Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1901

memorandum.

Department of State,
Washington , March 2, 1901 .

With reference to the British embassy’s confidential memorandum of May 31, 1900, the United States Government does not regard existing treaties as embodying rights and immunities of British subjects in Cuba, Cuba’s affairs having been withdrawn from British treaties with Spain and not having been embraced by British treaties with the United States, which antedated intervention.

The rights, immunities, etc., of aliens in Cuba are elaborately prescribed in the alien law of 1870, which the Attorney-General has recently held to be in force in Cuba. (Opinion of April 26 to Secretary of War; copy handed herewith.) That law, of 57 sections, throws open the courts in Cuba to protect such rights. It is applicable to British subjects.

[Inclosure.]

Department of Justice,
Washington, D. C. , April 26, 1900 .

The Secretary of War.

Sir: I have the honor to acknowledge the receipt of the following request for an opinion:

“War Department,
“Washington, April 16, 1900.

“ Sir: I have the honor to present a matter arising in a court of Cuba which seems to involve an interpretation of the treaty of peace with Spain.

“On July 2, 1899, one Ramon Martí y Buguet, a native of Tarragona, Spain, and a Spanish subject, died intestate at Beaz, Santa Clara, Cuba, leaving an estate. The court of Santa Clara, having jurisdiction under Spanish law to administer upon estates of persons dying within its jurisdiction, assumed control of said estate and proceeded to administer thereon, pursuant to Spanish law for the administration of estates of deceased natives of Cuba.

“On the 15th of July, 1899, the Spanish consul at Cienfuegos, having learned of the death of Martí, addressed a letter to the judge at Santa Clara, requesting that his consulate be permitted to administer upon the estate of the deceased, pursuant to the provisions of article 44 of the alien law put in force in the island of Cuba while Spanish dominion prevailed therein.

“The court refused to comply with the request of the Spanish consul, and the estate was administered upon in accordance with the laws regulating the administration of estates of deceased natives of the island.

“The Spanisn minister at this capital calls the attention of the Government of the United States to this matter and requests this Government to annul the orders made regarding said estate by the judge of said court.

“The questions thus presented appear to me to be:

• “1. Under the provisions of the treaty of peace between the United States and Spain (December 10, 1898), did the court of Santa Clara have exclusive jurisdiction to administer upon the estate of said Don Ramon Martí, deceased?
• “2. If the said Don Ramon Martí at the time of his death was a resident of Santa Clara, Cuba, did the Spanish consul have the right to participate in the administration of said estate?
• “3. If the request of the Spanish consul to be allowed to participate in the administration of said estate was improperly refused by the court, did the court thereafter possess jurisdiction to administer upon said estate?

“I have the honor to request that you will favor me with your opinion upon the matter above presented.

“Very respectfully, yours,

“Elihu Root, Secretary of War.

“The Attorney-General.

“Note.—The original papers in the case are also inclosed, which please return with your reply.

“1075 and inclosures 1, 3, 4, 5, 6, 7, and press copies.”

The inclosures of your letter show the following order of the judge of Santa Clara, dated the 25th of July, 1899:

“As it appears that Don Ramon Martí Buguet, a native of Tarragona, died on the 2d instant, in the precinct of Baez, belonging to this judicial district, without leaving any relatives or testamentary provisions, this court has ordered the proclamation of the intestacy.” “As it appears that, on the 15th instant, the Spanish consul at Cienfuegos addressed a communication to this court, stating that, having heard that the Spanish subject, Don Ramon Martí, had died intestate, he has appointed Don Benito Menduiña, under article 44 of the alien law in force, to draw up the inventory and to carry out all the other proceedings provided by said law.” “Considering, first, that there is no evidence to show that Don Ramon Martí had obtained the registration required by article 9 of the treaty of Paris, concluded between Spain and the United States on the 10th of December of last year, in order to retain his Spanish nationality, and (considering) that, until such registration is proved by record, he must be regarded as a native of Cuba and, consequently, subject only and exclusively to the provisions of the law of civil procedure and the civil code now in force.” “Considering, that, even if the reason hereinbefore stated did not exist, the provisions of the alien law cited by the Spanish consul at Cienfuegos would still not be applicable, because, under article 11 of the said treaty, Spaniards residing in the territories over which Spain has ceded or abandoned her sovereignty, remain subject, in civil and criminal matters, to the jurisdiction of the country in which they reside, in accordance with the ordinary laws in force in such territories, and must appear and plead in the same manner as the citizens of the country in which they reside.” “In view of the articles of the treaty of Paris, it is declared that the intervention of the Spanish consul at Cienfuegos in those proceedings can not be permitted; and it is ordered that he be notified of this decision by a courteous note.”

