Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871
General Sickles to Mr. Fish.
Sir: I have the honor to transmit herewith a copy of my note to Mr. Sagasta, dated to-day, in regard to the matters embraced in your instructions of the 1st instant and 24th ultimo.
You will observe that I have recapitulated the substance of your note to Mr. Roberts, in order to bring up the whole issue for settlement here. Now that these questions are formally presented to this cabinet, I shall endeavor to impress upon General Prim the importance of prompt and friendly action, to which I suspect he will be more inclined by existing European complications.
I am, &c.,
[Untitled]
Sir: On the 9th ultimo, the Secretary of State of the United States addressed a note to the representative of Spain in Washington, setting forth sundry grievances suffered by citizens of the United States at the hands of the Spanish authorities in Cuba.
On the 18th ultimo another communication was made to Mr. Roberts by the Acting Secretary of State, Mr. Davis, in relation to a complaint which was presented to the Department of State subsequent to the transmission of the former note. The attention of the Spanish minister was invited to these matters under the supposition that he still exercised certain extraordinary powers, understood to have been conferred upon him with reference to questions arising out of the contest in Cuba, and that those powers were broad enough to authorize him to act in the premises.
On the 24th ultimo, Mr. Roberts informed the Secretary of State that, in view of the improved condition of affairs in the island of Cuba, the government of His Highness the Regent no longer deemed it necessary to continue the powers granted in August, 1869, to the representative of Spain in Washington.
All of the cases mentioned in the note of the Secretary of State to the Spanish minister in Washington had been the subject of instructions to the consul general of the United States in the Havana, in order that they should be brought to the attention of the authorities in Cuba, and redress be demanded.
On the 11th instant, I had the honor to inform your excellency that I had been instructed to bring these several matters to the notice of the government of His Highness the Regent, and in compliance with the intimation then given I proceed to perform that duty.
The reclamations I am directed to present are for injuries done to the persons and property of American citizens by the Spanish authorities in Cuba, in violation of Article VII of the treaty of 1795, between the United States and Spain. In numerous instances the property of citizens of the United States has been seized upon the mere order of the captain general, forcibly taken from their possession, or from the control of their agents, without judicial proceedings, and confiscated to the use of the Spanish authorities. In other cases, citizens of the United States have been arrested, imprisoned, and condemned to suffer the severest punishments without legal cause shown, and without the sanction or authority of any judicial tribunal.
Appended to this note your excellency will find a particular statement of the names of the parlies whose property has been embargoed, and of those who have been imprisoned or put to death by the authority of the captain general of Cuba, in violation of the treaty of 1795. Nevertheless, the Government of the United States reserves the right to restate its grievances as new facts may come to its knowledge, showing further and other injuries to the persons and property of American citizens.
The United States have addressed repeated remonstrances to the government of Spain against the successive measures of the authorities in Cuba which have appeared to authorize acts inconsistent with the rights secured to American citizens under the treaty of 1795. It may be useful to recur to some of these representations. In April, 1869, General Valmaseda issued a proclamation declaring that every male person, above the age of fifteen years, found away from his habitation and not proving a sufficient [Page 702] motive therefor, would be shot; that every unoccupied habitation, and every dwelling not flying a white flag, would be burned. The Secretary of State of the United States promptly protested, in the name of tire President, against such a mode of warfare, and asked that the proper steps be taken so that the persons and property of those having the right to claim the protection of the Government of the United States should not be injured in the execution of Count Valmaseda’s order.
About the same time, on or about the 1st of April, 1869, the captain general issued a proclamation, declaring void all sales and conveyances of property in the island made without the assent of certain officials named in the decree. As soon as this proceeding came to the knowledge of the President, he caused the government of His Highness the Regent to be informed of the regret with which he regarded such a prohibition of the rights of individuals to alienate their property, and, in order to prevent the complaints and controversies that could not fail to arise if the execution of the measure should be attempted, the Secretary of State requested that the decree might be so modified as not to be applicable to the property of citizens of the United States.
Seventeen days later a further decree was issued, creating an administrative council, for the custody and management of embargoed property; three days afterward the captain general promulgated an order extending the embargo already authorized to the property of all persons, either within or without the island, who might take part in the insurrection, whether with arms in their hands or aiding it with arms, munitions, money, or subsistence.
The President having expressed his apprehension that, in the execution of the extreme measures taken by the authorities in Cuba, the rights of citizens of the United States might be compromised, he confidently expected that the cabinet of Madrid and the superior political authority in Cuba would not suffer American citizens to be deprived of life, liberty, or property without due regard to the reservations and safeguards provided in the treaty of 1795.
