No. 326.

General Sickles to Mr. Fish

No. 172.]

Sir: I have the honor to forward herewith translations of three notes from the minister of state, dated respectively September 12, 15, and 20, in answer to the communication I addressed to him under date of July 26, in obedience to your instructions, Nos. 66 and 67, on the subject of injuries to the persons and property of American citizens done by the Spanish authorities in Cuba; also a copy of my reply of this date. I transmit likewise a translation of an unofficial note from Mr. Sagasta, dated September 27, in answer to mine of the 25th, inquiring whether the last paragraph of his note of the 12th was intended to intimate that arbitrators might be named immediately to ascertain the amount of damages the several claimants should respectively receive. You will also find inclosed an extract from the Gaceta of the 13th instant, containing the Regent’s decree of the 12th, appropriating the proceeds of sales of embargoed property toward the payment of the expenses of maintaining the government in Cuba, and to which a reference is made in my reply. I have endeavored, while following your instructions by telegram of the 10th instant, in treating the proposed conditions of arbitration as inadmissible, to fortify our position on the questions involved in the discussion, by some additional facts and considerations, and you will observe that I have also renewed in a more amplified form the suggestion thrown out in my note of July 26, as to the manner in which the several reclamations should be submitted to arbitrators. Permit me to call your attention to some indications in Mr. Sagasta’s argument of a purpose on the part of Spain to deny the right of expatriation, and revive the old dogma, “Once a subject, always a subject.”

* * * * * *

I am, &c.,

D. E. SICKLES.

Appendix A.

[Translation.]

Mr. Praxedes Mo. Sagasta to General D. E. Sickles

Sir: I have received the note which you were pleased to send me under date of the 26th of last July, and have now the honor to reply to its different statements on behalf of the government of His Highness the Regent of the kingdom.

The representations you are pleased to make in the name of the Government of the United States are of two classes; some referring to the manner in which Spain has directed, and still directs, operations to attain the complete pacification of the island of Cuba, and others, more explicit, upon the treatment of certain North American citizens residing in that island.

Respecting the first charges, your note begins by setting forth the arbitrary way in which, in your judgment, the persons of subjects of the United States are detained and their property embargoed; and, in this connection, you cite the proclamation of Count Valmaseda, of the 4th of April, 1869, at the same time stating that the Cabinet of Washington hastened to protest at once against that order, and against such a mode of warfare, and evinced its solicitude that the Cuban authorities should take such measures that the persons and property of those who had a right to claim the protection of the Government of the United States might not be comprehended in the execution of the said proclamation. To complete the record of this matter, in so far as [Page 709] It concerns the interests of the North American Government, I deem it proper to add that, on the 2d of June of the same year, this ministry informed your worthy predecessor, Mr. Hale, that telegraphic instructions had been sent to the authorities in Cuba to observe the utmost possible moderation in carrying out all those orders and measures whose execution might interest foreign governments, protesting, nevertheless, against any unjustifiable interference with the exercise of our authority within the limits of the jurisdiction which, by virtue of her sovereignty, belongs to Spain as an independent state.

Neither the Spanish government nor the authorities of Cuba have been informed that any reclamation whatever has been presented, on the part of any foreign subject, against the enforcement of the proclamation referred to; whence it is logically to be inferred, either that Count Valmaseda’s decree was never carried into effect, or that, if it were, its operations did not reach those subjects. This decree was doubtless a stratagem of war, having for its only object the readier discrimination of the insurgents, as, in fact, proved to be the case without the necessity of enforcing it; and that, even in this sense, it was subsequently annulled by a circular of General Caballero de Rodas, on assuming the superior command of the island.

The Government of the United States should take into consideration the fact that Céspedes and his accomplices inaugurated their criminal rebellion by burning and devastating plantations and towns; nor can it be ignorant that many American citizens, influential proprietors in that island, were reduced to want in consequence of the barbarous excesses of these enemies of Spain. Neither should it be forgotten that before the orders of Count Valmaseda were issued, there were innumerable decrees and proclamations of amnesty and pardon emanating from the captain-general of Cuba, as well as from the governor of the eastern department, with the humane purpose of ending the insurrection.

From the foregoing statements you will be enabled to see that the proclamation so severely and harshly judged was in obedience to a legitimate instinct of defense, and a peremptory necessity of war, loudly called for by the acts of the insurgent hordes.

History abounds in these examples, and it would be derogatory to your intelligence to detain you by citing the governments which, in similar circumstances, have employed like measures in the legitimate defense of their rights, and in favor of the most speedy restoration of the tranquillity of the country. In our own time, during the civil war of which the republic of the United States was the theater, the columns of the brave General Sherman, in their march from Atlanta to Savannah, devastated that portion of the country without warning, leveling whatever they found in their path, driven to such a painful extremity by the supreme necessity of subduing the rebellion, and at once freeing the Union from the horrors of war.

And in so doing, there was certainly no infringement of the principles of the rights of persons, nor of the rules of modern international law, as practiced by civilized nations, and as they were at that time affirmed with noteworthy foresight by the Government of Washington, in the memorable “Instructions for the armies in the field,” issued by Mr. Stanton, Secretary of war, during the conflict with the South. This celebrated document, which has the honor of being the first codification of the laws of war, and whose bases are attributed by public opinion to one of the most distinguished jurists of America, says, in Article XV:

“War authorizes the destruction or mutilation of armed enemies and of all persons whose destruction is incidentally inevitable in encounters of arms; it authorizes the capture of all armed enemies and of all enemies useful to their Government or dangerous to the captors it authorizes the destruction of all kinds of property, the cutting of roads, canals, and other means of communication, the interception of provisions and munitions, the seizure of all that the enemy’s country may supply for the subsistence and security of the army,” &c., &c.

Article 85 says:

“Those persons are counted as rebels who, in a territory occupied or conquered by an army, rise against it or against the authorities it has established. They incur the penalty of death, whether they may have risen in insurrection singly or in parties more or less considerable, or have been incited to rise by their own government or not. If they are captured, they are not prisoners, nor are they to be treated as such, even when they are discovered and arrested before the conspiracy has attained open rebellion, or before they may have committed any acts of violence.”

Whatever authority may be accorded to these “instructions” as an expression of the present views of mankind respecting the mode of warfare between civilized peoples, it is at least certain that the Government of the United States will not disallow these principles; and as the Spanish government is convinced, not only that it has not exceeded them during its contest with the Cuban rebels, but that it has not even fully made use of the means which at other times and by other nations have been declared legitimate, there is cause for surprise that it should be so severely judged, and a pretense found for denying it the same powers and rights as are conceded to other nations in a state of war.

[Page 710]

You next treat of the decree of the 1st of April, 1869, issued by the captain-general, in which are declared null and void all sales and conveyances of property in the island of Cuba, made without the intervention of the officials designated by the same decree.

The Secretary of State, Mr. Fish, stated, in fact, to the government of His Highness that he considered this prohibition as contrary to the exercise of the rights of property, and requested that, in order to avoid disputes and controversies which could not but arise if it were carried into effect, the decree might be modified so as not to be held applicable to the property of citizens of the United States.

The Spanish government at once took occasion to inform the cabinet of Washington that this regulation was demanded by the existing circumstances of the island, and by the necessity for energetic proceedings against the enemies of peace and public tranquillity; and that, in consequence, it was extremely important to prevent the rebels, comprehending among these not only those who had taken up arms, but also the emigrés who fomented the rebellion in foreign countries, from making simulated sales and contracts, which would permit them to continue in possession of their property, and to dispose of the proceeds thereof for the support of the insurrection.

In this connection the attention of the Government of the North American republic was called to the well-known fact of all manner of dealings having been carried on in the island after the publication of the decree, without any hinderance; and that both Spanish citizens and those foreigners who obeyed the laws and respected legitimate authority had continued to dispose freely of their property and to carry on all their transactions with increased facility day by day, and without any other requirement than the filling up of a simple form in completing their contracts, by which the authorities might have cognizance of the transfers of real estate, and prevent abuses and criminal concealments, (ocultaciones;) and that the measure therefore contained nothing which could be stigmatized as vexatious. So that, as the captain-general justly observed in his communication of the 26th of March to the Spanish representative in Washington, the Government of the United States should have been completely convinced that up to that time no obstacles nor impediments had been placed in the way of lawful transactions; and that all that was necessary for the legalization of any transaction whatever took no more time than was required for revising the abstract which accompanied the instrument, to ascertain that no person whose property was embargoed sought to alienate his estates, an operation which at the most might occupy ten minutes. But, besides these reasons, there is a fact more eloquent still, which is, that until now not a single reclamation has been presented in this connection, notwithstanding the time that has elapsed.

In entering upon the question of embargoes and of the pretended violation of the treaty of 1795, I desire, before all, for the sake of clearness, to call your attention to the foundation upon which appears to rest the series of claims of this nature preferred against Spain by the Government of the United States.

It is indisputable, even for a moment, that neither in the note to which I have the honor to reply, nor in any other document concerning the affairs of Cuba since the outbreak of the insurrection, is there an indication of interference with the legitimate right that belongs to Spain of adopting the measures she may deem proper for effecting the pacification of any part of her territory. It may be deduced from this that only in the name of the interests of North American citizens whose persons or property are injured or menaced, and solely by virtue of the protection which your republic owes to them as citizens, can the Government of Washington be considered as entitled to complain of and comment upon those acts which, more or less directly, may affect the interests of its countrymen; from which it follows that, when not treating of those who have a right to the protection of the American flag, no reclamation should be made, nor should it be deemed necessary to touch upon matters which, as in this case, belong to our internal government. Granting this, it would seem natural that, before instituting any action founded upon a personal right, the circumstances from which are derived the right thus appealed to, should first be verified, and that the character with which the claimants invest themselves should be sufficiently demonstrated by legal means, dissipating any possible doubt which may arise as to its legitimacy. But when, in violation of the most logical course, a privilege or an exemption is claimed a priori, reserving until later the proof of the personality of him who demands it; when, in fine, the legitimate privileges are claimed which are conceded by international law and treaties to foreigners, leaving until after a result is attained concerning the fact of the embargo any demonstration of the character of foreign citizenship upon which the claim is founded, which, without it, would be a usurpation of the immunity which only belongs to the subjects of friendly powers, there cannot fail to follow a confusion of obligations and rights which, looked at in a false light, would induce a palpably unjust interpretation of the acts of the Spanish authorities.

