No. 554.
Mr. Fish to Admiral Polo de
Berndbé.
Washington, January 9, 1874.
The undersigned, Secretary of State, has the honor to acknowledge the reception of the note of his excellency the envoy extraordinary and minister plenipotentiary of Spain of the 30th ultimo, asking consideration of alleged damages and injuries to Spain caused by the acts of the steamer Virginius.
On careful perusal of this note the undersigned perceives that the reclamation presented in behalf of Spain is founded on two distinct grounds: first, the assumption that the Virginius, at the time of her departure from New York, sailed with false papers, including registry, crew-list, and manifest; secondly, the assumption that in other respects the expedition was unlawful by reason of the imputed piratical character or purposes of the voyage.
As to the first ground of reclamation, it might be sufficient to say that at the time of the departure of the Virginius from New York no objection to the validity of her papers was made from any quarter either to the Government here or to the officers of the customs in New York; nor had anything taken place to awaken suspicion in that respect. All the evidence on that subject referred to by his excellency the envoy of Spain is of recent date, and the facts have come to light only in consequence of the capture of the Virginius by the Tornado, and of subsequent incidents occurring at Santiago de Cuba.
But if it had been otherwise, the falsification of the papers of the Virginius would have been a mere municipal offense on the part of the persons implicated, subject as such to punishment by the local law of the United States, and, whether so punished or not, involving no possible question or matter of controversy with any foreign government. And, therefore, if, as his excellency the Spanish minister insists, the falsification of the register of the Virginius were one of the incidents of an intended voyage illegal in other respects, yet this particular fact could not be entitled to any consideration in an international point of view; nor could it constitute reason of complaint on the part of any foreign government.
[Page 1157]Finally as relates to this cause of reclamation, if, which cannot be admitted, it were possessed of any force in other relations, still it would be an all-sufficient answer to say that such an act of mere municipal fraud as the falsification of the ship’s register, even although a Spanish subject should have been one of the parties to the fraud, cannot involve responsibility on the part of the United States toward Spain as for want of diligence or good faith, seeing that the imputed frauds were not brought to the notice of the United States by Spain, and were otherwise unknown and unsuspected by the Government.
As to the second ground of reclamation, that is, the imputed illegal intentions or objects of the voyage of the Virginius, the undersigned does not discover in this any just cause of responsibility of the United States to Spain, whether the question be considered in the light of the municipal law or that of the law of nations.
It is not pretended that the Virginius was armed, equipped, or manned for war in any port of the United States; that she bore at the time, or subsequently received, any armament as a ship of war; that her build or equipment had any special military character; or, indeed, that she was intended to, or ever did, in fact, act as a cruiser, piratical or other, against Spain, or the subjects of Spain.
All which is alleged in this respect seems to be that she had on board some inconsiderable invoice of arms or munitions of war, and, it may be, some few persons as passengers, subjects of Spain, and implicated in the existing insurrection of Cuba, but not in sufficient number, as his excellency the minister of Spam admits, to impress upon her the character of a military-transport ship. But the destination of the ship was the neutral port of Curaçoa; the voyage was, on its face, a perfectly lawful one; and the ship seems to have pursued her clearance, and, as it is understood, to have proceeded according to her destination, without touching or attempting to touch on the island of Cuba.
There was no allegation or charge of any improper intent or purpose in the voyage on which she was about to sail, and there was nothing in the build, equipment, cargo, or destination of the vessel to excite suspicion or to authorize proceedings against her at law, or detention by the President. There is no doctrine in the law of nations more universally admitted than that a neutral or friendly government cannot be rendered responsible for shipments of arms, munitions, or material of war made by private individuals at their own risk and peril, and as a private speculation.
If a state of war exists, the parties concerned are unquestionably exposed to the confiscation of their goods as contrabrand of war, but in that case their act affords no ground of reclamation against their government. Such, as the undersigned undoubtingly assumes, is the received law of nations, not only in the United States, but among all the maritime states of Europe, including Spain herself. It avails nothing to suggest that, as a question of abstract or speculative right, this doctrine of the law of nations involves “inconsequences;” suffice it that such is the doctrine, as universally admitted both in Europe and America.
Hence the undersigned is constrained to deny that there is anything in these particular facts, as represented by the Spanish minister, appertaining to the cargo and voyage of the Virginius, to imply responsibility on the part of the United States.
These observations apply with equal or more force to the vogage of the schooner Billy Butts, as, indeed, is impliedly conceded by the omission to base any special claim on the voyage of that vessel.
[Page 1158]The undersigned is unable to discern any relation between the present question and that of the Trent, it never having been pretended by the United States that the Trent was a case of unlawful equipment in a neutral port, or that her character or her voyage imparted to the United States any cause of reclamation for damages as against Great Britain, and it being admitted by Great Britain that a state of war existed when the act complained of was done.
In conclusion, the undersigned cannot concur with his excellency the envoy from Spain in perceiving any analogy whatever between the case of the Virginius and that of the Alabama, or other vessels, fitted out in the ports of Great Britain during the late civil war in the United States, and which became the subject of arbitral adjudication at Geneva under the treaty of Washington. If there had been a state of war and the Virginius had been armed, equipped, and manned in the port of New York as a regular ship of-war; if she had then cruised as such on the high seas and had captured and destroyed Spanish merchantmen; then, but not otherwise, Spain might have appealed to the proceedings before the tribunal of arbitration at Geneva as an argument against the United States on the present occasion, exhibiting the question, in behalf of individual Spanish subjects, of redress for injuries suffered by them in consequence of supposed want of due diligence on the part of this Government in not preventing the departure of such ship-of-war from the ports of the United States. But there is no pretension that such is the present case. Spain, in advancing the present reclamation, does not admit that there is a state of war, and does not pretend to represent injuries of subjects of hers, preyed upon by the Virginius as a cruiser, but damages and injuries of Spain as a nation or government, by reason of the assumed relation of the acts of the Virginius to the existing insurrection in Cuba. And it is that very class of claims which, presented by the United States against Great Britain mainly in the purpose of obtaining a determination of the question, was disposed of by the arbitrators in their unanimous formal declaration that claims of this nature “do not constitute upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations.” In appealing to the acts of that tribunal as authority Spain must be considered as accepting such authority, which is conclusive as argument in opposition to the present reclamation on the part of Spain.
With these observations the undersigned has the honor to renew to his excellency the envoy extraordinary and minister plenipotentiary of Spain the assurance of his high consideration.
His Excellency Señor Don José Polo de
Bernabé,
&c., &c.,
&c.