No. 553.
Admiral Polo de Bernabé to Mr. Fish.


In obedience to instructions received from his government, the under-signed, envoy extraordinary and minister plenipotentiary of Spain, has the honor to ask the attention of the honorable Secretary of State of the United States to the matter of entering upon the consideration of the damages and injuries caused to Spain by the acts of the Virginius, [Page 1154] which vessel was fitted out in the port of New York, in the year 1870, tor the purpose of forming part of an expedition organized in the United States against the Spanish government and its subjects in the island of Cuba. It could not have been otherwise than granted, in the opinion of the undersigned, that the expedition or voyage undertaken by this vessel, in October of that year, was not of a purely commercial nature, as this is understood in international jurisprudence, and by the municipal laws of the United States, but that in view of the articles which she carried, her character was an essentially military one.

If credit is to be given to the testimony of her captain, Shepperd, and to the chief of staff, Varona, who was on board, with the so-called General Quesada, as, in view of its importance, must be done until it shall have been refuted or destroyed, the Virginius left the jurisdiction of the United States for the purpose of engaging in piratical acts, which purpose it soon undertook to carry out on the high seas.

From the sworn statement of Shepperd, which was transmitted to the Department of State with a note from this legation, bearing date of the 10th instant, it appears that proposals of a piratical character were made to him in New York at the house of one José Maria Mora, and both Shepperd and Varona testify that the attempt was made to act on the high seas in accordance with said proposals, and that this attempt was only given up when it was discovered that the vessel which they were about to capture carried the English instead of the Spanish flag.

It is hereby clearly shown that there was a purpose, to which a beginning of execution was given, to commit depredations on the high seas upon Spanish property with a vessel which did not legally carry the flag of any nation, which, according to the laws of nations, constitutes the crime of piracy.

It is known, moreover, that those who fit out illicit expeditions like that of the Virginius seek to invest them with the character of legitimate commercial transactions, in order thus to conceal the criminality of their designs. This occurred in the case of the Virginius; only in this instance the deception has become patent.

From the first moment everything connected with the said vessel was a pure fraud. The purchase was made of the Government of the United States with a criminal intent. The money which was paid for it was acquired in the United States by the enemies of Spain in contravention of the laws of what would be required by the friendly relations existing between the two nations. The certificate of her registry was obtained at the New York custom-house through perjury on the one hand and an abuse of confidence on the other from the customs officials.

Her papers and crew-list were false, inasmuch as they concealed the real destination of the vessel, giving a false one in its place. Her clearance was not valid for many reasons, among others because her manifest did not contain a true statement of the whole cargo placed on board by Quesada. The voyage on which she sailed at the time referred to was conceived and executed in all its details by fraudulent designs and practices.

It is not under such circumstances that the operations of legitimate commerce are undertaken and carried out, nor is it possible to allow the transportation of munitions of war to open ports, under cover of such a disguise, in the possible interest of an insurrection existing in any section of the country to which such ports belong. This is a practice which, in the light of certain doctrines, whose inconsistencies are, perhaps, not observed, the most that they do is to grant it a negative tolerance, but they by no means encourage it.

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It is true that the Virginias did not carry a large cargo of arms when she left New York, but she sailed with the intention of receiving on the high seas, near Curaçoa, according to agreement, a considerable cargo of munitions of war, which was conveyed to her by the schooner Billy Butts, which likewise left the port of New York for the purpose mentioned. If it was thought that this operation was one of legitimate commerce, why was not this cargo taken in in the port of New York?

When the Virginias left the port of New York it is possible that she had not, at that moment, a sufficient number of recruits on board in order to constitute her a war-transport, but she carried the superior officers, the principal persons who, both in the United States and in Cuba, busy themselves in promoting the insurrection.

Of much more importance were those persons, in view of the aid that they were able to lend to the insurrection and to its acts against the legitimate government of Cuba, than were Messrs. Mason and Slidell in reference to the United States and the Confederate States when they were taken by an American cruiser from on board the Trent.

The first expedition of the Virginius, in conjunction with the Billy Butts, under command of the so-called General Quesada, was of a military character, as is shown by the testimony which the undersigned has already had occasion to send to the honorable Secretary of State, to say nothing of other circumstances which likewise prove it, and it is undeniable that it had its commencement and origin in the United States.

Of the same nature was the last attempt, in which the said vessel was taken by the Tornado, inasmuch as her principal officers, such as Ryan, del Sol, and others, were in the pay and employ of the Cuban insurrection, and they, in their turn, paid and employed other persons within the jurisdiction of the United States to take part in a military expedition which was to sail from New York and other points of the United States, they going on board of the Virginius by the steamer Atlas, and by other means, in order finally to go to Cuba.

The circumstance that since October, 1870, the Virginius has touched at foreign ports, without having returned to any port of the United States, cannot, if this is so, exonerate the vessel from her criminality nor the United States from the responsibility which they have incurred by reason of the protection so effectually given by their consuls and vessels of war.

Thanks to this protection, there was formed outside of the material territory of the United States, but within their legal jurisdiction, a kind of base whence, the Virginius has been able to carry on hostile operations against Spain, and to land expeditions of considerable magnitude in the Island of Cuba.

With respect to all these matters, the undersigned cannot but confidently expect the admission on the part of the Secretary of State that the obligations of one power toward another friendly power, in whose territory there exists an insurrection to which neither party has granted belligerent rights in an international sense, are not less than those of a neutral during a regular state of war between two other countries with which the neutral is on terms of peace and friendship. The duty of efficaciously arresting beginnings, as well as of preventing military expeditions from being conveyed from one country to another, in which, unfortunately, an insurrection exists, is equally obligatory in both cases, and m order to fix the measure of the efficacy referred to, the undersigned is willing, in the case of the Virginius, to abide by the proofs furnished and the stand taken at Geneva, in the name of the United [Page 1156] States, whereby was shown the responsibility incurred by Great Britain toward the United States.

Finally, in view of the considerations which have been only generally set forth, the undersigned feels confident that the Government of the United States, acting in obedience to the sentiments of justice and equity which it so ably invoked in its own case, will not hesitate to signify to Spain its willingness to attend to such reclamations as she may have to present for injuries done, with proof that such injuries have been done by the acts of the Virginius.

The undersigned avails himself of this occasion to reiterate to the honorable Secretary of State the assurances of his most distinguished consideration.


The Hon. Secretary of State
of the United States.