No. 428.
Mr. Fish to Admiral Polo de
Bernabe.
Washington, January 30, 1873.
Sir: I have the honor to acknowledge the receipt of your note of the 16th instant, transmitting a copy of a communication addressed to you by the captain-general of the island of Cuba, bearing date the 20th ultimo, and relating to the proposed renting by the colonial government of certain embargoed estates situate in that island, but owned by persons who are known to be citizens of the United States.
Referring to three telegrams, those recently received from you by the captain-general, apprising him of my protest against the proposed renting of the estates of Raman Fernandez Criado, Thomas de Mora and Martin Mueses, and (following the language of the captain-general’s communication) “some other Cuban or American, whose name cannot be understood from the translation made of said telegrams,” the captain-general proceeds to say that the renting of property advertised to take place on the 18th of that month (December) would in nowise prejudge the question nor place any obstacles in the way of the settlement of the pending claims, either of the persons then in question or of those of any others in the same situation. Whatever force might attach to such a proposition if applied to the general question of the estates proposed to be rented, when applied to the cases of Criado, Mueses, and the two de [Page 1051] Moras, becomes inapplicable, and indeed it is difficult to imagine by what process of reasoning the conclusion to which his excellency the captain-general seems to have arrived could have been reached in reference to the estates of the persons named in his communication to you.
No questions in relation to the claims of these several persons for the release of their estates which had been placed under embargo were then pending. The questions relating to the release of these several estates had been already settled and the release of the property ordered by the government of Spain. This Government has received from that of His Majesty the King repeated assurances that these orders would be speedily executed, and I am advised by a telegram from General Sickles, which I had the honor to read to you, that so late as the 17th instant, the minister of state at Madrid expressed his surprise and regret at the continued delay in executing the orders for release in the cases of Thomas de Mora, Criado, Mueses, and Mrs. de Mora. To say that the leasing, by authority of government, of property for a term of three years would place no obstacles in the way of the settlement of claims of the owners of that property, seems to be the enunciation of a contradiction. The owners’ right to the immediate possession and enjoyment of his property is not only-absolute and guaranteed by treaty, but has been admitted, recognized, and declared by the government at Madrid, while that in Cuba seizes the estate, excludes the rightful owner and undertakes to put a stranger in possession of the property, not only without the consent but against the will of the owners. No matter what conditions may have been incorporated in the lease, the occupancy by the tenant of the government deprives the owner of the possession of his property for the time being, and is a practical, absolute, and formidable obstacle to his attainment of his rights. I must, moreover, call your attention to the fact that the very act of renting the estate but too plainly manifests a postponement and delay, if not a non-compliance on the part of the government with its promise of a release of the property, and subjects the owner to new and further proceedings to recover its possession, and may involve him in protracted litigation.
It is added that, by a provision in the contract, the lessee is required, in case of a settlement of the claim, to surrender the property before the expiration of the term of the lease, but it must be remembered that in the mean time the lessee may commit waste upon the property and otherwise damage it, and it is not alleged that any provision has been made whereby the owner of the property is secured any recourse against the lessee, whom the government puts in, possession of his estates, either for indemnity against damage done the estate or for compensation for its use and occupation. That these estates are leased by the Spanish government because, as the captain-general alleges, of a disinterested desire on its part constantly to improve the management of the property, would scarcely in any case be considered by the owner of the estate a satisfactory reason for such action. Governments are not often the most economical or judicious managers of private estates, and all persons naturally claim the right of managing their own property, and insist upon being the best judges of the means to be used for its improvement.
Still less can such a reason avail to justify the action of the government of Spain in relation to the estates of Criado and the others named; for in these cases the order for the restoration of their property and estates had already been pronounced by the supreme government of Spain, and the only obstacle then (the time of the proposed renting) existing, to these parties managing their own property and reaping the profits of [Page 1052] its products, was the failure of the Cuban authorities to carry into execution the orders of the government.
In relation to the application of Thomas J. Mora for certain documentary evidence from the record of mortgages, deemed necessary in procuring the restoration of his property, it is urged by the captain-general that this is not a governmental question, but one to be settled by the party interested, or his attorney, in the ordinary courts. The correctness of this, as the statement of a general proposition, is readily perceived and at once admitted; indeed, his excellency might have stated the rule still broader, and asserted that copies from the public records affecting the title to real estate should be procurable upon the simple application of any citizen interested in such record, as is the rule and the practice in the United States. In this case, however, the authorities in Cuba require the production by a citizen of the United States of that which is under the control of their own officials, and upon application being made by the citizen to the proper officer for the required document the official refuses it. This is Mr. Mora’s case; and the course just stated as having been pursued by the Cuban authorities in regard to it involves a violation of the plainest principles of right and equity. It affords me, however, sincere satisfaction to receive the assurance of the captain-general that he will use his personal efforts to facilitate the procuring of the desired document by Mr. Mora or his attorney, and the high personal character and reputation for honor and integrity of that distinguished officer, together with the traditional sensitiveness of Spain in the observance of right and administration of justice, lead me to indulge the confident hope that his efforts will be successful, and that no technicalities of colonial administration will be allowed to delay justice or to interfere with the execution of orders and the fulfillment of promises made by the government of His Majesty at Madrid.
I must again press upon your attention the earnest desire of this Government that in the several cases of the estates of Criado, Mueses, Thomas de Mora, and Mrs. de Mora, in which a release of the property from embargo has been ordered by the government of Spain, the fulfillment of the order and the restoration of the property may be no longer delayed by the officials in Cuba charged with its execution.
Accept, sir, &c.