7.

ESPAGNE, ÉTATS-UNIS D'AMÉRIQUE.

Arrangement pour régler à l'amiable les réclamations formées par des citoyens américains contre l'Espagne au sujet des évènements de Cuba; signé à Madrid, le 12 février 1871, suivi d'un Règlement de procédure arrêté par la commission mixte, le 1er juillet 1872.

Treaties and Conventions. Rev. Ed. 1873. App. p. 921.*)

Memorandum of an arbitration for the settlement of the claims of citizens of the United States, or of their heirs, against the Government of Spain for wrongs and injuries committed against their persons and property, or against the persons and property of citizens of whom the said heirs are the legal representatives, by the authorities of Spain, in the island of Cuba, or within the maritime jurisdiction thereof, since the commencement of the present insurrection.

1. It is agreed that all such claims shall be submitted to arbitrators, one to be appointed by the Secretary of State of the United States, another by the Envoy Extraordinary and Minister Plenipotentiary of Spain at Washington, and these two to name an umpire who shall decide all questionsupon which they shall be unable to agree; and in case the place of either arbitrator or of the umpire shall from any cause become vacant, such vacancy shall be filled forthwith in the manner herein provided for the original appointment.

2. The arbitrators and umpire so named shall meet at Washington within one month from the date of their appointment, and shall, before proceeding to business, make and subscribe a solemn declaration that they will impartially hear and determine, to the best of their judgment, and according to public law and the treaties in force between the two countries and these present stipulations, all such claims as shall, in conformity with this agreement, be laid before them on the part of the Government of the United States; and such declaration shall be entered upon the record of their proceedings.

3. Each Government may name an advocate to appear before the arbitrators or the umpire, to represent the interests of the parties respectively.

4. The arbitrators shall have full power, subject to these stipulations, and it shall be their duty, before proceeding with the hearing and decision of any case, to make and publish convenient rules prescribing the time and manner of the presentation of claims and of the proof thereof; and any disagreement with reference to the said rules of proceeding shall be

*) Le Règlement a été emprunté aux Archives de droit international et de législation comparée, 1re année, 1874. No. II. p. 118.

Nouv. Recueil Gén, 20 S. I.

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decided by the umpire. It is understood that a reasonable period shall be allowed for the presentation of the proofs; that all claims, and the testimony in favor of them, shall be presented only through the Government of the United States; that the award made in each case shall be in writing, and if indemnity be given, the sum to be paid shall be expressed in the gold coin of the United States.

5. The arbitrators shall have jurisdiction of all claims presented to them by the Government of the United States for injuries done to citizens of the United States by the authorities of Spain, in Cuba, since the first day of October, 1868. Adjudications of the tribunals in Cuba concerning citizens of the United States, made in the absence of the parties interested, or in violation of international law or of the guarantees and forms provided for in the treaty of October 27, 1795,*) between the United States and Spain, may be reviewed by the arbitrators, who shall make such award in any such case as they shall deem just. No judgment of a Spanish tribunal disallowing the affirmation of a party that he is a citizen of the United States, shall prevent the arbitrators from hearing a reclamation presented in behalf af said party by the United States Government; nevertheless, in any case heard by the arbitrators, the Spanish Government may traverse the allegation of American citizenship, and thereupon competent and sufficient proof thereof will be required. The commission having recognized the quality of American citizens in the claimants, they will acquire the rights accorded to them by the present stipulations as such citizens. And it is further agreed that the arbitrators shall not have jurisdiction of any reclamation made in behalf of a native-born Spanish subject naturalized in the United States, if it shall appear that the same subject-matter having been adjudicated by a competent tribunal in Cuba and the claimant, having appeared therein, either in person or by his duly appointed attorney, and being required by the laws of Spain to make a declaration of his nationality, failed to declare that he was a citizen of the United States; in such case, and for the purposes of this arbitration, it shall be deemed and taken that the claimant, by his own default, had renounced his allegiance to the United States. And it is further agreed that the arbitrators shall not have jurisdiction of any demands growing out of contracts.

