No. 526.
Mr. Reed to Mr.
Frelinghuysen
.
Legation of
the United States,
Madrid
,
March 2, 1885.
(Received March. 16.)
No. 312.]
Sir: Referring to my dispatch No. 308, I have now
the honor to inclose herewith a copy and translation of the note of the
minister of state in reply to mine of the 3d ultimo, in which I accepted, as
instructed by your No. 302, the proposition to refer to Baron Blanc the
question of injuries, &c., in the case of the Masonic. The minister’s
note is dated [Page 696] the 11th ultimo, but
it was not received by me until Saturday evening, the 14th.
As will be observed, the minister takes exception to two statements in my
note, first, “that it must be understood that Spain recognizes its
responsibility for injuries,” &c. To this statement the minister
replies, in substance, that Spain has never recognized any responsibility in
this question; that the question was decided by the courts.
To the second statement in my note, viz, “and not of arbitrator of any
question of responsibility, the latter question having been settled
diplomatically against Spain,” the minister insists that the question was
not settled diplomatically, but by the courts. The third exception made by
him is in regard to the payment of the award in “American gold,” which he
styles as “a new proposition,” and claims that it is not in conformity with
mercantile uses.
I did not deem it advisable to enter into any discussion by note of the three
exceptions made by the minister as the so doing would have undoubtedly
caused delay in submitting the case to Baron Blanc as referee Besides, I did
not deem it important whether the Spanish Government or the Spanish courts
had recognized the responsibility in the matter, or whether the question had
been settled “diplomatically” or by the “courts” and as to the amount
awarded I considered it would be immaterial to my Government whether the sum
was paid in gold or in current money, so long as the award was made in money
of the United States, and the sum paid at Washington netted the amount of
the award. I consequently deemed it best to request the minister to name a
day when he could see me. This I did, but the 15th, 16th, 17th, and 18th
being days of the “Carnival” and the ministry closed, the minister named the
19th for our interview. On that day I called at the ministry at the hour
named, but the minister had a few moments before my arrival been called to
the Senate, and I was requested to call the following day, the 20th. I
accordingly called on the 20th and had along interview with the minister,
during which I told him that inasmuch as it had been decided that the
Spanish treasury was responsible to the owner of the Masonic for the
injuries, &c., which the seizure and sale of his vessel had occasioned
him, and as the two Governments had agreed to refer the question of the
amount of said injuries, &c., to Baron Blanc, I did not consider it
important whether the Government of Spain or the Spanish courts had
recognized the responsibility, or whether the question had been settled
“diplomatically” or by the “courts,” but that I must add that the United
States had never consented to the matter being submitted to the courts.
As to the payment of the award in “American gold,” I stated that I did not
think that my Government would insist upon this point, as all it desired was
that the award should be made in money of the United States, and the sum
paid in Washington should net the amount awarded by Baron Blanc. The
minister replied that the only object of his note was to have the matter
clearly understood before it was submitted to Baron Blanc, as otherwise the
baron might be influenced one way or the other in his decision. I answered
that as Baron Blanc was only to decide as to the amount the Spanish
Government should pay to the owner of the Masonic, and not as to any
question of responsibility, I did not think that the questions raised by him
(the minister) could influence in any way the decision of the baron.
We then discussed the form of invitation to be sent to Baron Blanc, and the
sub-secretary of state was charged by the minister to prepare a draft of the
note in the sense agreed upon by us. The draft was prepared [Page 697] and sent to me for my approval on the evening
of the same day (the 20th), a copy and translation of which I inclose for
your information.
On reading the draft the question occurred to me whether or not the word
“perjuicios” was sufficient to include injuries, losses, and expenses. In
returning the draft in person to the sub-secretary (the minister not being
in) on the following day (the 21st) I called his attention to this point. He
was of the opinion that the word “perjuicios” covered the words “injuries,”
“losses,” and “expenses.” I replied that while I did not wish to question
his opinion, I thought it would be better to substitute for the word
“perjuicios” the following: “Perdidos, perjuicios y los gastos ocasionados
al propietario por la tramitacion de su reclamacion.” I also requested that
the words “y por la legacion de los Estados Unidos en esta corte” be added
after the word “cargo” at the close of the draft. The sub-secretary promised
to consult with the minister on his return in regard to these two changes
and to advise me as to the result.
