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. Adee.

United States Consulate-General,
Habana, August 27, 1895.

No. 2580.]

Sir: With reference to my dispatch No. 2549, of the 2d instant, I have the honor to report that Mr. Miguel Viondi, the advocate of Mr. Julio Sanguily, has informed me that he has been disappointed in his hope of the closing and submission of the examination proceedings of this case from the lower to the upper or trial court, as before expressed by him, and transmitted to the Department in my said dispatch No. 2549, and now tells me that, the proceedings having been delayed beyond his expectation by the lower court, he petitioned it on the 19th instant to be allowed to view them 5 but this has been refused, on the ground that the court has or is about to issue commissions for the taking of the testimony of parties now in Spain. This, of course, as he says, will prolong the delay already incurred in bringing the case to trial.

By reason of this delay and the prospect of its prolongation on the part of the lower court, Mr. Sanguily has addressed a communication in the Spanish language, dated the 20th instant, to the Honorable Secretary of State, which he sent me for transmission on the 24th instant. On receiving this communication, I observed to the bearer that as the official language of the Government of the United States is the English, and as Mr. Sanguily is an American citizen, that if he believed he had reasons justifying him to address the Honorable Secretary, that, in my opinion, he should have done this in the English and not in a foreign language. But this suggestion not having been heeded, I accompany the communication herewith.

I have also to inform the Department that the lower court refused to grant the petition of Mr. Alfredo Zayas, the advocate of Mr. José Mas Timoteo Aguirre, who, likewise, solicited at the same time with Mr. Viondi, the view (la vista) of the proceedings in the case of his client; and that in consequence of this refusal he has complained to the upper court, as authorized under the code of criminal procedure, instead of his client appealing direct to the Honorable Secretary of State, and I understand that the chief justice has the complaint of Mr. Zayas now under consideration.

In this connection I beg to observe that this consulate-general is frequently called on by friends of Mr. Sanguily and Mr. Aguirre to undertake proceedings before the court and before the Government in their cases, apparently under the belief that their defense is encharged to this office. And notwithstanding that on many of these occasions I have explained in answer that neither article 7 of the treaty of 1795 nor the explanatory protocol of the 12th of January, 1877, confer any authority or right on the diplomatic and consular officers of Spain to interfere or take part in the judicial proceedings that might take place regarding Spanish subjects under similar allegations in the United States, nor that such authority is conferred on the diplomatic and consular officers of the United States with regard to American citizens alike charged within the dominions of Spain; and that the defense of Spanish subjects and American citizens before the courts is left exclusively to the law officers of the respective countries; still, it is often asked if it is not primarily encharged with the defense in these cases, how came it to take upon itself the authority to solicit of the Governor-General their transfer from the court martial to which they had been subjected, to a civil court for trial? And that when it is explained to them that by article 19 of the treaty of 1795 that the consular officers of the United States within the dominions of Spain, and conversely that the consular officers of Spain within the jurisdiction of the United States, enjoy, respectively, the privileges and powers of those of the most favored nation; and that in consequence this consulate-general is invested, in accordance with article 9 of the consular treaty of February 22, 1870, between Spain and Germany, with the right to complain to the Governor-General of this island against the infraction of all treaties and agreements between the United States and Spain; and that in as-much as the protocol of the 12th of January, 1877, was infringed from the start by the subjection of these citizens to the military jurisdiction, that this office being duly authorized thereto, under the said article 19 of the treaty of the United States with Spain, and article 9 of that between Spain and Germany, did not hesitate for a moment to request the transfer of these American citizens to the civil jurisdiction for trial; but that the moment the Governor-General complied with the protocol by their transfer to the civil court, the intervention of this office ceased and that of the law officers began; and that if no mistake had been made in the procedure established by the protocol there would have been neither occasion nor authority for the intervention of this office in these cases, yet none of these explanations seem to convince or satisfy.

As illustrative of the matter, I would respectfully recall the case of Mr. Cirilo Pouble, which occupied the almost daily attention of the Department and this consulate-general for four years; for notwithstanding he appointed his own advocate, still his demands and those of his friends were not made on his advocate, but almost entirely on the consul-general, even to the extent of the presentation of a complaint through an attorney at Washington to the Senate of the United States. Similar expectations were also raised in the Oglesby case.

For these reasons I would respectfully submit the question as to the propriety of the employment by the Department of legal counsel to this consulate-general; and in the case of its affirmative resolution I beg to recommend the name of Mr. Antonio Govin, a distinguished member of the bar of this city.

