I have therefore to-day presented a formal protest to his excellency the
Governor-General in a communication in which I have set forth the views
of the Department expressed in said telegram, and protested in the name
of the Government of the United States, reserving all its rights and
those of its citizens in the premises.
To aid the dispatch of business, I accompanied my communication to the
Governor-General with a translation thereof into Spanish, and also
transmit a copy of the same to the Department.
[Inclosure in No. 2507.]
Mr. Springer to
the Governor-General of
Cuba.
U.
S. Consulate-General,
Habana, May 25,
1895.
Excellency: With further reference to the
cases of the American citizens, Julio Sanguily and Jose Maria
Timoteo Aguirre, and your excellency’s communications of the 29th
April and 4th May, in reply to the communications which this office
had the honor to address to your excellency on the 24th and 25th
April, respecting the delay in the delivery of said American
citizens to the civil jurisdiction for trial, and in protest of the
proceedings hitherto practiced or that might thereafter he practiced
in the procedure against them under military jurisdiction, I have
now, in obedience to instructions of my Government, to lay before
your excellency the following:
Upon learning of the arrest of the said American citizens, Sanguily
and Aguirre, on the 24th of February last, by the military
authorities of this island, this office immediately informed your
excellency that the said parties were citizens of the United States,
and asked that your excellency he pleased to order the strict
observance of the treaty stipulations between the United States and
Spain in the trial of said citizens for the alleged offenses for
which they were arrested.
Subsequent correspondence upon the subject of their citizenship
conclusively proved that each had fully complied with the
requirements of the “law relating to foreigners,” of July 4, 1870,
and local police regulations, in respect to their inscription and
recognition as such citizens of the United States, and their
acquired domicile in this country. Therefore His Excellency
Governor-General Calleja, under date of the 16th of March, decreed
the inhibition of the military jurisdiction in the case of Sanguily
and ordered its transfer to a court of the civil jurisdiction; and
your excellency, on the 29th of April, decreed to the same effect in
the case of Aguirre.
But, from the opinions of your auditor de guerra (war solicitor), it
appears that both citizens have been held ever since by the military
jurisdiction at the disposition of the special judge who has
cognizance of the cause instituted in investigation of the alleged
offenses for which they were arrested, and have been within the
[Page 767]
period of preliminary
proceedings or “sumario,” and, therefore the cognizance of a
court-martial as yet is disclaimed, and, treating only of
investigation and procuring of evidence for the trial, there is
declared to be an essential difference in being indicted
(procesado), and the actual trial by court-martial.
In the case of Sanguily, he was again subjected to military
jurisdiction on another charge, but kept in solitary confinement
(incomunicado) some twelve days and deprived of all intercourse with
his counsel whom he had engaged for his defense, and with his family
and friends.
In your excellency’s communication of the 4th of May, while stating
that you had inhibited the military jurisdiction in favor of the
civil jurisdiction for the trial of said citizens, your excellency
also declared that you had ordered the special judge of instruction
in the cause against Sanguily and sundry others for conspiracy for
rebellion to extract copies of certain parts of the same affecting
Sanguily and Aguirre, to be transmitted shortly to the ordinary
jurisdiction by which they should be tried for the crimes imputed to
them.
But in the cases of these American citizens, the Government of the
United States declines to recognize the validity of the military
jurisdiction in the preliminary stage as well as in the procedure
and trial. The treaty celebrated between the United States and Spain
of the 27th October, 1795, in its seventh article, excludes the
exercise of military jurisdiction altogether, and requires “in all
cases of seizure, detention, or arrest for debts contracted or
offenses committed, by any citizen or subject of the one party
within the jurisdiction of the other, the same shall be made and
prosecuted by order and authority of law only, and according to the
regular course of proceedings usual in such cases.”
The protocol of January 12, 1877, recognizes, declares, and explains
this treaty right. The military arm has no judicial cognizance over
citizens of the United States at any stage, and even the arrest when
made by military power is by a conventional figment deemed to have
been a civil act. But by no fiction can the proceedings of a
military judge instructor be deemed the act of an ordinary court of
first instance, and the assumption of such cognizance in the case of
Aguirre, and the rearrest of Sanguily after inhibition of the
military jurisdiction and the submission of his case to a civil
court, apparently for the mere purpose of asserting military
jurisdiction in summary proceedings, were an exercise of functions
against which I am instructed by my Government to enter its most
formal protest, as I now do, reserving all the rights of the
Government and its citizens in the premises.
I have etc.,
Joseph A. Springer,
Vice-Consul-General.
