General Sickles to Mr. Fish.
Madrid , November 13, 1873. (Received December 15.)
Sir: At four o’clock this afternoon, the hour appointed yesterday, I had an interview with the minister of state at his office. His excellency received me with the remark that late news from Cuba had deprived our conference of the results he had anticipated from it. Last night a report had been received from the captain-general, stating that forty-nine of the prisoners taken in the Virginius had been shot on the 7th and 8th instant, at Santiago de Cuba. The order of President Castelar, dispatched on the 6th, had reached Havana on the following day, too late to prevent these executions. He made this communication to me with profound regret. President Castelar had received the intelligence with deep concern. The laws passed by the Cortes not being applicable to Cuba without a special declaration therein to that effect, the authorities had followed the prescriptions of the old colonial code, and thus the humane legislation of September last, which forbid death-penalties without the approval of the Cortes in the cases of civilians, and of the executive in military sentences, had failed to become operative in Cuba. General Jovellar now held himself responsible for the due observance of this law, which had been extended to Cuba by an executive order, and it was at least certain that the slaughter had ceased.
I inquired whether his excellency could inform me how many of the victims were American citizens, to which he replied that no particulars had been received, and it was precisely that question he had put to the captain-general in a cable-message sent at two o’clock this morning.[Page 934]
With reference to the suggestion that a Spanish law had no force in Cuba without an express provision in the statute declaring it so applicable, I asked Mr. Carvajal whether the executive authority of Spain exercised any jurisdiction over the island, and, if so, what powers belonged to it. His excellency answered that he had merely expressed an opinion in saying the ordinary laws of the republic were inapplicable. There could be no doubt, however, that the executive jurisdiction was ample; and now that the revocation of the royal order of 1825 had deprived the captain-general of the faculty of suspending the dispositions of the supreme government, there was no reason to apprehend a repetition of the irregularities that had hitherto occurred in the administration of Cuban affairs.
I observed that in June last I had invited the attention of Mr. Castelar, then minister of state, to the ground taken by the authorities in Cuba in asserting that war existed in the island, and that no other than martial law was recognized. His excellency having replied that this government rejected any such assertion, authorizing me to convey to you the declaration that Spain did not so regard the conflict in Cuba, I begged that instructions be sent to the captain-general not to withhold from any citizen of the United States, within his jurisdiction, the protection and securities of the ordinary tribunals of justice in due course of law, as provided by the seventh article of the treaty of 1795. I was assured that such orders would be given; and so that nothing should be wanting to impress on the government of the republic the justice and the urgency of the appeal I made, I referred Mr. Castelar to a series of instances in which the authorities in Cuba had assumed to exercise powers in derogation of the rights of the United States and of their citizens. If, therefore, it should now appear that American citizens had been put to death by the Spanish authorities in Santiago, without properly acquiring jurisdiction of their persons, or without respecting the rights guaranteed to the accused in all trials for offenses charged against them, the responsibility would rest on the executive department of this government, which had been again and again admonished that the United States insisted on the fulfillment of these solemn obligations.
Mr. Carvajal said that in the present state of the question he could not proceed with the discussion. He had hoped that to-day We could at least have settled the preliminaries of an adjustment, but the intelligence now received had so modified the case as it had been considered in the council of ministers, that he must adjourn our conference until another day, of which he would notify me. Further information was needed, which he looked for hourly from Cuba.
I stated that the publication of the events of the 7th and 8th instant would produce a profound impression in the United States, and, indeed, all over the civilized world. The President could not be unmoved by incidents of such gravity occurring on our borders, and perhaps affecting our own citizens and the inviolability of our flag. He had, so far, withheld any demand, believing and expecting that Spain would spontaneously hasten to offer complete reparation for what had occurred respecting the Virginius and her passengers. I need scarcely intimate to his excellency that this question was acquiring from day to day more serious proportions. And in behalf of interests which I was sure he cherished no less sincerely than myself, I trusted not a moment would be lost in arriving at a resolution which I might convey to you with satisfaction.
Mr. Carvajal remarked that orders had been sent to the captain-general [Page 935] in conformity with the request made in my note of the 11th instant, to which he would reply to-morrow. President Castelar was now awaiting him to resume the consideration of this subject. I should hear from him without delay, as soon as he was prepared to speak more definitely.
Before taking my leave of his excellency I pointed out that an official bulletin, published in Havana on the 5th instant, announced that the Virginius was captured on the 31st of October, and that the prisoners were being tried by a competent court. An interval of four days between the capture and the arrival of the ship at Santiago de Cuba was inconsistent with the statement of the captain-general that she was taken a few miles from Jamaica. It also appeared that the shooting began only a few hours after the prisoners had been delivered over to the authorities, which indicated that no trial was allowed them, and this would require explanation if the proceeding affected any citizen of the United States. If the seizure of the vessel proved unlawful it would be necessary to show how the tribunals in Cuba could acquire jurisdiction to try or punish anybody found on board an American ship on the high seas.
The minister rejoined that in cases where parties had been already tried and sentenced in their absence, it was only necessary, when subsequently in custody, that they should be identified, and this was a summary proceeding.
Upon this I stated that I had been informed by his predecessor, Mr. Martos, that according to the law of Spain such sentences were not executory when the parties demanded a hearing on the merits of the charge against them. And I had more than once, in obedience to my instructions, declared to this government that the United States would not recognize the trial and sentence of an American citizen in Cuba without the presence of the accused, as a compliance with the requirements of the seventh article of the treaty of 1795.
I am, &c,