Not hearing from the minister or sub-secretary, I called at the ministry on
Saturday last, the 28th ultimo, and the sub-secretary read me the new note
of invitation which had been prepared for Baron Blanc, stating that instead
of inserting the words suggested by me they had deemed it best to copy the
words “daños y perjuicios debediamente acreditados por el propietario” used
in the decision of the council of state. As the note was merely an
invitation to Baron Blanc to accept the charge, I did not deem it necessary
to insist upon my suggestion, and the note, a copy and translation of which
is inclosed herewith, was then signed by the minister of state and myself,
with the addition at its close as requested by me of the words “and in the
legation of the United States in this capital.”
As will be observed the note is dated the 28th ultimo, and it was sent to
Baron Blanc on the evening of the same day. On the receipt of Baron Blanc’s
note in reply, I will hasten to transmit a copy to the Department, but I may
now state that Baron Blanc has assured the minister and myself that he would
accept the charge.
I have, &c.,
[Inclosure 1 in No.
312.—Translation.]
Mr. Elduayen to Mr.
Reed
.
Ministry of
State,
Palace
,
February 11, 1885.
My Dear Sir: In reply to your note, dated the
3d instant, I have to inform you that the Government of His Majesty
congratulates itself that that of the United States has accepted the
arbitration and has selected Baron Blanc, the Italian minister in this
capital, for arbitrator, in the question of the amount which, as
indemnification, the Spanish treasury owes the owner of the Masonic, as
well for the respectability of the arbitrator designated from among
those proposed by the Government of His Majesty as for the lively desire
which it has to definitely terminate a question the delays of which it
has always regretted, but without being able to avoid them.
With the indicated resolutions of the Government of the Republic and by
virtue of the agreement between the legation and the ministry under my
charge, in respect to the terms of the request which has to be made to
Baron Blanc in order that he may accept the arbitration, and to define
clearly the limits and object of the arbitration with all the clearness
already determined in the notes addressed to the legation dated the 22d
and 25th of November last, and with which your recent note essentially
agrees, the matter appears clear, arguments idle, and the reciting of
the evident facts already perfectly known to you unnecessary.
However, two statements, and anew proposition in your note to which I
reply, [Page 698] oblige me to newly put
matters in their place, in order to do away with ambiguities, never
beneficial, and especially at present, when they might influence the
impartial judgment of the arbitrator.
The first of them is the phrase in which you say you are instructed to
inform me “that it must be understood that Spain recognizes its
responsibility for the injuries, &c.”
Spain has never recognized any responsibility in this question. It was
submitted from, the beginning, with the acquiescence of the parties, and
as it legally should have been, to the jurisdiction of the courts, the
only competent authority to definitely decide it. The courts have given
their verdict, and the executive power of Spain is obliged to comply
with the sentence of its courts, without having the necessity of
recognizing other than the notoriously includible and never rejected
obligation of complying with the law.
Your second statement which it is important to rectify is that contained
in the following words of your note: “And not of arbitrator of any
question of responsibility, the latter question having been settled
diplomatically against Spain.”
All the facts, all the proceedings which have followed the long process
of the Masonic declare and show that such assertion is absolutely
erroneous; it began before the only competent jurisdiction for the
interested parties, followed the ordinary and legal course, and far from
suffering denial of justice, in which hypothesis and only case, it might
have been made the object of founded diplomatic reclamations, and the
Government of His Majesty finds itself sufficiently authorized to treat
it on this ground, taking it from the jurisdiction of the courts; far, I
repeat, from the existence of denial of justice, the previous decision
and the required definitive decision of the council of state completely
settled the case in favor of the American citizen and against the
Spanish treasury, decreeing that the latter indemnify the former.
And there is still more, precisely of what is now treated of; that which
the Federal Government accepts. according to your note is nothing more
than the manner, the most rapid and equitable means, of compliance, of
carrying out the definitive decision of the council of state, only and
exclusively, which testifies that in the judgment also of the Government
which you so worthily represent, the litigation of the Masonic has not
been diplomatically settled, but by virtue of the sentence of the
competent jurisdiction.
