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, March 10, 1896. (Received March 14.)
Sir: I have the honor to submit a translation and copy of a letter addressed to me on the 6th instant by Mr. Miguel Francisco Viondi, advocate, memorial, and other documents pertaining to the cause of Mr. Julio Sanguily, which I forward herewith to the Department, in compliance with the desire of this gentleman.
Respecting that part of Mr. Viondi’s letter telling me that Mr. Sanguily also encharges him to ask me to inform the Department as to the certainty of the facts related by him—that is, regarding (1) the law of 1821 in its application to his cause and (2) of its inobservance in the procedure under which he has been tried by the courts of Habana—I have to say that this office being purely consular or commercial, and not judicial, it seems as out of place for it to analyze the proceedings of those courts, and the more especially since the Department has its own law officer in the person of its Solicitor, with the right, furthermore, to consult the Department of Justice, and to each of whom the facts of the case can be referred should the honorable Secretary of State or his assistant so desire it.
I am, etc.,
Consul-General.
Mr. Viondi to Mr. Williams.
Dear Sir: My client, Mr. Julio Sanguily, has sent me to-day the accompanying protest, memorial, and documents for delivery to you, with the request that you have the goodness to forward them to the Department of State.
He encharges me also to ask you to inform the said Department as to the certainty [Page 830] of the facts related—that is, first, in regard to the law of 1821, and, second, of the fact of that law not having been observed in his trial, as agreed between the United States and Spain under the protocol of 1877, but that instead he has been judged according to the law of oral trial of the year 1889.
As the advocate of Mr. Sanguilly, I assure you that the protocol has not been complied with in his trial, since he has not been tried in accordance with the law of 1821.
Mr. Sanguilly recommends me especially to say to you that, in his opinion, the fact of this violation constitutes the real reason for which the superior court of Habana founded its refusal to furnish you with a copy of the record of his trial.
With expressions of the most distinguished consideration, etc.
Mr. Sanguily to Mr. Williams.
Sir: I, Julio Sanguily, imprisoned in the Cabana Fortress for the supposed offenses of rebellion and kidnaping, appear before you to protest of the unjust imprisonment suffered and the concluded violation, victim in both charges.
In the first I have been sentenced by only five judges. Have been indicted and put in prison by virtue of a warrant founded in the circumstantial evidence of the process originated before the military jurisdiction.
Besides, I have been subjected to a new trial by the civil authority, which is not in accordance of the protocol of 1877.
According to that protocol the law of procedure that has to be applied to the citizens of the United States is the one of April 17, 1821.
That law directs from articles 19 to 23 an especial procedure, by virtue of which every act of the process must be with the consent of the defendant’s counsel. Article 23 says that the witnesses must testify in the presence of the defendant and his counsel.
Article 24 says the presiding judge must pronounce sentence.
Article 25 says that after sentence has been pronounced the case must be carried to the (audiencia) and the parties to be heard there again (article 28) pronouncing definite sentence within the third day by six judges.
Laying aside the warrant of process and imprisonment founded in the facts of the case originated before the military jurisdiction, the undersigned could never have been tried by oral process, because the protocol of 1877 objects to it, and says that the citizens of the United States can not be tried only by the law of April 17, 1821, with entire publicity regarding the witnesses, who have to testify in the presence of the defendant’s counsel, who can make any remarks he may deem necessary, first pronouncing sentence by the judge, and then with new proof by the audiencia, and that composed of six judges (article 27).
The exponent has had only one sentence, by virtue of a law that is not applied, and that sentence has been pronounced by the audiencia, composed of five judges, sentencing to perpetual chain.
Article 2 of the protocol has reference to the law of April 17, 1821, and also articles 4 and 5, all in reference to the citizens of the United States.
Such is the law in force regarding citizens of the United States. And the general consulate objected against military jurisdiction, the one subjected by the exponent. The Captain-General acceded to the demand of the general consulate by merits directed in article 1 of said protocol.
Though another Spanish law may have been promulgated following that of 1821, it is not possible to lay aside without the accord and consent of the United States of the one particularly determined in the protocol, i. e., the citizens of the United States must be tried by the law of April 17, 1821, more advantageous than by secret process, by which the Spanish subjects are subjected to.
The law of 1821 also demands proofs in order to convict, and the Spanish law in force, or say that one of the oral process, authorizes the laying aside of the proofs and the conviction or discharge, only in conscience of the judges. And the conscience of the judges of the Spanish tribunal toward the undersigned is not a guaranty sufficiently impartial, taking into consideration the political offense and the important part taken by the undersigned in the last war.
In the case of kidnaping, as in the previous one, the protocol and law of April 17, 1821, is not applied and is substituted by the oral process.
