Mr. Taylor to Mr. Olney.
Madrid, May 11, 1896.
Sir: I have the honor to acknowledge the receipt of your telegram of the 9th instant, as follows:
Make immediate representations to Spanish Government that United States conceives it to he its right and duty to insist that court-martial sentences just imposed at Habana upon American citizens shall not be executed until this Government has opportunity to become satisfied that its interposition is not warranted. To enable it to reach a conclusion in the matter, it should have and now asks record of proceedings of court, charges and evidence, and should know what opportunity defendants had to defend themselves by counsel, of their own choice, and by examination and summoning of witnesses. United States would be entitled to insist upon such request, with the necessary reasonable delay in any case, but is especially so entitled in the present case, where the jurisdiction of the court-martial is extremely doubtful and can be justified only by a new strained technical construction of treaty stipulations, such being contrary to their spirit, to their fair interpretation, and to the intent of the parties at the time they were entered into, as clearly shown by their correspondence. Call particular attention to the words in article 4 of the protocol, “all Spaniards being in the United States,” as well as “residing” there. It is inconceivable that residence as a condition to the advantages of protocol was required in one case and not in the other. Ask for an immediate answer to request that execution of court-martial sentences be postponed for reasons and with purposes stated.
I at once obtained an interview with the minister of state, in which I presented to him your telegram, together with the following observations in the way of argument:
In my opinion it is certain that the protocol of 1877 is not limited, upon a reasonable construction, to citizens of the United States residing in Spanish territory, for the conclusive reason that the benefits of American law are extended to all Spaniards “being” in the United States, although they may not be residents there. To dispute that construction is to deny to the protocol mutuality. That point settled, it is certain that, even conceding for the sake of argument that the American citizens in question were taken with arms in their hands, and for that reason triable by a council of war, they are nevertheless entitled to all the benefits of section 4 of the protocol, which reads as follows:
“In consequence whereof, as well in the cases mentioned in the third paragraph as in those of the second, the parties accused are allowed to name attorneys and advocates, who shall have access to them at suitable times. They shall be furnished in due season with copy of the accusation and a list of witnesses for the prosecution, which latter shall be examined before the presumed criminal, his attorney and advocate, in conformity with the provisions of articles twenty to thirty-one of the said law; they shall have right to compel the witnesses of whom they desire to avail themselves to appear and give testimony or to do it by means of depositions; they shall present such evidence as they may judge proper, and they shall be permitted to be present and to make their defense in public trial, orally or in writing, by themselves or by means of their counsel.”
My Government has therefore in any case the right to demand an inspection of the record of the proceedings of the council of war in order to determine whether or no the accused have been given all the benefits of section 4 of the protocol.
The minister promptly gave a favorable response to your request, which I reported to you in the following telegram:
Presented your request, with argument, based on terms protocol. Minister of state promptly replied all executive action suspended by order given under promise made me 3d instant. Entire record will be ordered Madrid for review by supreme council war and marine. When there, Government can control record, copy of which will be furnished you for inspection prior to execution in the event supreme council should hold proceedings to have been regular.
The newspapers of this morning say that the review of this case by the supreme council of war and marine will involve a delay of at least two months.
I am, etc.,