No. 582.
Mr. Evarts
to Mr. Fairchild.
Washington, August 11, 1880.
Sir: I have to instruct you to bring to the earnest attention of His Majesty’s Government a series of occurrences on the high seas and in [Page 923] waters adjacent to the eastern part of the Island of Cuba of such exceptional gravity that this government cannot but attach the utmost importance thereto, inasmuch as the facts which have been brought to the attention of this Department, if substantiated, involve not only unwarrantable interference with the legitimate pursuit of peaceful commerce by American citizens, but also a grave affront to the honor and dignity of their flag.
Four separate instances of the visitation and search of American commercial vessels by armed cruisers of Spain have been reported in rapid succession, under circumstances which impress the mind of the President with the substantial truthfulness of the statements, made under circumstances which preclude collusion or willful deception on the part of those making them.
The facts of these occurrences, in the order in which they took place, as sworn to by the officers of the several vessels, are as follows:
- 1st.
- The schooner Ethel A. Merritt, one of the fleet belonging to the firm of Warner & Merritt, fruiterers of Philadelphia, sailed from Port Antonio, Jamaica, on the 29th May last, laden with fruit for Philadelphia. On the next day, May 30th, she was overhauled by a vessel of war under the Spanish flag, which fired a blank shot, upon which the Ethel A. Merritt displayed the United States flag and kept on her course. The cruiser then bore down upon her and fired a solid shot, which glanced and passed through her rigging. The master of the schooner, to save his owners’ property and the lives of his crew, then hove to and his vessel was boarded by an armed officer, in Spanish uniform, who searched her, and, finding nothing on board save legitimate cargo, permitted her to proceed on her course. The affidavits of the master and first mate of the schooner fix her distance from the nearest point of the Island of Cuba at the time she was boarded as between six and seven nautical miles. The name of the boarding cruiser was not ascertained at the time, and through the mistaken impression of one of the schooner’s crew, who read the name on her stern indistinctly, she was supposed to be called the Nuncio or Nunico.
- 2d.
- The schooner Eunice P. Newcomb, of Wellfleet, Mass., bound from Port Antonio, Jamaica, to Boston, with a cargo of bananas and cocoanuts, on or about the 18th of June last, was in like manner overhauled by a gunboat under the Spanish flag, which fired a blank shot across her bow. The Eunice P. Newcomb showed the United States flag and kept on her course, being then on the high seas, seven or eight nautical miles distant from the coast of Cuba. The Spanish cruiser next fired a solid shot across the schooners stern, when the latter hove to and was boarded by three men from the gunboat, who searched the vessel and left her to proceed on her course. In this case, also, the name of the boarding cruiser was not reported to the Department.
- 3d.
- The schooner George Washington, of Boothbay, Me., cleared from Baltimore, Md., on the 22d of June last, in ballast, for Manchioneal, in Jamaica, for a cargo of fruit. On the 5th of July, when about fifteen miles distant from Cape Maysi, on the eastern extremity of the Island of Cuba, she sighted a steamer some ten miles distant. The steamer altered her course and bore down upon the schooner, which hoisted the United States flag. The steamer overtook the schooner, not displaying the Spanish flag until abreast Of her, steamed ahead with guns manned and lowered a boat which put off to the George Washington. The master of the latter hove to, and the boat, containing two officers and two men, heavily armed, Rau alongside. The Spanish officers and coxswain went on board, examined the schooner’s papers, [Page 924] searched her hold and ship’s stores, inspected all her crew, and left her without explanation. The search took place about fifteen miles southeasterly of Cape Maysi. The name of the vessel was in this instance ‘also, not ascertained, but the concluding letters on her stern, all that could be read as she lay, are said to have been “gary,” which leads the Department to conjecture that she may have been the Blasco de Garay, the gunboat concerned the following day, in the same neighborhood, in the fourth and last of the cases of visitation and search thus far reported to this government.
- 4th.
- The schooner Hattie Haskell, of New York, sailed from that city on the 18th of June last, with a general cargo for the San Bias coast in the Colombian state of Panama: On the 6th of July she sighted the east coast of Cuba, off Cape Maysi. At two o’clock that day she sighted a side-wheel steamer, which gave chase, and, when near, set the Spanish flag, whereat the Hattie Haskell showed the American colors. At six o’clock the gunboat, which proved to be the Blasco de Garay, ordered the schooner to heave to, and when a cable’s length distant, sent a boat off to her with an armed crew, her guns being meanwhile manned and crew mustered for action. The boat carried two officers, who examined the schooner’s papers and searched her hold, after which she was permitted to proceed. This visit and search occurred about 32 miles southwesterly from Cape Maysi, as verified by the affidavits of the master, mate, and all the crew of the Hattie Haskell before the United States court at Aspinwall.
