Papers Relating to the Foreign Relations of the United States, 1894
Mr. Taylor to Mr. Gresham.
Madrid, March 5, 1894. (Received March 15.)
Sir: I have the honor to report that I have received the formal memorandum (in reply to your No. 16, of the 14th of July, touching the Mora claim) promised by the minister of state in his note of January 1, a copy of which I transmitted in my No. 97, of January 4. Inclosed please find a copy of the memorandum, with a carefully prepared translation, and also a copy, with translation, of the note accompanying it.
I am, etc.,
Señor Moret to Mr. Taylor.
Palace, February 26, 1894.
Excellency: As I informed you it was my intention so to do, in my note of the 1st ultimo, I now have the honor of placing in your hands the reply of my ministry to the memorandum of the Secretary of State of the United States dated July 14, a copy of which you were so kind as to send me with your courteous note of August 5.
Time-absorbing occupations of a most peremptory character, with the nature of which your excellency is acquainted, have prevented me, much against my will, from performing at an earlier date so pleasant a duty. In performing it now and in this manner I take the opportunity to repeat, etc.
Reply of Señor Moret to the Memorandum of July 14.
The memorandum sent by the Secretary of State of the United States to the minister plenipotentiary of the Republic in Madrid, dated July 14, 1893, and delivered at the ministry of State of His Catholic Majesty by Mr. Taylor, with the note dated August 5, relating to the Mora claim, presents this case under a light, and contains statements which, although they have been verbally rectified, it is most important that the same should be put in writing.
First of all, it behooves the minister of state of His Catholic Majesty to set forth that the antecedents and history of the case, as embraced in the first paragraphs of the American memorandum, do not correspond exactly to what has occurred.
It can not he admitted, save as an involuntary forgetfulness upon the part of the Government of the Union, the statement that the matter had its origin in an illegal confiscation of property made by the Spanish authorities in Cuba, nor in any offense whatsoever against citizens of that Republic, nor even in a flagrant injustice to Spanish subjects who, afterwards, more or less successfully, sought the protection of American nationality.
The seizure decreed and the proceedings against the property which was owned in Cuba by Mora and others date from the time when they were Spanish subjects and supported there the rebellion personally or with their means and resources. For these grave offenses, which were fully proven, the proper authority pronounced with undeniable legality its judgments, and Mora was one of those against whom sentence was passed.
As to one point most certainly, that of the seizure of the property, the Government of Washington has proceeded in a similar manner, because it knows very well that its predecessors applied rules similar to those of Spain in like cases. In this connection it will be sufficient to call to mind that by the decree of the 22d of June, 1862, the Minister of War of the United States of the North, with the approval of the President, ordered the military commanders operating in the Southern States to take and avail themselves of all the chattel and landed property that might be needed by their armies, without even fixing as a condition to such confiscations the personal delinquency of the owners of such property, a power which was ratified by a law of that same month and year.
Furthermore, the magnanimous generosity, unusual in civil strifes, with which the Spanish authorities listened to and decided upon the claims made before them by those concerned in said seizures, is well known. Antonio Maximo Mora did not protest against the seizure of his property to the governmental authority, nor did he appear before the court which judged his offense.
Although this part of the discussion has been concluded, and the only practical arid proper thing that remains refers to the carrying out of the agreement of 1886, it is deemed advisable to set forth what has been already said, in order that the further action of both Governments may not draw its inspirations from erroneous sources, which might divest the matter of its character of friendly concessions made hy the Spanish Government, in its desire to preserve the closest friendship with the Government of the United States. The Mora question, the case at issue, is not one of those matters of strict justice which require immediate reparation and which the Government ought, therefore, to consider as their unavoidable duty to conclude, but rather it is incident of long-standing and numerous claims which, being most of them decided upon, may only be brought to a new and final decision by the desire which animates both governments to cause the disappearance of all occasion of friction or cause of grievance between the two countries.
Another error which the American memorandum contains is the supposition that the Spanish Government received and profited by the proceeds of the Mora property. It appears from the papers (expediente) that quite the contrary was the case. The seizure of the Mora property having been decreed in April, 1869, without his having made any protest against that decision before the governmental authority, Mora’s creditors presented themselves with claims, which made the declaration of his insolvency unavoidable; so that the Mora case very soon fell within the jurisdiction of the ordinary court, and the seized property and its administration passed over into the custody of the competent court (Juzgado de Belen de la Habana). The trustees of the assembled creditors, appointed in the judicial proceedings to perform a duty perfectly defined by law, are those who collected the proceeds from the property of the bankrupt, without retention of any part of the same having been made by the state, as it is erroneously supposed by the American memorandum.
