No. 103.
Mr. Bayard
to Mr. Beach.
Department
of State,
Washington, May 1,
1885.
No. 30.]
Sir: Since the date of the last instruction to you
in relation to the case of Julio E. Santos, the Department has received your
dispatches No. 26, of February 28, 1885, and Nos. 29 and 30, of March 21,
1885; and also Mr. Reinberg’s dispatches Nos. 108 and 109, of March 24 and
27, 1885, and his No. 114, of the 18th ultimo, all on the same subject.
The Department has also received a number of affidavits from parties in the
United States, testifying their knowledge of Mr. Santos’s intention to
retain his domicil in the United States, here to maintain and fulfill his
rights and duties as a citizen of this Republic. Copies of these affidavits
are hereto annexed, and taken with those which you have obtained and
forwarded in obedience to my telegraphic request, they establish the
intention to return to the entire satisfaction of this Government. They thus
meet the only ground which the Government of Ecuador has found for opposing
the right of the United States to intervene in this case, and dispose of the
assumption that by the naked fact of two years’ residence in Ecuador Mr.
Santos has renounced his acquired and resumed his original allegiance.
The provision in respect of two years’ residence in the original country,
after return thither, which is found in most of our naturalization treaties,
is designed to afford presumptive evidence merely of the intent which is necessary to a valid resumption of the original
allegiance. That presumption, like any other presumption, is open to
rebuttal by satisfactory evidence, and the right of such rebuttal is
inherent in the case and available in the party’s behalf, even where the
treaty may be silent on the point. In our treaty with Ecuador, however, the
right of rebuttal of the presumption of intent which may grow from two
years’
[Page 252]
residence is expressly
stipulated, and this point is therefore removed from the field of
argument.
It is part of the sovereignty of every nation to prescribe the terms on which
the allegiance of its own citizens shall be acquired and preserved. In the
treaty with Ecuador the United States waive a part of such right of decision
by admitting that two years’ residence in Ecuador may create a presumption
that their citizen intends to remain there. By stipulating for the right of
rebuttal evidence on this point of intention, the United States wholly and
absolutely regain that right of deciding as to the status of their citizens
in a given case. That right is not transferred in any part to Ecuador; it is
to be exercised exclusively by the United States as an attribute of their
sovereignty. And Ecuador cannot meet that reserved right by any mere denial
of the sufficiency of the rebutting evidence which may be satisfactory to
the United States. The only privilege of surrebuttal which might remain open
to Ecuador would be to show that the party had done some act working an
overt, voluntary, and positive renunciation of his United States citizenship
of which the laws of Ecuador take cognizance, or which they may prescribe as
a condition to the acquisition or recovery of Ecuadorian citizenship. In
other words, no surrebuttal is admissible as to intent, but must rest on the
full ascertainment of legal fact.
This Government has pushed its construction of the sufficiency of the
rebutting evidence beyond the needs of what would have been enough in any
ordinary case in order that its conclusion, when reached, should not only be
final as of right, but convincing also to the Government of Ecuador, to
which it may be communicated as a matter of courtesy.
This conclusion is that the rebutting evidence submitted by and on behalf of
Mr. Julio R. Santos establishes his continuous intent to return to the
United States, here to discharge the duties of an American citizen; and it
furthermore establishes his open and continuous assertion of his American
citizenship during the whole period of his sojourn in Ecuador.
This Government must therefore hold that the question of Mr. Santos’s
citizenship, under the treaty clauses is no longer debatable, and must
likewise hold and firmly insist that Mr. Santos’s rights as a citizen of the
United States shall be respected in all matters touching any charge which
may have been or be preferred against him of violating the laws of the land
of his temporary sojourn. We insist that in the event of such charges being
brought against him he shall have immediate and full cognizance thereof,
with every opportunity and guarantee of defense in open trial as completely
as any other citizen of the United States would be entitled to in Ecuador,
or as any citizen of Ecuador would be entitled to and would receive if on
trial in the United States. We insist that if no charges be forthcoming, or
no trial held without delay, he shall be released. And we insist further
that in respect of his property, real or personal, within the jurisdiction
of Ecuador, he shall have the same absolute and perfect protection at the
hands of the Ecuadorian authorities, and through the official intervention
of the representatives of the United States as any other citizen of the
United States would be entitled to and must receive under existing treaties
and under the law of nations.
