No. 566.
Mr. Cushing to Mr. Fish.

No. 64.]

Sir: I inclose herewith copy of note to the minister of state on the subject of the officers crew, and passengers of the Virginius.

I have, &c.,

[Page 1222]
[Inclosure in No. 64.]

Mr. Cushing to Mr. Ulloa.

Sir: I have the honor to acknowledge reception of your excellency’s note of the 7th instant, in reference to the reparation claimed by the United States in behalf of the crew and passengers of the steamer Virginius; and, after according to the matter such due reflection as its importance requires and as respect for your excellency dictates, I beg leave herewith to present the view of the general question entertained by my Government.

Your excellency, adducing the fact that the Spanish government, through its minister at Washington, Admiral Polo de Bernabé, had presented reclamations against the United States on account of the acts of the Virginius, and assuming that the discussion initiated at Washington is still pending, founds upon these premises three suggestions, namely:

That, in the first instance, there should be elucidation by diplomatic means as to which of the two governments had been prejudiced by the acts of .the Virginius, and the degree of responsibility which belongs to the other in the damages caused by its subjects.
That after the question shall have been sufficiently debated between the two governments or their diplomatic representatives, each one should consult, if it thinks fit, such bodies, whether of administrative or of judicial order, as it shall deem convenient for the more complete illustration of the subject.
That, the previous examination of the question having been initiated before the Government at Washington by the minister plenipotentiary of Spain, the termination of that subject shall be awaited before the presentation by the United States of their reclamation to the Spanish government.

As to the second of these suggestions, it may suffice to state that no body, administrative or judicial, exists in the United States which could be consulted by the President in the view of obtaining more complete illustration of the merits of the question or questions now pending between the two governments in regard to the acts of the Virginius, or the acts of the Spanish officers at Santiago de Cuba in or subsequent to her capture. It is not for me to presume to say what means the Spanish government may have of such consultation with domestic, administrative, or judicial bodies for its further information in the premises. Of the means or expediency of any such consultation on its part, the Spanish government is, of course, the proper and sole judge. The Government of the United States, at any rate, does not possess, in this respect, any means of judicial recourse, or of administrative consultation, or, indeed, any pertinent means of action, other than diplomatic discussion with the government of Spain.

As to the first and third of the suggestions made by your excellency, the reply is obvious, to wit, that, on the 18th of April last, Mr. Fish addressed a note to Admiral Polo de Bernabé, which, it would seem, cannot have been brought to the attention of your excellency. That note replies in full to Admiral Polo’s note of the 2d of February, discussing amply all the grounds or arguments of claim submitted by him, and constitutes, as it is confidently believed and assumed, a complete answer to and rejection of the indefinite reclamations preferred by him on account of any acts of the Virginius.

Hence I am unable to perceive the profitableness of any further discussion in that direction, which could of necessity admit only of iteration and repetition of previous facts and arguments, without beneficial result to either government, unless that of Spain should now be prepared to enter into consideration of the ulterior remedy stipulated in the protocol of the 29th of November last.

Furthermore, as the discussion initiated by Admiral Polo at Washington has, in fact, reached its conclusion, and as the Government of the United States has, as it conceives, made conclusive defense to the claims thus presented by the Spanish government on account of the acts of the Virginius, there ceases to be any possible complication, of argument between the claims of Spain in that respect and the claims of the United States on account of the acts of the Spanish officers at Santiago de Cuba.

True it is, as your excellency suggests, that counter-claims exist in the premises— that is to say, claims of Spain against the United States on one account, and claims of the United States against Spain on another account. But, as discussion, the discussion of the claims of Spain against the United States has been exhausted, although not her means of action under the protocol. And thus, notwithstanding the existence of counter-claims, nothing, it seems to me, remains for discussion in this behalf except the claims of the United States against Spain.

Independently of all which, and in a broader view of the whole matter, I respectfully submit that there is no essential or logical connection between the respective claims of the two governments, other than in the purely incidental and immaterial fact of the relation of each to the Virginius.

[Page 1223]

The respective claims stand on different facts; they are referable to different reasons of public law and of right; they comprehend different subjects; and any decision upon either claim, howsoever reached, whether by common accord or by arbitration, would of necessity be wholly independent of any decision upon the other in so far as regards the considerations on which it might be founded and justified. In such circumstances there maybe offset of results, but there cannot be any offset of arguments or legal considerations.

Coming, then, to the present reclamation of the United States, permit me to observe in the first place, that any question of the character of the Virginius, of her previous history, or of the rightfulness of her capture, is wholly irrelevant to the present issue.

