Mr. Whitney's Argument for the United States. directed the district attorneys beforehand to enforce these laws "should the contest begin." H. R. 24th Cong. 1st sess. Doc. No. 256, p. 36, and directed prosecutions for enlistment in the insurgent cause before the independence of Texas was declared. Id., p. 37; see p. 3. In 1837 an insurrection broke out in Canada. Belligerency of the insurgents was never recognized. Van Buren, in his annual message of 1838, shows clearly that he regarded them in the same light in which the present Cuban insurrectionists have been regarded. A neutrality act was passed, however; and the words "colony, district or people" were regarded as sufficient for the case. Act of March 10, 1838, c. 31, §§ 1, 2, 5. The act expired in two years by its own limitation, & 9. If any executive recognition is necessary to put the statute in operation, that recognition had been given when the libel was filed, by the messages and proclamations of President Cleveland. When a vessel belonging to citizens of the United States commits hostilities upon the high seas against a friendly power, her act is prima facie piratical. She is forfeit, and her owners, officers and crew are liable to be hanged. See The Ambrose Light, 25 Fed. Rep. 408, and auth. cit.; Lawrence, International Law, § 122; Dana's Wheaton, § 124, note. If the act is done in the interests of a colony, district or people struggling for independence, then it is freed from this imputation, and the punishment is under a different and milder law. How is the existence of such a contest to be established? It is matter of judicial notice, not proof. It is not in its nature susceptible of proof by witnesses, and, besides, from motives of policy the judiciary looks to the Executive for information. As the present insurrection is for independence it is not necessary to inquire whether the pursuit of this object is a prerequisite to the operation of the statute. This does not appear to be required, and the statute seems equally applicable to revolts for the control of an already established state, like the recent Chilean war, or for civil rights, like our Revolution Mr. Phillips' Argument for Appellees. before July 4, 1776, the Buenos Ayres revolution before 1816, and the recent proposed revolt in Johannesburg. The bond or stipulation for the release of the vessel pending suit is not authorized by law; and, if authorized, should have been denied in the case of so serious a charge, in the absence of a defence upon the merits and of an affidavit of merits. Mr. William Hallett Phillips for appellées. From the variety of ways in which it is attempted in the libel to state what constitutes "a people," it is evident that the government experienced much difficulty in making the law agree with the facts. In some places it is alleged that the people referred to were certain persons, insurgents, revolutionists, engaged in armed resistance to the government of Spain. There is throughout the libel an endeavor on the part of the Attorney General to show a status of "a people," so that it should appear he does not refer to a people meaning simply persons. But the endeavor to escape from this meaning of individuals has not been successful, because, take as you will these various statements of "a people," arrange the designations as you may, the matter comes to this, that the reference after all is only to unorganized individuals— persons; and that is the signification which the court must draw from the use of the words "a people" in the libel. The Attorney General has attached too much significance to the question of belligerency. He seems to regard this question as the controlling one in the But the decree does not rest upon this point. Belligerency is only important as showing that to constitute "a people," within the meaning of the act, there must be either an actual independent state, or a power de facto, and that power de facto may or may not be recognized as belligerent. The real question is this: Can there be any proceeding under section 5283 against parties charged with fitting out a ship for the purpose of being employed by a state or "a people," unless it is shown that there exists a state in every sense of the word; a state among the family of nations, or else a de facto case. Mr. Phillips' Argument for Appellees. government recognized in the form of a political or other organization; "a people" claiming to be a government or actually exercising sovereignty. That there must exist "a people" in the sense I am contending for, is shown conclusively by the mention in the section of the words "subjects, citizens, or property of a people.” Thus section 4, act of 1817, 3 Stat. 370, now 8 5285, Rev. Stat., which applies to the augmentation of force of any ship of war or armed vessel within the United States "in the service of any foreign prince or state or of any colony, district or people, or belonging to the subjects or citizens of any such prince, state, colony, district or people." How can there be subjects of "a people," unless that people constitutes a government de jure or de facto? The Attorney General assumes a position which narrows the controversy. In the court below, when the libel was filed, the idea prevailed that "a people,” within the meaning of the act, meant any people, persons, individuals, and it was so stated. But now the Attorney General is driven to the position that "a people" must denote a body, must mean a community, an organization which actually exercises sovereignty or claims