Unfortunately, no other course has been followed by the United States in their reclamations made in favor of those who, without any right whatever, have invoked the North American nationality. The Government of Washington, in its solicitude that its countrymen should not lack its protection, has never paused to examine the legitimacy [Page 711] of the claim upon which it was invoked, and so has permitted the growth of its catalogue of wrongs and of persons aggrieved, which a considerate examination would doubtless have reduced to less dimensions.

In this aspect of the case, the good faith of the United States Government has been imposed upon and made use of by worthless men, whose only object is to create international complications and conflicts. The data and official documents of the Spanish government enable it to make a classification of the greater part of these claimants, reducing them to three classes, namely: 1st, claimants who have never possessed a right to foreign nationality; 2d, individuals who enjoy its benefits, but whose property has never been embargoed; and, 3d, persons to whom, in consideration of their being foreigners, their embargoed estates have been restored on the least evidence.

Moreover, the Government of the United States cannot be ignorant of the fact that the greater portion of the natives of Cuba who have given allegiance to the American flag have done so with the studied intention of making use of it at some future day as a shield for their criminal designs. Many cases might be cited of individuals who have lived in the island of Cuba as Spanish citizens, and did not remember their American citizenship until affairs went against them. These abuses caused the issue of the important instructions concerning the rights of citizenship, communicated by the Department of State of the United States on the 3d of May, 1869, to their consul-general at the Havana, it being noticeable that these instructions were given at the request of the said officer, who continually found himself embarrassed by the reclamations of Cubans naturalized as Americans, who had returned to the Havana and resided there permanently without disclosing their change of nationality; some of them having accepted employments and offices which Spanish subjects are alone permitted to hold.

Lastly, I end my reply to this portion of your note by calling your attention to the circumstance that the reclamations of the Government at Washington for offenses against American nationality are not set forth with precision in respect to the facts and circumstances of the several cases, (the only manner in which they can be discussed and the proper reparation ascertained,) and that they are limited to denunciations in general terms, attested by lists of persons who consider themselves aggrieved, but who are in no way shown to have affirmed their nationality before the courts, or to have been refused a hearing of their demands by the authorities, or in any other form to have sufficiently proved their character as foreigners.

If this be not duly proven, the Government at Washington cannot justly charge that of His Highness, the Regent, with having ignored, in the island of Cuba, the rights which belong to those who have the protection of the American flag, much less with having infringed the treaty of 1795; which point I shall now take up separately. The seventh article of the treaty of 1795, between Spain and the United States, upon which your note rests for declaring illegal the embargo of the property of American citizens, when carefully considered, proves inapplicable to the question both in spirit and in letter. The article is composed of three clauses; the first refers only to the embargo, or detention of vessels, or effects for the use of any military expedition, or for public or private purposes—in a word, the embargo commonly known by the name of angaria.* The second does not treat at all of estates or property, but only of the citizen himself, when apprehended or arrested, either for debts or for offenses, and the third treats of the means of defense which shall be guaranteed to him in the foregoing case. We can in no way occupy ourselves with the first clause, since the estates embargoed have not been taken for any of the objects therein expressed, but because the superior authority of the island was convinced, in view of information received from our consuls in the United States, that the proceeds of those estates were being applied to the sustenance and encouragement of the insurrection. And if this be true, can it be maintained that such American citizen, devoted to planning and committing acts hostile to Spain, should be included in either of the cases provided for by the aforesaid seventh article? Is it even rational to suppose that a State would celebrate and ratify a convention with another power, by virtue of which the subjects of one of the contracting parties would enjoy all the exemptions and advantages stipulated for, even in the case of being personally in open hostility and conspiracy against security and public peace? Can a treaty be conceived of whose stipulations would sanction impunity in favor of individuals, who, by their conduct, might compromise the existence of the State? It would not be easy to cite an example of such a convention, framed in opposition to all the principles, not merely of law, but of common sense. Consequently it is not consistent with reason, logic, or prudence that the treaty of 1795 can in any sense limit the power of the contracting governments to provide for the security of their respective territories against the secret plotting of the subjects of either. It may certainly favor the exercise of the rights of subjects against subjects, but not of these against their governments; since otherwise, whatever measures may have been taken, or may be taken in the future, to attack the situation in the island of Cuba at its root, would be baffled, and the enemies of Spain, residing in the United States, would rise shamelessly to aid [Page 712] the insurrection with the proceeds of their property, though now they are not secure of impunity unless sheltered by a recognized right.

As for embargoes, considered in general, the Spanish government does not believe that it deserves censure for making use of them, nor that there is any pretense for attributing to it the originality of the step; since on the 22d of July, 1862, the Secretary of War of the United States, by the authority of the President, issued an order directing the military commanders of Virginia, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Arkansas to seize and appropriate all personal and real property in the districts under their command which might be necessary for the supply of their troops, or for any other military purpose. The House of Representatives and the Senate had already approved, on the seventeenth of the same month, a law for the seizure and confiscation of the property of southern rebels, the fifth section of which says, textually:

Be it also enacted, That in order to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons herein-after named in this section, and to apply and use the same and the proceeds thereof for the support of the Army of the United States.”

Your note further treats of such American citizens as have been arrested and held in close confinement, with an accompanying list; adding that, in some cases, the arrests have been followed by military trials, without the privilege of the intervention of counsel or attorneys, or of communication with witnesses, the personal rights and legal protection to which all accused persons are entitled being denied, and that, lastly, what has been done under this head oversteps the bounds, and gives the United States the right to demand reparation from Spain for the injuries suffered by their citizens by reason of the various infractions of the treaty of 1795.

The explanatory list which I have the honor to inclose with this dispatch, stating the causes of arrest and the penalty imposed upon each of the citizens who were apprehended, will demonstrate how little foundation there is for the protest of the Government at Washington.

There is not a single case of sentence, except of those who were apprehended with arms in their hands, and shot as privates, in which the penalty has not been commuted, and the accused turned over to their consul, to be sent out of the country.

The Government of the United States affirm, nevertheless, that even in this case the treaty of 1795 has been violated on the part of Spain, forgetting, doubtless, that the stranger who violates the laws of the country in which he lives is denied the protection of that to which he belongs, and consequently puts himself out of the reach of international law, and remains wholly subject to that of the place where he resides.

Your note concludes by expressing in the name of your Government the hope that Spain, recognizing the justice of the reclamations, and taking some proper and convenient steps to ascertain the amount which should come to each claimant, will at once order the restoration to citizens of the United States of such of their property as may be embargoed, as well as the release of those who are still imprisoned, or will cause them to be immediately brought to trial, under the guarantees and with the rights secured by the treaty of 1795.

In presenting such a demand, as well as in seeking to show that the seventh article of the treaty referred to has been violated by Spain, the Government of the United States forgets that, as the embargo is the penalty imposed for an offense, it cannot be rationally pretended that a vindicatory proceeding should commence by the remission of the penalty. I have previously had the honor to occupy your attention upon this point, and it is useless to bring forward either the seventh article or the twentieth to prove the contrary.

The Spanish government has a representative accredited near the Government of the United States, and recognized consuls in the greater part of the ports of the republic. There have been many cases in which the captain general of Cuba has caused the American consul at the Havana to be notified when complaints have arisen concerning the embargo of the property of natives of Cuba naturalized as American citizens, that they might justify their political conduct before the authorities in his presence; but the fact is that, up to this time, this has not even been attempted; and, on the contrary, they have pretended that their justification should be made through the medium of the American authorities, as if such an intrusion of the jurisdiction of one state on the dominions of another were possible. Two of them, nevertheless, have exhibited their extreme ignorance by presenting a certificate signed by Don José Miguel Aldama, as president of the so-called Cuban Junta, of New York, and verified before a notary public of that city, to prove that they have never taken part in the operations of the junta. To crown all, this document was presented to one of the authorities of Cuba by the consul of the United States, under instructions, it is said, from his Government. This, however, is not the occasion to comment upon this fact, to which I have called the attention of His Highness the Regent, and instructions have been sent to our representative in Washington. You will find a copy of both documents annexed.

[Page 713]

So much concerning the embargoes; as for the American citizens, the very list which you were pleased to append to your note makes it patent that natives of the United States are not concerned, but naturalized Cubans. The former, with very few exceptions, according to the information furnished by the authorities of Cuba, have conducted themselves as honest men who attended to their own affairs, respecting the laws of the country they have chosen for their residence. With regard to such persons, in the exceptional case of the arrest of one of them, the judgment of the courts has been followed by a pardon, (indulto,) and he has been placed at the disposition of the consul of his nation.

The latter, that is, the naturalized Cubans, have, on the contrary, sought in a foreign nationality a defense against the rigor of the law; they have shown themselves to be arrogant; they have caused trouble, and they have succeeded in creating complications between government and government.

Returning, lastly, to the views which I have previously had the honor to make known to you in reply to your note, and in answer to the allegations therein contained, I have to state that the course of the authorities of Cuba, in the investigation of cases and in the execution of sentences, has been as prudent and as considerate as the extraordinary and anomalous circumstances through which the island of Cuba was passing would allow. This is demonstrated by the circulars of the 3d of May and the 5th of July, 1869, directed to the governors and commanders, strictly enjoining upon them the observance of the most equitable principles in all their acts, and more especially in those relating to subjects of friendly nations. And notwithstanding that the state of insurrection demanded recourse to extreme measures, the superior authorities directed that the necessity should be manifest before taking steps against foreigners, notifying them that in case they should be obliged to effect the arrest of such, proceedings should be immediately instituted according to the gravity of the offense, and information of the facts given to the superior authority; and the facility with which all classes of reclamations were heard became so great, that a simple note to the consuls, even without signature, was sufficient to cause the claims therein presented to be considered and acted upon. The various communications of the consuls to the superior civil governor, conveying their acknowledgments of the attention with which the complaints and reclamations of those they represented had been heard, are a striking proof of this, and are alone a refutation of the accusations which have been preferred. The government holds possession of these documents, and is ready to exhibit them.

To prove that the seventh article of the treaty of 1795 has been infringed, it is necessary that the Government of the United States should designate, with sufficient particularity, the instances in which the convention has been violated; and in order that the Spanish government may do justice to the reclamations of American subjects, it is above all indispenable, firstly, that these should prove their citizenship before the Spanish authorities, and should present their demands in due form in each particular case, since it is not alleged that these requisites have been complied with; and, secondly, that the aggrieved parties should show that they have themselves appeared before some tribunal, or that the consul has made the proper reclamation in their name, and that the Spanish government has failed to make reparation. In any other way, and merely in view of a list of individuals who, for the most part, bear Spanish names and have been regarded as Spaniards, it is impossible, in a legal sense, to know their nationality, and to indemnify them far injuries which are to be imputed only to themselves.

