CHAPTER XXIII

THE CASE OF THE 'COMPETITOR."-THE ANNUAL MESSAGE OF 1896. THE ACTION IN CONGRESS

THE affair of the Competitor came to accentuate the gravity of Spain's decision. This schooner, April 20, 1896, had cleared from Key West for Port Lemon, Fla., with twenty-four passengers; her crew was composed of the master, Laborde; Gildea, mate; Leavitt and Barnett, seamen; and Gurk, the cook. There was also aboard a young man from Kansas, named Melton, a newspaper correspondent.

Off Cape Sable, April 22, if we are to believe the affidavits of the master, mate, and Melton, which in the circumstances need to be taken with doubt, the passengers took charge by force, went to Cape Sable, and there received twenty-five others, with arms and ammunition. The schooner reached the north shore of Cuba at Point Berracos, some seventy miles west of Havana, April 25, and there landed her passengers and material. Shortly after she was sighted by the Spanish armed launch, Mensajora. There were aboard the schooner at this moment, Laborde, Gildea, Melton, and three passengers, Vedia, Masa, and Quesada. The two seamen and the cook had gone ashore.1 Laborde, Gildea, and Quesada attempted to escape by swimming ashore; the two first were seized in the water, but the last was drowned. All the others were taken to Havana where they arrived May 29.

Laborde claimed to be born in New Orleans of Cuban parents; Gildea, born in Liverpool, was a British subject, but both were entitled under article 171 of the American Consular Regulations to American protection. The consul-general at once demanded that the case should come under the terms of the treaty of 1795 and the protocol of 1877.

1 The seamen were captured on May 11 and taken to Havana. This article, based on statutes, reads:

"That the circumstance that the vessel is American is evidence that the

1896]

THE "COMPETITOR" CASE

469

The extended and active correspondence of the next few days (from the 7th to the 9th of May) developed the views of the judgeadvocate that "foreigners without distinction of nationality are subject to the laws and courts of Spain for crimes committed within Spanish territory"; that whatever interpretation "may be given to the treaty and its meaning given by the protocol, this [latter] from its beginning declares it only embraces resident American citizens, and these only in the case of not being arrested with arms in hand," circumstances which he claimed "do not concur in the present case." He also assumed that foreigners must be inscribed in the register of the provincial governments and at their consulates in order to be regarded residents, and that the law of April, 1821, invoked by the consul-general was derogated by Spanish laws of subsequent enactment.1

12

The judge-advocate finally extended his views sufficiently to declare the protocol of 1877 an expression only of private opinion; that it was not "even an addition nor complement of any pre-existing treaty,' to all of which the consul-general steadily replied that the treaty of 1795 was still existent, that the protocol could in no wise detract from the force of the treaty, and that in the interpretation of the protocol the latter must "conform to the treaty, and not the treaty to the protocol." 3

The summary court proceeded with the case and on May 8 pronounced sentence of death upon all with the exception of the man Masa. But already, in response to a request from Washington, May 1, telegraphic instructions had arrived from Madrid

crew on board are such, and that in every regularly documented vessel, the crew will find their protection in the flag which covers them."

The British consul-general, requesting Consul-General Williams, May 8, to extend his aid to Gildea, said: "As I understand the Competitor is an American vessel, it appears to me that you alone are competent to intervene." On hearing, on the 8th, of the sentence of death, Mr. Gollan (the British consul-general) wrote the governor-general and admiral requesting suspension of execution until he could telegraph the British Foreign Office. On the 9th the admiral informed him that, in deference to his wishes, he had telegraphed the government at Madrid. On the 10th he was informed that the execution had been suspended and that the case had been remitted to the supreme council of war. Foreign Relations, 1896, 731, 732.

'Judge-advocate to commander-in-chief of West Indian Station (under whom the case came), May 7, 1896, Senate Doc. 79, 54 Cong., 2 Sess., 211. 2 Ibid., 216. * Ibid., 209-217.

470

THE "COMPETITOR" CASE

[1896

suspending all executive action until examination could be made as to the citizenship of the prisoners,' and the entire record shortly after was ordered sent to Madrid for review, the final outcome being the release, November, 1897, of all the prisoners, including the two seamen escaped ashore who were captured May 11.

