No. 456.
Mr. Lowell to Mr. Evarts.

No. 63.]

Sir: Referring to my dispatch No. 47, I have now the honor to transmit herewith a copy and translation of Mr. Silvela’s note in answer to mine of the 7th December last, in relation to the whaling schooners Ellen Rizpah, Rising Sun, and Edward Lee.

[Page 778]

Not long after receiving my note Mr. Silvela informed me that the Spanish Government had every disposition to satisfy the just demands of the United States, and to do its utmost to prevent the repetition of similar outrages. He told me that he was ready also to admit the claims for damages and to settle them, but that he should feel bound to make some slight diminution in the total amount claimed.

* * * * * * *

He did not say definitely how great a reduction in the damages he proposed to make, but assured me that I should receive an answer to my note with all dispatch. Under these circumstances I thought it better to await his note with a definite proposal than to trouble you with a report of his statements to me, perhaps before he had quite made up his own mind as to the precise terms of the compromise he proposed to make.

A much longer delay than I expected has intervened, a part of which is possibly due to oversight or negligence in the foreign office here, for though the date of Mr. Silvela’s note be the 16th January, it was not received at the legation till eight o’clock last evening.

* * * * * * *

Even as it is, the Spanish Government has acted with extraordinary promptness in the matter, if I may judge by the experience of my colleagues here; thus giving a further proof of its disposition to maintain friendly relations with the United States.

I at once telegraphed to you the offer of Mr. Silvela and am now awaiting your reply. Had it been my own affair, I should have accepted it at once, on the general principle that claims will bear paring down better than most things, and that $10,000 divided between the two vessels, even after deducting the claim of the mate of the Rising Sun, would probably give to each a quota as large as the average profits on the voyage of a whaling schooner.

You will observe that Mr. Silvela, for the reasons stated in his note, takes exception to the claim of the owners of the Edward Lee. But as he leaves the case open to discussion, I have thought it best to await further instruction from Department in regard thereto.

A copy of my note in reply to Mr. Silvela is hereto annexed.

I have, &c.,

[Inclosure 1 in No. 63.—Translation.]

Mr. Silvela to Mr. Lowell.

Excellency: I have received the note which your excellency was good enough to address to me, dated the 7th of last month, referring to the detention of three American vessels employed in the whale fishery in the neighborhood of the Keys, near the Island of Cuba, by a Spanish guarda costa, on which occurrence, in compliance with the orders of the President of the United States, your excellency expresses confidence that the Government of His Majesty would adopt prompt and efficacious measures to prevent the repetition on the part its subaltern officers of acts which might embarrass the American Republic in its sincere efforts to maintain the friendly attitude which it has taken and desires to maintain in respect to Spain.

The Government of His Catholic Majesty values too highly the good understanding and the cordial sentiments which fortunately exist between Spain and the United States not to be altogether solicitous that Spanish officials in the peninsula and colonies should accommodate all their acts to the laws and instructions of the government, inspired as the latter always are by that spirit of consistent friendliness which for so many years has prevailed in the relations of the two countries.

With this weighty object, so soon as the representative of Spain in Washington informed [Page 779] the government of what had happened to the vessels Ellen Rizpah and Rising Sun, near the coast of Cuba, the most energetic orders, were sent to the governor-general of that island that, whatever should be the result of the inquiry ordered to he made concerning those occurrences, he should charge his subordinates with the strictest observance of the stipulations in the eighteenth article of the treaty of 1795, in force between Spain and the United States, thus removing just motives for official reclamations and pretexts on the part of enemies of our territorial integrity for exciting political passion in the United States.

The captain-general of Cuba fulfilled the intention of the supreme government by issuing the proper orders on the 17th of July last, and, considering the energy of that zealous and worthy official, the government at Washington may be sure that for the future those orders will be rigorously observed even by the smaller vessels attached to the Cuban navy in respect of suspicious vessels off the coast and within Spanish jurisdictional limits when these vessels prove to be American.