6. The expenses of the arbitration will be defrayed by a percentage to be added to the amount awarded. The compensation of the arbitrators and umpire shall not exceed three thousand dollars each; the same allowance shall be made to each of the two Governments; and the arbitrators may employ a secretary at a compensation not exceeding the sum of five dollars a day for every day actually and necessarily given to the business of the arbitration.

7. The two Governments will accept the awards made in the several cases submitted to the said arbitration as final and conclusive, and will give full effect to the same in good faith and as soon as possible.

*) V. R. VI. 560. R. 2, VI. 142. (Texte anglais et traduction française.)

Regulations now in force, of the Commission on claims of citizens of the United States against Spain, by agreement of february 12, 1871.

I. In addition to the represensation of his claim, and the exhibits or proofs in support thereof, which may have been or shall be presented to or filed in the Department of State of the United States, every claimant shall file, in the office of this Commission, a statement of his claim in the form of a memorial.

II. Every memorial shall show the full name of the claimant, his place of birth, and, if he be a naturalized citizen of the United States, the time and place and the style of court before which his declaration of intention< shall have been made, and the time and place and the style of court by which his letters of naturalization shall have been granted; and authenticated copies of both these acts shall be exhibited with the memorial. Secondary evidence will be admitted upon proper foundation, according to recognized rules of evidence.

III. If the claim be preferred on behalf of a firm or association of persons, the name of each person interested, both at the date the claim accrued and at the date of verifying the memorial, must be stated, with the proportions of the interests of each person.

IV. Each memorial shall state the particulars of the claim, the general ground on which it is founded under the public international law, and the amount claimed. It shall be verified by the oath of the claimant, or, if the claim be by a firm or association of persons, by the oath of one of them; or in the case of a corporation, by the oath of the president, secretary, or other officer thereof: such oaths to be taken, if in the United States, before any officer having power to administer judicial oaths according to the law of the place where administered, and the official character of such officer shall be duly authenticated according to the laws of said place. If such oath be taken without the territory of the United States, it may be administered by the legation or nearest consul of the United States.

V. The arbitrators may, in their discretion, order any claimant to answer on oath such interrogatories as may be submitted to the Commission for the purpose, by or on behalf of either government.

VI. Every claimant shall be allowed two months' time, next following the filing of his memorial, in which to take and file his proofs, and three months next following the same shall be allowed for the taking and filing of proofs on the part of Spain; which respective periods may be prolonged by special order on cause shown.

VII. All depositions shall be taken on notice, specifying the time and place of taking, to be filed in the office of the Commission, with a copy of the interrogatories, or upon a statement in writing by the advocate of the government adducing the witness, to be filed in like manner, showing the subject of the particular examination with sufficient precision to be accepted by the advocate of the government against whom such witness is to be produced, to be signified by his indorsement thereon; such interrogatories or statement to be filed in the office of the Commission at least twenty-one days before the day named for the examination.

Every disposition taken, either in the United States, or in Spain or her possessions,*) shall be taken before some officer competent to administer judicial oaths under the laws of the place, whose official character shall be duly authenticated according to said laws; and each witness shall state whether he is interested, directly or indirectly, and how, in the matter of the claim, and whether he is agent or attorney for any party interested directly or indirectly therein.

Depositions taken outside of the United States, or of Spain and her possessions,

*) Une sous-commission a été nommée pour recueillir des dépositions et des documents dans l'ile de Cuba. Ses rapports avec la commission principale ont été l'objet d'un règlement spécial du 16 mai 1873.

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may be taken before the legation or nearest consul of either government, in the election of the advocate thereof.

VIII. Public acts, decrees, orders, laws, and other official instruments and copies, shall be authenticated according to the country from which they emanate.

IX. Such documents and proofs are liable to be impeached for fraud, in any manner recognized in similar cases, by the laws of the country from which they emanate, or by the laws of nations.

X. After the proofs on the part of Spain shall have been closed and filed, the Commission shall, in every case, when the claimant shall desire to take rebutting proof, accord a reasonable time, in its discretion, for the taking of such rebutting proof.

