Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1896, and the Annual Report of the Secretary of State
Mr. Williams to Mr. Rockhill.
Habana, May 21, 1896.
Sir: In continuation of my dispatches in relation to Alfred Laborde, William Gildea, and Ona Melton, captured by a Spanish gunboat on [Page 722] board the American schooner Competitor and tried at 8.30 o’clock of the morning of the 8th instant, at the arsenal of this port by the naval authorities, under the form of procedure known here as the most summary process (juicio sumarisimo), I now have the honor to accompany translations of the correspondence had since the 7th instant between the authorities and this consulate-general on the subject.
The first communication forming part of this correspondence in the order of reference and consideration is that addressed to me on the 7th instant by the admiral of the station. It is made up wholly of the opinion, adverse to my remonstrance, of the judge-advocate to whom my two communications of the 30th ultimo were referred in consultation. It will be seen that the admiral adheres to and approves of this opinion. In it the judge-advocate assumes:
First. That the specification of the charges against these men, that I had asked for in my first communication of the 30th, could be furnished me in reference to the friendly relations existing between the two countries. I must observe, however, that the trial of these men took place within the short time of fifteen hours after this offer, with the night intervening; and, that notwithstanding the men have been tried and condemned to death, that the specific charges have not yet been furnished me for transmission to you.
Second. That with respect to the list of the names of the men, the judge-advocate tells the admiral that there was reason to suppose that Melton was the only American citizen on board. But I must here observe, too, that, as there was reason to believe that Laborde was the master, and Gildea the mate, according to paragraph 171 of the Consular Regulations, based on statute, and the fact of the vessel being American, the flag covered them. In consequence, it became my duty and right to interpose in their favor.
Third. The judge-advocate assumes that neither article 7 of the treaty of the 27th of October, 1795, nor the protocol of 1877, invoked by me, apply to the case in question. Because, as he further assumes, foreigners must be tried by the same courts having cognizance in all affairs of Spanish subjects, in accordance with the local law relating to foreigners of the 4th of July, 1870. And at this point I beg to remark that the judge-advocate subordinates the treaty to the local law instead of giving precedence to the treaty as a part of the supreme law of Spain.
Fourth. He also assumes that whatever interpretation and scope may be given to the treaty and the protocol construing it, that the latter from the beginning embraces only resident American citizens. But against this assumption I beg to state that article 7 of the treaty of 1795 imposes no condition of residence either on Spanish subjects in the United States nor American citizens in the dominions of Spain; for, were it so, then the status of Spanish subject and of American citizen would be taken away from thousands of Spaniards and Americans who visit both countries every year either on business or pleasure, as merchants, manufacturers, tradesmen, travelers, and tourists.
Besides, the protocol can not detract any force from the treaty as understood by the President and Senate of the United States, who have sanctioned it; and not being yet revoked it continues in force as the matrix of the protocol. It is clear, therefore, that the protocol must conform to the treaty and not the treaty to the protocol. But even then, the protocol explicitly mentions, in the declaration of Mr. Cushing, all Spaniards residing or being in the United States, and conversely, [Page 723] in the sense of article 7, should embrace all Americans either residing or being in the Spanish dominions.
Fifth. The assumption that foreigners must be inscribed at the provincial governments and at their respective consulates in accordance with article 7 of the local law relating to them can not be maintained, for it would be equivalent to depriving them of their rights of nationality and of the protection of their respective Governments, a doctrine that no Government will admit, not even that of the judge-advocate, to whose opinion on these several points the admiral adheres and approves.
Sixth. It is also erroneously assumed by the judge-advocate that the law of the 17th of April, 1821, is derogated by Spanish laws of subsequent enactment—that is to say, that a treaty as an international contract can be derogated by either party at pleasure by local legislation or decretal action—a most dangerous doctrine indeed for the friendly intercourse and peace of nations.
Seventh. The judge-advocate also contends that the jurisprudence established here under the treaty and protocol since 1877, in such cases as that of Rosell, at Santiago de Cuba, Mayolin, at Santa Clara, Sanguily, Aguirre, Carrillo, and Cepero, at Havana, forms no precedent in these cases of Melton, Laborde, and Gildea—that is, that the naval jurisdiction has a distinct and exceptional authority in cases coming under its jurisdiction to that possessed by the military and civil powers by which those other cases were tried.
In reference to the passage on page 2 of the admiral’s communication to me of the 9th instant, wherein the judge-advocate calls attention in the sense of amplitude, to the term of ten days having been employed in substantiating and trying this case, I have to say: That the time thus gained for the defense was accidental and not intentional, and was owed entirely to the temporary absence of the admiral in command who was then on a cruise at the eastern end of the island, and that had he been present at the time of the bringing of the men to this port, there are reasons to believe that they would have been tried and sentenced within the next twenty-four hours.
I beg also to observe that during the civil war in the United States it was a very common thing for vessels loaded with arms and munitions of war to leave the ports of Habana and Nassau and land their cargoes in the Southern States; but I know of no case in which parties intercepted and arrested by the Federal authorities were ever deprived of the right to name counsel of their own choice and to be sentenced to death by most summary process, as has been done in this case with the men captured on board the American schooner Competitor.
