No. 568.
Mr. Cushing to Mr. Fish.

No. 91.]

Sir: I transmit herewith copy of the original, with translation of a note from the minister of state, in rejoinder to my second communication to him in the mater of the Virginius.

You will perceive, on reading this note, that, long as it is, it absolutely abstains from contesting any of the positions of my communication, and is wholly confined to the task of assigning reasons to justify the reference of the questions involved to the council of state; for that is the consultative body to which Mr. Ulloa alludes as the one whose opinion on the question is desired by the executive.

The council of state (consejo de estado) is composed of the ministers, and of a considerable number of other persons aggregated to them, for the purpose of examining and advising in the solution of administrative questions of transcendent magnitude.

Thus, on a recent occasion, the great controversy between the minister of hacienda and the British holders of Spanish bonds was referred for solution to the council of state; and such reference is common in other questions of similar importance.

* * * * * * *

I understand that, at or about the time of the date of Mr. Ulloa’s note to me, he made verbal explanations, in the same sense, to representations which the British chargé d’affaires here had been instructed to present, in complaint of the delay of the Spanish government to satisfy the reclamations of the British government in behalf of the families of British subjects of the crew of the Virginius. I assumed in my note to Mr. Ulloa of July 21 that your communication to Admiral Polo de Bernabé of April 18 was to be regarded as a definite and final rejection of all reclamations made by the Spanish government against the United States on account of the Virginius; and I shall so continue to assume, unless otherwise advised by you.

* * * * * * *

Is it desirable that, in conversation with Mr. Ulloa, I should explicitly call his attention to this point in the present stage of the discussion, [Page 1226] or shall I wait, in that respect, until the opposite reclamation of the United States shall have been favorably answered by the Spanish government, or answered unfavorably, so as to raise the question of arbitration as the ultimate means of redress for the United States?

* * * * * * *

I have, &c.,

[Inclosure in No. 91—Translation.]

Mr. Ulloa to Mr. Cushing.

Sir: On the 1st instant the note of the 21st ultimo reached me, in which you are pleased to examine the reasons I had the honor to lay before you in my note of the 7th of July last, and which prevented the Spanish government from giving an immediate solution, as it would have desired, to the reclamation initiated by the Government of Washington in regard to the capture of the steamer Virginius.

When I addressed to you the note to which I refer, there was no information in this ministry of the reply which, on the 18th of April, the honorable Secretary of State, Mr. Hamilton Fish, had given, and the argumentative answer of the minister of Spain n Washington, of date 2d of February, and only some days afterward did a printed copy reach my hands of so important and extensive a document, transmitted by Rear-Admiral Polo, shortly before leaving that country.

This circumstance will satisfactorily explain to you that I could not take into consideration the communication of Mr. Fish in my note of the 7th ultimo, and that I should at that time have considered unanswered the reply of our representative at Washington.

But even after having notice of the reply of the honorable Secretary of State, it is impossible for me to concur in your enlightened opinion, according to which, the ample and complete answer of Mr. Fish being once understood, the profitableness of any further discussion is not perceived by you, which, in your opinion, would necessarily constitute but a reiteration of facts and arguments, without beneficial result to either, of the two governments.

In regard to the first point, you will permit me to say to you, that without ceasing to render the most complete justice to the eminent endowments which distinguish the worthy Secretary of State of the United States, and to his superior enlightenment, demonstrated once more in the discreet communication of the 18th of April last, nevertheless, the Spanish government cannot consider it as conclusive and victorious refutation, so as to put an end to the existing debate in which we are occupied.

And in regard to the second point, I beg you to observe that, precisely in order to avoid the inconveniences involved in the retortion of arguments, the persistence in appreciations, and the repetition of facts already alleged by both parties, and which would render this discussion interminable, the Spanish government has believed that the most legal, the most practical, and the shortest method was to recur to the high consultative bodies of the nation, that they may enlighten it with an authoritative decision, having before them all the antecedents, and even the very reply of April 18, which can throw much light on the question by its detailed reasonings, its extensive details, and the copiousness of data with which it abounds.

If, as you are pleased to manifest, in the administrative institutions of the United States there do not exist corporations analogous to ours, with which to consult in certain matters, such exception cannot exempt us in Spain from the right, and even the duty, of seeking such security of sound action in those decisions which are of considerable intrinsic importance, and which involve great responsibility for the executive power. And if this guarantee is indispensable, and cannot be refused in ordinary circumstances, to those intrusted with the administration of the country, you will agree that, with greater reason, the government which at present rules the destinies of Spain should protect itself with it, and invest its acts with such respectable sanction, seeing that at the present time the government cannot fortify its own judgment, in the solution of matters like that of the Virginius, with the opinion of the Cortes.

The Spanish government does not conceive that the course which it thus proposes to follow can be interpreted in any quarter as an expedient to postpone the principal question, or to elude the responsibility of its acts. Such a purpose could not be entertained, either under the point of view of self-estimation, or under the point of view of its interests pledged, to-day more than ever, in that the solution, whatever it may be, [Page 1227] of this affair, should be presented to the eyes of all, invested with the prestige of justice, of impartiality, and of the purest good faith.

If, in the reclamations in consequence of the capture of the Virginius, the only object were to repair as much as possible the damage done to certain individuals, or to equitably indemnify the innocent who suffers the consequences of an act in which he took no part, and which was carried out by one who should have provided for his support or sheltered his old age, the legitimate impatience which the hope of finding a truce to his misery excites in such destitute person could be justified; and then the government would not remain indifferent before an unmerited misfortune.

But when this aspect of the question appears as secondary besides other rights and other interests which are claimed and invoked, the Spanish government considers it to be its duty to elucidate these with the care they merit, in the assurance that the relative delay which this examination may produce will be highly beneficial to the most scrupulous exposition of the truth of the facts and of the severe application of the principles of justice, the only object the attainment of which is proposed by either government.

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


The Minister Plenipotentiary
Of the United States.