I have therefore to instruct you to bring this whole subject to the notice of
the Spanish government, and to say that the President hopes that immediate
steps will be taken for the release of all the citizens of the United States
who may be held in custody in Cuba in violation of the provisions of the
treaty of 1795, or for their immediate trial under the guarantees and with
the rights secured by that treaty. You are also instructed to ask for the
restoration to the citizens of the United States of their properties and
estates, so far as the same have been arbitrarily embargoed in violation of
the provisions of that treaty. You will also endeavor to secure some mode
for the early and equitable indemnification and satisfaction to the several
parties, whose rights have been violated, of the amounts which should
rightfully come to each claimant for the illegal detention of his property
or his person. You will say that this suggestion is made in the interest of
peace, of justice, and of good will, in order to secure a measure of damages
in each case which shall be just as between the two governments. You will
also say that it is extremely desirable to have the investigation conducted
in this country. It cannot be done in Spain without subjecting the claimants
to unnecessary expense. It cannot be done in Cuba, at present, without
subjecting many of them to personal danger. In this connection I must again,
on behalf of this Government, express, in the interest of good will and of
the continued good understanding which we desire to maintain with Spain, the
strong desire of the President
[Page 698]
that the government at Madrid will confer fresh powers upon Mr. Lopez
Roberts (or upon such other person on this side of the Atlantic as may be
selected for that purpose) to arrange all such questions with this
Government.
The Spanish authorities in Cuba seem to be clothed with absolute power for
the commission of such acts as are now complained of, but when redress is
sought, we are referred to the distant cabinet of Madrid, where it is often
found necessary to refer again to Cuba for information, and the case is thus
suspended and delayed, to the grievous injury of the parties and at the
hazard of irritation from the delay of which the necessity is not apparent
to the impatient sufferers or to the public.
The President has respected the Spanish claim of sovereignty over the island
of Cuba during the present contest against a strong sympathetic pressure
from without. Spain owes it to the United States as well as to her own
traditional honor and sense of justice that her sovereignty shall not be
used for the oppression and injury of the citizens of this republic.
You will urge this point in every way that your good judgment may
suggest.
Mr. Fish to Mr.
Lopez Roberts
Department of State, Washington,
June 9, 1870.
The undersigned is directed by the President to invite the earnest
attention of Don Mauricio Lopez Roberts, envoy extraordinary and
minister plenipotentiary of Spain, to the irregular and arbitrary manner
in which the persons and properties of citizens of the United States are
taken and held by the Spanish authorities in the island of Cuba.
When Count Valmaseda, in April of last year, issued a proclamation
declaring that every man, from the age of fifteen years upward, found
away from his habitation and not proving a sufficient motive therefor,
would be shot; that every habitation unoccupied would be burned; and
that every house not flying a white flag should be reduced to ashes, it
became the duty of the undersigned to convey to Mr. Lopez Roberts the
protest of the President against such a mode of warfare, and his request
that the authorities in Cuba would take steps that no person having the
right to claim the protection of the Government of the United States
should be sacrificed or injured in the conduct of hostilities on that
basis.
When again, about the same time, it came to the knowledge of this
Government that the captain general of Cuba had, on the 1st day of
April, 1869, issued a proclamation which virtually forbade the
alienation of property in the island, except with the revision and
assent of certain officials named in the decree, and which declared null
and void all sales made without such revision and assent, the President
again directed the undersigned to say that he viewed with regret such
sweeping interference with the rights of individuals to alienate or
dispose of their property, and that he hoped that steps would be
speedily taken to modify that decree so that it should not be applicable
to the property of citizens of the United States, and so that disputes
and complaints that could not fail to arise if its execution should be
attempted as to such property, might be prevented.
When, seventeen days later, a decree was issued creating an
administrative council for the custody and management of embargoed
property; and when, three days afterward, the captain general issued a
circular extending the previous embargo to the property of all persons,
either within or without the island, who might take part in the
insurrection, whether with arms in their hands or aiding it with arms,
munitions, money, or articles of subsistence, this Government
confidently expected that the cabinet of Madrid, and the authorities of
Spain in the island of Cuba, would regard the then recent expressions of
its wishes, and would not willingly permit the rights of citizens of the
United States to be interfered with or their properties to be
sequestrated without the forms of law to which they were entitled.
