Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1905

The Secretary of State to Minister Squiers.

Department of State,
Washington, March 10, 1905.

No. 481.]

Sir: The people of the United States are deeply interested in the proper sanitation of the cities of the island of Cuba and especially in the sanitation of the city of Habana. So pressing was this necessity deemed to be that during the military occupancy of the island plans were devised for the sanitation of the city of Habana, bids were advertised for and received, and such proceedings had that finally, on January 10, 1902, a contract was entered into pursuant to said preliminaries between the city of Habana on the one hand and Messrs. McGivney & Rokeby on the other for the sewering and repaving of said city.

Thereupon the contractors deposited $500,000 in American money as a guaranty of good faith.

As the work was estimated to cost some $13,000,000 and the city of Habana was not in funds to that amount, a clause in the contract provided that the work should begin within thirty days after the city should notify the contractor that the necessary funds were ready.

There the matter has remained, and for three years the Government of Cuba has apparently taken no steps to carry further this matter.

Under the circumstances I am constrained to bring to your attention the following representations and request you to bring them officially to the attention of the Republic of Cuba.

The importance and propriety of prompt action to be taken by the Government of the Republic of Cuba in regard to the sanitation of the cities of the island contained in the contract between the Governments of the United States of America and of the Republic of Cuba/set out in what is known in our legislation as the Piatt amendment (of 1901) and the appendix to the Cuban constitution, adopted (1901) pursuant to the requirements of that amendment, are evidenced by the following summary statement of facts:

In 1901 a formal contract was entered into between the United States of America and the Republic of Cuba. This contract was evidenced by the following documents and proceedings:

On March 2, 1901, the Congress of the United States passed an act known as the Piatt amendment, providing:

The President is hereby authorized to leave the government and control of the island of Cuba to its people so soon as a government shall have been established in said island under a constitution, which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows:

IV.

That all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.

V.

That the Government of Cuba will execute, and as far as necessary extend, the plans already devised or other plans to be mutually agreed upon for the sanitation of the cities of the island to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.

VIII.

That by way of further assurance the Government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.

(31 U. S. Statutes at Large, 897.)

On June 13, 1901, the Republic of Cuba adopted a new constitution containing the eight clauses of the Piatt amendment above referred to, substantially in the same words.

The ports and commerce of the United States have heretofore suffered immense losses through the prevalence of yellow fever in Cuba and the importation of the same into the United States from such sources of infection. The result has been that certain portions of the South, at different times, have been completely cut off by quarantine and other regulations from all social and commercial intercourse with the other sections, with a resulting great loss and damage to the people of the United States. In consequence, the United States Government, in granting liberty to Cuba, provided, by the covenants contained in the Piatt amendment, that the evil arising from the unsanitary conditions of the ports of the island should be remedied as soon as possible by proper sanitary works.

From the foregoing it will be seen that the Republic of Cuba agreed:

• First. “To execute and as far as necessary extend the plans already devised or other plans to be mutually agreed upon for the sanitation of the cities of the island.”
• Second. “That all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.”
• Third. To “embody the foregoing provisions in a treaty.”

The McGivney & Rokeby contract for sewering and paving of Habana was a plan for the sanitation of that city “devised” by the United States military government and “agreed to” by the Cuban Government on the acceptance of the transfer.

It also constituted one of the “acts of the United States in Cuba during its military occupancy thereof,” and should be, therefore, “ratified and validated,” and “all lawful rights acquired thereunder” should be “maintained and protected,” pursuant to the solemn pact of the Cuban Government.

The foregoing assertions are substantiated by the following documents and transactions:

During the incumbency of the United States military government in the island, plans of sanitation of different cities were adopted and partially carried out, and in particular the following proceedings were had in regard to the city of Habana:

June 27, 1901, the United States military government issued sealed proposals for bids from contractors on a sewering and paving contract improvement in the city of Habana, and required the bidders to deposit $200,000 as a guaranty of good faith. Bids were made under these proposals, and Messrs. McGivney & Rokeby, American citizens, having made the lowest bid, were awarded the contract.

January 10, 1902, a contract for the sewering and paving of the city of Habana was executed between the city of Habana and Messrs. McGivney & Rokeby, and approved by the Hon. Leonard Wood, military governor. Thereupon $500,000 was deposited with the city of Habana as security for the due performance by Messrs. McGivney and Rokeby of said contract.

May 16, 1902, Messrs. McGivney & Rokeby formed a corporation under the laws of the State of New Jersey to take over said contract, known as the “McGivney & Rokeby Construction Company.” Its stockholders are all American citizens and include, among others, Edward J. Berwind, Oliver H. Payne, Grant B. Schley, Jacob Schiff, and James Speyer.

