No. 741.

[Original handed to the Secretary of State by the Secretary of the Navy, December 2, 1873.]

Commander Cushing to Mr. Robeson.

Sir: As a steamer is unexpectedly about to leave here for Havana in an hour’s time, I write this at the consulate, as I have not time to go off to the ship anddo so, I left Aspinwall on the morning of the 11th [Page 1099] instant, in consequence of urgent telegrams from the United States vice-consul in Santiago. He represented the urgent need of a man-of-war, and had received no answers to his dispatches to the consul-general in Havana. He described the shooting of the captain and a large portion of the crew of the Virginius, and said that more American lives were in immediate peril. I deemed it my duty, therefore, to take the responsibility of coming here.

The trial took place before a drum-head court-martial, ordered by the commanding general of this department, and fifty-three men were summarily shot.

There are more in prison who are subject to the same fate if tried. Our vice-consul was treated with great disrespect by the Spanish general when he made his protest. I inclose herewith a copy of letter that I have to-day sent to the commanding general. I will send all correspondence by the next opportunity. The court-martial and shooting were authorized on the sole responsibility of the general to whom I have written. The British steamer Niobe is here, and has demanded that none of the British citizens that are imprisoned shall be executed until the whole matter is investigated by the higher powers. 1 shall await the orders of the Department, and protect American citizens in the best manner that is possible. Ido not think that any more of the Virginius’ crew will be executed at present, or that the court-martial will try them until orders are received from Havana. I will write by the regular steamer leaving two days hence, and give a detailed account of matters here, and my full reasons for coming, inclosing the telegrams received at Aspinwall that induced me to leave there. Our vice-consul here sorely needed backing, and has sent complaints to the consul-general at Havana regarding the insulting letters and personal behavior of the general who commands this district, in answer to his proper official protests against the barbarous order of the general to treat the crew of the Virginius as pirates. When this matter is over we can return to Aspinwall, as we left some important matters there unsettled.

I am, &c,


Commander Cushing to General Burriel.

Sir: I have the honor to address you this communication regarding the capture on the high seas of the United States merchant-steamer Virginius, and the events succeeding such capture. From an inspection of the official hooks at the United States consulate at Kingston, Jamaica, I find that the Virginius cleared from that port for Port Limon on the 3d day of October, 1873. Her sailing-papers, including register and all necessarydocuments coming under the supervision of the United States consulate, were all certified by the proper authorities. She sailed in ballast, but took out sixty-four haversacks. On the 31st day of October this vessel was pursued and captured something like seventy miles from Cuba.

The Virginius has now been sent to Havana to the jurisdiction of the court of admiralty. The question of the lawfulness of this capture on the high seas and out of the jurisdiction of Cuban or Spanish authority is one to be decided, first, by the courts of the captor, after which, if which, (sic) if the decision is not in conformity with the accepted customs and laws of nations, the United States Government may reclaim the vessel. The rule of international law in such a case is as follows: “The jurisdiction of the court of the capturing nation is conclusive upon the question of property in the captured thing; its sentence forecloses all controversy respecting the validity of the capture, as between claimants and captor and those claiming under them, and [Page 1100] terminates all ordinary judicial inquiry upon the subject-matter. But where the responsibility of the captor ceases, that of the state begins. It is responsible to other states for the acts of the captors under its commission, the moment these acts are confirmed by the definite sentence of the tribunals which it has appointed to determine, the validity of captures in war.” I therefore content myself with making protest, on behalf of the nation that I represent, and shall leave that subject to the determination of the laws that are sure to follow it and reach it. In reading the correspondence between your excellency and the consul of the United States in regard to this matter, I see that your excellency repeatedly terms the Virginius a pirate. I must respectfully insist that the Virginius was in no sense a pirate. The definition of the word pirate in standard works on international law, and by the general agreement of civilized nations from ancient to modern times, is, that of a vessel committing the offense of depredating on the high seas without being authorized by any sovereign state. “Pirates being the common enemies of all mankind,” such a vessel may be captured on the high seas by the armed vessels of any nation, and taken into port for trial under the jurisdiction of its tribunals. Piracy, under the law of nations, may be tried and punished by the courts of justice of any nation, by whomsoever or wheresoever committed; but piracy created by municipal statute can only be tried by that state within whose territorial jurisdiction and on board of whose vessels it was committed.” So far from being a pirate, as defined by international law, the Virginius, if offending at all, was simply a neutral vessel carrying contraband of war, “a blockade-runner,” or at most a smuggler. She was unarmed, and was lawfully furnished with sea-papers, entitling her to navigate the high seas in safety from all men. If attempting to enter a port that was closed by proper authority, and so watched by armed vessels of the state approached that it in fact became a blockaded port, a vessel of a neutral country might, under the laws and agreement of nations, attempt to carry in arms and any contraband of war, subject only to the penalty of capture in transit and confiscation of ship and cargo. No other punishment is permitted by the universal law of nations, to which each individual state must consent. A sovereign state, through its commissioned agents, violating or exceeding such laws, brings itself not only into serious complications with the nation whose flag and authority the captured vessel bore on the high seas, but it also comes directly in hostile contact with the agreed laws and customs of all civilized nations.

Such, Ido not hesitate to affirm respectfully to your excellency, is the basis upon which I question the summary trial, conviction, and execution of the captain of the Virginius and all citizens of the United States of America who belonged to his crew. In the eye of the nations of the earth and their well-defined laws, sanctioned by the tests and trials of centuries, such trial and execution is simply murder. I earnestly protest in the name of my country against what has beendone, nothingdoubting but that the Government of the United States will know how and when to protect its honor. I solemnly protest against the imprisonment or other punishment of any of the living members of the crew or passengers who are either born or naturalized citizens of the United States. I request your excellency earnestly to cease these executions, which must lead to most serious complications. I shall send a copy of this letter to my Government at my earliest convenience, and I respectfully request you to send a copy to his excellency the captain-general at Havana.

Very respectfully, &c.,