Mr. Hay to Mr. Storer.

No. 244.]

Sir: I have to acknowledge the receipt of your No. 280, of the 22d ultimo, and to confirm your telegrams of November 3 and 5, and that [Page 894] of the Department of November 6, all in relation to protection to citizens of Cuba, Porto Rico, and the Philippine Islands.

The limit within which you may act is defined in the last paragraph of the Department’s circular instruction of May 2, 1899, herewith enclosed.

I am, etc.,

John Hay.

Protection to native inhabitants of Cuba and Porto Rico in foreign countries.

To the Diplomatic and Consular Officers of the United States.

Gentlemen: In view of the frequency of requests by diplomatic and consular officers for instructions as to the treatment of native Cubans and Porto Ricans temporarily sojourning in foreign countries who may apply to the missions or consulates for passports or registration as citizens of the United States, or for other protection, by reason of the results of the recent war between the United States and Spain, it is deemed proper to send you appropriate instructions so far as they can be generally framed to meet the cases arising.

The treaty of peace between the United States and Spain, signed at Paris December 10, 1898, the ratifications of which were exchanged on the 11th ultimo, provides (article 9) that “the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.” The treaty is silent as to the status of the native inhabitants of the territories relinquished and evacuated by Spain. The occupation of the island of Cuba as a relinquished territory is temporarily under the administration of the military authorities of the United States. While the native inhabitants of Cuba have effectively ceased to be the subjects of Spain, they have not acquired a distinct status, either independent or dependent upon the United States as the custodian of the territory.

They are not citizens of the United States, nor can any scheme of provisional registration be adopted with a view to such a contingency. They may, however, during the interregnum, when temporarily sojourning in a foreign country, be protected through the exercise of good offices by the representatives of the United States in case of need upon due establishment of their nativity and of their merely temporary absence from Cuba and intention to return to and permanently reside in that island.

As to the status of the native inhabitants of Porto Pico and the islands adjacent thereto which have been ceded to the United States, the Congress has not yet legislated with regard to their civil and political rights, so that even as respects the native inhabitants residing in that island there is no present formality or procedure provided for the attestation of their citizenship; but in the interim every bona fide citizen of the ceded islands is entitled to the protection of the United States as against every foreign government.

The treaty is silent as to the status of natives of the ceded islands who are not actually inhabitants thereof—that is, dwellers within the ceded territory. It can not be presumed that native inhabitants of Porto Rico temporarily sojourning for a brief time in another country thereby abandon their status as such inhabitants, and it is proper that the civil and political rights which they may have by virtue of the treaty should be guarded, and that they should be represented by the diplomatic and consular agencies of the United States in matters involving relation with the power in whose territory they may be temporarily sojourning.

Under these circumstances the diplomatic and consular officers of the United States in foreign countries are authorized to register in their legations and consulates as such the names of native inhabitants of Cuba or Porto Rico who may be temporarily sojourning within their jurisdiction, and to exercise good offices for the protection of such native Cubans and Porto Ricans as may seek it for some well-established cause.

They will give official protection to native Porto Ricans so registered in all matters where a citizen of the United States similarly situated would be entitled thereto, being careful to have it appear that they are protected as native inhabitants of Porto Rico and not as citizens of the United States.

As to native inhabitants of Cuba so registered, the intervention of diplomatic and consular officers by way of good offices shall be exercised for their protection should they seek it for some well-established cause.

[Page 895]

In registering Cubans and Porto Ricans the diplomatic and consular officers of the United States should be careful to require full establishment by satisfactory evidence that the applicant is in fact a native inhabitant of Cuba or Porto Rico; that he has not lost that quality by naturalization in any other country or by assuming therein obligations inconsistent with his original allegiance; and, in the case of an inhabitant of Porto Rico, or the adjacent ceded islands, that it is his purpose in good faith either to return to his native territory to reside or to come to the United States, with a view in either case to availing himself of the privilege of citizenship which may be hereafter established by act of Congress. Care should be taken to distinguish between the applications of native Cubans and native Porto Ricans. As indicated above, the treaty makes no provision for the future status of the inhabitants of the Spanish territories as to which Spain has relinquished her sovereignty, so far as concerns their acquisition of any other citizenship. The sole proviso (article 9) is that in case “Spanish subjects, natives of the Peninsula,” remain in the relinquished territory, “they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.” Obviously the diplomatic and consular representatives of the United States in foreign countries have no function whatever as respects the taking of such declaration of conservation of Spanish allegiance. All that they can do is to take provisional cognizance of any declaration of a native inhabitant of Cuba that it is his intention to return to Cuba and identify himself with that relinquished territory.

As to Porto Ricans, there is enjoined upon you the importance of clear and satisfactory evidence of the Porto Rican nativity of any applicant for registry and protection. Should an applicant be found to be merely a native of the peninsula residing until recently in Porto Rico, you should be careful to advise him that your instructions do not authorize you to register him in the legation or consulate as a native inhabitant, nor to accept from him any declarations of adoption of the nationality of the ceded territory in which he may have resided. Actual residence within the ceded territory at the time of the cession and during one year thereafter are, under the treaty, required to establish the adoption of the nationality of such ceded territory.

Diplomatic and consular officers will be careful to report to the Department from time to time the names of persons who may have applied for registration as native Cubans, for the purpose of temporary protection, or of native inhabitants of Porto Rico, seeking to establish their relation to that ceded territory for eventual contingencies as above indicated, accompanying such list by a note of the evidence of native status produced by the applicant.

The issuance to such registered person of any certificate or other paper having constructively the effect of a passport is not authorized, but if the applicant possesses documentary evidence of his native status, in either Cuba or Porto Rico, such as a personal certificate of matriculation, commonly called “cédula de vecindad,” or other proof of recent date, the diplomatic or consular officer may indorse upon the same “Noted in the legation” (or consulate, as the case may be) “of the United States at --------,” attaching the signature and date, and affixing the official seal.

I am, gentlemen, your obedient servant,

John Hay.