Mr. Trescot to Mr. Blaine.
(Filed under August 31, 1889).
Dear Sir: As counsel for the claimant, I have been kindly permitted to read the last two dispatches of Mr. Palmer, the United States minister at Madrid, in reference to the Mora claim.
I ask leave to lay before you, respectfully, the impressions made upon those largely and directly interested by these communications.
Of these dispatches, one, No. 17, July 31, 1889, is official, and the other, of same date, which is a fuller and more elaborate consideration of the case as presented by the instruction of the Department, No. 3, May 30, 1889, is marked “unofficial.”
There is also this difference between them: The first, the official dispatch, is an information to the Secretary of action which the minister has deemed it judicious to take. The second is the expression of certain opinions of the minister submitted to the Secretary as ground for a desired modification of his original instruction.
As to the first, we recognize, without question, the right of the minister to exercise his discretion, subject to the approval or disapproval of the Secretary of State. We further recognize that this question is entirely within the judgment of the Secretary, for when the Government assumed the representation of the claim, it did so with the acknowledged consequence that the extent of its action and the manner and methods of its procedure were within the absolute control of the Department of State.
Nor do we propose to criticise this exercise of the minister’s discretion. We can readily understand that being on the spot and familiar with the political exigencies which must more or less control diplomatic action, he may have found, in circumstances not as well known at home, reasons to consider the literal obedience to his instructions inopportune and calculated rather to hinder than help the very interests which it [Page 402] was his duty to protect. How far his instructions were absolute is to be determined by the Secretary of State upon the statement of facts made to him.
But we venture to suggest that under the circumstances the promptest information should have been given to the Department of the conditions which seemed to impose delay in the execution of the instructions.
We also feel warranted in asking your attention to the fact that your original instruction was in reply and was the only reply of this Government to the decision of the Spanish secretary for foreign affairs communicated as far back as February 4, 1889, by Mr. Belmont, at that date United States minister to Spain. The long time which has elapsed since this communication had been received, owing to the change of administration and ministers, made it very important that the dissatisfaction of the United States Government should at the earliest moment possible be made known to the Spanish Government.
Recognizing, therefore, that the discretion of the minister in delaying the reading of his instructions might have been judicious, we can not help thinking that the interests of the case and the position of the Government would not have been embarrassed if the minister had called upon the secretary of foreign affairs and said: That the Mora case was in such a condition that the United States Government felt its early settlement to be a matter of grave importance to the unbroken friendly relations of the two countries; that he had been specially instructed to ask the most earnest and prompt attention of the Spanish Government to the subject 5 that in the present excited condition of political feeling in the Cortes he was unwilling to do anything which might embarrass the ministry or endanger the case itself by inopportune insistance, but that he must express the hope that between the suspension of the Cortes and its reassembly in October the secretary would be prepared to take up the matter with a view to its final settlement.
That, it seems to us, would have been notice to the Government that there was no acquiescence in the decision which Señor Armijo had announced to Mr. Belmont, and that the subject would have to be most seriously considered.
The minister may have had such an interview, but he does not say so.
But it is not so much the action of the minister in withholding the immediate presentation of his instruction as the views which he takes of the case itself in his unofficial communication that causes our apprehension.
In this communication the minister calls attention to the following paragraph of your original instruction:
The President, moreover, expresses his surprise that the Spanish Government should claim to retain in its hands the millions which it admits were violently and unlawfully seized from an American citizen.
Mr. Palmer says that this is not true, and submits certain facts and reasonings in support of his opinion. I will not follow the details of his argument, but content myself with what I consider absolute refutation.
Mr. Moret, the Spanish minister of foreign affairs, and the negotiator of the settlement, on 28th of January, 1888, said, in reply to Señor Lastres and Señor Romero Robledo:
I shall now enter into certain details with which I am sorry to trouble your attention, but I will try to be as concise as I can possiby be. I can not omit speaking about them because the assertion made by Señor Romero Robledo in regard to them, clear and explicit as they are, are nevertheless founded on a capital error. * * *
[Page 403]The principal argument in regard to this claim (Mora’s) apart from its importance rests upon the fact clearly and precisely stated by the honorable gentleman that the Government has received nothing and has nothing to return. Would to God that this were true. Unfortunately, not one of these assertions is correct. * * * The two Syndics, two Spaniards who had nothing to do with Mora or with the United States, addressed in March, 1876, officially to the governor-general of Cuba a petition saying as follows: “The estates intrusted to our care are going to ruin; we have had to contract debts to keep them in working order; the expenses to run them are considerable; this year it will be impossible for us to do any work on two of the plantations, and the sugar crops will not be gathered on the other plantations unless something out of those $2,317,000 which have entered into the treasury, and of which we have seen nothing, and has not been used either to pay the expenses or to pay the creditors is given to us.” This is clearly proved. But there is something more. The debts were $794,000, so that these $2,317,000 would have been sufficient to pay the debts and pay the expenses, and the estates would have been left clear of debt.
