No. 565.
Mr. Cashing to Mr. Fish.
United
States Legation,
Madrid, July 10, 1874.
(Received Aug. 4.)
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.
Ministry of State, Madrid, July 7,
1874.
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.
