General Sickles to Mr. Fish.
Madrid, November 8, 1873. (Received November 28.)
Sir: This morning, on receipt of your telegram, dated yesterday, in relation to the capture of the Virginius, I had a conversation with the minister of state, of which I sent you a brief report by cable.
Referring to my visit to the department day before yesterday, and to the suggestion then made in a private note, 1 said I regretted to have occasion to inform his excellency that the conduct of the authorities in Cuba had shown the expediency of the steps I had recommended to be taken to prevent any acts of violence toward the passengers in the Virginius. Mr. Carvajal said that he had not heard that any of the prisoners had been executed.
Informing the minister of the purport of your instruction, I said the case presented, at the outset, a grave assumption of jurisdiction on the high seas to which the United States could not assent if it should appear that the Virginius was a regularly-documented American ship. In that event, and assuming that the vessel was seized outside of Spanish waters, this government would be expected to release the ship, passengers, crew, and cargo, and to signify its disapprobation of the trespass. In the present aspect of the question, I was not about to make such a demand; I should now only invite the serious attention of his excellency to the transaction, communicating the information and the views you had given me for my guidance, and I hoped that this government, [Page 925] without waiting for a formal reclamation, would take immediate steps to make the reparation which public law and the recognized usage of nations might require. At the same time I intimated the importance of allowing no act to be done meanwhile in Cuba which could embarrass or prevent such a disposition of the case as the circumstances might show to be proper and just.
I then stated concisely the general principles of public law which I regarded as applicable to the facts, so far as they had transpired, in the preliminary reports received, Spain not having declared that war exists in Cuba, and the United States not having recognized the parties to the contest as belligerents. The Tornado had exceeded her jurisdiction in undertaking to capture a ship under a foreign flag in the open sea. No question would have arisen if the vessel had been found in Spanish waters, and a fair trial accorded to any American citizens on board, in conformity with the provisions of the seventh article of the treaty of 1795. On the case as it now appeared, the proceeding of the Tornado was as indefensible as if a Spanish commander in the north pursued Don Carlos to Bayonne, seizing him and taking him to Pamplona to be shot. Spanish ships of war had no more right to lay hands on an American vessel at sea than we would have to enter the port of Cadiz and arrest an offender against our laws. This immunity of every known flag on the ocean was a principle that Spain, in common with all maritime nations, had an equal interest in maintaining inviolate.
The minister said that he had cabled an order to the captain-general of Cuba for a detailed report of all the facts. He had put a series of questions to that officer, numbering them for greater precision, so that the council of ministers might be in possession of all the information necessary to a just appreciation of the occurrences. He hoped to be able to communicate to me the action taken on or before Thursday next. He was very glad I had not made a formal demand. It was unnecessary. This government would take up the question at once and decide it on principles of public law, and according to its international obligations, uninfluenced by political opinions or passions in any quarter.
I stated that the attention of this government had been repeatedly called to the rules of international law applicable in such cases. In 1869 you had addressed a note to the Spanish minister in Washington, pointing out certain clauses in a decree issued by General de Rodas, then commanding in Cuba, which erroneously asserted the right of Spain to take and detain suspected vessels on the high seas, and treat them as pirates. Pursuant to your instructions I had pointed out to Mr. Silvela, then minister of state, the grave consequences of such orders given to the Spanish fleet in the Gulf of Mexico, treating those waters as if they were a Spanish lake. Mr. Silvela assured me that he had already twice endeavored to acquaint General de Rodas with the true boundaries of his authority, which he had obviously exceeded in his decrees, and it would not be left doubtful that in his third performance the error of the captain-general should stand corrected. I had also had occasion to discuss and settle with General Prim’s government, in the affair of the Lloyd Aspinwall, a clear precedent in this class of cases. Very recently Mr. Carvajal himself had considered the same general question in the matter of the Deerhound, an English vessel captured some miles off the Spanish coast in the Bay of Biscay, with arms and ammunition for the Carlists.
The minister said this government had released the Deerhound and her passengers and crew, moved by the same respect for public law that [Page 926] would be now invoked in the investigation and consideration of the questions raised by the capture of the Virginius. I might assure you of the earnest desire of the government of the republic to treat the matter dispassionately and with a firm purpose to fulfill all its duties toward other powers, while maintaining a becoming regard for its own independence and honor.
I had returned to the legation and written my telegraphic report of this interview when Mr. Carvajal was announced. He came in saying, “I have bad news—four of the party on board the Virginius have been shot.” His excellency proceeded to state that soon after I had taken leave of him, and while President Castelar was in the ministry, his colleague of the colonial office handed him a telegram containing a report received indirectly from an officer holding a subordinate command in Cuba, and stating that young Cespedes, Bembeta, Jesus del Sol, and another of the prominent persons captured, had been shot in the execution of a former sentence. Although the information was not so authentic and definite as to merit full credence, yet it had been received by this government with the utmost concern and regret, and he had hastened to impart it to me, although it was desired that, for the present at least, nothing should transpire on the subject in Madrid. He added that further orders had been cabled, to the captain-general of Cuba, enjoining most imperatively that all proceedings against the persons in custody cease. The minister likewise remarked that up to this hour no report had been received at the colonial department from the captain-general of Cuba, and the government was confident that the deplorable act of the local authorities of the port to which the vessel had been taken must have happened before the receipt of the orders sent to the captain-general on the morning of the 6th instant by President Castelar. The whole matter would at once engage the careful attention of the council of ministers, and I might expect to receive a communication from him on Monday, day after to-morrow.
I called at half past ten to-night at the executive mansion, hoping to have a conversation on the subject with President Castelar, and found him engaged in a cabinet council, called, perhaps, especially for the consideration of this question.
I am, &c,