Mr. Fish to Mr. Lopez Roberts
The undersigned, Secretary of State of the United States of America, has the honor to acknowledge the receipt of the two notes which Mr. Lopez Roberts, the envoy extraordinary and minister plenipotentiary of Spain, did him the honor to address to him on the 17th instant. One of these notes incloses copies of a correspondence between the Spanish consul at New York and the district attorney of the United States for the southern district of New York, in relation to the steamer Hornet.
In transmitting this correspondence Mr. Lopez Roberts avails himself of the opportunity to make certain comments upon the conduct of some of the officers of the United States towards that steamer. If the undersigned correctly apprehends the purpose of that note of Mr. Lopez Roberts, its complaints relate to acts said to have been done, or omitted to be done, at two distinct periods. Those first complained of are charged as happening about the time when the correspondence took place between the Spanish consul and the district attorney. The remaining charges relate to matters that took place prior to that correspondence, and which have no connection with it. With regard to the first complaint, it would appear, from the correspondence transmitted [Page 786] by Mr. Lopez Roberts, that the Spanish consul at New York, on the 8th instant, informed the district attorney for the southern district of New York that, in compliance with a supposed intimation or suggestion from the Secretary of State, he called his attention to the steamer Hornet, that that steamer had been formerly employed in illegal expeditions against Cuba; that she had been libeled for this at Wilmington; that on the 7th day of June last, bonds were given for her discharge, and she was released: that she was then brought to the port of New York; that the Spanish consul again made complaint against her, and she was again seized and libeled on the 6th day of October last; that, application being made for her release, a hearing was had before the court, in which the Spanish consul took part; that, as the result of that judicial hearing, she was again released; that the consul, at the date of his letter, had information, on which he relied with perfect confidence, that the steamer was being fitted out in the port of New York for the purpose of proceeding to sea, and there taking on board military expeditions from Nassau and Key West, and conducting them to the coast of Cuba; that he thought his note to a local prosecuting officer as “sufficient to call for the exercise of the ample preventive power of this Government against the departure;” and that he left in the hands of that officer the responsibility of permitting the vessel to proceed.
The district attorney appears to have replied to this note, on the same day, that there was no proof or evidence in it which would authorize him to seize the Hornet, or to take any steps beyond those which he had already taken; that he had caused a rigid scrutiny to be exercised in order to prevent the Hornet from taking on board anything indicating hostile intentions; that he had been advised that it was the purpose of that vessel to clear for Nassau; that he could not act legally on mere surmise; but that, if proper evidence were furnished, he would take any steps necessary to prevent violations of the laws of the United States.
It is further charged in Mr. Lopez Roberts’s note that the steamer Hornet on the same day put to sea, without such steps “having been taken to prevent her departure as should have been dictated by the circumstances and criminal antecedents of the aforesaid vessel.”
The undersigned has the honor, in reply to this portion of the first note of Mr. Lopez Roberts, to say that it appears from this correspondence that the Hornet, having been seized on the complaint of the Spanish consul only two months before the date of the correspondence, and a hearing in which the Spanish consul took part having resulted in the discharge of the vessel, no subsequent proof, or anything in the nature of legal evidence other than a repetition of that which had already been passed upon by the court, and been decided to be insufficient for the detention of the vessel, had been furnished by the consul, or by any other Spanish official; that, nevertheless, the district attorney offered to again take steps to detain the Hornet, if proof were furnished which would warrant him in so doing, which proof was not furnished.
The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law. Although it appears to the undersigned that in this case the district attorney complied with his duty, and would not have been justified in [Page 787] taking steps for the seizure of the Hornet in December, on the unsupported representations of the consul, after the failure of that officer to furnish the requisite proof to authorize her continued detention, yet, as Mr. Lopez Roberts seems to think that there may have been a dereliction of duty, the undersigned will transmit to the head of the Department of Justice, to whom the district attorney for the southern district of New York is subordinate, a copy of Mr. Lopez Roberts’s complaint, and of the correspondence inclosed in his note.
