Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1896-05-15
here and in Spain.

here and in Spain.
The action of the state department in
insisting upon a re-trial at least of the
American prisoners is evidently an
answer to the contention of court
martial, that the Gushing protocol of
1877 did not apply to the present case.
The court held that it applied only to
American citizens resident in Spain or
the Spanish dominions, and as the cap
tives from the Competitor we're not in
any sense residents of Cuba, decided
that they could not claim any of the
privileges accorded by the protocol. In
the opinion of the state department this
was extremely narrow and liberal con-
structions to place upon The protocol
but while net accepting this construction
the state department guarded against
an adverse decision on the protocol by
recurring to the ancient treaty of 1895,
on the ground that If the prisoners case
was not covered by the protocol they
certainly could invoke the measure of
protection afforded by the earlier treaty.
While this treaty is not by any means
generous in the matter of privileges
held out to American prisoners, it still
contains some measure of great value
to them in just such cases as that which
has now arisen. The section of the
treaty applying to the case, in the judg-
ment of the state department, is article
viii which reads as follows
"And it is agreed that the subjects and
citizens of each of the contracting par
ties, their vessels or effects, shall not be
liable to any embargo or contention on
the part of the other, for any military
expedition or public or private purposes
whatever, and In all cases of seizure, de-
tention or arrest for debts contracted,
or offense committed BY any citizen of
the one party within the jurisdiction of
the other, the same shall be made and
prosecuted by the authority of the law
only and according to the regular course
of proceedings usual in such cases The
citizens and subjects of both parties
shall be allowed to employ such advo.
Gates, solicitors and notaries, agents and
factors, as they may judge proper, in all
their affairs and in all their trials at law,
in which they may be concerned before
the tribunal of the other party, and such
agents ahall have free access and the
taking of all examinations and evidence
which may be exhibited in the said
trials"
The contention of the state depart
partment is that, irrespective of the
Gushing protocol of 1877, the treaty
gives the American citizen certain priv
ileges that were Withheld from them by
the Spanish court martial Notably they
we're obliged to rest their defense In the
hands of Spanish officer detailed for
the purpose, and in all probability, not
particularly anxious to clear his clients,
and was prevented from selecting their
own counsel as guaranteed by the treaty
Also it is said that the prisoners we're
not accorded an opportunity to pro-
cure testimony in their own behalf
This is one of the privileges .nsepara-
able from a lawful and regular conduct.
of the prosecutor.
Altogether the indications are that
the state department is preparing to
make strong legal defense against the
execution of the death penalty in the
case of the American prisoners.