the government, with which the judicial department will not interfere. States recognized the existence of an established government known as the Republic of Cuba, but is now using its military or executive power to displace or overthrow it, is without merit. The declaration by Congress that the people of Cuba were and of right ought to be free and independent was not intended as a recognition of the existence of an organized government instituted by the people of that Island in hostility to the government maintained by Spain. Nothing more was intended than to express the thought that the Cubans were entitled to enjoy— to use the language of the President in his message of December 5th, 1897-that "measure of self-control which is the inalienable right of man, protected in their right to reap the benefit of the exhaustless treasure of their country." In the same message the President said: "It is to be seriously considered whether the Cuban insurrection possesses beyond dispute the attributes of statehood, which alone can de. mand the recognition of belligerency in its favor. The same requirement must certainly be no less seriously considered when the graver issue of recognizing independence is in question." Again, in his message of April 11th, 1898, referring to the suggestion that the independence of the Republic of Cuba should be recognized before this country entered upon war with Spain, he said: "Such recognition is not necessary in order to enable the United States to intervene and pacify the island. To commit this country now to the recognition of any particular government in Cuba might subject us to embarrassing conditions of international obligation toward the organization to be recognized. In case of intervention our conduct would be subject to the approval or disapproval of such government. We should be obliged to submit to its direction and to assume to it the mere relation of a friendly ally." To this may be added the significant fact that the first part of the joint resolution as originally reported from the senate committee read as follows: "That the people of the island of Cuba are and of right ought to be free and independent, and that the government of the United States hereby recognizes the Republic of Cuba as the true and lawful government of the Island." But upon full consideration the views of the President received the sanction of Congress, and the words in italics were stricken out. It thus appears that both the legislative and executive branches of the government concurred in not recognizing the existence of any such government as the Republic of Cuba. It is true that the co-opera. tion of troops commanded by Cuban officers was accepted by the military authorities of the United States in its efforts to overthrow Spanish authority in Cuba. Yet from the beginning to the end of the war the supreme authority in all military operations in Cuba and in Cuban waters against Spain was with the United States, and those operations were not in any sense under the control or direction of the troops commanded by Cuban officers. We are of opinion, for the reasons stated, that the act of June 6th, 1900, is not in violation of the Constitution of the United States, and Whatever the status of Cuba may be as to the United States, therefore, its status as to other powers is that, so long as the occupation of the military forces of the United States. continues, it must necessarily be considered as much under the jurisdiction of the United States government as though it were an integral part of the territory thereof. § 109. National unity as to all foreign powers, a principle enunciated by the Congress of the Confederation, and continued until the present time.-One of the earliest acts of the Continental Congress was to pass a resolution that in our dealings with foreign powers the United States and colonies should be considered as one nation.' This resolution was passed at a time when the people of the States had by no means surrendered the same extent of power to the Central Government as was subsequently vested in it and is therefore a clear indication that from the earliest times unity, so far as foreign powers were concerned, became, and it ever since has remained, one that this case comes within the provisions of that act. The court below having found that there was probable cause to believe the appellant guilty of the offences charged, the order for his extradition was proper, and no ground existed for his discharge on habeas corpus. The judgment of the Circuit Court is, therefore, § 109. 