Court itself (November 12th, 1895). by the solemn protest of Consul-General Williams, in the name of his government (Doc. No. 104, ibid, pages 12 and 71), that Julio Sanguily ought to have been tried by such a civil court and according to such proceedings as are provided by the Spanish Law of April 17th, 1821, spoken of in the Cushing Calderón y Collantes Protocol of 1877,-and not by the civil court and according to such proceedings as were competent and legal under the Spanish Law of May 23d, 1879, and other laws subsequent to the said Protocol, he would have had to acknowledge, under the said law of 1821, that the sentence was final, and would have left his client with no other hope of relief than the interposition in his favor by the Government of the United States of America, whether in the form of a demand, peremptorily made and enforced by ships of war, according to the methods which the Honorable William P. Frye, Senator from Maine, would have resorted to, as he said, if he had had his way, or in some other form, more moderate, and not so much at variance with the habits of diplomacy and civilization.

The risk was run in either case, that before the men-of-war sent to Havana to rescue Sanguily could have reached that port, and succeeded in intimidating the Spanish authorities of the Island of Cuba to the extreme of causing them to surrender the prisoner,―or before any proper diplomatic representations could have reached the Madrid Foreign Office,―Julio Sanguily might probably have found himself crossing the Atlantic Ocean, on board a Spanish vessel, poorly treated, and heavily ironed, on his way to Ceuta, if not already there living the life of a convict.

The wise determination of Sanguily's learned counsel did not prevent the Government of the United States from carrying out its purpose to ascertain, upon real practical knowledge of the facts, whether the treaty rights of Sanguily had or had not been violated. Assistant Secretary of State, Mr. Uhl, wrote to Consul-General Williams, on December 23rd, 1895, as

follows From your dispatch No. 2677 of the 7th instant, and from a letter filed under date of the 13th instant, from Mr. Julio Sanguily, the Department has learned the result of the trial of Mr. Sanguily in the criminal court of Cuba. From these reports of the trial there is reason to apprehend that the proceedings which terminated in Mr. Sanguily's conviction were not in accordance with the treaty of 1795 as construed by the protocol of 1877. It is inferred from the reports that the civil court took up the case against Sanguily where the military tribunal left off, and that the trial proceeded upon the charges formulated and the evidence taken by the military court. It is necessary before taking any action, that the Department should be accurately and fully advised as to the manner in which the trial has been conducted with reference to the Code of criminal procedure and to the provisions of the treaty and protocol. The position of this Government is outlined in a telegram to your office, dated May 21, last (*), to which you are referred. You are instructed to make this report with as little delay as possible, setting forth each step in the proceedings from the first arrest by the military authorities to the conviction in the civil court." (Doc. No. 104, Senate, 54th Congress, 2nd session, page 70.)

Previously to this dispatch, Mr. Uhl had urged the United

(*) Mr. Uhl to Mr. Springer. Telegram. Department of State, Washington, May 21, 1895.—Carrillo's case, involving most important principle, has been presented by United States Minister to Spain. In cases Aguirre and Sanguily you will file formal protest declining to recognize validity of military jurisdiction in preliminary stage. The treaty of 1795 excludes the exercise of military jurisdiction altogether, and requires arrests to be made and offences proceeded against by ordinary jurisdiction only. Protocol merely recognizes, declares and explains this treaty right. Military arm has no judicial cognizance over our citizens at any stage. Even arrests, when made by military power, are by a conventional figment deemed to have been a civil act. By no fiction can proceedings of military Judge instructor be deemed to be the act of an ordinary court of first instance.-Doc. No. 104, Senate, 54th Congress, 2nd session, page 17.

States Consul-General to get a copy of the record of the trial and forward it to the State Department.

But this important instruction could not be complied with, either by Mr. Williams or by General Lee, in spite of their zeal and diligence, because of certain technical difficulties which presented themselves and which neither of those officials could overcome, and more than all, because the counsel for the prisoner, acting with proper haste, had already taken the case, by means of a writ of error, to the Supreme Court of Spain, and as usual in such cases, under the law, the original record had been forwarded to Madrid.

About eleven months after that date, namely, on the 29th of September, 1896, the said Supreme Court reversed the sentence and practically ordered a new trial. The court below was directed to admit in evidence the Betancourt's affidavit which had been rejected in the former trial and to give to it such weight as might be legal and proper.

