Mr. Fish to Admiral Polo de
Washington, April 18, 1874.
The undersigned, Secretary of State of the United States, has the honor to acknowledge the reception of the note of 2d of February last, which his excellency Admiral Polo de Bernabé, the envoy extraordinary and minister plenipotentiary of Spain, addressed to him respecting the Virginius, and the assumed relations of the United States toward the insurrection in Cuba.
The pressure of business incident to the session of Congress and a severe indisposition have prevented an earlier reply to that note
The undersigned has observed with regret in Admiral Polo’s note harsh expressions and unwarranted criticisms upon the official conduct of officers of the United States, which he feels confident would not have obtained admission to the paper had they attracted the attention of the accomplished minister of Spain, whose sense of justice would not allow him to give expression to what his sensitiveness and regard for the proprieties of diplomatic correspondence would not permit him calmly to accept.
The undersigned finds in the historical part of Admiral Polo’s note many misapprehensions of facts (as the facts are understood by this Government) and many errors of omission which need to be corrected before entering upon the particular argument respecting the Virginius. The undersigned will endeavor to do this as briefly as possible.
The insurrection which broke out at Yara, in the autumn of 1868, has had the unusual good fortune of having the justice of the complaints, [Page 1179] which it alleges in its justification, recognized by those who are engaged in suppressing it. On the 10th of September, 1869, the minister of transmarine affairs at Madrid, in an official paper, said:
A deplorable and pertinacious tradition of despotism, which, if it could ever be justified, is without a shadow of reason at the present time, intrusted the direction and management of our colonial establishment to the agents of the metropolis, destroying, by their dominant and exclusive authority, the vital energies of the country, and the creative and productive activity of free individuals. And although the system may now have improved in some of its details, the domineering action of the authorities being less felt, it still appears full of the original error, which is upheld by the force of tradition, and the necessary influence of interests created under their protection, which, doubtless, are deserving of respect so far as they are reconcilable with the requirements of justice, with the common welfare, and with the principles on which every liberal system should be founded. A change of system, political as well as administrative, is therefore imperatively demanded.
But while admitting the existence of the injuries which had provoked the outbreak at Yara, the government of the revolution of 1888 refused to remedy them until the armed insurrection should be suppressed. “Spain would already have given all constitutional liberties to Cuba,” said Mr. Silvela to General Sickles, “if the unfortunate insurrection of Yara and the cry of ‘Death to Spain,’ uttered by some Cubans, had not alienated the sympathies of the nation, and obliged the government to accept the impolitic contest to which it was provoked. The government considers that it can come to no definite decision in regard to the political situation and future government of the island of Cuba until the insurgents lay down their arms and cease the struggle.” This would indicate that it is the resistance to admitted wrongs, and not the wrongfulness of resistance, which Spain is endeavoring tore-press.
One of the two great questions at issue between the insurgents and the authorities of Spain was understood to be the future condition of the African race in the island. The insurgents, as early as the 26th of February, 1869, decreed the abolition of slavery “in the name of liberty and the people.” This act met with no response from Spain. The eloquent Mr. Castellar, when a member of the Cortes, without the responsibilities of government, said:
I am an advocate of abolition in Cuba, with a due regard to all interests. I am an advocate of colonial reforms, and of every possible liberty to Cuba and Porto Rico.
But when, in the tarn .of events, he attained to power, he was unable to do anything for Cuba, and retired with slavery untouched, and with reforms still a dream.
It canuot be a matter for wonder that persons in other lands sympathized with the great and liberal statesmen of Spain in their convictions that a large measure of reform was needed in Cuba, and held that one of the greatest of all was the abolition of slavery. And perhaps less surprise will be manifested that such sympathizers in other lands could not comprehend why such distinguished statesmen should insist upon subjugating the Cubans, who had taken up arms to resist oppression, before consenting to relieve them from the wrongs which they were admitted to be enduring.
It must be frankly confessed that there were many persons in the United States who snared the theoretical opinions of the Spanish statesmen, but who could not agree in the diametrically opposite policy which Spain pursued toward Cuba under their directions.
It was natural for the people of the United States to feel an interest in the prosperity of Cuba. This and the reasons for it were well understood at Madrid. Mr. Martos, in the presence of his colleagues, Mr. Becerra and Mr. Rivero, had officially spoken to General Sickles of [Page 1180] “the common interests shared by the United States and Spain in Cuba.” He said “that whatever retarded the prosperity of the island was injurious alike to both countries; that the welfare of Cuba was of more commercial importance to the United States than to the mother country.”
This wise statesman might have added that the interest of the United States in Cuba was heightened by a desire that the deadly struggle on the island might end in the acquisition of self-government (whether under, or free from, Spanish rule was of course immaterial to au American) and in the abolition of slavery. Such was undoubtedly the fact. The undersigned feels convinced that these views were shared by the mass of the liberal statesmen of Spain, modified, probably, by the patriotic wish that the island should retain its political connection with Spain. But it could not be expected that foreigners would share in the full warmth of this wish of Spanish statesmen. The mass of the people of the United States certainly gave little heed to the matter beyond the natural preference that a disturbing element of European politics should be removed from the American system.
In the rapid progress of events, however, they, in common with the rest of the civilized world, were soon forced to give attention to Cuban affairs. The authorities in that island began to exercise rights of war in time of peace, and to trample out liberties which their superiors at Madrid desired to maintain and extend.
Admiral Polo expresses the opinion that the insurrection “did not find extensive sympathies in the island of Cuba,” and that “it was but a little while before its locality was limited to the eastern part of the island.
Such was not the tenor of the information received at this Department.
It is now more than five years since the uprising, and it has been announced, with apparent authority, that Spain has lost upward of eighty thousand men, and has expended upward of one hundred millions of dollars, in efforts to suppress it; yet the insurrection seems to-day as active and as powerful as it has ever been. And the suggestion that its locality was limited to the eastern part of the island leads one to inquire whether Villa Clara and the other of the cinco villas, and the railway between Nuevitas and Puerto Principe, are in that district.
Indeed, until the receipt of Admiral Polo’s note, the undersigned had supposed that the extent of the disaffection in Cuba was urged as an extenuating motive for the remarkable series of measures which the undersigned will soon notice.
Soon after the outbreak of the insurrection, this Government, of its own accord, without being thereto moved by the representative of Spain, caused inquiries to be made respecting “rumors of a projected expedition against Cuba” from New York, with a view, should circumstances require it, to the issue of such instructions as might be necessary for “the defeat of the schemes in question.” The officer charged with the inquiry answered that he had made a thorough investigation, and added:
It is true that a number of well-known filibusters have opened an office at 498 Broome street, in this city, (New York,) for the ostensible purpose of enlisting men for 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 the cause. But I am happy to inform you that thus far they have been unsuccessful.
This fact, which exhibits the anxiety of this Government to perform its international duties, is apparently referred to by Admiral Polo with [Page 1181] a purpose o# showing a want of diligence on its part in that respect; since, in quoting the report of the officer, the passage which is underscored is omitted.
On the 24th of March, 1869, the captain-general Of Cuba issued a decree, which is referred to by Admiral Polo, and from which the following is an extract:
Vessels which may be captured in Spanish waters, or on the high seas near to the island, having on board men, arms, and munitions, or effects that can in any manner contribute, promote, or foment the insurrection in this province, whatsoever their derivation and destination, after examination of their papers and register, shall be de facto considered as enemies of the integrity of our territory, and treated as pirates, in accordance with the ordinances of the navy.
All persons captured in such vessels, without regard to their number, will be immediately executed.
A copy of this decree was received at this Department on the 2d of April, 1869, and the undersigned, although but then just entered upon the duties of his office, and greatly pressed with other public matters requiring immediate attention, put everything aside, by direction of the President, and on the next day wrote as follows to the minister of Spain at Washington:
It is to be regretted that so high a functionary as the captain-general of Cuba, should, as this paper seems to indicate, have overlooked the obligations of his government pursuant to the law of nations, and especially its promises in the treaty between between the United States and Spain of 1795.
Under that law and treaty the United States expect for their citizens and vessels the privilege of carrying to the enemies of Spain, whether those enemies be claimed as Spanish subjects or citizens of other countries, subject only to the requirements of a legal blockade, all merchandise not contraband of war. Articles contraband of war, when destined for the enemies of Spain, are liable to seizure on the high seas, but the right of seizure is limited to such articles only, and no claim for its extension to other merchandise, or to persons not in the civil, military, or naval service of the enemies of Spain, will be acquiesced in by the United States.
This Government certainly cannot assent to the punishment by Spanish authorities of any citizen of the United States for the exercise of a privilege to which he may be entitled under public law and treaties.
It is consequently hoped that his excellency the captain-general of Cuba will either recall the proclamation referred to, or will give such instructions to the proper officers as will prevent its illegal application to citizens of the United States or their property. A contrary course might endanger those friendly and cordial relations between the two governments which it is the hearty desire of the President should be maintained.
The order to indiscriminately slaughter “all persons captured in such vessels, without regard to their number,” could not but shock the sensibilities of all humane persons. The undersigned felt, however, unwilling to object to the execution of the order, except when proposed to be enforced against citizens of the United States.
Almost simultaneously with the receipt of this startling news, Mr. Lopez Roberts, on April 5, 1869, made of the undersigned the request referred to by Admiral Polo, that the President should issue a proclamation to restrain military expeditions against Cuba, accompanying the request with allegations “that piratical expeditions are in preparation against the legitimate government of Spain in Cuba,” and that “arms and ammunition are sent there in sailing-vessels and steamers.”
In regard to the second point thus stated by Admiral Polo’s esteemed predecessor, the undersigned was constrained by a due regard to universally recognized principles of international rights and duties to declare, that in the absence of a recognized state of war, it was no offense in the sailing-vessels and steamers of the United States to carry arms and ammunitions of war for whomsoever it might concern. The undersigned has uniformly said that no government can by the law of nations [Page 1182] be held responsible for shipments of arms, munitions, or materials of war, made by private individuals at their own risk and peril. If a state of war should exist, if Spain should be entitled to the rights of a belligerent, parties concerned in the shipment of arms and military supplies for her enemy would incur the risk of confiscation by her of their goods; but their act would involve no ground of reclamation against their government in behalf of Spain; and consequently no right to invoke the aid of that government in preventing the perpetration of the act. Such it is believed is the established law of nations, and such the received rule even when the shipment of arms and munitions is made from the territory of the country whose citizens may be the parties engaged in the introduction of these supplies for the use of one of the belligerents.
In regard to the first point thus taken by Mr. Lopez Roberts, the undersigned could not but observe that the allegations respecting alleged piratical expeditions were not only wholly unsupported by proof, but were in themselves extremely improbable.
It is quite competent for a state to apply the term of “piracy” by its municipal acts to any offenses, however trivial, and to affix to them punishments it may deem appropriate. But in thus applying the title of a crime known to international law to offenses created by municipal law, it cannot invoke upon the latter penalties which international law denounces against the crimes which the nations of the world recognize as “piracy.”
Within its own territorial jurisdiction the application of terms and of epithets, or even the denunciation of punishments, except so far as they may offend humanity or the civilization of the age, might not be objected to; and the undersigned does not at present feel called upon to deny that the penalties thus denounced may be enforced (without right or question by other powers) upon those who may commit the acts to which these terms are applied, within the territory of the state enacting the municipal law. But it would be inappropriate to apply either such definitions of crime or penalties to matters occurring without its territorial jurisdiction, or in discussions with other powers.
Piracy, as an offense against the unwritten but universally recognized law of nations, has been made the subject of many definitions. The definition by Wheaton, as explained by his commentator Dana, would probably be recognized by the courts of all civilized powers.
Wheaton defines this crime “to be the offense of depredating on the seas without being authorized by any sovereign state, or with commission from different sovereigns at war with each other;” and Dana, in his note upon this definition, says, “to constitute piracy jure gentium, it is necessary, first, that the offense be adequate in degree—for instance, robbery, destruction by fire, or other injury to persons or property— must be committed on the high seas and not within the territorial jurisdiction of any nation; and, second, that the offenders, at the time of the commission of the act, should be in fact free from lawful authority, or should have made themselves so by their deed, or, as Sir L. Jenkins says, ‘out of the protection of all laws and privileges,’ or, in the words of the Due de Broglie, ‘quin’a ni feu ni lieu;’ in short, they must be in the predicament of outlaws.”
It did not appear to the undersigned from any evidence that was laid before him at that time by Mr. Lopez Roberts, or from any other source, that any parties were undertaking or contemplating military expeditions from the United States against Cuba, or were proposing to make any “piratical expeditions.”[Page 1183]
The undersigned therefore felt constrained to reply, on the 17th of the same April, in the following language:
After a careful examination of Mr. Roberts’s note, the undersigned fails to perceive the necessity, or the propriety at this time, of a proclamation by the President of the United States such as Mr. Roberts desires.
