Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871
Mr. Sickles to Mr. Fish
Sir: I have the honor to forward herewith a translation of Mr. Martos’s reply to my note of the 8th ultimo, in relation to the proposed claims convention. It is dated January 30, and was received on the 31st, although the concluding summary of propositions was read to me at the ministry on the 30th ultimo, and a copy furnished, from which I compiled my telegram of the same date.
I have not yet received your telegram of the 28th ultimo. Mr. Moran informs me that he will send it by special messenger; and I shall defer my reply to Mr. Martos until I receive those instructions, as I suppose they relate to my telegram of the 26th, in which I informed you of Mr. Martos’s verbal communication of the previous day.
You will notice in these several papers the usual variation that occurs from time to time in the statement of the views of the government upon the points at issue. I hope, however, to be able very soon to present to the minister of state a memorandum of an arrangement upon which we can agree, and that it will meet the requirements of your instructions.
I am, &c.,
[Translation.]
Sir: I have received your note of the 8th instant, in which you are pleased to answer the communication addressed to you under date of the 19th December last, by my worthy predecessor in this ministry, respecting the principles and rules which the Spanish government believed necessary to be followed in the fulfillment of its task by the commission of arbitrators to be named for the purpose of considering the reclamations of American citizens for losses and injuries growing out of the Cuban insurrection.
The undersigned sees with satisfaction that the President of the United States is convinced of the sincere desire of the Spanish government to arrive, as soon as possible at a practical solution which, without infringing the principles of equity and justice that animate the two nations, will result in a happy termination of this question.
For this purpose, and in order to confirm this just confidence, it is indispensable to add a few explanations to the note of December 19, which, by reason of a misapprehension of its meaning or insufficient clearness in expressing the propositions therein contained, has given rise to the observations made by you. I propose to answer these, in the hope that, certain doubts being cleared away, and certain principles duly fixed, the proposal of the government of His Majesty will, in the end, be found to deserve complete acceptance on the part of the United States.
[Page 766]In the different notes addressed to you upon this important question by this ministry of state, the Spanish government has uniformly expressed its unaltered purpose to scrupulously observe the stipulations of the treaty celebrated in 1795, between Spain and the United States, since in this it but obeys its good faith and its loyalty to the cordial relations that since that time have uninterruptedly existed between the two countries.
This starting-point, which we have never lost sight of in the course of this negotiation, is the one that will most certainly lead to a satisfactory termination, narrowing the matter thenceforth to perfectly defined limits, and rendering unnecessary any discussion whatever in the field of the general principle of the law of persons or in that of international private law.
This consideration, moreover, relieves me from the not difficult task of disproving the relevancy of several citations from writers of high authority, brought forward in your note to prove the cases in which reparation is made on the part of one state to the subjects of another power, since your excellency cannot fail to recall how many inexhaustible sources allure the student of this branch of the law, who may seek therein reasons and arguments to support or impugn in turn all that, not being derived from the province of theory, as yet holds no fixed place in written law.
Neither is there any need to pause to demonstrate the lack of foundation of certain examples adduced by you in your note, endeavoring to prove how the subjects or citizens of one power may not be held subject to the jurisdiction of the tribunals of a foreign nation, within whose territory the laws have been violated. The example of the treaties celebrated between Spain and the countries of the east, cited by you, is not, in truth, upon even slight consideration, one which can carry conviction to the mind of any one in this connection. In those treaties, framed in an identical spirit by Spain and by other European nations, stipulations are made for a special legislation, called for by the high interests of civilization, and also by other considerations of a special character, which do not exist in other states, and which cannot be even indirectly attributed to them without injuring their standing among nations.
There is, lastly, another error in the note to which I have the honor to reply, which cannot pass without comment, inasmuch as it affects our constitutional rights and the independence of the powers of the State in the exercise of their elevated functions. You seem to regard it as an accepted fact that the “alien right” (fuero de estrangeria) conceded in Spain to the subjects of other powers, and by which their protection was confided to the jurisdiction of military tribunals, was under the immediate direction and supervision of the crown, all the judgments pronounced by such tribunals being subject to the revision and sanction of the monarch. In all this there is an evident misconception. Before the decree of the 6th of December, 1868, which established the unification of jurisdictions, the captain-generals of districts were, in effect, the protectors of foreigners, and before them the latter enjoyed the privilege of foreign citizenship; but the consideration, trial, and decision of the cases brought to the notice of the said authorities took place with the assistance of a magistrate of the judicial class, called the auditor of war; and he it was who pronounced the sentence. From these judgments an appeal was heard by the tribunal then called the supreme tribunal of war and of the navy, which definitively confirmed or revoked them, but without any kind of intervention on the part of the executive power.
Coming now to the principal object contemplated by the government of His Majesty in this reply, which is, as before said, to set in their true light and give the proper signification to the propositions presented on the 19th of December, I shall commence by stating to you that, in claiming for the judgments of the tribunals of justice the profound respect accorded in all countries to judicial decisions considered as a result of the independence of each state, the Spanish government could not have confused the simplest principles of public law or of the law of persons, nor have attempted to overstep the limits set to the jurisdiction of its legitimate sovereignty. Its purpose was solely to save the independence of the judicial power in all matters referring to the essential features of its judgments, and the ordinary formalities of legal proceedings; but if it appears that the latter have not been complied with, and especially that the guarantees and stipulations in favor of the two contracting parties in the treaty of 1795 have been infringed, the decisions of the tribunals are undoubtedly subject to arbitration, and will have to be adjudged by the commission. So that if, by chance, any American citizen should present a reclamation against the sentence or decision pronounced by a tribunal or military commission of the island of Cuba arising from the insurrection, and if it shall appear that in his case any of the ordinary proceedings were not observed in the judgment, or that the guarantees enumerated in the seventh article or in any other of the treaty were infringed, the arbitrators shall have power to invalidate such decision, and to award, in consequence, the indemnity that may be equitably due.
