No. 726.
Mr. Hall to Mr. Davis.

No. 305.]

Sir: Referring to my No. 302, of 12th instant, and the copies of the correspondence therein contained, passed between the vice-consul of the United States at Santiago de Cuba and the commandant-general of that district, relative to the case of the Virginius, I now transmit the continuation of the same correspondence, and respectfully call the Department’s attention thereto as clearly showing that Mr. Schmitt, the vice-consul fulfilled his duty in the premises as far as was in his power.

I am, &c,

[Page 1068]
[Inclosure 1 in No. 305.]

Mr. Schmitt to General Burriel.

Sir: I have had the honor to receive your excellency’s communication of yesterday’s date, the contents of which fill me with surprise and profound regret that my previous dispatches to your excellency and motives which caused them should have been so misconstrued by your excellency as to lead even to personal imputations upon my character.

In this country, as in every other, even the greatest of criminals have lawyers assigned to their defense, without, in the event of their condemnation, the reputation of such lawyers suffering therefrom; and I, who represent a foreign country here, have an absolute duty, when I hear that any of the citizens of that country are in any trouble, to succor the same where practicable, defend them if their case admits of defense, and in the last extremity afford them all alleviation or consolation as lies in my power, and a right to do so without identifying myself with the citizens in question and their actions or opinions, or exposing myself to the suspicions and insinuations of your excellency.

Your excellency’s communication barring me from all interference on behalf of my fellow-citizens, I must beg your excellency will, at all events, allow me to proffer a few remarks in my own defense.

I should have been the last person to disturb the important duties of your excellency, and the religious meditations which your excellency’s subordinates were indulging in, had it not been that I considered the case a pressing one, and imagined that where there was sufficient time to censure and detain my telegram, there might have been also time for a few lines of explanation, with the additional motive of my second dispatch, that I observed that the circumstances which your excellency enumerates were no hinderance to the dispatch of other business connected with the steamer.

Due to a misconception, though not a maltranslation, my meaning with regard to colors has not been correctly conveyed to your excellency. I used the word in its acceptation of flag, and not with reference to the different distinctive shades which form the national emblems of countries.

I shall, therefore, abstain from saying anything further on this point, than that it seems to me, considering that the Virginius was dying the United States flag at the time of her capture, that she claimed to be a United States merchant-steamer, and her papers as such were surrendered by her captain to the boarding officer from the steamer Tornado, it would have been a delicate attention on the part of your excellency to have informed me thereof, and that the use of such flag and papers was an abuse on the goodness of the country which I represent, in order that I might have brought the same to the notice of my Government, and have been spared the necessity of telegraphing to Jamaica, and the disagreeableness to which said telegram has given rise.

As regards the protest I directed to your excellency, my duty to cover my responsibility in case of a reclamation was so manifest—and a protest is not subsequently authorized by such reclamation—so entirely inoffensive, that I cannot for a moment suppose your excellency can take exception to my action in this matter.

With regard to my interview with your excellency, when I asked permission to see O’Ryan, and when your excellency’s treatment of me in your excellency’s own residence was not what I should have expected from the amiability and hospitality of your excellency, as your excellency’s remarks contain a personal imputation on my character, accusing me of an intention to take your excellency by surprise and obtain an undue advantage by dishonorable means, I can only deny most emphatically even having harbored such intentions or attempted to put them into execution.

Finally, I note your excellency’s intention to apply for the revocation of my exequatur, and while ignorant of any cause given by me therefor, I can only assure your excellency that, my conscience being perfectly clear in the question, and having acted honorably and as I considered for the best, the result of your excellency’s application is to me a matter of profound indifference.

I have, &c,

[Inclosure 2 in No. 305.—Translation.]

General Burriel to Mr. Schmitt.

I have received your communication of the 5th instant, in reply to that from this government of the previous day, relative to those you had already addressed me regarding [Page 1069] the capture of the pirate vessel Virginius. I am sorry at having caused you the profound regret you mention in consequence of my reply, or the interpretation which you say was given to your communications, for which no fault can be imputed to me, as I did but my duty, just as you purposed to do yours, in the matter. The interpretation given to your dispatches could be no other, as, officially and in writing and investing the act with a solemnity which could not be allowed to it, you addressed yourself to this government, making inquiries to which you could have verbally been answered, had you pleased to call on me in person, because the matter was very plain, and in my-opinion did not deserve the honor of a dispatch, unless you did so purposely, endeavoring to give it more importance than it really had. After your first communication, making the inquiry to which I refer, you addressed me two others on the same day, exacting explanations regarding affairs the gravity of which could not but-impose upon me the most prudent reserve; and as you were desirous of obtaining with unnecessary haste a reply which could not then be given, you became alarmed, entirely without reason, and protested against my conduct, against the action of the courts who had charge of the matter to which you refer, and this without possibly knowing or being informed what was such action. As I am always disposed to receive at my office any person claiming the aid of the authorities, especially the consul and vice-consuls resident in this city, you will understand that the means of which you undeavor to avail yourself were not the most suitable to induce belief in the sincerity of your acts; for if you had called upon me and verbally set forth your doubts and apprehensions, I would have been pleased to attend to your washes within the limits of prudence and convenience which my office and the present circumstances impose upon me.

