No. 555.
Admiral Polo de Bernabé to Mr. Fish.


The undersigned, envoy extraordinary and minister plenipotentiary of Spain, has had the honor to receive the note which the honorable [Page 1159] Secretary of State was pleased to address to him under date the 9th ultimo, in reply to that of this legation of the 30th of December, 1873, relative to the damages and losses occasioned to Spain by the acts of the steamer Virginius, with reference to which the undersigned regards it as his duty again to call the attention of the Secretary of State to the text of his communication of the 30th of December, 1873, referred to with a view to observe that the claim which is therein made is based upon the following consideration, namely, that the Virginius was fitted out at the port of New York during the year 1870 to form part of a military expedition organized in the United States against the Spanish government and its subjects in the island of Cuba, from which time she was efficaciously protected by the consuls and men-of-war of the United States; thanks to which protection she succeeded in forming for herself outside of the material territory of the United States, but within their legal jurisdiction, a sort of base, whence the Virginius was enabled to commit hostilities against Spain and land important expeditions in the island of Cuba. The falsity of the register of the ship’s roll, of the list of passengers, of the manifest, and of the clearance, were insisted upon as showing that the expedition was of a military and not of a commercial character; and, therefore, that every reasonable pretext of a legal enterprise vanished in advance, or that the taking on of arms, munitions, and other war-materials, so far as it was done on the account and at the risk of individuals, might be looked at in the same light.

Operations of this sort are scarcely tolerated by international law, and the eminent defender of the interests of the United States at Geneva established in respect to them that, pursuant to modern opinion on similar subjects, acts such as those just set forth are contrary to wise principles of neutrality.

A breach of international law to the injury of Spain and her subjects being thus alleged and proved, the former has a just cause for complaint against and reparation from the United States, unless the latter can exonerate themselves from all responsibility by showing that they were in no way at fault in the matter.

The considerations set forth by the honorable Secretary of State for the exemption of the United States seem to the uudersigned to be insufficient, if either the facts or the precepts .of law be regarded. The undersigned does not acknowledge that at the time when the Virginius started from New York nothing had happened which could give occasion for suspicions in regard to the validity of her papers. Certainly the circumstance that, before the issuing of the register, the omission to give the security usual in such a case for a document which for so many months served as a protection to the Virginius against the Spanish cruisers, must have been an occasion for the collector of customs at New York, and all his subordinates whose obligation it was to prevent the departure of vessels which had no regular clearance, to entertain at least suspicions that the voyage on which she was about to proceed was illicit, even if it should be denied, apparently with reason, that any of those functionaries knowingly lent themselves to such an irregular clearance.

Nor can the assertion be allowed to pass that all the testimony relative to the falsity of the documents adverted to is of recent origin and was only brought to light in consequence of the capture of the Virginius by the Tornado, and of the subsequent incidents at Santiago de Cuba.

More than eight months ago this legation invited the attention of the [Page 1160] Department of State to the deposition of Captain Shepperd, taken at New York, on the 2d of May, 1872, before a judicial agent of this Government. To this deposition the Department of State replied by transmitting a copy of an opinion of Attorney-General Bristow, in which that high functionary stated that he had examined Shepperd’s testimony, and had found therein cause to suspect that the register of the steamer was false and in violation of the navigation laws; (that the papers submitted furnish information which may give rise to a suspicion that the registry of the steamer was fraudulent and in violation of the navigation laws.)

Can it, then, be doubted that if the said Attorney-General had taken steps for an examination of the registration document, for which purpose the Department of Justice had greater facilities than this legation, that he would have reached the same conviction as that recently set forth by his present successor?

Besides these circumstances is the one that, many months before the capture by the Tornado took place, an officer of the Spanish navy, who commanded the war-steamer Bazan, then at the port of Colon, (Aspinwall,) animated by sentiments of deference toward a nation with which he knew that his own government had strong relations of friendship, addressed a communication, under date the 27th of July, 1873, to Commander Reed, of the United States war-steamer Kansas, in which he said to him, “I denounce the steamer Virginius in the name of the Spanish government as a pirate, and request you that, in consideration of the good relations existing between the two countries, you may arrange for sending that vessel to the United States for trial before the courts of her own country, when Spain will adduce the proof in her possession, with the understanding that if this proof should not be found sufficient for the condemnation of the Virginius, as a representative of the Spanish government I assume, on behalf of Spain, the obligation to pay all damages and expenses which may be occasioned by the detention of the vessel.”

It may be presumed that this communication was transmitted without delay by Commander Reed to the Secretary of the Navy at Washington; and in view of this, and also of the previous communication of the undersigned on the same subject, it is difficult to comprehend how Spain could have done more, compatibly with her dignity, to incite the United States to expose the piratical character of the vessel referred to, and to set on foot a serious investigation in regard to the beginning and course of her career.

The undersigned duly appreciates the responsibility which, pursuant to municipal law, is incurred by the forging of solemn documents which attest the nationality of a merchant-vessel on the high seas, and secures immunity for the flag which is rightfully displayed. The duties of the profession to which he has devoted himself have heretofore required from him a deliberate study of maritime jurisprudence, and he can do no less than protest against the doctrine that such a forgery in no way involves a possible question upon the subject for controversy with a foreign government, and that it cannot become a subject for consideration in view of international obligations, and does not constitute a subject for complaint on the part of any foreign government.

Spain complains that the United States have not prevented the organization, the departure, and the active prosecution of the different hostile enterprises against Cuba in which the Virginius was an agent. The United States answer that they took efficacious measures toward preventing her departure from New York, and to this Spain replies by [Page 1161] pointing to the fraudulent documents issued by the collector of customs at that port, and insists that those show the very reverse of having taken efficacious measures of prevention, and the undersigned is not aware of any principle of international law which should prevent Spain from referring to those spurious documents.

It may also be said that the offense of those in this country who promoted the expedition adverted to was an offense against the United States, inasmuch as their schemes were directed against Spain, and that municipal laws were violated in the act of infringing the precepts of a good international understanding; and that unless this Government can show that it made use of due efficiency for preventing the departure and prosecution of the expedition, this offense becomes one of the United States themselves, whereby, pursuant to international law, it behooves them to make ample reparation to Spain.

How can it be pretended that Spain is incapacitated from proving an act which demonstrates the absence, as has been said, of proper preventive measures?

This is another phase of the question: the Tornado took on the high seas a vessel, on board of which there was a military force for the invasion of the island of Cuba, thereby carrying death and destruction to the loyal subjects of Spain and their property.

The United States interpose and deny the legality of the capture as alleged by the President of the United States in his annual message to Congress, because the captured vessel was duly registered at the port of New York, and formed a part of the mercantile marine of the United States, and, having the certificate of registry in the usual legal form, her capture took place in derogation of the sovereignty of the United States. If, then, the two governments, actuated by desires for peace and friendship, had not succeeded in agreeing upon the bases of the arrangement contained in the protocol of the 29th of November, 1873, is it believed that Spain would not have been able to justify the capture before the great powers of the earth, by showing that long before the capture took place she had called the attention of the Government of the United States to the circumstance that the Virginius was not a vessel of those States, and that all the representations in regard to her being true which were made at the time referred to, pursuant to them it had been determined that the cruiser which made the capture should operate?