The accuracy of the facts having been reestablished and accentuated, the minister of state of His Catholic Majesty proceeds to the examination of other matters which affect the pending negotiation.
[Page 440]It can not be said, without going openly against the facts, that the Spanish Government agreed to fix the Mora indemnity, asked for by the United States, by the unconditional payment of the sum agreed upon of $1,500,000. The arrangement then entered upon was essentially conditional; so much so that, had not Mr. Curry accepted this fundamental condition imposed by the minister of state, namely, to conclude the payment by means of a bill in the legislatures to include, for the purpose of making the payment, a sum of money in the Cuban budget, it would have been impossible to conclude the negotiation. It is important to have this specially stated, because the history of this question has a decisive influence upon the judgment to be made in regard to the matter by public opinion and the Parliament.
It might be thought that the U. S. Government understood that the condition imposed by the Spanish Government was a mere formula, and only suggested to comply with the constitutional requisites which prevent every parliamentary government from disposing of any amount whatever of money without obtaining the approval of its chambers. But this hypothesis disappears when the fact is remembered that if, up to the Cuban budget of 1880–’81, the Spanish Government could declare of its own accord payments, to be charged to the treasury of Cuba, without any need of obtaining the approval of the Cortes, this state of affairs terminated in the first of the said year, since which time the budgets of said island are on the same footing with those of the peninsula, and the power of the minister of the colonies is identical with that of the minister of finance of the peninsula. The American Government, which had in former times received the payment of like indemnities by the sole authority, of the executive power, knew, therefore, that circumstances had changed, and that the authority of the Parliament, pointed out by the minister of state, was not a mere formula, but rather a logical consequence of the transformation which had taken place in the procedure of Spanish legislation, and consequently a decisive clause and an essential condition of the pending claim.
Under these circumstances and the fundamental condition of the settlement once admitted by Mr. Curry, as has been said already, without the slightest observation, the matter fully entered into and has remained ever since under the jurisdiction of Parliament. If, therefore, as it is understood from the perusal of the memorandum, the Washington Cabinet considers the matter as definitely terminated from the moment the Spanish Government offered the indemnity, its appreciation rests on a wrong idea, because, as the essential basis of the agreement implied the intervention of Parliament, to which body the matter was submitted in applying for the necessary funds, it was therefore evident that if said body did not vote the funds, or if it did so only under certain conditions, as proposed by the budget commission, it would become necessary to negotiate anew in accordance with the decision of Congress. And although this doctrine is beyond discussion, and has never been caviled at, let it draw corroboration and support from the example presented by the American chambers, which have made to depend upon a law, though hot voted, the payment of the interest, also liquidated but unpaid, of the so-called Florida indemnities. And more recently and not less decisive is the fact of the Washington chambers having denied their sanction to the commercial agreement with Spain, and at a more remote date the votes of that assembly, in spite of the reciprocal sentiments of friendship then existing, were the obstacle to the satisfaction of Cuba’s legitimate claims which were most worthy in equity and justice.
The authorization and legalization of any considerable expenditure or charge upon the public treasury being by the Spanish constitution a prerogative of the Cortes and the Crown, and it being besides a special right or privilege of Parliament to interfere in international politics, it is logical to suppose that every treaty or agreement of the executive power is understood to be always subject to the limitations of its own constitutional power, so that, even if nothing had been said as to the form and manner of payment of the Mora indemnity, it would always have been taken for granted that the Spanish Government must submit to the Cortes the form, time, and manner of payment of the $1,500,000 agreed upon.
Returning now to the memorandum and replying to observations made therein, it must be remembered that the powerful motives which had influenced the course of the Spanish Government to omit from the budget of 1888–’89 the provision inserted in that of the previous year, are to be found in the notes of May 12 and August 7, 1888, which recite that:
“In view of the result of the discussion in Congress and the state of public opinion regarding the matter under debate, the Cortes would not sanction the project of the Government, unless the application for the necessary funds for the payment of the sum to Mr. Mora, was accompanied by an arrangement between the two governments relative to the whole of the American claims, providing in such a way that all claims be definitely settled and liquidated, as well the claims which the United States hold against Spain and which have been the subject of the last negotiations, as those which Spain would present against the U. S. Government.”
[Page 441]In reference to the declaration made by the ministry of state, in its note of May 12, 1888, alluded to in the memorandum, of the fact that nothing hindered the petition for, the necessary funds to be placed in the Cuban budget for 1888–’89, because the Government could at any time present a project of law to the chambers, does not modify or alter in the least what has already been explained, because a project of law or bill is always subordinate to the will of the Cortes, such an indication having been made for the purposes of facilitating the total settlement of the question, in harmony with the desire manifested by the Cortes.