The exponent has not consented to the law that has been applied—
In the first place, because the treaty has a public character and can not be renounced individually; in the second place, because it designates an obligation of the Spanish Government which has to be fulfilled; in the third place, because, as it appears in this case, did not know the existence of a law that favored me so much, an ignorance [Page 831] that can not be imputable to the Spanish authorities, necessarily cognizant of the treaty, which did not wish to apply in prejudice to a citizen of the United States; in the fourth place, because the Spanish criminal law, in article 8, declares that the criminal jurisdiction can never be prorogued.
Then it can not be said that the undersigned has been submitted to a criminal jurisdiction, which does not belong to him, proroguing to that jurisdiction his own.
The undersigned does solemnly swear, in the name of the Almighty God, that, until now, did not know the existence of the law of 1821, and being imprisoned since February 24, 1895, and sentenced in one of the cases, by virtue of a law to which is not submitted, but excluded by the protocol of 1877, appears before his consul with the present protest, against the arbitrary and violation of the law of which is a victim, that through the representative of his nation may be elevated to the United States Government, so that it may obtain the immediate liberty of one who is suffering imprisonment illegally and has already been sentenced unjustly, and besides that I demand from the Spanish Government an indemnity in the sum of $500,000, damages caused by the said Government in depriving me of my liberty arbitrarily decreeted and against the solemn law of treaties.
At the date of this protest and claims of damages the undersigned has already suffered one year and eleven days of illegal imprisonment in a fortress.
So the United States Government can not consent that, contrary to the expressed laws, a citizen of his nation be deprived in such a manner of his own liberty by a foreign Government.
Memoir presented to the United States Government by Julio Sanguily, a citizen of same, demanding his liberty and indemnity of the Spanish Government for reason of the unjust imprisonment of which he is the victim.
The treaties and protocols in force between the United States of America and Spain relating to its citizens and subjects are laws.
The first treaty in the chronological order is that of 1795. That treaty was ratified in 1819 for another one, with exception of articles 2, 3, 4, and 21 and the second clause of the twenty-second.
The seventh clause of the treaty of 1795 remained, therefore, in force. Said clause says: “That the citizens of the United States shall be granted free access to all judicial procedures and to be present at all hearings and examinations relating to same.”
As that clause was not sufficiently clear, several conferences were had between the minister plenipotentiary of the United States at Madrid and the minister of state of His Majesty the King of Spain, agreeing definitely in 1877 to sign on the 12th of January of said year the protocol, which, according to its preamble, has for its object the following: “To terminate amicably all controversy as to the effect of existing treaties in certain matters of judicial procedure and to make declaration on both sides as to the understanding of the two Governments in the premises and respecting the true application of said treaties.”
That protocol has been signed by the Hon. Caleb Cushing, for the United States, and by His Excellency Señor Dn. Fernando Calderon y Collantes, minister of state of the Spanish Government. The president of the cabinet, His Excellency Señor Dn. Antonio Canovas del Castillo, confirming same and communicating it to the Governor and Captain-General of Cuba through a royal order.
Said protocol ends with the following words: “In order to give the Government of the United States the completed security and good faith of His Majesty’s Government in the premises, command will be given by royal order for the strict observance of the terms of the present protocol in all the dominions of Spain, and specially in the Island of Cuba.”
The exponent was indicted by military jurisdiction in two cases—one for the rebellion and the other for kidnaping. The consul-general of the United States demanded immediately of the Spanish authorities, and referring to article 1 of the protocol of January 12, 1877. The Spanish authorities, recognizing the justice of that demand, consented that the case would pass to the civil jurisdiction.
This action of the Spanish Government in the Island of Cuba proves that they recognize the protocol, because the first of its clauses was fulfilled. But the Spanish Government has not recognized all the other clauses of the protocol, having violated them, and the exponent goes to prove it.
All the protocol is united to the law of April 17, 1821. That law has never been applied to Spanish subjects in the Island of Cuba. It is an especial law of Spain, and if it was published in Cuba in El Diario del Gobierno Constitucional de la [Page 832] Habana, dated July 10, 1821, was a new reference; and so it is that article 37 of same declares that the dispositions of that law as understood are limited to provinces of Spain and adjacent islands.
The mentioned law of April 17, 1821, was never a law in Cuba for the Spanish subjects. But the Spanish minister by common consent with, that of the United States having selected it exceptionally, to proceed and resolve only when concerning to citizens of the United States.
In accordance with the treaties, the citizens of the United States condemned by the Spanish authorities in criminal cases must be subjected to the especial law exclusive of any other law.