Thus far the embargo in Cuba has been only a preventive proceeding, and its execution a consequence of a purely political measure; it is not based upon any law which ordains the sequestration of property. It is, therefore, no more than an extraordinary means of defense, having for its object to deprive the insurrection of powerful resources for its support. Its execution as a political measure belongs only to the superior governor. The courts of justice thus far are strangers to it, although they decide all questions of right which arise respecting it. To these, therefore, should be addressed the reclamations of those citizens of the United States who claim to have unjustly suffered the embargo of their property.

The formalities above indicated once complied with, the particulars of the several cases mentioned in your note supplied, and the allegations made in support of them duly sustained, the Spanish government will make just reparation to such American citizens as may appear to have been aggrieved,

And, desiring to act under conditions of perfect equity, the government of His Highness will thereupon* agree to the appointment of arbitrators named by each of the two nations, to appraise the damages sustained, and to fix the indemnity to be paid therefor.

I improve this opportunity to reiterate to you the assurances of my most distinguished consideration.

PRAXEDES Mo. SEGASTA.
[Page 714]

[Inclosure No. 1.—Translation.]

MINISTRY OF STATE.

Rights of naturalized, citizens defined.—Important instructions from the Secretary of State.

Department of State, Washington, May 3, 1869.

Sir: I have to acknowledge the receipt of your dispatch, No. 30, stating that in many cases natives of the island of Cuba, after having been naturalized as citizens of the United States, have returned to Cuba, residing there permanently without making known their change of nationality, and that in some cases they have accepted offices which can only be filled by Spanish subjects, and asking for instructions for your guidance in such cases, if your official intervention is solicited.

In answer, I have to say that it is clearly impossible to lay down rules to guide your proceedings in all the cases which may be presented.

Both native and naturalized citizens are entitled to the same protection when in foreign countries, and both, in such cases, are ordinarily subject to the laws of those countries, and are obliged to obey those laws in the same way as their own citizens or subjects have to observe them. If they fix their domicile in foreign countries, they are moreover compelled to observe toward the government of that country the duties and obligations belonging to permanent residents.

It is also quite possible that a naturalized citizen may return to his own country and remain there with the evident intention of residing permanently, or that he may accept offices incompatible with his adopted citizenship, or that he may, for a time, conceal the fact of his naturalization, and pass for a citizen of his native land, until some circumstance leads him to claim the intervention of the land of his adoption, or that in some other way he may exhibit the intention of abandoning his acquired rights by resuming his original citizenship, and absolving the government of his adopted country from the obligation to protect him as a citizen while he remains in his native country.

In the cases which come before you, you are to act with great discretion in determining whether those who solicit your interference have, in good faith, maintained their allegiance to the United States, being assured that this Department will sustain you in carrying out the principles of these instructions.

I am, &c., &c.,

HAMILTON FISH.

Henry C. Hall, Esq., Vice-Consul General of the United States at Havana.

A faithful translation from the original. Havana, 17th July, 1870.

RODRIGO TAVIRA, Government Interpreter.

A copy.

The Secretary, CESAREO FERNANDEZ.

A correct copy.

[Here follows the rubric of the minister of state.]

[Inclosure No. 2.—Translation.]

MINISTRY OF STATE.

Memorandum of citizens of the United States whose property has been embargoed.

No. 1.—Don José Garcia Angariea.—Does not appear to have been embargoed; as however, was a certain Don Manuel, expelled from the jurisdiction of Cardenas, of which he was a native, in consideration of his had political antecedents, and of his having gone to a foreign country without a passport.

No. 2.—Don Joaquin Garcia Angariea.—His property was embargoed because he was in connivance with the individuals forming the Cuban Junta of New York. Admiral Poor having addressed a communication, on the 14th of January of the current year, concerning the removal of the embargo on his estate, answer was made that if proof were shown of the inaccuracy of the data in possession of the government, the recommendation of the United States minister would be complied with, and no notice taken of the conspiracy and double citizenship. In February, 1869, this individual passed for a Spanish subject, according to the documents presented in applying for a passport, and in January, 1870, he claimed to be an American citizen.

No. 3.—Don Inocencia Casanova.—It is not known to this government that his property was embargoed. Perhaps some reclamation was made of which this government [Page 715] is ignorant, by reason of his being comprehended in the embargo of the property of his brothers, under the belief that he was identified with them.

No. 4.—Don Ramon Criado y Gomes, (sic.)—Of the same nature as the preceding, since a certain Don José Fernandez Criado is the only one embargoed.

No. 5.—Don Joaquin Delgado.—Was a standing member of the Cuban Junta of New York on the 7th April, 1869.

No. 6.—Damford, Ruvorton & Co., (sic.)—It does not appear that their property is embargoed; but they have a reclamation pending before the council concerning their implication in Nuevitas with Don Manuel Marquez, whose estates were embargoed, which reclamation will be disposed of as soon as the information asked for is obtained.

No. 7.—Don José de la Crus Gorin y Pinto, (sic.)—His property was embargoed on account of his being active in New York in favor of the insurrection, and giving large sums to aid it, according to intelligence possessed by this government.

No. 8.—Don Cristobel Madan.—Denounced by the consul as belonging to the Cuban Club in New York; his property was embargoed, but the incorrectness of the information having been subsequently proved, the embargo was removed.

No. 9.—Don Fausta Mora.—His property was embargoed because the consul in New York ascertained that he had contributed sums of money to the insurrection. His good antecedents having been testified to by persons of recognized loyalty, the embargo was removed, and the fact made known in Washington.

No. 10.—Don Martin Mueces, (sic.)—His property was embargoed because of his bad antecedents, and for quitting the island without a passport. He came with the expedition of Narcisa Lopez, in the year 1850, and at present appears to be in New York contributing money to the insurrection. There is no evidence of his American citizenship.

No. 11.—Don Ramon Rivas y Lamar.—This individual took part in the original Cuban Junta established in New York, and continues to be identified with the present club. The consul general of the United States in this place (the Havana) was told, on the 19th of February of this year, that if he were proved to be unconnected with the junta in question, and to have taken no part in its operations, his recommendation would have great weight. His good antecedents having been established by persons of recognized loyalty, the embargo was removed, and the fact made known at Washington.

No. 12.—John C. Rozas.—It does not appear that this individual’s property has been embargoed.

No. 13.—Moses Taylor & Co.—It does not appear that their property has been embargoed, and there is only a reclamation concerning a large portion of the embargoed property of Don Antonio Fernandez Bramosio, a member of the Cuban Junta of New York since its foundation, said to have been purchased by them. This proceeding is under examination, to ascertain the legality of the purchase.

A correct copy.

No. 2.

MINISTRY OF STATE.

Memorandum of the citizens of the United States who have been imprisoned, (incomunicados.)

No. 1.—Don José Vicente Brito.—Was arrested in this city under suspicion of disloyalty February 12, 1869, and set at liberty on the 14th.

No. 2.—Don Teodoro Cabias.—Arraigned for complicity in the assassinations which took place in this capital on the 12th of February, 1869. The case having been abandoned so far as he was concerned, the audiencia decided that he might be proceeded against as a vagrant. The case being opened, the American consul presented himself, and asked that he might be released, alleging that he was a citizen of the United States, and he was given up to him on condition of quitting the country. This individual was a telegraphic operator employed by the government, to which he had taken an oath of fidelity.

No. 3.—Don Emilio Canada, (sic.)—Was arrested with several others in Cienfuegos on suspicion of disloyalty, and set at liberty in a few days because no motive was found for proceeding against him.

No. 4.—Don Lucas A. de Castro.—Was arrested at Trinidad at the beginning of last year, and sent to the Peninsula as a political exile. He was deeply implicated in the insurrection. He was a captain of volunteers in Trinidad, and resigned a few days before the movement broke out in that district. Neither he nor the American consul at that place made any allegation concerning his citizenship.

No. 5.—Don Gabriel Suarez de Villar, (sic.)—Was arrested at Trinidad on the same day as the preceding, and under like circumstances. The American consul demanded his [Page 716] release, pretending to establish, his rights as an American citizen. Proceedings were instituted, and it was shown that the said individual obtained a certificate of American citizenship in 1854. He then went to reside in Trinidad, where he exercised his profession as a lawyer without having competently established his right to practice; was justice of the peace and syndic of the town council. He was prosecuted for having held offices forbidden to foreigners, when he proved that he had renounced his American citizenship. The audiencia of this island made the same decision.

No. 6.—Don James M. Edwards.—Was arrested at Manzanillo the 23d of November, 1868, and was proceeded against for being in communication with the insurgents. The charge was abandoned, being unsupported, and he was set at liberty the 31st of January, 1869.

No. 7.—Don Carlos Jesmot (sic.)—Was arrested at Trinidad for being in connivance with the insurgents, and condemned, by a council of war, to imprisonment for life. He was pardoned, turned over to his consul, and went back to his country.

No. 8.—Mr. Duglass McGregor, (sic.)—Was arrested at Trinidad, accused of conveying supplies and information to the insurgents, and of having been several times in their encampment. He was sentenced to death. He was pardoned and turned over to his consul, who sent him back to his country.

No. 9.—Don Thomas Miranda.—Was arrested at Guanajay for disloyalty, (infidencia.) He was sentenced to be transported from the island, and in consequence was sent to the Isle of Pines. He produced no documents to show his American citizenship, and only stated that he was a native of Saint Augustine, in Florida.

No. 10.—Mr. John Rosas, (sic.)—Arrested in the district of Guanabacoa for an attempt at sedition in the district of Santiago de las Vegas. He was sent to Fernando Po, where he escaped.

No. 11.—Don Alberta Simons, (sic.)—Was arrested at Puerto Principe, accused of having spoken against the nation in public conversation. A manuscript document was found in his possession highly offensive to the throne of Spain and inciting to insurrection. The consul of his nation in this capital having alleged that he considered his offense (falta) sufficiently punished by the imprisonment he had suffered, the case was abandoned, and he was set at liberty, being placed at the consul’s disposition.

