Mr. Lopez Roberts to Mr. Fish
The undersigned, envoy extraordinary and minister plenipotentiary of Spain, regrets to be again compelled to call the attention of the honorable Secretary of State of the United States to the matter of the American steamer George B. Upton, and the filibustering military expedition which, in the month of May last, was conveyed by the said vessel from the port of New York to the island of Cuba. On the return of the Upton to New York, with its officers, crew, and three of the principal promoters of that enterprise, organized and carried out in violation of the laws of the United States, the undersigned had the honor of placing in the hands of the honorable Secretary of State copies of three affidavits made in New York by persons who formed a part of the expedition, in which was shown the true character of the same, and to request that steps might be taken to inflict due punishment not only upon the delinquent steamer, but also upon any individual guilty of having assisted on that occasion in conveying supplies of arms to the insurgents of Cuba.
In view of the observations made by the undersigned, the honorable Secretary of State ordered the matter to be investigated by the district attorney of New York, and in consequence thereof the undersigned caused to be submitted to the examination of the aforesaid authority the three affidavits aforementioned, together with the steamer’s log-book.
The district attorney has not only refused to embargo the vessel, but also to bring any criminal action against its officers or against the promoters of the expedition, who then were and still are within reach of the judicial authorities of his district. He bases his refusal in regard to the vessel on the fact that, since her criminal voyage, she has been sold and is now the property of persons who, as he states, are innocent and honorable men; and in regard to the individuals, on the consideration that, in virtue of the proclamation of the President of the United States of October 12, 1870, all offenses against international or municipal law committed in this country previous to said proclamation, the object of which was to grant pardon or condonation to this class of offenses, are to be considered as pardoned or condoned.
It is important to add that, both in the matter of the steamer and of the individuals, the district attorney did not hesitate to declare his opinion that the testimony presented was sufficient to justify the adoption of the measures requested by the undersigned, and that the transfer [Page 783] of the steamer, if a transfer was really made, to other owners took place with knowledge, on the part of the latter, of its previous guilty career, and of the punishment which, for that reason, threatened it.
The undersigned does not doubt for an instant that the Secretary of State will find in the aforesaid affidavits and in the copy of the log-book of the Upton sufficient proofs that the purchase of the vessel, the selection of its officers and crew, the recruiting and organization of the persons who went on board, the instruction which they afterward received in military drill and their landing as armed troops, the purchase and shipment of arms and munitions of war, and its clearance at the New York custom-house, constituted a military expedition commenced in this country in order to operate against the legitimate authorities in the island of Cuba, and that any person who took part therein should be considered as guilty, the acts of such being punishable by the law of the United States with fine and imprisonment.
In order to show the importance of a decision as to whether all the rigor of the penalty provided by the laws of this Government against crimes so grave as those which characterize the proceeding of the Upton should be applied to the persons principally implicated, such as Dornin, Somers, Brown, Kingsbury, Cisneros, Fernandez, and Muñoz, the undersigned begs the honorable Secretary of State to consider the following circumstances:
1st. Dornin served as second officer, Somers as ensign, and Muñoz as midshipman, on board of the steamer Hornet, which commenced in 1869 to make her preparations at Philadelphia, continuing the same at Queenstown, “No Man’s Land,” on the coast of Massachusetts on Fire Island, near Mautauk Point, and, finally, near the light-ship stationed at the entrance of the port of New York, localities which are all within the jurisdiction of the United States, for the purpose of cruising against the commerce and destroying the property of Spain.
2d. George Brown, at that time belonging to the house of Phillips & Brown, shipping brokers, established at No. 155 South street, in New York, and now residing in said city, was the agent of the Cuban rebels for the procurement of seamen, soldiers, supplies for the vessel, and munitions of war for the aforesaid steamer Hornet; subsequently, on the voyage of the latter to Queenstown, and her return via “No Man’s Land” to the coast of New York, where, at the distance of three miles from the revolving light at Fire Island Inlet, she received from a vessel proceeding from New York in charge of the said Brown, seamen and provisions, and still later, behind Montauk Point, about half a mile from Long Island, she received from a schooner a quantity of coal sent by the same Brown, and soon afterward, from another vessel proceeding from New York, and under the personal direction of Brown, provisions and men, with three officers named Reid, Somers, and Mason, and, finally, more men and provisions from a steamer also in charge of Brown, on a line with the light-ship at the entrance of the port of New York. Proofs are abundant that the said Brown busied himself for more than a year with the greatest zeal and quite openly in the interests of the Cuban junta of New York, and of other persons of equally evil intentions, in organizing and preparing military expeditions in that and other ports destined to operate against the legitimate authorities of the island of Cuba, and thus far he has suffered no punishment.
