No. 770.]

No. 426.

General Sickles to Mr. Fish.

UNITED STATES LEGATION IN SPAIN,

Madrid, October 23, 1873. (Received Nov. 12.) SIR: Referring to my dispatch No. 757, of the 17th instant, in relation to the concerted action taken with the representatives of England and Sweden in this capital, with reference to the existing system of customs, regulations, and fines in Cuba, I have now the honor to forward herewith copies of the notes sent in to this government by Mr. Layard and Mr. Lindstrand on the 16th instant, in pursuance of our agreement. I am, &c.,

[Inclosure 1.]

D. E. SICKLES.

Mr. Layard to minister for foreign affairs.

MADRID, October 16, 1873.

M. LE MINISTRE: It has been my duty, acting under instructions from my government, to call the serious attention of the Spanish government, on various occasions, to the injuries inflicted upon British trade and shipping in Cuba in consequence of the fines imposed upon ship-masters by the custom-house authorities in that island for alleged violation of the customs laws and regulations. It is unnecessary for me to recapitulate the many complaints, on the part of British ship-owners and ship-masters, which I have been compelled to submit to the department of state with reference to this subject. Some of them still remain unredressed. But I would especially refer your excellency to a memorandum, dated the 14th December of last year, which I placed in the hands of Señor Martos, then minister for foreign affairs. Unfortunately, hitherto, notwithstanding the repeated representations and remonstrances of Her Majesty's government, the system of levying fines on foreign shipping in Cuba, which has led to so much injustice and to such grave hardships, has not been essentially modified; and even when the supreme government, recognizing that injustice and those hardships, has given orders that fines wrongfully levied should be remitted and repaid, its orders have either not been obeyed, or years have elapsed before the sums thus extorted have been returned.

I particularly beg to call your excellency's notice to the fact that the fines imposed upon the British vessels Evening Star and San José- so far back as June, 1869, in the case of the latter vessel-as far as I am aware have not to this day been repaid, notwithstanding the repeated remonstrances of Her Majesty's government and the repeated orders sent by the supreme government to the Cuban authorities for their repayment.

The great difficulty, I might almost say the impossibility of satisfying the alleged requirements of the Cuban custom laws, and of escaping the imposition of heavy fines, although there may be no intention whatever on the part of ship-masters to evade the revenue laws, but on the contrary every desire to comply with them, is partly caused by the many successive and contradictory orders, decrees, and circulars that have been published from time to time during the last few years, commencing from the royal order of 1st July, 1859. It is scarcely possible to ascertain what regulations are actually in force. It now appears that the English and French translations of the decree of 1857, containing the rules to be observed by the captains and supercargoes of vessels in Cuba, published officially by the Spanish government, differ essentially from the original, and ship-owners and ship-masters have consequently been led into error by trasting to those translations, and have inadvertently exposed themselves to heavy penalties.

With reference to the fines imposed for mistakes, omissions, or other irregularities in the ship's manifest, ship-owners and ship-masters complain that, by the Cuban customs regulations, they are unjustly made to suffer for the acts of others, over whom they cannot have any control. In making out their manifests, they are entirely dependent on the shippers of cargo for information as to the weights, values, and contents of packages shipped; yet, in consequence of false or inaccurate descriptions given of consignments, fines are imposed on their vessels, often largely in excess of the freight received. It

would be just that, whenever the manifest and the bill of lading agree, and the contents, weights, or value of any package be found on examination to differ from the descriptions of the same in the manifests, the penalty thereby incurred should be imposed on the goods in the said package, and not upon the vessel.

It further appears that the custom-house authorities at the several ports in Cuba place different constructions on the laws and regulations prescribing the form and contents of a ship's manifest. Thus fines have been imposed in one port for stating that for which fines were imposed in another port for omitting. As it is required that the manifest shall be certified in duplicate by the Spanish consul at or nearest to the port of shipment, the manifest thus certified should be accepted in any of the ports of Cuba as regular and sufficient in form. It, however, sometimes happens that fines are imposed upon vessels for an error or oversight committed by the Spanish consul himself; surely this is not just or reasonable.

