No. 586.

Mr. Bayard to Mr. Valera.

Sir: At the earliest moment compatible with a due consideration of the subject presented, I take pleasure in replying to the note of the 21st instant which you did me the honor to address to me concerning the manifestations of disaffected Cubans and their sympathizers in the United States, and the powers and duty of this Government, under existing law, in respect of such manifestations.

The frankness and energy with which you present, at the instance of the chief magistrate of the island of Cuba and on behalf of your Government, the considerations which you deem pertinent to the matter would cause a mere summary of your argument to suffer by comparison. Nor does it appear necessary to the purposes of this reply that I should recite your premises seriatim. It will be sufficient to regard the object you appear to have in view, which I take to be to cast upon the Government of the United States implied responsibility for “permitting” or “tolerating” expressions of sympathy in the United States on the part of those misguided persons who seek to disturb the peace of Spain, and to urge the obligations of this Government to prevent such expressions from being made. Incidentally you appear to impugn the sufficiency of the existing modes of procedure in the United States with reference to infractions of law, as, for instance, when you advert to the apprehended results of trial by a jury of the vicinage where the offense may have been committed, and assume that the prevalence of popular sympathy with the accused would “almost certainly” result in acquittal.

While the tenor of your note leads me to believe that you hold it the duty of a Government to repress outward manifestations of opinions which may result in overt violations of law, I would perhaps do you injustice if I thought you held it likewise an obligation on the part of the Executive to repress public sympathy with the actors in the case.

The sympathies of masses of men may be mistakenly bestowed upon unworthy objects, but error of this character is not in itself a crime amenable to the punitive arm of justice.

As you are aware, the Executive of the United States has no authority to take cognizance of individual opinions and the manifestation thereof, even when taking the shape of revolutionary or seditious expressions directed against our own Government; and it is no less incompetent to pass upon the subversive character of utterances alleged [Page 777] tocontravene the laws of another land. In the early life of this Government an attempt was made by the “alien and sedition” acts, passed in 1798, to invest the Executive with authority over those persons, strangers or natives, who might by conduct short of overt crime imperil the stability of the infant state, but those acts were exceedingly obnoxious to the majority of the American people, and by their own terms were of very limited duration, and since their expiration public opinion would never have justified their re-enactment. The people of the United States became early convinced of the uselessness and unwisdom of such statutes. Error being in such cases its own corrective, a safeguard is found in the fact that the open proclamation of nefarious intent renders it harmless.

In passing from the mere announcement of the purpose to do unlawful acts to the overt commission thereof, the domain of statute law is entered. Our laws define and punish acts against the peace and safety of our own country and of friendly states. The neutrality act prescribes the duty of this Government in respect of acts harmful to its neighbors. And here let me notice the impression which seems to mark a part of your note, that the statute implies a de facto neutrality toward both the foreign state and those whose acts within our jurisdiction may disturb its peace.

You say that you deplore—

As almost incomprehensible this laxity in defending a friendly nation from the attacks of any conspirators, and this singular idea of calling “neutrality” this lack of discrimination between a legitimate and civilized Government, which is regarded as friendly and an outlaw who seeks to make war upon that Government by means of robbery, plunder, and incendiarism. One would think that there was no room for neutrality in such a case, and that none was possible between two parties whose characters are so entirely distinct.

I need scarcely remind you that the phrase “neutrality act” is a distinctive name, applied for convenience sake merely, as is the term “foreign enlistment act” to the analogous British statute. The scope and purpose of the ct are not thereby declared or restricted. The act itself is so comprehensive that the same provisions which prevent our soil from being made a base of operations by one foreign belligerent against another likewise prevent the perpetration within our territory of hostile acts against a friendly people by those who may not be legitimate belligerents, but outlaws in the light of the jurisprudence of nations, There is and can be no “neutrality” in the latter case. If the hostile party carries his hostility beyond the pale of law, he commits a crime against the United States and is amenable to the prescribed process and punishment.

This Government administers its own law in the case; it does not assume to visit with penalty conduct which, if committed within a foreign jurisdiction, might be punishable therein. To do otherwise would be, in effect, to attempt to recognize and administer within the sovereignty of the United States a domestic law of another sovereign. As I intimated in my note to you of May 28 last, proceedings under the “neutrality laws” of the United States are “set in motion by due information made under oath by some person cognizant of the facts alleged or possessing belief sufficient to that end,” but they are so set in motion in the name, and by the power, and through the officers of the Government of the United States. Prosecutions against any who are alleged to have contravened those laws are not by suit inter partes, but in the name and behalf of the Government of the United States [Page 778] against the accused. The foreign Government against whose peace the alleged hostile act may be directed is not a plaintiff in the action, as you seem to suggest. The Government of the United States is the plaintiff.

The injury complained of is not to the foreign Government, but to the peace and good order and laws of the Government of the United States. And the Executive can no more punish or repress offenses of this nature without the judicial ascertainment of the fact that an unlawful act has been committed than it could by administrative mandate award death on a charge of murder. Neither in the one case nor in the other could the representations of parties claiming to be aggrieved override the indispensable requisite of a judicial proceeding. The fact that the imputed act of wrong doing may, in its result, affect the peace of another state, does not supersede the law applicable to the case, and recourse to that law cannot “imply the uselessness of a diplomatic representative.”

This Government does not and cannot undertake, as I have shown, to control the workings of opinions, sympathy, and affiliation of sentiments, and the expression thereof is not punishable in this country by law; but any affidavit, founded even upon mere information or belief, charging a breach of any public law regulating acts against the peace or safety of a foreign state, will lead to an examination and a prosecution by the district officers of the United States wholly at the public cost should the facts thus alleged ex parte be found to bring the matter within the purview of the statute.

The law, being so in control of the case, must follow it to the end. The Executive has no authority over the judiciary. The expressions of sympathy cannot be controlled, however misplaced. The acquittal of persons charged with the most detestable crimes against society, sometimes in the face of overwhelming evidence of guilt, is frequently accompanied by the acclaim of a reckless, unthinking body of sympathizers.

The Government of the United States is able confidently to aver the fullest compliance, uberrima fide, with its obligations to the friendly power of Spain, and to avow also its readiness to set in motion instantly all the ample machinery of its laws to prevent and punish any invasion of or intrusion upon her peace, her honor, and her possessions.

The indignation you feel, and which is reflected in your note, is doubtless very natural, but in the name of the United States, and in the interest of the harmony and good understanding which it is our common duty and pleasure to endeavor to maintain, I am constrained to deprecate the deflection of any portion of that indignation from its legitimate objects towards the Government of the United States or its officials, who, I am glad to say, heartily join with you in reprobation of those who defy law, whether in Cuba or in the United States.

In conclusion, permit me to assure you that if any attempt on your part or by your agents to cause the laws applicable to the case, and the international obligations of the United States, to be respected to their fullest extent shall fail, and the incident be Brought to the notice of this Department, it will promptly lend its aid to vindicate the law and enforce its remedies.

Accept, &c.,