Mr. Olney to Mr. Taylor.

No. 654.]

Sir: On May 16, 1896, the Governor-General of Cuba issued the following executive order:

I. Order and Command.

  • Article First. It is hereby temporarily forbidden while the present abnormal state of the island lasts to export leaf tobacco produced in the provinces of Pinar del Rio and Habana, except such as may be needed for Spain.
  • Article Second. A term of ten days is granted from this date for the exportation from the said provinces of tobacco contracted before the issue of this proclamation.
  • After the expiration of this term the custom-houses of the island will not issue shipping permits.
  • Article Third. The railroad companies and all companies transporting by land or sea will not admit for conveyance into any other province tobacco of the kind mentioned, the exportation of which to Spain is only authorized through the port of Habana.
  • Article Fourth. In order not to deprive the treasury of the revenues that would be afforded it by the exportation of leaf tobacco of Vuelta Abajo and Partidos (Pinar del Rio and Habana), the manufacturers of Habana will agree with the treasury on the payment of the amount that may he estimated as fair and just, taking as basis the average of the amount collected during the last three years, which obligation will last so long as the present export duties are not changed.
  • Article Fifth. The violators of the proclamation will he considered as abettors of the rebellion, with confiscation of their merchandise by the custom authorities, and delivery of the proceeds to the apprehenders as a reward. The transportation companies and those persons who co-operate in the clandestine exportation of tobacco, will incur besides, in a fine of one hundred to five hundred dollars, payable in stamp paper, which will be distributed in the following form: Fifty per cent to the Treasury, and fifty per cent to those who have taken part in the denunciation and seizure.
  • Article Sixth. The Intendancy-General will dictate the necessary rules for the execution of the above provisions.

Habana, May 16th, 1896.

Valeriano Weyler.

On the 20th of the same month this Department, on learning of the promulgation of the above order, directed you by cable to request an extension of the time beyond the ten days given in the order for the exportation of tobacco owned or contracted for by citizens of the United States. You were directed to say to the Spanish Government that the Governor-General’s proclamation was understood to apply only to leaf tobacco contracted for by American citizens but not yet become their property by delivery and payment of price; that leaf tobacco which had become the actual property of American citizens was protected from detention by the first clause of article 7 of the treaty of 1795. This treaty provision reads as follows:

And it is agreed that the citizens or subjects 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.

On May 22, 1896, you were further instructed by cable to suggest to the Spanish Government that, without any modification of the ordinance as issued, the Cuban authorities should be instructed to receive proof, through the consul or consul-general of the United States, of the bona fide ownership of tobacco by United States citizens prior to the ordinance, and, on such proof being furnished, to permit the exportation of the tobacco as heretofore.

On May 25 the chargé d’affaires ad interim Mr. Armstrong, cabled in reply as follows:

Minister foreign affairs informs me that all contracts for Cuban leaf tobacco entered into before publication of order prohibiting its exportation are to be respected and that suggestion in your telegram of 22d has been anticipated.

On May 26 Mr. Armstrong sent to the Department a copy of a note from the Duke of Tetuan dated May 25, in which he said that on May 8 telegraphic orders had been sent to the superior authority of Cuba, pointing out to him the necessity of respecting contracts of foreigners entered into before the issuance of the order in question, and that the superior authority was also instructed to take measures to prevent abuses, having special care in the decision of all cases to be guided by the strictest spirit of justice and equity, and these orders, the Duke of Tetuan alleges, were repeated to the Governor-General of Cuba on the day his letter was written—May 25.

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This prospective adjustment seemed satisfactory, and the matter was permitted to rest until September 12, 1896, when it was learned that no tobacco had been permitted to be shipped. An instruction was then sent to you referring to previous correspondence and inclosing complaints from citizens of the United States that the Governor-General refused to carry out the promises of the Imperial Government that all contracts for Cuban leaf tobacco entered into before the publication of the order prohibiting its exportation would be respected. The facts in these cases appeared to bring them clearly within the agreement of Spain and to entitle the tobacco to exemption from the embargo. It had been purchased prior to the issuance of the order, but it could not be put in condition to be shipped before the expiration of the ten days of grace allowed in it.

