Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1883
No. 498.
Mr. Foster
to Mr. Frelinghuysen.
Madrid, July 12, 1883. (Received July 30.)
Sir: In view of the importance attached by you to the adjustment of the unsettled claims of American citizens growing out of the embargo of their estates in Cuba during the insurrection in that island, I took [Page 782] the earliest practicable opportunity, after I had assumed the charge of this legation, to act upon the instructions which you had given me upon the subject.
In the interview which I had with the minister of state upon the 30th ultimo, I referred to these claims and said that within a few days I would submit them to his consideration.
The Marquis de la Vega de Armijo replied that, as the Cortes would probably not adjourn until near the last of July, and he would not take his expected vacation till after the adjournment, he hoped to be able to give the subject his consideration before leaving the capital. The sub-secretary, Mr. Mendez de Vigo, who was present, expressed the supposition that all these claims were disposed of by the late commission.
I briefly refuted that idea, but I did not press the discussion at that time, as I preferred to submit the matter to the Spanish Government in writing before entering seriously on a verbal consideration of the points which might be at issue. I accordingly sent to the minister on the 4th instant my first note on the subject, treating of the general question of the responsibility of the Spanish Government for the return of the estates and of their proceeds, and for the damages resulting from the unlawful seizure of the property of American citizens, a copy of which note I inclose herewith. It will be seen that I have followed quite closely the language of your instruction No. 2, of May 3 last.
Copies of my notes in presenting the individual cases will follow, with separate dispatches.
I am, &c.,
Mr. Foster to the Marquis de la Vega de Armijo.
Madrid, July 2, 1883.
Excellency: One of the most urgent instructions which was given to me by the President of the United States, in accepting my present mission, was to take the earliest opportunity to bring to the attention of the Government of His Catholic Majesty 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 ordered by the Government of Spain, but whose orders still remain unexecuted.
The correspondence between the two Governments, extending over more than ten years, furnishes full information as to the details of the matter and as to the positions respectively held by said Governments. It is not necessary, therefore, now to repeat the history of the occurrences in Cuba during the insurrection which led 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 the Government of the United States 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 note 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 the 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, then Secretary of State of the United States, did not assent, and said in his note to Admiral Polo of May 22, 1872: “I beg to point out that the claims before the commission are for compensation for past injuries, and that the applications for release of the estates are properly subjects for diplomatic attention.”
In another note to the Spanish minister, dated June 21, 1872, and referring to the case of Mrs. Ferres 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 as taken by Mr. Fish has been consistently maintained by the United States, and while at first opposed by Spain, its validity was soon conceded.
Finally, in 1873 (July 12), after a full investigation of the subject, 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 a 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, which reflected so much honor upon Spain, 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 Government of His Catholic Majesty.
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 the representations of my Government, 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 has not 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 negotiations, 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 j and at still later dates other similar orders were issued, and as late as 1879 the estates of Rojas (exclusive of revenue or proceeds) were restored to him, pursuant to the continued representations of Mr. Evarts, the then Secretary of State, 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 different 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 questions of embargo and confiscation or restoration.
The commission itself repeatedly held that it had no power to decree the restoration [Page 784] of property, or of the proceeds 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, therefore in no wise prejudiced the claimant’s right to the executive redress which the commission could not give.
Neither could the questions of citizenship, as interpreted by the commission, affect the rights of American citizens to executive release from embargo. For all purposes of 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 the right of my Government to ask the execution of those decrees rests. As the commission had no power to enforce those decrees, so, too, it had no power to weaken them, and still less to 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 your excellency that while my 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. It is true, 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 commission was not regarded by either Government as a bar to diplomatic negotiations. 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 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 lands of de Rojas were restored in 1879. All of the persons thus relieved, and others whom it is unnecessary 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, Dominguez and Poey received a reward 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, therefore, was allowed to elect from the two remedies granted.
A review of the correspondence, therefore, shows that my 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 the Government of the United States 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 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 no wise 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 an urgent requests 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.
Complying, therefore, with the specific instructions of the President of the United States, I desire now, through your excellency, to ask the attention of the Government of His Catholic Majesty to this subject, and to present an urgent request for the enforcement of the decrees of release, in all cases of citizens of the United States, where the estates or their proceeds are still withheld by the officials in Cuba, notwithstanding the express and reiterated directions of the supreme 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 entertains that His Majesty’s Government [Page 785] will give the subject its earnest and prompt attention, with a view to an early and complete compliance with long unexecuted decrees.
The correspondence exchanged between the two Governments contains much information as to the claimants still entitled to the benefits of the decrees alluded to. But in order to facilitate the detailed examination which His Majesty’s Government may desire to make, I will proceed, with as little delay as possible, to submit to your excellency a statement of various claimants whose lands and estates and the revenues or proceeds thereof are still withheld from them, and I will take great pleasure in rendering all the assistance and information within the power of this legation, with a view of reaching a just and equitable settlement of this important matter.
In this connection it is proper to note that in the statements of property to be submitted in one or more instances it will be found that the authorities have seized the slaves of claimants. While my Government is not disposed to press claims for the value of slaves seized by the Cuban authorities, it recognized 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 which may be considered in the cases as they arise. 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.
In conclusion, I venture to express the hope that your excellency will be able to give the subject the preferential consideration which the President desires, and I do not doubt that such a conclusion will be reached as will greatly tend to strengthen the cordial relations of friendship which happily exist between the two nations.
I gladly avail, &c.,