The publication of an instrument of the character asked by Mr. Roberts would be the exercise of a power by the President which is resorted to only on extraordinary occasions, and when peculiar circumstances indicate its necessity. Such a power is not to be invoked lightly, or when the laws are in unquestioned vigor and efficiency, are respected by all persons, and are enforced by the ordinary agencies.
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. Mr. Roberts has, on several occasions, intimated to the undersigned the existence of individual or private attempts in different parts of the country to violate the neutrality laws of the United States. In every such instance, as Mr. Roberts very justly admits in his note, the proper officers of the Government have been called upon immediately to vindicate the supremacy of the law, and no single instance is known oris believed to have arisen in which their interference, thus invoked, has not been efficient to prevent the apprehended violation.
The justice of these views of the undersigned on the 17th of April, 1869, have been amply vindicated by subsequent events.
Instead of resorting to the exceptionable and uncertain measure of a proclamation, this Government availed itself of the agency of special and peremptory instructions to executive officers, and by this means succeeded in preventing the formation of military expeditions in every case referred to by Admiral Polo, except in the case of the Catharine Whiting, and in that case it entirely broke up the proposed expedition by the use of force.
The objectionable decree of the 24th of March was soon followed by a proclamation of Count Valmaseda still more abhorrent to the sense of the civilized world. By this proclamation, made at Bayamo on the 4th of April, 1869, which reached the Department of State on the 9th of May, the following announcement was made to Cubans who believed with Mr. Castelar, General Prim, Mr. Becerra, Mr. Silvela, Mr. Martos, Mr. Rivera, and other Spanish statesmen, that Cuba was suffering under oppression and wrong which ought to be remedied:
- Every man, from the age of fifteen years upward, found away from his habitation, (finca,) and does not prove a justified motive therefor, will be shot.
- Every habitation unoccupied will be burned by the troops.
- Every habitation from which does not float a white flag, as a signal that its occupants desire peace, will be reduced to ashes.
- Women that are not living at their own homes, or at the house of their relatives, will collect in the town of Jiguani, or Bayamo, where maintenance will be provided. Those who do not present themselves will be conducted forcibly.
The courses of trade and of social intercourse had carried many citizens of the United States into Cuba. When, therefore, this proclamation reached the undersigned, the President thought it right toward Spain that, although scarcely crediting the genuineness of the document, the undersigned should send the following notice to Mr. Lopez Roberts:
In the interest of Christian civilization and common humanity, I hope that this document is a forgery. If it be indeed genuine, the President instructs me, in the most forcible manner, to protest against such a mode of warfare, and to ask you to request the Spanish authorities in Cuba to take such steps that no person having the right to claim the protection of the Government of the United States shall be sacrificed or injured in the conduct of hostilities upon this basis.
Admiral Polo now attempts to defend these orders by saying that—
Such rigorous measures are not confined exclusively to Spain; that the code of instruction for armies in the field published by the War Department of the United States during the civil war which terminated in 1855 authorized the destruction of every [Page 1184] 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 United States were in a state of war when the orders referred to were issued. Spain had not been slow in forcing upon them in the very incipiency of the rebellion her recognition of a state of war. She does not now recognize that she is herself at war, bat appeals, as a precedent for her conduct, to rules prescribed for armies in the field. If she claims the rights, it is but logical that she accept the consequences of a state of war.
The instructions for the government of armies of the United States in the field, referred to by Admiral Polo, were promulgated on the 24th of April, 1863. The undersigned takes the liberty of quoting several passages from them, which sufficiently illustrate the humane and Christian spirit which pervades them—a spirit characterized by Dr. Bluntschli as “en correlation avec les idées actuelles de l’humanité et la manière de faire la guerre chez les peuples civilisés.”
Martial law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not martial law; it is the abuse of the power which that law confers. As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity, virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war.
Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of the war will admit.
The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women, and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.
Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and indeed modern war itself, means to obtain that object of the belligerent which lies beyond the war. Unnecessary and revengeful destruction of life is unlawful.
The undersigned is confident that Admiral Polo will feel a sincere pleasure in thus knowing that his information respecting these instructions has been incorrect. Even had it been correct, the accomplished and generous minister from Spain and the undersigned would alike feel unwilling to contend that two wrongs could make a right.
Even in such case, however, it would be remembered that a worthy precedent might be found in the practice of the United States during a rebellion of the most mighty proportions, pending which not a prisoner was killed in cold blood; not a political crime, however grave, was visited with capital punishment. The soil of the United States remains to this day unstained by the first drop of blood taken from a political offender. Had this example been followed wherever a political insurrection has arisen, many might now be living whose blood cries aloud against the cruelty of some rulers. Christendom generally applauds the example of clemency and of generosity which the United States thus exhibited.
The same spirit of generous regard for life, and forgiveness, marks the policy of the United States in other respects, and makes their penal codes look to the prevention more than to the punishment of crime, and often withholds the enforcement of penalties when the danger against [Page 1185] which they are denounced is supposed to have passed. It is with much regret that it is seen from the correspondence with the representatives of Spain for the past five years, and from the frequent complaints (in the note of Admiral Polo, now acknowledged) of the omission of the United States to enforce penalties and inflict punishment, that Spain does not sympathize with the policy of clemency and forgiveness, and seems to regard punishment as the test of the sincerity with which crime is denounced, and as the sole means of preventing at least political offenses. The examples of the condition of the two countries must be the criterion to determine the comparative merits of the antagonist systems.
Prior to this time, (namely, on the 12th of February, 1809,) a decree with an explanatory statement had been issued by the captain general, taking from the jurisdiction of the ordinary courts a large class of crimes, and forcing American citizens charged with such crimes to be tried before a court-martial, in violation of the provisions of the treaty of 1795. When it is remembered that this decree was issued about the time when it was officially announced to the undersigned that the rebels have no communication with each other, they occupy no place as a center of operations, nor have they in the whole island a single city, a single town, a single village or hamlet, nor even a point on the coast where they might collect their forces, and date their orders and proclamations,” Admiral Polo will comprehend the magnitude of this assault upon the rights secured to citizens of the United States by the treaty of 1795.
The English translation of the text of this decree is as follows:
In use of the extraordinary faculties with which the provisional government of the nation has invested me, I decree the following:
- Article 1. Crimes of infidencia shall he tried by ordinary court-martial.
- Art. 2. Prosecutions already commenced shall follow the legal process prescribed by the laws for the tribunals of justice.
- Art. 3. All aggressions, by act or by word, against any of the delegates of the government, shall be considered as a crime against the authority, and will subject its author to trial by court-martial.
Havana, February 12, 1869.
superior political government of the ever-faithful island of cuba—office of the secretary.
For the better understanding of the decree published yesterday, (the 12th of February,) it is made known that under the word infidencia, which is made use of in article 1, are understood the following crimes: treason, or lesa nacion, rebellion, insurrection, conspiracy, sedition, harboring of rebels and criminals, intelligence with the enemy, meetings of journeymen or laborers and leagues; expressions, cries, or voices subversive or seditious; propagation of alarming news; manifestations, allegations, and all that, with a political end, tends to disturb public tranquillity and order, or that in any mode attacks the national integrity,
It is also made known that robbery in uninhabited districts/whatever may be the number of the robbers, and in populated districts, if the number of the robbers be more than three, shall be tried by court-martial, as also the bearers of prohibited arms. And by order of his excellency the superior political governor, the same is published in the Gazette, for the general knowledge.
On the 15th of April, 1869, the same policy which had prompted the authorities in Cuba to deprive citizens of the United States of personal rights guaranted to them by treaty, led to a decree of embargoes of property, which, so far as it applied to the properties of citizens of the United States, was also in direct violation of the rights secured by the treaty of 1795. The publication of this decree was followed by the publication of another decree, (made on the 1st day of April,) interfering with the free alienation of property on the island. And two days later [Page 1186] another decree was published, creating an administrative council to take charge of the embargoed estates. Under the operation of these several decrees a vast amount of the property of citizens of the United States is understood to have (illegally, and in violation of law and right) come into the possession of subjects of Spain, without having yet been accounted for or refunded.
When these decrees came to the knowledge of the undersigned, he addressed the following communication to the predecessor of Admiral Polo, under date of April 30, 1869:
I am instructed by the President to inform you that this department has received from the United States consulate in Cuba a decree dated the first day of April current, and promulgated by the captain-general of the island on the 15th of this month, which virtually forbids the alienation of property in the island, except with the revision and assent of certain officials named in the decree, and which declares null and void all gales made without such revision and assent.
In view of the intimate commercial relations between Cuba and the United States, and of the great amount of American property constantly invested there in commercial ventures, as well as in a more permanent form, the President views with regret such sweeping interference with the rights of individuals to alienate or dispose of their property, and he hopes that steps may be speedily taken to modify this decree so that it shall not be applicable to the property of citizens of the United States, and thus prevent disputes and complaints that cannot fail to arise if its execution is attempted as to such property.
It is with regret that the undersigned finds himself unable to accept the declaration in Admiral Polo’s note made in connection with the seizure of private estates, and the transfers of private property, that it was not without waiting for manifestations of disloyal sentiments and purposes that the decrees were made respecting the sales and embargoes. The undersigned is of opinion that a recurrence to the correspondence which he has had the honor to conduct with the Spanish legation in this capital, and through the legation of this government at Madrid, will recall many instances of interference with the private rights and property of citizens of the United States, who have had no connection with the insurrectionary movements in Cuba, and man where Spain has practically admitted the precipitancy of her officers in their haste to lay hands on private property, and has in many instances promised, and in a very few instances has granted, the restoration of property thus unlawfully seized. And in this connection the undersigned must be permitted to express the regret with which he observes the introduction into a diplomatic note of the cases of “eminent banking and commercial houses of New York and other places,” which, by agreement between the two governments, have been referred for adjudication to an international commission, and the prejudgment and denunciation of these eminent houses as having lent their names to a false pretext.”
On the 7th of July, 1869, the captain-general of Cuba decreed:
- Article 1. There shall continue closed to import and export trade, as well for vessels in foreign commerce as also those in the coasting trade, all the ports situated from Cayo Bahia de Cadiz to Punta Mayso, on the north, and from Punta Mayso to Cienfuegos, on the south, with the exception of those of Sagua la Grande, Caibarien, Nuevitas, Gibara, Baracoa, Guantanamo, Santiago de Cuba, Manzanillo, Santa Cruz, Zaza, Casilda, or Trinidad, and Cienfuegos, in which there are established custom-houses or collection-offices.
- Those who attempt to enter the closed ports or to hold communication with the coast shall be pursued, and, on being apprehended, prosecuted as infractors of the laws.
- Art. 2. In accordance with the same, there shall also be prosecuted vessels carrying powder, arms, or military supplies.
- Art. 3. The transportation of individuals for the services of the insurrection is much more grave than that of contraband, and will be considered as an act decidedly hostile, being proceeded against in such case as an enemy, the vessel and its crew.
- Art. 4. If the individuals to which the preceding article refers come armed, they [Page 1187] will afford proof in fact of their intentions, and will be tried as pirates the same as the crew of the vessel.
- Art. 5. There shall also be held to be pirates, in conformity with law, vessels which may be seized bearing a flag not recognized, whether the same be armed or not as vessels of war.
- Art. 6. On the high seas contiguous to those of this island the cruisers shall confine themselves to exercise over such vessels as may be denounced, or those that by their proceedings excite suspicion, the rights stipulated in the treaties signed by Spain with the United States in 1795, with Great Britain in 1835, and with other nations subsequently, and if in the exercise of these rights vessels should be found recognized as enemies of the integrity of the territory, they shall be brought into port for the corresponding legal investigation and trial.
This extraordinary decree caused a profound sensation in the United States, and the undersigned, as soon as it was received, addressed a note of inquiry to the predecessor of Admiral Polo, dated July 16, 1869, the material parts of which he takes the liberty of transcribing, as Admiral Polo seems to be under a misapprehension respecting it:
The decree of the captain-general, De Rodas, assumes powers and rights over the trade and commerce of other peoples inconsistent with a state of peace, and which the United States can be expected to allow their vessels to be subject to only when Spain avows herself to be in a state of war, or shall be manifestly exercising the rights conceded only to belligerents in the time of war.
The first article of the decree proposes to close certain ports, embracing a large extent of the island of Cuba, against the peaceful commerce of foreign countries. Without contesting the right of a government in time of peace to exclude from its ports the trade and commerce of a friendly people, the undersigned assumes that the exercise of this power is to be understood purely as a municipal act, to be executed and enforced wholly within the recognized exclusive jurisdiction of Spain, and only as to ports which are in the possession of the Spanish authorities. In case the success of the insurrectionary party should put any of the ports, declared to be closed, in their-possession, the United States, as a maritime nation, will regard an effective blockade to be necessary to the exclusion of their commerce.