The following is the text translated into English of the decision of the Supreme Court of Spain:

"In the City and Court of Madrid, on the 29th of September, 1896, in the case taken before us on a writ of error by Julio Sanguily y Garit, appealing from the sentence of the Audiencia of Havana in the proceedings instituted in the first instance against the said Sanguily in the Court of El Cerro District, at Havana, for the crime of rebellion:

"It appearing that the Audiencia of Havana when taking cognizance of this case in the second instance, and subsequent to that stage of the proceedings in which the facts are recapitulated, decided to admit all the evidence offered by both the prosecution and the defense in their respective petitions, and set apart the 28th of November ultimo for the trial:

"It appearing that on the 14th of the same month of November the counsel for the defendant filed an affidavit said to have been just received by mail from the United States, sworn to by Don Pedro E. Betancourt before a Notary Public, stating that deponent had been informed that a letter, supposed to have been addressed to him and signed by one Gener, had been put in evidence against the prisoner, and that the said letter had never been received by deponent, nor has it been seen by him,

nor was he in any manner acquainted with its contents; and that in filing the said affidavit the counsel for the defense invoked Article 4th of the Protocol of January 12th, 1877, relating to the construction to be placed upon certain provisions of existing treaties between the United States and Spain, and claimed that citizens of the United States are entitled to produce in their defense, at any time, whatever proofs they may deem favorable, for all of which he asked the said affidavit to be admitted as evidence, and ordered to be given the proper weight as such:

"It appearing that the Audiencia founded on the facts,—that under Article 656 of the Law of Criminal Procedure, the whole testimony to be used by each party is to be described in the petitions called de calificación,-that according to Article 728 of the Code, those proofs so suggested or announced at the proper time, and no others, are to be admitted, except in the extraordinary cases marked in Articles 729 and 730 of the Code relating to steps to be taken by order of the Court, or as a result of the debates at the time of the trial,—that the said provisions, which had to be strictly obeyed and complied with in this case, prevented the documentary evidence offered by Sanguily's counsel after the judicially specified time from being admitted at that stage of the proceedings, and that even in case the stipulation of the Protocol of 1877 should be given attention, the petition of Sanguily's counsel could not be granted, because the protocol, while acknowledging the right of citizens of the United States to present all the proofs favorable to them, does not authorize them in any manner to produce such proofs at a time, or in a form or manner different from the time, form, and manner provided for by the Spanish Law of Criminal Procedure, -ruled the said affidavit not to be admitted as evidence and to be returned to the defendant's counsel and that defendant's counsel noted an exception against this ruling:

"It appearing that on the first day of the trial in the Audiencia, the defense objected to the examination by a certain expert in caligraphy designated by the prosecution, of certain letters and documents, on the ground that the said examination had been irregularly made in the Court below, without the presence of the defendant or of his counsel; that the expert who was now called again to examine those papers, and was the same who had examined them before, was not at liberty to tell the truth and thereby change his testimony, because his first deposition had been made upon oath before the Court below; and that the first examination, being null and void, could not be validated by such process at that time and at that stage of the

case; and that the Court founded on the ground that the petition of the prosecution had been filed in due time, and had been granted, and also that the examination of the expert was pertinent, ruled out the objection of the defense, for all of which the defense noted a further exception:

"It appearing that when the decision of the Audiencia was rendered, the defense applied for a writ of error on the ground that Articles 911 and 914 of the Law of Criminal Procedure had been violated, first, because of the non-admission of the evidence offered by the defense, which showed the innocence of the prisoner, and which according to the treaty between the United States and Spain, could be introduced at any time; and second, because the examination of the letters and papers, made a second time by an expert whose first examination was illegal, could not be given any value, because of the impossibility for the said expert to contradict or amend his first testimony made upon oath :

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It appearing that the writ of error was granted, and that the case was brought before this Court in the proper order :

"It appearing that on the day of the trial before this Supreme Court, the prosecution, represented by the Attorney-General, joined the defense in requesting that the decision of the Court below should be reversed, though only on the first ground alleged by the defense:

"The case having been duly heard and examined, Associate Justice Señor Don José María Barnuevo being entrusted to draw up the decision :

"Considering that under Section 1, Article 911 of the Law of Criminal Procedure, cases can be taken to this Supreme Court on a writ of error, whenever the admission of some evidence offered in due time and in the proper form by any of the parties, and deemed to be pertinent, has been refused; that all these circumstances concur in the present case, because the document, which the Audiencia refused to admit as evidence, is pertinent, and has intimate relation with another document filed by the prosecution, the force of which it tends to destroy, and because it was offered in due form and at such a time as it was possible for the defense. which can not be deprived, without good and sufficient reason, of the benefit to be derived by it; and that for this reason, and not because of the existence of any legal provision authorizing the parties to produce evidence at any time, the document in question ought to have been admitted as evidence, without prejudging thereby its value and efficacy:

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Considering that the second ground on which the defense