An examination of Article IX of the treaty of Paris shows that Spaniards residing in the ceded or relinquished territories were to have a year within which to make up their minds whether to preserve—not acquire—Spanish nationality, and I think there is no doubt that a Spaniard born in the peninsula who died in Cuba before the expiration of that year was, in the contemplation of the treaty, a Spanish subject at the time of his death.

Article XI of the treaty relied upon by the judge is, in the English copy, as follows:

“The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil as well as criminal to the jurisdiction of the courts of the country wherein they reside pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts and to pursue the same course as citizens of the country to which the courts belong.”

The first part of this article treats of the position of Spanish residents when proceeded against in court, the latter provides implements for their use. The former subjects them as defendants to the tribunals, according to the ordinary laws which may regulate the competency of the tribunals (leyes comunes que regulen su competencia); the latter places at their disposal, though aliens, the right to appear before the tribunals (comparenciaen juicio) according to the same laws of procedure (forma) and carrying on the same course of pleading and practice (procedimientos) as citizens of the country.

In so placing at their disposal the free right to appear and proceed like citizens, I do not understand that the treaty intended to make it unlawful to give them better methods of appearing or proceeding as alien parties or as Spanish residents in addition to those of citizens. The provision was for their benefit—they were to be allowed, at least, the same “forma,” and same “procedimientos” as citizens. On the other hand, there is still less reason to say that as defendants they could not be subjected to any laws regulating the jurisdiction of the courts except those concerning cases between citizens of the country. The first part of Article XI says nothing of citizens of the country. It says they shall be subject to the tribunals according to the ordinary, the usual (comunes), laws concerning their competency or jurisdiction.

What is meant by ordinary or usual? It was usual in every one of the countries mentioned to have laws concerning aliens, laws which incidentally affected the competency of the courts. Article IX of the treaty alludes to these long familiar laws and the possibility of others to be enacted. Such as these, in my opinion, are not excluded by the word ordinary (común).

Spanish residents at the time of the making of the treaty were somewhat uneasy lest they should be persecuted, and desired to be guaranteed that a proper course of procedure would be followed in criminal and civil actions against them; but they expected to be aliens, subjects of a foreign sovereign, and to be treated by the laws as such. They desired to be subjected to the tribunals only as other aliens might be; to the ordinary tribunals acting without special authority directed against them.

Article 47 of the alien law, which denied any special fuero to aliens (not, as translated, “special right or privilege”), operated to confirm a transfer of aliens (extranjeros) in the provinces, from the old fuero de extranjería and other special fueros (e. g., of war and marine), to the same courts to which Spaniards were subject, “according to the cases,” certainly without any purpose by so doing to make them cease to be aliens or to prevent the interposition in administrations of their respective consuls; and I think it was as little the intent of the provisions of Article XI of the treaty to exclude that interposition. The article forbids the establishment of the old fuero of aliens and that of a new fuero of Spaniards, but not all laws affecting the business concerning aliens which may come into the ordinary courts or fueros “according to the cases.” Such a treaty provision might even be unconstitutional and void.

