No. 427.
Mr. Fish to Admiral Polo de
Bernabé.
Washington, December 17, 1872.
Sir: I have the honor to acknowledge the receipt of your note of the 31st of October, 1872, in relation to the case of Augustin Santa Rosa. A perusal of the extracts from the dispatch of the captain-general of the island of Cuba (embodied in your note) induces the belief that the captain-general had not been put in possession of all the facts and circumstances of the transaction at the time of his writing that dispatch, and that a full and correct knowledge of these facts and circumstances would have led him to a different conclusion.
With a view to a clear and perfect understanding of the reasons for the immediate release of Santa Rosa, which I am now about to submit, I take occasion to state briefly the facts, as they have come to the knowledge of this Department from information deemed satisfactory. It appears that in June, 1871, Santa Rosa being then engaged in the insurrection, was hotly pursued by detachments from the forces under command of Colonel Laba Marin; that by flight and strategy he had several times escaped capture. On the 4th of July of that year Santa Rosa received a letter from Colonel Marin, in which the latter proposed to him that, if he would surrender, he, Santa Rosa, should receive a general amnesty and pardon for all his previous insurrectionary acts against the Spanish authority in Cuba, reserving only to the government the option of allowing Santa Rosa to remain in Cuba or banishing him from the [Page 1048] Spanish dominions. On the conditions just expressed, Santa Rosa surrendered on the same day the proposition was made, relying on the word of a soldier for the fulfillment of the conditions. Colonel Marin kept his word, and on the next day furnished Santa Rosa with a letter of general safe-conduct and intrusted him with written communications, to be carried by him to the insurgent camp. Exposure and hardship had so told on Santa Rosa that he was prostrated with illness on the journey, and was found insensible in the fields by three men, who took him to their hut. There he remained until the end of August, when a scouting party from the encampment of San Geronimo took him, with thirty-six others, prisoners, and conveyed them to the encampment aforesaid, There they took from Santa Rosa the communications from Colonel Marin to the insurgents, of which Santa Rosa was the bearer, Marin’s letter of safe-conduct to him, and also the letter of Marin, which contained the proposition for surrender and pardon, thus depriving him of the best means of protecting himself from the punishments denounced against the insurgents. He was detained there until the 28th of September, when he was sent to Puerto Principe. Here the military governor, upon hearing the conditions of his surrender, at once discharged him. Two months after, on the 28th of November, he was again arrested, imprisoned, and with several others subjected to a military trial and examined as to the events of the insurrection and the capture of the steamer Comandatario. All the depositions and documents were forwared to the captain-general, (Valmaseda,) and on the 14th of March, 1872, Santa Rosa was, by his order, released. Santa Rosa now turned his attention to earning money sufficient to defray his expenses to the United States, where his family were. Having secured this, on the 9th of July, 1872, he applied to the proper officer of police for a permit to go to Havana. It was granted. He proceeded to Havana by steamer; reached that city on the 13th of July, took up his loggings at the Western Inn, and immediately reported himself to the commissary of police. On the night of that day he was arrested at his lodgings by this same commissary of police and three policemen, and the next day bound and taken through the streets to the public prison, where he is still held in close confinement on the charge founded on his participation in the capture of the Comandatario. After remaining in prison fifty-four days, on a visit of the Spanish admiral to the prison, Santa Rosa presented his case to him, and that officer assured him that if upon inquiry, which was then being made, he found the fact that Santa Rosa had been pardoned, true, he would release him. Santa Rosa, however, still remains in prison.