On September 24, 1896, another complaint of the same kind was sent to you, and on October 2 and 6 other instances and evidence were furnished you of the Governor-General’s refusal to obey the orders given him by his Government. On October 10 you cabled that the minister for foreign affairs promised relief in every case of contract made before the order prohibiting shipment, and would telegraph to Cuba urging noninterference in all cases where it was clear that the contract was made before the decree. On October 15 other complaints of noncompliance on the part of the Cuban authorities with the directions of the Spanish Government were sent to you, and on the same day the Department cabled you as follows:

Notwithstanding promise minister foreign affairs, as stated in your cable 10th, exportation of tobacco purchased before decree is still prohibited. It was prohibited only yesterday in clearest possible case of Hernsheim Bros. & Co., New Orleans, represented in Habana by Neuhaus, Newman & Co.

Represent fact to the minister for foreign affairs, and ask for peremptory telegraphic instruction to Cuban authorities that exportation be allowed.

On October 16 the Department cabled you again as follows:

Consul-general at Habana cables that General Weyler declares he has received no information or instructions from his Government about tobacco of Americans purchased or contracted for before decree prohibiting exportation. See minister for foreign affairs at once and ask for explicit and immediate cable instructions to Weyler.

On October 20 you were again instructed to follow up the tobacco order and to insist upon the immediate fulfillment of the minister’s promise. The same day you replied that the minister had assured you that a telegraphic order should go to the Governor-General of Cuba the same week concerning the exportation of tobacco purchased before the decree.

On October 22 the Department cabled you again that no relief had yet been given to American purchasers of tobacco, and the same day it sent you other complaints and evidence showing the unlawful detention of American tobacco in Cuba and the great injury to American interests resulting therefrom.

On October 24 you cabled the Department as follows:

Minister for foreign affairs after a cabinet meeting says Spanish Government maintains its promise made as to shipments tobacco purchased before decree. Telegraphic instructions already sent Governor-General of Cuba, directing him to pass upon evidence in each case presented. In spirit of justice and equity Government will not assume that he has acted improperly in any case prior to reexamination here. Cases already presented by me under examination.

On October 30 and November 4 you informed the Department of the presentation to the Spanish Government of the complaints of the unlawful detention of tobacco theretofore sent you.

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On November 6, 1896, the Department cabled you:

Consul-general at Habana writes that Weyler rejected claims of United States citizens purchasing or contracting for tobacco before decree prohibiting exportation, and has forwarded same to Madrid for revision. Investigate and report grounds of rejection and do all possible to have Weyler’s decision promptly reversed.

On November 21 another complaint from Habana was forwarded to you, and on December 7 still others.

The résumé of the correspondence above given shows (1) that the order of May 16 is in violation of the treaty between Spain and the United States in so far as it affects the exportation of tobacco which had become the property of citizens of the United States prior to the date of its going into effect; (2) that the Spanish Government has promised repeatedly that the order should not be enforced against tobaccos owned or contracted for by citizens of the United States prior to its date, and the Governor-General of Cuba had been accordingly directed; (3) that this promise has not been kept by the Spanish Government, notwithstanding that the most positive and undeniable proof has been furnished both to the Governor-General and the Royal Government that certain lots of tobacco were at the date of the order of May 16 the property and actually in the possession of American purchasers, and in other cases had been contracted for but not delivered; (4) that this Government’s repeated complaints and protests in behalf of its citizens thus unlawfully treated has resulted in nothing but nonaction and further promises on the part of the Government of Spain.

There being now no reason to believe that the promised relief will be granted, you are instructed to inform the Spanish minister for foreign affairs that his Government will be held responsible for the indemnification of citizens of the United States in every instance, whether heretofore specifically presented or not, in which tobacco owned by such citizens or contracted for by them prior to the promulgation of the order of May 16, 1896, prohibiting exportation of tobacco, has been detained under that order.

I am, etc.,

Richard Olney.