26 



THE CUBA REVI EW. 



THE STATUS OF THE FOREIGNER IN CUBA. 



The Foreigner on an Equality With the Cuban — The Constitution Protects 

 Civil Rights — Necessary Formalities Required for Those Intending 



to do Business. 



BY OSGOOD SMITH. ATTORNEY AT LAW OF HAVANA. 

 (From the Havana Post.) 



His 



In all lines of business or professional 

 activity in Cuba, a foreigner upon com- 

 plying with the necessary legal formal- 

 ities, is on an equality with the native 

 Cuban, except that he cannot be a No- 

 tar}^ The right to vote and to hold pub- 

 lic, political office is, of course, con- 

 fined to Cuban citizens, who also have a 

 limited preference in being employed on 

 public works. 



The usual prohibitions as to the entry 

 of undesirable foreigners into the island 

 are imposed by an immigration law 

 enacted by the first American Inter- 

 vention, and very similar to the laws of 

 the United States on this subject. But 

 after a foreigner is once admitted into 

 Cuba, and is resident here, he finds him- 

 self in the unusual position of being ex- 

 pressly protected in his civil rights by 

 the Cuban Constitution itself, a solemn 

 form of guaranty that does not exist in 

 many countries and certainly is not 

 found in terms in the United States Con- 

 stitution. 



Article 10 of the Cuban Constitution 

 expressly states that foreign residents 

 "shall have the same rights and obliga- 

 tions as Cubans." as to "the protection 

 of their persons and properties" and "as 

 to the enjoyment of civil rights;" and 

 in the Bill of Rights (Title III., Sec. 1) 

 the language is generally so broad as 

 to cover everyone, whether Cuban or 

 foreigner. 



To this constitutional equality grant- 

 ed to foreigners there are two excep- 

 tions. One is that in Article 20, pro- 

 viding for the writ of habeas corpus, 

 only the person detained or a "citizen" 

 may request it. But as the language of 

 the law governing the procedure to be 

 followed in obtaining the writ is not so 

 restricted, it is still a debatable question 

 if a foreigner may not obtain it, since 

 the Supreme Court has not passed on 

 this point.' Another exception is that 

 while a Cuban cannot be banished from 

 the country a foreigner may be — a right 

 universally recognized in international 

 law. 



The equality of the foreigner is 

 further expressly sustained by the Civil 

 Code (Art. 27), which may be properly 

 called the fundamental law of the land 

 next to the Constitution; and also by 

 the Code of Commerce (Art. 15) which 



is the basis of all the commercial law. 



Under these laws a foreign person, 

 lirm, association, or corporation, that 

 properly complies with the legal for- 

 malities provided in the varous cases, 

 is absolutely on a par with a Cuban in 

 obtaining government concessions, 

 mines, irrigation and harbor rights, pub- 

 lic franchises, such as steam or electric 

 railways, in owning land and using it in 

 any lawful way they please, and in en- 

 tering into every kind of commercial 

 pursuits, including banking, but except- 

 ing the right to issue bank notes. This 

 statement refers to the substantive rights 

 of foreigners and is believed to be cor- 

 rect. It is true that some of the admin- 

 istrative authorities interpret an old 

 Spanish law to mean that the manager 

 of a newspaper must be a Cuban; but it 

 is believed that such interpretation is 

 not correct, or if it is, that such pro- 

 vision has been overruled by the subse- 

 quently adopted Cuban Constitution. 

 There may be some other exceptions to 

 this broad, general statement, as the old 

 Spanish laws still in force in Cuba on 

 many subjects are not codified nor even 

 collected together; but if there are any 

 such, they are unknown to the great ma- 

 jority of lawyers practising in Cuba. 



Under the Codes of Procedure in force 

 here, an attachment will be granted 

 against a foreigner when it would not 

 be against a Cuban, which is the law 

 of the State of New York as to a non- 

 resident; and in some cases a foreigner 

 must give bond when a Cuban need 

 not. But these do not affect the for- 

 eigner's substantive rights nor his gen- 

 eral status here. 



It is believed that this completes the 

 list of the few and uniiuportant non- 

 political distinctions which exist be- 

 tween foreigners and Cubans. -. 



The most important legal formality! to 

 be complied with by a foreigner inteiid- 

 ing to do business in Cuba is to obtain 

 his inscription in the Mercantile Reg- 

 istry, as the failure to do so leaves Him 

 under certain disabilities. But the 

 requisites for such inscriptions, and the 

 disabilities consequent upon its absence, 

 are the same for Cubans and for for- 

 eigners. Though technical, they can be 

 readily complied with by anyone famil- 

 iar with the law, and without great ex- 

 pense. The provisions are broadly like 