3d. E. B. Kingsbury, of whom mention has already been made, served as boatswain (contramarstre) of the crew of the Hornet and has his office at No. 155 South street, in the city of New York, at which place Brown’s office was likewise when the latter furnished the equipments of [Page 784] the Hornet and of various other expeditions against Cuba, which circumstance proves that the said individual established himself, with full knowledge of what he was doing, in the very center of the persons who are conspiring in New York against the neutrality of this country.
4th. Cisneros, who embarked on board of the Upton and when on the high seas assumed and exercised military command over the men who were on board, was, together with the so-called General Jordan, chief of the military expedition which left New York in May, 1869, on board of the steamer Perit, and landed the men and cargo on the coast of Cuba. This steamer was the property or was under the orders of Messrs. Spofford, Tileston &Co., of New York, who ordered the captain, in writing, to obey, in regard to the place and manner of effecting the landing in Cuba, the instructions which might be given him by the aforesaid Jordan and Cisneros, who were on board.
Very well, although the said individuals have been for some time in the city of New York, the district attorney has not seen fit to institute criminal proceedings for the aforesaid acts, or for any other of their numerous offenses against the laws of the United States. In order more fully to show what opinion ought to be formed as to whether the persons concerned in the expedition of the Upton ought to remain unpunished or not, the undersigned takes the liberty to state the following facts, viz: One Nicholas H. Sling was the person who directed the movements of the Hornet from the time of her departure from Philadelphia until the moment when she received her last contingent of men and munitions of war at the entrance of the port of New York, when he gave up the command to Commodore Higgins. David A. Telfair, Louis French, Chief Engineer Bichard H. Gibson, Ensign Donald G. Monroe, commander of marine infantry, William D. Phillips, midshipman, and John Lynch, of the crew of said vessel, were indicted at Wilmington before Commissioner Rutherford, for offenses committed in connection with the Hornet, transferred from that place by order of the judge of the court of the district in which is situated Cape Fear, in North Carolina, to the eastern judicial district of New York, and, on the 8th of November, 1869, obliged to furnish bail in Brooklyn for their appearance for trial in one thousand dollars each, and yet, notwithstanding the notoriety of these acts, no steps have been taken to indict those who committed them before a grand jury, or to cause them to feel in any way the consequences of their criminal deeds. The undersignod is far from wishing to make any suggestion which could be interpreted as an interference in the administration of the laws of this country in that which relates to past offenses against neutrality, yet he cannot avoid the conviction that the Secretary of State will agree that an indulgence like the one shown toward the individuals last named, and which the district attorney proposes to observe toward the culpable participants in the expedition of the Upton, tends to preserve and encourage the state of things in New York relative to expeditions against Cuba, which, as the undersigned believes, is deplored by this Government no less than by that of Spain. With regard to the principal delinquents on board of the Upton, long known as violators of the law, it certainly seems as if they had been stimulated and encouraged by the indulgence hitherto shown them by a benevolent government. In the judgment of the undersigned, observations like those which have just been made with respect to individuals, are applicable to the determination of the district attorney not to proceed against the Upton. The circumstance of there being new owners, who purchased it with full knowledge of the prosecution which threatened it, should certainly [Page 785] not be sufficient to set aside the culpability of the vessel, which was engaged in conveying a filibustering expedition against a nation friendly to the United States, causing the loss of many lives, and the destruction of many interests and much property. It is evident that the agents of the insurrection in Cuba, who have fixed the base of their operations in New York, need transport-vessels for the conveyance of military expeditions. If these vessels are purchased by the guilty parties and become the property of the conspirators, every consideration of justice requires that they should suffer the loss of their property, and that they should be so far prevented from engaging in future enterprises of this kind. And if there are masters of vessels who, knowing the purpose to which their property is destined, (as happened in the case of the Perit,) load them in order to break the laws established for the maintenance of the duties of international neutrality, they should, in the judgment of the undersigned, be made to feel the legal consequences of their conduct in the improper employment of their property. This Government has shown itself indulgent toward the Perit, which conveyed Jordan’s first expedition; toward the Catharine Whiting, the H. M. Cool, the Jonathan Chase, steamers which aided in the Ryan expedition, and toward the Hornet, which was detained, first at Philadelphia, afterward at Wilmington, North Carolina, and for the third time in New York, in October, 1870.
Not one of these vessels has been brought to trial, although all have been detained, with the exception of the Perit, the respective district attorneys under whose jurisdiction they came consenting that they should be set at liberty.
The undersigned avails himself of this occasion to reiterate to the honorable Secretary of State the assurances of his highest consideration.