Mr. Sickles to Mr. Fish
Sir: I have the honor to forward herewith a copy of my reply to Mr. Sagasta’s note of the 19th ultimo, in relation to our reclamations for injuries suffered by American citizens in Cuba.
Mr. Sagasta was transferred from the ministry of foreign affairs to the home department immediately after my last interview with him on the subject of his note, reported in my No. 230. The appointment of his successor, Admiral Topete, which was made on the 27th ultimo, was understood to be merely provisional. The decease of General Prim on the 30th, and the advent of the new King, rendered a reorganization of the cabinet necessary. I therefore determined to wait for that event before framing my reply, since its tenor would depend, in some degree, upon the minister to whom it might be addressed. It will be observed that I have confined myself to a brief and very imperfect statement of the most obvious objections to the Spanish propositions. If Mr. Sagasta had continued in office, a more thorough discussion would, perhaps, have been expedient. I cannot believe that Mr. Martos, who is regarded as a learned jurist, will adhere to the positions taken by his predecessor.
Yesterday I mentioned to the assistant secretary of state that my reply would go in to-day, and requested him to put the correspondence before the minister, in order that he might be prepared to give the matter prompt attention. Mr. de Blas told me that he had already conferred with Mr. Martos on the subject, and he was quite sure that this question would be among the first considered.
I am, &c.,
D. E. SICKLES.
[Page 755]Legation of the United States, Madrid, January 8, 1871.
Sir: I had the honor to receive, on the 19th ultimo, the note of that date, addressed to me by the predecessor of your excellency, in reply to mine of the 14th, in relation to sundry reclamations presented by the Government of the United States for indemnity for injuries suffered by American citizens at the hands of the Spanish authorities in Cuba. Your excellency will appreciate the reasons that have induced me to defer my present communication until the definitive organization of the ministry, in which I am happy to see that your excellency returns to the department of state.
My Government receives with satisfaction the assurance that after the ample and extended discussion of the questions hitherto at issue in the correspondence that has taken place on this subject, the Spanish government believes it most conducive to the interests of both countries to come at once to a practical solution of the matter, in accordance with the principles of equity and justice that animate the respective cabinets.
It is to be regretted that several of the articles submitted on the part of the Spanish government, as regulations for the procedure of the mixed commission proposed by the United States, are not such as would facilitate an agreement between the parties. And it is confidently believed that upon a fair and frank view of these articles, your excellency will be satisfied that the objections to them are insuperable.
It is stipulated by the Spanish government in the first of the proposed articles, in the second and third clauses of the second article, and in the third article:
First. That no indemnity shall be awarded to any party for damages sustained in person or property in consequence of any proceeding or order of any civil or military tribunal, or of any authority having judicial functions, in Cuba.
Second. That in any case in which it shall appear that the civil or military tribunals of Cuba have overruled the claim of a party to be an American citizen, no indemnity shall be awarded; and it is further said that it must appear, in every case, that the party, without delay, asserted his American nationality before the authority inflicting the injury.
It would seem, therefore, that the Spanish government, while admitting its liability, in principle, for the acts of its civil and military authorities in Cuba, declines to recognize its responsibility for acts done pursuant to the orders of persons exercising its judicial power.
In the communication on this subject that I had the honor to receive from the minister of state, under date of 12th September ultimo, it was insisted that none of these claims for indemnity could be entertained by the Spanish government unless they had been first submitted to the adjudication of the tribunal in Cuba. Against that proposition I urged, in my note of October 14, the arguments which appeared to my Government to require its rejection. It is now abandoned, and in its place a ground is taken that appears to the President wholly inconsistent with the doctrine previously held by the cabinet of Madrid, and not less repugnant to precedent and justice.
The principles of international law do not permit a nation to insist either that a sovereign state shall require its citizens to submit their alleged grievances against the authorities of another power to the municipal tribunals of that power; nor that a government is exempt from liability for the acts of its tribunals exercising jurisdiction in its name and within its territory, and subordinate to its authority. On the contrary, it may be unhesitatingly affirmed that the recognized publicists in this branch of jurisprudence distinctly admit the responsibility of governments for injuries suffered through the misdirection, negligence, or fault of their authorities, and no distinction is made in respect to such liability between the acts of judicial officers and the acts of other public agents.