As may naturally be supposed, these occurrences gave this government much concern, and immediate steps were taken to ascertain the truth of the facts stated. The prompt denial of the possibility of such an event taking place, which was spontaneously made public through the press by the Cuban authorities, coupled with the circumstance of no vessel bearing a name even remotely like that of Nuncio or Nunico being in the Spanish service, gave rise at first to the conjecture that the search of the Ethel A. Merritt might have been the work of some piratical craft, and the Tennessee, a war vessel of the United States, was promptly dispatched to Cuban waters to make an investigation.
Your own dispatch of the 16th of June (No. 33) shows how quick the Spanish ministry was to disavow the act, then only known to it through the press; and how earnest was the assurance given that if the firing had taken place as reported, it was done contrary to the express orders and wish of the Spanish Government. It was, however, soon learned by the rear admiral commanding the Tennessee that the firing upon, boarding, and search of the Ethel A. Merritt and Eunice P. Newcomb was admitted by the Spanish authorities at Santiago de Cuba, the explanation given by them being that the guarda costas are not permitted to cruise at a greater distance than six miles from the Cuban shore; that the schooners when boarded by officers of the gunboat Canto were at a distance not greater than from two to three miles from the south coast of Cuba, and that the occurrences were immediately reported through the captain of the port of Santiago de Cuba to the Spanish admiral at Havana.
The reported visitation and search of the George Washington and Hattie Haskell has not as yet been in like manner admitted, but from the verification of the incidents with respect to the two previous searches, there can be little doubt that the occurrences in their cases will be likewise found to be true, and that the war vessels of Spain off the coast of Cuba have in at least four instances in rapid succession exercised the right of visitation and search upon vessels of the United [Page 925] States flying the American flag, and passing in the pursuit of lawful trade through the commercial highway of nations which lies to the eastward of the island of Cuba. This government does not lose sight of the ex-parte declarations made by the Spanish local authorities at Santiago de Cuba, that the two acts thus far verified took place within the three-mile limit. This point is in dispute, and evidence as trustworthy as proof can well be in such cases is adduced to show that the vessels were at the time from six to eight miles distant from the shore. In the cases of the two remaining searches the evidence fixes the distance from shore far outside of the limits mentioned, and in that of the Hattie Haskell, especially, at over twenty miles from the Cuban coast.
The question does not appear to this government to be one to be decided alone by the geographical position of the vessels, but by the higher considerations involved in this unwonted exercise of a right of search in time of peace, and to a greater extent than the existing treaty of 1795, between the two nations, in its eighteenth article, permits it to be exercised even in time of recognized public war, that article permitting visitation only, with inspection of the vessel’s sea-letters, and not search. These interferences with our legitimate commerce do not even take the form of a revenue formality performed by the revenue vessels of Spain, but carry in their methods most unequivocal features of belligerent searches made by the war vessels of Spain. From the unhappy history of the events of the past ten years in and about the waters of the Antilles, it is only too cogently to be inferred that these proceedings of Spanish war vessels assume a right thus to arrest our peaceful commerce under motives not of revenue inspection, but of warlike defense. In this aspect of the case it may well be doubted whether, under color of revenue investigation to intercept smuggling or other frauds, jurisdictional power within the limit of the recognized maritime league could be invoked in time of peace to justify the interference of Spanish cruisers with the lawful commerce of nations passing along a public maritime highway, in a regular course of navigation which brings them near the Cuban coast, though not bound to its ports. It is not to be supposed that the world’s commerce is to be impeded, and the ships of foreign and friendly nations forced to seek an unwonted channel of navigation; that they are to be driven out of their proper course into adverse winds and currents to avoid the offensive exercise of a right which is allowed only to the exigencies of a state of war, and to avert the imminent risk of armed attack and of discourtesy to the flag they bear. And it needs no argument to show that the exercise of any such asserted right upon commercial vessels, on the high seas, in time of peace, is inconsistent with the maintenance of even the most ordinary semblance of friendly relations between the nation which thus conducts itself and that whose merchant vessels are exposed to systematic detention and search by armed force.
I have made use of the terms “systematic detention and search” advisedly, for although I am loath to believe that the Government of His Majesty has determined upon the adoption of a course towards the vessels of the United States, in or near the jurisdictional waters of Spain, which can only imply a standing menace to the integrity and honor of my country and its flag, yet the occurrence in quick succession of four such grave acts of offensive search of our peaceful traders after so long an interval of repose since this question was last raised in the case of the American whalers on the southern coast of Cuba, cannot but make me apprehensive that the Government of Spain, or the superior authority of Cuba, in pursuance of the discretionary power it is understood to [Page 926] possess, may have taken up a new line of action, and one wholly inconsistent with those relations between the two countries which both their reciprocal interests and duties require should be maintained unbroken.