In conclusion, I beg to say that copies are also accompanied of my answer dated the 7th instant, of his reply of the 9th to my said communication; of my communication to the captain-general, dated the 8th, and also that of the 9th, to the admiral, in answer to his of the same date; the admiral’s reply, also a note from the governor-general acknowledging receipt of my communication of the 8th, above referred to. Likewise, copies of correspondence had with the British consul-general relative to William Gildea; Mr. Laborde’s statement signed besides by Melton and Gildea; letter dated the 2d, received on the 7th from Ona Melton; another one of same date from William Gildea, and a third letter signed jointly by the three prisoners under date of the 7th instant.
I am, &c.,
Consul-General.
Habana, May 7, 1896.
Sir: Your official letter and note of the 30th ultimo having been referred in consultation to the judge-advocate of this naval station, this counsellor reports as follows:
“Excellency: Under date of the 30th of April last the consul-general of the United States in this capital addressed your excellency the two preceding communications passed to me for examination and report accompanied with the proceedings of the case. In the first of those communications, starting from the supposition that the schooner Competitor and the persons captured on hoard might he Americans, and not having exact information respecting the charges and accusations justifying their submission to the naval courts of this island, and in accord, as he alleges, with the instructions of his Government, he asks your excellency to have the goodness to inform him as soon as may be possible of the specific charges brought against the said schooner and citizens, with the names of the latter, for the purpose of transmitting them at once to his Government.
“Respecting the first part of this consular petition it is the opinion of the undersigned, in view of the good desires always animating and inspiring your excellency when treating of matters that may in some manner directly or indirectly affect a friendly nation with which the best relations are maintained, that your excellency can at once manifest to the consul-general of the United States that, in effect, this naval jurisdiction is now occupied in trying the case of the capture of a schooner hailing from the port of Key West, whose certificate of inscription and sailing license agree as to her name being that of Competitor, or the same one which, refusing to show any flag, made armed resistance to a vessel of war of our nation and landed a cargo of arms, ammunition, explosives, and other effects belonging to a filibuster expedition, under command of the so-called Colonel Monzon; the same that he conveyed from the coast of Florida to Berracos Cove, where the schooner was discharging when discovered. It is evident that the accusations and charges springing from this fact will be formulated according to regular rules and within the time fixed by our code of criminal procedure, it being, therefore, impossible to anticipate the specification desired by the consul. But if agreeable to your excellency he could be assured that at the proper time he will be informed of all the details he desires to know of the case.
“With respect to the list of the names of the men captured that might be supposed to be American citizens, there appears no reason up to the present to suppose there is any other than Olna Milton of that nationality, who declares he is a native of Kansas, 23 years of age, single, newspaper reporter, son of Daniel and Nancy, and resident of Key West. On reaching this point I am pleased to call the attention of your excellency to the contradiction in which the consul appears to incur when, after giving the assurance in the first cited paragraph of his estimable communication to the effect that he had no exact information regarding the case, on continuing he asks that the men who might perhaps appear to be American citizens be tried in strict accord to Article VII of the treaty of the 27th of October, 1795, but of whose names and circumstances he then knew nothing.
“Neither the Article VII invoked by the consul nor the interpretation given it by the protocol signed at Madrid the 12th of January, 1877, apply to this case, because of the following reasons:
- “First. Because foreigners without distinction of nationality are subject to the laws and courts of Spain for crimes committed within Spanish territory, and as such foreigners do not enjoy any special right or privilege, being subject to the same courts that have cognizance of the affairs of Spaniards in conformity of articles 41 to 47 of the law relating to foreigners in the ultramarine provinces of the 4th of July, 1870.
- “Second. Because whatever may be the interpretation and scope that may be given to the treaty and its meaning given by the protocol, this from its beginning declares it only embraces resident American citizens, and these only in the case of not being arrested with arms in hand, circumstances that do not concur in the present case.
“Article VII of the said law relating to foreigners exacts, among other requisites for a foreigner to be considered a resident in the colonies (ultramar), that he must be inscribed in the register which to that effect is kept in the superior civil governments and in the consulates of his nation.
“And lastly, because the law of the 7th of April, 1821, mentioned in the protocol and invoked by the consul in its relation to the procedure that was fixed in the articles 20 to 31 of the said law and in the fourth and fifth declarations of the protocol [Page 725] are totally derogated under the final enactment of the present law governing criminal procedure, by article 750 of the code of military justice and by article 472 of the law of military marine procedure.
“The jurisprudence to which the consul refers in his communication and alleges to be established by the civil and military courts of this island has been limited to the competency of the courts and not the rules, forms, requisites, and solemnities of the methods of procedure observed by them.
“Finally, excellency, you should not receive nor accept in any form the protest addressed to you by the consul of the United States in the name of his Government against the application of most summary proceedings (juicio sumarisimo) to those who in the case might be American citizens because he considers that form of procedure excluded from the protocol and, because in his opinion, it is not the ordinary council of war mentioned in Article III of the protocol.