In addition to the affidavits, of which copies are transmitted herewith, I
send you copy of the opinion on Mr. Santos’s case prepared by the law
officer of this Department, in whose conclusions I concur.
In presenting these facts and conclusions to the Government of Ecuador, you
will point out that this Government has strained the point of
[Page 253]
courteous deference to the
contention of that of Ecuador to the uttermost, and that an American citizen
has lain in prison in Ecuador for months without trial, and virtually
without knowledge of any tangible accusation against him on which trial
might be had, pending submission to this Government of the proof of
citizenship, and pending the conscientious examination of that proof. The
delay which has thus supervened in the conduct of this case having been now
removed and an impartial, equitable, and final conclusion of the question of
disputed citizenship having been reached, no further delay in doing justice
to Mr. Santos can be expected from the Government of Ecuador, or be
permitted by, the Government of the United States, without condoning a
manifest evasion of the treaty obligations of Ecuador to the continued and
wrongful prejudice of a citizen of the United States, whose just rights the
President is bound to protect, and will protect, by all the means within his
constitutional power.
This instruction will be handed to you by Commander Mahan, of the U. S. S.
Wachusett, who revisits the waters of Ecuador by direction of the Secretary
of the Navy for that purpose. Commander Mahan will be instructed to remain
within reach pending the prompt disposal of Mr. Santos’s case, and, in the
probable event of his release, he will be afforded an opportunity to return
to the United States on the Wachusett, by way of Panama, should he so
desire.
The energy shown by you and Mr. Reinberg in the conduct of this matter
hitherto deserves commendation, and it is trusted that your continued zeal
and good judgment will help to bring about under the present instruction a
speedy and satisfactory ending of this already too long delayed case.
I am, &c.,
[Inclosure 1 in No. 30.—Report No.
37.—Imprisonment of Julio Santos by authorities of
Ecuador.]
Law
Bureau, April 30,
1885.
To the honorable the Secretary of
State:
Sir: So far as concerns the evidence contained
in the annexed papers, there can be no question that Julio R. Santos is
a domiciled citizen of the United States. It is very rarely that in
cases of this class such strong evidence is produced. The acquaintances
of Mr. Santos, who are brought up to testify as to his history and his
expectations, are not persons who would either observe carelessly or
speak lightly. They include a series of college officers and students of
high character, with whom he has passed a number of years, and business
associates, who would best know his plans. It is impossible to ascribe
to persons of this class either want of opportunities of knowledge, or
want of conscientious accuracy. And the case is one of more interest
because it represents a type of much importance to the business welfare
both of the United States and of the countries with which we are brought
into close mercantile relations. It is highly conducive to the
beneficial developments of these relations that in selecting selling and
other agents in a foreign land, our producing and manufacturing houses
should be able to avail themselves of the services of such natives of
the countries to be dealt with as have become citizens of the United
States. In this way we obtain for ourselves the agent’s knowledge of the
language and other conditions of the country to which he is sent, while,
from the fact of his naturalization in the United States, we have a
political hold on him, and are able, to some extent, to guarantee his
personal rights. Hence it is a common practice of our great producing
and exporting houses to send to Europe, as well as to South America,
agents who are natives of the country of their agency, but who have
intermediately become loyal citizens of the United States. There can be
no doubt that this practice has proved very beneficial to the country of
the agency, as well as to the country from which the agent is sent
forth. To limit such an agency to two years would greatly destroy its
efficiency. By the rules of international law, as recognized by all
civilized nations, an agent of this class may live and do business in
the place of his agency (if his intention is to return to dwell
permanently in the place from which
[Page 254]
he is sent) without requiring a domicil, or being
subjected to a citizenship in the place of his agency. Nor, so far as
concerns citizenship, is this rule modified by the treaty between the
United States and Ecuador. That treaty, so far as concerns the present
issue, is as follows:
Article III.
A residence of more than two years in the native country of a naturalized
citizen shall be construed as an intention on his part to stay there
without returning to that where he was naturalized.
This presumption, however, may be rebutted by evidence
to the contrary.
