Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876
No. 267.
Mr. Cushing to Mr. Fish.
Madrid, September 27, 1874. (Received October 23.)
Sir: I have the honor to inclose herewith copy of a communication addressed by me to the minister of state on the 24th instant, in relation to the affair of Brigadier Burriel.
I have, &c.,
Mr. Cushing to Mr. Ulloa.
Madrid, September 24, 1874.
Sir: I find myself constrained, not only in obedience to express general and special instructions of my Government to this effect, but also in the intimate personal conviction of the reason and justice of the considerations on which such instructions are founded, to address your excellency again in reference to the acts of Brigadier Burriel, while governor of the eastern department of the island of Cuba, and to what he has said or done, since the time of his relief from that charge, and his return to the peninsula.
It affords me sincere gratification to be able to say, in the first place, that the President of the United States does full justice to the frankness and explicitness with which your excellency has been pleased to disavow all responsibility of the Spanish government for the publication made by Brigadier Burriel, in one of the newspapers of Madrid, in April last, in which that person undertook to justify the summary massacre of fifty-three persons of the crew and passengers of the Virginius, on the plea of this atrocious act being in conformity with and execution of a certain decree issued by Captain-General Dulce; and for the explicitness and frankness, also, with which your excellency has been pleased, at the same time, to contradict so peremptorily the baseless assertion of that person of the existing force and validity of the decree in question.
In declaring, as your excellency does, that General Dulce’s decree was repealed by that of General Caballero de Rodas, and has never since been revived, your excellency justifies the understanding of the Government of the United States in this respect and frees that of Spain of all shadow of suspicion in the premises; which suspicion, indeed, did not exist until awakened by the extraordinary audacity of Brigadier Burriel in assuming to pass over the decree of Captain-General Caballero de Rodas, and fall back on that of General Dulce, in the desperate attempt to extenuate one of the most signal acts of cruelty and barbarity which the present age has witnessed, and which attempt on his part so to cover up his crimes did, in fact, involve imputation either express or implied—but that imputation, happily, a false one—of bad faith on the part of his own government.
It is satisfactory, also, to the President to know, as stated in your excellency’s note, that your predecessor in the ministry of state had already given explanations in this matter, to the same effect, in a note addressed by him to the representative of the British government.
Thus, the honorable attitude of the Spanish government in this respect, and its perfect good faith in reference to the repealed decree of Captain-General Dulce, are doubly substantiated, and the honor of Spain is thoroughly vindicated as against the unqualifiable aspersions cast upon it by Brigadier Burriel.
But while authorizing me to express entire satisfaction with the declarations thus far made by your excellency, the President instructs me further to say that the contents of your excellency’s note confirm and fortify his opinion that it would be convenient for the Spanish government, in proper regard to the amicable relations of the respective governments concerned, to subject Brigadier Burriel either to summary punishment or to trial by court-martial, as may be most in conformity with the military jurisprudence of Spain.
In reference to this part of the subject it now becomes my duty to submit to your excellency some further observations, specially applicable to the case of Brigadier Burriel as it now stands.
Under false pretense of the subsistence of a decree of Captain-General Dulce, which decree he could not but know had been repealed by Captain-General Cabellero de Rodas, this person perpetrates at Santiago de Cuba an act of wholesale ferocity and barbarity, for which no parallel then existed in modern history, or has until now existed previous to the similar acts of atrocity of Dorregary at Estalla, and of Saballs at Olot.
Not content with the perpetration of this great crime at Santiago de Cuba, under false pretense of law or superior authority, but without any such justification in fact, as he could not but have perfectly well known, he now, on his return to Spain, presumes to put forward these false pretenses in the form of a solemn appeal to the world, addressed to the highest political and literary journal of Europe, and in so doing impliedly accuses his government, falsely, however, of scandalous breach of good faith in respect of the assurances it had previously given to foreign governments touching the repeal of General Dulce’s decree by that of General Caballero de Rodas.