XI. The rules of evidence, as to the competency, relevancy, and effect of the same, shall be determined by the Commission, in view of these regulations, the laws of the two nations, and the public law.

XII. Each memorial, and all exhibits and proofs, shall be filed in original manuscript, and the same, and all matter, including briefs and arguments, shall be printed at the expense of the party adducing or propounding the same; at least thirty printed copies of each being filed.

XIII. All cases will be submitted on printed arguments, but brief oral explanations will be received at all times from the advocate of either government. Arguments of special counsel will be received in print, when submitted by the advocate of either government, and not otherwise.

XIV. All claims filed with the Commission shall be entered in a docket to be kept by the secretary.

On the first Monday in December next the arbitrators will proceed to call and hear any case or cases which may be ready for hearing, in conformity with these regulations.

XV. The Secretary shall take charge of all the papers belonging to the Commission. He will not allow them to be withdrawn from the office, but will furnish to parties, or special counsel, all convenient opportunity for inspecting the same, and making extracts therefrom in his presence.

XVI. In all cases heretofore filed before this Commission, the memorials and exhibits now on file in the English language shall be translated into Spanish, and such translations shall be furnished and filed by the respective claimants on or before the first day of June, 1872.

In all cases of memorials and exhibits hereafter to be filed, the claimants are required to furnish such translations, and to file the same, together with the English originals of the printed copies now required by the rules; fifteen shall be in English and fifteen in Spanish.

Printed briefs and arguments may be filed in the English lauguage only, as heretofore.

By order of the Commission.

8.

ESPAGNE, ÉTATS-UNIS D'AMÉRIQUE.

Protocoles signés à Washington, le 29 novembre et 8 décembre 1873, pour l'arrangement de l'affaire Virginius.

Message from the President o. t. U. S. 15 mars 1875, pp. 3 et 4.

No. 1. The undersigned, having met for the purpose of entering into a definitive agreement respecting the case of the steamer Virginius, which, while under the flag of the United States, was, on the 31st

of October last, captured on the high seas by the Spanish man-of-war Tornado, have reached the following conclusions:

Spain, on her part, stipulates to restore forthwith the vessel referred. to, and the survivors of her passengers and crew, and on the 25th day of December next to salute the flag of the United States. If, however, before that date Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable; but the United States will expect, in such case, a disclaimer of intent of indignity to its flag in the act which was committed.

Furthermore, if, on or before the 25th of December, 1873, it shall be made to appear to the satisfaction of the United States that the Virginius did not rightfully carry the American flag, and was not entitled to American papers, the United States will institute inquiry, and adopt legal proceedings against the vessel, if it be found that she has violated any law of the United States, and against any of the persons who may appear to have been guilty of illegal acts in connection therewith; it being understood that Spain will proceed, according to the second*) proposition made to General Sickles, and communicated in his telegram read to Admiral Polo on the 27th instant, to investigate the conduct of those of her authorities who have infringed Spanish laws or treaty obligations, and will arraign them before competent courts and inflict punishment on those who may have offended.

Other reciprocal reclamations to be the subject of consideration and arrangement between the two governments; and, in case of no agreement, to be the subject of arbitration, if the constitutional assent of the Senate of the United States be given thereto.

It is further stipulated that the time, manner, and place for the surrender of the Virginius, and the survivors of those who were on board of her at the time of her capture, and also the time, manner, and place for the salute to the flag of the United States, if there should be occasion for such salute, shall be subject to arrangement between the undersigned within the next two days.

Hamilton Fish.

José Polo de Bernabé.

No. 2. On this 8th day of December, 1873, Hamilton Fish, Secretary of State of the United States, and Admiral Polo de Bernabé, the envoy extraordinary and minister plenipotentiary of Spain, met for the purpose of arranging and determining the time, manner, and place for the surrender of the Virginius, and the survivors of those who were on

*) Cette proposition était ainsi conçue: »Second. If it be proved that in the proceedings or sentences pronounced against foreigners by the authorities of Santiago de Cuba there has been an essential failure to comply with the provisions of our legislation or of treaties, the government will arraign those authorities before the competent tribunals.<<