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Mr. Olney to Mr. Dupuy de Lôme.

No. 83.]

Sir: I have the honor to invite attention to a decree of Sabas Marin, Governor-General of the Island of Cuba, dated the 24th of January last, and printed in the Habana papers on the following day, by which a general requisition of horses and mules for the service of the campaign is ordered, and provision made for their appraisement.

No reference appears in this decree to the treaty rights of aliens in respect to such embargoes of their effects, while it would seem obvious that, so far at least as citizens of the United States in Cuba are concerned, the Governor-General had overlooked the provisions of article 7 of the treaty of 1795 between the United States and Spain, it was at first supposed that in the practical execution of this military measure the conventional obligations of Spain would be scrupulously respected by the royal authorities, and that their treatment of the property of citizens of the United States within their sphere of operations and control would be such as to avoid just complaint by them or by this Government in their behalf.

This supposition has not been verified by the reported facts. The Department is already in receipt of several sworn statements of American citizens residing in the districts controlled and administered by the Spanish power, showing that horses and mules have been taken from them, in some cases with appraisement of their value, in others by arbitrary seizure without receipt or appraisement. One instance is noteworthy. A citizen of the United States, known to the authorities to be such, upon riding into Sagua from his neighboring estate, had his horse and equipment seized, by order, it is said, of the superior authority.

More than this, wanton aggressions upon the property of citizens of the United States by the Spanish soldiery, professing to act under the express orders of their commanders, are reported, and acts committed by them for which no warrant is found either in the decrees of the Governor-General or in the conventional obligations of the Royal Government toward American citizens. It is averred, for example, that although abundant fodder is near at band the Spanish cavalry encamped near Corral Falso and other points has cut off the tops of growing sugar cane upon plantations known to be owned and operated by citizens of the United States, thus not only destroying the crop, but killing the plants from the roots. No appraisement or tender of value appears to have accompanied this spoliation of private alien property.

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The seventh article of the treaty of 1795, between the United States and Spain, has been so often cited in the discussions of late years between the two Governments, growing out of injuries to citizens of the United States and their property in Cuba, that its provisions must be assumed to be familiar to all the Spanish authorities concerned in its due observance. It is only necessary to the purposes of the present note to cite its first clause, reading thus:

And it is agreed that the subjects or citizens of each of the contracting parties, their vessels or effects, shall not be liable to any embargo or detention on the part of the other for any military expedition or other public or private purpose whatever.

The Spanish text is in exact equivalence, without ambiguity of any kind. While, in the past, the application of this inhibition to judicial injunctions or preventive administrative embargoes upon the estates of citizens of the United States in Cuba has been contested, its precise relation to the class of acts above described has never been questioned on the part of your Government. Indeed, the Spanish argument touching its limited scope rested precisely and wholly on the allegation that this first clause refers only to the taking of vessels or personal property for military use or for any public or private purposes—in a word, the embargo commonly known in Spanish jurisprudence by the name of angaria. This term and the action it implies corresponds, as to vessels and effects, quite closely with the principle known in other countries as “eminent domain” in respect to realty, so that the ship or the property maybe employed in the public service upon compensation for its use or payment of its just value, although without judicial condemnation. It is therefore admitted and established beyond controversy that, whatever else the exemption of the first clause of article 7 of the treaty of 1795 may import, it certainly means that the vessels and effects of citizens of the United States within the Spanish jurisdiction may not be appropriated against the owner’s will to the public use for military or any other purposes, even though compensation be tendered.

I have to request that you will take a proper opportunity to remind the superior authority of the Island of Cuba of the exemption enjoyed by citizens of the United States under existing treaty from the class of spoliations and appropriations to which I have adverted. For your fuller information in the premises I inclose copies of several typical complaints in this relation which have so far reached me, and I venture to express the confident hope that by prompt action on the part of the responsible authorities in Cuba further complaint on this score may be averted. It stands to reason that, in eases where injuries of this nature have already been suffered by citizens of the United States, full reparation will be forthwith made upon due establishment of the facts. To this end the consuls of the United States in Cuba will be instructed to receive proofs of the fact of appropriation or spoliation and of the value of the property affected.

Accept, etc.,

Richard Olney.