But this unhappy case, which, if dealt with with greater judgment, would probably have helped the cause of Spain, aroused deepest feeling in Cuba, the Peninsula, and the United States. Both at Havana and Madrid the public demanded that the prisoners be shot as pirates, while in Washington it was seized upon as a new and terrible case of martyrdom of heroes of Cuban liberty and independence.2

Before the question had become imminent, Senator Call, on May 5, demanded that Congress should request the President to protest against the execution of the Competitor prisoners, and endeavor to obtain for them the treatment of prisoners of war. Senator Morgan made a violent speech, May 15, ending in declaring that all relations should be suspended with the Spanish government until the proceedings of the court at Havana should have been annulled. The resolution which he offered, calling for the correspondence in the case, was adopted by the committee on foreign affairs and by the Senate, but the President refused to communicate the correspondence. On June 3 and 5 Senator Morgan appealed to the statutes giving all citizens of the United States abroad the protection of their government, declaring that every day passed by the Competitor prisoners in confinement and under sentence of death was a day of black dishonor for the United States.1

As just said, less precipitancy and a greater regard for existing treaties by the Havana authorities would have saved much to Spain. The able publicist so often quoted, and who has dealt with the subject of Spanish and American differences throughout in so broad and enlightened a way, finds them, without reserve, in the wrong. The application of the procedure of the summary court

1 Mr. Taylor to Mr. Olney, May 4, 1896, Senate Doc. 79, 54 Cong., 2 Sess., 202. De Olivart, Revue Générale de Droit International Public, IX (1902), 195. Sections 2000 and 2001.

Cong. Record, June 5, 1896, p. 6718.

1896]

THE "COMPETITOR" CASE

471

martial "supposes," he says, "that the capture is proven at the instant of the perpetration of the crime, or during an uninterrupted pursuit, or finally because effects or instruments which show participation in the crime are found upon the accused; [the summary court thus] can only apply in a case where the crime is punishable by death or perpetual chains. The Competitor was arrested; pursuit was then impossible. As to arms, none were found but in the pocket of Vedia; Melton [Laborde] and Gildea were absolutely disarmed in the water. . . The prisoners having surrendered on demand and having offered no resistance, an inferior punishment, by two degrees, had to be applied: submission to the procedure of a summary court was thenceforward no longer possible. If considered as executive agents they were still less punishable, for in this case they could only be condemned to prison under article 231.

"The allegations of the assessor were erroneous. It is not possible to refuse the character of an international treaty to the protocol of 1877, by reducing it to a simple diplomatic conversation. Besides, it cannot be said that trial by a summary court gives the same guarantees of justice and defence as does an ordinary court-martial. We must maintain . . . that the Spanish courts had to hold to their substantial laws of procedure. It was no less the duty of the government to suspend the execution of a judgment the accord of which with existing international stipulations was doubtful. It was indisputable that judgment had been pronounced despite the provisions of the protocol and of almost all the articles relative to American citizens taken arms in hand. It was the very grave situation which was had in view at the time of the signature of the agreement. It was equally certain that in the trial the rules of the law of 18211 had not been followed. It may well be allowed that this was abrogated, so far as Spanish law was concerned, by later laws; but in international law it bound Spain so far as the citizens of the United States were concerned. The only point truly doubtful was this: Was the protocol applicable to individuals non-resident in Spanish territory, but coming there only to commit a crime? At first view, both good sense and patriotism would 1 For the decree in full, establishing this law, see Cong. Record, 54 Cong., 2 Sess., 2227.

472

THE PROTOCOL OF 1877

[1896

incline one to say no. If the real soldiers of the expedition, and in great number, had been taken, very few Spaniards would have dared to sustain that a contrary solution would have been admissible. Consul [-General] Williams and Mr. Olney replied that a treaty gives the same rights to subjects of the two contracting states. Consequently the guarantees of a fair trial being assured to all Spaniards finding themselves in the territory of the Union, an identic situation had to be allowed to all Americans finding themselves in Spanish territory, whatever the time and reason of their presence. The argument has a certain force. One should, nevertheless, make some difference between the tourist and traveller (cases cited by the Americans) who, being in a foreign land, commit a crime or mix in a conspiracy, and the filibuster who carries aid and succor to a revolt.

"The important point to our mind," continues the Marquis de Olivart, "was the general spirit of the protocol. This, in effect, had for its object to protect completely, by avoiding the precipitate action and the severities of the Spanish military authorities, the American citizens concerned in attempts against the sovereignty of Spain. It thus derogated a fixed principle of international law, by virtue of which no account of nationality should be taken in repressing such crimes. This it was that irritated the dignity and good sense of the Spaniards. But once the exception admitted, it mattered little that the foreign individual thus privileged came openly to fight a nation friendly to his own, or did so secretly, in violating the sacred laws of hospitality. It is evident that if the point in question had been a clause of an ordinary treaty, such as article 7 of the treaty of 1795, the pretension of the American government would have been inadmissible. On the other hand, in presence of an unfair stipulation (une stipulation de mauvaise foi), if one can thus express himself in speaking of the protocol, one had to undergo the consequences of this want of candor (mauvaise foi). It had to recognize that trial by an ordinary court-martial under the forms of the laws of 1821 was the worst which could happen to an American citizen brought before Spanish tribunals." 1 It was most unfortunate that this excellent common-sense should not have been recognized in the beginning. Whatever the general 'De Olivart, Revue Générale de Droit International Public, IX, 200.