No. 293.
Mr. Fish to Mr. Cushing.
Washington, May 17, 1876.
Sir: I have the honor to acknowledge the receipt of your dispatches 918 and 921 in reference to the case of Burriel.
With your No. 921 is inclosed a note from the minister of state bearing date the 21st April ultimo, informing you that the supreme council of war has declared its competency to have cognizance of the case of Burriel, and has appointed a fiscal and a secretary for its prosecution. The minister, thereupon, says: “With this remains fulfilled, on the part of the government of His Majesty, the obligation which was contracted toward the government of the United States by the aforesaid protocol of November, 1873;” and adds, that the rest remains exclusively in the charge of the supreme council, which will proceed with absolute independence of the executive power.
Although the exact words of the note of the minister of state would seem to imply that the discovery of a tribunal having jurisdiction of the case, and the appointment of a fiscal and secretary, is, of itself, a performance of the obligation assumed in the protocol, it is not apprehended that such was the intention of the minister of state. The protocol of November 29 provided that “Spain will proceed according to the second proposition made to General Sickles, and communicated in his telegram read to Admiral Polo on the 27th instant, to investigate the conduct of those of her authorities who have infringed Spanish laws or treaty obligations, and will arraign them before competent courts and inflict punishment on those who may have offended.” The government of Spain has, as it appears, now only determined on the tribunal before which the parties can be arraigned, and through which proper punishment can be inflicted; and in so doing Spain has, after a delay of two years and a half, taken a preliminary step toward the fulfillment of her obligations by this protocol. I have not learned as yet that any person has been arraigned before the tribunal in question, much less that any investigation has been had or any punishment inflicted. The Government of the United States has been unable to comprehend any good reason for delay, and receives with satisfaction the intelligence that Spain has taken this preliminary step referred to, but it is hoped that it is not intended to be stated that this step so taken is the performance of the entire obligation, and that the government of Spain will appreciate that her obligation is to arraign the individuals who have offended, and to punish those who have violated her laws and treaty obligations.
In order that no doubt may exist on this question, you are instructed to call the attention of the minister of state to these expressions in his [Page 535] note, and to convey the hope of this Government that, after the delay which has occurred in these preliminary steps, the remainder of the obligation will be promptly fulfilled.
While the United States has made no claim that the executive should control the tribunal and its decision, there can be no doubt that the obligation assumed requires that the matter be proceeded with, and, if the parties be found guilty, that they be punished. An initiation of an investigation cannot be a performance.
I am, &c.,