It is likewise stated that ship-masters are only informed at the last moment before the departure of their vessels of fines imposed upon them; usually when application is made at the custom-house to clear the ship for another port. The vessel may conse quently be indefinitely detained, and the owners exposed to the most serious loss and inconvenience, unless the fine, however unjust, be paid. It would seem reasonable that the custom-house authorities should make known to the captains or supercargoes of vessels all fines for irregularities in ships' papers within forty-eight hours after those documents shall have been delivered to the proper officer.

With the utmost desire on the part of ship-masters to conform to the requirements of the custom-house authorities in filling up the ship's manifest, they find it almost impossible not to afford some pretext for the imposition of fines, varying from $25 to $300, The most trilling mistakas or omissions, a mere verbal inaccuracy, expose them to heavy penalties.

There are certain points, however, upon which it is highly desirable that the supreme government should issue some distinct and authoritative declaration in order that doubts raised by the various interpretations given to existing orders and decrees should be removed. The principal appear to be :

1. Is a third manifest necessary in addition to the two required to be certified by the Spanish consul?

2. Is it necessary that foreign vessels should state their tonnage according to Spanish measurement ?

3. Is it enough that the manifest state generally the class of merchandise, comprising the cargo, with the marks, numbers, and weight of packages, or must the contents of each and every package be particularly described? I would venture to suggest that whenever the manifest and bill of lading agree, and the contents of the packages are found, on examination, to differ materially from the description of the same in the manifest, the penalty thereby incurred should be imposed upon the goods and not upon the vessel.

I would further submit, to the end that foreign ship-masters entering Cuban ports may be relieved from the hardship and vexation of so many penalties imposed for trivial informalities in the manifest, that the certificate of the Spanish consul at the port of departure should be accepted as a sufficient authentication of that document. I would also suggest that the custom-house authorities in Cuba should be directed to make known to the captains or supercargoes of vessels all fines for irregularities in ships' papers within forty-eight hours after they shall have been delivered to the proper

officer.

I need scarcely assure your excellency that Her Majesty's government, in instructing me to place before your excellency the above suggestions, has no desire whatever to question the right of the Spanish government to make and enforce such laws and regulations as it may consider necessary for the protection of its revenue. Her Majesty's government is convinced that it will be for the interest of both Spain and England, and will tend to the development of the legitimate commerce between them, if all unnecessary difficulties thrown in the way of British ship-owners, such as those I have described, be removed. It is, therefore, with confidence that I submit the foregoing statement to your excellency's enlightened judgment, believing, at the same time, that as his excellency, the minister for the colonies, is about to proceed on a mission to the Antilles, the moment is especially opportune for inquiry into a matter which so intimately concerns the friendly intercourse between the two nations.

I avail, &c.,

His Excellency the MINISTER OF STATE, &'c., &'c., §c.

A. H. LAYARD.

[Inclosure 2.-Translation.]

Mr. Lindstrand to Mr. Carvajal.

MADRID, October 16, 1873. Mr. MINISTER: In a dispatch which I have just received, the government of the King, my august sovereign, referring to the desire expressed by that of the United States of America to obtain its co-operation in the representations which the minister of the United States at Madrid has been instructed to make to the Spanish government concerning the customs laws of the island of Cuba, instructs me to co-operate in such measures as it may be deemed necessary to adopt for the purpose of securing a modification of these laws.

While I have the honor hereby to obey this superior order, I think that it is not necessary for me to enter into any minute statements, inasmuch as the motives set forth in the note of General Sickles of this date are entirely in harmony with the views of the government of the King. The necessity of a simplification of the custom-house regulations, as well as of a mitigation of penalties, are therein clearly demonstrated; the obstacles which these laws place in the way of the development of international relations are constantly giving rise to complaints, which daily become more urgent on the part of merchants and navigators, and it is evident that the adoption of a new régime, which will do away with all annoying and superfluous formalities, and proportion the penalties inflicted to the offense, cannot fail to exercise the most salutary influence upon commerce between the island of Cuba and foreign countries. The time seems to me to have arrived for the introduction of the desired reforms, and I feel confident that the Spanish government, desirous of giving us evidence of the lofty sentiments which actuate it, will view this step with favor, and adopt a decision in accordance with the legitimate desires of those interested.