The undersigned can do no less than maintain that the granting of a false register and a false certificate of register to the Virginius show that this Government did not attend with due efficacy to preventing the departure of the expedition, which constituted a hostile act against the sovereignty of a country with which the United States were at peace.

To investigate and determine the measure of the efforts which ought to have been made towards preventing the said piratical expeditions, Spain accepts the criterion followed by the United States at Geneva, where, moved by zeal for their own interest, they declared such a measure of efficacy to comprehend a co-operating zeal, continuous application, “uninterrupted endeavors, the employment of all the faculties adequate for the purpose, and the unwearied and undelayed granting of attention, activity, and assiduity, (enlisted zeal, steady application, constant effort, exertion of all the appropriate faculties, and, without weariness or delay, attention, industry, and assiduity.”)

The second part of the answer of the Secretary of State, so far as it represents the impossibility of finding in the note which the undersigned had the honor to address to him, any just ground on which the responsibility [Page 1162] of the United States for the acts of the Virginius might be placed, appears to rest upon two different suppositions: first, that the vessel was not, according to its construction and equipment, a military cruiser; and, secondly, that on her first voyage it was not proposed to wage war on the subjects of Spain.

The explicit and uncontroverted testimony of Captain Shepperd and of Varona may not have engaged the attention of the Department of State. It, however, shows, beyond all doubt, both the proposition and the endeavor to attack the commerce of Spain, and from the moment when the Virginius did not attempt legally to fly the flag of any country, as in point of fact she did not carry any, such a circumstance constitutes, according to the law of nations, piracy. According to the same law there is no special manner of construction which can or ought to be required for piratical vessels, and on this ground, even if there were no other, the undersigned is confident that the honorable Secretary of State will think proper to reconsider the matter.

In connection with the two preceding suppositions, the Secretary of State alludes to the small quantity of war material and the few soldiers taken by the tug Virginia Seymour on board the Virginius prior to the departure of this vessel beyond the jurisdiction of the United States, and to the circumstance that many of the said soldiers were subjects of Spain, implicated in the insurrection on foot in the island of Cuba; but it is not on this account said that the expedition was purely of a commercial character, and on that account approved by municipal and international law, or that the United States ought to have allowed it to depart. If it shall be pretended that the first voyage of the Virginius was legitimate, in view of the presumed legality of her papers, the obvious answer is, that those papers were false, counterfeits, and fraudulent. Several of the crew have deposed that the voyage which it was really proposed that the steamer should make was not correctly stated in the list of the crew lodged at the custom-house at New York. The true destination of the Virginius and of the Billy Butts was not the neutral port of Curaçoa, if that can be called neutral according to international law, in respect to a civil commotion not recognized beyond, the country where it exists.

The character of the cargo of the Virginius, specified in her manifest, to wit, one hundred and seventy barrels of bread, of the value of seven hundred and eighty dollars; two cases of saddlery, of the value of four hundred dollars; four cases of clothing, of the value of three hundred and fifty dollars, together with the negative omission of giving security that a legitimate use would be made of her certificate of registry, constitute a sufficient motive for suspicion to justify the collector of customs in detaining her and in setting on foot proceedings looking to her confiscation.

It will not be denied that, at a time a clearance was granted to her, the Virginius had committed acts which made her liable to condemnation by the Government of the United States, pursuant to which the collector of customs would have been obliged to detain her, to subject her to trial, and prevent her going to sea and engaging in piratical acts. That this is true is proven by the recent decision of the Government of the United States, and which would have been carried into effect had it not been for the sinking of the Virginius before her arrival at New York from Bahia Honda, for solely on account of the irregularity which, has been recognized to have existed at the time above mentioned could the vessel have been detained and confiscated. In conformity also to the law of 1792, the collector of customs at New York was, in [Page 1163] the opinion of the undersigned, guilty of unfaithfulness to his official duty when he granted a clearance to the Virginius.

To this end, and with reference to the requirements of the active and efficient repression of criminal acts, which is the obligation of every country, both in respect to its interest as well as that which it does in respect to the interests of other countries with which it may be in relations of peace and friendship, the government of Spain considers that it has ground for asking reparation from the United States, and this not so much only on account of the first voyage of the Virginius, but pursuant, as the undersigned took care to state in his note, on account of all the subsequent acts of the said steamer, in which she received aid and protection from the consular and naval authorities of this country.

With reference to those acts which constitute an infraction of the local laws, and which, from the moment they were directed against Spain, constitute an offense in which the United States were participators unless they can exonerate themselves from such a participation, the undersigned calls the attention of the honorable Secretary of State to the following doctrine laid down by a judge of the Supreme Court of the United States, which, as a material for a text and for greater precision, is copied as follows, in English:

When a person forms the guilty intention of carrying on a military expedition or enterprise from the United States against the territory or dominions of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, and shall provide or prepare the means to do so, his crime is complete. The expedition or enterprise which the party must contemplate involves a collection or combination of men who are to become members of the expedition. The subscription of money or munitions of war merely does not violate the language of the act of Congress under consideration if no military expedition from the United States be set on foot or contemplated, and for this reason the subscriptions to the cause of Greece, Hungary, or Italy were not the subject of judicial cognizance. But the subscriptions of money, provisions, munitions of war, or the means of transportation, the purchase of bonds issued by a revolutionary government, junta, or military chief, having for their object to afford money, provide men in the United States who shall carry on hostilities against a friendly state or person, is a violation of the act of Congress, and all the persons who participate, in that form, with the contemplated enterprise, are guilty as principals, and are involved in the same penal consequences. The misdemeanors all accessories share as principals, and the accessory is he who by hire, commerce, counsel, or conspiracy, and he who by showing an express liking, approbation, or assent to an illegal enterprise, does aid and abet a party to commit it. We quote the language of the act of 1818, to exhibit its broad and comprehensive import and the sternness of its rebuke to all the transactions we have alluded to:

“If any person shall, within the territory or jurisdiction of the United States, begin or set on foot or provide or prepare the means for any military expedition or enterprise to be carried on thence against the territory or dominions of any state, colony, district, or people with whom the United States are at peace, every person so offending shall be deemed guilty of a high misdemeanor.”

The terms of this act do not require that the expedition or enterprise shall be completed, or that it should even leave the United States. The language is, if any person shall begin or “set on foot.” It does not require that all its arrangements shall be perfect, and that it shall be in condition to leave the United States. The act stigmatizes as unlawful the preparation or provision of the means to carry on the expedition or enterprise. Thus, whether the execution of the enterprise or the organization of the expedition is “begun” or “set on, foot” by the enlistment of recruits or the collection of arms and other munitions of war or transports, the result is the same. If the object of such preparations is to equip or fit out an expedition from the United States to carry on hostilities against a friendly state, the acts done in furtherance of that object are illegal and subject the offender to prosecution. Nor is it necessary that the expedition should have been exhibited in the United States in martial array or under military organization or discipline. If the members composing the expedition were to have leave as passengers on merchant or passenger vessels, without arms or equipments, to meet upon some coast foreign to the United States, there to be equipped and to be employed against a friendly power, that would fall within the prohibition of the statute. Whether the expedition is an illegal military expedition, does not depend [Page 1164] upon its employment in the United States, but its ultimate destination and object. If its ultimate destination is a foreign state at peace with the United States, and its object hostile to the government or people of that state, or in opposition to their institutions and laws, and the expedition was begun by any arrangements among the men within the United States, or by preparations made there, then the act of Congress has been violated by all who are members of the expedition, and all who in the United States have knowingly and willfully contributed to its preparation.