The second article of the decree is vague in the absence of the limits within which it proposes to prohibit the carrying of powder, arms, or military supplies.
The transportation on the high seas, in time of peace, of articles commonly known as contraband of war, is a legitimate traffic and commerce which cannot be interfered with or denounced unless by a power at war with a third party in the admitted exercise of the recognized rights of a belligerent. The freedom of the ocean can nowhere and under no circumstances be yielded by the United States. The high seas contiguous to those of the island of Cuba are a direct pathway of a large part of the purely domestic trade of the United States. Their vessels trading between their ports in the Gulf of Mexico and those of the Atlantic coast pass necessarily through these waters. The greater part of the trade between the ports of the United States on the eastern side of the continent and those on the Pacific slope, of necessity pass in sight of the island of Cuba. The United States cannot, then, be indifferent or silent under a decree which, by the vagueness of its terms, may be construed to allow their vessels on the high seas, whatever may be their cargo, to be embarrassed or interfered with. If Spain be at war with Cuba, the United States will submit to those rights which public law concedes to belligerents. But while Spain disclaims a state of belligerency, or until the United, States may find it necessary to recognize her as a belligerent, the Government of the United States cannot fail to look with solicitude upon a decree which, if enforced against any vessel of the United States on the high seas, cannot but be regarded as a violation of their rights that may lead to serious complications.
The sixth article of the decree refers to certain rights claimed to be stipulated by the treaty entered into between Spain and the United States in 1795.
The undersigned desires to call the attention of Mr. Roberts and of the government of Spain to the fact that the treaty of 1795 confers upon neither of the contracting parties any rights on the high seas over the vessels of the other in time of peace.
The articles of the treaty of 1795 from I to XI, inclusive, define and regulate the reciprocal relations and obligations of the parties without reference to either party being engaged in war. The portion of the treaty from the XIIth article to the XVIIIth contemplates exclusively their relations as neutrals, the duties and powers of each toward the other when one or the other may be engaged in war with a third party. The eighteenth section recognizes and regulates the right of visit or of approaching in time of war, for the inspection of the passport and the identification of the nationality of a vessel of commerce by the vessels of war, or by any privateer of the nation which shall be at war. It confers no right; it limits and prescribes the manner of exercising a belligerent right when such may exist. The clear object and intent of this [Page 1188] provision of the treaty is the avoidance of discussion and annoyance, and the prevention of abuse or indiscretion in the exercise of a belligerent right. Its location in the treaty, the recognition of the right of a privateer (who has no existence except in war) as having the same power and right in the particular referred to with a national vessel of war, and the whole scope and aim of the XVIIIth article of the treaty, established beyond possibility of question that it refers only to the rights which one of the parties may have by reason of being in a state of war.
The treaty authorizes nothing but the inspection of the passport of the vessel of trade met with, while the sixth article of the decree of General de Rod as contemplates a search as to the character of the vessel beyond the limitation fixed by the treaty.
If Spain be engaged in the war it is essential to the rights as well as to the definition of the duties of the people of the United States that they be publicly and authoritatively advised thereof and admonished as to their obligations and liabilities in their new relation with a friendly power. And such admonition admits of no avoidable delay in view of the vast commerce that will thus be subjected to restriction, limitation, and possible detention.
The undersigned, therefore, respectfully desires to be informed by Mr. Roberts, at the earliest practicable moment, whether, in the issuance of this decree, it is to be understood by the United States that Spain recognizes that she is in a state of war and claims the rights of a belligerent.
The undersigned has the honor further to say to Mr. Roberts that the Government of the United States cannot fail to regard the continuance of the decree referred to, or any exercise on the high seas near the island of Cuba, by any vessel of war or privateer of Spain, of the right to” visit or board any vessel of the United States, under color of the provisions of the treaty of 1795, as involving the logical conclusion of a recognition by Spain of a state of war with Cuba.
Before concluding, the undersigned begs to call Mr. Roberts’s attention to the very grave complication which might ensue from any interference with a vessel of the United States engaged in a lawful voyage, passing near the island of Cuba. The United States maintain the right of their Hag to cover, and protect their ships on the high seas.
In conclusion, the undersigned expresses the hope that Mr. Roberts will speedily be at liberty to announce the formal abrogation of a decree which causes so much serious apprehension to the Government of the United States, and against which this Government feels bound most earnestly to remonstrate.
In deference, as it was understood, to these views expressed by the undersigned on behalf of this Government, the decree of the captain-general was modified as follows on the 18th of July, 1869:
In view of the determinations adopted by the Government of the United States of America, as reported by his excellency the minister of Spain in Washington, under date of the 15th instant, and which were published in the Official Gazette of the following day, and in order at the same time to relieve legitimate commerce from all unnecessary interference, in use of the faculties which are conferred upon me by the supreme government of the nation, I have determined to modify my decree of the 7th instant, leaving the same reduced to the first five and essential articles.
In consequence of these severe measures against the persons and properties of Cubans who shared the opinions of the liberal statesmen of Spain respecting the injuries which had been inflicted upon their native country, many tied from the island to the United States. And the undersigned cannot disguise from himself that these Spanish subjects, driven from their native country, have attempted to abuse the hospitality of the United States—that they have tried to make use of their safety here in order to regain what they had lost in Cuba, and that they have been restrained only by the perpetual vigilance and zeal of the officers of the United States. Alas! if the ears of the ministers of Amadeo and of the republic could have been opened to the complaints of their Cuban friends, what criminations might have been spared us!
Admiral Polo, in his review of the vessels which, he says, have taken or attempted to take men and arms from the United States to Cuba, speaks particularly of the Mary Lowell, the Salvador, the Grapeshot, the Catherine Whiting, the Hornet, the Lillian, the Upton, and the Virginius. He also makes reference to the Florida, the Edgar Stuart, the Anna, the Fanny, and the Webster.[Page 1189]
The imperfect and in many respects erroneous manner in which Admiral Polo has referred to the vessels which he has named, and his entire neglect-to notice the many proofs of the constant vigilance and of the anxious desire of the United States to perform all their international duties to Spain, make it necessary for the undersigned to give a brief review of what was actually done by the United States in respect of these matters.
It may give precision to the review to first .define succinctly what the United States understand to have been their duties toward Spain, as a neighbor and as a friend.
The repeated references by Admiral Polo to the doctrines laid down in the course of the discussion at Geneva induce the undersigned to say at the outset, not only that the particular references and citations are from the argument of counsel, which in forensic discussions among all nations is permitted to take a wider latitude of expression than is usual in official or judicial statements, which are supposed to express settled convictions, but also that these discussions at Geneva were predicated upon the admission of a recognized state of war; and that if Spain is prepared to concede that there is a state of war in Cuba, with belligerent rights in each party to the conflict, and shall accede to the three rules set forth in the treaty of Washington, then the United States may be prepared to concede to Spain what they claimed of Great Britain at Geneva, viz, that their duties as a neutral toward Spain as a belligerent will not thereafter be fully performed by simply acting upon information which may be furnished by Spanish agents, without themselves originating any action; that, in the language of their own counter case at Geneva, “they would not thereby be relieved from the duty of an independent, diligent, and vigilant watchfulness in order to prevent evil-disposed persons from violating their neutrality.”
But the undersigned is also constrained to insist that the idea of neutrality in international discussions is inseparable from the idea of a belligerency to which the neutral is not a party; and to repeat that he is unable to comprehend how propositions for the regulation of the conduct of a neutral in a state of war can be pertinently applied to the conduct of one sovereign state toward another friendly sovereign state in time of peace. Thus, when Peru, between whom and Spain a state of war existed, requested the United States to detain a large number of vessels of war, which certain contractors were constructing within the territories of the United States for Spain, it became the duty of the United States to detain the vessels; but, when the assent to their release was given by Peru, it was not regarded by Spain or by the United States as any violation of international duty to permit the vessels to be constructed and delivered and dispatched, notwithstanding the existence of an armed insurrection against Spain in Cuba. Nor can it be claimed that the United States have been guilty of any neglect or want of duty in allowing Spain, on more than one occasion, to make use of their public dock-yards for the reparation of vessels of war.
So far as relates to the past, Spain has never been willing to concede that a state of war exists in Cuba. The rights and duties of the United States toward Spain, therefore, from the commencement of the insurrection, are to be measured by the rights and duties of one nation toward another, in case an insurrection exists which does not rise to the dignity of recognized war.
What one power in such case may not knowingly permit to be done toward another power, without violating its international duties, is defined [Page 1190] with sufficient accuracy in the statute of 1818, known as the neutrality law of the United States.
It may not consent to the enlistment within its territorial jurisdiction of naval and military forces intended for the service of the insurrection.
It may not knowingly permit the fitting out and arming or the increasing or augmenting the force of any ship or vessel within its territorial jurisdiction, with intent that such ship or vessel shall be employed in the service of the insurrection.
It may not knowingly permit the setting on foot of military expeditions or enterprises to-be carried on from its territory against the power with which the insurrection is contending.
The learned and accomplished minister of Spain, toward the close of his able discussion of this subject, cites the authority of Lord Palmerston to establish that a sovereign power “should not permit its 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 the neighboring states.
These duties of good neighborhood were recognized by this Government more than a quarter of a century before Lord Palmerston made the speech referred to by Admiral Polo; and the neutrality law of 1818 was then enacted for the purpose of defining the acts of disturbance which should be prevented, and of providing a punishment for such persons as might be found to be guilty of them.
But a friendly government violates no duty of good neighborhood in allowing the free sale of arms and munitions of war to all persons, to insurgents as well as to the regularly-constituted authorities; and such arms and munitions, by whichever party puchased, may be carried in its vessels on the high seas, without liability to question by any other party. In like manner its vessels may freely carry unarmed passengers, even though known to be insurgents, without thereby rendering the government which permits it liable to a charge of violating its international duties. But if such passengers, on the contrary, should be armed and proceed to the scene of the insurrection as an organized body, which might be capable of levying war, they constitute a hostile expedition which may not be knowingly permitted, without a violation of international obligation.
During the late Franco-German war, each party was free to purchase arms and munitions of war in this country, and did so; and Frenchmen whose hearts were with their struggling countrymen at home, or Germans who wished to join the invading armies of Germany, were free to leave the shores of the United States for that purpose, so long as they left as private citizens, unarmed, and without engagement made in this country to enter the service of a belligerent. They did thus leave, in vessels of several different nationalities. Neither this Government nor any other neutral government which may have allowed its merchant-marine to transport the arms and munitions of war or the passengers to Europe, was guilty of a violation of its duties as a neutral.
Even recognized war, therefore, cannot oblige neutral nations to contract the right of their citizens to engage in such commerce, which is lawful in time of peace, or to abridge the liberties of persons enjoying the protection of their flag, to such a point as to render illegal either of these proceedings; although in time of actual war the transportation on the high seas of articles known as contraband of war is to be made subject to the right of capture. But in time of peace no vessel of war has the [Page 1191] right to capture, or even to interfere with, molest, or detain upon the high seas a regularly documented vessel of another power.
This doctrine is not new in the intercourse of nations.
On the 10th day of April, 1858, Mr. Cass, then Secretary of State of the United States, wrote to Lord Napier, the envoy of Great Britain:
Undoubtedly a right vested in the armed cruisers of one state to stop and examine the merchant-vessels of another might be so exercised as to contribute toward the suppression of crimes upon the ocean. But this power of armed intervention might also be exerted at the expense of the maritime rights of the world. Such an exercise of force, so liable to be abused, will never meet the concurrence of the United. States, whose history abounds with admonitions, warning them against its injuries and dangers. They have no disposition to surrender the police of the ocean to any other power, and they will never falter in their determination to enforce their own laws in their own vessels, and by their own power, and to oppose the pretensions of every other nation to board them by force in times of peace.* * * To permit a foreign officer to board the vessel of another power, to assume command in her, to call for and examine her papers, to pass judgment upon her character, to decide the broad inquiry whether she is navigated according to law, and to send her in at pleasure for trial, cannot be submitted to by any independent nation without injury and dishonor. The United States deny the right of the cruisers of any other power whatever, for any purpose whatever, to enter their vessels by force in time of peace. No such right is recognized by the law of nations. As Lord Stowell truly said, “I can find no authority that gives the right of interruption to the navigation of states upon the high seas, except that which the right of war gives to belligerents against neutrals. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the ocean, except upon the belligerent claim.”