On the 20th day of May, 1902, pursuant to the direction of the President of the United States, the Hon. Leonard Wood, military governor of Cuba, transferred to the President and Congress of the Republic of Cuba the government and control of the island pursuant to a formal proclamation then and there made, and the Hon. Estrada Palma, President of the Republic of Cuba, accepted the transfer pursuant to a formal speech of acceptance then and there made.

The proceedings on that occasion are set forth in full in Gaceta de la Habana, official periodical of the Government of the Republic of Cuba, and the following are abstracts from the Gazette bearing upon the matter in question:

Headquarters Military Governor, Island of Cuba,
Habana, May 20, 1902.

To the President and Congress of the Republic of Cuba.

Sirs: Under the direction of the President of the United States, I now transfer to you as the duly elected representatives of the people of Cuba the government and control of the island, to be held and exercised by you, under the provisions of the constitution of the Republic of Cuba heretofore adopted by the constitutional convention and this day promulgated; and I hereby declare the occupation of Cuba by the United States and the military government of the island to be ended.

This transfer of government and control is upon the express condition, and the Government of the United States will understand, that by the acceptance thereof you do now, pursuant to the provisions of the said constitution, assume and undertake, all and several, the obligations assumed by the United States with respect to Cuba by the treaty between the United States of America and Her Majesty the Queen Regent of Spain, signed at Paris on the 10th day of December, 1898.

The plans already devised for the sanitation of the cities of the island and to prevent a recurrence of epidemic and infectious diseases, to which the Government of the United States understands that the provisions of the constitution contained in the fifth article of the appendix applies, are as follows:

(1) A plan for the sewering and paving of the city of Habana, for which a contract has been awarded by the municipality of that city to McGivney, Rokeby & Co.

(2) A plan for waterworks to supply the city of Santiago de Cuba, prepared by Capt. S. D. Rockenbach, in charge of the district of Santiago, and approved by the military governor, providing for taking water from the wells of San Juan Canyon and pumping the same to reservoirs located on the heights to the east of the city.

(3) A plan for the sewering of the city of Santiago de Cuba, a contract for which was awarded to Michael J. Dady & Co. by the military governor of Cuba, and now under construction.

(4) The rules and regulations established by the President of the United States on the 17th of January, 1899, for the maintenance of quarantine against epidemic diseases at the ports of Habana, Matanzas, Cienfuegos, and Santiago de Cuba, and thereafter at the other ports of the island, as extended and amended and made applicable to future conditions, by order of the military governor, dated April 29, 1902, published in the Official Gazette of Habana on the 29th day of April, 1902.

(5) The sanitary rules and regulations in force in the city of Habana.

Leonard Wood,
Military Governor of Cuba.

The transfer was accepted by the following official communication * * * of which the following is a true translation:

Hon. Gen. Leonard Wood.

Sir: As President of the Republic of Cuba, I received in this act the government of the Island of Cuba, which you transfer to me, in compliance of the orders communicated to you by the President of the United States, and I take note that in this act the military occupation of the island ceases.

Upon accepting this transfer, I declare that the Government of the Republic assumes, in accordance with the precepts of the constitution, all and every one of the obligations established with respect to Cuba by the Government of the United States, by virtue of the treaty signed on the 10th of December, 1898, between the United States and Her Majesty the Queen Regent of Spain.

With the understanding that article 5 of the appendix to the constitution is applicable to them, the government will take care to facilitate the execution of the work of sanitation projected by the military government; it will procure, also, to the extent of its authority, the observance of the regimen established by the military government of Cuba, and will hold itself responsible, in the arrangements for sanitation, for the obligations of the two countries.

T. Estrada Palma.

The appendix to the constitution of Cuba consists of the provisions of the Piatt amendment, which are thus incorporated by that appendix into the constitution of Cuba, and the fifth article of said appendix is the same as the fifth article of the Piatt amendment above set forth.

July 16, 1903, the assignment of the contract from Messrs. McGivney & Rokeby to the McGivney & Rokeby Construction Company was approved by the city of Habana and the Republic.

The contract provides, among other things, that the contractor shall be obliged to commence the work “within the term of thirty days after having been duly notified by the municipal mayor of the city of Habana that the necessary funds for the execution of the work are ready.”

This contract requires that the necessary funds for the execution of the work should be “ready” before the work is to begin.

From the foregoing it will be observed that the general covenant contained in the Piatt amendment and the appendix to the Cuban constitution whereby Cuba agreed with the United States to sanitate the cities of the island was thus made definite and specific so far as concerned the city of Habana. Thus did Cuba specifically agree, in May, 1902, to sanitate the city of Habana by carrying out the McGivney & Rokeby contract.

Under such circumstances an international obligation to raise the funds necessary for the purpose of carrying out the McGivney & Rokeby contract rests upon the National Government of the Republic of Cuba.