“This is an error of law in which the consul incurs, the correction of which he will find if, in his recognized ability2he will revise the latest organic law relating to the procedure of marine courts.
“In conclusion I am going to refer to the second communication of the consul-general of the United States, referring to his desire to communicate with the prisoners. The prohibition of outside intercourse to which they were subjected having been removed, your excellency can grant the petition.
“In the above sense it is understood by the undersigned that your excellency can be pleased to reply to the consul-general of the United States should you not esteem it better to decide otherwise. Moreover, I have to say, that the official correspondence that had given rise to this consultation, as also the superior decree your excellency may have given it, should be passed to the judge of instruction en charged with the examination of the case for their attachment to the proceedings. Your excellency will decide.”
And having accepted the preceding report I have the honor to so inform you in reply to your above-cited esteemed communication.
I am, etc.,
The Consul-General of the United States.
Habana, May 7, 1896.
His Excellency the Admiral in Command of this Naval Station and Squadron.
Excellency: I have the honor to reply to your attentive communication of this date, received at this 5 p.m., and to protest at once against the narrow and antagonistic sense with which it considers the treaties and conventions existing between the United States and Spain. And being especially instructed by my Government in the present case, I must insist to the point of obtainment—that the citizens of the United States are to be judged by the courts of this country, in conformity with the treaty, notwithstanding the opinion of the judge-advocate of this naval station, and to which your excellency has officially adhered with transmission of a copy of it to me.
I can never, as the representative of the United States in this island, lend assent to the trial of my countrymen by the exceptional tribunal called by the name of the most summary process (juicio sumarisimo), because such form of trial is contrary to what has been agreed and ratified in the treaty of 1795 and the protocol of 1877 between our respective nations, and its application would constitute a most flagrant violation. Therefore I trust to be able to convince your excellency of the error it which his honor the judge-advocate has incurred on submitting his opinion to your excellency, for the point in dispute is of the clearest nature.
Your excellency, by accepting the opinion of the judge-advocate, affirms that article 7 of the treaty of 1795, as likewise the protocol of 1877, for several stated reasons, do not apply to the present case, and which I will now proceed to refute, interpreting in the following manner, with all fidelity, the intent of my Government, which has been duly communicated to me.
First. It is not absolutely exact with respect to citizens of the United States, the affirmation of your excellency that they, in their character of foreigners, must be subject for crimes of which they are accused within Spanish territory to all the laws and tribunals of Spain, neither that they are not exempt from the tribunals which in certain cases have cognizance in the affairs of Spaniards, notwithstanding the prescriptions of articles 41 and 47 of the said law relating to foreigners, which your excellency mentions. And it is not exact because there are exceptions guaranteed by existing treaties to American citizens. And, indeed, the present case is a typical [Page 726] example of this statement, treating as it does of citizens of the United States accused of acts against the integrity of Spanish territory; for article 7 of the treaty of 1795 provides that the detention or arrest for offenses committed by citizens of the United States within the jurisdiction of Spain shall he “made and prosecuted by order and authority of law only and according to ordinary proceedings in such cases” (segun los tramites ordinarios en tales casos).
But notwithstanding the clearness of the object, doubts arose as to the preciseness of its meaning, and the Governments of the United States and Spain agreed upon an interpretation and reduced it to a formal understanding under what is now known as the protocol of 1877, the third article of which textually says:
“Those who may be taken with arms in hand, and who are therefore comprehended in the exception of the first article, shall be tried by ordinary council of war, in conformity with the second article of the hereinbefore-mentioned law; but even in this case the accused shall enjoy for their defense the guaranties embodied in the aforesaid law of 1821.”
And article 4 confirms article 3 in all its parts. And it will therefore be seen how the opinion, approved by your excellency, of the judge-advocate is mistaken. For Spanish subjects trial by most summary process may be in order under certain circumstances, but never for citizens of the United States. Exceptional tribunals may try the first, but never the second. Neither the laws nor the judges of exceptional councils of war have application within the dominions of Spain to citizens of the United States.
If American citizens are captured in those dominions with arms in hand, they are to be judged solely in accordance with article 3 of the protocol, which in that sense interprets authentically the treaty of 1795, and as that article refers to the second of the law of the 17th of April, 1821, this last article is therefore the one of immediate application. That second article of the law of the 21st of April, 1821, says:
“The accused will be tried militarily in ordinary council of war, as prescribed in the law 8, title 17, book 12, of the last recompilation.”
There exists, therefore, an absolute conformity between the treaty of 1795, the protocol of 1877, and the law of 1821, for they all agree that the citizens of the United States captured with arms in hand in Spanish territory can not ever be tried by most summary process but by ordinary council of war.
My Government cannot, therefore, consent that its citizens be tried under any other form of procedure than that expressed in the treaty, and to which it strictly adheres.
