I have received from the consul-general, evidently crossing my letter to
him, certain communications which seem to complete the record in that
matter so far as the authorities in Barcelona are concerned. I beg to
inclose a copy of the letter of the consul-general covering copy of an
official letter, together with a translation of the same, from the
president of the mixed commission of enlistment (comision mixta de
reclutamiento) of the province of Barcelona, from which it will be seen
that the authorities of that province maintain their position that the
young man in question is liable to military service, and that the
consul-general’s protest and request for his exemption have been finally
refused.
In view of my desire to observe most carefully the wishes of the
Department, that nothing should be done, officially, which would tend in
any way toward misconstruction of the relations of our Government with
the inhabitants of Cuba, just at the time when that question is being
authoritatively settled, I have deemed it wise to refer this whole
matter for the consideration of the Department, as it is the first, and,
so far, the only case, that has come to my notice of a native of Cuba or
Porto Rico claimed for Spanish military service. * * *
While the change of government and the coming into power of the liberal
party may not produce an equally profound change in the nature of the
laws to be presented to the new Cortes, when it shall have been elected,
still it may have that effect; and I think it wise to await
developments, inasmuch as I understand that no practical injury will
result to the interests of this young Cuban in question, until
sufficient time has elapsed for full consideration of the proper steps
to be taken or proper claims to be made to the Spanish Government.
The attention of the new ministry is, almost inevitably, occupied at
present by the steps, natural and necessary to the social and political
life of Spain, for the preparation of the election of the new Cortes,
the date of which has, not yet been fixed. It is considered, without a
dissenting voice, that this Government, as all governments in Spain
since the establishment of the constitution, will have a working
majority in the new Cortes, as it is considered equally natural and
necessary for it to take the precautions and political steps to bring
this about. Until that is done I feel confident that no important
decision will be taken regarding changes in international affairs from
the course [Page 467] pursued by the
former Government, but everything will be held in abeyance for a month
or six weeks at any event. I say this only to show the Department that,
in my judgment, no reason exists that I should receive any instructions
in this particular case until full consideration, or even, possibly, the
lapse of time, may bring about a solution of the general question
involved.
[Subinclosure.—Translation.]
The commission to the
United States
vice-consul.
Comison Mixta de Reclutamiento,
Province of
Barcelona.
No. 609.]
Having examined the “expediente” (petition) of the young man Benito
Llavería Pascual who came forward with the drafts for 1898 under No.
1 as a conscript from the fourth district of this city;
Bearing in mind that the young man Llavería in the enlistment of 1898
of the section of the fourth district of this city incurred the
penalty of article 31 of the existing recruiting regulations for not
being in that of the year corresponding to his age nor in the year
immediately following;
Taking into account that the said young man appealed to this
commission in writing on the 14th of February, 1898, stating that he
was then 23 years of age; that he was a native of Habana temporarily
residing in this city at No. 317 Aragon street, second floor, and
that, having been included at the head of the enlistment list of the
recruiting section of the fourth district of this city for that
year, he petitioned that orders be given to said section to exempt
him from enlistment, being a native of Cuba temporarily resident in
this city with the object of accompanying his father for the sake of
his health; stating further that although they were included in the
“padròn” (town list) of that date it was merely as temporary
residents, seeing that they were also inscribed in the town list of
Habana, where they practiced their profession and paid taxes;
Taking into account that along with said appeal he inclosed his
baptismal certificate, duly legalized, showing that he was born on
June 24, 1875, in Habana, his parents being natives of the province
of Tarragona, and a certified copy of the resolution of the
recruiting section of the said district adopted on the 30th of
January, 1898, declaring that there was no reason for granting
freedom from enlistment to the young man in question;
Taking into account that in the copy of the aforementioned resolution
of the section of January 30, 1898, it appears that the decision was
based upon the fact that the young man Llavería was included in the
enlistment owing to his figuring on the “padrón municipal”
(municipal town list) taken on the 21st of December, 1885, in force
at that time, so that when the young man was placed on the list his
father had already resided in this city three years at No. 317
Aragon street; that the fact of the [Page 468] young man being a native of the island of Cuba did
not destroy his Spanish nationality; that the residence of the
father in the locality renders the son liable to enlistment, and,
finally, that at the proper time, when he should have been enlisted
without incurring any penalty, his father already resided in the
fourth district of this city, where he continued to reside on the
aforenamed date of January 30, 1898;
Seeing that this commission, in session of March 30, 1898, decided