This is equivalent to saying that when such a citizen’s intention to
return to the United States is shown, his citizenship of the United
States remains. It is true that white Mr. Santos, though a domiciled
citizen of the United States, is resident in Ecuador, he is subject to
the penal laws of Ecuador, and that mere alienage, or United States
citizenship, will not be a defense if he be tried for treason or other
offense against Ecuador. But though this is conceded, the Government of
the United States must insist that the trial in such a case, if it be
pressed, must be conducted according to the rules of international law;
and if it be not pressed, that Mr. Santos must be released; and the
rules of international law in this respect are that the party charged
should been titled to have counsel, to summon witnesses in his behalf,
to cross-examine the witnesses produced against him, and to have a
prompt trial. Any invasion of these sanctions will be regarded by the
United States Government as a matter of grave concern. Nor is the
solemnity of the protest here made weakened by the documents that have
come to the Department within the last few days from the United States
consul at Guayaquil. The case has undoubtedly been brought before a
local judge of Ecuador, but instead of the release or trial of Mr.
Santos being ordered, we are told that while the proceedings heretofore
held against him are invalid and nugatory and the evidence is worthless,
yet Mr. Santos must be remanded to prison. It is impossible for the
Government of the United States to view, without serious
dissatisfaction, such permanent imprisonment, on evidence admitted to be
invalid, of a citizen of the United States of unblemished character,
engaged temporarily in Ecuador in a line of business whose maintenance
is at least as important to Ecuador as to the United States.
All of which is respectfully submitted.
FRANCIS WHARTON,
Law Officer,
&c.
[Inclosure 2 in No. 30.]
United States of America, State of
New York,
City and County of New York to
wit:
Albert J. Berntich, being duly sworn, says:
I reside in the town of Westfield, N. J., and am engaged in business at
No. 76 Broad street, in the city of New York, under the firm name of
Berntich Brothers. In the year 1881 my said firm had business
transactions with the firm of Santos Hevia, Hermanos, of Bahai le
Caráquez, in the Republic of Ecuador, of which latter firm Julio Romano
Santos was and is a member. In the month of May or June, 1881, Mr.
Santos E. Santos, the brother of said Julio Romano Santos, was in the
city of New York, and to my knowledge was engaged in making arrangements
on behalf of his said brother Julio to open a branch house of said firm
in the city of New York, of which branch house his said brother Julio
was to take charge as soon as he returned New York. I was informed by
Santos E. Santos that Mr. Julio Romano Santos was then making
arrangements and intended to return to the United States as soon as his
said brother Santos E. Santos, who was then in New York, could return to
Bahia de Caráquez, Ecuador, where said firm of Santos, Heiva Hermanos
had its principal place of business.
I further say that I and my partners since that date have been expecting
and anticipating; the return of said Julio Romano Santos to this
country, but we became aware that the condition of the business of his
firm, in Ecuador, prevented him, from time to time, from carrying out
his intention of returning to the United States.
I further say that I and my partners have, at all times, since the month
of May or June, 1881, believed, and we do still believe, that the stay
of said Julio Romano Santos in Ecuador was only temporary, that is,
until he could get the business affairs of his firm in Ecuador into such
a condition that he could safely return to the United States.
[Page 255]
I further say that in the month of April, 1884, I and my partners were
informed that said Julio Romano Santos was finally making arrangements
to return to the United States, and that he intended to bring with him
some of his relatives; his intention being to establish said branch
commission house in the city of New York. In that month, namely, in
April, 1884, his brother, Santos E. Santos, called on me and desired to
engage my services for the new house, which he, Julio Romano Santos, so
intended establishing in the city of New York, and I had intended
joining the new house which said Julio Romano Santos was so about to
establish and would have done so but for the arrest of said Julio Romano
Santos in Ecuador.
I further say that during the whole period of my acquaintance with said
firm of Santos, Hevia Hermanos I have always regarded, and I still
regard, the said Julio Romano Santos as an American citizen, who was
temporarily absent from the United States on business, and who had no
intention of either abandoning his residence or his citizenship in the
United States.
I further say that Santos E. Santos is now in Panama.
Sworn to before me this 21st day of March,
1885.
[
seal.]
EDWIN B.
WOODS
,
Notary Public, Kings County,
certificate filed in New York County.
[Inclosure 3 in No. 30.]
