Mr. Olney to Mr. Taylor.
Washington, October 14, 1896.
Sir: I have to instruct you to bring to the knowledge of His Majesty’s Government the case of an American citizen, Mr. Samuel T. Tolon, recently arrested and confined without charge or proceedings at Habana under circumstances which call for the earnest remonstrance of this Government and correction on the part of that of Spain.
The circumstances are set forth in the accompanying affidavit1 of Mr. Tolon, executed before the United States consul-general at Habana on the 29th ultimo, and the facts so stated are recited and, so far as observation and knowledge go, confirmed by the dispatches of General Lee.
Briefly recited, the facts are that Samuel T. Tolon, a native of the Island of Cuba, was lawfully naturalized in New York September 5, [Page 642] 1878, was duly registered in the consulate-general at Habana October 18, 1878, as also later in the United States consulate at Cardenas. He has been established in legitimate mercantile business at Cardenas since 1890, his commercial operations being connected with the trade between the United States and Cuba. On the 1st of September ultimo he left Cardenas for Habana with the intention of visiting the United States on business; the following day, September 2, he applied to the consulate-general for the purpose of obtaining a United States passport or papers for leaving the island; a passport in the usual form was issued to him by the consulate-general, which passport was taken to the office of the governor of the western region of the Island of Cuba and of the province of Habana, the proper authority to visé such passports; the aforesaid documents were duly vised, after the usual examination, thus enabling Mr. Tolon to obtain his passage for the United States.
On September 3 he bought a passage ticket for New York by the steamer Seneca, which was to sail that afternoon, and shortly before the hour fixed for departure he went on board the Seneca, his personal baggage having been already shipped in the usual course. About ten minutes before the departure of the steamer the inspector of police of the Habana harbor arrested Mr. Tolon on board the Seneca, producing no warrant or other paper authorizing such arrest nor stating any charge against him, and compelled him to leave the steamer. Mr. Tolon was then taken to the chief police headquarters of Habana and there imprisoned under circumstances of considerable personal hardship for eighteen days without being allowed communication with the representatives of the United States or with counsel or friends. On or about the 20th of September he was allowed an interview with the consul-general in the presence of the chief of police. After this interview he was again held “incomunicado” until the 2Gth of September, when he was released upon the condition that he should depart by the first steamer leaving for the United States.
Although, as has been seen, Mr. Tolon was denied communication with the consul-general until the 20th, that officer had, under the instructions of this Department, promptly intervened on the 4th of September to demand the release of Mr. Tolon on the grounds that no authority existed for his arrest after his passport for departure had been duly vised, and that the circumstances of the arrest contravened article 48, title 4, of the law of Spain of July 4, 1870, relative to foreigners, inasmuch as the arrest on board the ship was not made upon accusation of ordinary charges and was effected without notice being given to the consul-general of the arrest or purpose to arrest Mr. Tolon. The consul-general continued to make energetic protest against the arrest and removal of Mr. Tolon from the Seneca and his confinement without communication and without judicial process many days in excess of the limits fixed by the Spanish constitution.
These repeated remonstrances elicited no responses until September 20, 1896, when a so-called “public order” of that date was communicated to the United States consul-general, under the signature of Valeriano Weyler, in which the Governor-General informed him that “the country being in a state of war, and therefore the constitutional guaranties suspended, no violation of any precept of the Spanish constitution was committed by arresting said individual and prolonging his incommunication nor of the law of criminal procedure, and that he was arrested at the moment of taking passage on board the steamship Seneca, while his documents were yet in the possession of the officer of inspection of [Page 643] vessels, because the authorities had conclusive proof that he was a delegate of a revolutionary junta existing in Cardenas.” To this General Weyler added that Mr. Tolon had been subjected to proceedings on the charge of treason, the termination of which would not be long delayed, and upon a decision being reached it would be communicated to the consul general.
On September 26 Consul General Lee again urged the failure of the authorities to notify him of the arrest of Mr. Tolon, and asked his release on condition of leaving the island.