When the President directed the undersigned to invite attention to the
possibility that the laws and decrees which had been promulgated in Cuba
might lead to an infraction of the treaties between Spain and the United
States, he was not unmindful of the disorganized condition of society in
parts of that island, nor of the difficulties which
[Page 699]
attended the enforcement of the authority
of Spain. On the contrary, he was induced to make such representation by
a desire to avoid increasing those difficulties, and to prevent further
complications so far as the act of this Government could do so.
The seventh article of the treaty of 1795, between the United States and
Spain, provides—
“That the subjects or citizens of each of the contracting parties, their
vessels or effects, shall not be liable to any embargo or detention on the part of the other for any military
expedition or other public or private purpose whatever; and in all cases
of seizure, detention, or arrest for debts contracted, or offenses
committed, by any citizen or subject of the one party within the
jurisdiction of the other, the same shall be made and prosecuted by
order and authority of law only, and according to the regular course of
proceedings usual in such cases. The citizens and subjects of both
parties shall be allowed to employ such advocates, solicitors, notaries,
agents, and factors as they may judge proper, in all their affairs, and
in all their trials at law in which they may be concerned, before the
tribunals of the other party, and such agents shall have free access to
be present at the proceedings in such causes, and at the takings of all
examinations and evidence which may be exhibited in the said
trials.”
It is with great regret that the Government of the United States feels
itself forced to say that it is informed that the provisions of this
article of the treaty of 1795 have not been kept in mind by the
authorities in Cuba during the present struggle. It appears to the
President that the sweeping decrees of April, 1869, have been put in
operation against the properties of citizens of the United States in
violation of the treaty agreement that such property should not be
subject to embargo or detention for any public or private purpose
whatever.
Inclosed is a list of the citizens of the United States who, up to this
date, have presented to this Government complaints of such embargo or
detention of their property.
The decree of embargo is of itself an extraordinary exercise of supreme
power, outside of the ordinary and regular course of legal or judicial
proceedings, and even if properly exercised with respect to the subjects
of Spain and their properties, appear to be in contravention of the
rights secured by treaty to the citizens of the United States, and the
proceedings under the decree against the properties of citizens of the
United States have not, as is understood, been prosecuted by order or
authority of laws only, but in the exercise of the extraordinary
functions vested in or exercised for the occasion by the supreme
political authority of the island, and have been arbitrary and unusual,
and without the safeguards to personal rights and rights of property
which ordinarily accompany legal proceedings, which the seventh article
of the treaty guarantees.
It is understood that the citizens of the United States whose properties
have been thus taken forcibly from them have not been allowed to employ
such advocates, solicitors, notaries, agents, and factors as they might
judge proper; on the contrary, as this Government is informed, their
properties have been taken from them without notice, and advocates,
solicitors, notaries, agents, or factors have not been allowed to
interpose in their behalf. It is further understood that the names of
parties whose properties are thus embargoed are from time to time
published and their properties thereafter immediately seized, without
opportunity to them or their agents to be present at any proceedings in
regard thereto, or at the taking of examination or evidence.
In many instances these proceedings have been taken against the
properties of citizens of the United States who were not at the time,
and who have not during the continuance of the disturbances, on the
island of Cuba, been within the jurisdiction of Spain, and it is
notorious that by going to the island of Cuba, after the official
denunciation of their alleged conduct, they would subject themselves to
arbitrary arrest and possible summary military trial, if not to the
uncontrolled violence of popular prejudice.
The undersigned has also received representations from several citizens
of the United States complaining of arbitrary arrest and of close
incarceration without permission to communicate with their friends, or
with advocates, solicitors, notaries, agents, and factors, as they might
judge proper. In some of these cases the parties have been released; in
others, they are understood to be still held in custody.
The undersigned has the honor to inclose a list of the citizens of the
United States who, up to this date, have presented to this Government
complaints of such arrest and detention.
In some cases, also, such arrests have been followed by military trial,
without the opportunity of access to advocates or solicitors, or of
communication with witnesses, and without those personal rights and
legal protections which the accused should have enjoyed; and such
summary trials, when ending in conviction, have been followed by summary
execution. Such cases, so far as they have come to the knowledge of the
undersigned, are included in the list herewith transmitted.