No. 12.—Doña Maria Spotuna, (sic.) Doña Aurelia, and Doña Elisa Cudlipp.—Were arrested at Trinidad, accused of giving aid to the insurgents. They were condemned by a council of war, the first and the third to confinement during the existing state of affairs, and the second to ten years’ imprisonment. The consul of the United States having made representations in their favor, they were pardoned on condition of leaving the country.

No. 13.—Don Carlos Polhamus, (sic.)—Arrested in Santa Cruz del Sur, in the act of communicating with the insurgents. He was tried by a council of war and convicted, and having confessed his crime, was shot. After his execution, a chest was found on board a coasting steamer, containing correspondence from the junta of New York for Céspedes, addressed to this Polhamus.

No. 14.—Don Sebastian Pintado.—Arrested at Matanzas for holding meetings of colored people in his house, to whom he read incendiary publications. He was set at liberty, and turned over to his consul to be sent out of the country.

No. 15.—Don Angel Morales y Armas, (sic.)—Arrived at this port in the steamer Columbia from New York, where he had become an American citizen, and, upon information that he held a commission from the Cuban Junta, he was arrested and was expelled from the island within three days, and sent to his adopted country.

No. 16.—Don Juan Alberto Machado, (sic.)—Was arrested, on arriving from New York, for carrying correspondence from members of the junta, and subversive publications. He was set at liberty on condition of leaving the country. Documents were found on him by which he appeared to be an American citizen and a subject of Brazil.

No. 17.—Don Gregoria Gonzalez.—Was arrested in this capital for subversive language, and sentenced by a council of war to one year’s imprisonment. It does not appear from the evidence that he alleged his citizenship of the United States, neither did the counsel make any representations.

No. 18.—Don Pedro Pachot, (sic.)—Was arrested, July 28, 1869, on landing from the steamer that brought him from the United States, for carrying correspondence in violation of the postal regulations, which related to the insurrection, and was set at liberty on the 29th.

No. 19.—Don José Ponce de Leon, (sic.)—Was arrested at Cardenas, accused of being an agitator, and was shown to be the ringleader of a rising which was to have taken place in that district. He was tranported to Fernando Po. His American citizenship was not shown.

No. 20.—Don José Maria Ortega.—His arrest was ordered because of information that he was engaged in a conspiracy in Pinar del Rio. He resided in this capital awhile, and was set at liberty. It does not appear that he alleged his American citizenship.

No. 21.—Don Juan Franco. Portuondo, (sic.)—Was arrested, with others, in Santiago de Cuba because it was discovered that he was in connivance with the insurgents in the [Page 717] field. While being removed with the rest to the mill of San Juan, in El Cobre, he attempted to escape, and was fired at by those having him in charge, and was killed. This individual was expelled from Cuba in 1855, and in the following year his wife presented a petition, praying that he might be allowed to return on condition of renouncing his American citizenship, which was refused; but having returned from the United States to this city, he was permitted to remain in Cuba, on condition of making a formal renunciation of his citizenship, which was done upon his own petition.

No. 22.—Don Agustin Sta. Rosa, (sic.)—Was arrested in this capital toward the close of 1868, for being implicated in the insurrection, and was brought before a court-martial. Being set at liberty, in consequence of General Dulce’s decree of amnesty, he was one of those concerned in the robbery of the steamer Comanditaria.

No. 23.—Don Carlos Speakman, (sic.)—Was one of the fillibusters landed by the schooner Grapeshot, (sic;) being taken with arms in his hands, he was shot by virtue of the sentence of a council of war.

No. 24.—Albert Werth, (sic.)—The same grounds and the same results as in the preceding case.

No. 25.—Don Emilia de Silva.—Was arrested at Nuevitas, accused of being in communication with the enemy when found in the outskirts of that town, and was forced to remove his residence to this capital.

No. 26.—Don Rafael Estrada.—There is no evidence that any person of this name has been arrested, and there only appears to be one Don Esteban Estrada, a ringleader, who was pardoned.

No. 27.—Don Renu Fritot, (sic.)—There is no evidence that any person of this name has been arrested.

No. 28.—Don John E. Powers.—Was arrested at Sancti Spiritus upon indication or having intentionally thrown from the track the train under his charge as engineer, at the very time when a large body of the enemy made an attack on twelve soldiers, on the same line of railway and near the scene of the accident, of whom six were killed and four escaped.

No. 29.—Don James Tate.—Arrested at Trinidad for the crime of sedition, (infidencia.) Claimed by the consul general of the United States, in this city, as a subject of his nation. Information was asked for from the authorities, and they stated that no such American citizen appears in the registry made by the consul at that place on the 9th of April of last year; that he is a native of the United States, but that he has resided there more than fifty years.

No. 30.—Don J. A. Schultz, (sic.)—There is no evidence to show that any person of this name has been arrested. Havana, July 30, 1870.

The Secretary,

CESAREO FERNANDEZ.

A copy.

[Here follows the rubric of the minister of state.]

[Inclosure No. 3.—Translation.]

SUPERIOR POLITICAL GOVERNMENT OF THE ISLAND OF CUBA—SECRETARY’S OFFICE—CIVIL BUSINESS.

Excellent Sir: On the 29th of September of last year I ordered the embargo of the property of Don Ramon Rivas y Lamar, a native of Matanzas, who, according to information from the consul of Spain at New York, was connected with the Cuban Club, conspiring against the integrity of the nation. Mr. H. C. Hall, consul of the United States in this place, on the 10th of February, presented a memorandum, calling attention to the embargo in question, and stating that he was instructed by the Department of State to advocate this person’s claims, not merely as an American subject, but also because the Department had reason to believe that Rivas was in no way connected with the insurrection. This declaration would have been sufficient to cause the adoption of a favorable decision, especially as the good relations which unite our government with that of the United States led me to give much weight to the recommendations presented in favor of the subjects of that country, as I have demonstrated on repeated occasions; but the same consideration toward a friendly nation made it necessary to establish the justification of the order of embargo pronounced against Rivas.

There is no evidence here that this individual is an American subject; he quitted the Havana with a Spanish passport; he left his property in charge of Don Augusto Claret, and the latter, in a preliminary judicial proceeding instituted by him in Matanzas, sustained the rights of Rivas as a native, making no mention of his having taken out naturalization papers in any other country; so that the said Rivas y Lamar is one of those who, to suit their private convenience, provide themselves with two distinct [Page 718] nationalities; and as experience has shown that many natives of the island of Cuba consider their legal or illegal naturalization in the United States as a shield for conspiring against this government or for open rebellion, this circumstance alone would render Rivas suspected, he being a member of the Cuban Club of New York, in which he has shown himself to be an enthusiastic patriot, and ready to adopt a third nationality.

The embargo in this case is perfectly regular. A Spanish subject, whose estates are registered as Spanish property, who has not renounced his rights of nationality nor given notice to any authority of his intention to change it, should be considered as a Spaniard, and suffer the consequences of the dualism in the same way as he gained its advantages by concealing it; therefore, from the moment it became known that he formed part of an association organized to disturb the peace of the island, sustaining and furthering the rebellion of a portion of its inhabitants, he became necessarily comprised in the decree of the 20th of April, 1869.

Nevertheless, in deference to the Government of the United States, answer was made to the memorandum of Mr. Hall, informing him of the facts stated above, and adding that if the person interested, whose political views are pretty well known here, should establish that he is not an enemy of Spain, and that he has taken no part in the revolution, whereby the inaccuracy of the information given by the Spanish consul should appear, the case would be taken into consideration.

The Government of the United States ought to be satisfied that it is my desire to receive this justification, since I can show, and your excellency will sustain me, that many persons residing abroad who have reclaimed directly against the provisions of the embargo, presenting justification for their conduct, have been immediately heard and put in possession of all their property, as the embargoes are preventive; and this being the case, there was the more reason for believing that my authority would favorably receive a petition supported and recommended by a friendly government.

Under these circumstances, your excellency will judge of my surprise on receiving intelligence that the consul of the United States, Mr. Biddle, had addressed himself, not to my authority, but to the general superintendent of the treasury; and on examination of the documents submitted, which were drawn up by a notary public of New York, instead of being prepared in the Spanish consulate, there was found a certificate from Don Miguel Aldama, as president of the Central Republican Junta of Cuba and Porto Rico, that Rivas y Lamar had not taken part in the revolution.

I do not believe that there is any example of a similar occurrence in the interchange of dispatches between friendly governments, nor can I conceive how an act so opposed to all conventional rules could have taken place.

I would like to know, although the case is very different, since in the struggle in the United States a state of war was declared, how one of the authorities of the Federal Government would have acted on receiving from a foreign consul certificates from J. Davis exculpating some person who was being tried as a rebel. I suppose the least that would have been done would have been the return of the papers, treating them as though not received, although not considering their presentation offensive. I overlook these documents, which, not having reached me through any authorized channel, can only serve as a curious and perhaps unique example of the forgetfulness of established customs, but shall make the occurrence known to the government.

Apart from this incident, as the investigations made here show that Don Ramon Rivas y Lamar left the Havana on the 11th of April, 1860, duly authorized as a Spanish subject; that, on the testimony of persons of honor and veracity, he stood high in public estimation, and has filled several offices to the general satisfaction, without being thought disaffected to the Spanish government; and that, on the other hand, Spanish residents in New York give him credit for good conduct, I have determined to raise the embargo on his property.

I state this to your excellency for your information and such action as you may deem proper. May God guard your excellency many years.


ANTONIO CABALLERO.

His Excellency the Minister of the Colonies.

[Inclosure 4. No.—Translation.

SUPERIOR POLITICAL GOVERNMENT OF THE ISLAND OF CUBA—SECRETARY’S OFFICE.

Most Excellent Sir: In a communication of this date I inform your excellency of the singular presentation, to the general superintendent of the treasury, of certain documents relative to the embargo of the property of Don Ramon Rivas y Lamar. At the same time, and in the proper manner, others were submitted on the part of Don Fausto Mora by the consul general of the United States, Mr. Biddle, to establish that he had taken no part in the Cuban insurrection.

The considerations which I advance to your excellency with respect to the former are also applicable to Mora.