The second manifest error contained in the communication of your excellency is that which approves the part of the opinion of his honor the judge-advocate by which he affirms that the stipulations of the treaty of 1795 and protocol of 1877 embrace only American citizens residents of Spanish territory. But this error disappears at once when it is shown that the treaty does not distinguish between American citizens residing or being in Spanish territory. Article 7 embraces all American citizens without difference of any kind. Again, if there was any doubt on this point it would be dispelled by the protocol of 1877, for it is not to be supposed that in a treaty between two nations the one would put its citizens or subjects in a disadvantageous position with respect to those of the other; to the contrary both themselves on an equal footing. For article 4 of the protocol, on referring to Spanish subjects in the United States, reads as follows:
“The said provisions extend to and comprehend all Spaniards residing or being in the United States.”
Therefore, if the protocol comprehends all Spanish subjects residing or being in the United States, it must equally comprehend all American citizens residing or being in the dominions of Spain; the Spanish equivalent of the English word being is estante, as used in the translation, and signifies in this case the temporary occupation by a person of a place or spot regardless of permanent residence in the sense of domiciliation. These American citizens are in a Spanish dominion, where they are to be subjected to judicial trial, and necessarily this must be done in accordance with the form of procedure solemnly agreed upon in treaties between Spain and the United States. The theory advanced by the judge-advocate, and admitted by your excellency, places these American citizens on an inferior plane of justice to Spanish subjects in the United States, for if the words used in the protocol by the minister of Spain for foreign affairs, Mr. Calderon Collantes, that “the said provisions extend to and comprehend all Spaniards residing or being in the United States,” are limited solely to Spanish subjects, the protocol would then favor one of the contracting parties to the prejudice of the other, and this is impossible to suppose since article 7 of the treaty of 1795, interpreted by the protocol, makes no distinction between those American citizens who reside and those being within the dominion of Spain, but comprehend all alike, and where the law makes no distinction the judicial authorities can not create them.
Third. According to your excellency only such foreigners as are inscribed in the registers determined by the Spanish law relating to foreigners can be considered as [Page 727] entitled to treaty stipulations. My Government does not admit any such interpretation, for, above all, it is the only one competent to qualify its citizens and to recognize or reject them, as every Government with its own, for the law mentioned by your excellency as relating to foreigners is merely a local police regulation of interior application and can not derogate a treaty of Spain with another nation. Otherwise the nationality of foreigners entering the territories of Spain would depend upon its laws relating to foreigners; and to convince your excellency that my Government does not recognize this assumption, I have the honor to copy, in continuation, the following words in which in a like case it instructed me, and to which I must adhere:
“That while it may be expected that citizens of the United States sojourning in a foreign State shall comply with reasonable local requirements of registration, omission to do so can not vitiate their right to protection as citizens of their own Government in case of need. That citizenship is a fact of which the citizen’s country is the authoritative judge under its own laws regarding naturalization and nationality; and that its certification of that fact by passport imparts a verity which the foreign Governments are bound prima facie to admit in executing any treaty obligations with regard to such citizens.”
Having acquainted your excellency with this view of my Government, it does not become me to add a word more on this point, leaving the rest to the consideration of your excellency.
Fourth. The communication of your excellency which I have the honor to answer maintains, besides, another point which in the name of my Government I must absolutely reject, and which point is expressed in the said communication under exaggerated proportions, and is that the law of the 17th of April, 1821, which fixes the form of procedure, and that the fourth and fifth articles of the protocol are now totally abrogated by the Spanish law regulating criminal procedure, by the code of military justice and that of naval procedure, to which your excellency adds that the jurisprudence established by the civil and military courts of this island in similar cases since 1877 is limited solely to questions of competency between those courts, without respect to the rules, requisites, and solemnities of procedure.
The first thing that contradicts these observations of your excellency is the protocol itself, which in its preamble says:
“The respective parties, mutually desiring to terminate amicably all controversy as to the effect of existing treaties in certain matters of judicial procedure, etc.”
It is patent, therefore, that the purpose of the protocol is to interpret and fix the form of procedure, as also to determine the jurisdiction of the courts. And it is not abrogated, neither is the law of April, 1821, in its application to the treaty relations between the United States and Spain, for it is a principal of international law which from universal consent has acquired axiomatic force, that treaties subsist so long as they are not denounced and revoked by the contracting parties, and if one of them violates them the other has the right to exact their strict fulfillment.
Therefore, the treaty of 1795 interpreted in its doubts by the protocol of 1877, is in force and constitutes the international law voluntarily agreed upon by the United States and Spain. Both nations recognize and invoke it as the supreme law that obligates them unto each other in the regulation of their intercourse and in the settlement of their differences. For that treaty and its protocol agree upon the only form of procedure to be applied in the trial of American citizens either being or residing in the dominions of Spain, and the form incorporated in the protocol is the same as that above cited, of April, 1821, and provides that such citizens as are captured with arms in hand are to be tried by ordinary council of war.
The treaty still existing, the protocol must naturally be contained in it. Therefore, as a logical consequence, your excellency must admit that neither article 7 of the treaty, the protocol, nor the law of 1821 are abrogated, but subsist and must last so long as the treaty is not abolished by the consent of both contracting parties.