If the question were decided in the light of this opinion, can it be said that this Government has adopted the means necessary to prevent the opening of subscriptions for the purpose of collecting funds, provisions, munitions of war, means of transport, and the purchase of bonds by the Cuban club of New York, for the purpose of promoting and aiding the insurrectionary war in Cuba?

The Secretary of State concludes his reply to the note of the undersigned by setting forth the reasons why the Department of State finds no analogy between the case of the Virginius and that of the Alabama, or that of any other of those vessels which were equipped in the ports of Great Britain during the civil war in the United States, and were submitted to the tribunal of arbitration at Geneva, pursuant to the treaty of Washington.

Those reasons are the absence of a state of war between Spain and the insurgents in Cuba. The circumstance that the Virginius was not equipped, armed, or manned in the port of New York as a regular vessel of war; that that vessel was not employed to cruise on the high seas, destroying the merchantile marine of Spain; that Spain did not demand damages for injuries inflicted on Spanish subjects as such, but damages resulting to Spain in her character as a nation or government, in consequence of the relations which she alleges to exist between the acts of the Virginius and the present insurrection in Cuba; but, notwithstanding this want of analogy which is said to exist between the complaints occasioned by the Virginius .and those to which the acts of the Alabama gave rise, the Secretary of State insists that the formal declaration of the arbitrators at Geneva, relative to what are called “indirect claims,” presented by the United States, is a decisive argument against the claims which are now presented on behalf of Spain,

It is enough to say in reply that the undersigned never thought of appealing to the acts of the tribunal of Geneva as an authority, but as a criterion placed there by the United States to express and define the limits to which the fulfillment of the duties of watchfulness and repression should be extended. Nor was it his intention to restrict the complaint which he is charged to present to asking for a compensation for damages and losses of nation from nation; but he proposed to include also the damages inflicted by the acts of the Virginius on subjects and property of Spain in the island of Cuba; so that the precedent invoked by the Secretary of State is in every respect inapplicable to the matter under discussion: first, because, according to the admission of the Secretary of State himself, it does not rest on analogous facts; and, second, because the decision of that tribunal has nothing to do with the peculiarties of the present case.

The case would be different if the claims known under the name of “Fenian claims,” presented, as the undersigned has understood, by the government of Great Britain, and now existing against this Government, for damages and wrongs inflicted on itself and on its subjects, had been submitted to the tribunal of Geneva, and the arbitrators had decided that that class of claims are not, according to the principles of the law of nations, matters for the concession or appraisement of damages and losses; and, if it had agreed or determined that the United [Page 1165] States had been remiss in the fulfillment of their duty, then, and not otherwise, would the precedent have been applicable to the present occasion. For this reason, and in order to better insure the continuance of the good relations existing between the two governments, the undersigned deems it his duty to submit to the consideration of the honorable Secretary of State some of the most notable of the series of incidents which have given rise to the reclamation that he is intrusted with presenting to the friendly consideration of the Government of the United States.

The insurrectionary uprising which took place at Yara in 1868 did not find extensive sympathies in the island of Cuba, and, although the superior political authority was badly provided as regarded the question of material force for encountering that traitorous manifestation, it was but a little while before its locality was limited to the eastern part of the island, where, as the consul, Mr. Hall, wrote to the Secretary of State, Mr. Seward, on the 18th of November, 1868, “the wild nature of the country, and the complete absence of railroads and even of ordinary roads, militated greatly in favor of the insurgents.” A general uprising of the Creole population not having taken place, on the one hand, as had been expected by Aguilera and Cespedes, and the disposition, on the other hand, to temper justice with mercy, induced the captain-general to publish what from its spirit might be regarded as a general amnesty, and by favor of which many Cubans left the island, a large part of them coming to settle in the United States.

It was soon discovered that these disaffected persons, among whom were various owners of valuable estates in the island of Cuba, had returned, in their place of refuge, to their perfidious intrigues against the authority of Spain in Cuba, and that for said, purpose they were selling or bargaining to sell their landed estates.

The want of popular support, before alluded to, and other causes, reduced the insurgents in the eastern extremity of the island to the condition of wandering bands, destitute of arms and munitions of war, with no other access to the ports and places where it was possible to communicate with countries beyond the Gulf than those which temporarily and under certain circumstances may be held by parties of bandits or rebels in all countries of the world. With the view of preventing their property and effects in the island of Cuba from being sold, and their proceeds applied in stirring up and sustaining the rebellion, the superior authorities, not without waiting for manifestation of disloyal sentiments and purposes, decreed the revision by the government of such sales and conveyances.

It is certain that, in the civil war of this country, the Federal Government was not slack in its measures of seizure and confiscation when the necessities of the case seemed to require it.

The Spanish government on its part took great care that, in the execution of its decrees, citizens of the United States who were owners of property in Cuba, and innocent of any participation in the acts of the rebels, should not be unduly injured, but it was never easy to harmonize suavity with justice in cases, for example, of eminent banking and commercial houses of New York and other places, who lent their names to a false pretext of being real purchasers by payment of the entire value, when in reality they only held the estates in trust for the purpose of covering and protecting persons who were engaged in violating the laws of Spain.

Isolated cases have doubtless occurred—and where does it not happen in the gloomy periods of internal strife?—of injury to property of foreign [Page 1166] subjects or citizens 5 but in all of them, the undersigned does not hesitate to affirm, the Spanish government has sincerly and in good faith endeavored to recompense the damages it has occasioned.

The difficulties which presented themselves in carrying into effect a decree which circumstances rendered indispensable, were increased and aggravated by cases of natives of the country, who suddenly showed themselves provided with documents with which they claimed to prove their quality of citizens of the United States, and the no less surprising rapidity with which some persons, who at the breaking out of the rebellion went away from Cuba, maintained that subsequently to their arrival in the territory of the Union they had acquired citizenship in the country to which they had fled, and in consequence thereof asked indemnity for the property which they had left in the island of Cuba; and claims of this character having become numerous, Spain agreed to the establishment of a mixed commission of arbitration to hear and determine them in conformity to law and justice.

The undersigned does not undertake to deny that at times extreme measures have been employed with respect to the personal liberty and to the property of suspicious individuals at the beginning of the insurrection, and after the generous moderation shown by General Dulce, by order of the government at Madrid, only appeared to serve as stimulus to the insurgents to commit acts of the greatest atrocity against loyal subjects of Spain. The rebels inaugurated their movement by burning and destroying sugar mills and cities, and hence resulted the necessity of carrying into effect severe and energetic measures of repression— measures which rendered legitimate, so far as they could not be defeated, the interests of sell-preservation and defense.

