Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1875, Volume II

No. 581.
Mr. Cushing to Mr. Fish.

Legation of the United States,
Madrid, December 5, 1874. (Received December 24.)

No. 177.]

Sir: I inclose herewith translation of an official note from the minister of state, together with translation of a private note, both delivered at midnight of Thursday, the 3d instant.

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I content myself, at present, with calling your attention to certain expressions in the private note which tend to show that, while Mr. Ulloa considered it his duty to argue his side of the question in response to my several notes, nevertheless, in his understanding of the matter, the acceptance of his proposition, with such ultimate modification of it as you may propose, will constitute a definitive settlement of the whole controversy.

In fact, when taking into consideration the very positive tone of some of my notes to Mr. Ulloa, it seems to me that this note of his, constituting argumentative response to all mine, deserves to be regarded as calm and temperate in spirit and language, and conceived in the purpose of not keeping alive the controversy.

I have, &c.,

C. CUSHING.

[Inclosure in No. 177.—Translation.]

Mr. Ulloa to Mr. Cushing.

Ministry of State,
Madrid, December 3, 1874. (Received December 3—12 night.)

Sir: On the 14th of August last, while answering the note which you were pleased to address me under date of the 21st of July, I had the honor to set forth to you the reasons which, against its will, prevented the Spanish government from satisfying, at that moment, the desires of the Government of the United States, by giving a definitive reply to the reclamations presented by you in consequence of the seizure of the steamer Virginius on the coast of Cuba. Among the causes of that enforced delay, the principal ones were the necessity under which the government was of hearing the authoritative opinion of the high consultive bodies of the state concerning such an important matter, and of completing in this ministry the detailed study of all the antecedents, with certain data, of which I awaited the collection, in order to form the exact and impartial judgment I desired before adopting a definitive resolution.

All the procedures which were counseled by the most careful prudence and by the desire to form a sound opinion having been followed, the Spanish government has now the satisfaction to answer with completeness the notes from your legation dated 26th and 27th of June, 21st of July, and 24th of September, of this year, and even the last, of the 30th ultimo, which has recently reached my hands, taking up the principal points of each, and of which I was not able to treat with the necessary opportuneness for the reasons indicated.

It is impossible to ignore the extremely grave importance attaching to this question, known as that of the Virginius, or the responsibility which the governments of Spain and of the United States have contracted in the eyes of their respective countries, taking upon themselves to acquire knowledge of the facts and submitting the settlement of their differences to the attentive examination of the executive power, the zealous but dispassionate guardian of the honor and of the rights of the nation which it represents.

Fortunately, everything leads to the hope that both the government of Madrid and the Cabinet at Washington, inspired solely by the purest sentiments of justice and of equity, have no insuperable obstacle to encounter in reaching an honorable agreement worthy of the two great nations, who have been ever united by the closest ties of friendship, and who equally contemplate in their progress and in a lasting peace the realization of their present welfare and their aspirations in the future.

But still, in order that one and the other government, starting from so lofty a point of view and without abandoning the defense of the high interests which they have in charge, may succeed in coinciding in a solution equally acceptable to all, it would be necessary that the one as well as the other, yielding somewhat of that which they may deem to be of strict right in their pretensions, or which they may hold to be unquestionable in their own estimation, should hasten to seek in equity and in general expediency the honorable and satisfactory decision which the inflexible precepts of strict or absolute justice could not vouchsafe to them without laborious efforts, and, perhaps, without painful moral sacrifices.

The Spanish government, anxious to succeed, by all legitimate and decorous means, in putting an end to such vexatious differences, will, for its part, not shrink from making those concessions and renunciations which do not imply abdication of the sovereignty and independence of the nation, or which might be construed as an abandonment of the national dignity, provided that the Government of the United States, nobly co-operating to the same end, is disposed to make equal concessions under like reservations.