I avail myself, &c.,

His Excellency M. DE CARVAJAL,

Minister of State of Spain, &c., Sc., &c.

LINDSTRAND.

No. 427.

Mr. Fish to Admiral Polo de Bernabé.

DEPARTMENT OF STATE, Washington, December 17, 1872.

SIR: I have the honor to acknowledge the receipt of your note of the 31st of October, 1872, in relation to the case of Augustin Santa Rosa. A perusal of the extracts from the dispatch of the captain-general of the island of Cuba (embodied in your note) induces the belief that the captain-general had not been put in possession of all the facts and circumstances of the transaction at the time of his writing that dispatch, and that a full and correct knowledge of these facts and circumstances would have led him to a different conclusion.

With a view to a clear and perfect understanding of the reasons for the immediate release of Santa Rosa, which I am now about to submit, I take occasion to state briefly the facts, as they have come to the knowledge of this Department from information deemed satisfactory. It appears that in June, 1871, Santa Rosa being then engaged in the insurrection, was hotly pursued by detachments from the forces under command of Colonel Laba Marin; that by flight and strategy he had several times escaped capture. On the 4th of July of that year Santa Rosa received a letter from Colonel Marin, in which the latter proposed to him that, if he would surrender, he, Santa Rosa, should receive a general amnesty and pardon for all his previous insurrectionary acts against the Spanish authority in Cuba, reserving only to the government the option of allowing Santa Rosa to remain in Cuba or banishing him from the

Spanish dominions. On the conditions just expressed, Santa Rosa surrendered on the same day the proposition was made, relying on the word of a soldier for the fulfillment of the conditions. Colonel Marin kept his word, and on the next day furnished Santa Rosa with a letter of general safe-conduct and intrusted him with written communications, to be carried by him to the insurgent camp. Exposure and hardship had so told on Santa Rosa that he was prostrated with illness on the journey, and was found insensible in the fields by three men, who took him to their hut. There he remained until the end of August, when a scouting party from the encampment of San Geronimo took him, with thirty-six others, prisoners, and conveyed them to the encampment aforesaid. There they took from Santa Rosa the communications from Colonel Marin to the insurgents, of which Santa Rosa was the bearer, Marin's letter of safe-conduct to him, and also the letter of Marin, which contained the proposition for surrender and pardon, thus depriving him of the best means of protecting himself from the punishments denounced against the insurgents. He was detained there until the 28th of September, when he was sent to Puerto Principe. Here the military governor, upon hearing the conditions of his surrender, at once discharged him. Two months after, on the 28th of November, he was again arrested, imprisoned, and with several others subjected to a military trial and examined as to the events of the insurrection and the capture of the steamer Comandatario. All the depositions and documents were forwared to the captain-general, (Valmaseda,) and on the 14th of March, 1872, Santa Rosa was, by his order, released. Santa Rosa now turned his attention to earning money sufficient to defray his expenses to the United States, where his family were. Having secured this, on the 9th of July, 1872, he applied to the proper officer of police for a permit to go to Havana. It was granted. He proceeded to Havana by steamer; reached that city on the 13th of July, took up his lodgings at the Western Inn, and immediately reported himself to the commissary of police. On the night of that day he was arrested at his lodgings by this same commissary of police and three policemen, and the next day bound and taken through the streets to the public prison, where he is still held in close confinement on the charge founded on his participation in the capture of the Comandatario. After remaining in prison fifty-four days, on a visit of the Spanish admiral to the prison, Santa Rosa presented his case to him, and that officer assured him that if upon inquiry, which was then being made, he found the fact that Santa Rosa had been pardoned, true, he would release him. Santa Rosa, however, still remains in prison.

