[801] *Mr. Hoar, Attorney-General, to Mr. Fish, Secretary of State.
December 16, 1869.
Sir: In compliance with your oral request, I send you in writing my opinion upon the question whether it is proper for the United States to cause a libel to be filed under the third section of the statute of April 20, 1818, entitled “An act in addition to the act for the punishment of certain crimes against the United States, and to repeal the acts therein mentioned,” against the gun-boats building in New York for the Spanish government, on the ground that they are procured to be fitted and armed with intent that they shall be employed in the service of Spain, a foreign state, with intent to cruise or commit hostilities against the subjects, citizens, or property of a “colony, district, or people,” with whom, the United States are at peace, namely, a colony, district, or people claiming to be the republic of Cuba.
The statute of 1818 is sometimes spoken of as the neutrality act, and undoubtedly its principal object is to secure the performance of the duty of the United States under the law of nations as a neutral nation in respect to foreign powers. But it is an act to punish certain offenders against the United States by fines, imprisonment, and forfeitures, and the act itself defines the precise nature of those offenses.
[802] The United States have not recognized the independent national existence of the island of Cuba, or any part thereof, and no *sufficient reason has yet been shown to justify such a recognition. In view of the Government of the United States, as a matter of fact which must govern our conduct as a nation, the island of Cuba is a territory under the government of Spain, and belonging to that nation. If ever the time shall come when it shall seem fitting to the political department of the Government of the United States to recognize Cuba as an independent government, entitled to admission into the family of nations, or, without recognizing its independence, to find that an organized government, capable of carrying on war, and to be held responsible to other nations for the manner in which it carries it on, exists in that island, it will be the duty of that department to declare and act upon those facts. But before such a state of things is found to exist, it is not in my opinion competent for a court to undertake to settle those question. The judicial tribunals must follow and conform to the political action of the Government in regard to the existence of foreign [Page 754] states and our relations to them, and it would in my opinion be inconsistent with the honor and dignity of the United States to submit to a court and allow to be declared and acted upon in such an indirect manner rights and duties toward a foreign nation which the Government is not prepared distinctly and upon its own responsibility to avow and maintain.
[803] It has been brought to my notice, as to yours by persons who profess to represent the Cuban insurgents, that libels have already been filed in the courts of the United States, under the statute of 1818, to procure the condemnation of vessels, on the ground that *they were being fitted out and armed with intent to be employed in the service of a “colony, district, or people,” namely, the colony, district, or people of Cuba, with intent to cruise and commit hostilities against the subjects of Spain, a nation with whom we are at peace, and it is argued that this involves what is claimed to be the converse of the proposition, that as we assert in those libels that Cuba is a “colony, district, or people,” capable of committing hostilities against Spain, the law equally applies to an armament procured or fitted out by Spain for the purpose of hostilities against Cuba, and that the executive government, by filing those libels, have virtually recognized the “colony, district, or people” of Cuba as belligerents.
This argument seems to me to involve an erroneous legal notion, and to be based upon the idea that the statute of 1818, being an act to protect and enforce the neutrality laws of the United States, cannot be applied except where there are independant parties to a contest entitled to equal rights; but this I think is an opinion wholly unsound. Undoubtedly the ordinary application of the statute is to cases where the United States intends to maintain its neutrality in wars between two other nations, or where both parties to a contest have been recognized as belligerents, that is, as having a sufficiently organized political existence to enable them to carry on war. But the statute is not confined in its terms nor, as it seems to me, in its scope and proper effect to such cases. Under it many persons who are insurgents or engaged in what would be regarded, under our law, as levying war against the sovereign *power of the nation, however few in number, and occupying however small a territory, might procure the fitting out and arming of vessels with intent to cruise or commit hostilities against a nation with which we are at peace, and with intent that they should be employed in the service of a “colony, district, or people” not waging a recognized war. The statute would apply to the case of an armament prepared in anticipation of an insurrection or revolt in some district or colony which it was intended to excite, and before hostilities existed. [804]
But on the other hand, when a nation with which we are at peace, or the recognized government thereof, undertakes to procure armed vessels for the purpose of enforcing its own recognized authority within its own dominions, although there maybe evidence satisfactory to show that they will aid the government in the suppression of insurrection or rebellion in a legal view, this does not involve a design to commit hostilities against anybody. If the illicit distillers of any section of the United States combine together to resist by force the collection of the revenue, and arm themselves for this purpose, with the intent to set at defiance, permanently and by force, the law of the United States, they must be levying war against the Government; but when the Government sends its officers to disperse or arrest the offenders, although it may find if necessary to employ military force in aid of its authority, it certainly [Page 755] cannot be considered as committing hostilities against the territory over which operations extend.
[805] The question of belligerency between organized commu*nities is a question of fact, and may be one of the gravest facts upon which a nation is called to decide and act. The concession of belligerent rights to a “colony, district, or people” in a state of insurrection or revolution necessarily involves serious restrictions upon the ordinary rights of the people of the country to carry on branches of manufacture and trade which are unrestricted in time of peace. To prevent our mechanics and merchants from building ships of war, and selling them in the markets of the world is an interference with their private rights which can only be justified on the ground of a paramount duty in our international relations, and however much we may sympathize with the efforts of any portion of the people of another country to resist what they consider oppression, or to achieve independence, our duties are necessarily dependent upon the actual progress which they have made in reaching these objects.
This subject, as you are now aware, is one to which long and careful consideration has been applied, and the result which I have thus briefly stated, and which might receive much fuller statement and illustrations, is that upon which the administriation have acted. I trust that I have made my view of the law intelligible, and have the honor to be,
Attorney-General.
Hon. Hamilton Fish,
Secretary of State.
[806] *PART
II.
COUNTER CASE
and
DOCUMENTS OF THE UNITED STATES.