No. 735.
Mr. Schmitt to Mr. Fish.

No. 104.]

Sir: I have the honor to inform your honor that on the 1st instant, at 5 o’clock in the evening, the Spanish steamer of war Tornado entered this port, convoying the American steamer Virginius, captured on high seas, having on board some one hundred and sixty-five individuals, foreigners and Cubans, brought as a prize, among which Colonel Ryan, R. Yarona, (alias Bembeta,) Jesus del Sol, Peter Cespedes, brother of the President, Carlos Manuel Cespedes, a son of the same President, and a brother of Quesada.

* * * * * * *

I have, &c,

[Inclosure 1 in No. 104.]

Captain Fry to the American consul at Santiago de Cuba.

Sir: I have made several ineffectual efforts to communicate with you, and am at a loss to understand why the agent of a Government as powerful as the United States should not at once communicate with the master of an American vessel captured on [Page 1080] the high seas, in time of profound-peace, by a Spanish man-of-war. I desire that the papers of the Virginius should be examined by you, and the facts and incidents of her attempted voyage noted and communicated at once, by telegraph, to the Government, as it may serve to save future complications between the governments of Spain and the United States.

I am, &c.,

Master of the Steamship Virginius, Now a prisoner in the Spanish man-of-war Tornado
[Inclosure 2 in No. 104.]

Declaration of Captain Fry.

Declaration taken on this day, 7th of November, 1873, after having sworn unto the Bible, that this is the true and real words of the Capt. Joseph Fry, aged 47 years, born in Florida, in the United States of America, and being condemned to death by the martial law in the jail of the city of Santiago de Cuba, in the presence of the American vice-consul, E. G. Schmitt, after making oath to tell the truth, on the Bible, &c, and having made declaration and protest as he do solemnly protest before and in the presence of the said vice-consul, declare: Being master of the American steamer Virginius, with all his papers, specially register of the steamer, crew-list, articles, clearance from Kingston, Jamaica, as also dispatch from the custom house, &c., sailed on the 23d day of October, 1873, with all his crew and passengers, to the number of one hundred and eight, or thereabout. After a few hours at sea, sprung a leak and put into the Haytien port for repairs. Sailed from the port of Caimit, of that island of Hayti, on the 30th day of October, 1873, and while between the islands of Cuba and Jamaica, about twenty odd miles from Cuba, were chased by a steamer and captured about 18 miles north of Morrant Point, east end of the island of Jamaica, about 10 o’clock at night, the ship having fired several shots over the Virginius, and compelled her surrender. The steamer was then taken charge of by a boarding officer, who stated that he did so, on his own responsibility, knowing her to be an American vessel and under the protection of the American flag, when the master, Joseph Fry, with crew and passengers, were placed under guard and all brought into the port of Santiago de Cuba, on the 1st day of November, in the evening subsequently, after having delivered all the papers of the aforesaid steamer when she was captured. He has been refused officially all chances of application or appliance to his consul for protection, and he has been condemned to death, with the greatest part of his crew, under no known public law or pretext, a local proclamation, of which he or they had never heard; and as he has only time to make his appeal, being hurried in his preparations for death, and as he wishes it should be stated, being his true declaration to serve his guard.


Be it known that the day of this date, in the jail of this city, I, E. G. Schmitt, vice-consul, having been called by Capt. Joseph Fry, of the American steamer Virginius, to take his oath, declaration, and protest, extended hereabove and verse, is his true authentic declaration, testified by the Spanish officer in charge of the custody of the prisoners, signed as witness in my presence, which contents of this public instrument recorded in the books of this consulate, to serve and avail to all and whomsoever it shall or doth or may concern, and may be needed as occasion may require.

[Inclosure 3 in No. 104.]

verbal council of war, (court-martial.)

The tribunal is constituted in the following manner: A fiscal, (instructor accuser,(a military officer of the grade of, or above, major, appoints a notary and an orderly, who may be a corporal or a private. Thechief of the tribunal is the governor, who appoints six persons on the court, ranking as captains. The constituted council instantly summon two or three persons as accusers, to make declarations against the prisoners, and, supported by their affirmations, they proceed to receive the declaration of the parties accused.

[Page 1081]

After this, it is the rule that the prisoner may select an advocate or defender from a list of officers presented to him, The selection must he immediate. The fiscal then accuses the prisoner before the tribunal, without caring for his presence or description, as it saves time. When once the accusation is complete, they deliver the papers to the advocate of the defender, who is given from half an hour to a maximum of four hours to take evidence for the defense. The whole case must be reviewed and decided within twenty-four hours, and no pretext is allowed to detain the case longer. The fiscal then immediately informs the military governor of the tribunal’s decision, sending him the documents and evidence, and naming the time and place where the council is to meet. Before the military council the fiscal reads the declaration that begins the process, after which the witnesses come forward to ratify all that they have declared in the presence of the accused. The fiscal then reads the accusation, and the defense reads his evidence, and the sentence and finding of the court-martial is decided by a vote, the junior officers voting first. The sentence being pronounced, the papers are sent to the governor for his approval, which is given after a consultation with his legal adviser. It is the custom of these tribunals to have the assistance of an advocate, but in the case of the Virginius they avoided having one.

The declarations of the accused were translated by Mr. Isidore Agostini, the sworn interpreter, ad interim, of the Spanish government; and those of Captain Fry and his crew by Mr. Emile Agostini, interpreter of the marine. The younger Agostini is a volunteer officer of the arniy and in a dependent position, so that his translation might be suspected, as he is entirely at the will of his superiors. As to the older one, he is also in a position of absolute dependence, and must favor the prosecution rather than the defense. This is shown by the care that they took to prevent the United States and British consuls from seeing the prisoners or from witnessing their declarations. It is reported that Captain Fry declined to answer all the questions put to him; protested that, by the law of nations, he and his crew had committed no offense that justified his or their imprisonment or trial as pirates, claiming to be commanding an American-merchant-vessel, furnished with all properly-certified papers, which he had delivered to the boarding-officer of the capturing vessel. Nearly all of the crew have declared that they were ignorant of what the tribunal desired of them, and why they were tried; that they had been engaged in the customary way on the vessel, without questioning the object or termination of the voyage, and that they were guilty of no international crime.

E. G. S.