To claim, therefore, as to the payment of the Mora indemnity, that the will of the Cortes is subject to the Government, and that the former is obliged to blindly vote the necessary funds for the payment of the claim, is a doctrine so contrary to all parliamentary law and so much opposed to all precedents upon every kind of questions offered by the constitutional history of the United States that it is difficult to understand for what object it is advanced. It will be but just to meet that theory with the following: The parliamentary power is so omnipotent that even when, for reasons of propriety, the chambers might believe themselves in duty bound to keep silence upon some question of this kind, if it was not their wish to vote the credit which the Government asked, they would be able, by a vote of censure or by voting against the minister that had made the agreement, to put off indefinitely the settlement asked for.
This much being said it is fair to add that to the Spanish Government can not with justice be attributed the purpose of delaying the final termination of this matter. Striking proof of it is that upon expressing the powerful reasons that prevented it from accepting the project of agreement presented by Mr. Curry in December, 1887, for the settlement of the reciprocal claims, the Government of His Majesty, in a note of October 15, 1888, submitted to the recognized wisdom of the representative of the United States the suggestion whether it would not be more just and reasonable to have recourse, in examining and liquidating the Spanish claims, to the same mode of procedure which was followed in the ministry of state with regard to the claims of the American citizens, and which resulted in the Strobel-Figuera agreement, accepted and approved by Mr. Curry in his note of December 16, 1887. In concluding this note Mr. Curry added that as a well-merited recompense for the act of justice concluded by the Spanish Government, and as a proof of reciprocity and appreciation for the action of Spain, it was only fight and proper that the Government of the United States in its turn should examine and settle (solventar) the Spanish claims.
And now in this memorandum it is said that this agreement was not ratified by the American Government. The ministry of state was not aware that this was a fact; in view of the explicit declaration of Mr. Curry on the question, it was of a different opinion.
In regard to the Spanish claim of Maza and Larrache, which is also referred to in the memorandum, it being stated that the Government of the United States has invariably refused to accept any responsibility to pay this claim, the ministry of state considers that there is here an erroneous conception of the matter, for the reason that when Mr. Frelinghuysen was Secretary of State be promised to take the matter into consideration. Furthermore, the Supreme Court of the United States has recognized the right to indemnity of the two claimants, for the losses suffered by the capture of their cotton, deciding in consequence many cases not only in favor of American citizens, but also in favor of English and French subjects by means of international agreements established by treaty. But leaving this aside and unconsidered, article 16 of the treaty of 1795, confirmed in 1819, does not describe cotton as contraband of war except when it enters as material for the construction of instruments to be used in war; which was not the case in the instance above referred to and which we are now concerned with.
Before concluding, the minister of state deems it his duty to recall to mind what he has already, on another occasion, expressed, and that is, that the Government at Washington should not fail to understand, in its consideration of the question, the impossibility of any government to contend, with hope of success, against the opinion of Parliament and of the country at large, when they see that while Spain has religiously and completely satisfied all the claims presented by the United States, the day never comes on which the claims which in turn are presented by the Government of His Majesty are to be attended to and satisfied. From this condition of things there results an inequality which can find no place in the rectitude and impartiality of the men who succeed one another in the Government of the Union.
I am convinced that the Cortes of the Kingdom would not fail to vote the credit necessary for the payment of the American claim, if they should understand that this payment would coincide with the payment of the Spanish claims by the Government of the United States.
The efforts, then, of both Governments should be directed to the finding of a method which will permit them to realize these aspirations 3 and as both Governments [Page 442] are equally animated by similar sentiments of equity and justice, they will certainly not fail to attain the end which they have in view, to the advantage of the sacred interests with which they are intrusted.
Palpable proof of this is the understanding which was reached in the friendly conference which occurred on the 28th of December between the representatives of the United States and the minister of state of His Catholic Majesty. If this understanding takes a practical form, the presentation to the American Congress of a bill, referring to the liquidation and payment of the Spanish claims, would have to be simultaneous with the presentation in the Spanish Chamber of another bill providing for the payment of the Mora claim. That is to say, that these two bills, although presented separately, have to be developed in parallel lines, according to the happy and fitting expression of the worthy representative of the Union, Mr. Taylor.
The Government of His Majesty ratifies the declarations already made to examine with all care the project of a treaty to settle the Spanish claims, which the Government of the United States is about to send.