This solemn controversy being thus set upon practical ground, mutually advantageous from the point of view of a speedy and satisfactory conclusion without detriment to our respective national interests, nothing could supervene to hinder the realization of the friendly desires which animate alike the Spanish government and that of the republic of the United States, and their present governors would win the enviable honor of having brought to a happy conclusion this laborious conflict, without disturbance of the good relations which have ever existed between the two peoples, but rather strengthening the ties of amity and of cordial understanding which unite them.

The Government of the United States insists that it has never recognized the right of other powers to detain and visit, in free seas and in time of peace, the vessels which may carry the American flag, and that, relying upon the inflexibility of this principle, it is bound to consider the seizure of the Virginius as illegal and in violation of the international practices admitted among cultured nations.

Without pausing to examine how far it is expedient to attribute this inflexibility to international principles and rules which do not directly emanate from the immutable principles of right, and which need the sanction of time, of universal custom, and of general and explicit consent of nations, it will be sufficient to observe that the right of visit, by its own nature, is one of those which have been most subject to the vicissitudes of the times, to the influence of progress, and to the development of maritime commerce, rigor in its application having been always dependent upon circumstances, as it could not otherwise be. Referring ourselves only to the modern epoch, we see the United States combating it tenaciously prior to 1842 with respect to the abolition of the slave-trade, imposing their prohibition subsequently in the Ashburton treaty, yielding under certain conditions in 1861 for reasons which affected social interests of magnitude, and agreeing, lastly, to maintain a cruiser on the coasts of Africa to visit and search the vessels of the Union. I mean, by this, that whatever may be the rigor with which the United States assert the maintenance of that prohibition, nothing has opposed, or is likely to oppose in future, the modification of its conditions according to circumstances, an inflexible rigidity not being essential, as it is not for the objects of the precept. Laudable is the object for which the right of search is denied in time of peace; plausible and meritorious is the desire to protect the freedom of the seas from the abuses of force, and to shelter the commerce of all nations from the vexations and the prejudices which might be inflicted thereon by the arbitrariness of the stronger power. But shall we not find some practical inconvenience in the exaggerated limitation imposed upon this right of visitation? Could there not be conflict among the principles that support and recommend it, and other legitimate rights which merit consideration, and which ought not to suffer or be disparaged?

The right to inquire the nationality of a merchant-vessel, and even to board it in certain cases, on the high seas, has been always regarded as a means of exercising maritime police, and of protecting the security of commerce between civilized nations. But as the right of visit is a limitation set upon the freedom of the seas, which not only does not restrict it, but rather guarantees and protects it, the exaggerated and narrow conditions to which the United States seek to reduce it might result in converting the seas into a secure and inviolable asylum for the wrong-doer, who would choose that element as the field of his criminal undertakings. It is not to be deduced herefrom that, at any time, and for all motives whatsoever, the right of visit should be permitted as may suit the arbitrariness or the convenience of the war marine, but neither does it appear rational to exclude it decisively and absolutely under all circumstances, except during a state of war and between belligerents recognized as such. Neither natural law nor the law of nations can authorize, nor the independence of nations permit, that the enemies of a sovereign state can, with impunity, navigate the hiuh seas, carrying soldiers and resources to the hosts of an enemy without the country menaced by such an invasion having the privilege of disturbing them, provided that they sail under the protection of a neutral flag and warily keep at a distance of three miles from the coast, even though it be known and demonstrated evidently that the object of their presence upon the sea is aggressive and hostile. An unconditional and absolute prohibition would, moreover, restrict, if not completely annul, the right of self-preservation and of self-defense, which is a right with respect to other countries, and one of the most solemn and sacred of the duties of any state with relation to its citizens; or, as the eminent English jurisconsult, Phillimore, says,^* it “is the first law of nations, as it is of individuals. A society which is not in a condition to repel aggression from without is wanting in its principal duty to the members of which it is composed and to the chief end of its institution.” The same writer and others, Wheaton, Halleck, not less illustrious among the American authorities, concede to the right of defense the first place above all other rights, and agree that it is pre-eminent and superior to that of the inviolability of territory; so that in case of conflict it should be the first to be sustained, even though at the expense of the second.