to exercise sovereignty over a country. The inquiry therefore is reduced to this: Is there shown in the record, either in the libel or otherwise, that there exists "a people" as is now contended by the United States; to wit, "a people" exercising or claiming sovereignty over Cuba either de jure or de facto? The Attorney General mentions certain persons as "a body." He refers to them as insurrectionists, revolutionists; reference is made to the President's proclamations and messages as establishing a status of "a people." The brief says: "This case brings up a question which has been recently much discussed; namely, whether the words, 'any colony, district or people,' include insurrectionary bodies, like the present 'Republic of Cuba,' whose belligerency, technically speaking, has not yet been recognized by the executive department of our Government." I do not understand what is meant by this expression, "technically speaking." I suppose it means legally speaking. What is this "body" to which reference is made Mr. Phillips' Argument for Appellees. as the present Republic of Cuba? Is there any such question in the present case? I submit that there is not. The Attorney General asks the court to contemplate the Republic of Cuba for one purpose only, for that of punishment. When he has succeeded in punishing persons for aiding the Republic of Cuba, he says to the court: "There is no such republic, there is no such people." They are the People of the Mist. They were here for a moment, they have now disappeared! As a matter of fact, can the court take notice of any Republic of Cuba or anybody called the Republic of Cuba? I should be very glad if the court could do so, but I think they are inhibited by the circumstances of this case and the statements in this record. Neither in the proclamations of the President, nor in his messages, nor in the libel, is there any mention of such a body as the Republic of Cuba or of any other body. We submit that the Government has not succeeded in creating for the purposes of this case an organized political body, or a community, or a government, or what is the same thing, a power, "a people." The reference in the libel is to insurgents, to revolutionists, to certain persons engaged in armed resistance to the government of Spain in the island of Cuba. Spain has never conceded that Cuba as a colony or "a people" is in insurrection against her, nor has the President stated it. It is true that there are insurgents there, or revolutionists, if you choose so to call them, or persons engaged in armed resistance to Spain. You may designate them as the Spanish government does and call them brigands, banditti, outlaws. You may bestow upon them the character they possess in the eyes of Americans, of patriots. What legal definition or distinction can be drawn from any one of these designations? For legal purposes you might just as well use one of these terms as another; they all fail to define "a people." The appellant's case is not strengthened by reference to executive documents. You will look in vain in any of these to find any recognition of a government or of "a people," of a sovereignty or of a power, having actually arisen against Spain. The President in his proclamations refers to "civil disturbances existing in the island of Cuba." He is very Mr. Phillips' Argument for Appellees. careful in the use of language. He was not so willing as the Attorney General now is to acknowledge a republic existing or claiming sovereignty over Cuba. Such a concession. would have involved many problems he was desirous of avoiding. The Attorney General further insists that the President's messages contained a description of this "body" or sovereignty in whose service it is alleged the vessel was to be employed. But these communications are as cautious as the proclamations not to commit this country to a concession that there exists in Cuba a sovereignty or government opposed to that of Spain. On the contrary it is definitely asserted that the only sovereignty on that island is the sovereignty of Spain. The Secretary of State in his report for 1896, communicated to Congress by the President, says: "So far as our information shows, there is not only no effective local government by the insurgents in the territories they overrun, but there is not even a tangible pretence to establish administration anywhere. Their organization, confined to the shifting exigencies of the military operations of the hour, is nomadic, without definite centres, and lacking the most elementary features of municipal government. There nowhere appears the nucleus of statehood. The machinery for exercising the legitimate rights and powers of sovereignty, and responding to the obligations which de facto sovereignty entails in the face of equal rights of other states, is conspicuously lacking. It is not possible to discern a homogeneous political entity, possessing and exercising the functions of administration, and capable, if left to itself, of maintaining orderly government in its own territory and sustaining normal relations with the external family of governments." The President, in his message for 1896, says: "As the contest has gone on, the pretence that civil government exists on the island, except so far as Spain is able to maintain it, has been practically abandoned. Spain does keep on foot such a government, more or less imperfectly in the large towns and their immediate suburbs. But, that exception being made, the entire country is either given over to anarchy |