It has lately been represented that the Cuban National Government has done nothing in nearly three years toward meeting this obligation.

It is represented that the city of Habana has made some effort toward carrying out its obligations, but that these efforts have been rendered abortive by this inaction on the part of the National Government of Cuba, and that the efforts on the part of the city of Habana to carry out its obligations under the McGivney & Rokeby contract have been substantially as follows:

That the city of Habana now owes on certain obligations amounting to a first and second mortgage the equivalent of $13,000,000, American money, and on certain floating obligations the equivalent of $2,000,000 more;

That the city has proposed to raise a total loan of $28,000,000, $15,000,000 to retire the old loan, and $13,000,000 for the McGivney & Rokeby sewering contract;

That prior to the making of the bond contract hereinafter mentioned, the city advertised for bids for an issue of its own bonds without any guarantee from the government, but no bids were obtained;

That after this failure the city of Habana made a contract with Messrs. Farson, Leach & Co., bankers, of Chicago, for an issue of $28,000,000 of its bonds, bearing interest at 5 per cent, to be sold at not less than 90. One of the conditions of such contract was that the same should be approved by the military governor and that the Cuban Government should contribute $300,000 per year for forty years toward paying the interest and providing a sinking fund for the repayment of the debt;

That the contract between the municipality and the bankers was not signed until two days before the United States military government handed over the government of the island to the people of Cuba;

That in consequence, it became necessary to take other steps for the approval of the bond contract by the President of the Republic of Cuba and by the Cuban Congress;

That thereupon the municipality of Habana filed a petition directed to the Cuban Congress asking it to authorize the President of the Republic to give his approval to said bond contract and to vote the payment by the Cuban Government of the sum of $300,000 annually in aid of the said bond issue; and a bill is now pending in the Cuban Congress for said purpose.

That said bill, after its introduction into the Cuban Congress, was referred to the finance committee of the Cuban Senate; that it has remained there for a long time without further action, and although attempts have been made to have it reported from the committee no action has been taken thereon.

That under these circumstances there is great danger that the whole project and plan for the sanitation of the city of Habana devised by the United States military government and constituted in the contract between the municipality of Habana and Messrs. McGivney & Rokeby, above mentioned, will lapse by reason of the apparent neglect and indifference toward it of the Cuban Government and Congress.

It has been represented to the Department that the situation of this great work of improvement and the attitude of the Cubans themselves toward it are substantially as follows:

That the sanitation of Habana is a local improvement to one city in one province of the island when there are six provinces represented in the national government; that there is objection on the part of the representatives of the five other provinces to thus helping out the municipality of Habana to the extent of the $300,000 per year for forty years for a local improvement.

That the opponents of the bill in the Cuban Congress and also in Habana itself declare that the city of Habana is one of the healthiest cities in the world and that there is no necessity of any sewerage system or of going to any expense for sanitation, notwithstanding the fact that Habana is a city of over 250,000 population, with only a few short sewers and the great majority of its houses dependent upon cesspools and gutter sewers on the surface of the streets.

That for the reason stated the Cubans object to carrying out the McGivney & Rokeby contract, and by thus refusing to furnish the necessary funds to carry out the contract are preventing the consummation and the execution of this great work of internal improvement.

The United States Government is vitally interested in seeing that the plans for the sanitation for the city of Habana devised and partially carried out under the military government should be completed under the Government of the Cuban Republic.

In view of the fact that under the provisions of the Piatt amendment and the subsequent proceedings under it above recited, the Cuban National Government is under the obligation to sanitate the cities of the island, that government should act willingly and promptly so as to hasten the due fulfillment by itself of its own solemn covenant with the United States of America.

It is therefore apparent that great public interests are at stake and that such appropriate action on the part of that government should be taken as will result in the consummation of the plans “devised” for the sanitation of the city of Habana by the United States Government itself and “agreed upon” by both of the sovereignties concerned, as above set forth.

Under the circumstances, as represented, you are hereby directed to bring this matter to the attention of the Government of the Republic of Cuba and to urge upon it the great interest which the United States Government has in the sanitation of the cities of the island of Cuba under her covenants contained in the appendix to her constitution and under the treaty of May 23, 1903, between the two governments.

You will also say that this government is also desirous of opening negotiations for the formal drafting and execution of a treaty between the two nations in regard to the subject-matter as is provided to be entered into by the eighth clause of the act of Congress above recited and the appendix to the Cuban constitution.

Inclosed are two copies of a brief,^a one for your own use and one for the use of the Cuban Government, prepared by R. Floyd Clarke, attorney for the McGivney & Rokeby Construction Company.

I am, etc.,

John Hay.

1. Not printed.