[Page 719]

Far from there being any official proof that this individual is an American subject, there is on record in his case a statement presented in his name by Don Juan J. Jerome, in which he asks to be supplied with a certified copy of the will of Don Maximo José, his father, without the certificate of marriage, as he would be obliged to make use of it abroad. The application was signed on the 18th of January, 1870; and if Mora at that time considered himself a foreigner in the United States, he contradicts his assertion that he was naturalized there, or rather proves that he is one of the many Cubans who, for their personal ends, provide themselves with two nationalities, and make indiscriminate use of the one most convenient. His asking for a document in which his marriage is not shown, also gauges the amount of respect it merits under the laws of either conn try. I would have wished that the preventive embargo upon his property, imposed by me on the 18th of February, should be approved and justified, as levied on a Spaniard residing abroad; but, in view of your excellency’s information, which modifies that furnished by the consul at New York, I have decided to remit the said embargo, and inform you of it, that the proper action may be taken.

May God guard your excellency many years.

Havana, 28th of July, 1870.

ANTONIO CABALLERO.

His Excellency the Minister of Spain in Washington.

A copy.

The Secretary,

CESAREO FERNANDEZ.

Appendix B.

[Translation.]

Sir: I have the honor to make known to you that, according to a communication which I have received from the captain general of Cuba, dated the 12th of August last, the American citizen John Powers, who figured in the memorandum annexed to your note of the 26th of July ultimo as imprisoned in Sancti Spiritus, was set at liberty on the 18th of May of this year, and is at present residing in Trinidad.

I improve this opportunity to reiterate to you the assurances of my most distinguished consideration.

PRAXEDES Mo. SAGASTA.

The Minister Plenipotentiary of the United States.

Appendix C.

[Translation.]

Sir: In continuation of the statement I had the honor to make to you under date of the 15th instant, I have to-day to add, referring to a dispatch from the captain general of Cuba, of the 24th of August ultimo, that, according to a report from the deputy governor of Trinidad, Mr. J. A. Schultz, who figures in the memorandum which accompanied your note of the 26th of July as a prisoner, is not nor has ever been under arrest, the American vice-consul in that city stating officially that he has no information in the matter, and knows nothing about that person.

As for Mr. James Tate, who also figures in your memorandum, he was arrested on the 30th of April last, for being implicated in a case of disloyalty, (infidencia,) and ordered to undergo precautionary detention in his own house on the 5th of the following month, where he remained till the termination of the trial. It is to be noticed that he did not allege his American citizenship, doubtless because he had been a resident of Trinidad for more than forty years, and that his name does not appear in the list previously furnished by the American vice-consul to the government authorities.

I improve this opportunity to reiterate to you the assurances of my most distinguished consideration.

PRAXEDES Mo. SAGASTA.

The Minister Plenipotentiary of the United States.

[Page 720]

Appendix D.

Private.]

My Dear Sir: A careful perusal of your note of the 12th instant, in reply to mine of the 26th of July last, leaves me in doubt as to the meaning of the last paragraph. Inasmuch as I attach great importance to the correct appreciation of the phraseology in question, I will thank you to inform me whether I am right in understanding you to say that arbitrators may he now appointed to fix the indemnity for damages alleged in my note to have been sustained by American citizens.

Trusting that I have correctly interpreted your meaning, and that thereby the questions presented may be speedily put in the way of adjustment, I shall await your reply with solicitude.

If you will kindly send your answer to the legation in Madrid it will be promptly forwarded to me here.

Sincerely yours,

D. E. SICKLES.

His Excellency Sr. Don Praxedes Mo. Sagasta, &c., &c., &., Madrid.

Appendix E.

[Translation.]

Private.]

Ministry of State.

My Esteemed General: With much pleasure I hasten to reply to your favor of the 25th, concerning the meaning which should be given to the last paragraph of my note of the 12th instant, in answer to that which I had the honor to receive from your legation dated the 26th of July.

In that paragraph the Spanish government stated that, desiring to proceed in the matter of the reclamations in a spirit of perfect equity, it will accept the designation of arbitrators when the claimants shall have complied with the previous formalities to which the preceding paragraphs refer, and any American subjects may appear to be actually injured. The formalities which Spain desires to see complied with beforehand by the American citizens who present the reclamation are explained in my note referred to; they are to establish their status as North American citizens before the Spanish authorities; they are to make their demands in due form in each particular case; and those who now allege that they are aggrieved are to establish that the necessary reclamations have been presented by them personally before some tribunal, or that the consul has done so in their name, without the same having been considered by the Spanish government. This procedure having been conformed to, if it appears that they have been unjustly injured in their interests or in their rights, then the arbitrators, named ad hoc, will proceed to estimate the damages sustained and fix the indemnity which is to be paid. With this explanation, I think, will be dispelled the doubt you express to me concerning the meaning of the paragraph cited; but if you should desire any explanation respecting that or any other of my note, I will take the greatest pleasure in making it.

I am, &c.,

PRAXEDES Mo. SAGASTA.

Sr. Don D. E. Sickles.

Appendix F.

Sir: The reply to my note of the 26th of July last, which your excellency has done me the honor to address to me, under date of the 12th ultimo, was received, with its inclosures, at this legation on the 13th. I have also had the honor to receive the several supplemental communications on the same subject addressed to me by your excellency on the 15th and 20th of the past month. After giving the most attentive consideration to the arguments and conclusions presented therein, I regret to find that they do not appear to answer the reasonable and just representations I had the honor to submit to your excellency in obedience to the instructions of my Government. It will, perhaps, be useful to recapitulate the principal subjects to which the attention of your excellency was invited in my note of the 26th of July last. These embraced—

First. A reference to certain proclamations and decrees emanating from the superior civil and military authorities in Cuba, which, in the judgment of my Government, put in jeopardy the persons and property of peaceful and law-abiding citizens of the United States within the limits of that territory.

[Page 721]

Second. The remonstrance made by direction of the President against the execution of those orders and decrees in a manner prejudicial to the rights belonging to American citizens within Spanish jurisdiction.

Third. A statement of the grievances of certain citizens of the United States, who, in the execution of the decree of embargo, had been wrongfully deprived of real and personal property of great value, in violation of international law, and of the provisions of Article VII of the treaty of 1795 between the United States and Spain.

Fourth. A request for the restoration to the aggrieved parties of their embargoed estates.

Fifth. A further statement of injuries suffered by certain other American citizens arrested and imprisoned without sufficient or probable cause, some of whom had been unreasonably detained for a long time without trial, and others subjected to extreme penalties without due process of law, contrary to the stipulations of the aforesaid treaty.

Sixth. A further request that the citizens of the United States so held in custody be released, or immediately tried by a court of justice in the manner provided for by the said convention between the two nations.

Seventh. Reclamations for indemnity to citizens of the United States whose property has been arbitrarily seized and appropriated by the Spanish authorities, and likewise to those who have suffered personal injuries by reason of unjustifiable detention and punishment.

Eighth. A suggestion that the respective governments appoint agents to sit in Washington, to ascertain and fix the sum which the claimants should severally receive in compensation for the damages they have sustained; and—

Ninth. The earnest desire of the President, in the interest of the continued good understanding the United States Government wishes to maintain with Spain, that His Highness the Regent would delegate to the representative of Spain in Washington, or to some one of its public agents in the United States or Cuba, the needful power to arrange with the Government of the United States the class of questions so constantly arising in Cuba between the two countries, of which numerous examples are found in the recent correspondence between this legation and the ministry over which your excellency so worthily presides. The President has observed with regret that no response is made to this last-mentioned appeal to the friendly sentiments of the government of His Highness the Regent. Until qui te a recent date certain extraordinary powers have been vested in the Spanish minister at Washington, authorizing him in conjunction with the superior political authority in Cuba to adjust questions incident to the intercourse between that island and the United States. And although these means have not always proved effectual for the prevention or settlement of controversies growing out of the peculiar condition of affairs in Cuba, the expedient has not unfrequently been found useful in facilitating the more prompt and satisfactory arrangement of questions that might otherwise have attained larger proportions. It is true that Mr. Roberts, in his note under date of the 24th of June last, informing the Secretary of State that the government of His Highness the Regent had withdrawn from the Spanish legation in Washington the special powers it had before exercised with reference to this particular class of subjects, gave as the reason for this modification of his instructions that, in the judgment of the Spanish government, the improved situation of affairs in Cuba rendered the continuance of these faculties no longer necessary. This announcement would have been more satisfactory to my government if it had been accompanied by some assurance that the extraordinary measures adopted by the authorities in Cuba, purporting to have for their object the pacification of the island, had likewise been countermanded or revoked. It is notorious that the struggle for independence is still maintained by the insurgents, and if their strength be measured by the force employed and understood to be in preparation to be employed, against them, it is reasonable to assume that some time must elapse before the contest can be terminated. The President had, therefore, indulged the hope that while the Spanish authorities in Cuba were clothed with apparently unlimited power over persons and property in that colony, a corresponding discretion, with appropriate instructions, would be given to those authorities, enabling them to remove just causes of complaint on the part of the Government of the United States when their citizens are wrongfully or inadvertently injured in the execution of orders and decrees called forth by the civil commotion unhappily afflicting a Spanish possession so contiguous to the United States, and with which our intercourse is so constant and extensive.

Nor can the Government of the United States be otherwise than painfully impressed by the action of the Spanish government in the matter of the arrest and unreasonable detention in close custody of citizens of the United States without trial; and likewise, concerning the restoration of property seized and taken from American citizens without sufficient cause shown, and in violation as well of international law and of the ordinary practice of nations, as of Article VII of the treaty of 1795 between the United States and Spain. I do not now address myself to the question of indemnity in these cases, nor to the inquiry whether acts of spoliation upon the property of American citizens are contrary to the provisions of the treaty of 1795; these propositions will be [Page 722] considered presently in their proper order. I refer rather to the request made in the name of my Government that the property of certain citizens of the United States, heretofore designated with all needful particularity, arbitrarily taken from them without authority of law or judicial inquiry, should be restored to the possession of its rightful owners; and also to the further request that citizens of the United States, whose nationality is affirmed by my Government, arrested and held in close confinement in Cuba without trial, be either at once released or allowed a fair hearing before a judicial tribunal, in order that their innocence or guilt may appear.

My Government has not overlooked the consideration that involuntary injuries may sometimes happen to individuals in critical times, when the exigencies of a political convulsion, rather than the requirements of justice or the maxims of law, control the action of the public authorities. Ample allowance has been made likewise for the indiscretion of subordinate military and municipal officers, whose ill-directed zeal cannot always be regulated. Nevertheless, the President could not doubt that when the attention of the government of His Highness the Regent should be called to such of those occurrences as had involved serious injuries to American citizens, sufficient reparation would be promptly accorded.