United States of America, State of
New York,
City and County of New York, to
wit:
José Antonio B. Martinez, being duly sworn, says:
I reside at No. 28 Waverly Place, in the city of New York, and have
resided there about a week. Prior to my coming to New York I resided at
Hagerstown, Md., where I arrived from Ecuador in April, 1884. Prior to
my residence at Hagerstown I was a resident of Ecuador. I know Julio
Romano Santos, of the firm of Santos, Hevia Hermanos, of Bahia de
Caráquez, Ecuador, and have known him since boyhood. He came to the
United States in or about the year 1865, being then about twelve or
thirteen years of age, and entered as a student at Saint James College,
Washington County, Maryland. He afterward entered the University of
Virginia, where he graduated in the year 1873. He remained there as a
professor or tutor after graduating until 1874, when he went to South
America, remained there about three months, and then returned to the
United States and remained for a time at the university, acting as
professor until he received an appointment as engineer on the Baltimore
and Ohio Railroad. Afterward, and in the winter of 1879 or 1880, he came
to Bahia de Caráquez on a visit to his family and relatives there, whom
he had not seen for some years. It was well known to myself and his
relatives and friends that he had come to Bahia simply on a visit and
with no intention of remaining there permanently.
His brothers had established a commission and export business with Europe
and the United States, their place of business being at Bahia de
Caráquez. Julio concluded to learn the business and to become a partner
therein with his brothers, intending and contemplating as soon as he had
mastered the business and as soon as the necessary arrangements could be
made to open a house or place of business in the city of New York, for
the transaction there of the business of the firm in the United States.
Julio contemplated returning to the United States for that purpose in
the year 1881, but owing to the condition of the business of the firm at
Bahia he concluded to defer his return temporarily, and his return has
been since that time, from time to time, delayed by various occurrences,
but to my knowledge he has never abandoned nor given up his intention of
returning to the United States, resuming his residence therein, and
establishing said branch house in the city of New York. I further say
that early in the year 1884 arrangements were definitely made for his
return to the United States and his establishment of the branch house in
New York City. His brother, Santos E. Santos, went to New York City in
advance, and was making the preliminary arrangements which would precede
the return of Julio, and said Julio was, as I believe, about to return
to the United States, and had made all his arrangements for that
purpose, or nearly so, when he was arrested in Ecuador, and has been
ever since and still is detained in custody.
Sworn to before me this 20th day of March,
1885.
[
seal.]
EDWIN B.
WOODS
,
Notary Public, Kings County,
certificate filed in New York County.
[Page 256]
[Inclosure 4 in No. 30.]
United States of America, State of
New York,
City and County of New York, to
wit:
Eugene F. Santos, being duly sworn, says:
I am temporarily residing at the town of Westfield, in the State of New
Jersey. I am one of the brothers of Julio Romano Santos, mentioned in
the annexed affidavits of Albert J. Berntich and Antonio Martinez. I
farther say that I have heard the said affidavits and each of the same
read, and I know the contents thereof. I farther say that the statements
contained in said affidavits in reference to the residence and the
citizenship of my said brother in the United States, and in reference to
his connection with the firm of Santos, Hevia Hermanos, of Bahia de
Caráquez, and his intention to return to the United States for the
purpose of establishing in the city of New York a branch house of said
firm, and in reference to his intention of permanently residing in the
United States, are, and each of the same is, true, to my personal
knowledge. I further say that, to my knowledge, it has been the
intention of my said brother at all times since he became connected with
said firm to return to the United States and establish in the city of
New York a branch of said firm as soon as the arrangements necessary and
proper for that purpose could be made, and that he has not at any time
entertained, so far as I know or believe, any intention of abandoning
his residence or his right as a citizen of the United States.
Sworn to before me this 20th day of March,
1885.
[
seal.]
EDWIN B.
WOODS
,
Notary Public, Kings County,
certificate filed in New York County.
[Inclosure 5 in No. 30.]
State of Maryland, Washington County:
Be it known that before me the undersigned, a notary public of the State
of Maryland, in and for Washington County, came Henry Onderdonk, on this
20th day of March, 1885, and deposed and made oath as follows:
That the said deponent is now principal of the college of St. James, in
said county and State, and has been principal thereof since 1869; that
previous to that time he was the principal of a school near the city of
Baltimore, and that among his pupils, in the year 1864, were Flarico
Santos, of Ecuador, South America, but now of London, England, and his
brother Elio Santos, now a physician, and, as the deponent believes, now
in the city of New York; that in the year 1865, Julio Romano Santos, now
a prisoner in Ecuador, was entered as a pupil, and that the said Julio
remained with him for several years, when he was joined by his brother
Santos Elias Santos; that about the year 1868 the said Julio R. Santos
entered the University of Virginia as a student, and that he was
subsequently assistant professor of applied mathematics in that
college.
