No. 741.
United States Consulate,
Santiago de Cuba, November 16, 1873. (Received December
2.)
[Original handed to the Secretary of State by the
Secretary of the Navy, December 2, 1873.]
Commander Cushing to Mr.
Robeson.
Sir: As a steamer is unexpectedly about to
leave here for Havana in an hour’s time, I write this at the
consulate, as I have not time to go off to the ship anddo so, I left
Aspinwall on the morning of the 11th
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instant, in consequence of urgent telegrams
from the United States vice-consul in Santiago. He represented the
urgent need of a man-of-war, and had received no answers to his
dispatches to the consul-general in Havana. He described the
shooting of the captain and a large portion of the crew of the
Virginius, and said that more American lives were in immediate
peril. I deemed it my duty, therefore, to take the responsibility of
coming here.
The trial took place before a drum-head court-martial, ordered by the
commanding general of this department, and fifty-three men were
summarily shot.
There are more in prison who are subject to the same fate if tried.
Our vice-consul was treated with great disrespect by the Spanish
general when he made his protest. I inclose herewith a copy of
letter that I have to-day sent to the commanding general. I will
send all correspondence by the next opportunity. The court-martial
and shooting were authorized on the sole responsibility of the
general to whom I have written. The British steamer Niobe is here,
and has demanded that none of the British citizens that are
imprisoned shall be executed until the whole matter is investigated
by the higher powers. 1 shall await the orders of the Department,
and protect American citizens in the best manner that is possible.
Ido not think that any more of the Virginius’ crew will be executed
at present, or that the court-martial will try them until orders are
received from Havana. I will write by the regular steamer leaving
two days hence, and give a detailed account of matters here, and my
full reasons for coming, inclosing the telegrams received at
Aspinwall that induced me to leave there. Our vice-consul here
sorely needed backing, and has sent complaints to the consul-general
at Havana regarding the insulting letters and personal behavior of
the general who commands this district, in answer to his proper
official protests against the barbarous order of the general to
treat the crew of the Virginius as pirates. When this matter is over
we can return to Aspinwall, as we left some important matters there
unsettled.
I am, &c,
[Inclosure.]
Commander Cushing to General Burriel.
United States Steamer Wyoming,
Santiago de Cuba,
November 16,
1873.
Sir: I have the honor to address you
this communication regarding the capture on the high seas of the
United States merchant-steamer Virginius, and the events
succeeding such capture. From an inspection of the official
hooks at the United States consulate at Kingston, Jamaica, I
find that the Virginius cleared from that port for Port Limon on
the 3d day of October, 1873. Her sailing-papers, including
register and all necessarydocuments coming under the supervision
of the United States consulate, were all certified by the proper
authorities. She sailed in ballast, but took out sixty-four
haversacks. On the 31st day of October this vessel was pursued
and captured something like seventy miles from Cuba.
The Virginius has now been sent to Havana to the jurisdiction of
the court of admiralty. The question of the lawfulness of this
capture on the high seas and out of the jurisdiction of Cuban or
Spanish authority is one to be decided, first, by the courts of
the captor, after which, if which, (sic)
if the decision is not in conformity with the accepted customs
and laws of nations, the United States Government may reclaim
the vessel. The rule of international law in such a case is as
follows: “The jurisdiction of the court of the capturing nation
is conclusive upon the question of property in the captured
thing; its sentence forecloses all controversy respecting the
validity of the capture, as between claimants and captor and
those claiming under them, and
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terminates all ordinary judicial inquiry
upon the subject-matter. But where the responsibility of the
captor ceases, that of the state begins. It is responsible to
other states for the acts of the captors under its commission,
the moment these acts are confirmed by the definite sentence of
the tribunals which it has appointed to determine, the validity
of captures in war.” I therefore content myself with making
protest, on behalf of the nation that I represent, and shall
leave that subject to the determination of the laws that are
sure to follow it and reach it. In reading the correspondence
between your excellency and the consul of the United States in
regard to this matter, I see that your excellency repeatedly
terms the Virginius a pirate. I must respectfully insist that
the Virginius was in no sense a pirate. The definition of the
word pirate in standard works on international law, and by the
general agreement of civilized nations from ancient to modern
times, is, that of a vessel committing the offense of
depredating on the high seas without being authorized by any
sovereign state. “Pirates being the common enemies of all
mankind,” such a vessel may be captured on the high seas by the
armed vessels of any nation, and taken into port for trial under
the jurisdiction of its tribunals. Piracy, under the law of
nations, may be tried and punished by the courts of justice of
any nation, by whomsoever or wheresoever committed; but piracy
created by municipal statute can only be tried by that state
within whose territorial jurisdiction and on board of whose
vessels it was committed.” So far from being a pirate, as
defined by international law, the Virginius, if offending at
all, was simply a neutral vessel carrying contraband of war, “a
blockade-runner,” or at most a smuggler. She was unarmed, and
was lawfully furnished with sea-papers, entitling her to
navigate the high seas in safety from all men. If attempting to
enter a port that was closed by proper authority, and so watched
by armed vessels of the state approached that it in fact became
a blockaded port, a vessel of a neutral country might, under the
laws and agreement of nations, attempt to carry in arms and any
contraband of war, subject only to the penalty of capture in
transit and confiscation of ship and cargo. No other punishment
is permitted by the universal law of nations, to which each
individual state must consent. A sovereign state, through its
commissioned agents, violating or exceeding such laws, brings
itself not only into serious complications with the nation whose
flag and authority the captured vessel bore on the high seas,
but it also comes directly in hostile contact with the agreed
laws and customs of all civilized nations.
Such, Ido not hesitate to affirm respectfully to your excellency,
is the basis upon which I question the summary trial,
conviction, and execution of the captain of the Virginius and
all citizens of the United States of America who belonged to his
crew. In the eye of the nations of the earth and their
well-defined laws, sanctioned by the tests and trials of
centuries, such trial and execution is simply murder. I
earnestly protest in the name of my country against what has
beendone, nothingdoubting but that the Government of the United
States will know how and when to protect its honor. I solemnly
protest against the imprisonment or other punishment of any of
the living members of the crew or passengers who are either born
or naturalized citizens of the United States. I request your
excellency earnestly to cease these executions, which must lead
to most serious complications. I shall send a copy of this
letter to my Government at my earliest convenience, and I
respectfully request you to send a copy to his excellency the
captain-general at Havana.
Very respectfully, &c.,