The reasons given in 1868 and 1869 for the general abandonment of special fueros for the ordinary or common fuero were:

“In those regions (colonies), as in Spain, the diversity of fueros paralyzes the march of the administration of justice by the numerous jurisdictions (competencias) to which it gives rise, disorganizes the judicial hierarchy, renders impossible the formation of a correct and enlightened jurisprudence, and is the cause at times of contradictory judgments, in identical cases, which diminishes respect for the law and for the tribunals.”

I can not suppose, without’ manifest proof, that the United States were stipulating to cripple permanently in Porto Rico and the Philippines, and (by persuasion) in Cuba, the vital power to make and judicially enforce laws concerning alien inhabitants.

It must be remembered that, so far as Cuba is concerned, this Article XI does not bear the same relation to the alien law as though the latter were an act of Congress. The treaty is an agreement between Spain and the United States; supreme law for and over the latter, but not for and over Cuba. It obliges us, while acting in that country, to see to it that the Spaniards there are treated as the Article XI intends; but the alien law, while temporarily continued and enforced by the power of the United States, is rather the law of and for another country. It is an old law in Cuba, and is doubtless intended to be left in Cuba when we and our treaty are gone.

In my opinion, then, there is no reason to say that Article XI of our treaty prevents article 44 of the alien law of Cuba from being applicable to the estate of Don Ramon Martí y Buguet.

Both of the conclusions of the court at Santa Clara, therefore, as I think, proceeded from erroneous views of the treaty of 1898.

Your third question is:

“If the request of the Spanish consul to be allowed to participate in the administration of said estate was improperly refused by the court, did the court thereafter possess jurisdiction to administer upon said estate?”

At first view, this seemed to me a question so exclusively of Spanish civil law, with which the secretary of justice and the courts of Cuba are familiar, that I was disposed to suggest that it be referred to them for consideration in the light of the views concerning the treaty hereinbefore set forth. But as I perceived from the inclosures of your letter that two secretaries of justice and some local official attorneys in Cuba have had this matter under consideration, and as I recognized that the international aspect of it might render it difficult for the question to be determined by the familiar rules of the Spanish law concerning appeals, proceedings in cassation, decisions between conflicting jurisdictions, etc., it seemed to me better to attempt to give a direct answer to your inquiry.

An examination of the original Spanish of the alien law, article 44 (of which you inclosed a translation), makes it clearer that the first paragraph of that article aims at the preservation of the property for the benefit of the heirs, rather than the exercise of the judicial power of Cuba in determining who may be the heirs or determining any other question concerning the estate.

Who, then, is expected by the alien law to determine such questions—the consul, the local judge, or both? If the consul is to have any judicial function in the matter, is he with the local judge to constitute a tribunal exercising the judicial power of Cuba, is he to exercise the judicial power of his own country and wholly exclude the local judge from judicial action, or is the consul to exercise the judicial power of his own country upon certain questions and to be the administrator as an officer of his own country, and the judge, with regard to other questions, to step in and exercise the judicial power of Cuba?

It seems to me that some light may be thrown upon these questions by articles 42, 43, and 45 of the alien law, articles 42 and 43 speaking (in the original Spanish) of demands giving rise to a special set of questions, and article 45 providing that in intestate proceedings the Spanish court shall have jurisdiction only of those demands. In the translation of the alien law which you sent me, the word “demands” is omitted from articles 42 and 43, and your translation of them, and of articles 44 and 45, is as follows:

“Article 42. They shall also be subject to said laws and courts in all suits instituted by or against them for the fulfillment of obligations contracted within and outside of Spain in favor of Spaniards, or which involve the ownership or possession of property situated in Spanish territory.

“Article 43. The Spanish tribunals shall also have jurisdiction over and shall take cognizance of suits between aliens brought before them and which involve the fulfillment of obligations contracted or to be fulfilled in Spain.

“Article 44. In the case of an alien dying intestate the judicial authority of the town in which the death occurs shall, together with the nearest consul of the nation to which the deceased belonged, or with the person appointed by the consul in his stead, take an inventory of the property and goods and shall take the necessary steps to have the same placed under custody and at the disposal of the heirs.