That in 1881 the said deponent learned from Santos E. Santos that his
brother Julio, after leaving the University of Virginia, was employed as
a civil engineer on the Baltimore and Ohio Railroad, and that he had
also occupied a professor’s chair in the University of Alabama or some
other Southern college; that in 1881 three other brothers, viz,
Bonifacio, Alexander, Eugene, were placed under the care of said
deponent for the purpose of education, especially in the English
language, as New York would be their probable future home, as it was the
intention to establish a commercial house in that city; that these three
brothers remained at the college of St. James until September 15, 1884,
excepting Bonifacio, who died in February, 1883.
That on the death of the said Bonifacio the deponent made such
arrangements at his burial that the body could be removed to his former
home in Ecuador, and that he so informed the relations of the deceased;
that the said relations ordered the interment to be made permanent and a
proper monument to be placed over the grave, giving as a reason that the
family, or at least a large part of it, expected to remove to the United
States; that the said three brothers, before the death of Bonifacio,
upon receipt of letters from their home in Ecuador, frequently said that
their brother Julio was coming to the United States and would bring
their two younger brothers to the college of St. James, and their mother
and sisters to New York to take up their residence in that city, but the
death of Bonifacio, from its unhappy effect upon the mother, delayed
this action on their part; that the said younger brothers came to the
college of St. James, 1884, and are still there; that their cousin
Antonio Martinez, a young
[Page 257]
man
of about twenty-six years of age, accompanied these boys to the United
States to be connected with the house that Santos was to establish in
New York, and that the said cousin resided at the college of St. James
from July 18 to December 18, 1884, and is now in New York; that deponent
was informed by the Santos family that the commercial house would be
established on January 1, 1885, but subsequently that it was postponed
by reason of the revolution at that time existing in Ecuador.
[
seal.]
HENEY
ONDERDONK
.
WM. S. WILLIAMSON,
Notary Public.
[Inlosure 6 in No. 30.]
State of Maryland,
Washington County:
Be it known that on the 21st day of March, in the year 1885, that before
me, a notary public of the State of Maryland, appointed in and for the
said Washington County, appeared Dr. Henry U. Onderdonk, who, being duly
sworn, deposes and says that he, the said deponent, is vice-principal
and teacher of mathematics in the college of St. James, Washington
County, Maryland.
That in May, 1881, he had a conversation with Santos Elias Santos, a
brother of Julio Romano Santos, the said Santos E. Santos being then on
a visit to the college of St. James, Washington County, Maryland, for
the purpose of entering as pupils at the said college his three
brothers, Bonifacio, Alejandro, and Eugenio.
That during this conversation, the deponent questioned the said Santos E.
Santos concerning his brother, Julio R. Santos, who had been a
school-mate of the deponent. The deponent asked if the said Julio R.
Santos was still a professor at the University of Alabama, to which the
said Santos E. Sautes replied that Julio R. Santos had returned to
Ecuador to assist in the business of the firm of Santos, Hevia Hermanos,
thereupon the deponent expressed his surprise that Julio R. Santos
should abandon a professional career for which he seemed so eminently
fitted, for a mercantile life, and asked if it was probable that the
said Julio R. Santos would remain in South America, to which Santos E.
Santos replied that it was not likely, that a business life was not
congenial to Julio R. Santos, and that the said Julio R. Santos had
expressed his intention to return to the United State when certain
business arrangements which were then pending in New York, were
completed.
That in December, 1882, and in January, 1883, the deponent was told by
Bonifacio and Alejandro Santos, brothers of Julio R. Santos, that they
were expecting the said Julio R. Santos to come to the United States
early in 1883, they having received letters from home to the effect that
Julio R. Santos was to bring with him to the United States in February,
1883, two younger brothers to place at school.
In February, 1883, Bonifacio Santos, mentioned above, died. That in
March, 1883, the deponent heard Alejandro Santos, aforementioned, say
that the news of the death of the aforementioned Bonifacio Santos
reached their home in Ecuador on the day before that which the said
Julio R. Santos had appointed to sail for the United States with his
younger brothers, and that all preparations had been made to sail upon
the appointed day, but that the death of Bonifacio Santos had so
affected his mother that she would not consent to the departure of her
sons at that time, and that on this account Julio R. Santos’s return to
the United States was postponed.
- A. U. ONDERDONK, M. D.
- WM. S. WILLIAMSON,
Notary
Public.