But it cannot be said that such rigorous measures are exclusively those of Spain. The code of instructions for armies in the held, published by the War Department of the United States during the civil war which terminated in 1865, authorized the destruction of every kind of property belonging to the enemy, and the penalty of death on every one who, in a section of territory occupied or subjected by one of the Federal armies, attempted to resist said army or the authorities which it had established. The seizures ordered in Cuba had a precedent, for want of others, in the laws passed by the Congress of the United States, and which imposed on the President the duty of taking possession of the property of the rebels of the South, and of confiscating it. Notwithstanding the great circumspection and caution which may have been observed by the authorities of the United States, the fulfillment of those laws gave rise to onerous and repeated claims for damages and ill-treatment inflicted on foreign subjects, and in consequence thereof a mixed commission has held a number of sessions in Washington to award indemnities for what was done, for damages inflicted on subjects of Great Britain.

That the insurrection at Yara in October, 1868, did not meet with sufficient support from the people of Cuba, and that its leaders comprehended the want of men, pecuniary resources, and munitions of war, is abundantly proved by the circumstance that as soon as they succeeded in establishing communication with the United States they began negotiations for obtaining funds and fitting out military expeditions.

On the 14th of November, 1868, Mr. Seward, at the time Secretary of State, urgently solicited the attention of Attorney General Evarts to the rumors that were then in circulation respecting an expedition which was being prepared against the island of Cuba, and the marshal of [Page 1167] New York, Mr. Murray, gave information respecting the matter on the 19th of November of the same year, in the following terms, which are transcribed in English:

It is true that a number of well-known filibusters have opened an office at 498 Broome street, in this city, for the ostensible purpose of enlisting mentor the invasion of the island of Cuba, but really with a view of making money out of the resident Cubans in this city who sympathize with their cause.

On the 19th day of March, 1869, the predecessor in this legation of the undersigned, Señor Lopez Roberts, informed the Department of State that a steamer called the Salvador was hastily preparing to form part of a military expedition against Cuba; and accordingly said steamer sailed from Key West at the beginning of the month of May following without being obstructed in any manner, carrying on board a hundred and fifty recruits and 2,500 cases of arms, which she landed on the 14th of the same month on a point of the island of Cuba called Nuevas Grandes, according to the testimony of one William C. Pinher or Fin her, put in the hands of the Secretary of State on the 18th of December, 1869, among several other documents, on which is founded a request for a recognition of belligerency in favor of the insurrection inaugurated by Cespedes. In the Department of State doubtless exists the antecedents of the Mary Lowell, When that vessel was overtaken and captured through steps taken by the agents of Spain at Bagged Island, her fitters-out had the impudence to pretend that she was bound to Vera Cruz to accomplish an ordinary operation of peaceful commerce, and even claimed damages of Spain for the capture. The testimony, however, existing in the Spanish-American commission at Washington fully proves the falsity of that assertion. The principal furtherers of that expedition were Doctor Bassora, Plutareo Gonzales, and Doctor A ran go y Mora. The military and naval officers were Captain Bonneau, F. T. Cisneros, and Thomas Jordan. This brig, laden with arms and munitions of war, took out a fraudulent clearance for Vera Cruz from the custom-house at New York in January, 1869, her true destination being Rum Cay, at which point she was to join the steamer Henry Burden, in command of her owner, Campbell, and on board of which were Thomas Jordan and forty or fifty American and Cuban soldiers. From Rum Cay the two vessels mentioned proceeded to Ragged Island, where the arms were all to be placed on board the steamer and the entire expedition landed on the coast of Cuba. During their stay at Ragged Island the expeditions against passed the time in military exercises, but at the moment when the voyage was arranged, the vessel which was conveying them, together with her cargo of arms, was captured by a Spanish cruiser. The steamer Henry Burden escaped, and the greater part of the expeditions against succeeded in returning to the United States. This was the first attempt of Thomas Jordan, a person notorious for the numerous offenses which he has committed against the laws of the United States and for being in quality of agent of Aldama, the present chief of the Cuban junta in New York, at which point, according to news received by the undersigned, he continues projecting hostile expeditions against the dominions of Spain.

When it came to be understood in the island of Cuba that there was meditated an invasion of its soil proceeding from and organized in the United States, the superior political government, in manifestation of its firm purpose that the insurection, held at bay in the interior should not receive aid from abroad, published on the 24th of March, 1869, a decree in which it was said that every vessel captured on the high seas in proximity to the island, and which had on board men, arms, and munitions, or other articles which could in any manner contribute to the [Page 1168] promotion, encouragement, or maintenance of the insurrection, should be held for an enemy and treated as a pirate, in accordance with the ordinances of the tribunals of marine, and that every person captured on board of such a vessel should be put to death by arms.

On the 3d of April, 1869, the Secretary of State of the United States made known to this legation the regret which he experienced at seeing that this decree had disregarded the treaty of 1795, in virtue of which, according to the honorable Mr. Fish, the citizens of the United States and their vessels had the right to carry to the enemies of Spain every kind of goods which were not contraband of war, subject only to the requirements of a legal blockade, and that therefore the United States could not consent that any of its citizens should be punished for merely using this privilege.

Subsequently, on the 7th of July, 1869, the same superior authority, in the exercise of an unquestionable right of sovereignty, closed all the ports and places of the Banda Oriental to commerce of importation and exportation, except a few which were mentioned, in which there were custom-houses; it prohibited the introduction of powder, arms, and warlike stores, whether military or individual, for the service of the insurrection; it decreed the seizure of the vessels and the punishment of the crews that were engaged in conveying said goods, person, or material, and denounced as a pirate every person who should enter the island with armed hand.

Justly uneasy at the success attained by the Cuban insurgents who were refugees in the United States, and at the tone of the note to which reference has just been made, Señor Lopez Roberts, bearing in mind the proclamations which had been issued under similar circumstances by Presidents Taylor in 1849, Fillmore in 1851, Pierce in 1855, and Buchanan in 1859, in which every citizen of the United States was warned and advised against every kind of fellowship with hostile expeditions against the island of Cuba, and was notified that whatever might be the punishment inflicted on them they would not be protected by this Government, intimated to the Secretary of State, in a communication dated the 5th of April, 1869, the propriety of issuing a new proclamation of the same purport.

Unfortunately the intimation of Señor Lopez Roberts was not heeded, since the Secretary of State replied: “At present this Government is not aware of any invasion of the island of Cuba, or of any other possessions of Spain, threatened from the United States, nor is any such believed to be in the course of preparation.”

The note of the Secretary of State refusing to accede to the wish of this legation that a presidential proclamation should be issued bore date of the 17th of April, 1869, and twelve days afterward, as appears from the declaration of one Welsh, transmitted to the Department of State on the 1st of June, 1870, that person had engaged to carry from Beaufort, in North Carolina, to the coast of Cuba, in the schooner called Grapeshot, of which he was captain, an expedition in command of one Antonio Jiminez. In consequence thereof Welsh proceeded from Beaufort in the beginning of May, touching on the way, on the 27th of the same month, at Turk’s Island, at which point the American consul went on board and participated in manifestations and speeches in favor of the Cuban insurrection; and on the following day, the 28th, the expedition landed at Guantanamo, in the southeastern extremity of the island of Cuba.