If, indeed, the illegality of her capture by the Tornado were an open question, I conceive that it would be easy to establish the following points, namely:

The Virginius could not be deemed a pirate, nor her expedition a piratical one, by any possible construction of the law of nations.
The Virginius was not a cruiser. She never made or attempted to make captures. At most, even as alleged by the Spanish government, she was but a merchant-vessel having contraband intention unexecuted, and, as prima facie an American bottom, she was not subject to capture by Spain on the high seas.
No municipal law of Spain could operate to impart legality to capture on the high seas; such authority could only be derived from the law of nations or convention, and in the present case it cannot be found in either.
The Spanish government itself, at the instance of the United States, had expressly waived all pretension of any such right of capture on the high seas in the modification made by Captain-General Caballero de Rodas on the 18th of July, 1869, of the tenor of his decree of the 7th of the same month, repealing the previous decree of Captain-General Dulce.

These and other pertinent suggestions might be made, I repeat, if the question were an open one; which, however, it is not, it having been explicitly determined by the protocol of November.

Unlawful, therefore, as was the capture of the Virginius, prejudicial as this capture was to the maritime rights of all nations of either hemisphere, injurious as it would have been, in the long run, to the interests of Spain herself to have any such pretended right of capture interpolated into the law of nations—nevertheless, and all these premises being admitted, and while the mere capture itself would have constituted serious cause of complaint, still, if the Spanish authorities in Cuba had subsequently pursued the course indicated by international law and by the universal practice of nations, that is to say, if they had taken the vessel into port for examination, and for possible trial before a court of admiralty, simply detaining uninjured her crew and passengers meanwhile, in such circumstances the injury done to the United States, although seriously justifying demand of redress, would not have assumed the portentous proportions which it actually did in consequence of the wholesale massacre of her officers, crew, and passengers, perpetrated at Santiago, which shocked the public sense of Europe as well as of America.

It is of these incidents which it is my duty now regretfully to speak, and to characterize them as they deserve, in the name of international law, of humanity, and civilization, by aid of the lights furnished by Spain herself as well as by other governments.

For it was the great fact of the inhuman slaughter in cold blood at Santiago de Cuba of fifty-three human beings, a large number of them citizens of the United States, defenseless persons, shot without lawful trial according either to the law of nations or to treaty, shot without any valid pretension of authority in the laws of Spain herself, and to the horror of the whole civilized world—this it was which produced such intense emotion in the United States, and which placed the two nations in imminent peril of war, so happily averted by the superior wisdom and patriotic discretion of the governments of Spain and the United States.

Your excellency will pardon me for repeating that this act has no conceivable justification, either in the law of nations or the municipal law of Spain, or in-any Conventional law; it being, on the contrary, in plain violation of treaty with the United States.

It was a dreadful, a savage act.

Your excellency, I feel sure, cannot condemn this language as too strong for the actual circumstances. For is it not the very language constantly applied at this day, in public documents and debates, to other acts of the same class, and especially to the shooting of defenseless prisoners? Is it not the mere echo of the cry of indignation and of horror which comes up from all Europe, in view of the military execution of twenty-three prisoners at Estella by Dorregary—the lamentable voiced as it were, of the outraged conscience of Christendom—and which still rings in our ears?

Nay, does not the fact of the unjust military execution of a single German subject at Estella inspire all Germany with indignation? And can the United States be silent [Page 1224] in face of the equally unjust military execution of many of her citizens at Santiago de Cuba?

Pardon me for thus alluding to incidents of civil war in this country, which, however, have ceased to be domestic incidents, and belong now to the general history of our times, and which, strikingly in contrast as they are with the conduct of the armies of the republic, may not improperly be alluded to here, in view of their manifest pertinence, and at the same time in the spirit of perfect deference for the government of Spain.

Indeed, it affords me gratification to witness and to honor the expressed determination on the part of the Spanish government, and of its generals in the field, never to lose sight of the sacred rights of humanity, even in the presence of the worst excesses of pitiless war, and in the face of whatsoever provocation.

But that which is wrong at Estella cannot be right at Santiago de Cuba.

I will not cease to believe, therefore, that the government of Spain, manifesting as it does thus conspicuously its utter condemnation of such heinous acts, and providing indemnity for the families of the victims thereof, will in the same spirit of exalted self-respect be prepared to do justice to the present reclamations of the United States.

With which I have the honor to renew to your excellency the assurance of my highest consideration.