On the 8th of June, 1858, Mr. Dallas, the minister of the United States in London, had an interview’ with Lord Malmesbury, at the foreign office, on the subject of the detention and visitation of documented vessels of the United States by British cruisers on the high seas. Lord Malmesbury furnished Mr. Dallas with a written minute of the conversation which then took place:
Her Majesty’s government are not prepared to justify or excuse such acts on the part of their officers as have been complained of by the United States Government, if they are truly reported. Her Majesty’s government recognize the principles of international law, as laid down by General Cass in his note of the 10th of April, and that nothing of the treaty of 1842 supersedes that law. Her Majesty’s government, however, think it most indispensable in the interest of civilization and the police of the seas that there should be a power of verifying the nationality of a vessel suspected, on good grounds, of carrying false colors. Her Majesty’ government would wish to learn from the United States Government their views in detail on this point, in the hope that some mutual arrangement, by way of proceedings, to be executed by our respective officers, may be found effective without being offensive. The French have lately proposed and laid down this one, viz: that a boat may be sent alongside of a suspected ship, and may ask for papers, but not, unless invited, board the vessel. Such is our arrangement with France. Lord Malmesbury has given Mr. Dallas a copy of our instructions to our officers. Pending our negotiation on the above point, orders will be given to discontinue search of United States vsssels.
On the 16th of the same June, the Senate of the United States unanimously adopted a resolution—
That American vessels on the high seas, in time of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong, and, therefore, any visitation, molestation, or detention of such vessel, by force, or by the exhibition of force, on the part of a foreign power, is in derogation of the sovereignty of the United States.
It is also understood that the enlightened government of Spain has, in the recent case of the Deerhound, recognized the justice and force of the principle thus established in practice by France, Great Britain, and the United States.
That vessel was dispatched from Plymouth, (England,) with a cargo of arms, ammunition, and military clothing, destined for the Carlist insurgents in the north of Spain. She was captured by a Spanish [Page 1192] cruiser on the high seas off the coast of Spain and taken into port. Lord Granville demanded her release, saying—
Her Majesty’s government cannot acquiesce in the competency of the Spanish government to refer to a prize-court the case of the Deerhound; neither can Her Majesty’s government admit that legal jurisdiction can be assumed by the Spanish government over a British ship which, in time of peace, has been seized upon the high seas by a public ship, of Spain.
The government of Spain surrendered the Deerhound, and Mr. Carvajal informed the representative of Great Britain—
That if her release was agreed upon, it was only because of her having been captured in neutral waters.
The learned minister of Spain seeks to maintain, by a citation from an eminent English publicist, that this right of transportation may be subordinated by the necessities of self-preservation in the government which is contending with an insurrection. It is not necessary for the undersigned to assent to or to deny the justice of this proposition in the extreme case and with the great limitations stated by Sir B. Phillimore. But the acute intelligence of Admiral Polo cannot fail to perceive that the supposed act of self-preservation is none the less an act of war because alleged to be done in self-defense; and the undersigned cannot permit himself to assume that Spain maintains that such an invasion of the territory of another power as Phillimore refers to would confer upon the courts or military authorities of the invading nation the right to try and condemn, for alleged crimes, persons who might be captured on neutral soil. In the case of the Virginius, had Spain, after her capture by the Tornado, restored her and her passengers and crew to the United States, to be dealt with according to their laws, the appropriateness of the citation from the British publicist would appear to be more manifest.
Admiral Polo also cites an extract from a speech by Lord Lyndhurst, in the House of Lords, in March, 1853, in which the learned jurist endeavored to convince that distinguished body that, by the laws of England—
If a number of British subjects were to combine and to conspire together to excite revolt among the inhabitants of a friendly state, and those 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, such persons would be guilty of a misdemeanor, and liable to suffer punishment, and that foreigners residing in England are punishable by the common law, precisely in the same manner, and to the same extent, and under the same conditions as natural-born subjects.
In view of events which have taken place since that speech was delivered, the undersigned might, were it necessary, feel disposed to doubt whether Lord Lyndhurst correctly interpreted English law, as understood by its administrators. But it is needless to dwell upon that consideration, because, as the undersigned has already pointed out, the United States have not left the character of that class of acts to be determined by unwritten common law, but have provided by statute which of them, if committed, should be regarded as criminal, and punished accordingly.
In the same connection Admiral Polo refers to a decision of a British court respecting the law of libel. It is not understood what precise bearing upon the present discussion this reference is intended to have. If it be intended to suggest the propriety or the expediency of limiting the freedom of public discussion in the United States upon the Cuban insurrection, the reply must be courteous but peremptory and distinct that the suggestion cannot be entertained. This Government tolerates the greatest freedom and latitude of discussion of public subjects. [Page 1193] It even permits, without objection, a journal in New York, which is currently reported to receive pecuniary support from official Spanish sources, to indulge in language vulgarly abusive and libelous toward the President of the United States and the undersigned, and calculated to excite disrespect toward the Government, and to destroy confidence in the institutions of the country.
The amiable and just minister of Spain will not ask a government which permits such freedom in a foreigner to restrain its own citizens within narrower limits. And it will probably occur to him that a comparison of the tone, temper, and modes of expression of the journals of this country (where no censorship prevails) toward Spain, with those of the journals of Madrid and of Havana (where it is understood that the government assumes the responsibility of controlling what shall appear) toward the United States, will show that the American press is quite as temperate, wise, moderate, and just as is the Spanish.
The undersigned wall now proceed to show that the United States have faithfully performed all their international duties toward Spain during the existing insurrection.
The earliest case to which Admiral Polo invites attention is that of the Mary Lowell. It is not alleged, as it certainly could not be correctly said, that this Government had any knowledge or information of the sailing of this vessel, so that it is unnecessary for the undersigned in this connection to consider whether the voyage upon which she was engaged was or was not one which should have been prevented by this Government. And further, the Mary Lowell never reached Cuba except as a vessel captured by a Spanish man-of-war, and did no injury to Spain. The undersigned would be at a loss to understand why reference is made to her, were it not that Admiral Polo makes reference to the met that a claim against Spain growing out of an illegal seizure of this vessel is now pending before a judicial tribunal in Washington, and attempts to prejudge the case. The United States having agreed to submit that question to arbitration, the undersigned declines to enter upon a diplomatic discussion of it.
The case of the Salvador comes next in point of time.
On the 19th of March, 1869, the esteemed predecessor of Admiral Polo handed to the Secretary of State an unsigned and undated memorandum, in the following terms:
From official information deserving entire credence, it is known that at the port of Jacksonville or Fernandina, on the coast of Florida, a steamer is being fitted out by the name of Salvador, (or perhaps some other name,) for the purpose of committing depredations, in the character of a privateer and with the flag of the Cuban insurgents, against the maritime commerce of Spain. The vessel will leave port with the United States flag, and at sea will replace it by that of said insurgents. Considering that this steamer, under the absurd pretense of sympathizing with the Cuban insurgents, has no other object than that of committing acts of piracy against Spanish commerce, it is earnestly hoped that the United States Government will use all the means it may deem necessary to avoid a proceeding so scandalous and so contrary to the law of nations.
The Government of the United States responded to this suggestion by giving immediate orders to its officials to prevent such a violation of law.
On the 22d of March Admiral Porter, acting for the Secretary of the Navy, advised the undersigned that proper instructions had been given to the commander of the North Atlantic squadron on this subject. On the 23d the Attorney-General advised the undersigned that such instructions had been given to the officers of the Government under his Department as it was hoped would lead to the prevention or punishment of such violations of law. And on the 5th of April the Secretary of [Page 1194] the Treasury informed the undersigned that the collectors of Fernandina and of Jacksonville had reported that no such vessel was fitting out at those ports. In fact, no act of piracy was effected or attempted upon the commerce of Spain by the Salvador, or, so far as the undersigned knows, by any other vessel. And when, nearly two years later, Mr. Lopez Roberts, in an elaborate note, which will be noticed hereafter, summed up the charges which Spain thought herself justified in bringing against the United States by reason of alleged Cuban expeditions from United States ports, nothing was said of the Salvador; and from the day when Mr. Lopez Roberts asked the interference of this Government to prevent a piratical expedition in that vessel, to the day of the receipt of Admiral Polo’s note of the 2d of February, not one word of complaint was made to the undersigned respecting this vessel.
Admiral Polo now says:
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 150 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. Pincher, or Tinker, put in the hands of the Secretary of State on the 18th day of December, 1889, among several other documents, on which is founded a request for a recognition of belligerency in favor of the insurrection inaugurated by Cespedes.
It is presumed that the testimony thus referred to by Admiral Polo is that printed in the Senate Executive Document No. 7, at the second session of the Forty-first Congress, on the 110th, 111th, 112th, 113th, and 114th pages, under the name of William C. Tinker. A reference to this testimony shows that the affiant made only the following statement respecting the Salvador:
On the 14th of May last I landed at Nuevas Grandes from the steamer Salvador, together with 150 men.
He says nothing about sailing from Key West—nothing about cases of aims. In point of fact, the undersigned was informed by the United States consul-general at Havana at that time that the Salvador was an English steamer, and that she made the voyage in question from the English port of Nassau, and not from Key West.
As Admiral Polo has deemed Mr. Tinker of sufficient credibility to be made a witness on behalf of Spain, the undersigned has examined his affidavit with care, and finds that it contains several important statements, a few of which are transcribed:
Upon landing I took eight men and went forward into the country. I had proceeded about twelve miles, when I came to the first encampment of Cuban troops at San Mar tin. There were about eighty men there, under command of a captain; they were armed and uniformed; those men were placed there as a, posse comitatis, or guard to the civil court, which was then in session at that place.
I found the government completely organized, the various officers performing the duties and functions belonging to their offices. There were the departments of war, of finances, of the interior, and department of public instruction. The congress was then in session. I attended several of its deliberations.
I found the people exceedingly enthusiastic, apparently everywhere devoted to the government of the republic.
During the time I was in the island, I visited a considerable number of the encampments of the republican army, situated between Puerto Principe and Santiago de Cuba. I found in the district I visited about twelve thousand men under arms.
There are certain lines of defense which had been assumed before I arrived, and which were maintained up to the time of my leaving, and which, from late reports, I know to be still held. These lines were, from Nuevitas on the north to Puerto Principe, a distance of, about eighty-five miles, and from Puerto Principe to Santa Cruz on the south.* * * Roads leading to the “five-city” district.
The undersigned is constrained to find in these statements of a witness now brought forward by the Spanish minister an apparent conflict with other information furnished to Admiral Polo, and cited by him, that “the insurrectionary uprising which took place at Yara in 1868 did [Page 1195] not find extensive sympathies in the island of Cuba,” and that these causes “reduced the insurgents in the eastern extremity of the island to the condition of wandering bands, destitute of arms and munitions of war.”
On the same day, with the memorandum respecting the Salvador, Mr. Lopez Roberts left at this Department another memorandum, also unsigned and undated, which was of the following tenor:
According to information received from New Orleans, Mobile, Jacksonville, Fla. Charleston, Savannah, and other southern ports, filibustering expeditions are being organized in said ports for the purpose of joining the insurgents in the island of Cuba.
It is hoped that the Government of the United States will renew the orders previously issued to the local authorities, (district attorneys, collectors of customs, United States marshals,) to the effect that, acting in harmony with the consuls of Spain or other duly authorized agents, such measures may be taken, agreeably to law, as shall prevent and defeat such acts of aggression against a nation friendly to the United States, and their ancient ally.
This information also was at once brought to the notice of the Attorney-General, the Secretary of the Treasury, and the Secretary of the Navy.
The admiral in command of the North Atlantic squadron at the earliest moment dispatched a vessel to New Orleans. The officer in corn-Viand of that vessel reported that he was unable to discover that there was even a probability of any such expedition being seriously contemplated, although its organization had doubtless been discussed, and perhaps proposed. The information from the other Departments was of the same tenor.
The next case, chronologically, to which attention is invited by the note of the 2d of February is that of the Grapeshot, which is said to have sailed from New York with arms and passengers for Cuba in April, 1869, soon after the attention of the authorities of the United States had been specially directed by the minister of Spain, away from New York to New Orleans, Fernandina, Mobile, Jacksonville, and other more southern ports, as the contemplated points for Cuban expeditious. Neither this Government nor the alert agents of Spain apparently had reason to suspect that the Grapeshot was about to make a voyage inconsistent with the international duties of this country to Spain; an that there was nothing in her voyage, so far as known to this Government, inconsistent with such duties, may be inferred from the fact that no special complaint has been made to this Government by the representative of Spain in respect of it until now. Her purposes were disclosed to the British authorities at Turk’s island during her stay there on her way to Cuba, and they, apparently, did not regard it as a case where they would be authorized to interfere. One aspect of the case only suggests a possible reason for its presentation now: that the claims of the representatives of Messrs. Speak man and Wyeth, who were passengers on the vessel, and were executed by the authorities of Spain, as was charged by the United States, in violation of law, have been agreed to be referred to a judicial tribunal in Washington. The undersigned most respectfully declines to discuss these cases diplomatically, notwithstanding Admiral Polo’s statement that he has no doubt as to the facts respecting these unfortunate men.
