing a resolution through the House declaring the expediency of the appropriation for such minis- ters or minister as we "may send to any of the governments of South America which have established and are maintaining their independence of Spain." The matter went no further. On February 9, 1821, he made a similar motion, which was defeated by seven votes. On the following day he introduced a resolution declaring the sympathy of the House with the South American revolutionists, and "that it will give its con- stitutional support to the President of the United States when- ever he may deem it expedient to recognize the sovereignty and independence of any of the said provinces." This resolu- tion he carried after a speech in which he declared that he "con- cluded that both Congress and the executive had this power, but that the most regular, ordinary and usual course was by the executive; and it was, therefore, proper to assure him of the sup- port of this House." His reason for supposing that Congress had the power is not disclosed. The committee to lay this reso- lution before the President was politely received by him with the declaration that he would take it "into deliberate considera- tion, with the most perfect respect for the distinguished body from which it had emanated." Meanwhile President Monroe had sent commissioners to South America to inquire into the 1898] The Cuban Revolt and the Constitution. 17 real state of affairs there. He had postponed active measures until his treaty with Spain for the acquisition of Florida and confirmation of our right to Oregon had been assured. The struggle of Spain had become hopeless, and at last on March 8, 1822, nearly twelve years after the commencement of the struggle, he sent a message to Congress stating that in his opinion the time had come to recognize these republics, and asking an appropriation for the salaries and outfits of the ministers. The House adopted resolutions stating that it con- curred in his opinion and instructing the Committee of Ways and Means to prepare an appropriation bill accordingly. Recognition was given by his reception of the Columbian minister on June 18, of that year. In 1836 great excitement had arisen among our people over the revolution in Texas, and Mr. Clay, now a member of the Senate, again took the lead by introducing a resolution that its independence "ought to be acknowledged by the United States whenever satisfactory information shall be received that it has in successful operation a civil government capable of perform- ing the duties and fulfilling the obligations of an independ- ent power; and, while conceding that the President under the Constitution has the charge of our foreign intercourse and ought to take the initiative in an acknowledgment of independence of any new power, said that if "the Presi- dent should be tardy he may be quickened." The resolu- tion was adopted. Daniel Webster said in the debate that "against a direct recognition he thought there existed strong objections; it was the proper function of the President to take the lead in this matter." Mr. Clay maintained that Congress might recognize independence by a law regulating commercial intercourse; but neither he nor any one else has ever found a way of framing such a law so as to have the desired effect. The House passed resolutions subsequently to the same effect, introduced by Mr. John Y. Mason, the Chairman of the Committee on Foreign Relations; but his report made no claim that Congress had the right to recognize Texas, say- ing, on the contrary: "By the Constitution of the United States the duty of conducting negotiations and of superintending 1 8 Yale Review. [May our relations with foreign states is devolved on the President." At the following session President Jackson sent a message to Congress in which he stated that it was unnecessary to discuss the constitutional question, for "on the ground of expediency" he thought it better "that the expediency of recognizing the independence of Texas should be left to the decision of Con- gress." An interesting discussion followed in the House, John Quincy Adams opposing any form of words which would imply that Congress had the right to give recognition. The opposi- tion was successful. An appropriation for a diplomatic agent "to the independent republic of Texas" was changed so that the agent should be sent "to the Republic of Texas whenever the President of the United States shall receive satisfactory evidence that Texas is an independent power and that it is expedient to appoint such a minister." Under this appropria- tion the agent was actually accredited. It has been claimed that Congress recognized the independ- ence of Hayti and Liberia in 1862, but the act merely author- ized the appointment of diplomatic representatives to these republics, and fixed their rank and pay. It had substantially the same effect as the appropriation for Texas just quoted. In 1864, the House of Representatives, against the protest of Mr, Blaine, passed a resolution claiming that Congress had the right to prescribe our foreign policy and recognize new powers, and that the President was obliged to respect that policy in diplomatic negotiations. President Lincoln and Secretary Seward took the opposite ground, and the Senate (which up to very recent years has always maintained the prerogative of the executive department, to which in a sense it belongs) paid no attention to the matter. In 1876 Congress passed a joint resolution requesting the Secretary of State to convey a complimentary message from it to the Republic of Pretoria (the Transvaal); but President Grant vetoed the resolution on the ground that it inadvertently infringed upon the constitutional rights of the executive, say- ing: "If Congress can direct the correspondence of the Secre- tary of State with foreign governments, a case very different from that now under consideration might arise, when that 1898] The Cttban Revolt and the Constitution. 