Mr. Olney to Mr. Dupuy de Lôme.

No. 37.]

Sir: I have the honor to bring to your notice a remarkable communication addressed by the Governor-General of the Island of Cuba to [Page 1210] the consul-general of the United States under date of the 6th instant. Mr. Williams having, in execution of instructions telegraphed to him, made representations touching the prolonged confinement of certain American citizens without trial and in contravention of existing treaties and engagements between the United States and Spain, Gen. Martinez de Campos replied that consuls are not invested with diplomatic functions and, therefore, can not rightfully present official remonstrance in affairs of government, but may merely address themselves confidentially to the authorities for the purposes of inquiry in order to report to their Government: and he adds that the custom of responding to such confidential inquiries can not be continued if the Government of the United States should not become convinced of the correctness of his views.

The position so taken by Gen. Martinez de Campos has naturally occasioned this Government much surprise. The right of consuls to intervene with the local authority for the protection of their countrymen from unlawful acts violative of treaty or of the elementary principles of justice is so generally admitted as to form an accepted doctrine of international law. More than this, it has been conventionally established by treaties. In the enjoyment of the most favored national right, stipulated in the existing treaty between the United States and Spain, the express provisions of the consular treaty of February 27, 1870, between Spain and Germany are to be invoked. The ninth article thereof provides that consuls-general and other consular officers shall have the right to address the authorities of their district in remonstrance against every infraction of the treaties or conventions existing between the two countries and against any abuse whatsoever of which their countrymen may complain.

During a long course of years the Government has exercised its unquestionable privilege of intrusting to its consular representative in the Island of Cuba the duty of watching in the first instance over the interests of citizens of the United States, and of securing for them the enjoyment of all their lawful rights; and to this end it has supported their endeavors upon occasion by instructions looking to further and more precise remonstrance. This, indeed, it has had occasion to do with regard to the American citizens lately detained in Cuba. If it has at times in the past acquiesced in the suggestion of the Spanish Government that representations against the action of the authorities in Cuba might also be conveniently addressed to the minister of Spain in the United States, it has done so simply because such procedure afforded a ready and practical means of still further supporting the efforts of its agents in Cuba under their instructions and regulations, and not in any way as a substitution of a new and extraordinary channel of communication for one recognized by usage, by international law, and by convention.

The Governor-General appears to confound the legitimate representations of consular agents when the rights of their countrymen may be assailed with the diplomatic action of an accredited envoy. If so he clearly forgets that diplomatic relations can only take place directly between sovereigns, and that this Government could not by any channel, even through you as the envoy of Spain, or through its own envoy at Madrid, address the Governor-General of the Island of Cuba as a sovereign authority. It is simply as the local depositary and delegate of the sovereign power that the consul addresses him, and then only for the purpose and to the extent fixed by usage as defined in the Spanish-German treaty. Such correspondence is not and can not be diplomatic [Page 1211] in any sense. Its object is to furnish a ready and convenient method of adjusting the questions at issue on the spot, thereby averting resort to those necessary diplomatic channels which the intercourse of sovereign powers provides.

In all this matter of the treatment of American citizens arrested by military or administrative act in Cuba this Government, while showing a spirit of temperance which it is happy to believe the Government of Spain can not have failed to appreciate, has persistently directed its earnest efforts toward securing for American citizens so detained the immediate enjoyment of all conventional guarantees with respect to process and punishment, and it has sought to do this without invocation of the diplomatic resorts of protest and demand. To this end its agents in Cuba have zealously labored in compliance with the instructions given them, and this Government has been pleased to believe from the results reported in the several cases hitherto that these endeavors have met with a cordial response on the part of the agents of Spanish power in Cuba. The present communication of the Governor-General suggests that we may have been mistaken in this belief; but even if so mistaken, this Government can not be expected to acquiesce in the position taken by Gen. Martinez de Campos and abdicate its rights in the premises.

I address this note to you in the expectation that the direct relations known to exist between yourself and the superior authority in Cuba will enable you to set the Governor-General right upon this important point, and that the necessity may not arise of carrying to Madrid the questions involved.

Accept, etc.,

Richard Olney.