If we consider the prudent and sufficiently guaranteed exercise of the right of visit (a right of which the United States themselves have at times made use under grave circumstances) as the only measure capable of preventing, in given cases, the perpetration of unlawful attacks against the security of a legitimately constituted state, it should not be governed by the intransigence and the inflexibility which it is sought to attribute to an international law having for its supreme object the protection of the liberty of commerce in good faith and the free transit of the seas. And, in any case, it does not seem just to appeal to the inviolability of such a principle, in order to cover with an immunity established in favor of peaceful and honest commerce, the criminals who carry war and desolation to the hospitable shores of a friendly power, and which would even extend to pirates, in whose extirpation all the nations of the globe are interested. And when legitimate governments, accidentally engaged in stifling an intestine rebellion, are deprived of the power of detaining a well-known vessel which, setting sail from a foreign port, goes to consummate a piratical enterprise, pompously and insolently announced beforehand by the filibuster press, to what sort of recourse or to what manner of preventive measures would it be lawful to resort?

If, on the other hand, we pause to deduce the necessary consequences which flow from this prohibition so energetically sustained by the Government of the United States, it would result that, in the concrete case of which we are treating; the Cabinet of Washington would have nothing to object to in the fact of the visit of the Virginius by a Spanish cruiser on the high seas, if the insurrection which exists in the island of Cuba were a formal war solemnly declared, while now it finds cause to reclaim and protest with all its might in the case of a measure, executed by the legitimate government of an allied nation, recognized as such, against its rebellious subjects. In this manner, although against the will and the best intentions of the American Government, it would admit of demonstration that the duties which international law imposes on the Cabinet of Washington, supposing belligerency between the Spanish troops and the rebels risen in arms, would be more directly obligatory upon it, and would be more efficacious in their means and results, than those which are demanded, apart from a state of belligerency, by good international relations, by the maintenance of domestic peace, and by the legitimate and justifiable repression of subjects in insurrection against the mother-country.

As you will observe, the indiscreet limitation of the right of visit, apart from other extremely serious inconveniences, would establish an odious privilege against the neutral vessel in time of war and in favor of the private aggressor, conceding to the latter an immunity which the former does not enjoy. The melancholy history of the Virginius was but too well known throughout Spanish America, and the recollection of her piratical enterprises was still fresh in the memories of the inhabitants of our Great Antilla. Registered in 1870 in one of the ports of the Union, and authorized thereby to fly the American flag, she subsequently abandoned the United States and entered first into the service of the republic of Venezuela, and afterward into that of the chiefs of the Cuban insurrection, at whose cost she carried, although not always with equal good luck, men, arms, horses, and munitions destined to support the fratricidal struggle which drenches in blood that lovely province. And here we must add, with regret, that the repeated piratical excursions of the Virginius were carried into effect without being reached or impeded either by the denunciations and reclamations of the representatives and consular agents of Spain in America, or by the protests of public opinion astounded before the impunity with which were realized attempts of such magnitude against public peace and morality and in violation of the most elementary duties imposed upon states by the sincere maintenance of good relations between friendly powers.

Neither is it needful to recall the attendant circumstances that occurred in her criminal expeditions, in which she displayed the chimerical flag of the republic of Cuba, nor that which took place at Curaçoa, and at Puerto Cabello, nor that which happened at A spin wall, nor the unscrupulous protection which, through error doubtless as to her true nationality, was afforded to the Virginius by the American officials, and especially by Captain Reed of the United States steamer Kansas. Purchased finally by the so-called insurgent general, Quesada, she was in an evil hour sent to carry to Cuba the luckless expedition arrested and disembarked at Santiago.

This was the vessel for which the commander of the Tornado was watching near the Cuban coast, and which the newspapers and the filibuster sympathizers of New York had saluted with emphatic speeches and with enthusiastic cheers when she left the shores of the Hudson. The course on which the Virginius was sailing, her sudden change of course on sighting the corvette Tornado, and the precaution of casting overboard during her flight various articles of the cargo, left no room for doubt as to the identity of the filibuster steamer. There was no question, therefore, of a simply suspected vessel, the search of which might have presented more or less probabilities respecting her ownership and the inoffensiveness of her intentions. There was no possibility of an error which might have resulted in the inconveniences and the unwarranted prejudices of an inutile detention. It was a foregone conclusion, and the result proved it.