The next case to which Admiral Polo invites attention is that of the steamer Perrit. Admiral Polo says:
In three weeks after the said reply of the Secretary of State,[meaning the note to Mr. Lopez Roberts, of the 17th of April,] the steamer Perrit, the property of Messrs. Spofford, Tileston & Co., of New York, 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.
It may be assumed that there is no pretense that the custom-house knew that the clearance was a fraud, since Admiral Polo says nothing on that point, but is, nevertheless, at pains to allude to a newspaper-rumor that some detectives in New York knew what was going on, and asserts that this rumor has never been denied. This Government had no means of knowledge of the movements of the Perrit beyond that which it might derive from the records of its custom-house. The undersigned will not do the amiable and intelligent minister of Spain the injustice to suppose that in his remarks about the newspaper-rumor he considered it of any serious importance whether the affirmations in an obscure paragraph in a newspaper were or were not officially denied by this Government.
It is now known that no armed or organized expedition went on the Perrit; that it consisted only of unarmed passengers, mostly Cubans, returning home—about two hundred in all.
The attention and vigilance of this Government were directed on that day by the minister of Spain in quite another direction. Three weeks from the 17th of April would be the 8th of May. But late in business hours on the 7th of May Mr. Lopez Roberts informed the undersigned that he had intelligence to the effect that the steamer Quaker City was being fitted out and armed at New York for the purpose of cruising against Spanish commerce. The undersigned telegraphed immediately to the marshal of the United States at New York to inquire into the matter with a view to further proceedings, and as soon as possible the next morning he laid the matter officially before his colleagues, the Secretary of the Treasury and the Attorney General. Each of those officers took prompt action, and the result was that the Quaker City was detained until, some weeks later, this Government was officially notified by the British minister at Washington that she had been transferred to a British subject, and was laden with Hour, and bound to Jamaica.
There is no doubt that both the representatives of Spain at Washington and this Government had reason to think at that time that vigilance was necessary to counteract the activity of the friends of the insurrection. The steps already recounted show that. The information respecting the Quaker City came on the 7th of May, and she was immediately put under watch. On the 13th the undersigned submitted to the Attorney-General the expediency of instructing the judicial officers in regard to the steamer Atlanta at Philadelphia, the steamers Memphis and Santiago de Cuba at New York, and the ssteamer Florida at Chester, and the same instructions were sent respecting them that had been sent in respect of the Quaker City. Although it turned out in the end that none of these vessels were intended for the insurgents, a constant watch was kept on them until this fact was established.
At the same time the minister of Spain was informed that the United States attorneys of the several districts would receive directly from the Spanish consuls any facts they might be pleased to communicate respecting any violation of the neutrality laws of the United States, and was told that if proof should be furnished, judicial proceedings would be at once set on foot for the purpose of preventing or punishing such violations.
About this time, also, proceedings were commenced in the/courts in the city of New York against several leading Cubans, supposed to be concerned in these attempts to violate the sovereignty of the United States, The parties were arrested, and released upon giving security that they would respect the laws.[Page 1197]
Admiral Polo is pleased to say, in respect of the proceedings against these persons, that—
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 this 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 or the Virginius.
The undersigned takes the liberty to remind Admiral Polo of certain circumstances connected with the trial of Ryan and Jordan, with which he was probably unacquainted when he wrote his note of the 2d of February.
On the 27th of November, 1871, the district attorney of the United States for the southern district of New York addressed a letter to the counsel for the Spanish government in New York, in which he informed them that the United States circuit court would resume its session on the 6th of December following, and that it was his intention to call for trial at that session the indictment against General Jordan, and also to move the trial of William A. C. Ryan, adding:
You will recollect there are three indictments against Ryan, two for breaking the neutrality laws and one for escape and rescue from the marshal. I desire you to aid in procuring the witnesses for the Government, and to furnish all the assistance that you deem expedient.
When the circuit court convened, the district attorney found himself without the witnesses which the counsel for Spain had, on the 29th of November previous, given assurance would be present, and, under these circumstances, he was forced to have the several cases set down for hearing at a later day of the term. Accordingly, Jordan’s, the first case, was fixed for trial on the 11th of that month. The district attorney then caused the following letter, on the 6th of December, to be addressed to the counsel of the Spanish government in relation to the witnesses, and the importance of securing their attendance, in order to enable him to proceed with the trial of Jordan:
I have to state that, in pursuance of your letter of the 22d of November, giving names of witnesses to be used in the prosecution of Thomas Jordan, subpoenas were made out for the persons named, and on the 1st instant delivered to the United States marshal for service, addressed respectively to the places given in your letter as the residence of such witnesses. F. A. Red burn, named in your letter as one of the witnesses, called at my office, and professed his willingness to accompany the deputy charged with the duty of serving the subpoenas, and I introduced him at the marshal’s office where he promised to accompany the officer. I learn that he did not return to go with the marshal, as he had agreed, but in his place a person named Frederick R. Lowe appeared, and expressed his intention of replacing Redburn. On the 2d instant he wrote to the deputy, Mr. Tierny, in charge of the process, and agreed to meet him on Sunday night at Jersey City, and accompany him on his search for the witnesses. This appointment he failed to keep, and the marshal was obliged to proceed alone. He reports to me that he visited Port Tobacco, Md., given as the address of the witness Boyd; that he could find no person of the name in or about the place, which is a small village; that he inquired concerning Boyd from many of the inhabitants, and from the mail-carrier, who all assured him that no person of that name lived in the vicinity or had lived there for several years past. In Baltimore, in spite of diligent search, he could not find any George Bush who answered to the description of the person he was directed to secure. He further stated that the address must have been incorrectly given in your letter, as Franklin street is at a considerable distance from Druid Hill Park.
He then went to Paterson to secure Henry Raymond, that town being given as his residence, and having been told by Lowe that Raymond was employed in the machine-shop of McGurniss & Co., in that place. There is no such shop in Paterson. Inquiry that he made at other machine-shops and among machinists and workmen in the place failed to secure for him the person he sought.
Deputy Allen was sent to Lime Rock in search of Georga A. Mason, but returned equally unsuccessful. The only witnesses I have vet seen of the list furnished by you [Page 1198] are Lowe and Redburn. Lowe stated to me that he could procure Cameron, hut has not yet done so. It will be impossible to do anything in the case of Jordan without the testimony of these witnesses, who cannot be found by any means at our disposal, and the case being set down for the 11th instant they should at once be procured.
On the next day, December 7, the district attorney again wrote to the counsel, expressing his willingness on behalf of the United States to pay the expenses of any person who might be designated by these gentlemen to accompany the officer charged with the service of the subpoenas. In this letter he says:
Subpœnas for such witnesses are now ready, and an officer will be kept prepared to start as soon as the person you may send, who will be able to designate to him the parties to be served, shall appear. I particularly request that you will send the person referred to without delay, as the cause is on the calender for the 11th instant.
And again on the same day, December 7, still another letter was sent to the counsel informing them that in the indictments against Ryan he has caused subpœnas to be issued for the witnesses whose names they had furnished, adding:
I specially request that you will at once, in accordance with your offer, co-operate with the Government in obtaining the presence of those witnesses. I will make a further effort, by sending the marshal again with the subpoenas to each of the places named by you, and will pay the expenses of any person whom you or the Spanish consul will send to accompany the marshal, to point out to him the persons wanted as witnesses, and I repeat the request that my assistant has .already made to you, that such person be promptly furnished.
The case (of Jordan) has been noticed for trial at each successive term, and your Mr. Craig has been advised of that fact, and requested to produce the witnesses, both by myself in person and by both my assistants, without any compliance or attempt to comply with the request. At each term Jordan has appeared, and his counsel has persisted on the case being tried, of which fact you have been repeatedly advised, and the Government, through the neglect on your part to carry out the assurance given when the indictment was formed, by producing the necessary witnesses or furnishing any information where they might be found, has been compelled to ask for continuance after continuance.
On the libel of the Florida you furnished me with affidavits fully justifying the seizure of that vessel, and, if true, her condemnation but when the claimants compelled the trial, not one of the affidavits was produced by you, although repeatedly urged to furnish them; nor could one of the witnesses be found on the subpoenas issued by this office. Mr. Craig acted as counsel on that trial, and yet his vigilance was insufficient to aid us in finding the witnesses on whose affidavits, prepared by himself, the libel was issued.
On the 8th of December, in another letter to the counsel, the district attorney said:
I ask you explicitly, whether or not you intend to furnish a person, Mr. Redburn, or any one else, to accompany the marshal, and point out the witnesses for whom he is armed with process.
Mr. Redburn has seen the marshal, and been assured that his expenses will be paid; he has arranged with the marshal to meet him at Taylor’s Hotel, in Jersey City, this evening at 8.30, to take the 9.29 train; the marshal will be there ready to go, if Mr. Redburn keeps his engagement; I request you to see that he keeps it. The Government is using every effort to find the witnesses required by you, and has gone beyond the usual course in assenting to your proposition to pay the expenses of the person you promise to furnish to point them out.
Notwithstanding these unwearied efforts on the part of the district attorney, Mr. Redburn did not keep his appointment, nor did any one else appear in his place to accompany the marshal. The witnesses were not forthcoming on the 11th, the day set for the trial of Jordan, and the Government was again obliged to apply for a continuance.
In the face of these repeated disappointments, the district attorney again, on the 28th of December, addressed a letter to the counsel of Spain, informing them that the circuit court would resume its session [Page 1199] on the 2d of January, 1872, and that he then intended to press the cases “of Jordan and Ryan to trial,” adding:
I respectfully renew my request that as counsel for the Spanish authorities you furnish me with the witnesses material to establish the alleged violation of the neutrality laws in accordance with the assurances given to me when the prosecution against Jordan was commenced.
It cannot be contended, in face of these efforts on the part of the prosecuting officers of the United States, that’ the failure to bring Jordan and Ryan to trial was the result of any want of earnestness or of zeal on the part of the United States or of its officers. The witnesses on whom Spain relied in her allegations and in her charges were diligently sought, with great pains and at great expense, by the officers of this Government, without receiving any aid from Spanish agents in the search. If they existed they could not be found. Consequently, the Government being unable to adduce evidence upon which a conviction could be asked, the prosecution had to be abandoned. The responsibility thereof rests elsewhere than with this Government or its officers.
In an early stage of these proceedings the President, as will be shown, had put into exercise the extreme executive power of the Government to stop vessels without the intervention of judicial process; and the various departments of the Government exerted their respective functions through the wide extent of country, and in almost every port of its seaboard, either upon its own suspicion of improper movements or upon suggestions received through the Spanish minister, whose consuls, by the incessant employment of detectives, were frequently furnishing complaints, which were examined; and, as is apt to be the case with information thus obtained, and which is generally procured from persons of most questionable character, and who, for a consideration, make statements which they either know to be false or of which they have but little knowledge, they often found themselves set upon investigations which could result in no useful ends.
The information given to the consuls through the detectives often proved entirely unfounded, and seemed to have been designed, first, to obtain money; and, second, to keep the Spanish representatives in this country in a state of excitement, and to divert their attention, and thus to embarrass and annoy both governments.
The witnesses whose ex parte affidavits furnished ground for the allegations of the Spanish consuls, were either wanting when it became necessary to establish those allegations in a court of law, or, if present, failed on the cross-examination to maintain their stories.
The characteristics of vagueness, indefiniteness, and absolute uncertainty have marked all the information furnished or proposed to be furnished by Spanish agents, attorneys, or counsel, since the outbreak of the insurrection, as a foundation for proceedings at law against the parties complained of.
But this Government, nevertheless, carefully examined all the evidence that came within its reach, with an anxious desire to miss nothing which might help it perform the full measure of its friendly duty toward Spain. For many months it was under the constant and severe strain of the effort to maintain its obligations as a friendly powder.
In order to consider the complaints of Admiral Polo respecting the proceedings against Jordan and Ryan, the undersigned has been obliged to depart from the chronological history of the acts done by the United States in the performance of their duties toward Spain. To return. On the 17th of June, 1869, the Spanish minister at Washington informed the undersigned that he had positive and certain information of the organization [Page 1200] in the city of New York of a military expedition, which was to embark from that port to the island of Cuba; that the expedition consisted of a large number of individuals who had been recruited and enlisted as soldiers by the agents of the Cuban insurrection; and that they were to take their departure within one or two days.
