MILITARY SERVICE CASE OF BENITO LLAVERIA Y PASCUAL.

No. 397.]

Mr. Storer to Mr. Hay.

LEGATION OF THE UNITED STATES, Madrid, February 1, 1901. SIR: I have the honor to report that one of the cases apprehended by me as likely to arise and create difficulty, as outlined in my dispatch No. 363," dated 20th December, 1900, seems to have arisen at Barcelona.

The consul-general communicates that a Cuban-born young man, bearing a Cuban passport issued by the military authorities of Cuba, as well as a certificate of identification and legal residence in Habana issued by the authorities of that city, was duly registered at the consulate-general, and his papers legalized according to Department's circular of May 2, 1899.

In the drawing names for conscription into the Spanish army, which was held during the month of January, this Cuban, whose name is Benito Llaveria y Pascual, was notified that his name was among those liable to be drawn for military service. Presenting himself at the commission charged with this official duty (la comision mixta de quintas) he showed his passport and certificate, which the secretary of the commission refused to look at or consider in any way. At his request the consul-general, on the 7th January, formally notified this commission of the fact above stated, giving full details and particulars. In response to this communication the consul-general received no answer until after the drawing of the names by lot for military service had been completed. Among those drawn for service was the name of this Cuban, Llaveria y Pascual; and not until then did the commission answer the consul-general's letter. A copy of their answer-if answer it may be called-together with a translation, I inclose as part of this dispatch.

The consul-general reported this matter to me immediately by telegram as follows:

Cuban subject Llaveria impressed Spanish army. Bears Cuban passport issued military authorities Cuba. Has complied Article IX treaty of peace. Shall I protest local authorities? They know he is registered in consulate.

To which I replied as follows:

Protest formally against action regarding Cuban with passport and transmit full particulars to this legation.

Subsequently the consul-general forwarded me the copy of the letter of the commission that I have alluded to, with the information that he had followed my suggestions, and had formally, in writing, protested against the inclusion of this man in the military service of Spain. The date of this protest was January 23, 1901, and I have heard of no reply thereto.

I report this matter now, that the Department may have on its files the case, so far as yet it has developed itself, as it is possible I may be obliged to communicate in relation thereto by cable, which would not be understood were these papers not in Washington.

I have delayed bringing the matter, even unofficially, before the ministry of state, until either some official answer has been made by

Printed ante, p. 457.

the commission to the consul-general, or until some overt act, more than has yet come to pass, may be threatened by the military authorities at Barcelona. It may be, of course, that the protest of the consulgeneral will be sufficient, and that the Spanish local authorities there will let the matter die out without any formal reply.

No. 536.]

[Inclosure.-Translation.]

The commission to the United States Consul-General at Barcelona.

It was yesterday decided to reply to your esteemed favor of the 7th of this month, in which you give various facts in regard to the man Benito Llaveria y Pascual, as Í now have the honor of doing; that he was included in the penalty of article 31 of the recruiting law in force during the conscription of 1898 in this city, and that afterward the chief of zone No. 6, on February 22, 1899, made it known officially that said man had failed to present himself at the concentration, and for this reason the "process of fugitive" was instituted against him, and that he was declared a fugitive on April 4 of said year 1899, which is his actual situation to-day; that no proceedings whatever in this matter are pending before the mixed commission, nor has any motion as yet been made by this man, and, furthermore, that in the communication which you sent to this commission on the mentioned date the object and purpose of the same is not clearly stated, nor what question has been presented in the vice-consulate in regard to the nationality of the above-mentioned Llaveria which gave occasion for said communication. I therefore beg of you to please amplify the same, specifically stating the object of the communication referred to.

God give to you many years.

BARCELONA, January 11, 1901.

THE PRESIDENT.

Mr. Hill to Mr. Storer.

No. 297.]

DEPARTMENT OF STATE, Washington, February 21, 1901.

SIR: I have to acknowledge the receipt of your No. 397, of the 1st instant, reporting that one Benito Llaveria y Pascual, a native of Cuba, residing in Spain, has been called on to perform military service, against which the United States consul at Barcelona has protested.. You state that Mr. Llaveria bears a Cuban passport, issued by the military authorities of Cuba, as well as a certificate of identification and legal residence in Habana, issued by the authorities of that city, and that he was duly registered at the United States consulate-general at Barcelona, and his papers had been legalized according to the Department's circular of May 2, 1899.

It is inferred that Mr. Llaveria comes within the description of "native inhabitants of Cuba temporarily sojourning abroad," for whose protection our diplomatic and consular officers were instructed by the Department's circular of May 2, 1899, to exercise good offices. The statement telegraphed to you by the consul-general that Mr. Llaveria has complied Article IX, treaty peace," is not understood. That article only provides for the retention of Spanish allegiance by Spanish subjects, natives of the peninsula, residing in the relinquished or ceded territories. It does not provide for the case of a native

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Cuban, residing in Cuba, Spain or elsewhere, so that it is not seen how Mr. Llaveria could make any effective declaration under Article IX. The consul-general may be asked for an explanation on this point.

