BEFORE THE SPANISH AND AMERICAN COMMIS-
PERFECT DE ROJAS,
vs. No. 71.
The advocate on the part of Spain objects and demurs to the case al-
leged in the memorial and exhibits, filed on behalf of the above-named
claimant, for that the same is not within the jurisdiction of this commis-
sion, nor within the terms of the agreement between the two nations,
which limits and defines said jurisdiction, it not appearing that the
claimant was at the time of the alleged wrongs and injuries a citizen of
the United States, nor that he claims as the heir or legal representative
of a citizen of the United States against whose person or property any
wrongs or injuries are alleged to have been committed.
He therefore prays the judgment of the commission that the said
claim be dismissed for want of jurisdiction.
J. MANDEVILLE CARLISLE,
Advocate for Spain.
JANUARY 30, 1873.
BRIEF IN SUPPORT OF DEMURRER.
The single question raised by the demurrer in this case is as to the
jurisdiction of this tribunal to award indemnity upon the claim, pre-
tended by the memorialist, which claim, for the purpose of this argu-
ment, is to be considered as proven.
The question of jurisdiction depends upon the agreement of the two
nations, dated February 12, 1871. Whatever may have been, at that
time or at any time since, the causes for international complaint or rec-
lamation between the two nations reciprocally, or by either of them
against the other, they have agreed to submit to this tribunal only such
as are referred to and described in the terms of this agreement, which
alone is the charter of its jurisdiction and authority to determine any-
thing between the two nations.
It is believed therefore to be quite immaterial and legally impertinent
to discuss the question whether the memorialist was entitled, and in
what measure, and under what circumstances, to the protection of the
United States as against all nations, or particularly as against the sov-
ereign to whom his allegiance was due. The single question is whether
by the agreement of the 12th of February, 1871, the two nations have
agreed to submit his case to the judgment of this tribunal.
The language of the agreement of submission is too clear and explicit
to admit of controversy or cavil.
It is entitled Memorandum of an arbitration for the settlement of the
claims of citizens of the United States, or of their heirs, against the gov-
ernment of Spain for wrongs and injuries committed against their per-
sons andproperty, or against the persons and property [of those] 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."
The agreement then proceeds to provide for the appointment of arbi-
trators and an umpire, to whom shall be submitted all such claims.,"
And by paragraph II the arbitrators and umpire shall make and sub-
scribe a solemn declaration that they will impartially hear and deter-
mine, &c., &c., 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 paragraph V provides that the arbitrators shall have jurisdiction
of all claims presented to them by the United States for injuries done to
citizens of the United States by the authorities of Spain," &c., &c.
It is not alleged in nor imported by the memorial or exhibits in this
case that the claimant is a citizen of the United States. On the con-
trary, he describes himself simply as a resident of Baltimore, Maryland,
and a native of San Juan de los Remedios, island of Cuba. (Memorial,
p. 1.) He further states that he came to the United States and ac-
quired a domicile under the declaration he solemnly made of his intention
to become an American citizen," &c., &c.
This solemn declaration of his intention to become an American citi-
zen at some future period, entirely within his discretion, is exhibited
with the memorial, (p. 5,) and appears to have been made on the 28th
day of September, 1870. Certainly such declaration could not, under
the municipal law of the United States, make him a citizen of the United
States, nor was it obligatory upon him for a single moment longer than
he chose to continue in that intention. Nor could it in any manner
affect his status under the public law of nations. It imposed no new
duties upon him, nor conferred upon the Government of the United
States any new rights or jurisdiction over him, as a friendly alien resid-
ing within its territory, which he was at liberty to quit at his pleasure.
After that declaration, as before, he was simply a subject of Spain.
If the supposed wrongs and injuries of which he complains, and which
he does not sufficiently specify or describe, occurred after the date of
his declaration of intention, they were no more against the person or
property of a citizen of the United States than if they occurred before
such declaration. And so the memorialist himself seems to consider it,
since he does not state whether such supposed wrongs and injuries
were before or after such declaration.
If this tribunal had jurisdiction of claims of subjects of Spain against
the United States, it could not be maintained that this memorialist, by
reason of the declaration of intention, would have lost his status to
claim as a subject of Spain against the United States for wrongs and
injuries inflicted upon his person or property by that Government.
This precise question has been repeatedly decided by the mixed com-
mission on British and American claims," sitting under the treaty of
May 8, 1871. In the cases of Adlam, Robert, and Tongue, Nos. 40, 47,
and 49, the commissioners say:
"In these cases the question is raised as to whether, in consequence
of the claimants having declared their intention to become citizens of
the United States and to renounce their allegiance to her Britannic
Majesty, they have ceased to be British subjects within the meaning of
the treaty. We are of opinion that, notwithstanding the claimants hav-
ing expressed this intention, they still remained British subjects until,
the necessary formalities having been completed, they acted upon the
intention so expressed."
Such has been uniformly their decision in a great many cases involv-
ing the same question, and it is confidently believed, notwithstanding
the argument quoted in the memorial from an opinion of Mr. Commis-
sioner Wadsworth, that the Mexican commission sitting under the
treaty of the 4th of July, 1868, have held no other or different doctrine.
If the learned advocate for the United States shall -think it his duty
to file an argument against the demurrer in this case, an opportunity
will be afforded for further discussion, but in the mean time the views
above suggested are respectfully submitted as conclusive of the precise
question presented in the demurrer.
J. MANDEVILLE CARLISLE,
Advocate for Spain.