Now, it may be admitted, as your excellency suggests, that it is not incumbent on any government to take notice of publications in the newspapers. It will do so, or it will not, in its discretion or in accordance to the seriousness of the circumstances. Thus, in the case of the false rumors set on foot by the enemies of Spain in the United States, [Page 503] respecting the alleged purpose of the Spanish government to cede Puerto Rico to Ger many, the Spanish government might well refuse to condescend to contradict the statement officially, unless called upon officially so to do, and so it might leave the falsehood to expire of itself or to be contradicted by the person most directly interested, namely, Admiral Polo de Bernabé, as it has been in such terms of just and honorable indignation.
But suppose—what is otherwise impossible, save as a hypothetical supposition—suppose that, after being relieved from duty as minister, Admiral Polo himself had been the author of this false rumor, and had propagated it in a solemn communication addressed to the Revue des Deux Mondes, if in such a case the Spanish government should not condescend to go into the newspapers to correct false rumor, would it not have something to say to the inventor and propagator of the falsehood, and he an officer high in the military service of Spain?
In like manner, when Brigadier Burriel, in the face of the fact that the decree of Captain-General Caballero de Rodas did, in express terms, repeal the decree of General Dulce, and in the face of the further fact that the Spanish government had given to other governments the most explicit assurance of this repeal, and thus, in effect, pledged its faith to the non-existence of the decree of General Dulce; when, I say, in the face of these facts, Brigadier Burriel asserts, in a formal publication, the continued legal existence and effect of that decree, thus impeaching the good faith of his government and offending and insulting the honor of his country, will not the government find some article of the military code of Spain importing condign punishment of the high officer of the army who does this great wrong to his country and his government? I will not enlarge on this topic, because it less directly concerns my Government than the acts perpetrated by Brigadier Burriel at Santiago de Cuba, to which the rest of this note will be dedicated.
Brigadier Burriel had undertaken to maintain that the shooting of unarmed prisoners in the gross, captured on the high seas, and outside, of course, of the territorial waters of Spain, was justified in legal theory by the letter and spirit of the decree of General Dulce.
Your excellency has disposed of this pretended legal justification of the act, by declaring, as good faith induced you to do, that the decree of General Dulce had been repealed by that of General Caballero de Rodas, and did not exist as law at the time of the capture of the Virginius and of the execution of her crew and passengers at Santiago de Cuba.
I might well assume, in the absence of this decree of General Dulce, that neither the capture nor the executions were justifiable by any provision of the municipal jurisprudence of Spain.
I go further, and venture to suggest that if there did exist any text of the domestic laws of Spain capable of being forced into this question—I do not stop to inquire if there be any such—I say no provision of local law, if any such there be, could apply to citizens of the United States, or to subjects of Great Britain, found on the high seas, and beyond the jurisdictional waters of Spain.
In this remark I associate, as the note of your excellency does in effect, subjects of Great Britain with citizens of the United States, since it is not only a question between the United States and Spain, but also between Great Britain and Spain; and thus, of imperative necessity, it passes from the narrow domain of municipal law into the higher and broader region of the law of nations.
Your excellency plainly expresses this idea by saying, in the note under consideration, that, “with respect to legislation referring to jurisdiction on the high sea, the Spanish government considers in force only that established by the maritime international law and accepted by all nations, or that stipulated in subsisting treaties.”
In what provision of subsisting treaties or in what text-book of the law of nations can Brigadier Burriel discover any justification or extenuation of these acts? He and other unadvised persons talk loosely about “pirates “and “piracy” in connection with the Virginius and her crew and passengers. But these phrases of popular prejudice and superficiality, which may be fit for the columns of angry newspapers, do not belong to the language of diplomacy or jurisprudence. And I take pleasure in recognizing that your excellency declines to descend to the use of any such inappropriate language in the discussion of the case of Brigadier Burriel.
In truth, it is palpably absurd to apply the term “piracy” to the voyage of the Virginius, or the term “pirates” to her crew or passengers. The essence of piracy, by the law of nations, as universally defined in the text of all writers on public law and of all books of doctrine and jurisprudence, is armed cruising for the purpose of pillage and plunder, without lawful authority of any government. Such persons only are pirates, according to the law of nations. And there is no suggestion or pretense that the Virginius was fitted out for any such purpose, or that she was armed as a cruiser, or that she ever made or attempted, or intended to make or attempt, any capture, prize, pillage, or plunder. Whatever, if anything, there may have been wrongful in the character of the Virginius, she was not a piratical ship by the law of nations, nor her officers and crew pirates.
