[Inclosure.]
Mr. Cushing to
Mr. Ulloa.
Legation of the United States of America,
Madrid, November 30, 1874.
Sir: I have received instructions to call
the attention of your excellency, in connection with pending
negotiations, to certain stipulations of the protocol of November
29, 1873, as follows:
“It being understood that Spain will proceed according to the second
proposition made to General Sickles, and communicated in his
telegram read to Admiral Polo on the 27th instant, to investigate
the conduct of those of her authorities who have infringed Spanish
laws or treaty obligations, and will arraign them before competent
courts, and inflict punishment on those who may have offended.”
The second proposition made to General Sickles was as follows:
“So, if it be proved that, in the proceedings or sentences pronounced
against foreigners by the authorities of Santiago de Cuba, there has
been an essential failure to comply with the provisions of our
legislation or of treaties, the Spanish government will arraign
those authorities before the competent tribunals.”
It is to be observed that the above stipulation on the part of the
Spanish government is definite and precise, and that it is not, by
the terms of the protocol or otherwise, dependent on any other
question.
And it is further to be noted that the particular stipulation assumes
that the Spanish government will, of its own motion, arraign the
offending authorities before the competent tribunals, provided it
should be proved that, in the proceedings against foreigners at
Santiago de Cuba, there was an essential failure to comply with the
provisions of the legislation of Spain or of her treaties with other
governments.
As a question of construction, it seems to me to be the manifest
intent of the protocol that the illegality of the proceedings in
question is to be ascertained by the spontaneous act of the Spanish
government. “It being understood” (are the words) “that Spain will
proceed * * * to investigate,” &c.
I assume that such failure, if not otherwise apparent to the Spanish
government, has been fully established in the communications on the
subject, especially that of September 24, regarding Brigadier
Burriel, which I have had the honor heretofore to address to your
excellency.
Hence, if (which I cannot admit) there be room to infer, from the
tenor of the “second proposition” above cited, that it might be
incumbent on the United States to show to the Spanish government the
illegality of the proceedings at Santiago de Cuba, and that the
Spanish government might, in strict right, wait for such
manifestation, that has now been done, and, according to the express
and explicit terms of the stipulation, it would now devolve on the
Spanish government to “arraign those authorities before the
competent tribunals.”
Permit me to add, that I have been informed, and have good occasion
to believe, that on this point the Spanish government at the time
consulted the Señores Canovas, Calderon Collantes, Alonso Martinez,
Nocedal, Rivero, Martos, Alvarez, (D. Cerilo,) Duque de la Torre,
and Marquis del Duero, and that all these eminent personages were
unanimously of opinion that there was no legal justification for
proceedings such as had been had at Santiago de Cuba.
In view, therefore, of the established illegality of those
proceedings, my Government feels authorized to expect that the
action in the premises, stipulated by the Spanish government, will,
as a matter of course, now take place, as one of the elements of the
full and final settlement between the two governments of this
painful controversy. I have regarded it as due to the frankness
which has presided over all our official intercourse, to our mutual
earnest desires and hopes of accommodation, and to the confidence,
on my part, in the good faith of the Spanish government, which I
have constantly expressed to my own, to submit these suggestions to
your excellency at this time.
I avail myself of this occasion again to offer to your excellency the
assurance of my highest consideration.