The local special laws cited by your excellency only refer to Spanish subjects within Spanish territory, and can not be applied under the treaty to American citizens. To that end the consent of the Government of the United States would be necessary, and, without previous denunciation and revocation of the treaty, it continues in force, and local laws passed since its date by either Government can only affect the citizens or subjects of such Government and not those of the other, since a treaty forms a part of the supreme law of every country. These, without the common assent of the contracting parties, prevail at all times without in any manner being affected by the laws made by any one of the contracting parties without the knowledge of the other or others.
The treaty subject of this note is an international law, and those cited by your excellency are solely national or local; that is, exclusively obligatory on Spanish subjects, but in no way applicable to foreigners when opposed to the treaties existing between their Governments and Spain.
Fifth. Hence the form of trial called most summary process (juicio sumarisimo) [Page 728] which your excellency has decided to apply to these American citizens completely violates the treaty in force between the United States and Spain, for it provides for a form diametrically opposed.
Sixth. And with respect to the rejection by your excellency of the protest I have presented you in the name of my Government against the violation of the treaty, it suffices for me to say that notwithstanding its rejection and the adherence of your excellency to the contrary opinion of the judge-advocate, still this can not deprive it of its legal effects, since I have presented it in due season.
Seventh. And, finally, as in support of the most summary process, which, as your excellency informs me, is to be applied to the trial of these American citizens, you cite certain laws that are of merely national or local enactment, I have, in consequence, to again remind your excellency that the casein question is governed by the treaty, and, therefore, not by the local law of Spain, which should conform to the treaty as a part of the supreme law of Spain. Consequently, the trial of these American citizens under the form of most summary process is a violation of article 7 of the treaty of 1795 between the United States and Spain.
Therefore, and in the name of my Government, I have to ratify my previous protest presented to your excellency against the form of trial to which those American citizens have been subjected, and hereby solemnly renew it, protesting against this form of trial as a manifest violation of the said treaty between the United States and Spain.
I avail myself of this occasion to reiterate to your exellency the assurances of my most distinguished consideration.
Consul-General.
Habana, May 9, 1896.
Sir: Your esteemed communication of the 7th instant, in which yon answer mine of the same date, having been received, I have now the honor to inform you that having referred it in consultation to the judge-advocate of this, naval station, he reports upon it as follows:
“Excellency: In obedience to your above superior decree, the undersigned has studied with the greatest care the esteemed communication addressed you by the consul-general of the United States of America in this capital, on the margin of which your decree is placed.
“The latest communication of the consul is a petition against the answer given him by your excellency to his remonstrance of the 30th of April last. The consul has strengthened his first arguments with the skillful resource of better diction and without mention of legal provision. I comply, on my part, by duplicating the reasons and arguments of my previous report, which, with the greatest respect, are now reproduced. If the present case, as the consul-general of the United States affirms, is typical of Article VII of the treaty of 1795, it is not possible, without incurring in a grave misconception of fact and of law, to maintain that the American citizen, Ona Melton, who is the only one that could in any manner profit by the efforts of the consul, has not been prosecuted by order and authority of law only, and according to the regular course of proceeding. Such is the estimation given to the proceeding had within the unquestionable competency of the marine courts in a case in which no precept of law of procedure of this Department has been omitted, and in the substantiation of which a period of ten days has been employed, notwithstanding the method of most summary process (juicio sumarisimo) has been utilized, which is not the exception tribunal capriciously believed, and to which the consular communication now the object of my attention alludes.
“I repeat, there is a remarkable misconception of law in considering that the form of most summary process excludes the ordinary council of war and is opposed to the employment of the most ample and efficient means of defense by the parties accused, the sole object of the most summary process being to gain time (conseguir la mayor brevidad) in the different stages of procedure, simplifying some labors or proceedings of little importance. On a former occasion, when treating of the same case, I was enabled to convince your excellency that charges for certain kinds of crimes are triable by the ordinary most summary process, whose proceedings are equally applicable to natives and foreigners, and, of course, to citizens of the United States, as much in those cases coming under the military, naval, or civil jurisdictions. It is therefore beyond all doubt Melton and his companions have been tried in the ordinary way in such cases as come under the cognizance of the most summary process.
“It is not necessary to insist on the point of residence or stay as determinative of [Page 729] the competency, which neither the accused, the consul, nor directly the Government of the United States has discussed, because not being the only cause of it.
“To the argument, presented on that point, it suffices to say that the declarations of the protocol of 1877 were in no manner reciprocal, but, to the contrary, each one of the signers made his own separately and upon distinct subjects as could not less than incur in view of the nature of the matters treated about and the special legislation of the respective countries. The protocol of the 12th of January, 1877, is not a treaty negotiated between two nations, nor even an addition nor complement of any preexisting treaty. It is only and exclusively what its preamble says: the result of a conference held with the desire to terminate amicably all controversy as to the effect of existing treaties in certain matters of judicial procedure, and communicated for its observance by a royal order. Therefore, the citation of international law about the revocation and denunciation of treaties is needless. Consequently, there being no violation in any shape or manner of the treaty solemnly agreed upon between Spain and the United States of the 27th of October of 1795, it is plain that within the terms of the most exquisite courtesy it is impossible for your excellency to accept any of the protests of the consul of that friendly nation in this city.”