I am, etc.,

Mr. Storer to Mr. Hay.

DAVID J. HILL,
Acting Secretary.

No. 432.]

LEGATION OF THE UNITED STATES,
Madrid, March 16, 1901.

SIR: I have the honor to acknowledge the receipt of your instruction No. 297, bearing date February 21, 1901, and to say that pursuant thereto I requested the consul-general at Barcelona to make the explanation desired, as well as to communicate to me the present status of the case of Benito Llaveria y Pascual.

I have received from the consul-general, evidently crossing my letter to him, certain communications which seem to complete the record in that matter so far as the authorities in Barcelona are concerned. I beg to inclose a copy of the letter of the consul-general covering copy of an official letter, together with a translation of the same, from the president of the mixed commission of enlistment (comision mixta de reclutamiento) of the province of Barcelona, from which it will be seen that the authorities of that province maintain their position that the young man in question is liable to military service, and that the consul-general's protest and request for his exemption have been finally refused.

In view of my desire to observe most carefully the wishes of the Department, that nothing should be done, officially, which would tend in any way toward misconstruction of the relations of our Government with the inhabitants of Cuba, just at the time when that question is being authoritatively settled, I have deemed it wise to refer this whole matter for the consideration of the Department, as it is the first, and, so far, the only case, that has come to my notice of a native of Cuba or Porto Rico claimed for Spanish military service.

* *

*

While the change of government and the coming into power of the liberal party may not produce an equally profound change in the nature of the laws to be presented to the new Cortes, when it shall have been elected, still it may have that effect; and I think it wise to await developments, inasmuch as I understand that no practical injury will result to the interests of this young Cuban in question, until sufficient time has elapsed for full consideration of the proper steps to be taken or proper claims to be made to the Spanish Government.

The attention of the new ministry is, almost inevitably, occupied at present by the steps, natural and necessary to the social and political life of Spain, for the preparation of the election of the new Cortes, the date of which has not yet been fixed. It is considered, without a dissenting voice, that this Government, as all governments in Spain since the establishment of the constitution, will have a working majority in the new Cortes, as it is considered equally natural and necessary for it to take the precautions and political steps to bring this about. Until that is done I feel confident that no important decision will be taken regarding changes in international affairs from the course

pursued by the former Government, but everything will be held in abeyance for a month or six weeks at any event. I say this only to show the Department that, in my judgment, no reason exists that I should receive any instructions in this particular case until full consid eration, or even, possibly, the lapse of time, may bring about a solution of the general question involved.

I have, etc.,

BELLAMY STORER.

[Inclosure.]

Mr. Lay to Mr. Storer.

UNITED STATES CONSULATE-GENERAL,
Barcelona, March 12, 1901.

SIR: With further reference to letters Nos. 3, 4, and 6 of January 16, 23, and 30, respectively, from this consulate-general, I have the honor to inclose herewith copy in duplicate and translations of a letter (No. 609) under date of March 4, 1901, from the Comision Mixta de Reclutamiento, in reply to a communication addressed by Mr. Summers, vice-consul-general, to the captain-general of Barcelona, protesting against the action of the Spanish authorities here in demanding the military service of one Benito Llaveria Pascual, who holds a Cuban passport registered at this consulategeneral.

I have, etc.,

JULIUS G. Lay,

Consul-General.

No. 609.]

[Subinclosure.-Translation.]

The commission to the United States vice-consul.

COMISON MIXTA DE RECLUTAMIENTO,
Province of Barcelona.

Having examined the "expediente" (petition) of the young man Benito Llavería Pascual who came forward with the drafts for 1898 under No. 1 as a conscript from the fourth district of this city;

Bearing in mind that the young man Llavería in the enlistment of 1898 of the section of the fourth district of this city incurred the penalty of article 31 of the existing recruiting regulations for not being in that of the year corresponding to his age nor in the year immediately following;

Taking into account that the said young man appealed to this commission in writing on the 14th of February, 1898, stating that he was then 23 years of age; that he was a native of Habana temporarily residing in this city at No. 317 Aragon street, second floor, and that, having been included at the head of the enlistment list of the recruiting section of the fourth district of this city for that year, he petitioned that orders be given to said section to exempt him from enlistment, being a native of Cuba temporarily resident in this city with the object of accompanying his father for the sake of his health; stating further that although they were included in the padrón" (town list) of that date it was merely as temporary residents, seeing that they were also inscribed in the town list of Habana, where they practiced their profession and paid taxes;