[Page 504]I adopt in this respect the language of the dispatch, applicable to this point, of Earl Granville to Mr. Layard, both because of the clearness and precision of the language of that dispatch, and because of the absolute identity of the relation of the two governments, in this respect, to that of Spain:
“The real ground of complaint, Her Majesty’s government hold,” says Lord Granville, “is that, even assuming the vessel to have been lawfully seized and the crew properly detained, there was no justification for their summary execution after an irregular proceeding before a drum-head court-martial. No possible aspect of the character of the Virginius and her crew could authorize or palliate such conduct on the part of the Cuban authorities. There was no pretense for treating such an expedition as piracy jure gentium.
“If the Virginius was to be regarded as a vessel practically engaged in a hostile or belligerent enterprise, such treatment would not be justifiable. Much may be excused in acts done under the expectation of instant damage in self-defense by a nation as well as by an individual. But, after the capture of the Virginius and the detention of her crew was effected, no pretense of imminent necessity of self-defense could be alleged; and it was the duty of the Spanish authorities to prosecute the offenders in proper form of law, and to have instituted regular proceedings on a definite charge before the execution of the prisoners.
“Her Majesty’s government maintain that there was no charge, either known to the law of nations or to any municipal law, under which persons in the situation of the British crew of the Virginius could have been justifiably condemned to death.
“They were persons not owing allegiance to Spain; the acts done by them were done out of the jurisdiction of Spain; they were essentially non-combatants in their employment: and they could by no possible construction be liable to the penalty of death.”
I assume, therefore, as your excellency does, that here is no question of the municipal law of any country, but only of international right, as settled by theory, practice, or convention.
And, in reasoning with a person of your excellency’s enlightenment and large experience in administrative and diplomatic affairs, it would be waste of time here to enter into the consideration of those questions of assimilated piracy, which arise out of the local law of sundry governments or special provisions of treaty, none of which apply to the case of the Virginius. It is indisputable, in short, that in the eye of the law of nations he only can be characterized as a pirate who puts himself in the condition of hostis humani generis—a sea-robber of all mankind. It does not suffice that he should be the private enemy of one government only; as, for instance, Spain or the United States, or Great Britain.
Why, indeed, should we not fix our attention at once and wholly on the undeniable truth of the case, namely, that if there were anything wrong in the acts or the intention of the Virginius, it was only that quasi wrong, the relations and consequences of which are thoroughly defined by the law of nations, as understood in all Europe and America, namely, the transportation of military persons or stores, which may subject the vessel or cargo to condemnation, but which never to this day was deemed a cause of shooting the officers and crew as pirates, except in the perverse imagination of Brigadier Burriel.
In fine, it is too plain for contradiction or dispute that the wholesale shootings perpetrated by him at Santiago de Cuba were an act of mere arbitrary military violence, in the highest degree unwise and inexpedient as well as criminal, falling at once into the category of the atrocities committed by the Carlists at Estella, at Cuenca, and at Olot. Historians in all future times will speak in the same accents of horror of the military assassinations of Estella, of Olot, of Cuenca, and of Santiago de Cuba.
The government of President Serrano would repel with indignation the idea that this government, the supreme representation of Spain and the Spanish nation, is to assume the responsibility of those acts of transcendent cruelty on the part of Dorregary, of Saballs, of Alfonso de Este, although they be Spaniards.
Will not the government of President Serrano in like manner repel all responsibility for the acts of equally transcendent cruelty on the part of Brigadier Burriel, although a Spaniard in the service of a previous government?
Suppose a military officer of Spain to-day, operating against the Carlists in Vizayo, Guipuzcoa, Alava, Navarre, Catalonia, Aragon, Valencia, or Murcia, should arbitrarily shoot in cold blood, with or without pretense of verbal court-martial, fifty-three prisoners of war, whether Carlist-Spaniards, or even Carlist-Frenchmen. What must follow? Would not such officer be subject to immediate destitution and punishment?