And with the approval of the above report I have the honor to transmit you a copy of the same, and avail myself of the opportunity to reiterate to you the assurances of my most distinguished consideration.
The Consul-General of the United States.
Habana, May 8, 1896.
His Excellency the Governor and Captain-General of the Island of Cuba.
Excellency: Yesterday, at 5 p.m., his excellency the admiral of the naval station has replied to a communication addressed him on the 30th ultimo by this consulate-general in which, by reason of the capture of the American schooner Competitor, with several persons on board, I reminded him of the treaty obligations which absolutely prohibit, without exception in any case, the trial of American citizens within Spanish territory by exceptional military tribunals, such as are here called by the name of most summary process.
I explicitly informed his excellency the admiral that on addressing him I did so in obedience to the orders of my Government, which exacts the strict fulfillment of its treaties with Spain; and at the end of seven days and at 5 o’clock in the afternoon of yesterday I received his answer, denying my affirmation and maintaining that the provisions of the treaty of 1795 between the United States and Spain have been abrogated by national or local laws subsequently enacted to the date of that treaty by the Government of Spain.
And I am just informed by the morning newspapers that the trial is to take place this same morning at 8 o’clock under the form of procedure known here as the most summary process, or fifteen hours after the receipt of the admiral’s communication in reply to the one which, in the name of my Government, I personally delivered to the second in command on the 30th ultimo.
But, excellency, notwithstanding his excellency the admiral denies it, still the fact exists that the only criminal procedure under which citizens of the United States can be tried in the dominions of Spain is that designated in the treaty of 1795 and the protocol of 1877 construing it, under conformity to the procedure established by the law of the 17th of April, 1821.
All the existing treaty obligations between the United States and Spain having application to the case in question prohibit absolutely the trial of American citizens within the Spanish dominions under the procedure known as most summary process. The treaty from which these obligations emanate has never been revoked, and therefore still exists.
In the same afternoon (of yesterday) I replied to the erroneous communication of his excellency the admiral, protesting, in the name of my Government, against the trial by the form of most summary process in case it should be carried out, against the existing treaty.
My Government can not consent to any other form of trial for its citizens within the Spanish dominions than those so clearly established in the treaty of 1795. They may by force be tried by the most summary process; but, then on my part, I must decline all the responsibility that may in consequence accrue from such flagrant violation of the treaty. My last communication to his excellency the admiral refutes and destroys all the errors in which his is inspired.
[Page 730]But as the persons accused, Ona Melton, Alfred Laborde are, as they inform me, American citizens, Laborde a native of New Orleans, Melton of Kansas; and Gildea, though of British nativity, the mate of an American vessel; and as article 5 of the protocol textually says “the sentence pronounced shall be referred to the audiencia of the judicial district, or to the captain-general, according as the trial may have taken place before the ordinary judge or before the council of war,” I have therefore, within the instructions of my Government, yet in time, to address myself to your excellency, as you have to pass on the sentence of this most summary process, to see that justice is done to these American citizens, and to annul the whole proceedings because having been practiced throughout in manner contrary to the treaty between the United States and Spain.
Your excellency being the superior representative in this island of the Government of His Majesty, and my legal and just demand having been rejected by the admiral, and as the sentence in the case, whatever it may be, has in last instance to be submitted to the approval or disapproval of your excellency, I have therefore to beg your excellency to order the delivery to you of my communication of the 30th ultimo and 7th instant, addressed to his excellency the admiral with the view that your excellency may personally examine the reasons and arguments therein stated.
Should your excellency refuse to accede to my petition addressed to you in the preceding paragraph, in the name of my Government, I then most solemnly protest in its name before your excellency against the violation of the treaty on the part of the Government of Spain, which your excellency so worthily represents in this island, giving account of the act to my Government and of my remonstrance and protests presented to the naval authorities and to the superior authority of your excellency, before which in last instance the sentence must come, from a court incompetent under the treaty to take judicial cognizance in the affairs of American citizens in this island.
I have the honor to subscribe myself, with the greatest respect and consideration, your excellency’s most obedient servant,
Consul-General.
Habana, May 9, 1896.
His Excellency, the Admiral of this Naval Station and Squadron.
Excellency: In reply to your attentive communication of this date I have to say:
- First. That the officers and crew of an American vessel enjoy, under the laws of any country, regardless of their nativity, the protection due to American citizens, and Laborde and Gildea, having assured me that they are master and mate, respectively, of the American schooner Competitor, it is therefore clear that they are embraced in the clauses of the treaties between the United States and Spain, and as to Melton, he being a native-born American, there can not be any doubt about his status and rights.