After the official declaration made by the Government of the United States, in conformity with the opinion of the learned Attorney-General, in which that worthy magistrate stated that the Virginius, at the time of her capture, carried the American flag illegally, it would be idle to pause to examine the question of the flag, already officially decided by the Government of Washington, in view of the numerous testimonies and proofs presented by the minister plenipotentiary of Spain, Señor Polo.

Given this state of things, it is clear that no offense whatever could have been committed against the American flag in the detention and seizure of a vessel which carried it at her mast-head unduly and without right thereto, and in virtue of an illicit and punishable fraud. Nay, more, still less could an injury have been done, by the act of seizure, to the crew and passengers, since they were not protected at that time by any legitimate and recognized flag, and, therefore, application could not be made to them of the legal fiction that the deck of a vessel in free waters constitutes a part of the territory of the nation to which she belongs.

It being proved to the satisfaction of the United States that the Virginius was not American, the query is suggested as to what may be the nationality of a ship which carries no legitimate flag and is not in possession of legal documents to accredit her character. All mercantile legislation and naval ordinances deny in general to foreigners the right to acquire merchant-vessels within the territory, and even the right of commanding them, without being subject to certain conditions. So, therefore, the Virginius can have no other nationality than that of her owner.

In the preamble to the important document subscribed by the Attorney-General, to which I have already made reference, after citing the declarations of several individuals who affirm that that vessel was the property of the Cuban Quesada, the worthy magistrate adds, textually: “Nothing appears to weaken the force of this testimony, though the witnesses were generally subjected to cross-examination; but, on the contrary, all the circumstances of the case tend to its corroboration.” It is, moreover, confirmed by the numerous documents and affidavits presented by our minister in Washington, without anyone having a doubt, that the Virginius was acquired by the so-styled General Quesada, and probably, also, by several other insurgents, likewise sons of the island of Cuba, who paid for the vessel out of their own resources.

The question, therefore, respecting the ownership of the Virginius, which had at first presented itself as the occasion of lengthy and vexatious debates in the diplomatic field, has lost its gravity, and now offers itself to the consideration of the two governments interested under the simple proportions of a question of law.

It would be derogatory to your recognized erudition to remind you of the legal principles by which persons and things found within the territory of an independent and sovereign nation are subject to its jurisdiction wherever found, whether upon the ocean or in foreign dominions, without there existing the least exception to this rule respecting the subjects of the country. Spain, consequently, has not violated any foreign right in capturing on the open seas, by means of one of her naval vessels, a ship of which the ownership belonged to one or more of her subjects, without the party making the seizure incurring any responsibility other than that which may be required of him by his natural chiefs, conformably with the domestic laws of the country.

From what I have thus far brought to your attention, I believe that I have shown:

1st. That in the act of the seizure of the Virginius, Spain violated no foreign territory, since she effected the capture in that which is considered common to all nations; that is, on the high seas.

2d. That she has not compromised the free navigation of the seas, since her cruiser set out in search of the Virginius, and had no necessity for detaining her or visiting her before the seizure, since the maneuvers of the latter upon sighting the Tornado, her change of course, her casting her cargo overboard during her flight, and other circumstances strongly suspicious, confirmed the belief that she was the awaited filibuster vessel.

3d. That Spain has caused no prejudice to maritime commerce, since the Virginius was not a vessel dedicated to lawful traffic, but to the illicit and punishable transportation of contraband of war, destined to assist the insurrection in Cuba, and that her ownership could not be legally claimed by a third power.

The examination as to the seizure of the Virginius having been submitted to the competent tribunal, the judgment declaring her good prize is still pending the report of the council of state, and, as soon as it receives the approbation of the government, I shall have the honor to acquaint you therewith, in order that you may be pleased to request the appropriate instructions from the Government of the United States with respect to the restoration of the vessel in question, or the payment of her value in case she shall have disappeared, to our representative in Washington, in consequence of the declarations of the American Government with respect to her nationality, to the verdict of the prize-court, and to having fulfilled the object and conditions with which she was surrendered by the authorities of Cuba to the Government of the United States.