Mr. Tolon’s release appears to have been effected on September 28, in pursuance of what is styled, in the letter of the Governor-General to the consul-general, dated September 25, “gubernative proceedings” instituted against Tolon on the ground of disloyalty (infidencia), and in pursuance of the determination of the Governor General by a decree of that date “that the said person be expelled from the territory of this island and prohibited from returning unless duly authorized,” his departure to be by the first steamer sailing from Habana to the United States.
This last communication from the Governor-General makes it clear that no judicial process of any kind has been instituted against Mr. Tolon; that his arrest and confinement for twenty-six days were effected in the exercise of an assumed administrative authority on the part of the Governor-General; that whatever proceedings were conducted were purely executive, and that the release of Mr. Tolon was in pursuance of an administrative finding and decree.
This Government can not limit its consideration of the case of Mr. Tolon to the premises and arguments adduced by the consul-general. It is not a question of mere form. It underlies any simple protest against the disregard of the Cuban authorities of the prescribed notification of the arrest to the consul-general or any question of the circumstances of the arrest itself, whether on shipboard, while in port, or otherwise. The essential point involved is the treaty right of an American citizen to orderly and judicial proceedings against him upon accusation of crime or misdemeanor. No allegation of the suspension of guaranties or formalities of Spanish law by reason of what the Governor-General appears to characterize as the existence of a “state of war,” or of a proclaimed state of siege, can affect the international rights of an American citizen under the solemn guaranty of treaty. No arbitrary decree of the chief military authority of a Spanish dependence can suspend or annul the absolute right of a citizen of the United States arrested in Cuba during a state of siege or otherwise (unless with arms in hand), to receive the benefits and guaranties of the law ordinarily administered in the civil courts and to be placed, as soon as arrested, in the custody of those courts; the treaty excludes altogether the right to deprive him of his liberty under any process of martial law. These rights were abundantly confirmed by the awards of the mixed commission between Spain and the United States under the convention of February 12, 1871, in the cases of the arrest of citizens of the United States without charge and their confinement without trial. The principle involved in Article VII of the treaty of 1795 and in the protocol of 1877, declarative of its scope and purpose, was confirmed by the action of His Majesty’s Government in May, 1895, in regard to one Francisco Carrillo, who had been arrested in Cuba and detained by executive authority under the alleged powers of the state of siege merely as a person dangerous to public order, without intent to bring him to trial, when this Government demanded that Garrillo be promptly released or placed at [Page 644] once in the custody of the civil courts for regular trial and for such proceedings as might be lawful under the law as administered therein. Carrillo’s release promptly followed the demand.
The President is constrained to regard the arbitrary arrest and detention of Samuel T. Tolon, without subjection to the orderly processes of law, in virtue of asserted arbitrary powers alone and with no announced or apparent intention to bring him to regular trial, as a grave infraction of the seventh article of the treaty of 1795. The circumstance that in the exercise of the same arbitrary power the release and expulsion of the prisoner were decreed in no wise condones that infraction of treaty. It rather confirms it by assuming to impose a penalty upon an administrative finding in the case. This Government instructed the consul-general to demand compliance with the treaty and protocol by either bringing Mr. Tolon to regular trial, under formal accusation, or by instant release, and the presentation of this demand was apparently only forestalled by the Governor-General’s order of expulsion crossing the consul-general’s formal execution of his instructions.
You will bring the facts of Mr. Tolon’s arrest, detention, and expulsion impressively to the attention of His Majesty’s Government, demanding that the action of the Governor-General of Cuba in this regard be disavowed and rebuked, and that positive instructions be communicated to the Spanish authorities in that island to respect the unquestionable right of citizens of the United States in regard to arrest and process under the existing conventional stipulations between the two countries, while reserving the further right to make such claim of reparation as may be deemed proper in the case.
Copies of correspondence1 exchanged between this Department and the consul-general are inclosed for your information. It is not, however, expected that you will make use of them to introduce side issues of form or circumstance into the discussion. You will confine yourself to the essential complaint and demand outlined in this instruction.
I am, etc.,