No. 563.
Mr. Cushing to Mr. Fish.

No. 41.]

Sir: I have the honor to inclose herewith copy of communication addressed to the minister of state of Spain, presenting reclamation in behalf of the crew and passengers of the Virginius.

I am, &c.,

[Inclosure in No. 41.]

Mr. Cushing to Mr. Ulloa.

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.