There is abundant official proof besides Mr. Moretfs declaration which can be furnished in detail if you so desire. But I rest upon this official statement of Señor Moret, and I am surprised that it did not occur to Mr. Palmer that if in reply to your original instruction the Spanish Government had taken the ground which he has suggested, he had only to produce the declaration in the Cortes of the secretary for foreign affairs, and leave to the Spanish Government the impossible task of reconciling the two.
Mr. Palmer says in his dispatch No. 17: “I can find no ability in the Government to raise the money without an authorization or appropriation from the Cortes,” and in his “unofficial” letter supports this opinion by quoting the following article of the Spanish constitution, article 86, constitution, 1876:
The Government must receive authority by law in order to dispose of the property of the state (national property) or to raise money by loan on the credit of the nation.
Now we have asked no disposition of the property of the nation, nor have we suggested any loan for the payment of the Mora claim. Spain has acknowledged in the most explicit and precise terms her indebtedness to the United States in the sum of $1,500,000 and promised to pay it in 1887. We simply ask her to do so. We have no right to suppose that a responsible government did not know what it was doing when it made this promise, and certainly we have no right to assume that the government in power can not control its legislation until it tells us so. So far Spain has not said so, and I do not believe that she will. Just so long as we permit procrastination she will use it. But whenever a ministry in power admits the debt and the promise to pay, but pleads the refusal of the Cortes, that will be a new issue with which the United States has dealt before.
When Señor Moret offered the pecuniary indemnity of $1,500,000 he said it would be charged upon the Cuban budget” unless some other more expeditious means of immediate payment was found,” June 30, 1886.
And we can furnish many instances in which the Spanish Government has paid awards and recognized indebtedness without making such payment an item in any budget or asking for special appropriation.
Indeed, Señor Moret recognized this when he said, in his speech of January 28, 1888, that he had tried, by making the charge on the budget, to avoid what the Government had been forced to do in the case of the Virginius and during the Cuban war—pay right away without the action of Parliament.
Referring to the resolution of censure, the vote thereupon in the Cortes, and the inference drawn from it in your instruction, Mr. Palmer says: [Page 404]
It will therefore he seen that the majority of 170 to 47 obtained by the Government in the vote on the Lastres resolution, instead of being indicative of a favorable attitude on the part of the Cortes, was only obtained by an express pledge on the part of the Government that no appropriation would be asked for of the house for the payment of the Mora claim, unless accompanied by some agreement of the claims of Spain against the United States.
The resolution offered by Señor Lastres was as follows:
The undersigned delegates, without waiving the right to occupy the attention of the Chamber on this subject when the Cuban budget is discussed, request Congress to be pleased to declare that in the negotiation concluded (ultimata) by the minister of state in the case of Antonio Maximo Mora, the said minister has set aside the decision of the umpire and violated the agreement of February 12, 1871; for if the action of said minister prevails, the treasury of Cuba would lose $1,500,000 and a bad precedent would be established for other analogous claims.
Whatever may have been the exigencies of the debate, the result was according, to the official report, that the reformists, headed by Romero Robledo, did not vote. The Republicans did not vote and the ministers, at the request of Moret, did not vote, and, “en la majorio nonuba alteracion visible,” the ministerial majority was unanimous, from which I submit that the inference is conclusive.
As to what M. Moret may have felt obliged to say, Mr. Palmer himself says that the Spanish Government has never denied “that there has been a promise on the part of the Government to pay the claim or, as far as the administration is concerned, to repudiate the engagement resulting from that promise. The purport of those notes was not to avoid the obligation, but to secure some means which in the opinion of the writers would enable the Government to go before the Cortes and secure the appropriation necessary for the execution of that obligation.”
If, therefore, Señor Moret, as Mr. Palmer considers, did pledge himself not to ask for “the appropriation necessary for the execution of that obligation,” unless the United States would agree to a condition which never entered into the original agreement, then he has violated his promise to the United States and has placed himself in an inconsistent and not very creditable position, which I think Mr. Palmer might very well leave him to explain himself.
I have called your attention to these points because I think that it is due to the claimants that you should feel assured of the carefulness, conscientiousness, and accuracy with which they made their statements when the case was submitted to the consideration of the Department.
