tion was valid. From this it follows that it weakened rather than strengthened the American position. Yet this was without doubt the very event which was regarded by the masses of the Americans as justifying a resort to war out of pure revenge.

The first and fourth reasons advanced by the United States remain to be tested.43 Both may under certain circumstances warrant a forcible intervention. Did such circumstances exist in April, 1898? That is, were the peace and security of the United States directly endangered? That the war was troublesome to the United States is not enough. That it increased the costs of government and greatly strained administrative resources would not satisfy jurists that an immediate danger existed. Likewise it has been held** that the war was little more inhumane than wars generally are; at least that the cruelty of the Spanish warfare has been grossly exaggerated. Its most serious phase was that it had been prolonged and that there was little reason for believing that Spain could ever end it. The fact remains that Spain had reversed Weyler's policy and several months before intervention had substituted a mode radically more humane. Concentration had been discontinued, efforts had been made to restore grinding and agricultural prosperity, and if the Spanish policy had failed the cause rested with the insurgents alone, who had systematically thwarted every effort of Spain in this particular.45 Spain could look with little tolerance upon the American protests on the ground of inhumanity in Cuba.

48 See ante, p. 92.

44 See ante, p. 33.

"House Document 405, 55 Cong., 2 Sess., Affairs in Cuba.

The Madrid papers matched American stories with historical incidents, reviewing the Indian wars and the policy of concentration on reservations.1o The American Treaty Claims Commission have decided since the war that the systems of concentration and devastation were lawful acts.* 47 L'Institut de droit international in session at Neuchâtel, 1900, adopted the following significant rule:

66

One cannot make complaint to a state in whose domain insurrection has broken out upon the measures of repression it applies in its defense against the insurrection if it applies the same measures to all those, who participate actively in the civil war, whatever their nationality. Reservation is made for exceptionally cruel penalties which evidently exceed the necessities of repression."48 Here again the war did not present clearly and unmistakably such tyranny or cruelty as writers on international law seem to regard as justifying intervention. The resort to war by a single state on this ground has few if any advocates.1o

If then intervention was not warranted on a single one of the grounds advanced by the United States when taken separately, it does not follow that it was not when all are taken cumulatively. Writers have not, to be sure, accepted the cumulative principle. One writer has recognized that there may be cases "above and beyond the domain of law," justifiable on * Recortes periodísticos de los diarios de Madrid, Vol. X, April 3, 1898.

47 See ante, p. 28.

48

Annuaire XVII, pp. 181, 227.

"For an interesting study of same subject see Flack, SpanishAmerican Diplomatic Relations Preceding the War of 1898, Johns Hopkins Studies, 1906, nos. 1 and 2, ch. II.

exceptional grounds not within the ordinary rules of international law.50 If it can be established that the American Government exhausted every resource of diplomacy to avoid war, there is some technical ground upon which to rest intervention. Cuba presented in one century an exceptional case of misgovernment, of unfulfilled promises, of prolonged internecine war, of neutrals burdened by border warfare. But in the light of the resort to war in the face of the full concessions of Spain the technical basis becomes very weak indeed. In the opinion of nearly all writers on international law the particular form of intervention in 1898 was unfortunate, irregular, precipitate and unjust to Spain.51 The same ends-peace in Cuba and justice to all people concerned-in themselves good, could have been achieved by peaceful means safer for the wider interests of humanity.52

Com

50 Lawrence, Principles of International Law, p. 121. pare Hershey, Annals American Academy Political Science, Vol. XI, p. 353.

51

52

Mérignhac, Revue du droit public, Vol. IX, p. 286. Compare the methods by which the same power has carried the open door into China and was able to limit the field of military operations in the Russo-Japanese war.

CHAPTER V

TRANSITION FROM NEUTRALITY TO BELLIGERENCY

The conduct of the Governments of Spain and the United States in the critical period of transition from peace to open hostility offers the first opportunity to test the application of the rules of warfare by two powers that have been well outside the sphere of modern wars. To be sure the United States passed through a great civil war from 1861 to 1865 and Spain one of lesser moment in the second Carlist Insurrection of 1873 to 1876, but both of these were in a different category; both exemplified the conduct of governments in civil wars.

The phase of the subject that first presents itself concerns the declaration of war. The Government of Spain had declared that the signing of the resolution of Congress authorizing intervention would be equivalent to a declaration of war and would be so regarded. General Woodford was given his passports immediately on the information reaching Spain that President McKinley had duly affixed his signature. The Government of the United States at first took the same view, and by a blockade proclamation of April 22, by the capture of Spanish merchant vessels on the same day, and by other belligerent acts conducted itself in every way as though the announcements already made. were adequate to warrant opening hostilities. However, on April 25, four days later, President McKinley sent a special message to Congress recommending a

formal Congressional declaration of war, "to the end that the definition of the international status of the United States as a belligerent power may be known and the assertion of all its rights and the maintenance of all its duties in the conduct of a public war may be assured." The Senate and the House of Representatives responded the same day with a joint resolution that war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain."2

The most significant feature is the retroactive portion. Of just what international value a retroactive declaration can ever be it is difficult to conceive. The blockade proclamation of April 22 formally notified the powers of the existence of war, and would be taken as sufficient evidence to them that a state of war existed.3 The act was equally a matter of slight moment in domestic affairs from either a political or a constitutional standpoint. The President was authorized on April 20 to employ the army and navy in behalf of Cuban independence. The declaration of war merely repeated the same authorization, indeed in identical words.*

International practice and writers differ upon the 1 Richardson, Vol. X, p. 155.

2 Ibid., p. 201.

Cf. the view taken by writers on international law and the opinion of the Supreme Court of the United States, both to the effect that Lincoln's blockade proclamation was official and conclusive evidence that a state of war existed. 2 Black Sup. Ct. Rep. 665; Woolsey, International Law, p. 293.

* See Richardson, Vol. X, pp. 155, 201.