Such being the facts, it remains for me to add, in order to recount them
all, that the aforementioned sentence of the council of state once
published, Mr. Foster informed me verbally and by writing how pleased
his Government would be by the selection of a means which would shorten
the delays and avoid the obstacles of the ordinary course to which the
question would have to be subjected before the indemnification could
reach the hands of him to whom the courts had declared entitled to it,
and I, in view of such a manifestation and interpreting the good desires
of the Government of His Majesty towards that of the United States and
its purpose of giving it testimony and proofs of how much it esteems the
very cordial relations which unite Spain and the United States,
cheerfully asked of my colleague of ultramar authorization to intrust to
the judgment of an arbitrator named by both countries, the definite
question as to the amount of the decreed indemnification, as stated in
my note to the legation of the 22d November; by another of the 25th of
same month, I stated that I had received the authorization under the
conditions indicated; I named besides persons among whom the arbitrator
might be selected; further, the one designated should, upon the
examination of the data which would be furnished him by the ministry of
ultramar and that under my charge, render his verdict within the short
space of six months; Washington was fixed as the place of payment of the
sum awarded, which payment had to be made within six months after the
decision, with 6 per cent, interest during this time; all these
conditions extremely equitable and favorable to the owner of the Masonic
and which the Government of the United States has accepted by the note
to which I reply.
The reach and signification which, abiding by the very evident facts,
your transcribed phrases may have, being explained, it remains for me to
observe that the proposition indicated in your note, that the payment
shall be made in American gold is new and not in
conformity with mercantile uses, when another class of money does not
suffer a notable discount, it being more natural and reasonable that
without determining the class, the payment be made in current money in
the United States.
If by means of the condition which I have above Indicated and consigned
in my notes of the 22d and 25th of November last, the same which, save
the point concerning the payment in American gold, the note to which I
have replied accepts, putting aside from that note or the reach of the
cited phrases being fixed, you esteem it opportune to come to this
ministry in order to agree upon the form of invitation, and make clear
the object of the arbitration to Baron Blanc, the offers and desires of
the Government of His Majesty, which in its opinion are identical to
those which you represent in this matter, will be complied with.
I avail, &c.,
[Page 699]
[Inclosure 2 in No.
312.—Translation.]
Draft of a note to Baron Blanc.
Ministry of
State,
Palace
,
February 20, 1885.
Excellency: The Government of His Majesty the
King, my august sovereign, and the Government of the United States of
America have agreed to submit to the decision of an arbitrator the sum
which, as an indemnification, the Spanish treasury must pay to the owner
of the North American bark Masonic, in virtue of the decreed sentence of
the council of state of the 16th of October, 1884, and both Governments,
recognizing the gifts of rectitude and justice which adorn your
excellency, have not hesitated a moment in indicating you as the most
proper person for the discharge of that delicate commission.
We therefore have the honor to invite your excellency to be pleased to
accept the power which the Governments of Spain and of the United States
grant you in order that, in a period which cannot exceed six months, you
may examine the injuries suffered by the owner of the Masonic and
determine the pecuniary indemnification which you justly and equitably
believe ought to be assigned to him, in view of the liquidation of the
interested party and of the antecedents of the question, which will be
furnished to your excellency as well in the ministry of ultramar as in
this under my charge.
[Inclosure 3 in No.
312.—Translation.]
Mr. Elduayen and
Mr. Reed to Baron Blanc
.
Ministry of
State,
Palace
,
February 28, 1885.
Excellency: The Government of His Majesty the
King, my august sovereign, and the Government of the United States of
America have agreed to submit to the decision of an arbitrator the sum
which, as indemnification, the Spanish treasury must pay to the owner of
the North American bark Masonic, in virtue of the decreed sentence of
the council of state of the 16th of October, 1884, and both Governments,
recognizing the gifts of rectitude and justice which adorn your
excellency, have not hesitated a moment in indicating you as the most
proper person for the discharge of that deli sate commission.
We therefore have the honor to invite your excellency to be pleased to
accept the power which the Governments of Spain and of the United States
grant you in order that, in a period which cannot exceed six months, you
may examine the damages and injuries duly proved by the owner of the
Masonic, and determine the pecuniary indemnification which you justly
and equitably believe ought to be assigned to him, in view of the
liquidation of the interested party and of the antecedents of the
question, which will be furnished to your excellency in the ministries
of ultramar and of state and in the legation of the United States in
this court.
We avail ourselves, &c.,
- J. ELDUAYEN,
- DWIGHT T. REED.