The Government of the United States was not unmindful of the disorganized condition of affairs in parts of the island, nor of the difficulties which, in some localities, attended the enforcement of the authority of Spain. There was no allegation that the courts of law were closed in the Havana, where most of these proceedings occurred, or that the functions of the civil authority could not be performed in any of the principal towns of the island. And the President was induced to address his friendly representations to the government of His Highness the Regent, by a desire to avoid increasing the embarrassments growing out of the contest in Cuba, and to prevent further complications, so far as the act of the Government of the United States could do so. The seventh article of the treaty of 1795, between the United States and Spain, is as follows:
“And it is agreed that the subjects or citizens of each of the contracting parties, their vessels or effects, shall not be liable to any embargo or detention on the part of the other, for any military expedition or other public or private purpose whatever; and in all cases of seizure, detention, or arrest for debts contracted or offenses committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular course of proceedings usual in such cases. The citizens and subjects of both parties shall be allowed to employ such advocates, solicitors, notaries, agents, and factors as they may judge proper, in all their affairs, and in all their trials at law, in which they may be concerned, before the tribunals of the other party; and such agents shall have free access to be present at the proceedings in such causes, and at the taking of all examinations and evidence which may be exhibited in the said trials.”
It will be seen that, by the provisions of the article above cited, each of the high contracting parties has expressly renounced all right to embargo or detain the property of the citizens or subjects of the other. The broad and emphatic terms of this renunciation include every possible case in which the power could be exercised. No exigency of war, no requirement of the public service, no civil disorder is permitted by the stipulations of the treaty to sanction or excuse these prohibited acts of spoliation, Moreover, it is equally plain that it was the distinct and beneficent purpose of both governments to secure for their citizens and subjects respectively, within the dominions of the other, the protection of the laws of the land and of the courts of law, and of the essential safeguards for the administration of justice, in all prosecutions for any offense alleged to have been committed against the good order, peace, and dignity of the commonwealth.
It is with profound regret that the Government of the United States has learned that the provisions of this treaty have not been observed by the authorities in Cuba during the present struggle in that island. The decrees of April, 1869, have been put in operation against citizens of the United States, in violation of a solemn engagement that their property should not be subject to seizure, embargo, or detention for any public or private purpose whatever.
And American citizens have been arrested, imprisoned, and executed, without authority of law and regardless of the regular and established course of legal procedure [Page 703] which should have been followed in conformity with the requirements of the convention between the United States and Spain. Whether authority may have been delegated to, or exercised by, the authorities in Cuba with reference to Spanish subjects, it is not to be supposed that the government of Spain would in any manner sanction the acts of its civil and military officers done in contravention of the rights of citizens of the United States guaranteed by the treaty of 1795, rights which could not be rescinded, suspended, or annulled without the consent of the United States. So far is any such supposition from the views of the President that he is persuaded that it is only necessary to bring to the notice of the government of His Highness the Regent the frequent instances in which the authorities in Cuba have deprived American citizens of liberty, property, and sometimes even of life, without regarding the reciprocal engagements entered into between the two countries, to insure such friendly and prompt action on the part of Spain as will repair the wrongs already done, so far as they can be repaired, and prevent the repetition of such injuries in the future.
The decree of embargo published by the captain general of Cuba is an extraordinary exercise of supreme power, outside of the ordinary and regular course of legal and judicial action. If properly exercised with respect to the subjects of Spain and their property, it appears to be in plain contravention of the rights secured by treaty to the citizens of the United States. And if we pass from the decree itself, and examine the methods by which it has been executed, it will be found that these also have been arbitrary, summary, and unusual, and contrary to the provisions of the treaty which should have controlled and regulated the acts of the authorities in Cuba affecting the property of American citizens.
The proceedings of the case of Mr. Joseph Hernandez, which are presumed to be the same as have taken place in the other cases enumerated in the appendix to this note, may be cited as an example of the manner in which the decree of embargo has been carried into effect. Mr. Hernandez, a civil engineer by profession, has resided in the United States some twelve years, where he married, and afterward, in conformity with the laws of the United States, became a naturalized citizen thereof. He is the owner of certain valuable lands in the island of Cuba, situated in the district of Vereda Nueva, and known as “El Retiro.” On the 25th of February last a decree was published in the “Gaceta de la Habana,” in which it is set forth that “his excellency the superior political governor has considered it convenient to declare comprehended in article 1 of the circular of the 20th of April of last year Mr. José de Jesus Hernandez y Macias, who resides abroad. This being an order from his excellency, it is published in the Gaceta for general information, and in order that the competent authorities proceed to seize all his property in accordance with the above-mentioned circular. Havana, 24th February, 1870. (Signed,) The secretary, Cesáreo Fernandez.”