“Should the alien be a resident, and should he die outside of his domicile, the judge of the latter, to whom notice shall be sent by the judge of the place where the death occurred, shall fulfill the provisions of the foregoing paragraph with regard to the property and effects of the deceased existing there.

“Should there be no consul in the town where the death occurred or in the domicile, the judicial authority, while awaiting the arrival of the consul, whom he shall advise immediately, or of his delegate, shall only take the measures necessary for the custody of the property and of the goods.

“Article 45. In intestate as well as in testamentary successions of aliens, the Spanish courts shall have cognizance only of the claims and demands referred to in the foregoing articles.”

Further light, I think, can be thrown upon the questions by an examination of two treaties, the making of which closely preceded the alien law of 1870, one of Spain with France (A. D. 1862), and the other of Spain with Italy (A. D. 1867). I quote three articles, which are substantially the same in both treaties.

“XVII. In case of the decease of any subject of one of the contracting parties in the territory of the other, the local authorities must give immediate notice to the consul-general, consul, vice-consul, or consular agent in whose district the decease has occurred, and they, on their part, must give the same notice to the local authorities when the decease comes to their knowledge first.

“If an Italian in Spain or a Spaniard in Italy should die without making a will, or without appointing a testamentary executor, or if the legitimate or testamentary heirs should be minors, incapable or absent, or if the testamentary executors appointed should be incapable, or should not be found in the place where the property has been left, the consuls-general, consuls, and consular agents of the deceased’s nation shall have the right of proceeding successively to the following operations:

“1. To affix seals, ex officio or at the request of the parties interested, on all the movable property and papers of the deceased, giving notice of this operation to the competent local authority, who may be present and affix his own seals also.

“These seals, as well as those of the consular agent, must not be removed without the consent of the local authority. Nevertheless, if, after a notice addressed by the consul or vice consul to the local authority, inviting him to be present at the removal of the double seals, he should not appear within forty-eight hours from the time of receiving the notice, the said agent may proceed to the operation by himself.

“2. To draw up the inventory of all the goods and effects of the deceased, in the presence of the local authority, if he has attended in consequence of the aforesaid notification.

“The local authority shall put his signature to the reports drawn up in his presence, and shall have no right to demand fees of any kind for his official intervention in said matters.

“3. To provide for the sale at public auction of all the movable effects of the estate which may deteriorate, and of those which may be difficult to preserve, as well as of the collections or effects for the disposal of which there may be favorable opportunities.

“4. To deposit in a secure place the effects and securities inventoried; to keep the amount of the debts and incomes received and the proceeds of the sales, in the consular house, or to intrust them to some merchant who gives good security. In both cases he must proceed in concurrence with the local authority who has taken part in the previous operations, if, after the summons referred to in the following paragraph, subjects of the country, or of a third power, should represent themselves as interested in the estate.

“5. To announce the death which has taken place, and to summon, by means of the newspapers of the place and of the deceased’s country, such persons as may have claims against the estate, in order that they may send in their respective claims duly approved within the legal period of each country.

“If creditors of the estate should appear, their debts must be paid in fifteen days from the completion of the inventory, if there should be ready money enough for the purpose; and if not, as soon as the funds can be obtained in the most convenient manner, or within the period fixed by common consent between the consul and the majority of those interested. If the respective consuls should refuse payment of one or more of the claims brought in, alleging the insufficiency of the property of the estate to satisfy them, the creditors may, if they consider it advantageous to their interests, demand of the competent authority the power of constituting themselves as a body.

“Such a declaration having been obtained by the legal means established in each of the two nations respectively, the consuls or vice-consuls must immediately consign to the judicial authority or to the syndics of bankruptcy, as the case may be, all the documents, effects, and securities belonging to the estate, and the said agents will remain as the representatives of the heirs who are absent, minors or incapable.