- Second. The accused have been deprived of their right to name advocate and solicitor of their own choice for their defense and to freely communicate with them; neither have they been furnished with a copy of the accusation and with a list of the witnesses of the prosecution, or allowed to examine them in the presence of themselves and attorney and advocate, nor to summon witnesses in their favor; in a word, none of the provisions of article 4 of the protocol have been practiced in their behalf, and instead of a professional lawyer of their own choice a naval officer, as I understand, has been designated for their defense.
- Third. The protocol of 1877 not only confirms the treaty of 1795, but is its most authentic interpretation.
- Fourth. The difference between the form of procedure known as most summary process and the stipulated ordinary council of war, constitutes an exceptional tribunal of the kind expressly excluded by the protocol, the ordinary council of war admitted in the protocol being that which is defined in article 2 of the law of the 17th of April, 1821.
- Fifth. The statement that the signers of the protocol only expressed their private opinions therein is not correct; to the contrary, they together, and in common, and in the representation of the two countries, agreed upon that plan for the removal of all doubts and obscurities that had until then existed as to the methods of judicial procedure to be observed in the prosecution of American citizens within the dominions of Spain.
Consequently I ratify my previous protests, and, in the name of my Government, decline in your excellency and in his excellency the captain-general of this island, [Page 731] all the responsibility that may supervene from the trial of these men by most summary process and denial of their right to be tried in the manner expressed by the treaty of the 27th of October, 1795, and the protocol construing it of the 12th of January, 1877, between the United States and Spain.
I am, etc.,
Consul-General.
Habana, 9 May, 1896.
Dear Sir: Having received your attentive communication of this date insisting on the points treated in your two previous ones and ratifying your protests, I have the honor to inform you that I passed it in consultation to the judge-advocate of this station, and he has reported thereon in the following terms:
“Information having been given to the Government of His Majesty in everything concerning the proceedings had by reason of the capture of the schooner Competitor, and being subject to its decision, it is not possible for your excellency to take any resolution in this affair, or to accept protests from the consul-general of the United States of America in this capital, nor enter in new disquisitions about a question already so much debated, and consequently it is my opinion that your excellency should be pleased to reply in this sense to the said consular functionary, leaving his action open for the fulfillment of the instructions of his Goverment in the manner and way he may esteem most convenient.”
With my approval of the above report, I have the honor to send it to you in reply to your said communication, and to reiterate to you the testimony of my most distinguished consideration.
The Consul-General of the United States.
Office of the Secretary,
Habana, May 9, 1896.
Sir: In reply to your attentive communication of yesterday, protesting in the name of the Government of your nation against the court-martial being held by the commandancy-general of the navy for the trial of the prisoners of the schooner Competitor, Laborde, Melton, and another, I have the honor to inform you, by order of his excellency the Governor-General, that knowledge of the said protest has been given to the Government of His Majesty.
I am, etc.,
The Consul-General of the United States.
Habana, May 8, 1896.
My Dear Colleague: I have just heard that one of the Competitor’s crew (who are to be tried to-day) is a British subject named Gildea. Now, I am not at all sure that, in a case of this kind, consular interference will be of any avail; but at all events, as I understand the Competitor is an American vessel, it appears to me that you alone are competent to intervene. If, therefore, you find yourself in a position to give any assistance to your own people, might I beg of you to extend the same valuable aid to my poor countryman?
Believe me, dear Mr. Williams, yours, very sincerely,
Ramon O. Williams, Esq.,
United States Consul-General.
Habana, May 8, 1896.
My Dear Colleague: In reply to your note of this morning, I am pleased to inform you that I included William Gildea, a native of Liverpool, England, but the mate of the American schooner Competitor, in my petitions to the captain-general and admiral, that the American prisoners of the Competitor be tried in accordance with article 7 of the treaty between the United States and Spain of 1795, and the protocol of January 12, 1877, construing it.
I am, etc.,
Alex. Gollan, Esq.,
Her Britannic Majesty’s Consul-General,
Habana.
Habana, May 11, 1896.
My Dear Colleague: I have to thank you for your note of the 8th instant. I felt quite sure in writing to you on behalf of my countryman, William Gildea, that I could count upon all the assistance in your power.
It will probably be of interest to you to know what action I myself took in regard to the matter. On Friday, the 8th instant, as soon as I heard that the public prosecutor had demanded that the extreme penalty of death should be applied to the prisoners, and was likely to be enforced forthwith, I addressed official communications both to the Governor-General and admiral requesting that if this was the decision arrived at, its execution should be suspended until I had the opportunity of communicating the facts by telegraph to Her Britannic Majesty’s secretary of state for foreign affairs. On the following morning, on the 9th, the admiral sent me a courteous reply stating that it was true the “consejo” had agreed to a death sentence, but that in deference to my wishes he had telegraphed to his Government at Madrid. Last night I received a further communication from the admiral in which he states:
“El Gobierno de S. M. la Reina Regente (q. D. g.) ha dispuesto suspender los efectos del consejo de guerra celebrado en el arsenal con motivo del apresamiento de la goleta filibustera Competitor y la remision de la causa al consejo supremo.”
Believe me, etc.,
Ramon O. Williams, Esq.
Habana, May 11, 1896.