The Attorney-General was immediately informed of this, and the district attorney for New York was instructed on the subject. He replied by telegraph that action had already been taken by him. The officers of this Government, it therefore seems, had already acted in this important matter before the undersigned received the news from Mr. Lopez Roberts. As the result of their action most of the persons who were proposing to take part in the expedition were captured, and the expedition, which was to have gone out in the Catharine Whiting, was entirely broken up. The Catharine Whiting and the three tugs McCool, John Chase, and Maybe, and the schooners Fancy and Winona, laden with arms at Mil ford, Conn., were captured; and vessels were simultaneously sent to Newport, to the mouth of the Delaware, and to the entrance to Chesapeake Bay, a coast-line of several hundred miles, to intercept any who might have escaped, and who might still be bent upon pursuing the expedition.
On the 13th of July, 1869, Mr. Lopez Roberts informed the undersigned by note that he had heard of a number of persons enlisted for a military expedition to Cuba, who were quartered on Gardiner’s Island, near New York, where they were detained against their will by officers of the expedition, and asked that the prompt orders required by the urgency of the occasion might be issued to prevent the departure of the expedition.
On the same day the President empowered the district attorney and the marshal at New York each with the extraordinary powers authorized by the eighth section of the neutrality act of 1818; and identical instructions were issued to each of them, from which the undersigned takes the liberty of making the following extracts:
Orders have been directed to the commandant of the navy-yard at Brooklyn to place at your disposal such of the naval forces of the United States as you may require, for the purpose of preventing the carrying on of the military expedition referred to in the note of Mr. Roberts, or any other expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign power or state, or of any colony, district, or people with whom the United States are at peace, and more especially against the territories or dominions of Spain or against the island of Cuba.
The President desires and directs that you capture all persons engaged in any and every such unlawful enterprise as above referred to; that the leaders and principal instigators be held to be dealt with according to law.
Believing that many thoughtless and inconsiderate persons may have been misguided, deceived, and led into improper and unlawful engagements, under a sympathy for a people struggling for emancipation from oppressive rule, and for self-government and more liberal institutions, without due consideration of’ the unlawfulness of their conduct, and under the temptation of promises held out to them, he authorizes and directs the district attorneys! the southern district of New York to release and discharge such of the privates or persons in inferior position or command in any such expedition or enterprise as he shall think may be discharged, with due reference had to the requirements of law and to the future enforcement of the laws and the maintenance of the peace and good order of the country, on such recognizance or security, or on such terms and conditions in each case, as to him shall seem expedient. But he directs that no person engaged in any such expedition or enterprise, who has been already taken in any recent similar unlawful expedition or enterprise, or who has been indicted for any violation of the neutrality laws or other laws of the United States, or who has given bail to keep the peace, &c., shall be discharged under this discretionary power given to the district attorney.
The district attorney is directed to make early investigation in order to the execution of this discretionary power, and for the purpose of bringing to punishment those [Page 1201] who are leaders and principals in any such unlawful expedition or enterprise, or who shall be the second time arrested or have violated their engagement to maintain the peace.
If you find that the naval forces thus placed at your disposal be not sufficient, or that any part of the land forces of the United States be necessary for the proper execution of the law, you will immediately advise me.
On the 16th of August, 1869, it being suggested that preparations were making for hostile expeditions against Spain, in aid of the insurgents in Cuba, on or near Saint Croix River, and particularly at Eastport and Calais, the district attorney for that district was instructed to use the utmost diligence in inquiring into the subject, and, if he found evidence sufficient to warrant it, to take all steps necessary in order to prevent violations of law, and to punish offenders.
On the same day the Hornet was detained at Philadelphia, under an order issued on the 13th of August. She was arrested, entirely on the motion of this Government, after she had actually begun her voyage with a clearance for Halifax. She was detained some time without anything appearing against her. She was then released, and she made her voyage according to her clearance. Returning thence, after having been fitted out in an English port, she is said by Admiral Polo to have taken on board men and coal off the coast of Massachusetts. She then put into Wilmington, in North Carolina, where she was libeled for a violation of the laws of the United States, and was condemned, and the hostile expedition against Spain, which it was in contemplation to make in her, was broken up.
The Hornet was detained at Wilmington until June, 1870, when she was released on bond. She came to New York, and was libeled again on the complaint of the Spanish consul. What then took place may be best described by transcribing a passage from a note from the undersigned to Mr. Lopez Roberts, dated December 28, 1870, in reply to one from Mr. Lopez Roberts, dated December 17, 1870. The undersigned then said that it appeared—
That the Hornet having been seized on the complaint of the Spanish consul only two months before the date of the correspondence, and a hearing, in which the Spanish consul took part, having resulted in the discharge of the vessel, no subsequent proof or anything in the nature of legal evidence other than a repetition of that which had already been passed upon by the court, and had been decided to be insufficient for the detention of the vessel, had been furnished by the consul or by any other Spanish officials.
The subsequent career of this vessel is thus described in the memorandum accompanying the counter case of the United States at Geneva, which is referred to in Admiral Polo’s note:
She afterward, in December, 1870, sailed from New York “for Saint Thomas and a market, then to a port or ports that the captain may direct, and back to a port of the United States, not exceeding six months.”
She went to Nassau, afterward to Port au Prince; then to Aspinwall, where it is alleged that a filibustering expedition against Cuba went on board of her, which expedition was afterward landed on the coast of Cuba. She then went to Port au Prince, where she was, as it were, blockaded by the Spanish gunboats for several months.
In January, 1872, the Government of the United States sent a man of war to Port au Prince to bring her back to the United States, where, upon her arrival, proceedings were taken for punishing any violation of the neutrality laws of the United States.
It is of little consequence now what was the character of the Hornet, so far as the purposes of this discussion are concerned. In the only moment when she was in position to have done injury as au armed vessel, she was libeled and condemned by the courts of the United States. But it is not to be assumed that the undersigned assents to all of Admiral Polo’s opinions regarding that vessel.[Page 1202]
The first arrest of the Hornet at Philadelphia was made August 16, 1809. It has been seen that on the same day the officers in Maine were cautioned to be vigilant. On the 21st of the same month the attention of the Acting Secretary of State was called to alleged shipments of aims and ammunition at Cedar Keys and Fernandina, in Florida, and Mr. Potestad, the secretary of the Spanish legation, was informed in reply that this Government had already, four days before, called the attention of the district attorney and marshal in Florida to the subject, and that the senior officer in charge of the North Atlantic squadron had en apprised of the information.
On the 31st of the same month the active agents of the United States in Georgia telegraphed to the Attorney-General that eighty-three persons enlisted for the Cuban army would try to leave for Florida that night. They were immediately ordered by telegraph to stop the expedition and to indict the parties. The law-officers met with resistance and telegraphed for aid. They reported that the United States marshal had been overpowered. The Treasury immediately, by telegraph, put the revenue steam cutters at the command of the proper authorities to stop the alleged expedition; and on the 4th of September, General Terry, commanding the Department of the South, was authorized to aid the civil authorities in maintaining the law. On the 6th of September the district attorney was able to say to the Attorney-General:
I have the honor and satisfaction of reporting herewith the result of our effort to capture the expedition en route for Cuba.* * * I feel confident in asserting that the course pursued has completely broken up the expedition, at least for the present.
On the 13th of the same month this Government had received information which induced it to believe that arms and ammunition designed for Cuba were being shipped to Galveston, to be used there in arming hostile expeditions, against Cuba. The district attorney of Texas was therefore directed to watch carefully for any indications of such expeditions, and to act promptly in preventing any violation of the neutrality laws of the United States, and in punishing all persons who violated them.
On the 28th of the same month the Secretary of the Treasury was requested by the Acting Secretary of State to order the proper officials to watch a suspected vessel in New Orleans, in order to prevent her from engaging in an armed expedition against the Spanish authorities in Cuba.
On the 23d of October, 1869, the undersigned was informed by the Spanish minister that the steamer Lillian had sailed from Cedar Keys on the 5th of that month, with about 450 men on board, and that she had been seized by a British man-of-war in British waters. The undersigned subsequently learned from other sources that she had been libeled and condemned for a violation of British laws.
In the same note of the 23d of October, 1869, the Spanish minister complained of the want of energy shown by the officers of the United States in the pursuit of the Lillian, which he asserted to have been a breach of neutrality on the part of the United States. And Admiral Polo now supplements the averment by saying that the Government of the United-States had ample information and notice with regard to this expedition.
Whatever notice this Government may have had respecting this expedition, it gathered through the vigilance of its own officers. The representative of Spain furnished none until after it had been captured and broken up. When the United States naval officers in the Gulf learned [Page 1203] that the expedition was about to start, the Tuscarora, a man-of-war of the United States, was immediately dispatched to intercept it. But she was unable to proceed to Cedar Keys in consequence of the bursting of her steam-pipe. There was no lack of diligence on the part of this Government. The undersigned is also happy to add that there was no injury to Spain, since the expedition was intercepted and broken up, so that it never reached Cuba.
On the 8th of November, 1869, the marshal of New York informed the Secretary of State that his office was employing one superintendent and two or three detectives (as circumstances might require) to learn of infringements of the neutrality laws. He was told that his course was approved, and was instructed to continue his vigilance.
On the 10th he informed the Secretary of State that he inclined to the opinion that measures were on foot to get off a Cuban expedition. The Secretary of State, thereupon, on the 11th, asked of the Secretary of the Navy if a man-of-war could be detailed to assist in preventing such unlawful expeditions. The Secretary of the Navy thereupon instructed the port admiral of New York to render every assistance in his power in preventing the departure from New York, or that vicinity, of any unlawful expeditions in aid of the Cuban insurgents. The Secretary of the Treasury at the same time placed a revenue-cutter at the command of the marshal for the same purpose. If any expedition was content plated at that time, it is believed that it was prevented by these efficient measures.
On the 15th of November the Attorney-General called the attention of the Secretary of State to the case of the steamer General Dulce, at Philadelphia. It appeared that some circumstances excited suspicion that she might be engaged in an illegal expedition; but, on examination, it was reported that there was nothing whatever of a suspicious character, either in the vessel or her outfit.
This brief but necessarily imperfect narrative of the exertions made by the United States during the year 1869 to perform their international duties toward Spain, cannot fail to satisfy all candid persons that they exerted all the diligence in that repect which the most captious critic could require. Their active vigilance extended over a coast line, from Eastport to Galveston, of upward of twenty degrees of latitude .and about thirty degrees of longitude, with infinite sinuosities, and bays, and outlying islands. And yet it was ever and equally active. Wherever the extraordinary means of intelligence which they employed gave notice of au apprehended movement, their equally extensive means of action anticipated and prevented it. To have failed occasionally to thwart so widespread combinations would have been no subject for just crimination; because no mortal foresight can apprehend and guard against every contingency. But the undersigned avers, without fear of contradiction, that the record shows no such failure.
The undersigned does not understand that it is contended that between the sailing of the “Lillian” in October, 1869, and the sailing of the Virginius in October, 1870, any vessel except the Upton sailed with arms.
On the 22d of May, 1870, the undersigned received a telegram from the Spanish minister, from New York, in which it was averred that the “George B. Upton” had cleared from New York on the 14th of that month, ostensibly bound for Port au Prince, and was then lying off Montauk Point, at the east end of Long Island, in communication with the shore, and within the jurisdiction of the United States, and was engaged [Page 1204] in completing her fitting out for a piratical cruise against Spain, in violation of the neutrality laws of this country.
The undersigned at once communicated with the Navy Department, and a vessel was dispatched to Moutauk Point, with several civil officers on board, in order to take possession of the “Upton” and proceed against her in the courts of law. On arrival at Montauk Point, the civil officers landed, and being unable to learn that any strange vessel had been there, reported their opinion that the information concerning the “Upton “was entirely without foundation. A communication from Mr. Lopez Roberts to the undersigned, on the 29th of June, 1870, showed that they were correct in that opinion; for it was then alleged by Mr. Lopez Roberts that the “Upton,” after leaving the port of New York—
Proceeded to the vicinity of Barnegat light, and there communicated with the schooner “Quickstep,” which (he said) had been previously sent from that place to meet the “Upton,” and took from on board of her a large quantity of arms, ammunition, clothing, and other articles of war for the use of the expedition then on board of the “Upton,” and of the insurgents in Cuba.
By the same note of Mr. Lopez Roberts it was disclosed, not only that he had been thus deceived in regard to the movements of the “Upton,” but also in regard to her character. Instead of attempting a piratical cruise against Spain, as had been charged by Mr. Lopez Roberts, her mission was that of the peaceful conveyance of men and merchandise.
It cannot be contended that this Government had any knowledge or any reason for suspicion of the purposes of the voyage. Those who had charge of her, having had personal experience of the vigilance of the United States, and of their purpose to prevent all violations of their sovereignty, succeeded in concealing their designs, not only from this Government but from the ever-vigilant agents of Spain in New York.