It is my profound hope that such apprehensions on my part may be found to be baseless. But in view of the length of time which has elapsed since the first of these occurrences was known to the public here and in Spain, of the anxiety which the minister of state expressed to you in the matter of the telegraphic inquiries made by him of the Cuban authorities, and of the Immediate report of the early cases to the admiral at Havana, which is said to have been made, I cannot but express my surprise and regret that the Spanish Government should not of itself have hastened to make some explanation of the incidents calculated to allay the anxiety of a friendly power, whose just susceptibilities as respects the safety of its commerce and the honor of its flag are so well known to the Spanish Government.
I do not undertake, now, either a full exposition of the doctrine of this government on the subject of the maritime jurisdiction of states over circumjacent waters, nor a particular inquiry as to the diverse views, in some sense, which have been brought forward, heretofore, in the discussion between Spain and the United States on the subject of jurisdiction over Cuban waters.
I desire, however, that the position heretofore more than once distinctly taken by this government, in its diplomatic correspondence with Spain, shall be understood by you and firmly adhered to in any intercourse you may have in the pending situation with the Spanish minister of foreign affairs. This government never has recognized and never will recognize any pretense or exercise of sovereignty on the part of Spain beyond the belt of a league from the Cuban coast over the commerce of this country in time of peace. This rule of the law of nations we consider too firmly established to be drawn into debate, and any dominion over the sea outside of this limit will be resisted with the same firmness as if such dominion were asserted in mid-ocean.
The revenue regulations of a country framed and adopted under the motive and to the end of protecting trade with its ports against smuggling and other frauds which operate upon vessels bound to such ports have, without due consideration, been allowed to play a part in the discussions between Spain and the United States on the extent of maritime dominion accorded by the law of nations which does not belong to them. In this light are to be regarded the royal decrees which it has been claimed by the Spanish Government had for more than a hundred years established two leagues as the measure of maritime jurisdiction, asserted and exercised by the Spanish crown, both in peninsular and colonial waters. Of this character, obviously, are the regulations of our revenue system in force since 1799, which not only allow but enjoin visitation of vessels bound to our ports within four leagues from land, which, in her diplomatic correspondence with this government, Spain has much insisted on as equivalent to its own dominion as asserted off its coasts, except that our authority was exerted at twice the distance from land.
But the distinction between dominion over the sea, carrying a right of visit and search of all vessels found within such dominion, and fiscal or revenue regulations of commerce, vessels and cargoes engaged in trade as allowed with our ports to a reasonable range of approach to such ports, needs only to be pointed out to be fully appreciated. Every nation has full jurisdiction of commerce with itself, until by treaty stipulations it has parted with some portion of this full control. In [Page 927] this jurisdiction is easily included a requirement that vessels seeking our ports, in trade, shall he subject to such visitation and inspection as the exigencies of our revenue may demand, in the judgment of this government, for the protection of the revenues and the adequate administration of the customs service. This is not dominion over the sea where these vessels are visited, but dominion over this commerce with us, its vehicles and cargoes, even while at sea. It carries no assertion of dominion, territorial and in invitum, but over voluntary trade in progress and by its own election, submissive to our regulations of it, even in its approaches to our coasts and while still outside of our territorial dominion.
You will observe, therefore, that the American vessels which have been interfered with thus unwarrantably were not engaged in trade with Cuba, and were in no degree subject to any surveillance or visitation of revenue regulation. The acts complained of, if, indeed, as our proofs seem to make clear, without the league accorded as territorial by the law of nations, have no support whatever from the principle of commercial regulation which I have explained. Spain had no jurisdiction over the waters in which our vessels were found, no jurisdiction over the trade in which they were engaged; and no warrant under the law of nations, to which alone these vessels in this commerce were subject, can be found for their arrest by the Spanish gunboats.
As the offense against the rights of our commerce and the freedom of our flag, which we complain of in those four instances, is substantive, it is not necessary for me now to insist upon the form and manner of these visitations and searches as elements or aggravations of this offense. It cannot, however, escape notice that each transaction has unequivocal features of the exercise of direct sovereignty, and by mere force, as if by territorial and armed dominion over the sea which was the scene of the transactions. These were gunboats, a part of the naval power of Spain, under the threat of their armaments and by the presence of adequate armed force boarding these vessels, compelling submission; their action was neither more nor less than such as it would have been under a belligerent right on the high seas in time of war.
In manner and form, then, as well as in substance, the power to which our commerce was obliged to succumb was not of commercial regulation or revenue inspection, or by any of the instruments employed in preventive or protective service with which commerce is familiar.
Unless some face shall be put upon these disturbances of our peaceful and honest commerce in one of the most important thoroughfares which I cannot anticipate, this government will look to Spain for a prompt and ready apology for their occurrence, a distinct assurance against their repetition, and such an indemnity to the owners of those several vessels as will satisfy them for the past and guarantee our commerce against renewed interruption by engaging the interest of Spain in restraint of rash or ignorant infractions, by subordinate agents ,of its power, of our rights upon the seas.
You may communicate these views to Señor Elduayen, by reading this dispatch to him and leaving with him a copy.
I am sir, &c.,