No. 495.
Mr. Frelinghuysen to Mr. Foster.
Washington, May 3, 1883.
Sir: I have to call your attention to the question of the release of the estates in Cuba belonging to citizens of the United States, which have been heretofore embargoed or confiscated, and the release or return of which has been directed by the Government of Spain.
The correspondence on this subject in your legation, extending over more than ten years, will give you full information as to the details of the matter and as to the position of the two Governments. It is not necessary, therefore, now to repeat the history of the occurrences in Cuba during the insurrection which 16d to the unusual and extreme action on the part of the Government of Spain of embargoing the estates of many residents of that island and of confiscating the estates of others, or of the subsequent negotiations. It is sufficient to say that when the orders touched the rights of American citizens, this Government promptly protested, and has never at any time recognized the legality of this action of the Spanish Government.
In 1871 a commission was appointed by agreement between the foreign departments of the two Governments, which was to settle claims of the citizens of the United States against the Government of Spain for wrongs and injuries committed against their persons and property by the authorities of Spain in the island of Cuba since the commencement of the insurrection. That commission soon assembled in Washington and claims were presented to it.
For the purpose of the present instruction it is only necessary to notice the claims based upon an embargo or confiscation. These cases present three items of claims:
- 1.
- For the release of the estates held by the Spanish Government.
- 2.
- For the return of the rents and profits actually received by Spain during the detention of the property and admitted to be in the hands of that Government.
- 3.
- Damages for the detention of the property.
In many instances, the statement of the case presented by the claimants through this Government to the commission contained a demand for indemnity on all three of these grounds, and Admiral Polo, then minister of Spain in Washington, contended that the entire question raised by the embargo was within the jurisdiction of the commission, to be finally decided by that body. To this Mr. Fish did not assent, and said in his note to Admiral Polo, of May 22, 1872:
I beg to point out to you that the claims before the commission are for compensation for past injuries, and that the applications for the release of the estates are properly subjects for diplomatic intervention.
In another note to the Spanish minister, dated June 21, 1872, and referring to the case of Mrs. Farres de Mora, Mr. Fish said:
It is the province of the commission to hear evidence on the claims of Mrs. de Mora for past injuries resulting from acts of the authorities in Cuba, and to award her pecuniary compensation if they shall find that she has suffered loss from that cause. The property which she now asks to have released is held under a summary order of the Government. An order of the Government can at once release it, and as no pecuniary claim can be preferred by the Government of Spain against her before the commission of arbitration, it is difficult to perceive why the release of her property should be made to depend on the final action of the commission.
The position so taken by Mr. Fish has been consistently maintained by the United States, and while at first opposed by. Spain, its validity was soon conceded.
In 1873 (July 12) the Government of Spain published a decree admitting the illegality of the embargoes and confiscation and the justice of the position of the United States. In the preamble to this decree it is said:
There cannot be found in international law any precept or principle authorizing this class of seizures, which bear upon their face the stamp of confiscation; neither, under any sound judicial theory, is it admissible to proceed in such manner, nor can the exceptional state of war authorize under any pretext the adoption of preventive measures of such transcendent importance, and whose results, on the other hand, will inevitably be diametrically opposed to the purpose which inspired it.
The decree directed the release of all estates embargoed by executive order in consequence of the decree of April 20, 1869, and the principles there set forth have been recognized repeatedly since that date through the action of the Spanish Government.
The Government of the United States, in addition to the presentation of the general question of the release of the estates, has not failed to continually press upon the attention of Spain the individual cases which have from time to time come to its notice. Pursuant to our representations the minister of the colonies, on the 7th November, 1873, telegraphed to the governor-general at Havana:
I salute your excellency, and reiterate compliance with the telegram of the 15th September, relating to the restoration, in obedience to treaties in force, of the property of North American foreigners; said restorations before the 30th November, in order to avoid international conflicts. The names of the citizens whose estates have to be restored in conformity to the decree of the 12th July are—
and here follows a list of some twenty-five names, among them those of individuals then, and some of them until January 1, 1883, claimants before the commission. Some of the estates have been released, but as to others the distinct directions contained in the decree and the telegram were not complied with.
It is unnecessary to rehearse the long discussion which followed, and it is enough to say that the position of this Government hasnot changed, and no effort has been spared to secure the final and amicable adjustment which would have resulted from an enforcement of the decree of 1873 in the spirit in which it was made. Further, it may be observed, in order to show the consistent course of negotiation, that on February 9, 1876, orders were repeated by the Government at Madrid to restore the property of four American citizens, claimants before the commission, and at still later dates other similar orders were issued, and as late as 1879 the estates of de Rojas were restored to him pursuant to the continued representations of Mr. Evarts, de Rojas being at that time a claimant before the commission.
The return of the revenues or proceeds of embargoed property, when actually collected by Spain, has always been regarded by both Governments as an incident to the release of the estates, leaving to the commission only jurisdiction over the amount of damage caused by the embargo or confiscation. On this ground Spain has paid to the claimants various sums of money.