The undersigned, in taking leave of this branch of the subject, invites the attention of Mr. Lopez Roberts to the inaccuracy of the Spanish consul at New York, when he states that “the Secretary of State of the United States has informed his excellency the minister of Spain that all complaints or information in respect to violations of the neutrality laws of this Government, to the prejudice of the lawful authority of Spain, shall be presented to you, (the district attorney,) as the prosecuting officer of the United States.” It is undoubtedly true that the undersigned did request Mr. Lopez Roberts, for convenience in the judicial proceedings which might be begun, as well as to secure promptness of action in the courts when necessary, to say to the consuls of Spain that they would be authorized to lay before the prosecuting officers of the United States, without previous transmission to the undersigned through the Spanish legation at Washington, any legal proof of a violation of its laws that might be in their possession. The undersigned was thus able to show to the government of Spain that the United States would omit nothing that could be reasonably deemed essential to the performance of their duties toward Spain. But it was not the purpose of the undersigned to surrender to these subordinates the respective right and duty of making and receiving all complaints in respect to any alleged violation of the neutrality laws of this country, to the prejudice of the lawful authority of Spain. Such a proceeding would not have accorded with the dignity of this Government, or with the respect which it entertains for its ancient ally and friend. It is also reasonable to conclude from the transmission of this note to the undersigned, that Mr. Lopez Roberts regards the subject in the same light, and that when he inclosed in his note a copy of the consul’s letter, he failed to consider with his usual care the latitude of its signification.
The remainder of the note, to which the undersigned is now replying, is devoted to a criticism upon the conduct of the Government of the United States with reference to the previous career of the Hornet. The second note of Mr. Lopez Roberts, of the same date, is devoted to the examination of the conduct of this Government toward certain other vessels and persons charged with past violations of the neutrality laws of the United States connected with previous alleged expeditions against the island of Cuba. The undersigned proposes to treat these subjects together.
Mr. Lopez Roberts claims that he has shown by satisfactory proof that the vessels known as the Perit, the Catherine Whiting, the H. M. Cool, the Jonathan Chase, the George B. Upton, and the Hornet, have been engaged in aiding the insurrection in Cuba, in such a way as to violate the laws of the United States known as the “neutrality laws.” He also says that in his judgment the owners of all vessels who, “knowing the purpose for which their property is destined, load them in order to break the laws established for the maintenance of the duties of international neutrality, should be made to feel the legal consequences of their conduct in the improper employment of their property.” He further gives the names of sundry persons who, in the city of New York [Page 788] and elsewhere in the territory of the United States, are said to have aided and abetted in alleged violations of the laws of the United States in one or more of these expeditions. With regard to most of these persons, he sets forth with some detail a variety of acts, which were said to have been committed prior to the 12th day of October last.
It would also appear, from the statement of Mr. Lopez Roberts, that some efforts have been made by Spanish officials to induce the district attorney for the southern district of New York to proceed against some of these vessels or persons, and that he has decided that, in some of the cases, no proceedings can be had, for technical reasons that are stated in Mr. Lopez Roberts’s note, and that, as to the individuals named, no proceedings can be maintained, because it is supposed by him that under the operation of the proclamation of the President of the United States, dated October 12, 1870, all offenses against international or municipal law referred to in the proclamation were pardoned or condoned.
He also complains, in the case of the Hornet, that the proceedings which were begun against that vessel at Wilmington were not prosecuted to final judgment and execution; and he adds that, “if the Federal Government had given the necessary orders for it to be continued in the courts of justice, it is not to be doubted that, at the present moment, the steamer Hornet would not be about to commence new and criminal adventures.”
He complains of the restitution of the Hornet as “an incomprehensible act of neglect.” He says that while he “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 such an indulgence * * * tends to preserve and encourage the state of things in New York relative to expeditions against Cuba.”