What has been already done in this respect is, unhappily, past recall,
and leaves to the United States a claim against Spain for the amount of
the injuries that their citizens have suffered by reason of these
several violations of the treaty of 1795—a claim which the undersigned
presents on behalf of his Government with the confident hope that the
government of Spain, recognizing its justice, and making some proper and
suitable
[Page 700]
provision for
ascertaining the amount which should rightfully come to each claimant,
will also order the immediate restoration to the citizens of the United
States of their properties which have been thus embargoed, and the
release of those citizens of the United States thus held, or their
immediate trial under the guarantees and with the rights accorded by the
treaty.
As to the future, it is confidently expected that steps will be taken to
insure against further violations of the treaty. The high sense of honor
for which Spain is proverbial will (the President feels assured) prompt
her to take vigorous steps to secure to citizens of the United States
within Spanish dominions the full measure of the rights accorded to them
by the treaty of 1795.
The extraordinary powers as to affairs in Cuba which were conferred upon
Mr. Lopez Roberts by his government, and which were communicated to the
undersigned on the 12th day of August last, are understood by the
Government of the United States to be broad enough to authorize him to
arrest these infractions of the rights secured by the treaty and to
obtain the restoration of the properties. If, however, such is not the
case, the undersigned then takes the liberty to ask Mr. Lopez Roberts to
advise him of such absence of power, in order that instructions may be
given to the minister of the United States at Madrid.
In closing this note, the undersigned must expressly reserve to the
Government of the United States the right to restate its grievances on
these points, as new facts may come to its knowledge showing further and
other injuries to the properties of citizens of the United States from
like causes.
The undersigned avails himself of this occasion to renew to Mr. Lopez
Roberts the assurances of his highest consideration.
Señor Don Mauricio Lopez Roberts, &c., &c., &c.
1.—List of citizens of the United
States whose property has been embargoed.
Angarica, José Garcia.
Angarica, Joaquin Garcia.
Casanova, Inocencio.
Criado y Gomez, Ramon F.
Delgado, Joaquin.
Danford, Knowlton & Co.
Govin y Pinto, José,
Madan, Cristobal.
Mora, Fausto.
Mueses, Martin.
Rivas y Lamar, Ramon.
Rozas, John C.
Taylor, Moses & Co.
2.—List of citizens of the United
States who have been imprisoned, “incomunicado.”
Brito, José Vicente, arrested and imprisoned at Havana on February
12, 1869.
Cabias, Theodore, arrested at Matanzas in January, 1869.
Cabada, Emelio F.
De Castro, Lucas A., imprisoned at Trinidad de Cuba in March,
1869.
Del Villar, Gabriel Suarez, at Trinidad de Cuba in March, 1869.
Edwards, James M., at Manzanillo in November, 1868.
Jemot, Charles, at Trinidad de Cuba in May, 1869.
McGregor, Douglass, at Trinidad de Cuba in August, 1869.
Miranda, Thomas, confined in an iron cage at Havana.
Powers, John E., arrested near Trinidad de Cuba in April, 1870. Still
held “incommunicado” at last advices.
Rozas, John C., arrested on February 3, 1869, near Santa Maria del
Rosario, and sent to Fernando Po on March 21.
Simmons, A. T., at Puerto Principe in February, 1869.
Sportuno y Prats, Mrs., at Trinidad de Cuba in February, 1870.
Schultz, F. A., arrested at Madruga on August 28, 1869.
Tate, James, arrested at Trinidad de Cuba on April 30, 1870, and, at
last advices, still held “incomunicado.”
3.—List of other citizens of the
United States who have been arrested and imprisoned in
Cuba.
De Silva, Emilio.
Estrada, Rafael.
Fritot, Henry.
Gonzalez, Gregorio.
Machado, John A.
Morales, Angel.
Ortega, José Maria.
Pedro, Patchol.
Ponce de Leon, José M.
Polhamus, Charles J.
Pintado, Sebastian.
Portuondo, Juan F.
Santa Rosa, Augustin.
Speakman, Charles.
Wyeth, Albert.