At no time is it found that the Spanish Government seriously contended for or that the United States admitted any judicial power in the commission to decide upon the original question of embargo and confiscation or restoration. The commission itself repeatedly held that it had no power to decree the restoration of property, or of the proceeds [Page 775] of property, or to enforce any opinion it might give in regard thereto. And such denial of jurisdiction, even though cases before the commission were discussed therefor, in nowise prejudiced the claimant’s right to the executive redress which the commission could not give.
Neither could the question of citizenship, as interpreted by the commission, affect the rights of American citizens to executive release from embargo for all purposes for the release of their property and the return of the proceeds. The citizenship of the claimants was admitted in the several supreme decrees ordering restoration, and on such purely executive ground our right to ask the execution of those decrees rests. As the commission had no power to weaken them, and still less set them aside by judgments contrary thereto, its want of jurisdiction as to such decrees was absolute, although they might be properly before it as evidence in cases where damages were claimed by reason of their non-execution.
It is not necessary for me to remind you that while this Government has for many years urged diplomatically the release of the estates and the return of the collected revenues, it has at the same time demanded awards before the commission, as was observed in Admiral Polo’s note to Mr. Fish of May 28, 1872. Most of the petitions before that body embraced, besides the claim for damages, a claim for the release of the estates and return of the proceeds collected, or suitable compensation in lieu thereof, but the fact that such claim was included in the petition to the commissioners was not regarded by either Government as a bar to diplomatic negotiation. The understanding of the two Governments on this point is clearly shown by the action of Spain in publishing the decree of 1873, and the subsequent orders, and in carrying out their provisions in various instances. In 1874 the estates of Joaquin Angarica were released, and a large sum of money was returned to him. Moses Taylor & Co, received their estates and nearly $100,000 of collected revenue, and the embargoed estates of de Rojas were restored in 1879. All of the persons thus relieved and others whom it is unnecesary to mention had claims before the commission. Of course, after the return of the estates and proceeds, only that part of the claims relating to damages for detention remained before that body, and Angarica, Doraingues, and Poey received an award on that item of their claims. In the case of Delgado the estates were returned by the Government of Spain, and by an oversight an award was also made by the commission in his favor. The claimant therefor was allowed to elect from the two remedies granted.
A review of the correspondence, therefore, shows that this Government has maintained, and Spain has admitted, that the claims for the release of the embargoed property and proceeds were subjects for diplomatic discussion, and not properly within the jurisdiction of the commission; that the decree of July 12, 1873, and the orders subsequent thereto, provided for the unconditional release of the property seized $ that the restitution of the property involves the restitution of the proceeds collected by Spain; that the commission was established to assess damages, and not to enforce restitution of the estates and proceeds.
This brief allusion to the long-continued correspondence between the two Governments on this question is not made as a statement of any new principle, but to show that the course of this Government and Spain, in relation to this class of claims, has been harmonious and consistent.
Reference has been made to the decisions of the commission to the effect that it had no jurisdiction as to the restoration of the property or proceeds thereof seized by the Cuban authorities, and also to the [Page 776] fact that while a number of the persons whose names were embraced in the several decrees of restoration were claimants before the commission, their appearance before that tribunal has in nowise affected their right to the restitution of their property and its proceeds. Now that the commission has completed its labors and its results are fully known, there would seem to be no further occasion for delay on the part of His Majesty’s Government in complying with the repeated and urgent request of the Government of the United States for the complete restoration of the estates of its citizens, in accordance with the various decrees of the Spanish Government.
While this Government is not disposed to press claims for the value of slaves seized by the Cuban authorities, it recognizes the injustice of permitting those authorities to enjoy the fruits of the seizure from the claimants, and the propriety of a voluntary compensation being made therefor. The question is one to be considered in the cases as they arise, and as to which further instructions will be sent you should there be occasion. One of the claimants has offered to surrender his claim for slaves provided the authorities stipulate to emancipate them, an offer which seems to be just and worthy of careful consideration.
I have, therefore, to instruct you to bring the subject, with as little delay as possible, to the attention of the supreme Government at Madrid, and to present an urgent request for the enforcement of the decrees of release in all cases where the estates or their proceeds are still withheld by the officials in Cuba, notwithstanding the express and reiterated directions of the home Government to return the property to its rightful owners. After so many years of diplomatic correspondence and repeated postponement in a matter wherein the rights of American claimants have been so completely recognized by the solemn decrees of the Spanish Government, the President feels that he will not be disappointed in the expectation which he entertained that His Majesty’s Government will give the subject its earnest and prompt attention, with’ ‘a view to an early and complete compliance with the long unexecuted decrees.
The records of the legation contain detailed information as to the claimants still entitled to the benefits of the decrees alluded to, and you will be furnished with such additional information in the possession of this Department Us will enable you to submit to the minister of foreign affairs an accurate statement of the property still claimed to be withheld by the Cuban authorities.
I am, &c.,