The expedition of the Grapeshot is memorable on account of claims which were made against Spain for the shooting of two individuals [Page 1169] called Speak man and Wyeth, captured with arms in hand immediately after the landing. In view of the evidence of the captain of this schooner, there is no doubt that these two individuals, far from being innocent passengers, put ashore in Cuba against their will, as was falsely alleged, sailed from the United States, remained on board of the Grape-snot, and finally landed in Cuba with the well-meditated purpose of taking part in acts of death and destruction in which were engaged the wandering bands of Cespedes.

In three weeks after the said reply of the Secretary of State, the steamer Perit, the property of Messrs. Spofford, Tileston & Co., of New York, and commanded by George G. Hetcher, was falsely cleared at the custom-house of that city, for Kingston, in the island of Jamaica, with a large cargo and three hundred military men, under the orders of the same Thomas Jordan who was one of the officers of the expedition of the Mary Lowell. In the packet of instruction given by the owners of the steamer to the captain, dated 4th of May, 1869, it is said, “The vessel under your command will carry a clearance for the port of Kingston, in Jamaica, but before arriving at that place you will stop and will unload at any port designated to you by Francisco J. Cisneros, agent of the shippers, who will be on board, or, in his absence, at whatever place may be indicated by General Thomas Jordan, who will also be on board. Until the unlading has been effected, you will consider yourself under the orders of the above-mentioned individuals. If, on the way to the port which may have been indicated to you for the purpose of unlading, you should be followed by a cruiser or armed vessel, you will await orders from said individuals with respect to avoiding said cruiser or armed vessel, and you will ask them to give you your instructions in writing.”

This expedition landed at Bahia de Nipe in nine days after its sailing from New York. The news was published in the newspapers of that city about the time of the departure of the Perit, and it never has been denied to the knowledge of the undersigned that some of the agents of Marshal Murray had knowledge of what was being plotted, because, their intervention having been sought in the matter, they lent their assistance in having released a young man whose inexperience had been abused in enlisting him for the expedition.

To this day neither the vessel nor her owners, nor any of the persons who contributed to said formidable enterprise, has been brought to punishment.

As the United States complained that British territory has served the confederates as a maritime base and arsenal from which they were provided with munitions of war, so in like manner could Spain complain that from the month of October, 1868, the territory of the United States has been the only and the prolific purveyor of men and munitions of war for the insurrection of Cuba.

The distinguished jurisconsult who spoke in behalf of the United States at Geneva uttered these words:

All commercial contracts, including the raising of money by loan, the building or fitting of vessels, the sale of arms or munitions or other supplies in aid of insurrection or domestic rebellion in a foreign state, are absolutely condemned as immoral by the laws of England, and are proscribed by the courts of justice.

Soon after the executive power at Washington had refused to issue the proclamation whose opportuneness had been indicated to it, there commenced, as the undersigned proposes to show, active, constant, and systematic exertions on the part of the Cuban junta to supply from the United States the want which the rebels had so keenly experienced, as well of men and cash as of arms and vessels.

[Page 1170]

The ship-owners did not step forward to freight their vessels for such illicit undertakings, and consequently the junta found themselves obliged, in many cases, to acquire them as property, while a citizen of the United States, bought for this purpose, gave his house as the true owner. The insurance companies refused to issue policies. Funds were obtained by means of subscriptions, and principally by the sale of bonds issued in the name of the so-called republic of Cuba, by its agents in this country; but as said bonds were not payable until the insurrection should succeed in wresting Cuba from the authority of Spain, this condition of eventual and contingent payment made of each purchaser a new participator in the designs of the insurrection. The zeal of the junta of New York and the hopes that they had of escaping punishment caused its members to put aside all reserve, as was remarked by the consul of Spain in the beginning of June, 1869, to Mr. Pierrepont, then district attorney of the United States, and consequently that functionary immediately submitted the facts to a grand jury, who, on the 16th and 23d-of that month, laid before the court presentments for violation of the sixth section of the law of April, 1818, against José Morales Lemus, (titled minister of the so-called republic,) José M. Bassora, (secretary of the junta,) Francisco Fesser, Mariano Alvarez, José M. Mora, (implicated in the affair of the Virginius,) Ignacio Alfaro, William C. Ryan, (shot recently at Santiago de Cuba,) Doctor J. J. McNulty, Doctor Dubose, (both subsequently found on board of the Hornet at Philadelphia,) and various others.

All these individuals were apprehended and called to judgment, and having given security that henceforth they would respect the laws, and would present themselves when asked for, they were set at liberty.

Only the district attorney at New York, or the Attorney-General at Washington, could have compelled the trial and punishment of these malefactors, but up to this day nothing of the kind has been attempted. Ryan escaped by force from the officer who had him in custody, but although he was arrested at a subsequent period, never was he punished for any of his offenses until he was captured on the Virginius.

Hardly had the mentioned individuals of the junta been set at liberty under security when they began again their intrigues to send a grand expedition on the steamer Catharine Whiting, in which, thanks to the energy displayed by Marshal Barlow, in virtue of orders from Washington, they were completely baffled.

The expeditionists were arrested, but immediately set at liberty without punishment. The vessels were seized previous to proceedings of confiscation, but they were afterward restored to their owners, as happened at a subsequent period with the Hornet. In a word, nobody suffered the sligthest penalty for this violation of the law.

At the same period of which we have just been treating, that is to say, at the time when the executive power at Washington refused to issue the proclamation solicited by this legation, the Cuban junta of New York concerted measures to put on the ocean a vessel of war completely armed and equipped, under the flag of Cespedes.

They were not long in gathering funds, and in the beginning of July, 1869, the steamer Hornet was purchased from the United States, as happened with the Virginius, and taken to Philadelphia for equipment; and shortly after said steamer was denounced to the authorities by agents of the Spanish government, they having sufficient reasons therefor. On the 1st day of August she was falsely cleared at the customhouse at Philadelphia for the port of Queenstown. In going down the river, having on board McNulty and Dubose, two of the individuals presented [Page 1171] at New York, she was stopped by the custom house officers, but released afterward, notwithstanding that Marshal Bartow had made known to the Attorney-General that, in his judgment, said vessel had an illegal object, as the marshal disclosed in these significant words: “She is bent upon mischief.” From Philadelphia the Hornet went to Halifax, and thence returned to the jurisdiction of the United States, receiving her arms off the coast of Massachusetts, and her coal and provisions off that of New York, from the same tug which subsequently supplied the Virginius, after which she hoisted the insurgent flag of Cuba, and sailed on her piratical errand.

The legation of Spain informed the Department of State, by a note dated September 28, that these things were going on. The marshal in New York had knowledge of them early enough to have prevented their accomplishment, as appears from a communication addressed by that functionary to Attorney-General Hoar, under date of October 1, 1869, had it not happened, as he says, that “there teas nothing to prevent it. On Saturday last all the revenue-cutters were withdrawn from under my order, and removed from their stations in the harbor without any information to me of the fact. I only accidentally found it out, and the harbor has since that time been free from cutters and detectives to stop anything.”

