No. 290.
Mr. Cushing to Mr. Fish.
Madrid, February 4, 1877. (Received February 22.)
Sir: Your telegram of the 25th ultimo, on the procedure question, lifted a weighty burden from my mind. To have forbidden making the proposed protocol in any form would have left me in a diplomatic impasse, unable to advance and almost equally unable to recede.
My negotiation has been pursued not merely with the minister of state, Mr. Calderon y Collantes, but also with the all-powerful president of the council, Mr. Cánovas del Castillo. It would have been difficult for me at last to say to him that we insist on ex parte concessions from Spain, without any, however slight, recognition on our side of the treaty-rights of Spaniards in the United States. And it would have been suicidal to say that it is not in our power to execute the treaties in the United States as amply as we claim their execution of Spain; for the treaties at any rate contain stipulations of complete reciprocity confirmed by the Senate. In short, the difficulty of satisfactorily explaining refusal on our part to act in some form would have left us in a condition in nowise conducive to the promotion of our public interests at Madrid.
Happily, complete accord has been at length reached by Mr. Calderon y Collantes and myself respecting the proposed protocol, on the premises of your telegram of the 25th.
I inclose herewith, in duplicate, by successive mails, copies of the protocol in English and Spanish as signed; and submit some explanatory observations.
1. You perceive that the protocol is dated January 12, although not finished and signed in fact until the 4th instant. As the whole negotiation [Page 494] had been officially conducted in the name of Mr. Calderon y Collantes, having in fact occupied much of his time, as well as of my own, for a year past, his colleagues desired that he should bring the negotiation to a close, and sign the act as in effect agreed to by him on the 12th, the last day of his continuance in the ministry of state.
2. Reference on the part of Spain to the law of April 17, 1821, was admitted by you in the draught prepared at Washington, and such reference entering into the declaration of Mr. Calderon y Collantes, it naturally followed that my declaration might well be founded on texts of the Constitution and acts of Congress.
As to Mr. Calderon y Collantes, it was necessary that he should cite either textually or by implication the law of April 17, 1821, for no other law for the trial of treason and other crimes of the same analogy is in force in Spain.
The history and contents of the law deserve attention.
The constitution framed by the Córtes of Cadiz was excessively republican, as that word was construed by Robespierre and his colleagues of the French revolution. The Spaniards who framed it while their country was overrun and devastated by the invading armies of Napoleon, might have learned thereby, it would seem, the mischievous character of the extreme theories of the French Convention, of which the military despotism and semi-insane spirit of universal dominion, manifested in the invasion of Spain, were the logical sequence, but Argüelles and his associates in the Córtes of Cadiz, the Doceañistas, “Year-twelve-men,” were blind, as too many of their school still continue to be, to the folly of such infatuated servitude to the extravagances of France.
Hence, on the return of Ferdinand VII; the work of the Cortes of Cadiz vanished at the mere word of the King, and its authors were driven for a time into obscurity and exile.
Rut nine years afterward the “Year-twelve-men” were restored to power in consequence of thepronunciamiento of Riego, the first and the most pernicious in that long series of acts of military mutiny and perjury which from time to time ever since have continued to demoralize the army and navy and to constitute the great curse and dishonor of Spain.
During this brief period, then, of the renewed domination of Doceañistas, the constitution of Cadiz was also restored, with renewal, of course, of struggle between the King and Córtes, which ended in the intervention of France under the Duc d’Angoulême.
The dogmas of the Doceañistas, like those of the French Convention, were a singular mixture of tyranny and liberality, which traits pervade their law “On the cognizance and mode of procedure in causes of political conspiracy.”
Of the tyrannical features of that law, Spain herself has had sad experience, for, although designed as an instrument in the bands of the Córtes against the King, it was equally available in the hands of the King against the Córtes.
Of its liberal features, the precepts of trial contained in articles 20 to 33 inclusive are an example. I beg you to look at those articles as they appear in the translation of the law in question annexed to my No. 971, of May 13, 1876. You will perceive that these provisions are in substance those of our own legislation, from which in fact they were derived. And they seem to go a step beyond our acts of Congress in their more imperative, if not more complete, provision for the review of sentences in the last resort, which led you to doubt our power of absolute reciprocation.
3. The redaction of the declaration made by Mr. Calderon y Collantes [Page 495] differs from the draught prepared at Washington only in changes of phraseology called for by the division into sections or paragraphs, but not in any wise affecting the sense to our prejudice.
4. My declaration refers to the treaties only in general terms, for the reasons that the treaty of 1795 contains nothing which is not explicitly and precisely covered by the protocol, and that the language of the treaty is inaccurate and vague, for although it speaks of offenses committed, yet most of what it says on the subject of trial seems rather applicable to civil than to criminal proceedings, as Mr. Sagasta and other Spanish ministers have had occasion to urge. As to offenses, the treaty provides that “the same shall be prosecuted by order and authority of law only, and according to the regular course of proceeding in such cases.” But the “regular course of proceeding” in 1795 was the military jurisdiction; and since 1821 the only “law” on the matter is that of April 17, 1821; and the “regular course of proceeding” is what that law prescribes. Thus the words of the treaty could not add to, but would rather serve to diminish, the force of the protocol, seeing that the recital expressly sets forth that the object in hand is to fix the import and application thereof by an accord of the two governments.
5. Mr. Calderon y Collantes hesitated a little on the exception of the suspension of the writ of habeas corpus. Was not the effect of this suspension the same as the declaration of martial law, “état de siége,” “estado de sitio,” in time of local insurrection in France and Spain? And did we not thus reserve to ourselves, notwithstanding the treaty, the right to do, in time of local insurrection, the very thing which, in virtue of the treaty, we were denying the right of Spain to do? (See Opinions of Attorneys-General, vol. viii, p. 370.)
This obstacle was overcome, in the mind of Mr. Calderon y Collantes, by consideration of the importance of the sum total of the securities of fair trial which the Constitution and laws of the United States afford, and the infrequency of the occasion of the suspension of the writ of habeas corpus, and the infrequency also with which the trial of treason and its cognate crimes had been pushed to extremities in the United States.
6. You will observe that not only treason and its cognate crimes are withdrawn from trial by exceptional tribunals, but likewise all “other crimes whatsoever,” and referred to the ordinary jurisdiction. I think the effect of the provision is that piracy cannot be tried by council of war or any other exceptional tribunal, but only by the ordinary tribunal, which for piracy is the regular tribunal of admiralty, but, there, with the guarantees of fair trial stipulated in the protocol.
7. While the declaration of Mr. Calderon y Collantes limits, in a most important matter, the application of the Spanish law by excluding military commissions in all cases save one, my declaration impairs no “rights of citizens,” derogates from no “institutions” of ours, restricts no powers, but simply recites our law in the very words of the Constitution and of acts of Congress.
8. Finally, to the original draught of the protocol is added a stipulation on the part of the Spanish Government that, in order to give perfect security for its sincerity and good faith in the premises, a royal order will be issued commanding strict compliance with the terms of the protocol in all the dominions of Spain and especially in Cuba.
I trust you will see cause to feel satisfied with what has been thus done, which seems to me to be the successful conclusion of this longstanding controversy between Spain and the United States.
I have, &c.,