It would be a sufficient answer for the undersigned, in reply to these portions of Mr. Lopez Roberts’s notes, to say that his very proper disclaimer of a purpose to interfere in the administration of the laws of this country in that which relates to past offenses against neutrality, renders all these statements irrelevant. So long as the rights in the domestic tribunals of the United States which are secured to the subjects of Spain by treaty are not invaded, and so long as the officials of the United States manifest the readiness which they have ever shown to prevent attempted violations of the laws enacted to enforce their international obligations, a criticism upon the conduct of the courts of the United States in the treatment of persons charged with past offenses could not but be regarded as a step beyond the recognized bounds of diplomatic correspondence. It may not, however, be improper, while accepting the disclaimer of Mr. Lopez Roberts, to indicate to him the leading motives which prompted the benevolent act of the President and the merciful policy of this Government.
A fierce and sanguinary conflict had been raging for two years in the island of Cuba when the President’s proclamation of October 12 was issued. That this conflict originated in a sense of wrongs sustained through a long series of years of misgovernment prior to the outbreak of the late revolution on the Peninsula, would probably not be denied by the eminent men who were at the head of that revolution. On the contrary, it is understood that they have been free in the expression of their regret that the Cubans would not trust the remedy of their undoubted grievances to the hands of the liberals of Spain.
In the prosecution of this contest several decrees were made by the [Page 789] Spanish authorities which interfered with, or threatened to interfere with, the rights of citizens of the United States. The United States took occasion in advance to express their dissatisfaction with such decrees, and to point out how they might conflict with the rights of their citizens.
In the progress of events the sympathies of large portions of the people of the United States naturally became interested in the struggle to throw off a political connection which had entailed upon Cuba an onerous system of taxation, and which had deprived it of its autonomy. This natural feeling was increased and vivified, when it became known that the insurgents were farther contending for a cause for which the American people had themselves suffered so much—the abolition of African slavery.
The Government of the United States felt constrained by its international duties not to permit itself to be controlled by this popular sympathy. The authorities of Spain denied that the insurrection possessed that civil and political organization, and that probability of success, which would require the other national powers to accord to it the right to carry on a recognized war, and this Government admitted that such was the case, and has continued so to regard it up to the present time.
In the course of the struggle, as had been foreseen, the rights of citizens of the United States were affected by the steps taken by the Spanish authorities to crush the insurrection. It being found inconvenient to refer all such cases to Madrid, Mr. Lopez Roberts was, upon the request of this Government, authorized to settle by agreement with the captain general of Cuba, without consulting the Spanish government, questions arising with this Government or its citizens, from the circumstances through which the island of Cuba was passing, except in cases of disagreement with the superior authority, or in a case of such gravity that, in the judgment of Mr. Lopez Roberts, it might require previous consultation with the government.
Under the operation of this regulation, various representations were from time to time made to Mr. Lopez Roberts by the undersigned, and questions were thus amicably adjusted, until the power was withdrawn by the government at Madrid, “in view,” as the undersigned was afterward officially informed, “of the favorable situation in which the island of Cuba then was.”
It was understood here, both from representations made to the American minister at Madrid, and from the views repeatedly expressed by the Spanish minister at Washington, that the “favorable situation” referred to was the supposed extinction of an organized armed resistance to Spanish authority in Cuba.
The President did not and would not suppose that the government of Spain would lessen the means of protection to the persons and properties of citizens of the United States in Cuba, which it had extended during the insurrection at the request of this Government, unless it was convinced that the insurrection, which made it necessary, had virtually ceased. He could not and would not assume that a government which had maintained such friendly relations with this Government would voluntarily do so unfriendly an act as to withdraw, without notice, the powers conferred upon Mr. Lopez Roberts at its request, unless it was convinced that the necessity for them had ceased in consequence of the suppression of the insurrection He was pleased to believe that, in the opinion of the Spanish government, the danger from the insurrection was over; that the time for milder measures had come, and that the blessings of peace were to follow. It did not appear to him that the restraints [Page 790] upon the commerce of the United States and upon the free movements of their citizens—measures which had been taken because the maintenance of the obligations of the United States as one of the family of nations appeared to require them—should be longer imposed. It did not seem to this Government that good could come from continuing preventive, much less punitive proceedings against individuals or vessels, when the cause which prompted the alleged illegal acts was supposed to have disappeared. It was believed to be in harmony with the humane policy which has characterized this Government, that a suspension of the rigid prosecutions of offenses (partaking of a political character) growing out of a sympathy with a political struggle in a neighboring island, might well take place. It was hoped that the benevolent example of the United States in this respect might, perhaps, be reflected in the policy of Spain toward Cuba. It was believed that the reforms which had been so often promised to the representative of the United States at Madrid were about to be granted; that the blot of slavery would disappear; that the right of colonial self-government would be given to the island; that the burdensome system of taxation would be abolished, and that, peace being restored, all the desired reforms being granted, and amnesty and pardon being given, the Government of the United States would be relieved from the disagreeable duties which it had performed for about two years.