My Dear Colleague: I have to acknowledge the receipt of your note of to-day, with many thanks for the interesting information therein conveyed.
Sincerely, yours,
Alex. Gollan, Esq.,
Her Britannic Majesty’s Consul-General,
Habana.
Habana, May 11, 1896.
My Dear Colleague: In a telegram which I received last evening from our foreign office regarding Gildea, I am informed that the newspapers had reported the man to have become a naturalized American citizen. Will you kindly inform me if such is the case?
Yours, etc.,
Ramon O. Williams, Esq.,
United States Consul-General.
Habana, May 12, 1896.
My Dear Colleague: In reply to your note of the 11th instant, just received, I have to state that I have no information whatever as to the report that William Gildea is a naturalized citizen of the United States. He told me at the prison that he was an Englishman and a native of Liverpool. He did not claim American citizenship, hut as one of the crew (he had engaged as mate) of the American schooner Competitor it became my consular duty to defend him under paragraph 171 of Consular Regulations, based on statutes, which states:
“That the circumstance that the vessel is American is evidence that the crew on board are such, and that in every regularly documented vessel the crew will find their protection in the flag that covers them.”
And as the Competitor was such a regularly documented vessel, Gildea was entitled to the protection of the United States Government, regardless of whatever rights he may have as a native-born British subject.
I am, etc.,
Alex. Gollan, Esq.,
Her Britannic Majesty’s Consul-General,
Habana.
My name is Alfredo Laborde; I am 38 years of age; I am a native of New Orleans, La.; I was the captain or master of the American schooner Competitor, belonging to Mr. Joseph Well, of Key West. This vessel had a license, a wrecking license, and I cleared her at the Key West custom-house, with four others besides myself as crew; five all told. I took on board twenty-four men as passengers for Lemon City, Fla., at $2 each, and sailed from Key West at 2 o’clock in the morning. When in the neighborhood of Cape Sable, on the 22d ultimo, the passengers took charge of the ship, seized her, and six of them came into my cabin to make me surrender the ship. One of them, named Taboada, held a pistol to my breast and I gave up the command. They then took the schooner to Cape Sable and here took on board twenty-three men with arms and munitions. They then informed me that from Cape Sable to Rebecca Light they expected to meet a steamer with more men and arms for Cuba, but when we arrived off Rebecca Light I told them that the schooner could not go into the Gulf on account of her bad condition, but Taboada, who acted as pilot, told me to shut up, and overpowered my objections.
We reached Cuba, near Berracos, San Cayetano, on Saturday, the 25th April, and immediately landed. They forced me to go in the first boat with one of the crew and 19 men; all landed and escaped. I went back on board with the boat and another lot landed. We were sighted by a Spanish tug or steam launch. I ordered the American flag to be set, but the mate, Mr. William Gildea, who tried to set it, found the halliards foul, and as he was shot at twice he threw it down. I held the flag against the rigging so that it should be seen, Not a shot was fired from the schooner, for we had no arms; the passengers had arms and, we understood, also dynamite. We made no efforts to escape with the passengers, because we had been forced, and therefore we determined to stay by the ship; then we were seized or captured by the Spanish launch.
They put me into what is called a Spanish windlass, by tying my writs together and then drawing the rope tight by a stick thrust through, which caused me great torture and made my wrists swell.
I know nothing of a proclamation signed Laborde; there was another Laborde among the passengers, taller than I and about 32 years old, who spoke French well. All our papers, letters, etc., were taken away by our captors and we have none to show.
Alfredo Laborde.
We have heard the foregoing statement read, and do also subscribe and depose to the same, Ona Melton declaring further that as a newspaper correspondent he ought not to be considered as part of the crew.
Witness:
Subscribed and sworn to before me at the arsenal, Habana, at 7.30 a.m. this 8th May, 1896.
Witness my hand and official seal.
May 2, 1896. (Received May 7.)
Dear Sir: I wish to know if you are aware that three American citizens have been imprisoned here for some time. If so, please inform me immediately.
Relying on your wisdom and integrity, as well as the high esteem with which you are held in the United States, I await your advice.
Most respectfully,
Mr. Williams.
Sir: I belong to the schooner Competitor, captured last Saturday by the man-of-war launch Mensagera, and I am accused of landing men and arms in Berracos opening. I would request you to see if anything could be done to help me out of the fix we are in. I can’t say more, but would explain fully if I could see you.
Yours, etc.,
The United States Consul, Habana.
Dear Sir: We, the undersigned, the captain and the mate of the schooner Competitor, of Key West, and a correspondent of the Times-Union, of Jacksonville, Fla., citizens of the United States, who have been imprisoned here for some time, as you are probably aware, are to be tried at some hour to-morrow before the “Conse jo de guerra.”
Being informed this evening that we might write to you, we approve of the opportunity to respectfully urge that you attend our court-martial in person, or, if it is not possible, that you exert your best efforts in our behalf to the end that we may receive justice.
Respectfully, yours,
- Captain Alfredo Laborde.
- William Gildea.
- Ona Melton.
Consul of the United States.