In the extracts from the communication of the captain-general which you have done me the honor to transmit in your note, the fact of Santa Rosa’s pardon is conceded; the arguments of his excellency are directed solely to a limitation of its terms. The capture of the Comandatario, it is insisted by the captain-general, was a common crime, like that of robbery, murder, or arson; that it was, moreover, the crime of piracy, which is denounced by the codes of all nations, and therefore cannot be understood to have been included in or covered by a pardon for his insurrectionary acts. The circumstances attending the granting of the pardon; the terms of the pardon itself requiring only the one condition of his being allowed to remain or compelled to leave the colony—the status of Santa Rosa, his relation to and attitude toward the Spanish government at the time he accepted the pardon, all forbid its interpretation in the restrictive sense in which the captain-general claims that it must be understood. Among the Spanish authorities who were called upon to interpret this pardon [Page 1049] the captain-general stands alone in the construction which he claims for it. Colonel Marin, who represented the government in the negotiations which resulted in Santa Rosa’s surrender, did not understand the pardon in this restrictive sense. The military governor at Puerto Principe did not so understand it; on the contrary, when he became satisfied of the facts and the conditions upon which Santa Rosa surrendered, he promptly released him. But the interpretation claimed for it on behalf of Santa Rosa has still higher authority to support it. After his second arrest in November, 1871, at Puerto Principe, before a military court of inquiry, with an army officer appointed to conduct the examination on the part of the government, Santa Rosa was interrogated touching the events of the Cuban insurrection and the capture of the Comandatario. The proceedings of that court, with the evidence, documentary and other, were submitted to the captain-general, (Count Valmaseda,) and with all the facts before him, on the 14th of March following, that distinguished officer ordered Santa Rosa to be discharged; and in pursuance of such order, and in accordance with the plain import of his pardon, he was again released.
It is not the nature of the crime which may be involved in the capture of the Comandatario that is now being discussed, but rather the character which attaches to that crime, growing out of the relation in which Santa Rosa stood to the Spanish government at the moment of his participation in that capture. If he was then in a hostile attitude toward the local government of Cuba, associated with the insurrectionists who were seeking the overthrow of that government, and aiding them in their revolutionary efforts, then his acts, in connection with that enterprise, (whatever views may be taken of these acts abstractly considered,) would be taken as a political offense, and must be understood to have been included in and covered by the proposition of pardon tendered on behalf of the government by Colonel Marin, and by which that officer secured the surrender of Santa Rosa. That this was the character in which Santa Rosa was held and treated by the local authorities of Cuba long prior to the date of the Comandatario capture, (May, 1869,) the public records of the government in Cuba will, it is believed, abundantly show as early as November, 1868, (the precise date is not known,) that Santa Rosa was arrested by the government authorities of the island, and confined in Moro Castle on a charge of being “chief of insurrection.” From this imprisonment, it appears, he was released on the 13th of January, 1869, under a decree of general amnesty to all political prisoners, proclaimed by the captain-general, (Dulce.) Following closely on this release from confinement, Santa Rosa seems to have again joined himself to the insurgents, and the fact that he continued from thence up to the date of his surrender to Colonel Marin to maintain an attitude of active hostility to the Spanish government, and especially the Cuban authorities, is, I submit, clearly inferable from all the facts and circumstances of the case. At his trial, in November, 1871, before a military court-martial at Puerto Principe, he was called upon to answer for his past insurrectionary acts, among which his participation in the capture of the Comandatario was included. Upon what other ground than that the Comandatario affair was considered as a political and insurrectionary crime could it have been embraced in those proceedings?
There is still another consideration which, it is believed, should have great weight in determining the matter in dispute in favor of Santa Rosa. Colonel Marin, who represented his government in the transaction of the surrender and pardon, and Santa Rosa stood in the relation to each other of soldiers in opposing and hostile forces; Marin proposed to Santa Rosa [Page 1050] that he should surrender and cease his warfare on the government on condition of his receiving a complete and full amnesty and pardon. The conditions were accepted by Santa Rosa. He immediately surrendered. If there is any ambiguity in the terms of the agreement, it is a universal rule of construction, nowhere held more sacred than in Spanish law, that that sense must prevail against either party in which he had reason to believe the other party understood it. It cannot be believed that, with any other understanding than that now claimed by him, Santa Rosa would have accepted the proposal for surrender. It may also be assumed, without any violence to truth, that during the progress of the insurrection, which has unfortunately existed in the island of Cuba for the last four years, acts have been committed by the insurgents involving the lives of innocent persons, the robbery of individuals, and the burning of private property; but it surely will not, therefore, be contended that if one of the rebel chiefs should surrender, on condition of receiving a complete amnesty and pardon for his insurrectionary acts, he would still be amenable to trial and punishment for a murder, arson, or robbery committed during and in the course of his active rebellion and war against the government.
With the appreciation I entertain of the sense of justice and honor which animate the authorities of the Spanish government in Cuba, I cannot permit myself to doubt that, upon a further consideration of the facts and circumstances connected with the case, the captain general will see the justice and propriety of ordering the immediate release of Santa Rosa.
I avail, &c.,