Examining now the protocol of 1877, said protocol having been fulfilled by the Spanish Government only in the first clause. Article 2 refers to those who may be arrested or imprisoned by order of the civil authority for the effects of the law of April 17, 1821.
Article 3 refers to those who may be taken with arms in hand, mentions as law for the citizens of the United States, adding: “In conformity with the provisions of articles 20 to 31 of the same law.”
Those articles from 20 to 31 direct that the trial must be public, the witnesses testify in public in the presence of the accused or counsel; that the counsel or the accused can make observations or examine the witnesses; that after the evidence the counsel may expose to the judge all he may deem convenient to his client, and alter the counsel has been heard the judge may pronounce sentence.
The sentence pronounced by the ordinary judge shall be referred to the audiencia of the judicial district in accordance to article 5 of the protocol, referring again to the law of April 17, 1821, and before the audiencia, according to this law, the citizens of the United States can present new evidence, and his counsel speaking afterwards the audiencia composed of six judges, among them necessarily the president, shall pronounce sentence lastly.
The law of April 17, 1821, which the protocol guarantees, has not been conceded to the exponent and has been condemned by another law, in which the process has been secret, the witnesses have not testified in the presence of the accused or his counsel and has been subjected to oral process, where there is only one sentence, having been pronounced by five judges and not by six as the law of April 17, 1821, requires.
Has already been condemned in one of the cases and the other is being finished in the same manner.
Besides, in the oral process, conviction can be agreed without process at the conscience of the judges, and the law of April 17, 1821, says, “That the crime charged in the indictment must be fully proved.”
The exponent is suffering imprisonment in a military fortress nearly twelvemonths, for reason of a law not included in his case, therefore violating the agreement of the treaty, or protocol.
Moreover the imprisonment is founded in the facts and antecedents instituted in the case by the military jurisdiction, where the cases were initiated.
In the protest accompanied with this exposition swore in the name of Almighty God not to know the law of April 17, 1821, a law that protected him so much, and now repeats the same solemn oath. Therefore invokes in the name of justice that the liberty taken from him so arbitrarily be restored immediately.
Besides the damages caused by the privation of his liberty, add the injury caused his honor, charging him with the infamous crime of kidnaping, a charge of which he is entirely innocent; and said charge had been published in the newspapers on several occasions.
The two newspapers inclosed, La Lucha and Diario de la Marina, having the largest circulation in Cuba, published to the injury of the exponent his complicity in the case of kidnaping, instituted against him by the mystery of a secret process.
The imprisonment and the case of kidnaping have been realized, applying to him a law of which he was excepted by virtue of a treaty between the United States and Spain.
How much is the damages value?
The nation that breaks a treaty to imprison conveniently a foreign subject exempted by a law of said treaty and subjects him to an inquisitorial proceeding by which he is dishonored through the infamous and repugnant nature of the crime charged him, such nation is obliged to pay the damages occasioned so arbitrarily.
The exponent estimates the damages caused by privation of his liberty and his honor, the two most valued treasures of the human being, in the sum of $500,000.
It must be taken also into consideration that the exponent, besides suffering imprisonment since February 24 of last year, has been incommunicated during twelve days, thus separated from his family and the world; that cruel and arbitrary incommunication was not even ordered by the civil authority, but by the military jurisdiction, an authority twice unqualified—first, because it was a military authority prohibited [Page 833] by the treaty, and, second, because the incommunication was effected contrary to the law of 1821.
The inclosed copy of protest of the consul-general of the United States, dated April 5, 1895, confirms the above fact.
From the prison he claims justice from the Government of his nation and invokes in the name of said justice and the law of treaties to demand of the Spanish Government his immediate liberty and also the immediate payment of the indemnity lawfully claimed.
In order that the Government of the United States may have full knowledge of the case, inclosed is copy in Spanish of the law of April 17, 1821, also copy in English of the Cushing-Collantes protocol, which refers to the former law.
Confirming the facts mentioned in the protest and memoir, the Spanish tribunal that passed the sentence for rebellion did not consent to send to the United States Government authenticated copy of the process and imprisonment, refusing previously that the consul-general of the United States should examine the case; and that opposition of the Spanish authorities was because they did not wish that the United States Government should be aware of how the treaty of 1877 had been violated, not having observed the procedure of the law of April, 1821, notwithstanding the cases against the accused had been transferred to the ordinary tribunal, that in the procedure the rules of the treaty should be observed.
And it can not be any other reason founded by the refusal of the judicial authorities that the United States Government should see the cases mentioned.
There can not be any ignorance alleged on the part of the Spanish tribunal.
No tribunal ignores the laws of its country; therefore everything has been the work of bad faith.