Instances have no doubt occurred of Spanish subjects, exiled for political reasons from Cuba, who have forgotten, in the ardor of a desire to promote the independence of their native land, their obligation to obey the neutrality laws of the country whose hospitality they enjoyed. And although it must be confessed that history abounds in examples of similar indiscretion on the part of exiles who have afterward been welcomed home again as the benefactors of their country, yet the Government of the United States, so far from yielding to sympathies which might have excused a more lenient course, has rigorously exacted from these unfortunate offenders the strict penalty of their illegal enterprises.

The removal of the embargo in certain cases referred to by your excellency, where it appeared that the owners were foreigners, carried with it the admission of a right to indemnity. The release of property wrongfully taken and detained does not atone for the injury done. As to the reclamations in all such cases at least, it is manifest that the preliminaries named by your excellency are already complied with, the nationality of the parties having been satisfactorily shown to the Spanish authorities, and the application to them for redress having had no other result than the mere release of the estates without compensation for the damage sustained. These observations are likewise applicable to the instances in which prosecutions inconsiderately begun have been afterward abandoned and the parties discharged from custody upon representations made by American consuls. The reparation is incomplete without indemnity, and the innocence and nationality of the accused seem to have been acknowledged.

I am not unmindful of the suggestion offered by your excellency that, the embargo being a penalty for an offense, the vindication of the accused cannot begin with the remission of the sentence. To this it may be replied, that a party should not be punished for an alleged crime before he is arraigned. Your excellency admits that these embargoes in Cuba are not based on any law which sanctions the sequestration of property; that the courts of justice have thus far been strangers to these proceedings, and that they have been enforced only by the executive authority. And if it is found difficult to reconcile the restoration of property to its owner with a justification of the act of seizure, the task will not be easier when it is undertaken to show that an offense has been committed when no law has been transgressed, or that the punishment which should only follow the judgment of a legal tribunal can be justly inflicted without a trial or even an information presented to any court having cognizance of misdemeanors. With reference to the request of the President, that American citizens imprisoned in Cuba upon mere suspicion of an intent to offend the laws should be either released or brought to trial under the guarantees and with the rights secured by the treaty of 1795 to persons charged with crime, your excellency observes that it is patent on the list of names of those heretofore arrested, appended to my note of July 26, that they are not natives of the United States, but naturalized Cubans. The Government of the United States cannot discriminate between native-born and adopted citizens of the republic in demanding equal and due respect for all alike, whether at home or abroad. When an adopted citizen of the United States returns temporarily to his birth-place, whether called there by ties of affection for parents and kindred, or to give needful attention to business affairs, or by reason of infirmities or bereavement, or for any legitimate purpose, he retains his acquired nationality unimpaired, and with it the right to the protection of his adopted country, unless he voluntarily resumes his former allegiance. This principle has been consistently asserted by the Government of the United States from the beginning of its history. In the early part of the present century the American rule on this subject was maintained by the United States, even at the cost of war with one of the most formidable of the European powers. England and Prussia have signified their adhesion to the same doctrine, and so general is the acquiescence of other powers in this just view of the right of expatriation, that it may now be regarded as definitely engrafted upon the code of international law. It is true that when either native or adopted citizens of one country enter the jurisdiction of another [Page 723] they are bound to obey the laws and respect the sovereignty of the nation whose hospitality they enjoy; and that for any offense they may commit they are amenable to the same penalties that might be lawfully imposed upon them if they were citizens or subjects thereof.

On the other hand, this duty of obedience to the laws, and respect for the authorities of a foreign commonwealth in which a stranger may find himself, is associated with another corresponding obligation, no less imperative on all governments, which is, that their authority shall be exerted, when necessary, for his protection, and that, in the event of his being accused of misdemeanor, he shall not be unreasonably detained, nor denied a fair and impartial trial before the established tribunals of justice. With regard to the citizens and subjects respectively of the United States and Spain, their rights and duties within the territory of each other are amply defined in this identical sense by Articles VI, VII, VIII, IX, X, XI, and XX of the treaty of 1795, to which I have the honor to invite the attention of your excellency.

Your excellency seems to have assumed not only that naturalized citizens of the United States of Spanish birth, who have again placed themselves within the territory of Spain, have no right to the protection of their adopted country; but also that all persons within Spanish jurisdiction, bearing Spanish names, are Spaniards. These assumptions have frequently betrayed the authorities of Cuba into mistakes prejudicial to the interests of individuals and embarrassing to both governments. There are many thousands of native-born Americans whose names are of Spanish origin. Most of them belong to families originally residing in the States of Louisiana, Florida, Texas, California, Nevada, and Colorado, and in the Territory of New Mexico, all of which, as their names suggest, were formerly Spanish settlements. Indeed it may be said that nearly all of the surnames known in the United States, although appertaining to families who have from generation to generation been citizens of the republic, are of European origin, and were borne by ancestors who had migrated from one or another of the European states. So that your excellency will at once see how fallacious is the inference that persons coming from the United States who have European names are not Americans. Nor can it be taken for granted, without great risk of error, that naturalized citizens of the United States who bear Spanish names have been Spanish subjects, and much less that they are natives of Cuba. A very considerable number of persons of Mexican, Peruvian, Chilian, Brazilian, and Colombian birth, not to mention the inhabitants of other North American states, have become citizens of the United States. Your excellency will therefore acknowledge, I am sure, that there is no presumption to be raised against the American nationality of the list of aggrieved persons I have transmitted because many of their names are Spanish; nor, I trust, will that circumstance be deemed any longer sufficient to justify the demand of other evidence of their nationality than the official affirmation of the Government of the United States that they are American citizens.

My Government receives with satisfaction the testimony kindly borne by your excellency to the good conduct of the American-born residents in Cuba; and I am sure the President would be glad to convince himself of the accuracy of your excellency’s impression of the indulgence represented to have been uniformly extended to them by the authorities of the island.

I regret to have occasion to observe, however, that in numerous instances Americans have been arrested without cause, and when, after months of painful imprisonment, some of them have been released, no proof of their misconduct having appeared, they have been expelled from Cuba with serious pecuniary loss; and for such arrest, confinement, and expulsion, they have an indisputable claim to indemnity. Among these cases may be mentioned, for example, those of James M. Edwards, Dr. A. T. Simmons, John E. Powers, F. A. Schultz, and James Tate.

For the sake of illustration I may cite the particulars of one or two of this class of cases, taking for this purpose those especially referred to in your excellency’s supplemental note of the 20th ultimo, and whose claims to indemnity do not appear to be recognized. Mr. F. A. Schultz, an American contractor, engaged in furnishing crossties to the Havana Railway Company, was arrested at Madruga, August 28, 1869, charged with having said, in a conversation about the insurrection, that he “would bet $200 it would not terminate, because it was gaining ground;” and that in speaking of a patriotic ball to be given he remarked that “for that purpose he would give nothing, but that he would do so for the poor.” Certain marks tattooed on his arm were also regarded as suspicious. Mr. Schultz was at the time ill and under treatment for a bronchial affection; he was nevertheless hurried away, refused permission to take with him a change of clothing, or even necessary medicines, and was placed in close confinement in a damp cell. The United States consul at Matanzas, in reporting the case to his Government, remarks: “It seems incredible that any one should be subjected to such harsh treatment on charges so trivial, or that what he is alleged to have said could be tortured or construed into subversive language.” The United States consul general at the Havana submits the following suggestions to the Secretary of State with reference to the arrest of Schultz: “I wish,” says Mr. Plumb, “to call your special attention to this case as illustrating the insecurity that now exists for foreigners [Page 724] throughout the interior of this island, away from the immediate protection of the chief authority, and the danger they are in of arrest upon unfounded charges, instigated by the prejudice or malevolence of ignorant and vicious persons. The case is one that appears to demand that redress should be made.” In the supplemental note, dated the 20th ultimo, which I had the honor to receive from your excellency, it is stated upon the authority of a dispatch from the captain general of Cuba, of the 24th of August ultimo, that, “According to a report from the deputy governor of Trinidad, Mr. F. A. Schultz, who figures as a prisoner in the memorandum which accompanied my note of the 26th of July, is not, nor has ever been, in arrest, the American vice-consul in that city stating officially that he has no information about the matter and knows nothing of that person.” If these inquiries had been made at Madruga, where the arrest was made, or of Mr. Hall, the United States consul at Matanzas, who reported it, or of the consul general at the Havana, who brought the case officially to the notice of the captain general in September of last year, the investigation would, perhaps, have been more successful than could have been expected in Trinidad.

The case of Mr. James Tate is not less instructive. The United States consul at Trinidad de Cuba, in a dispatch dated May 1, 1870, states that Mr. Tate is an American-born citizen, about seventy years of age, who has been in ill health for many years past; that he bears an excellent reputation in Trinidad de Cuba, where he has resided more than fifty years; that he was arrested on April 30th last, at night, thrown into prison, where he was held incomunicado; no reasons were given for the arrest, which made a profound impression in the city, where his high character and very reserved disposition were well known. The consul interceded repeatedly with the governor and the fiscal in the hope of obtaining at least some limit to the close incarceration of this venerable and infirm person, as it was apprehended that the confinement and disgrace would prove fatal to him in his feeble condition. The consul reports that the fiscal does not hesitate to state “that he is convinced of the innocence of Mr. Tate of the charge against him, but that all the usual formalities of incomunicacion, trial, &c., must be gone through with before he can be released.” In which your excellency may see another instance of that amplitude of powers for acts of severity and the lack of authority to alleviate them, which unfortunately distinguishes the administration of affairs in Cuba. It further appears, by a subsequent report from Mr. Fox, the consul, dated May 27th ultimo, that Mr. Tate having become quite ill he was removed, upon the advice of the physician, after nearly a month of cruel imprisonment, to his own house; and according to the latest official information in the possession of this legation, dated June 8, the trial had not then taken place. I do not fail to take note of the statement communicated in your excellency’s note of the 20th ultimo, that Mr. Tate was “implicated in a case of disloyalty and ordered to undergo precautionary detention in his own house on the 5th of May, where he remained until the termination of the trial.” I should have been under additional obligation if your excellency had been so good as to inform me when the trial took place, and the result of it, so far as Mr. Tate is concerned. It was not my purpose in the note I had the honor to address to your excellency on July 26th, when referring to the proclamation of General Valmaseda, to make any representations concerning it, as it was known to have been revoked by superior authority; the reference was merely introductory to the subjects which it was the object of that communication to bring to the notice of the Spanish government, and to show, in connection with other decrees and orders, the general character of the measures taken by the authorities in Cuba, which seemed liable to be enforced in a manner prejudicial to the persons and property of citizens of the United States. While I shall, therefore, excuse myself from replying to the observations of your excellency in regard to Count Valmaseda’s order, I must at least express my dissent from the observation that precedents for it are found in the conduct of hostilities by the Government of the United States in suppressing the late rebellion. No life was sacrificed by the Union forces in that struggle save in open and fair combat. Prisoners of war were paroled or exchanged, or, if held, were treated according to the usages of war. There was no appropriation or destruction of property not immediately and necessarily incident to the movement of armies in the field. While care was taken to respect the persons and effects of foreigners domiciled within the theater of military operations, if these were inadvertently injured their right to reparation was promptly acknowledged. The citations given by your excellency from the “Instructions for the Armies in the Field,” issued by Mr. Stanton, Secretary of War during the conflict, do not in any manner justify the style of war embodied in Count Valmaseda’s order. The fifteenth article, which is quoted, is a concise statement of the rights of armies in the field in time of war, which each party to the contest may lawfully exercise, subject to the reclamations of other nations when the persons of neutrals suffer injury or their property is appropriated or destroyed. The eighty-fifth article, likewise cited by your excellency, applies to the inhabitants of conquered territory, occupied by an invading army, who rise in arms against it or against the authorities it has established. If the American compilation is entitled to the honor your excellency accords to it of being the first codification of the laws of war, Count Valmaseda’s order must have found its inspiration in [Page 725] another epoch, when public opinion had not imposed upon belligerents the amenities of civilization.

