Mr. Fish to Mr. Cushing.
Washington , February 10, 1874.
Sir: You will receive herewith a copy of various instructions, dispatches, notes, &c., in regard to the steamer Virginius. You are familiar with the general history of that vessel, and you have received in personal interviews and intercourse the general ideas and views of the Government with respect thereto, all which you will find set forth in the papers herewith. I shall not, therefore, review them here.
The protocol of conference between myself and the Spanish minister on the 29th of November last, which disposed provisionally of the question of the steamer Virginius, was based on previous discussions, the substance of which you will find in certain memoranda among the accompanying papers, especially those of November 21, November 25, and November 27, by which it appears that this Government in its own interest, as well as in the interest of all maritime powers, denies the right of any other power to capture or molest on the high seas in time of peace any regularly documented vessel, bearing, as such, the flag of the United States, and reserves to itself the right to inquire whether, by reason of any act of such vessel, she should have ceased to be entitled to the protection of the United States.
It was in obedience to this doctrine of public law that Spain, by the protocol above mentioned, agreed to restore the Virginius and the survivors of her passengers and crew forthwith, leaving it open to Spain to prove to the satisfaction of this Government, if she could, that the Virginius was not entitled to carry the flag of the United States.
This admission of the illegality of the capture of the ship involved, of necessity, not only admission of the illegality of the capture of her crew and her passengers, but admission also of the wrongfulness of the summary execution of fifty-three of her crew or passengers at Santiago de Cuba.
The wrongfulness of the general act of the local authorities of Cuba in this respect was not confined to such of the passengers and crew as were citizens of the United States; it applied to all other persons, of whatever nationality, captured on board the Virginius.
As to such of the persons as were citizens of the United States additional wrong was committed, that of subjecting them to imprisonment without communication, and that of trying and condemning them in violation, as to manner and form, of the stipulations of treaty between the United States and Spain. The views of the Government in this respect are explicitly set forth in various of the documents annexed to your instructions.
Although no special reference to this question appears in the protocol of the 29th of November, still it was not lost sight of at the time, and is among the questions contemplated by the stipulation of the protocol in the words, “other reciprocal reclamations to be the subject of consideration and arrangement between the two governments.”
Spain has already availed herself of the right thus reserved by presenting reclamation for indemnity, on account of alleged injuries done to her by the Virginius. You will find a copy of notes of Admiral Polo (the Spanish minister at this capital) on this subject, of the dates of December 30, 1873, and February 2, 1874, and a reply of this Department to the former, among the papers accompanying this instruction. The latter of the minister’s notes has not yet been answered.[Page 1217]
You are now instructed to make reclamation on the Spanish government for injuries to the crew and passengers of the Virginius, by reason of their capture and imprisonment; and more especially to call for indemnity to the families of such of the crew and passengers as were executed at Santiago de Cuba. In doing this, it will not be necessary at the outset to open a discussion in detail of the various particular questions involved in the general question, such as the right of the United States to claim redress for injury done to subjects of Spain, whether innocent or charged with complicity in the insurrection, or with other offenses, or to subjects of Great Britain or other powers, or only for injury done to citizens of the United States. All these particular questions, as also that of the amount or form of reparation, may be left by you for consideration until after response shall have been made by the Spanish government to the general demand for reparation in the premises. It will be in season then to judge how far the United States will go in a claim of indemnity of this nature as to persons, and in reference to a vessel of the character of the Virginius.
It will be proper for you to note that, according to the stipulations of the protocol, this reclamation is one of the possible differences between, the two governments, which may be made the subject of arbitration.
I am, &c.,