None of them affect the direct issue in the case. That is perfectly simple. The claim for something over $4,000,000, resting upon the official returns of the Cuban officials, was in principle admitted by the Spanish Government and the most solemn pledges made for the immediate restoration of Mora’s property. For more than twelve years these pledges were unredeemed. At last, in 1886, the Spanish Government, explicitly recognizing its obligations, offered to the United States that as the estates could not be returned, it would pay to the claimants the sum of $1,500,000 in exchange for a receipt in full of all claim upon the estates and compensation for losses and damages. This proposition was accepted. This compromise was offered after the Spanish Government had full time to examine the case thoroughly and had so examined and determined for itself what it would be advantageous to offer, Señor Moret himself declaring to the Cortes that it was a settlement most favorable to Spain.
As far as the claimants are concerned the case now starts from that point. Neither party to the compromise can go behind it. Whether the Government received or did not receive certain moneys from the [Page 405] estate, whether any questions of bankruptcy could intervene between the responsibility of the Government and the claims, have all been deliberately considered by the Spanish Government, and there is no question to-day between the parties. Spain acknowledges a debt of $1,500,000, and promises to pay it. The United States and the claimants are ready to give the proper receipts. There is no room or occasion for further discussion.
As to the estates, they are certainly in existence, and they are just as certainly the property of Spain or Spain has sold them. But with this the claimants have no concern 5 they have accepted Spain’s offer in full. The only question is whether Spain will fulfill her pledges. Will she pay the money? If she refuses, then the compromise she offered is broken. And the claimants, in possession of her formal recognition of the debt—the official accounts justifying the estimate of $4,000,000—the admission by the secretary of foreign affairs of the receipt into the treasury of $2,317,000—have the right to insist upon their original claim.
If Spain admits the debt and asks only time, any reasonable time and method of payment will be accepted. As to difficulties with her own Cortes, the Government of the United States can not officially consider them. No Government holding a ministerial majority in the Cortes can afford to make or will make such declaration. We honestly believe that all such pretense is simply procrastination which will be continued as long as it is endured. If it is a real difficulty and not a mere party embarrassment which time and decision will cure, then let the Spanish Government say so distinctly and take all the discredit which such a declaration will carry with it before the world. But we do not believe that, with firmness and the ability which our minister unquestionably possesses, any such issue will come if the real point of the case is placed distinctly and resolutely before the Spanish Government.
And we most earnestly entreat that Mr. Palmer be fully and clearly instructed, as we think he has been, that payment in the Mora case can not be made dependent upon the settlement of any other questions or cases under the consideration of the two governments.
The compromise of $1,500,000 which was offered by Spain and accepted by the United States was made and accepted without the slightest reference or relation to any other cases. It was a negotiation and a settlement complete in itself, absolutely free from all other connection, and it would be a violation of all diplomatic custom or national faith to attempt now to force upon it conditions which did not then exist.
We do not wish to interpose the slightest difficulty to the settlement of any cases which the two governments may desire to settle. But this case has no connection in time or character with them, and it will not escape your attention that the conduct of the Spanish Government in this claim, so patiently argued, so long discussed, and so frankly admitted, is but a poor guarantee of either promptness or justice in those cases upon which Spain desires to make it dependent.
We will be prepared to submit to you any detailed information which, in your opinion, the consideration of this memorandum may require, whenever it suits your convenience, and hope that you will pardon the expression of our earnest conviction that it is most important to the interests of the case that Mr. Palmer should be in possession of the instructions of the Department by the time of the reassembly of the Cortes in October of this year.
Respectfully,
Of Counsel.
P. S.—On March 28, 1877, Mr. Gushing received from the Spanish Government £102,575—half of the amount thus far awarded by the United States and Spanish Commission of Arbitration.
Being tired of delay he went directly to the premier, Señor Canovas del Castillo, instead of the secretary of foreign affairs, and with him arranged the payment, half cash, half in six months. The arrangement was made March 5, 1877; the first payment, March 23. No loan was made nor anything charged to any budget.
The second installment was paid to Mr. Lowell October 8, 1877. (See Foreign Relations of the United States, 1877, pages 500–503, pages 523–528:)
The award paid to Mr. Felix Pinto in 1885 was paid without any loan or charge on the budget.
The Spanish Government decided to pay, June 29, 1885, $31,603 to Mr. Givin. The money was given to Mr. Foster, United States minister, October 31, 1885. The $51,674 awarded June 27, 1885, to the owners of the Masonic to be paid in Washington within six months, without charge to the budget or loan.
We are informed that it is a common custom for the banks in Havana to discount the drafts of the Government upon the treasury of Havana and the custom-houses when money is wanted. And that there is no case on record of such draft being protested.