Before taking up the case of the Virginius, it will be more convenient to first notice the remaining vessels referred to by Admiral Polo, but without comment on his part, viz: the “Florida,” the “Edgar Stewart,” the “E. D. Webster,” the “Anna,” and the “Fanny.” The archives of this Department reveal nothing respecting the Webster and the Anna.
Respecting the Florida, they only show a complaint on the part of this Government of an interference by a Spanish gunboat with that vessel on the high seas, to which complaint no response has been given.
Respecting “the Fanny,” it appears that on the 7th of June, 1872, the minister of Spain informed the undersigned that “the Fanny” had sailed the day before from Baltimore, and that her papers were fraudulent, and that he believed that the object of the steamer was to effect a clandestine landing of arms and other war-material, and perhaps even of men, on the coast of Cuba, He added that he had evidence that the customs officers of the port had had suspicions that the papers of the vessel were fraudulent. This communication being made after the vessel had sailed, the undersigned could only promise to make inquiries, which resulted in showing that the collector of customs at Baltimore, thinking it possible that the “Fanny” might be intended to form part of an expedition, had ordered her to be searched. The searching officers had reported that she had no contraband cargo. The collector had then ordered a revenue-cutter to follow her to sea, and to intercept any expedition which might appear to join her. The cutter kept her in sight until she was about seventy-five miles southeast of Cape Hatteras and about thirty five miles off land, and there lost sight of her. Up to that time no expedition had joined her.
The facts respecting the “Edgar Stewart” appear to be these: On the [Page 1205] 25th May, 1872, the Spanish minister informed the undersigned that she had sailed from the district of New London, where he charged that she had been fitted out for filibustering purposes, and he submitted some affidavits which he claimed implicated the collector in a knowledge that she was destined for an illegal purpose. As the vessel had sailed, the undersigned could only ask an investigation of the charges against the collector. The decision of the Treasury was, that while the investition exonerated the collector from positive blame in the matter, the circumstances, which appeared to have been known to him by rumor at least, would have justified him in making further and careful inquiries; and he was told that, in any similar case that might arise in the future, he would be expected to exercise greater vigilance in ascertaining the facts. This vessel is now in Baltimore, The minister from Spain has submitted affidavits in order to establish that she was guilty of a violation of the neutrality law of the United States, at New London, in 1872; also, that she contemplates another violation; also, that she obtained her clearance at New London in fraud of the navigation laws. The affidavits, as fast as received, were submitted to the Attorney-General, and the vessel has been libeled on the alleged charges, and is now in custody.
The schooner “Resolute,” a vessel not referred to by Admiral Polo, about March, 1872, sailed from New York to Jamaicia, without exciting the suspicion of the Spanish agents in New York or of this Government. It is probable that there were no reasons at that time why suspicion should have been excited. From Jamaica she went to Saint Mark’s, and from Saint Mark’s to Portau Prince; while there, she was, on the 4th of June, 1872, transferred to Augustus Cheaveau, described in the instrument of transfer, a copy of which afterward came into the possession of the United States, as “a citizen of the republic of Cuba.” There she took in ammunition and arms, and proceeded northward, landing Cheaveau at Charleston. She hoisted an ensign called “the flag of the republic of Cuba,” and professed to be a vessel belonging to the navy of such so-called republic. With the change of character she took the name of “Pioneer.” Coming near the waters of the United States, this vessel was seized by the United States revenue cutter “Moccasin,” and taken to Newport, R. I., where she was libeled and condemned.
Having now disposed of the extraneous matter which has been introduced into the discussion of the case of the Virgiuius, the undersigned is prepared to consider Admiral Polo’s remarks upon that vessel.
The Virginius, formerly a blockade-runner, was sold by the United States to one Paterson, a citizen of the United States, apparently an innocent person. He proved to be an agent of the Cuban insurgents, but that fact was not known to the Government of the United States, nor had it any means of knowing it.
She was registered at the custom-house in New York, and took out a clearance for Curaçoa. Her custom-house bond was in the regular form, except that it had but one surety, a circumstance not unusual, and which will be noticed hereafter. There was nothing in her manifest or papers, or in the circumstances connected with her departure, to attract attention or to excite suspicion, and she left, like any of the other hundred vessels leaving the same week, without attracting the attention of the Spanish consul or of the officers of this Government.
The labor which Admiral Polo bestows to endeavor to connect the United States with the subsequent proceedings of the vessel, before her capture by the Tornado, shows that he comprehends the inability of maintaining that the United States are liable for the consequences [Page 1206] of any acts of this vessel by reason of what took place at the time of her sailing from New York.
The Virginius is understood to have made her voyage to Curaçoa. Admiral-Polo, indeed, asserts that her true destination was not Curaçoa, and he seeks to find in the character of her cargo, (breadstuff’s, saddlery, and clothing,) reasons why she should have been suspected by a customs-officer. But the undersigned understands that she actually did go to Curagoa, which is the best answer to an allegation that she was not to go there; and the undersigned cannot persuade himself that the accomplished minister of Spain will seriously contend that, because her innocent manifest did not produce conviction in a customs-officer’s mind that she was on an illegal errand, this Government should be made responsible for her acts. Moreover, the statistical returns of the commerce and navigation of the United States (like those of most other manufacturing and commercial nations) show that the exportation of bread-stuffs, saddlery, and clothing is not an unusual occurrence in the course of legitimate commerce, and that, if the lading of such articles is to be a cause of suspicion, a large amount of honest trade must be placed under vigilance. The commerce of the world will not allow the laws of contraband to be carried to this extreme. The proposition needs only to be stated to be repudiated.
The Virginius was recognized as a vessel of the United States from time to time at different ports in the Caribbean Sea, thus showing that she was engaged in commerce there. Admiral Polo records, with what purpose the undersigned is at a loss to imagine, an interview between a Spanish naval officer and a naval officer of the United States, in which the former denounced hereto the latter as a “pirate,” without a single indication of what is known as “piracy,” and asked him to take her to the United States; the gallant officer of Spain, with the earnestness and unselfish generosity characteristic of his profession, but without official responsibility for the proposal he made, and without evidence of the extent of his personal responsibility, offering, if Spain should fail to establish there the fact of her “piracy,” to himself assume the obligation of paying all damage.
The undersigned will not do Admiral Polo the injustice to suppose that he himself would regard the Virginius as a “pirate,” or that, had the position been reversed, and had an American naval officer made such an offer to Admiral Polo, he would for a moment have dreamed of entertaining it.
That the vessel had none of the characteristics of a “pirate,” as defined by international law, is beyond doubt. If Sheppard and Varona testify, as is alleged, to the proposition to attack the commerce of Spain, neither they nor others even intimate that such an attack was made. The declaration may prove the witnesses willing to have become pirates; it may not strengthen their credibility as witnesses in behalf of Spain j and yet Spain cannot impeach them when they say that they stopped short of the act. And yet i is upon such evidence that the reiterated appellation of “pirate” and denunciations of “piracy” rest. If all that Spain alleges against the Virginius be admitted as proven, it would fail to constitute what is recognized as piracy by the nations of the world.
Admiral Polo says that the Virginius, after leaving New York, “was efficaciously protected by the consuls and men-of-war of the United States; and lie then adds, “thanks to which protection, she succeeded in forming for herself, outside of the material territory of [Page 1207] the United States, but within their legal jurisdiction, a sort of base, whence the Virginius was enabled to commit hostilities against Spain.”
As the Virginias never returned within the material territory of the United States, after her departure from New York in October, 1870, the last phrase quoted in Admiral Polo’s note may be important in some future contingencies, in its assertion of the extent of the legal jurisdiction of a state beyond its geographical limits. But it need not be here commented on further than to say that the idea of a vessel converting itself into “a sort of base,” whence that same vessel carries on hostilities, involves a paradox resulting from the effort to apply the doctrine of the duty of a state not to permit its ports or its national waters to be made the base of naval operations by one belligerent against another, to a case where no belligerency is recognized as existing, and where, in fact, no hostile naval operations have occurred.
Of what military expedition the Virginius was to form part it is difficult to comprehend. The present most intelligent minister from Spain charges that she was to form part of some military expedition, but he has not shown either her capacity or fitness to take part in a military expedition, or that there was at that time any military expedition fitting out, of which she was to form a part, or with which he in any way connects her. Admiral Polo’s watchful and indefatigable predecessor, who never failed to present in the strongest light all that his consuls could obtain through the detectives, and the questionable class of paid spies and witnesses, in a note addressed to the undersigned on the 17th of December, 1870, more than ten weeks after the Virginius had sailed from New York, in which he enumerated the vessels of which he thought he had cause to complain, had no suspicion that the Virginius had sailed with any evil purpose, and makes no reference to her.
If she had eluded the argus eyes of the detectives of the Spanish government, the inference is irresistible, either that her objects and designs at the time of her sailing were not improper, or if they were at that time such as the Spanish minister now alleges them to have been, they were so carefully covered and concealed as to escape the vigilance of the Spanish officials as well as those of this Government.
It has already been remarked that in view of the extent of the territory of the United States and the long range of sea-coast, and of the number of disaffected Spanish subjects in the country, the undersigned had expressly given authority to the Spanish minister (Mr. Roberts) to instruct his consuls, in case any information of illegal actions or intents came to their knowledge, to confer directly with the local Federal officers. They exercised the right thus accorded them, and if there had been any reason for suspecting the Virginius at the time she left the United States they would have known thereof. But she sailed unsuspected alike by the Spanish minister, the Spanish consul, and their detectives—unsuspected also by the United States.
Admiral Polo endeavors, however, to make certain alleged irregularities, or acts of non-observance of some of the requirements of the shipping acts of the United States, evidences of wrong intent on the part of the Virginius, and therefrom to deduce some responsibility on the part of the Government.
The shipping-laws of the United States are municipal regulations which it prescribes for itself, and to its own citizens, and the administration of which it intrusts to its own officers. It judges of the requirements and of the formalities to be observed to give its national character to private trading-vessels, and reserves to itself the punishment of evasions or omission of those requirements or formalities.[Page 1208]
In the exercise of this sovereign right, the United States have required that a certain bond be executed with certain securities, and certain oaths be taken, for the obtaining of a register by a merchant ship. It requires that the ownership be in its own citizens.
Should a register be obtained in fraud upon its laws, or having, been obtained, should the ownership be changed otherwise than in conformity with its laws, it has prescribed the penalty and the consequences. It enforces this penalty, and the punishment denounced against violations of these laws, as it does with respect to other municipal enactments of its own volition and in its own way. Foreign states are not expected to interpose, or to prescribe to the United States the mode or manner of enforcing its municipal laws, or the degree of leniency or the measure of severity to be observed toward those who may be supposed to have violated its enactments.
The omission to comply with the requirements of the laws may, at the option of the Government, deprive a vessel of its national character and of its right to the protection of the Government. This result may follow from innocent omissions and from accidental mistakes. The haste with which many commercial transactions are conducted has led in many instances to carelessness, and has, as is well known, been attended with omissions which, if enforced, might deprive some of the well known and most honest of the mercantile marine of a government of the protection of its national character, if the strict letter of the law were in all cases to be enforced.
Knowing this to be the fact in its own case, as well as in that of every commercial nation, the United States does not feel called upon in every instance to exact the pound of flesh and to enforce the utmost penalties of the law. It recognizes a difference between error and falsehood, and has not been guilty of-the want of logic to enact that the omission to sign a bond in the prescribed form necessarily makes the register “false,” or of the still greater fallacy of reasoning and of logic that “the falsity of the register, of the ship’s roll, of the list of passengers, of the manifest, and of the clearance shows that the voyage of an unarmed vessel, admittedly made in accordance with her clearance, was a military expedition against a country which the vessel did not visit for months subsequently, nor until she had visited divers others countries.
The long extract to which his excellency the Spanish minister calls the attention of the undersigned as doctrine laid down by a judge of the Supreme Court of the United States, is, unfortunately for the citation, not to be found in any book of decisions or of judicial authority. It could not be accepted before any judicial tribunal as authority or as a definition of law.
It is feared that his excellency the Spanish minister has been misinformed as to the nature and importance of this alleged expression, and has been misled by some newspaper extract or report of possibly some charge to a grand jury by some person who may at some time have been a judge. But his excellency may be assured that if the expressions which he has quoted were made by a judge of the Supreme Court of the United States, they certainly were not made by one who served out the term for which he was appointed; and that whatsoever of personal respect may be due to the unnamed author, the authority of the high court of which he is supposed to have been a member cannot attach to the citation.