that there was no reason for exempting the young man Llavería from
being enlisted in the fourth district of this city, nor for
absolving him from the penalty of first on the list according to
article 50 of the recruiting regulations unless he had been enlisted
previously in some other town with greater right than in the list of
the fourth district of this city;
Seeing that on January 7 last the United States vice-consul in this
city wrote a dispatch to this commission stating that the young man
Llavería, a native of Habana, is registered as a Cuban at said
consulate; that the aforesaid young man came to Spain in the year
1895, returning to Cuba in March, 1898, arriving there on April 1 of
the same year, prior to the date of the treaty of Paris, having
complied with all the requirements of Article IX of that treaty, and
that he afterwards left Habana in the month of June, 1899, for
Spain, having previously obtained a passport duly signed by the
authorities of the island of Cuba, in which his identity is set
forth;
Seeing that the object of the vice-consul’s letter was not clear, a
communication was addressed to the said vice-consul on the 11th of
the same month of January, requesting him to specify the object of
his letter of the 7th of that month; seeing that on the 28th day of
January the United States vice-consul, referring to his letter of
the 7th of the same month, informed this commission that the young
man Llavería is properly registered at that consulate as a Cuban
citizen in accordance with the requirements of the treaty of Paris,
having fulfilled all the conditions necessary to prove his Cuban
nationality, which citizens are under the protection of the United
States, and requesting that the same be exempted from Spanish
military service;
Seeing that on the 8th of last February this commission instructed
the section of the fourth district of this city to send a certified
copy of the sheet of the “padrón municipal” (municipal town list),
taken on December 21, 1885, corresponding to folio 15 of the first
volume of the house No. 317, second floor, of Aragon street of this
city, relating to the family of the young man Benito Llavería
Pascual, and that the said section sent the sheet in question along
with a communication dated the 11th of February last, in which it
appears that the said list, instead of having been made on the 21st
day of December of the year 1885, as previously stated, was made on
the 21st day of December of the year 1895, and that at that time the
father had resided three years as a tenant of the house in question
and the young man four months as a temporary resident;
Considering that according to article 1 of the constitution in force
since June 30, 1876, all those born on Spanish territory are
Spaniards, and that therefore the young man Llavería was a Spaniard
in the month of March, 1898, when he was included in the enlistment
of the fourth district of this city, with the penalty of article 31
of the recruiting regulations, seeing that the island of Cuba, where
he was born at that date, still belonged to Spain;
Considering that not only at the time when he should have been
enlisted without the aforementioned penalty, but also in 1898, when
he was enlisted with that penalty, his father was a resident in
Barcelona, having lived for three years in the locality of the
fourth district of this city, and neither he nor his father having
asked that he should be included in the enlistment of 1894, which
was that corresponding to his age, nor in the next following, the
aforementioned section was obliged to include him in the first
enlistment following the discovery of this omission, with the
penalty of article 31 of the recruiting regulations as ordered
therein;
Considering that the fact that in the town list of 1895 he figures as
a visitor (passer through) was no obstacle to this being done,
because what determines the enlistment of a young man is, according
to article 40 of the aforesaid regulations under numbers 1 and 2, in
the first place, the residence of his parents, and, as already
stated, the father of the young man in question, in 1895, had
already resided three yearns at the place indicated; and is
classified in the town list as a resident.
Considering that neither did the provisions of the royal order of
November 14, 1888, relating to the exemption from service of those
born in the colonies, apply in the case of this young man when he
was enlisted, nor at the time when he ought to have been enlisted
without penalty, because for that purpose it was indispensable that
the father’s residence in the Peninsula should not have been a
permanent one, as it was, according to the town list of 1895;
Considering that the purport of Article IX of the treaty of peace
between Spam and the United States in no way affects the present
case, seeing that the facts dealt with occurred prior to the date of
the ratification of the said treaty, which was in April of 1899;
[Page 469]
Considering that in view of all that has been stated it is evident
that the young man Llavería is liable to military service in Spain,
even in the hypothesis that he at present no longer retains his
Spanish nationality, this circumstance, seeing that the Spanish
nationality was lost after the date when he should legally have
performed that service, can not exempt him from the fulfillment of
obligations under which he was before the loss of his
nationality;
In view of the proofs brought forward,
This commission, in session of the 28th of last February, decided
that you should be informed, as I have herewith the honor of doing,
that there is no reason to grant your request made on the 28th day
of January last, that the young man Benito Llavería Pascual should
be exempted from Spanish military service.
May God protect you many years.
Barcelona, March 4,
1901.
The President.