Being forced by stress of weather, the Hornet took refuge at the mouth of Cape Fear River, having on board one hundred and sixty seamen, eight officers, and eight cannons, and when the custom-house officers visited her she was only able to show them a commission issued by the so-called republic of Cuba.

On the 3d of October, 1869, the collector of the port of Wilmington, N. C., asked the Secretary of the Treasury at Washington for instructions, and on the day following the vessel was seized for violation of the third section of the neutrality law. Her officers were arrested and examined before a United States commissioner, and, having been found guilty, were sent for trial to the eastern district of New York. The United States, however, never really instituted legal proceedings against them, and they were finally discharged.

A petition was presented to the court at Wilmington for the surrender of the vessel, as being the property of the republic of Cuba, but this petition was denied by the judge, as coming from a government or body-politic whose existence was not known, and the vessel was consequently condemned and ordered to be sold. The Hornet was not sold, but was delivered to a partisan of the Cuban insurrection, in consideration of the payment of $2,500 to the United States as the costs of the prosecution, (no account was taken of the expense to which Spain had been put,) bail being also furnished in the sum of $50,000 that she should not again be employed in acts declared illicit by the laws of the United States. The vessel immediately returned to New York, and plans were again set on foot to use her for the same purpose as before.

In vain were the protests of the consul-general of Spain in New York. The correspondence which passed between that functionary and the district attorney, and between this legation and the Department of State, in December, 1870, in relation to this vessel, was published among the documents sent to Congress by the President on the 4th of December, 1871; and at the close of the first volume of “Documents relating to the treaty of Washington,” it is admitted by the Department of State that the Hornet conveyed another military expedition to Cuba, and that, having been blockaded in the harbor of Port an Prince by a Spanish war-vessel, she succeeded in making her escape through the interposition of [Page 1172] the United States, without any steps having been taken with respect to the vessel or to the aforesaid bail of $50,000.

The honorable Secretary of State cannot deny that the original fitting out of the Hornet, together with her arming off the coasts of Massachusetts and New York, constituted a hostile act against Spain, committed within the jurisdiction of the United States. In view of the facts which have just been stated, it is impossible to argue that a simple commercial operation was had in view with goods contraband of war. The Hornet was an armed cruiser, just as was the Alabama, with this difference, that the former of these vessels was armed and equipped entirely within the jurisdiction of a friendly or neutral country, which was not the case with the latter. In fitting out this vessel, the members of the Cuban junta and their partisans violated the acknowledged rights and duties of asylum, since they made use of the ports of the United States as a basis for their naval operations against Spanish commerce, and, under the protection of their asylum .and commercial transactions in contraband goods, they did what in fact constitutes war against a friendly country.

The undersigned has dwelt at some length upon these five military expeditions, conveyed by the Salvador, the Grapeshot, the Mary Lowell, the Catharine Whiting, and the Hornet, since they took place at such brief intervals, either before or after the refusal of this Government to issue the proclamation referred to, and of its having thus furnished ground for, and in a great measure rendered necessary, the rigorous decrees promulgated in Cuba in relation to foreign vessels, to the seizure of the property of suspected persons, and to the enforcement of the military penal code against the enemies of Spain captured on the island with arms in their hands. The expeditions already enumerated were speedily followed by others, as the principal of which may be mentioned those of the Lillian, George V. Upton, Florida, Edgar Stewart, E. D. Webster, Anna, Fanny, and Virginius.

The Lillian sailed from Cedar Keys, Fla., October 5, 1869, having Eloy Camacho on board as mate. This was the same person who had charge of the Spanish transport Comanditario when that vessel was surrendered to the insurgents, and the same who subsequently sailed from New York on board of the Virginius. Said vessel carried a large cargo of arms and upward of five hundred recruits, and was under the command of the so-called General Goicouria, the same who was arrested in New York on board of the Catharine Whiting, and subsequently discharged by Commissioner Betts.

The Government of the United States had ample information and notice with regard to this expedition.

The military commander on board of the George V. Upton was one T. J. Cisneros, the same who, in company with Thomas Jordan, took part in the expedition of the Mary Lowell and in that of the Perit. Her captain, Dornin, was second captain on board of the Hornet at the time of the detention of that vessel at Wilmington, and he was set at liberty under the circumstances already referred to. The Upton sailed from Brooklyn, N. Y., May 15, 1870, with one hundred and seventy-eight recruits. Even before reaching Sandy Hook she took a steam-lighter on board, for the purpose of effecting a landing on the coast of Cuba, which was done eight days afterward; and while she was still near New York she received a cargo of arms, in accordance with an arrangement previously made, from the schooner Quickstep. The Upton went from Cuba to Aspinwall, and on the 30th of May, 1870, she took another expedition, which she also landed in Cuba on the 11th [Page 1173] day of June of the same year, returning to New York on the 20th of the same month.

For these acts the Government of the United States inflicted no kind of penalty either upon the vessel, her owners, or the persons who fitted her out.

From an examination of the affidavits sent to the Department of State December 15, 1869, by the Cuban junta of New York, in support of the claim of the insurgents to be recognized as belligerents, it appears that, shortly after the breaking out of the insurrection, one Manuel Quesada had the chief control of everything relating to military affairs, and that he was succeeded in this position by Thomas Jordan, a citizen of the United States, and a certain Agramonte. It further appears, from the affidavit of Adolfo Varona, that this Quesada was sent to the United States in 1870 by Cespedes in charge of what was called a foreign mission, it being his duty to organize and direct military operations, and it also appears that this same Quesada for a long time had the military command of the Virginius.

On the 8th of December, 1878, the aforesaid Quesada published a statement in the Herald of that date, the heading of which was as follows: “The representative of the Cuban Republic in foreign countries to His Excellency the President of the United States.” In said statement the assertion was made that fourteen steamers, sixteen war-vessels, and forty thousand rifles had been purchased for the benefit of the insurrection. It is unnecessary to say that this enumeration does not include the vessels which were only hired or chartered. The article in question being a curious one in another point of view, inasmuch as it reveals the reasons why are cognition of belligerent rights was so earnestly solicited, an extract from it is given below.