The undersigned, while (denying the untenable doctrine advanced by Admiral Polo, that in case it should be made to appear that an expedition hostile to Spain had unlawfully departed from the shores of the [Page 1209] United States, the burden of proof would be on them to show that they had used due diligence to prevent it) feels that he has fully established that this Government, from the outbreak of the insurrection at Yara to this moment, has unremittingly and vigilantly performed the full measure of its international duties toward Spain. Even, therefore, could it be shown that Spain had suffered any appreciable injury which could be made the subject of computation of damage between nations, by reason of any of the vessels referred to in Admiral Polo’s note of the 2d of February, no responsibility for such injury could be entailed upon the United States.
But the undersigned apprehends that not even the ingenuity and learning of Admiral Polo can, after the great precedent at Geneva, establish that claims of the nature now advanced on behalf of Spain do “constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation, or computation of damage between nations.”
Admiral Polo indeed asserts that private injuries may have been inflicted by the Virginius. But no proof is offered of such injuries; and the undersigned is so fully persuaded that no private injuries were inflicted by any of the vessels enumerated by Admiral Polo, that he is constrained to disregard the hypothetical suggestion, and to declare that this Government is firmly convinced that no injury has been suffered by Spain for which reclamation can be demanded.
In the great tribunal which was convened at Geneva, the learned representatives of five powers, with the eyes of the whole civilized world turned upon them, declared that losses in the transfer of the commercial marine from the flag of a belligerent to that of a neutral, that enhanced payments of insurance, that the prolongation of a war, and that the addition of a large sum to the cost of a war and the suppression of a rebellion, do not constitute, on the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations. And the same tribunal, in another session, decided that a claim advanced by the United States for re-imbursement of the sums expended by them in the pursuit of the rebel cruisers should be rejected, because such expenditure was comprised in the cost of the war.
The United States have in good faith accepted these principles thus enunciated by this great tribunal. If Spain is disposed to question them, the undersigned, while deeply and sincerely regretting it, must respectfully decline a discussion upon principles which this Government regards as res adjudieatœ.
For the first time it is brought to the official notice of the undersigned, by the official note of the envoy and minister of Spain of the 2d of February, that Manuel Quesada was sent to this Government in 1870 in the character of an envoy; and the representative of Spain has adopted and incorporated in his note a statement of Mr. Quesada, by which it appears that property, amounting to several hundred millions of dollars, belonging to Cubans, has been confiscated by the authorities of Spain. Such severe measures thus admitted by Spain would seem to furnish a partial explanation of the activity of the Cuban exiles; and would certainly seem to indicate that Spain has been no sufferer in this contest.
Admiral Polo closes his long and able note by what it may not be unjust to style a complaint at the asylum given in the United States to the refugees from the violence of the Casino Español and of the Havana volunteers.
This makes it proper that the undersigned should submit a few [Page 1210] remarks upon the general political relations of the United States to this unhappy controversy.
When the President entered upon the duties of his office in March, 1869, the Cuban insurrection was the first external question pressed upon his attention. The correspondence between Mr. Lopez Roberts and the undersigned, and the steps taken to maintain the international obligations of the United States toward Spain have already been noticed.
It was found that the rights of citizens of the United States were affected by the action of the authorities in the island in their efforts to suppress the insurrection, and Mr. Lopez Roberts was, on the request of this Government, authorized, in conjunction with the captain-general of Cuba, and without consulting the Spanish government, to settle questions arising with the Government of the United States or with its citizens, out of the occurrences taking place in that island, excepting cases of such gravity as might require consultation with the home government.
Under this arrangement various representations were from time to time made to Mr. Roberts, and some few questions were thus amicably adjusted.
During this time Mr. Roberts gave frequent assurances that the insurrection was being crushed, that it was at an end, that nothing remained in resistance to the government but a few individuals who were scattered and had taken refuge in the woods. He read to the undersigned telegrams or notes to this effect. Finally, in the spring or summer of 1870, the power given to Mr. Roberts was withdrawn by the government at Madrid, “in view,” as the undersigned was officially informed, “of the favorable situation in which the island of Cuba then was.”
Simultaneously with some of these proceedings political negotiations had taken place at Madrid. In compliance with suggestions which were understood to emanate from a high quarter in Spain, the President had indicated a will in guess to proffer the good offices of the United States to secure a peaceful termination of the insurrection. The advances of the President were well received at Madrid; and although no practicable basis for continuing the negotiation was found, the representative of the United States was repeatedly assured that substantial reforms were to be granted to Cuba, and that provision was to be made for putting a speedy end to slavery.
By the slaveholders’ revolution of June, 1869, in Havana, General Dulce, whose “generous moderation” is feelingly and appreciatingly referred to by Admiral Polo, was driven out of the island, and the substance of political power passed into the hands of the Casino Español, where it has since remained. But, in spite of this, the government at Madrid continued its assurances respecting liberal reforms and the freedom of the slaves.
While the President was exercising the extreme powers of the Government, as already described, to counteract the incessant efforts of Spanish subjects who had taken refuge in this country, and, availing themselves of this large extent of the latitude of liberty and freedom of conscience which its laws and its policy allow to the citizen and to the stranger, were endeavoring to involve this country in embarrassments with Spain, cases of injuries to American citizens and their properties were arising which could not be adjusted by the undersigned and the minister of Spain. It was, therefore, a relief to be assured by Mr. Lopez Roberts that the insurrection was waning and was practically at an [Page 1211] end, and to have that assurance confirmed by the official announcement that the Spanish government regarded the situation in Cuba as so favorable as to justify it in withdrawing the power which it had given to its minister in this country and to the captain-general in Cuba to adjust the questions which might arise with regard to interests of citizens of the United States affected by occurrences in Cuba.
The unadjusted cases were therefore referred to Madrid for adjustment, and there, after a long delay, in marked contrast to the prompt action of this Government when the interests of Spain were affected, an agreement was entered into for their reference to the tribunal at Washington, already referred to.
The announcement of the practical close of the insurrection and of the withdrawal by Spain, on the ground of the favorable situation of the island, of the only concession made by her toward the reparation of the rights, or the prevention of acts injuriously affecting the interests of American citizens, was well calculated to lead to a relaxation of the severe tension to which the vigilance of this Government had for several mouths been subjected, and might well be pleaded in justification in case of any omission of vigilance.
The President on the 12th of October, 1870, issued his proclamation, in which, after reciting that there was reason to apprehend that evil-disposed persons had set on foot military expeditions, and fitted out vessels to act against powers with whom the United States were at peace, he continued:
Now, therefore, I, Ulysses S. Grant, President of the United States of America, do hereby declare and proclaim that all persons hereafter found within the territory or jurisdiction of the United States, committing any of the afore-recited violations of law, or any similar violations of the sovereignty of the United States for which punishment is provided by law, will be rigorously prosecuted therefor, and, upon conviction and sentence to punishment, will not be entitled to expect or receive the clemency of the Executive to save them from the consequences of their guilt; and I enjoin upon every officer of this Government, civil, or military, or naval, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the performance of our sacred obligations to friendly powers.
On the 17th day of the following December, the esteemed predecessor of Admiral Polo, Mr. Lopez Roberts, addressed to the undersigned the two notes which have been frequently referred to in this paper. He made several statements respecting the “Hornet,” the “Perrit,” the “Upton,” the “Catharine Whiting,” which are substantially repeated in Admiral Polo’s note. He said nothing of the “Lowell,” the “Salvador,” the “Grapeshot,” the “Lillian,” or the “Virginius”. He complained of the clemency of the United States in releasing the “Hornet” at Wilmington, and in not prosecuting several persons, whose names he gave as having been concerned in the affair of the “Hornet, or of the “Catharine Whiting, or of the Upton.” He also complained that no proceedings were pressed against the “Catharine Whiting,” the “H. Mc-Cool,” and the “Jonathan Chase.”
Admiral Polo now renews many of these complaints, and the undersigned can, in response, only renew the answer given to Admiral Polo’s predecessor, that the withdrawal of the power from Mr. Lopez Roberts to settle by agreement, in connection with the captain-general of Cuba, without consulting the Spanish government, questions arising with this Government or its citizens, and the repeated assurances of Mr. Lopez Roberts, that the insurrection was virtually suppressed, induced this Government to believe that the time had come for the exercise of clemency.
The undersigned then continued thus in his reply to Mr. Lopez Roberts: [Page 1212]
The President did not and would not suppose that the government of Spain would lessen the means of protection to the persons and properties of citizens of the United States in Cuba, which it had extended during the insurrection at the request of this Government, unless it was convinced that the insurrection, which made it necessary, had virtually ceased. He could not and would not assume that a government which had maintained such friendly relations with this Government would voluntarily do so unfriendly an act as to withdraw, without notice, the powers conferred upon Mr. Lopez Roberts at its request, unless it was convinced that the necessity for them had ceased in consequence of the suppression of the insurrection. He was pleased to believe that, in the opinion of the Spanish government, the danger from the insurrection was over; that the time for milder measures had come, and that the blessings of peace were to follow. It did not appear to him that the restraints upon the commerce of the United States and upon the free movements of their citizens—measures which had been taken because the maintenance of the obligations of the United States as one of the family of nations appeared to require them—should be longer imposed. It did not seem to this Government that good could come from continuing preventive, much less punitive, proceedings against individuals or vessels, when the cause which prompted the alleged illegal acts was supposed to have disappeared. It was believed to be in harmony with the humane policy which has characterized this Government, that a suspension of the rigid prosecution of offenses (partaking of a political character) growing out of a sympathy with a political struggle in a neighboring island, might well take place. It was hoped that the benevolent example of the United States, in this respect, might, perhaps, be reflected in the policy of Spain toward Cuba. It was believed that the reforms which had been so often promised to the representative of the United States at Madrid were about to be granted; that the blot of slavery would disappear; that the right of colonial self-government would be given to the island; that the burdensome system of taxation would be abolished, and that, peace being restored, all the desired reforms being granted, and amnesty and pardon being given, the Government of the United States would be relieved from the disagreeable duties which it had performed for about two years.
Mr. Lopez Roberts will find in these considerations an evidence of the generous purposes and desires of the Government of the United States toward his government and toward the island of Cuba, and its logical action in reliance upon the promises and the representations of the Spanish government, and of its esteemed representative to this Government. He will permit the undersigned also to say (in reply to his suggestion that these persons have been stimulated and encouraged by the indulgence hitherto shown them by a benevolent government) that it seems to the undersigned that they have found their encouragement and their stimulus, not in the humane course of this Government, but in that love of liberty and in that sympathy with communities struggling against oppression and for freedom, which is the portion of all generous natures; and that such stimulus and encouragement will fail them when Spain shall imitate the benign policy of the United States.
For five years the policy of repression, of confiscation, of summary execution of political prisoners, of refusal of reforms, of denial of self-government, of maintenance of slavery, in short, the policy of violence and force, has held sway in Cuba. It is understood that the insurrection calls to-day for as many troops to keep it in restraint as were necessary in 1869.
During these five years this Government has watched events in Cuba, perhaps not always patiently, but certainly always impartially. It has seen vessels sailing under its flag intercepted on the high seas and carried into Spanish ports. It has seen the property of its citizens embargoed and their revenues sequestrated, and when it has complained it has been met by promises of restoration; but the official assurances of Spain in that respect have in most cases not been complied with. It has seen its citizens condemned to death under the form of military law, and executed in violation of the treaty obligations of Spain. It has seen other citizens of the United States mobbed in the streets of Havana for no other reason than that they were citizens of the United States, or the accidental circumstance of the color of the dress. It has stretched its powers and interfered with the liberties of its citizens in order to fulfill all its duties as a sovereign nation toward the power which in Cuba was tolerating the evil influences of reaction, and of slavery, and of “the deplorable and pertinacious tradition of despotism” referred to by the minister of transmarine affairs, all of which made the things complained of possible.[Page 1213]
It has refrained from the assertion of its rights, under the hope, derived from the constant assurances of the government of Spain, that liberty and self-government would be accorded to Cuba, that African slavery would be driven out from its last resting-place in Christendom, and that the instruments of the Casino Español would be restrained in their violence, and made to obey law, and to respect the treaty obligations of Spain.
But while so doing, it expected and still confidently expects, the time not to be far distant, when Spain will make reparation for the wrongs which have thus been inflicted upon their citizens.
The undersigned has seen with much satisfaction in the several efforts of the cabinet of Madrid, in opposition to the wishes and policy of the slaveholders of Cuba, proof of a desire of the Spanish government to correct the abuses of which this Government complains. Later signs, however, give cause to fear that the hand which holds human beings in bondage still is powerful.
The undersigned, in conclusion, renews the expression of the expectation of this Government that the oft-repeated assurances of the cabinet of Madrid with respect to Cuba may be carried into effect.
The undersigned avails himself of this occasion to renew to Admiral Polo the assurances of his most distinguished consideration.
His Excellency Señor Don Jose Polo de
&c., &c., &c.