It appears, therefore, that the decree of embargo is executed by the same executive authority which issued it. It does not seem to be a law which the courts of justice are permitted to administer. It is rather an edict, enforced by a succession of orders not less extraordinary and imperial than the original fiat on which they are founded. Although it is understood that the courts of law are open in the city of Havana, where the proceedings took place, there is no evidence that the authorities filed any information or complaint against any of the citizens of the United States whose property has been confiscated; it does not appear that any citation was issued or published or served upon the parties, their agents, factors, or attorneys, notifying them to appear and show cause why judgment should not be pronounced against them; nor that they have been afforded any opportunity to be heard in their own defense, either in person or by their advocates, solicitors, and attorneys.
On the contrary, the Government of the United States is informed that the lands and property of many of its citizens have been taken from them without color of law, and in the exercise of the extraordinary functions vested in or exercised for the occasion by the supreme political authority of the island; that these unusual measures have been enforced against citizens of the United States who were not at the time in Cuba, and who had not been within the jurisdiction of Spain during the disturbances in that island; that they have been deprived of their estates without notice and without a hearing; that from time to time the names of these parties respectively have been published by the executive authority, with a declaration that their property is embargoed, and thereupon their goods, lands, and tenements have been immediately seized, without opportunity to the persons interested, or their agents, to be present at any inquiry or investigation in regard thereto, or at the taking of any testimony that may have been received and considered in the premises. And it therefore appears to the President that the sweeping decrees of April, 1869, so far as they have been enforced in Cuba against citizens of the United States, are inconsistent with the convention between the two countries; and that the proceedings taken to execute those decrees are arbitrary and unusual, without the safeguards to personal rights and the rights of property which ordinarily accompany the administration of justice in legal tribunals, and which are guaranteed by treaty to American citizens within the jurisdiction of Spain.
And I am accordingly instructed to ask for the restoration to the citizens of the [Page 704] United States of their property and estates, so far as the same has been arbitrarily embargoed by the authorities in Cuba, in violation of the provisions of the seventh article of the treaty of 1795, between the United States and Spain, and for such reasonable and just indemnity for the wrongful seizure and detention of their property as will compensate the aggrieved parties. The provisions of the treaty of 1795 seem to have been likewise disregarded by the authorities of Cuba in the arrest, imprisonment, and punishment of certain American citizens. A brief memorandum of these cases will be found appended to this communication. These arrests are represented to have been arbitrary and without legal process or cause shown; the parties have been placed in close confinement, denied all communication with their friends, and prohibited from consulting such advocates, solicitors, and attorneys as they desired to employ; in a few instances, after an imprisonment of more or less duration, the parties have been released, while others are still held in custody. In some cases the accused have been condemned by a military tribunal, without the opportunity of access to counsel or witnesses, or other means of preparing for their defense, such as accused persons should have enjoyed; and several of these summary trials, when ending in conviction, have been followed by the immediate execution of the sentence of death. The President is persuaded that the government of His Highness the Regent will see in these proceedings grave violations of the rights secured to American citizens by the treaty of 1795. It is provided by the seventh article of the treaty that the arrest of a citizen of the United States, for an offense committed within the Spanish jurisdiction, shall be made and prosecuted by authority of law and according to the regular course of proceedings usual in such cases; that the accused shall have the aid and assistance of counsel in his trial; and that such counsel shall have free access to be present at all proceedings in the cause, and at the taking of all testimony which may be produced on the trial. In the cases which I have now the honor to bring to the notice of your excellency, I regret to be compelled to state that none of these safeguards, so essential to the administration of justice and the vindication of innocence, have been observed. So far as relates to the parties concerned there might as well have been no laws, no courts, no established course of legal procedure in Cuba. The arrests, the trials—when trials have taken place—and the punishments indicted, are all represented to have been exceptional and arbitrary acts of executive or military authority. In presenting these facts and considerations to your excellency, I am instructed to say that the President hopes that immediate steps will be taken for the release of all the citizens of the United States who may be held in custody in Cuba, in violation of the treaty of 1795 between the United States and Spain; or for their immediate trial under the guarantees and with the rights secured by that treaty.
