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de Cuba was considerate, and is approved; but it had been anticipated through the Havana consulate."

Same to same, Nov. 12, 1873. MSS. Inst., Spain; ibid.

"I have the honor to forward a copy of a note passed to the minister of state yesterday, requesting that any American citizens in custody of the authorities at Santiago de Cuba be allowed all the privileges guaranteed to them by the seventh article of the treaty of 1795, and that the consul of the United States at that place be permitted to have free communication with the accused. This suggestion seemed to me proper, in view of what happened in March last in the case of the sailors of the bark Union, and your instructions in that case."

Mr. Sickles to Mr. Fish, Nov. 12, 1873. MSS. Dispatches, Spain; ibid.

"The case of the Deerhound, of which I cabled a brief statement this morning, was not settled without considerable hesitation and delay on the part of this Government. Mr. Carvajal insisted for some time that it was a proper subject for the decision of a prize court, and that until the judgment of that tribunal should be given, no diplomatic reclamation could be entertained. This ground was not satisfactory to Great Britain. It was replied that no declaration of war had been made by Spain; that the parties to the contest had not been recognized as belligerents; that no jurisdiction over such a capture could be acquired by a prize court in time of peace; that the act of the Spanish cruiser was a mere trespass on the high seas, from which no right of condemnation could possibly follow. Great Britain therefore urged that the matter was in the exclusive and sole cognizance of the executive authorities; and considering that the facts of the case and the principles of public law applicable to them were indisputable and clear, the immediate release of the vessel, passengers, and crew was demanded. The Spanish Government at length yielded to the arguments ably presented by Mr. MacDonell, the British chargé d'affaires, and made ample reparation."

Ibid.

"The Deerhound, an English vessel with arms and munitions of war for Don Carlos, captured in July last off this coast, on the high seas, by a Spanish gunboat, was released, with her crew and passengers, including one or more prominent Carlists, on the demand of Great Britain."

Same to same (telegram), Nov. 12, 1873; ibid.

"Conference appointed for this afternoon adjourned by minister, because he had received at a late hour last night information from the captain-general that forty-nine of the persons on board the Virginius had been shot on the 7th and 8th instaut. Mr. Carvajal said he communicated this report to me with profound regret. President Castelar had shown the deepest feeling in view of this intelligence. It appears the orders of this Government, sent on the 6th, did not reach Havana until the 7th, and could not be transmitted to Santiago in time to prevent what was done. General Jovellar says he will stop any more slaughter. Further reports called for at two this morning, and I am promised explanations as soon as they can be given. The Madrid papers of last evening and this morning announced that fifty executions had taken place."

Same to same (telegram), Nov. 13, 1873; ibid.

"Your telegram announcing adjournment of conference received. "Unless abundant reparation shall have been voluntarily tendered, you will demand the restoration of the Virginius, and the release and delivery to the United States of the persons captured on her who have not already been massacred, and that the flag of the United States be saluted in the port of Santiago and the signal punishment of the officials who were concerned in the capture of the vessel, and the execu tion of the passengers and crew.

"In case of refusal of satisfactory reparation within twelve days from this date, you will, at the expiration of that time, close your legation, and will, together with your secretary, leave Madrid, bringing with you the archives of the legation. You may leave the printed documents constituting the library in charge of the legation of some friendly power, which you may select, who will consent to take charge of them.”

Mr. Fish, Sec. of State, to Mr. Sickles (telegram), Nov. 14, 1873. MSS. Inst.,
Spain; ibid.

"Hall telegraphs this date the confirmation of report of further execution on 12th instant, and that Havana papers of yesterday published account of execution of fifty-seven other prisoners, and that only some eighteen will escape death, but that nothing official was received. You will represent this report to minister. These repeated violations of assurances of good-will and of the prohibition of murder by the authorities in Santiago increase the necessity of full and speedy reparation. There is but one alternative if denied or long deferred. If Spain cannot redress the outrages perpetrated in her name in Cuba, the United States will. If Spain should regard this act of self-defense and justification, and of the vindication of long-continued wrongs, as necessi tating her interference, the United States, while regretting it, cannot avoid the result. You will use this instruction cautiously and discreetly, avoiding unnecessarily exciting any proper sensibilities, and avoiding all appearance of menace; but the gravity of the case admits no doubt, and must be fairly and frankly met."

Same to same (telegram), Nov. 15, 1873; ibid.

"Consul at Havana telegraphs that the report of further executions communicated by him and mentioned in my telegram of 15th was offi cially contradicted, and that until 13th the total number of executions was fifty-three, thus confirming minister's statement in note to you.

"Last evening Spanish minister communicated to me, by direction of his Government, a telegram of yesterday's date, declaring the resolu tion of his Government to abide by the principles of justice and to observe international law, to comply with the letter of treaties, and to punish all those who shall have made themselves liable to punishment regardless of their station, and to make reparation if right should require it, urging at the same time that a knowledge of facts is necessary

to proceed with the judgment required by the gravity of the case, and that the news which had reached them, like that received here, must be confused.

"The telegram to the Spanish minister is subsequent in date to the minister's note of 17th to you, and may be regarded as a reconsideration or later decision of the Government. Appreciating this fact, and determined to continue to be right in the position he has assumed, the President holds that the demand for a proper length of time to learn the exact state of the facts is reasonable. In view of this request you will defer your immediate departure from Madrid, and await further instructions."

Same to same (telegram), Nov. 19, 1873; ibid.