We have now to examine the status, in the eyes of the law, of the persons of different nationalities who were found on board of the Virginius when she was captured.

The Government of the United States rejects the qualificative of “pirates” which has been applied to them in official documents by several Spanish functionaries; and you yourself, in your note of the 24th of September, not merely find it erroneous and inexact, but hold it to be absurd. This is not the most opportune moment in which to trouble your attention by burdening this long note with citations and texts from eminent authors, with which I might, perhaps, succeed in proving the contrary, founding my reasoning upon the important modifications introduced by international law on this point. It is true that the older writers, in the first dawnings, so to speak, of science, considered as essential certain circumstances and the concourse of determinate acts to qualify as piracy the offenses consummated on the seas, and which constituted the dividing-line between the corsair and the pirate. One of those circumstances was the most characteristic, the animus furandi, proved in the crew of the vessel, and there were others which it is not necessary to recall. According to modern international law, which is less casuistical, no doubt, it is sufficient to accuse a ship of the crime of piracy that a purpose be proven on the part of her officers and crew to destroy the shipping of foreign nations which are not at war, to cast their cargo overboard or sink it, and to devastate the coasts of a country, not animo lucrandi, or with intent to profit by such damage, but to satisfy the hatred or the vengeance of the aggressor, or with other equally criminal purpose. Such is the point of view of modern writers, even among the most uncompromising paladins of the freedom of the seas, such as Baron Cussy, Pinheiro, Bluntschli, Ortolan, and others. So, therefore, we may today qualify as piracy any violence whatever committed on the sea, or immediately adjacent thereto, by persons who do not represent any known state or nation, it being sufficient in this relation that the sea be the theater of the crime for international law to consider its authors punishable at the hands of any independent state.

The expedition of Narciso Lopez in 1850, which is well known to all, and which in many respects has great analogy to that of the Virginius, merited, jointly with the reprobation of all sober-minded men, the qualification of being a declared act of piracy; and in the English Parliament Lord Brougham, inquiring of the government if the fact announced by the press was true, expressed the desire that condign punishment should be imposed upon those execrable pirates, because, added the honorable lord, these persons are pirates. In the same opinion Lord Aberdeen concurred in the House of Lords and Mr. Disraeli in the House of Commons.

In this way also it was regarded, in the light assuredly of modern doctrine, by a most worthy and learned authority, to whom no one, and, least of all, the Government of the United States, can take exception—the honorable Mix Seward, formerly Secretary of State. This estimable officer, in the first two years of the secessionist rebellion which had broken out in the States of the American Union, addressed various official dispatches to the maritime powers, in which he set forth in different forms, and maintained with great store of arguments, that the confederate cruisers were pirates, and should be treated as such by the governments of Europe, a theory which merited, besides, the approbation of the American Congress. The secessionists having been recognized as belligerents by different governments which had not taken into consideration the character of pirates attributed to them by the theories of Mr. Seward, the latter replied, protesting against the recognition, and declaring it to be an act contrary to good relations of friendship, and as a violation of international laws. It is not to be supposed, whatever may have been the sentiments and the duties which impelled the then Secretary of State to combat the secessionist rebels, that he attributed to them the animus furandi, or the exclusive intent of pillage and plunder, which, conformably with the ancient doctrine, are essential elements of the crime of piracy.

I would have wished to succeed in demonstrating to you that the fundamental motive which the Spanish government has had to consider the passengers and crew of the Virginius as pirates is not so very absurd nor so very unreasonable; and that, supposing that in this it had fallen into error, it would have been induced thereto by the weighty opinions of eminent writers and authorities, illustrious by their learning and by the elevated position reached by them in powerful nations, wherein welcome and tribute are paid to ideas of advancement and progress in social and political science.