In matters of contract, or in any of the ordinary transactions of commerce between the citizens or subjects of different countries, it is not expected that governments will give their sanction to reclamations based upon complaints of the action of the judicial tribunals of other states, unless it is manifest that such gross misconduct has been committed as amounts to a denial of justice. The reclamations presented by the United States against Spain rest upon an entirely different ground. It is represented to the Government of the United States, upon evidence satisfactory to the President, that sundry citizens of the United States have been wrongfully injured in their persons and property by the authorities of Cuba, in a series of measures growing out of the state of hostilities of which that island has been the theater for more than two years. It is charged that American citizens have been arbitrarily deprived of their estates and merchandise by the mere order of the captain general and those exercising authority under that officer. In some cases it is alleged that American citizens have been arrested and imprisoned without sufficient or probable cause. In other instances it appears that they have been denied the rights and immunities guaranteed to citizens of the United States by the treaty with Spain of October 27, 1795. These reclamations having been presented to the government of Spain, and it appearing that the two governments could not agree upon the facts and circumstances of the several cases, nor [Page 756] upon the redress to which the parties were entitled, it is proposed by the United States to submit all the claims to a mixed commission of three members, one to be named by each party and the umpire to be chosen by the other two commissioners, with power to hear and adjudge these several complaints upon just and equitable grounds.
In answer to this reasonable and friendly proposal the Spanish government now requires that the jurisdiction of the commission shall not extend to any claims in which the civil or military tribunals of Cuba have rendered judgment upon the merits of the case; and furthermore that the Government of the United States shall not be permitted to prosecute before the commission the claim of any citizen whose right to its protection has been considered and denied by a civil or military tribunal in Cuba.
In a conference with one of your excellency’s predecessors on the 23d ultimo, I presented the principal grounds upon which these proposed limitations to the jurisdiction of the commission are deemed by the Government of the United States unreasonable and untenable. If I now recapitulate some of them, it is because they have not been brought to the notice of your excellency since your entrance upon the duties of the ministry of state. The proposition that the adjudications of Spanish tribunals are conclusive in all cases, whether affecting the person and property of Spanish subjects or of citizens of the United States, is in conflict with many approved precedents found in the leading authorities on international law, and is inconsistent with the practice of the Spanish government.
Grotius maintains that a judicial sentence plainly against right, to the prejudice of a foreigner, entitles his nation to obtain reparation by reprisals; “for the authority of the judge,” he says, “is not of the same force against strangers as against subjects.”
Bynkershoek also puts an unjust judgment upon the same footing with naked violence in authorizing reprisals on the part of the state whose subjects have been thus injured by the tribunals of another state.
And Vattel, in enumerating the different modes in which redress may be refused so as to authorize reprisals, mentions a judgment manifestly unjust and partial; and although he affirms, what is undeniable, that the judgments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds, yet he is evidently far from attributing to them that sanctity which would absolutely preclude a foreign government from seeking reparation in cases where, by reason of their action, its citizens have suffered wrongs.
Wheaton affirms that these principles are sanctioned by the authority of numerous treaties between the different powers of Europe regulating the subject of reprisals, and declaring that they shall not be admitted unless in cases of the denial of justice. “An unjust sentence,” he adds, “must certainly be considered a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice.”
It may be remarked that it is by no means an uncommon occurrence for judgments affecting life and property to be pronounced by the tribunals in Cuba in the absence of the accused and without hearing any one authorized to appear in his behalf. Citizens of the United States can only be expected to acquiesce in the judgments of Spanish courts so far as their decrees are agreeable to the law of nations and to the treaties in force between the two countries. The Spanish government is bound to see that justice is done within Spanish territory to the citizens or subjects of other countries. And if justice is denied them, the aggrieved citizens of other states may rightfully seek through their respective governments an adequate indemnity.