The damages claimed by the masters of the vessels Ellen Rizpah and Rising Sun, referred to in the note of your excellency, which I have the honor to acknowledge, the Spanish Government finds no difficulty in admitting as a matter of equity and considering its desire to give therein a proof of its friendly feelings toward that of the United States, and is accordingly willing to pay $10,000 for the two vessels.

If your excellency will be good enough to consider the slight difference between this amount and that which the claimants solicit through your intervention, and if you take into account at the same time the valuation previously set in Washington as to the amount of the damage in question, I venture to hope that the government in Washington will find no difficulty in accepting the sum proposed by that of His Catholic Majesty.

The concurrent circumstances in the case of the Edward Lee are so distinct from those of the other two vessels that, with the settlement of these and with the explanations given, the incident of the whalers might well be considered as terminated, leaving out of view the very suspicious circumstance that the owners of the Edward Lee kept silence from the middle of March, when what is called the attack occurred, till the end of August, when the reclamations of the Rizpah and Rising Sun had been already for a long time known, and from whose silence it might well be argued that the damage incurred did not make it worth the while of the captain of the Edward Lee to leave his accustomed employment in order to present his complaint in the nearest port before the consular agent of his nation, and that, when he heard of the claims put in by the other two whalers, this served as an incentive to give importance to an incident which has not been thoroughly sifted, and which, even if it were exactly as stated, ought not to be considered as of great importance.

But it plainly appears by the very account of the interested party that the Edward Lee was not searched, nor even detained by the Spanish gunboat, and consequently there could be no infraction of the eighteenth article of the treaty, nor was there any chances of the losses which the other whaling captains claim to have sustained by the detention of their respective vessels. Moreover, if the gunboat, which is assumed to be Spanish, fired upon the Edward Lee, nobody can deny—and I assume the most favorable hypothesis—the right which she had to do so, both vessels being in Spanish waters and in quarters frequented by suspicious craft, the Edward Lee not having hoisted her flag, whose nationality the gunboat of our navy needed to know. With this object, and according to maritime custom, she warned her by means of a blank cartridge only, and not being obeyed, followed with shot. The Edward Lee, being a better sailer than our cruiser, took to flight, and succeeded in escaping without being overtaken. It results that the whaler disobeyed and did not declare her nationality, finally escaping without having suffered damage from our gunboat.

As your excellency, even granting for a moment that the version of the American captain should turn out to be true, cannot help acknowledging, there is not the slightest parity between this case and those before cited, nor, accordingly, any reason in sup-X>ort of the claim of the [Edward] Lee.

Neither, in another respect I think, will your excellency fail to agree with me that it is fitting in the interest of justice and morality that whoever sets up claims of this kind should be made to understand that a simple complaint, or the reporting more or less in detail of an assumed injury, is not enough to warrant their being taken into consideration, much less a favorable judgment, on the indemnity they may claim. Otherwise, contrary to the best wishes and most righteous intentions of the respective governments, a door would be opened to the abuse which both are desirous to repress.

If, contrary to what is probable, facts of a trustworthy character should be produced giving to the question of the Edward Lee the legal basis which it now needs, the Government of the United States may be sure that the Government of His Majesty would then examine and discuss it with the same friendly judgment which it has always brought to questions of the same nature which have hitherto arisen between the two governments.

I avail, &c.,

[Page 780]
[Inclosure 2 in No. 63.]

Mr. Lowell to Mr. Silvela.

Excellency: I have the honor to acknowledge the reception of the note which your excellency has been good enough to address to me, dated on the 16th of January last, in answer to one of the 7th December from this legation, conveying to your excellency the remonstrances of the United States concerning the unwarrantable treatment of certain American whalers by Spanish guarda costas.

I have already transmitted to my government a copy of your excellency’s note, and shall have the honor to communicate to your excellency the instructions received in reply so soon as they arrive.

It remains for me only to thank your excellency for another instance of the ready attention which the claims of this legation have always received at your excellency’s hands, and to hope that the instructions transmitted by the Government of His Catholic Majesty to the authorities of the island of Cuba will have the desired effect of preventing in future any recurrence of such violent proceedings as cannot fail to awaken the most anxious solicitude of the President of the United States.

I gladly avail, &c.,