“6. To administer and liquidate the estate, either themselves or through a person appointed on their responsibility, the local authorities having no power to interfere in those operations, unless subjects of the country, or of a third power, should have to prove rights upon the estate itself, and that in such case difficulties should arise chiefly proceeding from some claim which gives rise to discussion among the parties; the consuls-general, consuls, vice consuls or consular agents, having no right to decide therein, it must be brought before the tribunals of the country, whose place it is to provide for and settle such difficulties.

“The said consular agents will then act as representatives of the estate; that is, they will retain the administration and the right of definitively liquidating the inheritance, as well as that of proceeding to the sale of the effects in the periods before prescribed, they will take care of the interests of the heirs, with the power of appointing advocates to maintain their rights before the tribunals; and it is understood that they must furnish all the papers and documents necessary to explain the question which is submitted to their judgment.

“When the sentence has been pronounced, the consuls-general, consuls, vice-consuls or consular agents must execute it, unless they interpose an appeal; and they will also continue of full right to carry on the liquidation which was suspended until judgment had been passed.

“7. To consign the inheritance or the produce thereof to the lawful heirs or to their agents, but not until the expiration of the term of six months from the date on which the announcement of the death was published in the newspapers.

“8. To constitute, whenever it maybe necessary, a guardianship or trusteeship, according to the laws of their own country.

“XVIII. If an Italian die in Spain or a Spaniard in Italy, at a place where there is no consular agent of his nation, the competent local authority shall proceed, in accordance with the laws of the country, to make an inventory of the effects, and to liquidate the property left, under the obligation of rendering an account, as soon as it is possible, of the results of his operations, to the respective embassy or legation or to the consulate or vice-consulate nearest to the place where the property has been left, but from the instant that the consular agent nearest to the place where the property has been left makes his appearance, either in person or by means of any delegate, the intervention of the local authority must be in accordance with the provision in Article XVII of this convention.

“XIX. The consuls-general, consuls, vice-consuls, and consular agents of both nations shall attend exclusively to the inventories and other precautionary measures for the preservation of the hereditary property left by sailors of their nation, dying ashore or on board the vessels, of their country, whether during the voyage or in the port of their arrival.”

It is clear that under this treaty system between these three Latin countries—Spain, Italy, and France—the consul is to exercise an extraterritorial judicial power and to be the real administrator of the estate, but that disputes in which the country where the death occurred has some special interest, as where its own people or the people of a third country, whom it should protect, are concerned, are to be carved out of his jurisdiction and settled by the local judicial authority, leaving him to resume his functions when these special questions have been determined.

Similar treaties had anciently been made with England. Thus, in Warden’s Consular Establishment, page 252, we read:

“In a treaty with Spain, made in 1667, it was stipulated that the goods and estates of Englishmen, dying without will in that Kingdom, were to be put into inventory, with their papers, writings, and books of account by the consul, or other public minister of the King of Great Britain, and placed in the hands of two or three merchants named by the said consul or public minister, to be kept for the proprietors or creditors; and that neither the cruzada, nor any other judicatory whatsoever, should intermeddle therein; which, also, in the like case was to be observed in England toward the subjects of the King of Spain.”

Still further light is shed upon our questions, I think, by the consular system of Spain, in which her consuls in foreign countries are authorized to exercise all the powers of courts of first instance, if permitted to do so by the laws of the country to which they are accredited.

I can not but think, from these and similar considerations, that the privilege intended to be accorded to foreign consuls by article 44 of the alien law was not merely to be present and see that the local judicial authority did what was proper, nor to exercise any part of the judicial power of the country to which the consul was accredited, but to be the administrator and judge in charge of the business of settling the estate and succession.

It seems-to me, therefore, that to oust the consul altogether, as was done in the matter of the estate of Don Ramon Martí y Buguet, and proceed without him, was to proceed without jurisdiction, and I therefore answer your third question in the negative.

Respectfully,

John W. Griggs,
Attorney-General.