When this population decided to break the ties which bound them to the mother country, propositions were made to inaugurate the movement in April, 1889, at which time it was thought all the arms and necessary supplies could be obtained and properly distributed; but the intention having been discovered by the Spaniards, the outbreak was anticipated by several months, and on the 10th of October of the year previous it took place. The Cubans preferred to go to the field without arms, rather than remain and be executed in cold blood by the Spaniards. From that moment the only question has been how to obtain arms from abroad. The Spanish government, being well aware that the oppressed people of .the Great Antilles had means enough to arm their forces and to create a navy, confiscated the property of a great part of them. This property amounted to several hundred millions of dollars, as can be proved by the official records in Havana. This measure could not, however, prevent the patriots from buying arms, though it diminished, to an immense extent, the revolutionary resources. By private subscriptions of Cubans only, there have been purchased 14 steamers, 16 sailing-vessels, and 40,000 rifles. Unfortunately, as the requisite funds could not be collected rapidly, it was impossible to apply them on as large a scale as necessary to evade the Spanish blockade, and not to break, in any respect, the neutrality laws of this country. The expeditions, sometimes owing to the scarcity of resources, and at others to the want of experience—natural under the circumstances—have not always arrived at their destinations. It was essential to employ a greater amount of money than could be obtained from private subscriptions. There were three methods of raising such money—sending privateers to sea to prey upon Spanish commerce, exchanging for funds those products remaining within the extent of the insurgent lines, and the negotiation of a foreign loan. To the first was presented the obstacle that the worthy representatives of the Cuban republic at that time did not dare to assume the responsibility, as they were made aware that the American Government would not view favorably the existence of Cuban privateers when it was pressing the Alabama claims. To the second existed the obstacle that Cuban belligerency had not been recognized, and it was impossible to excite the spirit of gain to engage in any enterprises the object of which was to run a blockade. The third had for its obstacle that all the European and some American houses disposed to enter upon its negotiations imposed, as a sine qua non condition, the previous recognition of Cuban belligerency by the United States. Consequently, the main object of all our diplomatic efforts has been during a certain time to bring about such recognition.

[Page 1174]

This statement, and various other well-known circumstances, place beyond all question the fact that the insurrection has received life and material assistance from the United States, which have served as its treasury, its arsenal, and as a base for its naval operations. Had it not been for these illicit aids and hopes it would long since have ceased to exist and to jeopardize the traditional relations of peace and friendship of two powerful nations.

With regard to many of the expeditions which have been conveyed, as already remarked, from the United States to Cuba, either the legation or the cousular officers of Spain have given timely and special notice to the Department of State or to the local authorities of this Government, and it must be admitted that in the case of the Catharine Whiting the authorities of New York acted with energy and efficiency. It was unfortunate that the powers conferred by the President upon these authorities on the 13th of July, 1869, were withdrawn from them, as is stated by District Attorney Barlow in his aforesaid communication to Attorney-General Hoar, which bears date of October 1, 1869. But, even if this had not occurred, and if the diplomatic and consular agents of Spain had not given ample notice of what was going on, as was done by Mr. Lopez Roberts in his communication of April 5, 1869, and others of subsequent date, the responsibility of this Government would have been the same. In the argument presented by the United States to the Geneva tribunal, the following is laid down as a principle of international law in relation to vessels which eluded the vigilance of the English authorities:

That they were not complained of or discovered by the minister of the United States does not relieve Great Britain of its duty of due diligence to discover them and to prevent their escape. The duty would have existed if misfortune had deprived the United States of such a representative, or if broken diplomatic relations had removed him from the kingdom.

What a commentary, morever, upon the failure of the Washington Government to issue a proclamation, are the words which were uttered at Geneva, whereby it was said that England had issued no proclamation, or circular-letters, in order to cause the proper officers to realize “any duty of vigilance to detect, of promptitude to declare, of activity to discourage the illegal outfit or dispatch of vessels in violation of international duty toward the United States!”

It is true that, early in 1870, with a view to facilitating such judicial proceedings as might be commenced, and also in order to afford the utmost dispatch in the courts when it might be necessary, the Secretary of State indicated to the legation of Spain the propriety of informing its consuls that they would be allowed to present directly to the competent authorities of the United States “any legal proof that they might have obtained concerning an infraction of the laws.” In consequence of this indication, the consular agents of Spain addressed communications relative to the Hornet to the said authorities on the 8th of December, 1870, and subsequently to the district attorney, Mr. Bliss. The district attorneys, however, in all cases replied that they had no power to take preventive measures in the absence of such legal proof as would render conviction certain. It is not necessary to say that it is very difficult for the consuls of Spain in this country to procure such proof in this country. It is in the very essence of political sovereignty, that while Spain has the widest latitude of political power within her own territory, she has none in the United States. Any legal action on her part is null and void here, since it lacks the legal authority which alone could render it effective, and because Spain has no control either over [Page 1175] the officers of justice or over the means which are required in order to discover a crime and to furnish legal evidence of its commission. She is not able to compel witnesses to appear and answer questions, and if, from time to time, a witness appears who is ready to tell the truth, Spain has no power to detain him while awaiting the pleasure or the convenience of a district attorney in cases in which it is necessary to bring the matter before the courts. If, then, a witness absents himself, or gives ear to the emissaries of the parties accused, the consuls of Spain find themselves exposed to unjust animadversion, while they cannot defend themselves, with due regard for their own decorum, either in the courts or elsewhere. The difficulties and inconveniences which are experienced by diplomatic and consular agents in discovering and furnishing evidence of crimes against a foreign jurisdiction within such jurisdiction, under established judicial and administrative systems, could not be better set forth than they are in a note addressed to Mr. Seward by Mr. Adams, under date of February 9, 1865, at which time the latter was minister of the United States in England.

The undersigned deems it unnecessary for him to add that it is not his intention to criticise the courts of the United States. In the foregoing remarks he has only desired to allude to the failure on the part of the authorities to take any initiative steps, and, being aware that the courts of justice established for the punishment of crimes against the state only act when a case is brought before them by the state, he complains that the state did not take measures for the prosecution and punishment of the sympathizers with the Cuban insurrection, seeing that, owing to the lack of such measures, certain acts which, in their inception, only constituted misdemeanors of individuals against the state, grew into an offense of the state against Spain, for which the latter is entitled to ask reparation.

After having referred to acts of this nature, and to the circumstances under which they were committed, the undersigned desires to call the attention of the honorable Secretary of State to the true definition of the duties and obligations of the United States, in the light of which these acts should be judged. The undersigned is very far from desiring to diminish or curtail the right of asylum for political offenses. The wisdom of the general principle which denies ex-territorial jurisdiction to criminal laws is acknowledged by all, and the undersigned is not unaware that the treaties concluded for the extradition of fugitives from justice, even on account of grave offenses not of a political character, are comparatively modern. The undersigned is also aware that the United States, like other countries, act under a laudable impulse of humanity in offering a refuge and asylum to those whom revolution, civil war, or political proscription have cast upon their shores. He would certainly not wish to see any impairment of the civil and individual liberty, of the freedom of speech and of the press, or of the security against illegal arrest or prolonged detention of person or property which the institutions of the great republic guarantee to all its inhabitants. These benefits of asylum, however, in favor of political refugees, as they have certain rights and privileges, likewise have corresponding duties and obligations, both as regards those to whom they are granted and the nation which grants them. An asylum signifies security to one fleeing from pursuit, but not a means of molesting his pursuers with impunity, or of converting his place of refuge into an arsenal and fortress from which to attack them. No state should permit a number of political emigrants to abuse the protection of its soil so as to attack with impunity, or in any manner to molest, the government [Page 1176] under whose laws they live, or the one whose jurisdiction they have abandoned. The United States should not, therefore, permit Cubans who have taken refuge on their soil, either on account of political or other offenses, to use their territory to establish and maintain an administrative center, such as the Cuban junta in New York, through whose instrumentality hostile expeditions have been, and still continue to be, sent against the possessions of Spain; and it must be observed that the permission of tolerance granted to the Cuban refugees, in the use which they have made and still make of the territory of the United States, is not only a want of friendship and neutrality, but that it might even be characterized as a really hostile act.