This explanation of the first of the propositions of the note of December 19 will not only make known to you the purpose of the government of His Majesty to respect the before-cited convention, but will also show the slight foundation there is for your supposition, in the note to which I have the honor to reply, that the Spanish government [Page 767] does not assume in the same manner and in equal proportion the responsibility of the acts of its authorities in Cuba, whether military, civil, or judicial.
Neither has the government of His Majesty asserted, as you are inclined to think, that the judgments of the civil and military tribunals of Cuba concerning the naturalization of Spanish subjects as citizens of the United States, should be accepted and recognized by the North American Government. It is sufficient to enunciate this proposition in these terms, to perceive that it has been mistakenly interpreted. What the government of His Majesty requires, with perfect justice and consistency, is that those American citizens against whom proceedings may have been instituted or decisions pronounced by the Spanish authorities, should have alleged at the time of making reclamation against their enforcement their quality as foreigners, without which they have no right to the guarantees of the treaty. Those who, after the lapse of the necessary opportunity, may have omitted to comply with this requirement, may be naturally separated into two classes—either they who have not been able to prove their supposed nationality, or, in the exercise of a legitimate right, they have submitted with good grace to the jurisdiction of the Spanish authorities; and it is clear that in neither case do they possess the right to have their claims investigated by the commission.
It might, however, happen that some, having alleged their nationality at the proper time, may have seen their assertion disallowed by the tribunals, or by the Spanish authorities in Cuba. Those who are found in this class will sustain no prejudice if they submit anew to the commission of arbitration the definitive decision of their personality, and this being decided will correspondingly affect the claims presented.
The Spanish government having, therefore, fixed with all possible clearness and precision on its part the basis which, in its judgment, will reconcile the interests of the two countries in the adjustment of the reclamations of American citizens by means of the proposed commission, it only remains to call your attention to the concluding portion of your note, in which you are involuntarily led into a contradiction.
You are pleased to recommend all possible activity in the settlement of this matter, in order that both cabinets being in accord, it may be practicable to submit the result to the examination and approval of the Congress at Washington, now near the termination of its session. This course is indicated for the first time in your note of the 8th instant, not having been mentioned in any of your previous communications relative to this question, in which, on the contrary, all your efforts were directed to heightening the necessity of authorizing the representative of Spain in Washington, without loss of time, to proceed to name one of the arbitrators and to inaugurate the labors of the commission. The government of His Majesty, being no less desirous on its part of terminating this matter, does not merely consider the intervention of the legislative body of either country unnecessary, but also fears that the American Congress, being overburdened with the numerous affairs which usually accumulate in the last days of its session, may not, even with the best exertions, avoid the postponement of the approbation of the present basis, the consequent delay being to the prejudice of all parties. The government of His Majesty, therefore, deems it preferable that the proposed settlement should be effected by a simple exchange of notes, thus economizing the time that would necessarily have to be devoted to the approval of the convention, and the interchange of the ratification of the same; if the arrangement were made in the form of a convention, which, on the other hand, does not appear to be entirely regular, especially as the celebration of a new compact is not contemplated nor even the modification of the existing treaty, but rather the application of its provisions in a special case.
Desiring, lastly, to sum up what I have already set forth in the present note, and to reduce to definite form the propositions the Spanish government deems suitable to be presented for the consideration of that of the United States, I have the honor to propose the following bases:
First. The commission of arbitrators shall take cognizance of and adjudge reclamations preferred by American citizens against acts of the Spanish authorities in Cuba, and also reclamations made by American citizens against the judgments of the tribunals or military commissions of Cuba, for the sole purpose of investigating and deciding whether the forms of law have been observed in those adjudications, and especially whether the guarantees consigned in the treaty of 1795 have been complied with.
Second. The commission of arbitration shall also take cognizance of the reclamations of those Spaniards naturalized as American citizens who, having asserted their acquired nationality before the tribunals or military commissions, have had their allegations disallowed. In these cases the commission of arbitration shall have full powers to decide whether the claimants possess the qualifications of American citizens or not. The commission having recognized the quality of American citizenship in the claimants, they will possess all the rights to which the first paragraph refers.
Third. Those naturalized Spaniards who failed to allege their character as foreigners before the tribunals or Spanish authorities, shall have no right to a hearing before the commission. The failure to assert their nationality shall be accepted as a submission to the tribunals and authorities of Spain in Cuba.
Fourth. The Spanish government and that of the United States shall each respectively [Page 768] name one person to represent it before the commission of arbitrators, and these shall have power to examine and verify the authenticity of the documents presented by the claimants, and to speak in defense of the interests of their respective governments.
Fifth. The present bases having been approved and accepted, the corresponding document shall be drawn up and exchanged by means of notes between the two governments of Madrid and Washington.
Sixth. The Spanish government and that of the United States shall reciprocally bind themselves to give full respect to and to comply in every particular with the decisions of the commission of arbitration.
I improve this opportunity to reiterate to you the assurances of my most distinguished consideration.
The Minister Plenipotentiary of the United States.