The allusion made in my former note to the decree of April 1, 1869, declaring null and void all sales and conveyances of property in the island of Cuba made without the intervention of certain officials, was likewise confined to a mere enumeration of that and other decrees of the same character, which appeared to disregard considerations of interest and convenience to foreign traders having large transactions in the island that should not have been overlooked by the authorities of an important commercial dependency. The views of the Government of the United States in regard to the decree of April 1, 1869, have already been conveyed to the government of His Highness the Regent.

It is, perhaps, unnecessary to pursue the discussion of the true construction and meaning of the seventh article of the treaty of 1795, since it appears to be conceded by your excellency that the property of foreigners is not properly subject to embargo in Cuba; and that the Government of the United States, in asking that the estates and effects of American citizens which have been seized and detained by the authorities in that island may be restored, with just compensation for the losses sustained, only claims “the legitimate privileges which are accorded by international law and treaties to all foreigners.”

Moreover, if the classification your excellency has made of these reclamations, based upon the data and official documents in the possession of the Spanish government, shall be found to agree with the testimony on the part of the claimants ready to be produced by my government, and much of which has already been submitted through the consul general at the Havana to the authorities in Cuba, there should be no difficulty in disposing of these claims at once by the prompt and friendly action of the two governments. It is only necessary that the evidence upon which your excellency relies be transmitted to the representative of Spain in Washington, and upon a comparison of the papers and proofs in the hands of the two governments the merits of the several claims for the restoration of the property of American citizens alleged to have been embargoed may be easily and satisfactorily determined.

It would be manifestly useless to engage in further argument upon cases properly belonging to the second and third classifications presented in the reply I have had the honor to receive from your excellency. These are said to comprise the cases of American citizens “whose property has never been embargoed,” and of others “to whom, in consideration of their being foreigners, their embargoed estates have been restored to them on the least evidence.” With respect to the latter, their American nationality having been already admitted by the Spanish authorities, it only remains that the indemnity to which they are entitled for the loss of the use and income of their property, and for the damage it may have suffered while out of their control, should be ascertained and paid. In regard to the first classification, that is to say, those “claimants who have never acquired a foreign nationality,” the Government of the United States will not be found disposed to extend its protection to persons who have not the right to invoke it. It is to be presumed, until the presumption is overcome by proof, that aliens who have deliberately renounced, after an uninterrupted residence of five or more years within the territory of the Union, all allegiance to any other government, and have thereupon become citizens of the United States, are sincere in their solemnly avowed purpose. If it shall be made to appear that any one of the claimants in whose behalf the government of the United States intervenes is not a citizen thereof, or, having been naturalized in conformity with its laws, has by any act of his own forfeited his acquired nationality, or that he has voluntarily relinquished it, your excellency may rest assured that the case of such claimant will be dismissed from the further consideration of the American Government. The Government of the United States, having satisfied itself that the parties in whose behalf reclamations have been addressed to the government of His Highness the Regent are entitled to claim the protection due to American citizens, awaits the production of such proofs as may be exhibited on the part of the Spanish government to show that such protection is not rightfully solicited and granted.

Although, as I have already remarked, the admission of your excellency that it is unnecessary to rely upon the special stipulations of a treaty to exempt a foreigner from the operation of the decree of embargo renders it superfluous to proceed with the discussion of the seventh article of the treaty of 1795 in its relation to that proceeding, I must not refrain from expressing my dissent from the construction given by your excellency to that article. The first clause is the one which relates directly to the questions now under consideration; it is as follows: “And it is agreed that the citizens or subjects 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.” Your excellency contends that the estates embargoed have not been taken for any of the objects expressed in the clause cited, and that therefore it has not been violated. If it is meant that the property embargoed has not been taken or detained for “any military expedition,” and that consequently this provision of the treaty has not been contravened, I must remind your excellency that the prohibition extends to every possible “public or private purpose” to which an [Page 726] embargo may be applied. The embargo enforced in Cuba is described by your excellency as “an extraordinary means of defense,” adopted by the authorities “to deprive the insurrection of powerful resources.” It is, then, a military measure, intended to strengthen one party to a conflict and weaken the other. It would therefore seem to be fairly embraced in the particular prohibition relating to military operations, as it is certainly comprehended in the general interdiction of embargoes for any “other public or private purpose whatever.” Your excellency is pleased sometimes to regard the embargo in Cuba as a punishment for a crime—that is to say, a judicial act; at others your excellency describes the proceeding as only a preventive measure of a purely political character; and, again, it is called an extraordinary means of defense, having for its object to deprive the insurrection of resources. But a further and more practical demonstration of the character of the embargo in Cuba is found in the decree of His Highness the Regent, dated on the 12th instant and published in the Gaceta of yesterday. It is therein provided that the proceeds of the sales of embargoed property in Cuba are to be applied toward the support of the government of the colony for the current year. Examined in any aspect, whether military, political, or legal, no justification has been found for the manner in which the executive authorities in Cuba have sequestrated the property of American citizens. If the object is to punish offenders against the laws, be it so; then the accused are entitled to a judicial hearing before judgment is pronounced against them. Yet it is confessed that the courts of justice have not been consulted, and that no law authorizes these acts of confiscation. And if by a measure of defense or prevention, whether political or military, it is meant that, in order to diminish the means of the insurgents and to augment the resources of the Spanish treasury, the property of citizens of a friendly nation, not residing within Spanish jurisdiction, may be seized and sequestrated, I must insist that the mere statement of the case discloses a palpable violation of the immunity belonging to the property of aliens, from which a right of release and indemnity follows as a matter of course.

The second clause of Article VII declares that “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.” And your excellency proceeds to ask if it can be maintained that American citizens, planning and committing acts of hostility to Spain, should be allowed the privileges and exceptions contained in the seventh article. To that inquiry it may be replied that if American citizens, found within Spanish jurisdiction, violate the laws of Spain, they are amenable to the penalties prescribed therein when their guilt shall be established, after a fair and impartial trial in a court of justice. And if American citizens or others within the jurisdiction of the United States plan and set on foot any military or naval expedition against Spain, they commit an offense, not against the laws of Spain, to which they do not owe obedience, but against the laws of the United States, for which they may be prosecuted and punished, on due complaint being made by the Spanish government or on its behalf; and of the vigilance and good faith of the United States in the enforcement of their laws prohibiting such acts of hostility against a friendly power the government of His Highness the Regent has had ample proofs.

An arbitrary seizure of the property of an American citizen by the public authorities of Spain, either civil or military, whether taken for political or warlike purposes, is precisely the act prohibited by the seventh article of the treaty of 1795. That article is best understood in its letter and spirit when the several clauses are appreciated as a whole. Its obvious purpose is to guarantee to the citizens and subjects of the one party within the territory of the other complete immunity for their persons and property from arbitrary levies, seizures or detentions on any pretence whatever; and likewise to secure to the citizens or subjects of both nations within the territory of each other all the protection and safeguards that belong to the administration of justice under a government regulated by law. Your excellency, in the course of some general observations on the subject of embargoes, appears to find an analogy between the decree promulgated by the captain general of Cuba and the act of Congress approved July 17, 1862, for the confiscation of the property of persons in rebellion against the United States. To analyze these two measures and point out the very numerous and essential particulars in which they differ as well in substance as in procedure, would extend this note to an inconvenient length, and it is believed that a brief reference to two or three of the many features which distinguish them will be sufficient. The act of Congress is a law, and is based on the precedents found in the legislation of constitutional governments; the decree of the superior political governor is the arbitrary act of an executive officer whose authority seems to be undefined. The act of Congress is executed only by the courts of justice, in conformity with the maxim of a humane code which declares that no person can be deprived of life, liberty, or property without the judgment of a judicial tribunal; the decree is enforced at pleasure, ex parte, by the governor and even by subordinate executive officers of districts, without the intervention of a court. The act of Congress applies only to the property of persons who commit within [Page 727] the territory of the United States the offenses denounced by the act; the decree is executed indiscriminately, as well, for acts done beyond as within Spanish jurisdiction. And, finally, not to make the enumeration tedious, the act of Congress applies only to offenses committed after the enactment of the law, while the Spanish decree declares on its face that its penalties shall be visited retrospectively for acts done before its promulgation. Nor am I able to see the coincidence your excellency discovers between the decree of embargo and the order of the American Secretary of War dated June 22, 1862, directing the commanders of armies to appropriate within the theater of operations whatever they found necessary for military purposes. This necessity of war is recognized by the usage of nations, and when the property of aliens is taken under such circumstances, the right of indemnity is never denied. At the beginning of the American war the parties to the contest were formally recognized by Spain as belligerents, and in the order your excellency cites the United States Government only exercised a right belonging to a belligerent. When the conflict in Cuba, which began two years ago, shall acquire the same character, the parties to it may appeal to the laws and precedents of war to justify their acts. If I do not enter upon an examination in detail of the memorandum of particular eases inclosed with your excellency’s note of the 12th ultimo, it is because that duty may be more satisfactorily performed after it shall be determined where the papers and proofs in the several cases may be most conveniently compared and revised. I should not, however, fail to remind your excellency that the case of Mr. Joseph Hernandez, a naturalized citizen of the United States, residing in the State of New Jersey, set forth in my note of the 26th of July, whose property was embargoed February 24, 1870, is not noticed in your excellency’s reply, nor in the memorandum that accompanied it.