In the extracts from the communication of the captain-general which you have done me the honor to transmit in your note, the fact of Santa Rosa's pardon is conceded; the arguments of his excellency are directed solely to a limitation of its terms. The capture of the Comandatario, it is insisted by the captain-general, was a common crime, like that of robbery, murder, or arson; that it was, moreover, the crime of piracy, which is denounced by the codes of all nations, and therefore cannot be understood to have been included in or covered by a pardon for his insurrectionary acts. The circumstances attending the granting of the pardon; the terms of the pardon itself requiring only the one condition of his be ing allowed to remain or compelled to leave the colony-the status of Santa Rosa, his relation to and attitude toward the Spanish government at the time he accepted the pardon, all forbid its interpretation in the restrictive sense in which the captain-general claims that it must be understood. Among the Spanish authorities who were called upon to interpret this par

don the captain-general stands alone in the construction which he claims for it. Colonel Marin, who represented the government in the negotiations which resulted in Santa Rosa's surrender, did not understand the pardon in this restrictive sense. The military governor at Puerto Principe did not so understand it; on the contrary, when he became satisfied of the facts and the conditions upon which Santa Rosa surrendered, he promptly released him. But the interpretation claimed for it on behalf of Santa Rosa has still higher authority to support it. After his second arrest in November, 1871, at Puerto Principe, before a military court of inquiry, with an army officer appointed to conduct the examination on the part of the government, Santa Rosa was interrogated touching the events of the Cuban insurrection and the capture of the Comandatario. The proceedings of that court, with the evidence, documentary and other, were submitted to the captain-general, (Count Valmaseda,) and with all the facts before him, on the 14th of March following, that distinguished officer ordered Santa Rosa to be discharged; and in pursuance of such order, and in accordance with the plain import of his pardon, he was again released.

It is not the nature of the crime which may be involved in the capture of the Comandatario that is now being discussed, but rather the character which attaches to that crime, growing out of the relation in which Santa Rosa stood to the Spanish government at the moment of his participation in that capture. If he was then in a hostile attitude toward the local government of Cuba, associated with the insurrectionists who were seeking the overthrow of that government, and aiding them in their revolutionary efforts, then his acts, in connection with that enterprise, (whatever views may be taken of these acts abstractly considered,) would be taken as a political offense, and must be understood to have been included in and covered by the proposition of pardon tendered on behalf of the government by Colonel Marin, and by which that officer secured the surrender of Santa Rosa. That this was the character in which Santa Rosa was held and treated by the local authorities of Cuba long prior to the date of the Comandatario capture, (May, 1869,) the public records of the government in Cuba will, it is believed, abundantly show as early as November, 1868, (the precise date is not known,) that Santa Rosa was arrested by the government authorities of the island, and confined in Moro Castle on a charge of being "chief of insurrection." Fro this imprisonment, it appears, he was released on the 13th of Januar 1869, under a decree of general amnesty to all political prisoners, proclaimed by the captain-general, (Dulce.) Following closely on this release from confinement, Santa Rosa seems to have again joined himself to the insurgents, and the fact that he continued from thence up to the date of his surrender to Colonel Marin to maintain an attitude of active hostility to the Spanish government, and especially the Cuban authorities, is, I submit, clearly inferable from all the facts and circumstances of the case. At his trial, in November, 1871, before a military courtmartial at Puerto Principe, he was called upon to answer for his past insurrectionary acts, among which his participation in the capture of the Comandatario was included. Upon what other ground than that the Comandatario affair was considered as a political and insurrectionary crime could it have been embraced in those proceedings?

There is still another consideration which, it is believed, should have great weight in determining the matter in dispute in favor of Santa Rosa. Colonel Marin, who represented his government in the transaction of the surrender and pardon, and Santa Rosa stood in the relation to each other of soldiers in opposing and hostile forces; Marin proposed to Santa Rosa