Now, therefore, be it known that I, William McKinley, President of the United States of America, have caused the said Treaty to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this 22nd day of April, in the year of Our Lord one thousand nine hundred and one, and of the Independence of the United States the one hundred and twenty-fifth. SIR: In a dispatch dated May 5, 1901, Mr. Pickerell, the United States consul at St. Michaels, Azores, reported to the Department that he had been requested by the British consul there to act for him during his proposed absence in England. In reply the Department cheerfully gave its permission on the understanding that Mr. Pickerell's so acting shall be entirely agreeable to the British Government and to the local authorities at St. Michaels, and that any duties he might be called upon to perform in this connection shall be as consul of the United States temporarily in charge of the British consulate, and all papers to be so signed. You will communicate this to the British Government. I am, etc., Mr. Choate to Mr. Hay. DAVID J. HILL. No. 598.] AMERICAN EMBASSY, SIR: With reference to your instruction No. 644, of the 29th ultimo, relating to the action of Mr. Pickerell, our consul at St. Michaels, Azores, in taking charge of the British consulate during the proposed absence of the British consul, I have the honor to inclose herewith a copy of a note from the foreign office, dated the 19th instant, conveying the thanks of His Majesty's Government for the courtesy of the United States Government in the matter. JOSEPH H. CHOATE. I have, etc., [Inclosure.] Lor Lansdowne to Mr. Choate. FOREIGN OFFICE, June 19, 1901. SIR: I have the honor to acknowledge the receipt of your excellency's note of the 13th instant and to inform you that His Majesty's consul at the Azores had already reported for the sanction of His Majesty's Government the arrangement by which his duties will be performed during his absence by the consul of the United States. I have to request your excellency to convey to the United States Government the thanks of His Majesty's Government for their courtesy in this matter. I have, etc., LANSDOWNE. RIGHTS OF BRITISH SUBJECTS IN CUBA ARE NOT GOVERNED BY TREATIES, EITHER WITH THE UNITED STATES OR SPAIN, BUT BY ALIEN LAW OF 1870. MEMORANDUM. BRITISH EMBASSY, Washington, May 31, 1900. Her Majesty's embassy has been directed by Her Majesty's Government to ascertain from the United States Government what their views are as to what rights and privileges can be claimed on behalf of British subjects in Cuba. It has been assumed by Her Majesty's consul-general in Habana that, failing any declaration to the contrary, the rights and immunities hereto enjoyed by British subjects would be continued as long as the temporary occupation lasted, but he was informed by the United States military governor that the only rights which could now be claimed were those under treaties between the United States and Great Britain. It appears that Her Majesty's consul-general, immediately after his arrival, called on General Brooke, and, in reply to inquiries as to what rights British subjects would enjoy under the new régime, was informed that the existing laws would remain in force in all respects until specifically altered or modified. General Wood now states that from April 11, the date of the exchange of ratifications of the treaty of Paris, all former treaties and conventions relating to the island ceased to exist, and, as above mentioned, the only rights which could now be claimed by British subjects were those which were secured by treaties concluded between the United States and Great Britain. MEMORANDUM. DEPARTMENT OF STATE, 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 FR 1901-15 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 bas 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.] The SECRETARY OF WAR. DEPARTMENT OF JUSTICE, Washington, D. C., April 26, 1900. 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 Spanish 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. 66 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, "The ATTORNEY-GENERAL. 66 "ELIHU ROOT, Secretary of War. 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 (comparencia en 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 inhabit- ants. 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 spec al 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. |