I am further instructed to invite the co-operation of your excellency in arriving at some decision as to the manner in which the two governments may most conveniently ascertain and determine the amount which should come to each claimant for the illegal detention of his person or his property, so that the several parties whose rights have been violated may receive early and equitable indemnification and satisfaction for the injuries they have sustained. This suggestion is made by my Government in the interest of peace, of justice, and of good will, in order to secure a measure of damages in each case which shall be just as between the two governments.
It is extremely desirable that the investigation should be conducted in the United States. It cannot be done in Spain without subjecting the parties to unnecessary expense and delay. It cannot proceed in Cuba, at present, without subjecting many of them to personal danger. I hope, therefore, it may be agreeable to your excellency to appoint a time when we may have a conference on this subject, which I do not permit myself to doubt would have a satisfactory result. If, for example, the government of His Highness the Regent would designate or authorize his excellency the minister of Spain in Washington to choose one of the Spanish consuls in the United States, or some other suitable person, to act in conjunction with an agent of the United States to be named for this purpose, I am confident that the inquiry could be so conducted with convenience to all parties, and that the conclusions reached would be satisfactory to both governments.
And I am also instructed to express on behalf of my Government, in the interest of the continued good understanding which the United States wish to maintain with Spain, the strong desire of the President that the cabinet of Madrid will confer fresh powers upon Mr. Lopez Roberts, or upon such other person on the other side of the Atlantic as may be selected for that purpose, to arrange with the Government of the United States the class of questions presented in this note. The authorities in Cuba seem to be clothed with ample powder to do the acts which have been the subject of the present and of former communications; but when redress is sought the matter is transferred to the distant cabinet of Madrid, where it is often found necessary to remand the case to Cuba for information; and thus the most urgent questions, often involving the liberty and even the lives of American citizens, are suspended, to the grievous injury of the parties and at the hazard of irritation from the delay, of which the necessity is not apparent to the impatient sufferer or to the public.
[Page 705]It appears from the note addressed to the Department of State, on the 24th ultimo, by the representative of Spain in Washington, Mr. Lopez Roberts, that in view of the favorable situation in the island of Cuba, the government of His Highness the Regent deems it no longer necessary to continue the powers heretofore given to Mr. Roberts. And in asking for this suggestion the attention of your excellency, I am directed to state that if the situation in Cuba be so favorable as to render these powers unnecessary, it is hoped that the arrests and embargoes complained of will cease, and that immediate reparation will be made for those that have occurred. The President has respected the Spanish claim of sovereignty over the island of Cuba during the present contest, against a strong sympathetic pressure from without. He has scrupulously performed all the duties imposed upon him by treaties and by international law, to restrain and prevent the citizens of the United States from doing acts prejudicial to Spain. And when it is considered that the struggle in Cuba could not fail to engage the sympathies of a neighboring people who had themselves thrown off the domination of a European power and established a republican form of government, your excellency will appreciate the high sense of public duty which animated the President in the execution of his difficult task. The American Government, while evincing its profound respect for the obligations imposed upon it by treaties and its relations of amity with Spain, cannot do less than recognize at the same time the susceptibility with which the people of the United States regard offenses committed at home or abroad against the persons or property of their fellow-citizens. It is therefore incumbent upon the President to insist upon the rights Spain owes to American citizens by virtue of the treaty of 1795, with the same firmness he has manifested on his part in restraining all persons within the jurisdiction of the United States from acts injurious to Spain.
The treaty of 1795, negotiated on the part of Spain by the Prince of Peace and ratified during the administration of George Washington, recalls some of the earliest traditions of the cordial and uninterrupted friendship which has been so long preserved between the United States and Spain.
In the name of these traditions and for the sake of that friendship, I appeal to your excellency to cause such instructions to be given to the authorities in Cuba as will prevent further injuries to citizens of the United States who may be found within that jurisdiction or who may have property there. There was no moment of the long and exhausting civil war in the United States when Spanish subjects within our territory were injured in person or property without due process of law, or were refused any of the safeguards which belong to the administration of justice. And Spain owes it to the United States, as well as to her own high sense of honor and of justice, that her sovereignty shall not be used anywhere for the oppression and injury of the citizens of the republic.
I avail myself of this opportunity to repeat to your excellency the assurances of my most distinguished consideration.
His Excellency the Minister of State.