His excellency promised to give early attention to the subject, and before I
took leave of him he sent for Mr. Millan y Caro, the official in charge of
the papers, and requested him to translate my note at once, and to have all
the documents relating to the matter in readiness for examination on the
following day.
[Untitled]
Legation of the United States,
Madrid, February 7, 1871.
Sir: Referring to our several conferences, and
to the correspondence which has taken place on the subject, I have the
honor to submit for your approval the following memorandum of the
proposed arbitration for the settlement of the claims of corporations,
companies, or citizens of the United States, against the government of
Spain, for wrongs had injuries committed against their persons and
property or against the persons and property of citizens of the United
States, now deceased, by the authorities of Spain in or about the island
of Cuba, since the commencement of the present insurrection.
1. It is agreed that all such claims shall be submitted to arbitrators,
one to be appointed by the Secretary of State of the United States,
another by the envoy extraordinary and minister plenipotentiary of Spain
at Washington, and these two to name an umpire, who shall decide all
questions upon which they shall be unable to agree; and in case the
place of either arbitrator or of the umpire shall from any cause become
vacant, such vacancy shall be filled forthwith in the manner herein
provided for the original appointment.
2. The arbitrators and umpire so named shall meet at Washington within
one month from the date of their appointment, and shall, before
proceeding to business, make and subscribe a solemn declaration that
they will impartially hear and determine, to the best of their judgment,
and according to public law and the treaties in force between the two
countries and these present stipulations, all such claims as shall, in
conformity with this agreement, be laid before them on the part of the
Government of the United States; and such declaration shall be entered
upon the record of their proceedings.
3. Each government may name an advocate to appear before the arbitrators
or the umpire, to represent the interests of the parties
respectively.
4. The arbitrators shall have full power, subject to these stipulations,
and it shall be their duty, before proceeding with the hearing and
decision of any case, to make and publish convenient rules prescribing
the time and manner of the presentation of claims, and of the proof
thereof; and any disagreement with reference to the said rules of
proceeding shall be decided by the umpire. It is understood that a
reasonable period shall be allowed for the presentation of the proofs;
that all claims, and the testimony in favor of them, shall be presented
only through the Government of the United States; that the award made in
each case shall be in writing, and, if indemnity be given, the sum to be
paid shall be expressed in the gold coin of the United States.
5. The arbitrators shall have jurisdiction of all claims presented to
them by the Government of the United States for injuries done to
citizens of the United States by the authorities of Spain, in Cuba,
since the 1st day of October, 1868. Adjudications of the tribunals in
Cuba, concerning citizens of the United States, made in the absence of
the parties interested, or in violation of international law, or of the
guarantees and forms provided for in the treaty of October 27, 1795,
between the United States and Spain, may be reviewed by the arbitrators,
who shall make such award in any such case as they shall deem just. No
judgment of a Spanish tribunal di allowing the affirmation of a party
that he is a citizen of the United States shall prevent the arbitrators
from hearing a reclamation presented in behalf of said party by the
United States Government; nevertheless, in any case heard by the
arbitrators, the Spanish government may traverse the allegation of
American citizenship, and therepon competent and sufficient
[Page 770]
proof thereof will be
required. And it is further agreed that the arbitrators shall not have
jurisdiction of any reclamation made in behalf of a native-born Spanish
subject naturalized in the United States, if it shall appear that the
same subject-matter having been adjudicated by a competent tribunal in
Cuba, and the claimant having appeared therein, either in person or by
his duly appointed attorney, and being required by the laws of Spain to
make a declaration of his nationality, failed to declare that he was a
citizen of the United States; in such case, and for the purposes of this
arbitration, it shall be deemed and taken that the claimant, by his own
default, had renounced his allegiance to the United States; and it is
further agreed that the arbitrators shall not have jurisdiction of any
demands growing out of contracts.
6. The expenses of the arbitration will be defrayed by a percentage to be
added to the amount awarded. The compensation of the arbitrators and
umpire shall not exceed $3,000 each; the same allowance shall be made to
each of the two advocates representing respectively the two governments;
and the arbitrators may employ a secretary, at a compensation not
exceeding the sum of $5 per day for every day actually and necessarily
given to the business of the arbitration.
7. The two governments will accept the awards made in the several cases
submitted to the said arbitration as final and conclusive, and will give
full effect to the same in good faith and without delay.
I avail myself of this occasion to renew to your excellency the
assurances of my most distinguished consideration.
His Excellency the Minister of State.