Far from having put any impediment to the defense of your citizens residing in this city and in all this department, in nowise have I prevented you from doing so, limiting myself in my communications to express the surprise which your persistent officiousness caused me, asking to interfere in affairs to which no one had called your assistance, and which did not treat of citizens of the United States who might be under the protection of your vice-consulate, but of chiefs, rebels to the Spanish government, of armed men who came to swell the ranks of the insurgent parties of this island, and of the crew of a steamer seized on the high seas as a pirate, and subject by this act alone to the immediate action of the courts of justice, in accordance to the laws regarding piracy ruling in this island, and of which you are undoubtedly informed.

If the marine court which tried the pirate crew had had the slightest doubt as to the status of the vessel, and had it not considered itself absolutely and exclusively competent to try it, the same court would have addressed you through my official medium, or some one of the prisoners would have done so if all of them had not been confessedly convicted of the crime of piracy. All these explanations you could have obtained, as I have before stated, if, with the desire to be out of doubt, you had called upon me; but the way in which you addressed me, and the expressions you used, could not but otherwise make me believe in a desire on the part of your vice-consulate to give the question a character of gravity it did not possess.

No one, therefore, has objected to your making the defense of your citizens; no one has excluded you from any interference in favor of your citizens; no one has interpreted your words in a sense different to their meaning, as that of “the American colors” was taken to mean the North American flag, as you afterward stated; and, finally, no one has considered himself with any moral authorization whatever to believe that the steamer Virginius was a merchant-vessel, which lawfully used the United States flag, as her character of a pirate was public and notorious all over the world; consequently, your communication, to which I now reply, however flattering the explanation you give to your acts, has no foundation respecting the interpretation you are pleased to give to my phrases and to the conduct I have observed in this motive.

As to the reception I gave you at my residence when you called to see me, after addressing me three communications, you will excuse my saying that the reception I made you was as polite, respectful, and affable as usual, and so much so, you cannot forget, that I granted you the permission you asked for, to witness the execution, before a notary, of the will of Mr. O’Ryan, in the belief on my part that you had, if not the absolute certainty, at least the moral conviction, that he was a citizen of the United States, and that you had been called for by him, understanding you were the consul of his nation. But as you said this in my presence, after being told at the jail, whither you had repaired before seeing me, by the fiscal of the case, the best-informed person in the matter, and been assured that Mr. O’Ryan was not an American citizen, but an Englishman, according to his own declarations, which circumstance you concealed from me, through inadvertence or otherwise, it was then that I felt obliged, by my position, by the dignity of my office, and by the importance of the concession I had made, in virtue of assertions which had already been answered officially by proper persons, to express the surprise your conduct caused me, which might be all the loyal you wish, but which appeared suspicious, as wanting in sincerity and frankness; and you could rest assured that if you had asked me in a private and friendly manner to see [Page 1070] Mr. O’Ryan or any other of the prisoners, permission would have been granted in the act, as was done to various persons; hut, exacting officially, and in demand of a right which did not exist, it was impossible such could be granted. This is all I have to say in reply, reserving to his excellency the superior political governor the decision respecting the revocation of your exequatur, which I have asked for, much more when this is so indifferent to you, as you state; as to the contrary I should have a real feeling of regret, as, aside from the question which occasions these replies, I have ever endeavored to keep up with you, as with the rest of the consular corps, the most respectful and cordial relations.

God preserve you many years.


The United States Consul in this city.

[Inclosure 4 in No. 305.]

Commander Brandavis to Mr. Schmitt.

Being informed of your communication of yesterday evening, in which you are pleased to inform me that you protest against all the proceedings with reference to the steamer Virginius and with the persons detained or imprisoned on her, I have only to state to you that, considering that you are well informed of the most lawful motives which induced the man-of-war Tornado to seize the Virginius, finding her near and in direction to the lee-coast of this port, with a large expedition on board of men and contraband of war to aid the insurrection existing in the eastern part of the island, against the national integrity, wanting, besides, all the documents necessary for a merchant-vessel, that I much regret that you should seek to make reclamation for the impunity of this offense, condemned by all nations, and also further by the laws and decrees published by the superior authorities of this island,

I have only to inform you that the vessel and the persons found on board are in fact held to the action of the court of justice, and that it is impossible for me to attend to any kind of reclamation which may impede or oppose the action of these.

God preserve you many years.


The Vice-Consul of the United States of America in this city, &c.