"Instruction sent yesterday by cable authorizes you to defer closing legation in order to allow a reasonable time to Spanish Government to ascertain facts in response to their request through minister here, presented on 18th instant. No other postponement has been agreed to, and minister was informed that a satisfactory settlement would be expected by 26th."

Same to same (telegram), Nov. 20, 1873; ibid.

"I have the honor to acknowledge the receipt of your letter of the 11th instant, submitting to me a large number of documents and depositions, and asking for my opinion as to whether or not the Virginius, at the time of her capture by the Spanish man-of-war Tornado, was entitled to carry the flag of the United States, and whether or not she was carrying it improperly and without right at that time.

"This question arises under the protocol of the 29th ultimo, between the Spanish minister and the Secretary of State, in which, among other things, it is agreed that on the 25th instant Spain shall salute the flag of the United States. But it is further provided that 'if Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it, at the time of her capture, without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable; but the United States will expect, in such a case, a disclaimer of the intent of indignity to its flag in the act which was committed.'

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"Section 1 of the act of December 31, 1792, provides that ships or vessels registered pursuant to such act, and no other (except such as shall be duly qualified according to law for carrying on the coasting trade and fisheries, or one of them) shall be denominated and deemed ships or vessels of the United States, entitled to the benefits and privileges appertaining to such ships.' Section 4 of the same act provides for an oath, by which, among other things, to obtain the registry of a vessel, the owner is required to swear that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust,

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confidence, or otherwise, interested in such ship or vessel, or in the profits or issues thereof.'

"Obviously, therefore, no vessel in which a foreigner is directly or inrectly interested is entitled to a United States registry, and if one is obtained by a false oath as to that point, and the fact is that the vessel is owned, or partly owned, by foreigners, she cannot be deemed a vessel of the United States, or entitled to the benefits or privileges appertaining to such vessels.

"The Virginius was registered in New York on the 26th of September, 1870, in the name of Patterson, who made oath as required by law, but the depositions submitted abundantly show that, in fact, Patterson was not the owner at that time, but that the vessel was the property of certain Cuban citizens in New York, who furnished the necessary funds for her purchase. J. E. Shepherd, who commanded said vessel when she left New York with a certificate of her register in the name of Patterson, testifies positively that he entered into an agreement to command said vessel at an interview between Quesada, Mora, Patterson, and others, at which it was distinctly understood that the Virginius belonged to Quesada, Mora, and other Cubans, and that said Mora exhibited to him receipts for the purchase-money and for the repairs and supplies upon said steamer, and explained to him how said funds were raised among the Cubans in New York. Adolpho De Varona, who was the secretary of the Cuban mission in New York at the time the Virginius was purchased, and afterwards sailed in her as Quesada's chief of staff, testifies that he was acquainted with all the details of the transaction, and knows that the Virginius was purchased with the funds of the Cubans, and with the understanding and arrangement that Patterson should appear as the nominal owner, because foreigners could not obtain a United States register for the vessel. Francis Bowen, Charles Smith, Edward Greenwood, John McCann, Matthew Murphy, Ambrose Rawlings, Thomas Gallagher, John Furlong, Thomas Anderson, and George W. Miller, who were employed upon the Virginius in various capacities after she was registered in the name of Patterson, testify clearly to the effect that they were informed and understood while they were upon the vessel that she belonged to Quesada and the Cubans represented by him, and that he navigated, controlled, and treated said vessel in all respects as though it was his property.

"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. With the oath for registry the statutes requires a bond to be given, signed by the owner, captain, and one or more sureties; but there were no sureties upon the bond given by Patterson and Shepherd. Pains have been taken to ascertain if there was any insurance upon the vessel, but nothing of the kind has been found, and Quesada, Varona, and the other Cubans who took passage upon the Virginius, instead of going on

board at the wharf in the usual way, went aboard off a tug after the vessel had left the harbor of New York. I cannot do otherwise than to hold upon this evidence that Patterson's oath was false, and that the register obtained in his name was a fraud upon the navigation laws of the United States.

"Assuming the question to be what appears to conform to the intent of the protocol, whether or not the Virginius, at the time of her capture, had a right, as against the United States, to carry the American flag, I am of the opinion that she had no such right, because she had not been registered according to law; but I am also of the opinion that she was as much exempt from interference on the high seas by another power, on that ground, as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel, with an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be, an American vessel; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States. Spain cannot rightfully raise that question as to the Virginius, but the United States may, and, as I understand the protocol, they have agreed to do it, and, governed by that agreement and without admitting that Spain would otherwise have any interest in the question, I decide that the Virginius, at the time of her capture, was without right and improperly carrying the American flag.”

Mr. Williams, Att'y Gen., to Mr. Fish, Dec. 17, 1873. 14 Op., 340; For. Rel., 1874. See as to flag without papers, infra, §§ 408 ff.

"Referring to the protocol signed on the 29th day of November, and to the agreement signed on the 8th day of December, instant, between the Spanish minister and myself, of which copies were furnished to you with my letter of 8th instant, I have the honor to call your attention to the provision in these two papers relative to a salute to the flag of the United States, to be made by Spain, in the harbor of Santiago de Cuba, on the 25th day of December, instant, and to the agreement in the protocol that 'if, before that date, Spain should prove to the satisfaction of the Government of the United States that the Virginius was not entitled to carry the flag of the United States, and was carrying it at the time of her capture without right and improperly, the salute will be spontaneously dispensed with, as in such case not being necessarily requirable.'

"The Spanish minister, in behalf of his Government, has submitted certain documents, including depositions taken before a United States' commissioner, in the presence of the attorney of the United States for

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