Mr. Lopez Roberts will find in these considerations an evidence of the generous purposes and desires of the Government of the United States toward his government and toward the island of Cuba, and its logical action in reliance upon the promises and the representations of the Spanish government, and of its esteemed representative to this Government. He will permit the undersigned also to say (in reply to his suggestion that these persons have been stimulated and encouraged by the indulgence hitherto shown them by a benevolent government) that it seems to the undersigned that they have found their encouragement and their stimulus, not in the humane course of this Government, but in that love of liberty and in that sympathy with communities struggling against oppression, and for freedom, which is the portion of all generous natures; and that such stimulus and encouragement will fail them when Spain shall imitate the benign policy of the United States.
Mr. Lopez Roberts also does the undersigned the honor to quote with approval, from a dispatch from the undersigned to Mr. Motley, the following passages:
We hold that the international duty of the Queen’s government in this respect was above and independent of the municipal law of England. It was. a sovereign duty, attaching to Great Britain as a sovereign power. The municipal law was but a means of repressing or punishing individual wrong-doers; the law of nations was the true and proper rule of duty for the government.
But the Government of the United States has never been able to see the force of this alleged difficulty. The common law of England is the common law of the United States. In both countries, and certainly in England, revenue seizures are made daily, and ships are prevented from going to sea on much less cause of suspicion than attached to the suspected ships of the confederates.
The undersigned receives with great satisfaction this official adhesion of Spain to the doctrine that in time of war it is as well the right as the duty of the non combatant powers to maintain a neutral position—a doctrine of which the United States were the earliest, and have remained the most consistent, advocates. In the first stage of their national history, they suffered from the unlawful attempts of other belligerent powers to force them from the neutral attitude which they had the right to maintain. In a later and more trying period, they were injured by the [Page 791] neglect of other powers to preserve their neutrality when they themselves were in a state of war. It is a satisfaction to feel that the position which they have maintained when they were at peace, and claimed when they were at war, is gaining ground on the continent of Europe.
The intelligence and acumen of Mr. Lopez Roberts cannot have failed to notice that these doctrines were applied to a condition when a state of war was recognized by the neutral; that the whole of the context of the argument from which Mr. Lopez Roberts has done the undersigned the honor to excerpt the passages which are quoted above, relate to a recognized condition of war, and that the grievances complained of by the United States in the dispatch from which the quotations are made were the acts of a government which had formally recognized a state of war between the United States and their armed opponents.
To make the doctrine of the passages which have been quoted applicable to the relations of Spain and Cuba, the former must acknowledge a state of war between herself and the inhabitants of Cuba which other nations may recognize.
The undersigned has not heretofore understood that the government of Spain had yet recognized, or was yet willing that the other powers should recognize a state of war as existing in the island of Cuba, but the application which his excellency the minister of Spain endeavors to make of the position in which the United States acknowledged to have found themselves after that several powers, including Spain, had accorded the rights of belligerents to their revolted citizens, induces the undersigned to inquire whether Spain now regards her position toward the insurgents of Cuba the same as that which the United States occupied toward their insurgent citizens at the time of the occurrence of the acts complained of in the dispatch from which Mr. Lopez Roberts has quoted.
The undersigned avails himself of this occasion to renew to Mr. Lopez Roberts the assurance of his very high consideration.