No. 565.
Mr. Cashing to Mr. Fish.

No. 59.]

Sir: I inclose herewith a communication from the minister of state, in answer to my note demanding indemnity for the officers, crew, and passengers of the Virginius.

You will perceive that the main contention of Mr. Ulloa turns on the pretended necessity or propriety of discussing, as one question, the claims preferred by Spain and those preferred by the United States.

Mr. Ulloa proceeds, on these premises, to maintain that because the claims of Spain were presented before those of the United States, therefore the first should be settled before the second. Such a thesis would be untenable in litigation between private persons. * * *

Besides which, the claim of Spain has been exhaustively discussed in the dispatches interchanged between yourself and Admiral Polo de Bernabé, and it would be quite vain for Mr. Ulloa to think of making any profitable answer to your last note to Admiral Polo.

The entire theory of Mr. Ulloa’s communication is manifestly untenable, because the claims of Spain involve questions entirely distinct from, and independent of, those of the United States.

* * * * * * *

I propose, therefore, as in conformity with my instructions, to prepare, as soon as possible, and present, a full and complete reply to this communication of the minister of state.

I remain, &c.,

[Inclosure in No. 59.—Translation.]

Mr. Ulloa to Mr. Cushing.

Sir: I have received your note of 26th ultimo, in which, being charged therewith by the President of the Republic of the United States, you are pleased to demand reparation with respect to the crew and passengers of the steamer Virginius.

Your note being principally based on the reservation stipulated in the protocol of the conference celebrated on the 29th of November last, between the representative of Spain in Washington and the Secretary of State, with respect to “other reciprocal reclamations” which were “the subject of consideration and arrangement between the two governments,” there is no room for doubt as to the regularity (procedencia) of your action, as well because its postponement was authorized and agreed to in the aforesaid protocol, as because in the conferences nothing was directly said about it.

Pursuing in his turn a like path of right, Rear-Admiral Polo, in representation of Spain, demanded in due time proper reparation for the injuries caused in consequence of the expedition of the Virginius to the coasts of Cuba; and although he did in fact receive a polite answer from the Secretary of State, wherein the latter endeavored to refute the arguments set forth by our plenipotentiary in support of his reclamation, [Page 1221] he has not yet received any to the argumentative and extensive reply which he addressed to him on the 2d of February of the present year.

In recalling this circumstance, I have no other object than to call your attention to the importance of this matter and the difficulties in the way of clearing it up, which are at once revealed in the prolonged controversy still pending between our representative in Washington and the illustrious Secretary of State, Mr. Hamilton Fish.

Recognizing now, and repeating, as I ought to, the perfect right of the Government of the United States to select and fix the moment for reclaiming the reparation to which your note alludes, you will permit me, nevertheless, to observe that Spain having already presented, for her part, claim for the reparation which she deems herself entitled to obtain from the Government of Washington, this simultaneousness of proceedings in which one and the same government appears as claimant and respondent at the same time and in the same matter, is not in conformity to sound juridical principles, nor can be in any way dependent upon them. The bringing of the facts to light, due unity in the modes of proof, and, in fine, the examination of whatever may be alleged either for or against—these cannot but suffer considerably from the interruption of unity of connection* in the discussion, without receiving in exchange any positive advantage.

It seems, therefore, preferable in the present case that, before one of the governments deduces its right to be indemnified by the other, there should be previous ventilation of the fundamental question, from whence alone that right can spring.

So, therefore, the Spanish government would see with satisfaction, in deference to the respective interests of both governments, and in the interest of the justice which may be on the side of each of them in these reclamations—

  • First. That, before all, it be made clear through the diplomatic channel which of the two governments has been prejudiced by the acts of the Virginius, and the degree of responsibility which pertains to the other for the injuries caused by the conduct of its subjects.
  • Second. That after the question shall have been sufficiently discussed between the two governments or their diplomatic representatives, each of them may consult, should it so deem proper, such administrative or judicial bodies as it may consider expedient for the most complete enlightenment of the matter.
  • Third. That preliminary examination of the question having been already initiated before the Government of Washington, by the minister plenipotentiary of Spain, the termination of the same be awaited before the United States formulate their reclamation against the Spanish government; it being understood that the preference eon-ceded to Spain is to be considered as the result of a fortuitous act, springing solely from the priority of the date when Rear-Admiral Polo presented his reclamation in the name of Spain.

As you will observe, this is the only possible means of bringing matters about so that the final determination reached in this grave affair may be the result of the rectitude and good judgment with which we all desire to proceed.

As for the rest, it is incumbent on me to give you the assurance that the question being once made clear, and the responsibility which may fall upon it for the events of the Virginius, the Spanish government will employ the same diligence as it is obliged, meanwhile, to consecrate to the defense of its national interests, in fulfilling and satisfying whatever may be exacted of it by the responsibility which shall appear to have been contracted by it or by its delegates in the island of Cuba.

I improve this opportunity to repeat to you the assurances of my distinguished consideration.

  1. Continencia, a Spanish legal term, to express continued and connected unity in the conduct of a case, wherein judge, parties, and advocates are the same to the end.