13 Secret Journals of Congress, 452. "March 26, 1784: Congress took into consideration the report of a committee, consisting of Mr. Jefferson, Mr. Gerry and Mr. Williamson to whom were referred sundry letters from the ministers of the United States in Europe. And sundry instructions to the ministers relative to the formation of commercial treaties with sundry European nations being under debate, and the third article or instruction being amended to read as follows: That these United States be considered in all such treaties, and in every case arising under them, as one nation, upon the principles of the Federal constitution.' "A motion was made by Mr. Affirmed. Ellery, seconded by Mr. Howell, of the fundamental principles upon which the United States was based.2 The principle then enunciated of unity as to foreign powers has been so continuously and consistently adhered to by the United States, and adopted by all foreign powers, that it never can be receded from, but must be accepted as a part of the organic law of this country, carrying with it all the benefits derivable therefrom as well as all the responsibilities which can be based thereon. it was resolved in the affirmative." " | CASES APPENDIX at end of this volSee comments of J. C. Bancroft ume. Amongst those cases will be Davis' notes to Miller's Lectures found the following: on the Constitution of the United States, pp. 53-54. 2 Since the completion of this chapter the Supreme Court has decided several of the Insular Cases in which the status of some of the recently acquired possessions of the United States has been determined. Those cases are discussed in another part of this volume (§ 61, pp. 117, et seq., and other sections there referred to post, and appendix at end of volume), and there is not room for any extended reference to those decisions at this point. The question of national unity and the complete control of foreign relations by the Central Government was raised and numerous cases cited in regard thereto. See collation of cases in INSULAR 190 Barron vs. Baltimore, U. S. Sup. Ct. 1833, 7 Peters, 243, MARSHALL, Ch. J.; Briscoe vs. Bank, U. S. Sup. Ct. 1837, 11 Peters, 257, MCLEAN, J.; Chinese Exclusion Cases, U.S. Sup. Ct. 1889, 130 U. S. 581, FIELD, J.; also 1893, 149 U. S. 698, GRAY, J.; Cross vs. Harrison, U. S. Sup. Ct. 1853, 16 How. 164, WAYNE, J.; Ekiu v. United States, U. S. Sup. Ct. 1891, 142 U. S. 651, GRAY, J.; Fleming vs. Page, U. S. Sup. Ct. 1850, 9 How. 603, TANEY, Ch. J.; Geofroy vs. Riggs, U. S. Sup. Ct. 1890, 133 U. S. 258, FIELD, J.; Neagle, In re, U. S. Sup. Ct. 1890, 135 U. S. 1, MILLER, J.; United States vs. Rice, U. S. Sup. Ct. 1819, 4 Wheat. 246, STORY, J. PART II. HISTORICAL REVIEW OF THE TREATY-MAKING POWER OF THE UNITED STATES. CHAPTER IV. THE TREATY-MAKING POWER AS AN ATTRIBUTE OF SOVEREIGNTY AND AS EXERCISED BY CENTRAL GOVERNMENTS OF CONFEDERATED POWERS. § 110. Ancient origin of treaties.-Treaties, leagues and compacts have been made from time immemorial between different powers, states, tribes, peoples and princes. The Bible records many instances of treaties and leagues; one very notable case was the compact made by the Children of Isreal with the Gibeonites when they were entering the Promised Land, and which is especially analogous to the question under consideration, as it was made between the chiefs of the two nations; notwithstanding the fraud by which the Gibeonites procured exemption from the general slaughter to which all the other tribes of Canaan had been doomed, the compact was suffered to remain inviolate, although the Children of Isreal themselves resented it, because the tribal chiefs in whom the power was vested had exercised it, and thus had plighted the faith of the nation, thereby binding all the tribes and members thereof, making it impossible for them to recede from the compact, although they meted out a prolonged punishment on the Gibeonites for the fraud and deceit which had been practiced. We are also told at a later period of the terrible retribution which resulted from Saul's violation of that treaty. The histories of Rome and Greece are replete with instances in which their relations with other peoples were established and maintained by treaties.3 § 111. Treaty-making always vested in highest powers; Professor Woolsey's views.-There are recorded instances of treaty-making during the entire known history of the world; in almost every case it will be found that the right has been vested in the highest governmental power; in fact, the right of negotiation with foreign powers has not only always been considered as a badge, or attribute, of complete nationality and sovereignty, but, as a general rule, the power of negotiation does not exist in those political bodies which lack any of the elements of complete nationality and sovereignty; nor can the right be exercised by any person or power other than the highest sovereign power or the duly qualified representatives thereof. That the right of making treaties is an essential attribute of sovereignty to be exercised only by the highest power, and that States which have parted with their sovereignty or any part thereof, have no treatymaking power, is a rule which has practically been admitted $ 110. 1 Joshua, chap. IX, 3-27. Law of Nations, vol. 1, Cambridge, Engl. 1899, p. 34, for Jewish Treaties; pp. 47-61, for Roman Treaties; p. 78 for Saracen Treaties. |