[Inclosure in No. 41.]
Mr. Cushing to
Mr. Ulloa.
Legation of the United States,
Madrid, June 28, 1874.
Sir: I have been directed by the President
of the United States to address your excellency, calling for
reparation on behalf of the crew and passengers of the
Virginius.
The protocol of conference between the Secretary of State of the
United States and the Spanish minister at Washington, on the 29th of
November last, which disposed provisionally of the question of the
Virginius, was based on previous discussions of [Page 1219] the 21st, 25th, and 27th of
November, communicated of course by the Spanish minister to his
government. By the tenor of these conferences, it appears that the
United States, in their own interest, as well as in the interest of
all maritime powers, deny 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 their flag, and reserve to themselves the
right to inquire whether, by reason of any act of such vessel, she
shall 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 the Government of the United
States, 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 of the United States in this respect have
been explicitly set forth heretofore in communications to the
government of Spain.
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 these 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.
It now becomes my duty, in obedience to my instructions, and for the
considerations thus adduced, to present to the government of Spain
reclamation in behalf of the v United States for injuries suffered
by the surviving crew and passengers of the Virginius by reason of
their capture and imprisonment, and indemnity for the families of
such of the crew and passengers as were executed at Santiago de
Cuba, and earnestly to press the same on the early attention of the
government of Spain.
I avail myself of this opportunity to repeat to your excellency the
assurance of my most distinguished consideration.