Under the treaty of 1794 between the United States and Great Britain, a mixed commission was appointed to determine the claims of American citizens. In the course of the proceedings objections were made on the part of England against hearing any case where the British judicial tribunals had decided the reclamation adversely to the claimant, inasmuch as it was to be presumed that justice had been done. But this objection was overruled and the claims were allowed in many cases where equity seemed to require indemnity.
The United States made a like demand upon Denmark for indemnity in consequence of the denial of justice to American citizens by Danish courts. It was admitted, after a very elaborate and able discussion, that the most fit and proper measure by which a nation could satisfy itself of the injustice of sentences pronounced by its courts, was an impartial tribunal organized under the sanction of the two countries, for the purpose of determining between government and government whether any wrong had been done by the judicial authorities of the one power against the citizens of the other, and for determining what redress ought to be granted to the latter. In conformity to these principles a treaty was concluded by which a satisfactory indemnity was provided for the American claimants. In the treaty of 1835 between Spain and Great Britain, article 7, it is provided that mixed tribunals shall decide questions arising within Spanish jurisdiction affecting Africans.
In the treaties between Spain and Turkey, Morocco, Tunis, and Tripoli, it is provided that Spanish subjects shall not be subject to the jurisdiction of the courts of those countries.
[Page 757]From 1667 down to 1869, more than two centuries, Spain admitted in her treaties with European states the right of foreigners to an exceptional and special jurisdiction within Spanish territory. This fuero de extrangero, at first conceded in the treaty with England, was afterward extended under the “most favored nation” clause to other powers. The tribunals organized for the exercise of this jurisdiction were under the immediate direction and control of the Crown, and all their judgments and proceedings were subject to the royal revision and sanction, so that their acts were, in fact as in theory, the acts of the government, and for which it was responsible to the powers interested in the protection of their citizens and subjects.
It appears, therefore, from the foregoing review of the public law and of the precedents found in the public transactions of states, that the limitations proposed by Spain to the jurisdiction of the mixed commission are inconsistent with her own practice and that of other nations in analogous cases, and contrary to the principles defined by the recognized authorities in questions of international right. I am instructed to state that the President regards the conditions I have specified as inadmissible, and he trusts that upon further consideration the government of Spain will find it agreeable to its views of equity to concede to the impartial tribunal proposed to be created ample jurisdiction to redress whatever injuries American citizens may have wrongfully suffered at the hands of Spanish authorities in Cuba.
The President contemplates that every claimant will be required to make good before the commission his injury and his right to indemnity. It is not desired that the commission shall take cognizance of claims growing out of contracts. Naturalized citizens of the United States will, if insisted upon by Spain, be required to show when and where they were naturalized; and it will be open to Spain to traverse this fact, or to show that from any of the causes named in the circular of the Department of State of the United States, of October 14, 1869, the applicant has forfeited his acquired rights. I am quite sure that your excellency will find in such a provision abundant safeguards against any alleged abuse of the claim of American citizenship.
I must decline any discussion of the third proposition presented in the note from the ministry of state of December 19, which seems to maintain that the adjudications of Cuban civil and military tribunals upon the naturalization laws of the United States should be accepted by my Government as determining the nationality of those it may deem entitled to its protection. That proposition cannot be entertained.
It is besides contemplated by the President that the respective claims and the proof appertaining to them shall be presented only through the Government of the United States; that each government may employ a person as agent or counsel to represent it before the commission; that the commissioners shall have full power to make their own rules as to the mode and time of the presentation of claims and of the proof thereof; and that before making such regulations, they shall agree upon an umpire to whom shall be referred all questions on which they cannot agree, including the rules aforesaid. And it will be for the commission, so constituted, after hearing the allegations and proofs on the part of the two governments, to decide upon all the facts and circumstances of each case, whether or not the claim is just, and the amount of indemnity, if any, to be awarded.
It is desirable that the proposed commission be organized at an early day. To this end it would be convenient if the convention were transmitted to Washington during the present month, in time for the action of the Senate before the day fixed for its adjournment, and that the exchange of ratifications take place at Washington.
I avail myself of this occasion to renew to your excellency the assurances of my most distinguished consideration.
His Excellency the Minister of State.