I am, etc.,

Ramon O. Williams,
Consul-General.

[Inclosure in No. 2580.—Translation.]

Mr. Sanguily to Mr. Olney.

Julio Sanguily, a citizen of the United States of America, who has been arrested by the Spanish authorities and is now imprisoned in the fortress called “La Cabaña,” hereby states that criminal proceedings have been instituted against him and he has been incarcerated in violation of Spanish law, and on account of an act with which he has been falsely charged, with a view to injuring his good name.

Anyone examining the case calmly from its two points of view must become convinced that your petitioner is prosecuted and punished either for the reason that he is a citizen of the United States of America, or for a political idea for which, even if any such idea had been entertained, he would have to be acquitted according to Spanish law.

First case.—That he must be acquitted according to Spanish law.

Your petitioner is charged with an intention, a thought, an idea which, even if he had begun to put it into execution, would be called by Spanish law, as it would by the penal law of every country in the world, tentative; that is to say, something which technically falls far short of being a crime, since a crime begins with the performance of the act.

Your petitioner was surprised at his home, in the bosom of his family, and placed under arrest by military authorities, who subsequently, at the instance of the United States Government, turned the case over to the civil authorities. Both the military and civil authorities are agreed that your petitioner can he held responsible for nothing more than an attempt to commit an offense, which, in law, as already remarked, falls far short of the offense itself.

Now, the Spanish law, by a proclamation issued by General Callejas, pardoned all persons guilty of rebellion, provided that they surrendered to the authorities before the expiration of fifteen days after the issuance of the proclamation.

It is therefore evident that your petitioner, who, even if he were guilty of anything, would be guilty of a mere attempt to commit an offense, which, in law, as already remarked, falls far short of the offense itself.

Now, the Spanish law, by a proclamation issued by General Callejas, pardoned all persons guilty of rebellion, provided that they surrendered to the authorities before the expiration of fifteen days after the issuance of the proclamation.

It is therefore evident that your petitioner who, even if he were guilty of anything, would be guilty of a mere attempt to commit an offense, which is much less than the crime of rebellion for which a pardon was granted to those who rose-in arms, but surrendered to the authorities within the time designated, is certainly included in the pardon granted by General Callejas, for it is not conceivable that this pardon should favor those who did more, and should injure and punish one who has never committed any offense.

In all cases, without exception, and in all penal systems, the law is interpreted in a manner favorable to the person charged with crime. Spanish citizens who took up arms against their Government have been pardoned in the manner above described, while your petitioner, who is charged with merely attempting to commit the same offense, has been suffering the horrors of imprisonment for six months, as if he were punished for a punishable intention because he is a citizen of the United States of America.

The act for which the undersigned is prosecuted does not, for the reason stated, subject him to condemnation. There is no ground for a prosecution in his case, and all that need be done is, when the charges against him are declared to be true, to require the Spanish Government to release an American citizen who is protected by the very Spanish law, on the ground of which the proclamation of General Callejas was issued.

Second case.—He is falsely charged with the crime of kidnaping. Proof to the contrary.

After the Spanish military authorities found that they were not competent to institute proceedings against citizens of the United States, they deprived the undersigned of the privilege of seeing his counsel, and kept him in solitary confinement for twelve days.

This crime (kidnaping) was alleged to have been committed by your petitioner and Don Gerardo Portela, a Spanish citizen. The charges against both were in all respects identical. The prosecution, at the instance of the United States consul, was divided. One portion was turned over to the civil authorities, and the other remained in charge of the military. Well, the military authorities released Portela at once, and the civil authorities have kept your petitioner in prison for five months without any actual reason.

The difference in the treatment of the two parties can be explained in no other way than by considering that the one is a citizen of the United States of America, for which he is imprisoned, while the other is a Spanish citizen.

Your petitioner does not ask to be believed on his mere assertion. The United States consul at Habana has knowledge of all these antecedents, and, if the case requires it, can inform your Government as to the correctness of the statements made. And if these statements are true, how can it be that a citizen of the United States is allowed to remain in prison, and that the United States Government does not tell that of Spain that it must strictly obey the law?

The undersigned hopes that his Government will grant him the protection which, according to the Constitution of the United States, is his due. That Constitution has, in his case, been violated by the Spanish Government, and no protest has been made against this violation.

J. Sanguily.

Habana, August 20, 1895.