No. 260.
Mr. Fish to Mr. Cushing.
Washington , June 9, 1874.
Sir: Referring to Mr. Adee’s Nos. 209, 214, and 216, it is presumed that before the receipt of this you will, under your general instructions, have asked an explanation of the letter of General Burriel to the editor of the Revue des Deux Mondes.
General Burriel founds his justification on the assertion that he acted under the decree of the captain-general of Cuba of March, 1869, in which it was said:
Vessels which may be captured in Spanish waters, or on the high seas near to the island, having on board men, arms, and munitions, or effects, that can in any manner contribute, promote, or foment the insurrection in this province, whatsoever their derivation and destination, after examination of their papers and register, shall be de facto considered as enemies of the integrity of our territory, and treated as pirates, in accordance with the ordinances of the navy. All persons captured in such vessels, without regard to their number, will be immediately executed.
Immediately on the receipt of this decree at this Department, I wrote to Mr. Lopez Roberts as follows respecting it:
It is to be regretted that so high a functionary as the captain-general of Cuba should as this paper seems to indicate, have overlooked the obligations of his government pursuant to the law of nations, and especially its promises in the treaty between the United States and Spain of 1795. Under that law and treaty the United States expect for their citizens and vessels the privilege of carrying to the enemies of Spain, whether those enemies be claimed as Spanish subjects or citizens of other countries, subject only to the requirements of a legal blockade, all merchandise not contraband of war. Articles contraband of war, when destined for the enemies of Spain, are liable to seizure on the high seas, but the right of seizure is limited to such articles only, and no claim for its extension to other merchandise, or to persons not in the civil, military, or naval service of the enemies of Spain, will be acquiesced in by the United States.
This Government certainly cannot assent to the punishment by Spanish authorities [Page 494] of any citizen of the United States for the exercise of a privilege to which he may be entitled under public law and treaties.
It is consequently hoped that his excellency the captain-general of Cuba will either recall the proclamation referred to, or will give such instructions to the proper officers as will prevent its illegal application to citizens of the United States or their property. A contrary course might endanger those friendly and cordial relations between the two governments, which it is the hearty desire of the President should be maintained.
It has been supposed at this Department that in consequence of these representations this highly objectionable decree was abrogated. It was therefore with no little surprise that information was received of the assertion that it is regarded as still in force. It is deemed important to have accurate information on this point.
You are therefore instructed, as soon after the receipt of this as possible, to inquire whether it be true, as stated by General Burriel, that the decrees of March 24, 1869, had not been abrogated when the executions took place at Santiago de Cuba; also, whether those decrees, or anything equivalent to them, respecting jurisdiction on the high seas, are regarded as still in force; also, whether the executions by General Burriel’s orders are regarded as having been made under authority of law.
It is supposed that the neglect hitherto of the government of Spain to institute steps for the punishment of General Burriel and his associates in the bloody deeds at Santiago de Cuba has been caused by the extraordinary political condition of the peninsula. If this supposition is incorrect, it is important that we should know that fact. You will, therefore, also inquire whether proceedings are to be instituted against them, and when and where the proceedings will probably take place. You will also inquire whether it is in contemplation to exhibit any marks of the displeasure of his government by military degradation or otherwise.
The President does not wish to have these inquiries presented in a minatory spirit and form; nevertheless, he feels that the maintenance of good relations with Spain depends upon her adherence to the statements and assurances hitherto given to this Government respecting the abandonment of the objectionable decrees, and the disavowal and punishment of the assassins who, under the guise of the form of trial, shocked the civilized world by the executions in Santiago de Cuba.
I am, &c.,