The terrible consequences which the rash and criminal expedition of the Virginius has had for some of the unhappy persons who were on board—consequences which the executive power could not avert, being unfortunately received in Santiago de Cuba too late by reason of the interruption of the telegraph-lines by the insurgents—could not do less than move the generous sentiments of the Spanish government, so painfully situated between the strict fulfillment of the laws in special circumstances, and the impulses of humanity and of commiseration common to all honorable men, but which should be violently stilled before the imperious voice of duty and the defense of the high interests confided to the public powers.

That duty fulfilled, sentiments of humanity may still recover all their force, and endeavor to seek, not a remedy for an irreparable punishment, hut alleviation and consolation for those persons who, without having had part in the commission of the crime, participate fatally in the terrible consequences of the expiation imposed by law.

The Spanish government, which has very recently proved the sincerity with which it professes these noble sentiments, by conceding a large pecuniary relief to the families of the English subjects captured in the Virginius and executed at Santiago, would fail in a duty of justice if it were not prepared to act in the same manner and in the same proportion with respect to the families of the American citizens who, being captured on the vessel in question, were afterward executed. The indications which, upon this point, I had the honor to make to you in my note of the 14th of August, are a proof that, in conceding that sum to the government of Her Britannic Majesty, that of Spain could not have had the intention of establishing an unjustified preference, nor even a difference, between two nations alike friendly to Spain and with equal claim to her consideration and sympathies. You may, therefore, be pleased to indicate to me your conformity on this point, in order to proceed to the payment of the corresponding sum in the same terms as those accepted by the British government, and which terms are contained in the two inclosures I send to you herewith.

It remains to me to answer, Mr. Minister, the last note which, under date of the 30th ultimo, you have been pleased to address me, and in which you express to me the desire of the Government of Washington to see the fulfillment of the article of the protocol of November 29, 1873.

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I have made answer to the principal questions which have arisen in the matter of the Virginius, and set forth the point of view of the Spanish government, in the confidence that the cabinet of Washington will examine our arguments through the prism of conciliation and of the friendly sentiments which have inspired them, in order that a direct settlement may be arrived at between the two governments. But if, contrary to the hopes of the Spanish government, its desires are not realized, and on the part of that which you so worthily represent in this capital it be deemed that the case be not reached for regarding this affair as terminated, notwithstanding the declarations I have had the honor to make, all of which are favorable to the concord and better understanding of the two countries, then, complying with that stipulated by both nations in the before-cited protocol of the 29th of November of last year, we are prepared to submit the integral settlement of our differences with regard to the Virginius to the arbitration of the powers whose designation respectively corresponds to the Spanish government and to the Government of the United States.

The Spanish government believes it has demonstrated, through my channel, in the present note, the sincerity of its sentiments, and its firm purpose to maintain and draw closer the ties of friendship which bind Spain to the United States. The same sincerity causes it to appeal to the good faith of the United States, hoping that, both with reference to the present question and to the questions which may arise in the future, it will be borne in mind that, doubtless against the will of the Government of Washington, almost all the expeditions launched against the island of Cuba have set out from American ports, and that in the principal cities of the Union there exists a permanent conspiracy against the integrity of our territory, which makes public boast, in the press and in meetings, of its criminal intentions. It is not my object to enter on a discussion as to how far the efficacy of the domestic laws of that country reaches in preventing these aggressions against a friendly people. , If I permit myself to make this observation, which you will appreciate at its just value, it is solely in order to fix the situation, in which we are placed with respect to the United States, and to explain thereby the different conflicts which have occurred between the two nations. To the termination of these differences, once for all, our wishes are directed, and we trust that the same desires will animate the American Government, even though it only consults its commercial interests, which suffer so much by the prolongation of an insensate rebellion, which, notwithstanding the warmth given to it by its sympathizers in foreign countries, has shown its impotency for triumph, being fecund only in evils, perturbations, and ruin for the mother country.

I improve this occasion to repeat to you the assurances of my most distinguished consideration.

AUGUSTO ULLOA.

The Minister Plenipotentiary
Of the United States.

1. Phillimore, International Law, part III, chap. X, paragraph CC, XI, (cc.)