Spain has appealed to the world in the eloquent and impressive language of your excellency’s diplomatic circular, and even more impressively and by the language of action, in the decrees of the executive power, against the massacres of Estella and Olot. Can she to-day, in the face of these appeals to Europe in condemnation of the barbarities of Dorregary and Saballs, justify—nay, accept and affirm the barbarities of Burriel, perpetrated, as we know, contrary to the purpose—nay, in violation of the orders of the supreme government of the time?
[Page 505]Permit me respectfully to suggest that, for Spain now to assume such responsibility would not only be a measure of direct affront to the United States, and to Great Britain, equally aggrieved with the United States, but indirectly of affront also to Germany, to Austria-Hungary, to Italy, to Portugal, to Belgium, to the Netherlands, and to all the rest of Europe now drawn toward General Serrano’s government, not only as representing the conservatism but also as representing the civilization of Spain. I cannot suppose that your excellency will entertain the idea that such acts as those under consideration are at any time beneficial to the government in whose name they may have been perpetrated. Such a supposition would carry us back into the times and usages of mere barbarian and savage war, even to worse times than the invasions of Attila and Alaric.
But if a Christian government in the nineteenth century could be tolerated in perpetrating such acts because of any false imagination of the benefits to be derived from them, is it not self-evident that if those acts be to the prejudice of any foreign government, then the government which enjoys the benefit, such as it is, should, with no grudging hand, pay the price of that benefit in reparation of the injured government?
But your excellency will concur with me, I feel sure, in doubting the ultimate usefulness of any wrongful act. Certainly, in the present case, the imaginary immediate advantage to the Spanish colony of Cuba was nowise commensurate with the manifest injury to Spain herself. She has no cause of thanks to Brigadier Burriel.
If the foregoing considerations possess in fact all the cogent force with which they present themselves to my mind, there does not exist that occasion which your excellency supposes for the further discussion of the true legal character of the Virginius, preliminary to the trial or punishment of Brigadier Burriel. It is not the capture of the Virginius which is here in debate. If, on being captured and taken into Santiago de Cuba, that vessel had been carried before a court of admiralty for regular trial according to law and treaty—if, meanwhile, her officers, crew, and passengers had been held for examination in like manner, according to law and treaty—there would have been nothing in the case, such as there is now, of superlative and surpassing gravity. It was the rash, cruel, lawless, and criminal act of Brigadier Burriel which raised the case into a perilous international controversy between Spain and the two governments of Great Britain and the United States.
The conclusion is inevitable, that Brigadier Burriel has, by his own deeds of wanton wrong, rendered himself amenable to the penal laws of Spain.
The President of the United States, therefore, has the amplest possible reason to expect that the Spanish government will in due time, and with no unnecessary delay, vindicate her own dignity and her own laws by subjecting to punishment the contumacious officer who, by mingled wickedness and folly, has brought all these calamities upon his country in wantonly giving occasion to the present controversy between Spain and the United States.
I make no account of the rumor that, under present circumstances, Brigadier Burriel can be an aspirant for the cross of San Hermenegildo, the recompense not only of constancy in military service but of untarnished honor—constancia en la milicia y honor acrisolado.
The President conceives that that which is expected by him of Spain is no more than what is done by all other governments in like circumstances, and which the United States themselves have done in repeated and signal instances.
The German government did not hesitate to subject to trial by court-martial a distinguished officer of its own, Captain Werner, who, in the performance of an act beneficial to the Spanish government, had apparently trespassed on the sovereign rights of Spain.
Not long since a distinguished and meritorious officer of the Navy of the United States, Captain Collins, also trespassed on the sovereign rights of Brazil, in performing an act beneficial to the United States and involving no actual injury to Brazil. But, on the suggestion of the Brazilian government, he was tried by a court-martial and condemned on the precise charge of a technical violation of the law of nations.
During the same period of time a similar act of trespass on the jurisdictional waters of Spain occurred on the part of another respectable officer of the Navy of the United States, Commander Hunter, and he also was in due time ordered before a court-martial on the charge of a violation of the law of nations to the prejudice of Spain, and was tried, condemned, and sentenced. These proceedings were had quite as much for the vindication of the honor of the United States as for the satisfaction of the Spanish government. It is true, nevertheless, that the Spanish government called for such reparation with the same earnestness that the Government of the United States now calls for reparation in the case of Brigadier Burriel.