The undersigned will not weary the honorable Secretary of State with numerous quotations or the allegation of numerous antecedents in support of these principles of international law. One or two will suffice. It is an established maxim of British jurisprudence that by the common law of England the law of nations is recognized as forming a part of that jurisprudence, and numerous cases are on record in that country in which the principle has been established that a libelous article, written against a foreign sovereign or government, subjects its author to the penalty provided for libel. In the case of Peltier, a royalist, prosecuted in England for slander of the Pirst Consul during the peace of Amiens, Chief-Justice Ellenborough explained the law to the jury in the following terms, as will be seen by reference to Howell’s State Trials, vol. 28, page 230: (236?)

I lay it down as law that any publication which tends to degrade, revile, and defame persons in considerable situations of power and dignity in foreign countries may be taken to be and treated as a libel, and particularly when it has a tendency to interrupt the pacific relations between the two countries. If the publication contains a plain and manifest incitement and persuasion, addressed to others, to assassinate and destroy the persons of such magistrates, the tendency of such a publication is-to interrupt the harmony subsisting between the two countries, the libel assumes a still more criminal complexion.

The principle above enunciated never went, in England, as the undersigned believes, as regards its application, beyond what is provided for cases of libel; but its general application, as a principle of international law, has been solemnly advocated on other occasions, as is shown by a speech delivered by Lord Lyndhurst in the House of Lords, March 4, 1853, in which he said:

I will first take the case of British subjects. If a number of British subjects were to combine and conspire together to excite revolt among the inhabitants of a friendly state—of a state united in alliance with us—and these persons, in pursuance of that conspiracy, were to issue manifestoes and proclamations for the purpose of carrying that object into effect; above all, if they were to subscribe money for the purpose of purchasing arms to give effect to that intended enterprise, I conceive, and I state with confidence, that such persons would be guilty of a misdemeanor, and liable to suffer punishment by the laws of this country, inasmuch as their conduct would tend to embroil the two countries together, to lead to remonstrances by the one with the other, and ultimately it might lead to war. I think my noble and learned friends who are now assembled here, and who perform so important a part in the deliberations of this house, will not dissent from the opinion I state with respect to British subjects. Now, with respect to foreigners. Foreigners residing in this country, as long as they reside here under the protection of this country, are considered in the light of British subjects or rather subjects of Her Majesty, and are punishable by the criminal law precisely in the same manner, to the same extent, and under the same conditions as natural-born subjects of Her Majesty. In eases of this kind, persons coming here as refugees from a foreign state, in consequence of political acts which they have committed, are bound by every principle of gratitude to conduct themselves with propriety. This circumstance tends greatly to aggravate their offense, and no one can doubt that they are liable to severe punishment. I will put the case in another shape. The offense of endeavoring to excite revolt against a neighboring state is an offense against the law of nations. No writer on the law of nations states otherwise. But the law of nations, according to the decision of our greatest judges, is part of the law of England.

[Page 1177]

The doctrine of jurisprudence was subsequently confirmed by Lord Brougham, Lord Truro, and Lord Chancellor Cranworth. Phillimore, in his valuable treatise on international law, expresses himself in the same sense, as follows:

International law considers the right of self-preservation as pair and paramount to that of territorial inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right. The case of conflict, indeed, must be indisputable; such a case, however, is quite conceivable. A rebellion or a civil commotion, it may happen, agitates a nation; while the authorities are engaged in repressing it bands of rebels pass the frontier, shelter themselves under the protection of the conterminous state, and from thence, with restored strength and fresh appliances, renew their invasions upon the state from which they have escaped. The invaded state remonstrates. The remonstrance, whether from favor to the rebels or feebleness of the executive, is unheeded, or, at least, the evil complained of remains unredressed. In this state of things, the invaded state is warranted by international law in crossing the frontier and in taking the necessary means for her safety, whether these be the capture or dispersion of the rebels or the destruction of their strongholds, as the exigencies of the case may fairly require. In all cases where the territory of one nation is invaded from the country of another, whether the invading force be composed of the refugees of the country invaded or of subjects of the other country, or both, the government of the invaded country has a right to be satisfied that the country from which the invasion has come has neither by sufferance nor reception openly aided or abetted it.

Lord Palmerston, in a diplomatic note addressed to Lord Ponsonby, under date of October 6, 1849, adheres to the principle that a state ought not to allow emigrants the use of its territory in order to carry on hostilities against the government from whose jurisdiction they have fled. He says:

The Sultan has duties of good neighborhood to fulfill toward Austria, and those duties require that he should not permit his territory to be made use of as a place of shelter, from which communication should be carried on for the purpose of disturbing the tranquillity of any of the states which compose the Austrian Empire. The Sultan is, therefore, bound to prevent these Hungarian refugees from hovering upon the frontier of Hungary or Transylvania, and he ought to require them either to leave the Turkish territory or to take up their residence in some part of the interior of his dominions, where they may have no means of communicating with the disconteted in the Austrian states.

In violation of these precepts and examples of the duties owed to each other by countries which are bound by the ties of peace and friendship, when intestine disturbances unfortunately exist in one of them, the Cuban refugees in New York have, during the past four years, more than once succeeded in causing the United States to fail to perform the aforesaid duty. This is principally true in the case of the Virginius during the time which elapsed between the month of October, 1870, and that of November, 1873, in which Spain and her subjects on the island of Cuba have suffered serious detriment by reason of the acts of the said vessel. No small number of those engaged in the ill-fated expedition which was frustrated by the Tornado were recruited in New York for the purpose of invading the island of Cuba, and sailed for their destination in October last on board of the steamer Atlas.

The accompanying statement, made before the consul-general of Spain at New York by a person who took part in the aforesaid expedition, may not be altogether unworthy of credit; and, in addition to what is therein expressed, there is ground for the belief that other evidence might be procured to the effect that upward of forty of the persons who were on board of the Virginius were collected in New York, and sailed from that port by the steamer Atlas. The names of these persons do not appear in the list of passengers of the aforesaid steamer, but there is no doubt that there were nearly one hundred persons on board of her who had been previously organized and drilled in the port of departure.

[Page 1178]

The undersigned believes that, before the sailing of the expedition which was conveyed by the steamers Atlas and Virginius, the district attorney “had sufficient reason” to believe that it was on foot, however true it may be that the consul-general of Spain at New York was unable, at that time, to furnish legal proof sufficient to bring to trial the parties implicated, who had been made known to him, as had also their places of meeting.

In the view of these facts and of all the circumstances, which he has frankly and fully stated in the interest of the long-continued friendship and good understanding between Spain and the United States, the undersigned confidently hopes that the Government of the United States will recognize the right of Spain and her subjects to ask reparation for the injury which has been caused in the past by the acts of the Virginius, and security and guarantees for the future that the agents of the Cuban insurrection will not be permitted to use the territory of this nation, as they have done during the last four years, for the organization and fitting out of hostile expeditions against Spain.

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.