The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-10-06
Are Americans Protected AbroadS
TO THE EDITOR OF THE HERALD.

have been at once surprised and alarmed, TO 6nd
that Mr.. Webster has not only admitted correct
tie Interpretation given by the authorities Of Cuba
to treaty with Spain, but has gone Snrther, and
virtually denied the right Of American citizens,
siding abroad, 10 claim the protection of their go
yernment under any circumstances whatever For
THE and nothing less, be dednosd from the prn-
clip es set forth in his letter 10 the President.
Mr. Webster may have been Influenced by de-
sie to render Spain lees eragea'a' IN her de-
pands for satisfaction for the injuries that she has
suffered Mt our hands; but humby think that il
would have been far better, either TO grant her full
and complete satisfaction, or, by refusing it, to
have incurred the worst consequences of an open
quarrel with her. rather than TO abandon the prin-
ciple that American citizens shall everywhere be
protected in cases of Unjust persecution.
sm very much at loss to account for the very
different tone of Mr.. Webster towards Austria and
that he adopts towards Spain, for au unwilling to
believe that fear, either of Spain herself, or of
France and England, could have any influence with
such man. But the matter is one Of much inn
portance, and one in which personally interest
ed. beg to submit the following remarks upon
the "Opinon' of the Supreme Court of Havana,
the letter Of the Csptan-General to Mr.. Calderon,
and that of Mr.. Webster to the President, which
comprise the whole question, and establish an
Interpretation of the treaty with Spain, that Isl
In my opinion, fraught with danger to the interests
of Americans resident In her dominions.
If that intcrpreta ton is, as believe, erroneous,
the attention Of the government of the United
States should at once be directed to the subject;
aAd that of Spain compelled so to modify the
law of domiclle to render it consistent with the
treaty stipulations.
The Supreme Court at Havana, after some intro
ductory remarks, lays down the following principle;
These last Cforeigners) may be divided into three
GLASSES. viz transient, domciled, and naturalized.
The first preserve many ties with the country from
which they proceed, and in the Peninsula, they, as
strangers JOY certain privileges which the mother
country found it for her interest to grant. In the
colonies ndas), those privileges do not exist, be-
cause they nrse from treaties which do not extend
TO said colonies"
Now. the treaty of 18th October, l795, makes no
exception whatever of any part of the Spanish do
minions and the first arsicle expressly states that
there shall be firm and inviolabe peace, &c, &C.,
without exception OF persons or places II is true,
that at that time foreigners were not allowed to
settle in Spanish colonies; but MS the treaty made
very special provisions (artcles 7th and l3th) for
the protection of the citizens of either country resi-.
dent within the jurisdiction OF the other, it is clear
that such residence understood to be permitted
and MS 10 exception is made Of any part of the do
minions of either it is also clear that American
citizen might have claimed. under the treaty, the
right OF residing IN any part OF those of Spain, and
that any privileges he might be entitled to in tho
Peninsula he would be equally entitled to in the
colony, for those privileges restricted by the
treaty to any one part OF the Spanish dominions
1t is further clear, that the provisions of the
treaty must have embraced every part of those do
minions where foreigners could reside for the
tray suppostion would be absurd, and, therefore,
from the time the prohibition tor them to settle in
the colonies was removed, the provisions of the
treaty evidently became extensive thereto tho
other side they have Louisiana, Texas, and CALI
fornia. which were not parts OF the United States
when the treaty was made.
1t is necessary either to grant this to be true.
TO admit that there is no treaty between the
United States aud Spain affecting American eit-
zens resident IN her colonies, affecting said
colonies in any way whatever There is either
no treaty, in which case the Interpretation Of
the Ttb article Of that of 1895, and the asser-
tiops that its provisions observed made by
the Supreme Court and the Captain General, were
entirely uncolled for and useless there is irea-
ty, in which all the privileges enjoyed in
tbe PeDirsular must be granted in colonies, be-
cause spain, Lot having In the treaty itself express
ly excluded the colonies, reserved to herself the
right Il so doing, cannot by any subsequent legsa-
ton do away with or diminish the stipulatious OF
that treaty, as regards any part Of her doninions
whatever without the consent of the United States,
OF an attraction Of the treaty.
The Supreme Court goes On to state;-"The next
class OF foreigners comprises those who are called
'domiciled,' 10 acquire which character, they are
obliged TO declare their intention to establish them
selves in the island, to profess the Roman Catholic
religion, and to swear fidelity and vassallage PROM
iards are subjected "
If this Interpretation of "domciliation'' be true
ms was argued in the case Of Mr.. Thrasher, it
amounts, in plain terms, to complete renunciaton
Of all bis rights as foreigner, without emitting
him to all the privileges Of citizen; but the prnci
pal point, and that to which wish particularly to
call your attention is that foreigner is allow
cd TO remain in the country than three months
without becoming domiciled, it is de fdcfo prohi-
biion for American citizens to reside in the island,
end clear contraventon of the treaty stipuations
which provide for the protection Of such residents in
case Of war, &c. sc
The Supreme Court then proceeds to argue upon
the meaning of the seventh article of the treaty Of
1875, and, after citing it at length, says:-''The
treaty is very definite. because in civil process, for
eigneIs are never prohibited from employing such
advocates, &c &c, to intervene when their pre-
renee may be necessary. The same takes place in
criminal cases. in these however, there is partio
tried by military courts which. although com plete
and public, DO not generally admit the intervention
81 adeocates and agents, because in such cases is
substituted person designated by the accused to
direct the Defence" &c., &c,
This, regards civil process, is substantially
rect but it is not true that in criminal the adj
vocate agent ofthe accused the accused himself.
whether native or foreigner, is allowed to be
present at all the proceedings, taking Of
declarations, sc, &c. On the contrary, rs long as
the cause remains in what s called the "estQdo dc
snmana," which may and often does last for many
months no advocate or agents can take any part
whatever in the proceedings nor can the accused be
present at any part Of them, except, of course, his
own examination, which is taken in secret by the
judge ana notary; and it is not until the cause be
declared ''obierta a prueba,' tina. any steps what
ever can be taken for the defence In the mean
time it is only by bribing the notary that the &C
cused his friends learn the nature of the evil
dence, Sc, against him.
II was no doubt to provide against this we'll
known and detestable feature of Spanish jurispru-
oeDoe, which holds man guilty until he proves his
innocence, and every short OF torture to
force him to involve and inculpate himself that the
seventh article of the treaty expressly stipulated
that American citizens should have the right Of
choosing their own advocates, who should be permit.
ted to be present at all the stages OF the proceedings
But what becomes of that right in cases like that
Of Mr.. Thrasher, where the choice Of advocate is
restricted TO the officers Of regiment, subjected in
every respect 10 the control Of the superior officers
sitting in judgment, and almost without exception
enemies Of the accused Can this be what is called