Passing over other examples of the same class, it will suffice to refer to one more of conspicuous significance, also occurring in the relations of Spain and the United States.
David Porter was an officer second only to the highest in rank in the Navy of the United States. He had been pre-eminently distinguished in many famous actions of [Page 506] war, and had attained, deservedly, the universal respect of his countrymen. Being employed in the command of a fleet in the West Indies, for the pursuit there of pirates, genuine pirates—hostes humani generis—with which those seas then swarmed, the United States in this respect acting in concert with Spain, Great Britain, and other governments, he did an act which, although beneficial to Spain, was an act of technical violation of the sovereignty of Spain. For this error he was tried by court-martial on accusation of violating the law of nations, condemned, and sentenced, in spite of his high rank, great services, and unsurpassed personal popularity.
Assuredly, therefore, what the United States themselves have done, of their own accord, willingly, spontaneously, in like circumstances, in order to render international justice to Spain, it would be no derogation on her part to do for the satisfaction of the United States.
Nay, in the case of Porter, he, with the proud spirit of a gallant soldier, on finding that his act had been impugned, and asserting that he had been guilty of no wrong in the premises, himself demanded that court of inquiry, which resulted in his being tried by court-martial.
Brigadier Burriel has also been guilty of a violation of the law of nations, and of such intensity and aggravation that the inculpated acts of Werner, of Collins, of Hunter, of Porter, are but as nothing in comparison. Neither of them had outraged the conscience of mankind, as Burriel did; neither of them had done acts of inhumanity and brutality, like those of Burriel, at the thought of which all men shudder with horror; neither of them had slaughtered helpless captives by the wholesale, as Burriel did; neither of them had perpetrated enormities like those of Burriel, to the eternal disgrace of themselves and to the dishonor of their name and nation, and of the human race itself; neither of them had, like Burriel, by the commission of a crime of monstrous iniquity, but not less of monstrous unwisdom and inexpediency, involved their country in critical conflict with two powerful states; they had not their hands dripping with innocent blood; they had simply committed a technical breach of the rights of national sovereignty to the prejudice of no one and to the benefit of all the world; and yet they were subjected to the rigor of penal law by the voluntary command of their own governments, impelled by motives of national self-respect and of international comity. And shall this Brigadier Burriel go “unwhipped of justice?” Will Spain be less regardful of the claims of international right and comity than other governments? I cannot and I will not believe it of her.
And what an example is not that of Porter for Brigadier Burriel? If he be the man of honor which an officer of his rank in the army of Spain should be; if he be, as he professes, confident of the rightfulness of his acts, should he not, instead of filling the newspapers with shallow and disingenuous arguments on the subject, manfully come forward and demand a trial by a court of his peers, and thus, by the only appropriate means, vindicate his character, if it admits of vindication, and also relieve his government and his country of the painful controversy which he has brought on between Spain on the one hand, and on the other the United States and Great Britain?
Juan Burriel, I repeat, might well imitate the example thus set to him, and this without any diminution of personal dignity; for he needs to live many years of a higher life than heretofore, and to fill those years with loftier achievements, in order to approach to the brilliant military fame and the personal authority and popularity of David Porter.
I assure your excellency that nothing could be more unwelcome to me than the duty of submitting these observations to the attention of the Spanish government. But it is a duty, the performance of which has been the necessary and unavoidable result of the conduct of Brigadier Burriel. On his head by the blame. And I sincerely trust that, even without any necessity on your part of prejudging the imputed blood-guiltiness of Brigadier Burriel, your excellency will perceive in the arguments submitted by me, and especially in the examples cited of what other governments, including the United States, have been accustomed to do in the same circumstances, abundant justification for such action in the premises on the part of the Spanish government as, while adding new luster to the proverbial honor of Spain, shall tend to strengthen the ties of international amity between her and the United States.
I avail myself of this occasion to tender to your excellency the assurance of my highest consideration.
His Excellency the Minister of State.