I have now to consider the conclusions reached by your excellency in relation to the mode of procedure that should be followed in presenting to the Spanish government the several reclamations made by the Government of the United States. Your excellency desires: First, that each claimant shall state his grievance in due form and detail; second, that his American nationality shall be proved before the Spanish tribunals; third, that it shall appear that the claimant has applied for redress to some Spanish tribunal, or that a consul of the United States has intervened in his behalf, without obtaining satisfaction from the Spanish authorities.

And your excellency is pleased to declare that when these preliminaries shall have been complied with, if it shall then appear that an American citizen has been aggrieved, the Spanish government will make due reparation; and that, for the purpose of assessing the amount of indemnity to be paid, it will thereupon unite with the Government of the United States in choosing arbitrators to be named for that purpose.

In the observations I have to make upon the question of procedure, it will be convenient to distinguish between the several classes of reclamations under examination. The demands presented may be embraced under the four following classifications:

I. That the real and personal property of American citizens embargoed shall be restored to them or to their authorized agents;

II. That American citizens held in custody without trial shall be released, or tried by the judicial tribunals with the rights and privileges accorded by Article VII of the treaty of 1795;

III. That reasonable and just indemnity be paid to such American citizens as have been wrongfully deprived of their property, or of the use of it, or of the income from it, by the acts of the Spanish authorities; and,

IV. That American citizens arrested, imprisoned, or expelled from the island without sufficient cause appearing shall likewise be indemnified.

It does not appear reasonable to insist that the same formalities should be observed without discrimination in all the cases belonging to these separate heads. Take for instance the demand for the restoration of embargoed property. If, as your excellency observes, property may be embargoed in Cuba at the pleasure of the superior political governor, if the proceeding is not regulated by any law, if it is a military expedient adopted to diminish the resources of a seditious combination, it is not easy to see upon what ground or with what hope a resident of New York could apply to a court in Cuba to compel the captain general to restore property he had seized by virtue of the dictatorial powers he wields over the island, and the proceeds of which may have already gone into the colonial treasury as a part of the income for the current year, in conformity with the royal decree of the 12th instant. Nevertheless, your excellency maintains that although the courts of justice have had nothing to do with the execution of the measure, yet that to them should be addressed the reclamations of those citizens of the United States who complain that their property has been wrongfully taken. The more reasonable proposition would seem to be that redress should be sought from the same authority that committed the injury. That authority being the representative of the Spanish crown in the island of Cuba, with whom the Government of the United States holds no direct communication, it becomes a proper subject for the action of the two governments, the one extending due protection to its injured citizens, and the other responding, as in duty bound, for the acts of its official agent.

For the sake of illustration, let it be supposed that one of the claimants whose property [Page 728] has been embargoed proceeds to seek his remedy in the courts of Cuba; be files a petition setting forth the facts and circumstances of his case; besides the proof of his grievance he establishes his American citizenship to the satisfaction of the tribunals; having made good his complaint in the court of primary jurisdiction, and having been equally successful in the several appellate courts through which it may be supposed to have passed, and having at last obtained the favorable judgment of the supreme tribunal of justice in Spain, the claimant must still seek his compensation through his own government, for it is then that your excellency proposes that the government of His Highness shall unite with that of the United States in the appointment of arbitrators to appraise the amount of damages the claimant has sustained, and the award is to be thereupon paid by the Spanish government. That is to say—and this is the only deduction to be drawn from the course of procedure proposed by your excellency—the question of liability on the part of Spain must be decided by a Spanish court, while the incident of damages will be adjusted between the two governments.

Apart from the delay this mode of procedure would involve—and that consideration alone amounts almost to a denial of justice—the expense to which the parties would be put, the loss of their time and necessary absence from their ordinary avocations, the risk the claimants would run by reason of the insecurity of their persons in Cuba, not to speak further of the manifest hardship of compelling them to submit their demands to a tribunal powerless to afford them redress, render it sufficiently manifest that the course of procedure proposed by the Spanish government is dilatory, onerous, and impracticable. It is moreover inadmissible in principle. The President cannot acquiesce in the proposition that American citizens, recognized as such by their own Government, shall be remanded to foreign tribunals to establish their nationality as a preliminary to a hearing of their claims for indemnity formally presented by his authority for the consideration of the Government responsible for the injuries they have suffered.

I have already had the honor to inform your excellency that all the cases now brought to the notice of the government of His Highness the Regent, have been the subject of instructions to the consul general of the United States at the Havana, in order that they should be laid before the authorities in Cuba and redress demanded. These instructions have been fulfilled, and it is only in those cases in which this remedy has been found altogether unavailing, or where the redress afforded has been insufficient, that it has become necessary to ask for them the attention of your excellency.

The Government of the United States has always preferred to have these questions settled in Cuba by means of the intervention of the consul general with the local authorities, and has repeatedly expressed the wish that the captain general be authorized to dispose of them in that way. In some instances that officer has appeared to possess the necessary powers, while in other cases he has failed to act. In order that it may be quite apparent to your excellency that no effort has been spared to obtain justice for the claimants by the exhibition of the particulars and proofs of their grievances to the authorities in Cuba, I will cite, as an example, one of many such applications:

On the 15th of April, 1869, certain real estate and personal securities in Cuba, the property of the well-known firm of Moses Taylor & Co., of New York, was embargoed and taken from their agents. In September, 1869, a memorial in their behalf was presented by the late Attorney General, the Hon. William M. Evarts, praying that they may be restored to their rights through the intervention of the Government of the United States. The papers were forwarded, with appropriate instructions, to the consul general at the Havana. That officer reports that he presented the case to the superior political governor and gave him a copy of the papers, and that he received a reply on the 10th of November, from the secretary, that as soon as an examination could be made the decision would be given to him. On March 31, 1870, the consul general was further instructed to represent the case and ask for the removal of the embargo. On the 8th of April last, the consul reports the reply of the acting governor that the embargo cannot be raised until certain examinations, then in progress in New York, should be concluded, and that the Spanish government had grave suspicions in the case. From which it appears that a year having elapsed since the seizure, the Cuban authorities still retained the property arbitrarily taken by order of the captain general, without notice or opportunity given to the owners or their agents to be heard in their own behalf; and that the repeated representations of the United States consul general, based upon ample particulars and proofs, remained without result, excepting the disclosure that the Spanish government, after twelve months of investigation, claimed that the seizure and detention of the property of Messrs. Taylor & Co. rested upon “grave suspicions.” Surely it will not be expected that in cases of this description, of which there are not a few, the Government of the United States can await the further pleasure of the Cuban authorities; or that the claimants should be turned over to the Spanish tribunals after the fruitless efforts of the consul general to obtain redress from the superior political authority of the island.

Passing from the embargo claimants to those unfortunate Americans imprisoned in Cuba without trial, it is difficult to discover how they are to establish their nationality [Page 729] before the Spanish tribunals if this be insisted upon also in their cases as a condition of any intervention in their behalf by their Government. An opportunity to appeal to a court of justice is precisely what is asked for them, and what they have not themselves been able to obtain. To say to a foreigner in a Cuban dungeon who has been denied not only a trial, but who has been refused any means of communication with counsel or kindred or friends, that he may be tried when he shall have proved, to the satisfaction of the Spanish authorities, that he is an American citizen, would not seem to be a very substantial measure of relief. Neither does it seem consistent in the case of those other claimants who have been expelled from Spanish territory without judicial process, to reproach them with the failure to affirm their nationality before the courts of the country to which they are forbidden to return.

Your excellency is pleased to refer to the instructions addressed by the Secretary of State, under date of May 3, 1869, to the United States vice-consul general at the Havana, enjoining circumspection in ascertaining the real citizenship of persons making application for the recognition and aid of American consulates. In that communication your excellency may observe a fresh proof of the desire of my Government to confine its offices to those who have in good faith retained the right to ask for them. It may be presumed that no practical difficulties can arise in verifying the nationality of the claimants. The Government of the United States exercises habitual vigilance over applications made for its intervention, and uniformly requires satisfactory evidence of citizenship in such cases. It is to be supposed that a government will not err in determining whether the provisions of its own naturalization laws have been complied with by those who seek its protection, and that the comity of nations will accord full faith and credit to the customary proof of acts of the public authorities performed in the execution of municipal laws.

In view of the foregoing considerations, and in the interest of the continued friendship of the two countries, I trust it may be agreeable to the government of His Highness the Regent to accede to the earnest desire of the President for a more convenient and expeditious mode of settling the claims in question than the one suggested by your excellency. I am instructed to state that the proposed conditions of arbitration are distinctly objectionable, and cannot be admitted by my Government. The Government of the United States, in presenting the reclamations of American citizens for injuries suffered within Spanish jurisdiction, can address no other authority than that of His Highness the Regent.

The procedure indicated by your excellency would require the President to inform the claimants that they cannot be heard through their own Government—a conclusion that might be regarded as a rejection of the amicable means upon which the President has confidently relied for the arrangement of these differences. I have, therefore, the honor to submit for the further consideration of your excellency the proposition, that the representative of Spain in Washington be authorized to agree with the Secretary of State of the United States upon the several cases, together with the papers and proofs relating to them, that shall be submitted to the arbitrators; that the said arbitrators, one to be chosen on the part of the United States by the Secretary of State, and the other, on the part of Spain, by the Spanish minister in Washington, shall first select an umpire, to decide questions upon which they may differ, and thereupon proceed to determine the amount of indemnity to be paid to each claimant; and that, to facilitate the disposition of the business, the arbitrators be named on the part of the two governments without delay.

I avail myself of this occasion to renew to your excellency the assurances of my most distinguished consideration.

D. E. SICKLES.

His Excellency the Minister of State.

  1. "Angaria-Retraso forzoso impuerto à la salida de un buque para emplearo en un servicio público mediante salario ò retribucion.”—Dictionary of the Spanish Academy.
  2. Desde luego.