Taking into account that along with said appeal he inclosed his baptismal certificate, duly legalized, showing that he was born on June 24, 1875, in Habana, his parents being natives of the province of Tarragona, and a certified copy of the resolution of the recruiting section of the said district adopted on the 30th of January, 1898, declaring that there was no reason for granting freedom from enlistment to the young man in question;

Taking into account that in the copy of the aforementioned resolution of the section of January 30, 1898, it appears that the decision was based upon the fact that the young man Llavería was included in the enlistment owing to his figuring on the padrón municipal" (municipal town list) taken on the 21st of December, 1885, in force at that time, so that when the young man was placed on the list his father had already resided in this city three years at No. 317 Aragon street; that the fact of the

young man being a native of the island of Cuba did not destroy his Spanish nationality; that the residence of the father in the locality renders the son liable to enlistment, and, finally, that at the proper time, when he should have been enlisted without incurring any penalty, his father already resided in the fourth district of this city, where he continued to reside on the aforenamed date of January 30, 1898;

Seeing that this commission, in session of March 30, 1898, decided that there was no reason for exempting the young man Llavería from being enlisted in the fourth district of this city, nor for absolving him from the penalty of first on the list according to article 50 of the recruiting regulations unless he had been enlisted previously in some other town with greater right than in the list of the fourth district of this city; Seeing that on January 7 last the United States vice-consul in this city wrote a dispatch to this commission stating that the young man Llavería, a native of Habana, is registered as a Cuban at said consulate; that the aforesaid young man came to Spain in the year 1895, returning to Cuba in March, 1898, arriving there on April 1 of the same year, prior to the date of the treaty of Paris, having complied with all the requirements of Article IX of that treaty, and that he afterwards left Habana in the month of June, 1899, for Spain, having previously obtained a passport duly signed by the authorities of the island of Cuba, in which his identity is set forth;

Seeing that the object of the vice-consul's letter was not clear, a communication was addressed to the said vice-consul on the 11th of the same month of January, requesting him to specify the object of his letter of the 7th of that month; seeing that on the 28th day of January the United States vice-consul, referring to his letter of the 7th of the same month, informed this commission that the young man Llavería is properly registered at that consulate as a Cuban citizen in accordance with the requirements of the treaty of Paris, having fulfilled all the conditions necessary to prove his Cuban nationality, which citizens are under the protection of the United States, and requesting that the same be exempted from Spanish military service;

Seeing that on the 8th of last February this commission instructed the section of the fourth district of this city to send a certified copy of the sheet of the "padrón municipal" (municipal town list), taken on December 21, 1885, corresponding to folio 15 of the first volume of the house No. 317, second floor, of Aragón street of this city, relating to the family of the young man Benito Llavería Pascual, and that the said section sent the sheet in question along with a communication dated the 11th of February last, in which it appears that the said list, instead of having been made on the 21st day of December of the year 1885, as previously stated, was made on the 21st day of December of the year 1895, and that at that time the father had resided three years as a tenant of the house in question and the young man four months as a temporary resident;

Considering that according to article 1 of the constitution in force since June 30, 1876, all those born on Spanish territory are Spaniards, and that therefore the young man Llavería was a Spaniard in the month of March, 1898, when he was included in the enlistment of the fourth district of this city, with the penalty of article 31 of the recruiting regulations, seeing that the island of Cuba, where he was born at that date, still belonged to Spain;

Considering that not only at the time when he should have been enlisted without the aforementioned penalty, but also in 1898, when he was enlisted with that penalty, his father was a resident in Barcelona, having lived for three years in the locality of the fourth district of this city, and neither he nor his father having asked that he should be included in the enlistment of 1894, which was that corresponding to his age, nor in the next following, the aforementioned section was obliged to include him in the first enlistment following the discovery of this omission, with the penalty of article 31 of the recruiting regulations as ordered therein;

Considering that the fact that in the town list of 1895 he figures as a visitor (passer through) was no obstacle to this being done, because what determines the enlistment of a young man is, according to article 40 of the aforesaid regulations under numbers 1 and 2, in the first place, the residence of his parents, and, as already stated, the father of the young man in question, in 1895, had already resided three years at the place indicated, and is classified in the town list as a resident.

Considering that neither did the provisions of the royal order of November 14, 1888, relating to the exemption from service of those born in the colonies, apply in the case of this young man when he was enlisted, nor at the time when he ought to have been enlisted without penalty, because for that purpose it was indispensable that the father's residence in the Peninsula should not have been a permanent one, as it was, according to the town list of 1895;

Considering that the purport of Article IX of the treaty of peace between Spain and the United States in no way affects the present case, seeing that the facts dealt with occurred prior to the date of the ratification of the said treaty, which was in April of 1899;