19 officer might be directed to present to the same foreign govern- ment entirely different and antagonistic views or statements." As Congress and the President have never actually disagreed upon these matters, the question has never been presented to the judiciary for decision; but the great weight of authority, including that of Story, is in favor of the view which, as I have just shown, is sustained by the great weight of parliamentary and executive opinion throughout the first century of our RepubHc. The precedent established by Monroe and Jackson should be our guide for the future. As long as the President fails to obtain evidence sufficient to warrant him in recognizing a new foreign power, or as long as he finds it unwise to do so, Congress should remain quiescent; for it has no power or responsibility in the matter, while agitation can only have the effect of straining our foreign relations and injuring the pride of the nation which is endeavoring to suppress the revolt, thus lessening the probability that our sympathy may ultimately be given effect by peaceful means. The President on the other hand, when he thinks that the time has come, or may have come, for recognition of independence, but when there is risk of war, may and should submit the case to Congress, and take no step in that direction without legislative approval — not because the Constitution makes legislative approval requisite, but because good sense and good politics require it. The wisdom of the Constitution, in entrusting such great authority to the President instead of to Congress, I do not intend here to discuss at length. Certainly experience shows that it makes for peace; and it is argued by many that delicate foreign relations, where a few hasty or ill-chosen words may make the difference between peace and war, can not safely be put in the hands of a body so much under the influence of ora- tory and of journalism, so apt to be led by persons unskilled in foreign history and character and in international law, whose action can be delayed by a small minority in one house and controlled by a bare majority in either. There are certain special reasons, however, which have always been regarded as conclusive in favor of confining diplomacy to the President and 20 Yale Review. [May his confidential advisers, no matter how wise the legislative bodies may be. One of these reasons is the secrecy of much of the informa- tion on which the negotiations must be based. That the Presi- dent cannot safely divulge it all has been conceded from the earliest times in the formula by which Congress calls on him for the information, excepting from the call so much as may be incompatible with the public interest to repeat. When the Constitution was framed, the President had mainly to rely upon secret reports of Government agents for his knowledge of foreign affairs, which the news bureaus were not well organized to convey. It is less so now; but even in this Cuban insurrec- tion it has been impossible to learn through the press the real state of facts, while the recent consular reports have been of such a character that it was deemed wise not to divulge them until their authors had got away safe from the island. Still more important is the secrecy with which diplomatic negotiations must be carried on, in order that they may be successful. Above all, the extent of the concessions which the Government would make as a dernier resort must be concealed from the foreign state. This will be perceived by any one who has conducted a business transaction, or compromised a law- suit. If on one side there is an individual who keeps his own counsel, while on the other side is a large assemblage who must debate the intent and method of every step in the negotiations, binding the negotiator by restrictions a copy of which (with a report of the debates) is at once laid upon the adversary's desk, it is easy to see where the advantage lies. On this ground President Washington placed himself when refusing to submit to the House of Representatives his instructions to Jay, saying: "The nature of foreign negotiations requires caution, and their success must often depend upon secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventful concession which may have been pro- posed or contemplated, would be extremely impolitic; for this might have a pernicious influence on future negotiations or pro- duce immediate inconveniences, perhaps danger and mischief, in relation to other powers." 1898] The Cttbait Revolt and the Constitution. 21 It may be vital that the wording of the later diplomatic communications, and especially of the ultimatum, be selected with extreme care, in order that the civilized world may see that we are entirely in the right, and our enemy entirely in the wrong. The sympathy of neutral nations is no mere luxury in time of war. The event of the conflict may be determined by their regulations of neutrality, as for instance, in the extent to which they will permit belligerent cruisers to be supplied with coal in their own ports. Moreover, as we have just proved, it is possible for a third party to intervene in a war; and its sympathies as much as its real interests may determine the issue of intervention or non-intervention. Few will deny that a President and Secretary of State will draw more skillful state papers than are ever likely to emerge from a Congres- sional debate. Finally, when war is threatening, it is of importance that negotiations should be so conducted as to postpone the out- break of hostilities until the moment when we are prepared to open them to the best advantage. Preparations must be made for the mobilizing of armies: cruisers, cannon, ammunition, torpedoes, must be bought. Vessels in dry dock must be repaired. Vessels abroad must be recalled. If they are unarmed, time must be allowed to arm them there before the neutral is disqualified by the outbreak of war to render further assistance. Unpreparedness in these respects must not be known to the foreign nations. The President must not say to Congress — that is, to the press of the world, — "I am apparently vacillating and aimlessly procrastinating because part of the navy needs scraping and the rest happens to be in such and such a position with respect to the other party's torpedo boat destroyers." If the nation wants its wars to be quick, decisive and successful. Congress must quietly await the President's own time for action, and then give him its prompt support. Its action should be a simple yes or no, like the Senate's action on a nomination for office. The joint resolutions of April 20, 1898, which precipitated the present war with Spain, will be of slight weight as a con- stitutional precedent, because of the manner of their adoption; 2 2 Yale Review. [May for they were a compromise, satisfactory in form to few of those who passed them. It is of some significance that legislative recognition of the insurgent government in Cuba was defeated, and mainly on the ground that it would be an attempt to exer- cise a function belonging to the executive. The declaration that "the people" of Cuba are independent is difficult to construe.^ It is not intended as a recognition of independence of a new foreign state, as understood by inter- national law; for that proposition was rejected. But it is not permissible to put down anything in an act of Congress as mere rhodomontade, if such a result can be avoided. By familiar legal rules of construction we must find some meaning for the declaration if possible, and a meaning which will make it con- stitutional and valid. Such a meaning can be found if we treat the next two resolutions^ as passed with the knowledge that they would make immediate war v^^ith Spain unavoidable — an effect both intended and produced. By that war our citizens have become enemies of all Spanish subjects, so that all con- tracts between them have become void and all commercial intercourse illegal. Such a result, as far as the Cubans are concerned, Congress might well seek to avoid. The first resolu- tion will perhaps be construed by the courts as introducing an exception in favor of persons residing in the island of Cuba, so that intercourse with them shall remain legal, so far as not interrupted by actual hostilities or by Spanish occupation of their territory. ■^ " Be it resolved, "First — That the people of the island of Cuba are, and oi right ought to be, free and independent." The italicized words were stricken out by the House of Representatives, but restored by the Conference Committee. 2 " Second — That it is the duty of the United States to demand, and the Gov- ernment of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters. " Third — That the President of the United States be and he hereby is directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States to such an extent as may be necessary to carry these resolutions into effect." 1898] The Ctibaii Revolt and the Constitution, 23 The second resolution is undoubtedly unconstitutional, for Congress can not communicate with a foreign nation, nor can it direct the President how to perform his duties. It was entitled to most grave consideration from him, because it expressed the opinion and the wish of both Houses of Con- gress; but it would have had no legal effect, and no binding force upon him, if he had vetoed it and it had been passed over his veto. His signature added nothing to its legal weight; but his communication to Spain, in which he adopted its words, was valid as his executive act. For the war thus precipitated the President, therefore, is the person constitutionally respon- sible, just as a general is responsible for strategy which he has directed, even if he has, as against his own opinion, followed the advice of his staff. Whether the opinion and the wish of Congress, and the act of the President, were wise or unwise, timely or untimely, necessary or quixotic, must be left for his- tory to decide. No patriotic American can express now but one sentiment. Edward B. Whitney. New York. LIBRARY OF CONGRE: 015 819 624 4