No. 278.
Mr. Cushing to Mr. Fish.
Legation of the United States,
Madrid, August 23, 1875.
(Received September 9.)
No. 487.]
Sir: I was greatly surprised to learn, by the
newspapers of the 3d instant, that Brigadier Burriel had been
promoted.
I immediately sought interview with the minister of State in the purpose
of calling for explanations; but, in consequence of his almost continued
absence at San Ildefonso, with his family, it was not until after
several efforts that I secured an interview, by appointment, on
Saturday, the 14th. I then expressed to him in strong terms my regret
and surprise on hearing of the promotion of Burriel. He replied that the
information of it had surprised him as much as myself; * * * that it had
been done by the minister of war during his absence; that he would bring
the subject before the council of ministers, which was, then about to
assemble, and would call at my house on the morning of the next day,
(Sunday,) the 15th, in order to consider the subject at length.
* * * * * * *
At that interview I entered at length into the whole matter, recalling to
his attention the terms of the protocol of November, 1873, and the
subsequent assurances of the residentiation of Burriel, with appropriate
comments; all of which it is unnecessary for me to repeat, as what I
said was afterward put in writing, with more detail and precision, in
the note of which a copy is annexed.
[Page 515]
Mr. Castro replied, admitting the force of my suggestions, and declaring
that the government of His Majesty was fully aware of, and would
perform, all its engagements to the American Government in the premises;
that the promotion of Burriel had for its only motive the deficiency of
competent officers of his grade and the overpowering necessities of the
war; and that the amplest explanations on this point would be given for
the satisfaction of the United States. I told him that, in my opinion,
the exceeding gravity of the subject required that it should not be left
to mere verbal explanation, but should be discussed in writing, in which
he concurred.
On Tuesday, the 17th instant, I called, by appointment, to inform him
that I had prepared a note for presentation, but nothing of importance
then occurred, he being in fact on the point of starting for San
Ildefonso; in consideration of which it was agreed that we should meet
again on Saturday, the 21st, afterward deterred, at his written request,
to Sunday, the 22d.
Meanwhile, to prevent delays, suggestion had been made in the proper
quarter to have a translation of my note made immediately. I called, by
appointment, on Sunday, (yesterday, the 22d,) and found the minister of
state with a translation of my note before him.
His first observation was that he thought the language of my note rather
severe. I replied that the circumstances seemed to me to require of me
to speak in plainness; that we had succeeded in disposing of the
indemnity question by plain speaking on both sides, and might well
pursue the same course on this occasion, in which he acquiesced.
* * * * * * *
In so far as regards Burriel, I have before me your instruction (No. 185)
of June 4. The discretion you there commit to me will be sparingly
exercised, and rather in respect of incidental points than of the
groundwork of arrangement.
* * * * * * *
I have, &c.,
[Inclosure.]
Mr. Cushing to
Mr. Castro.
Legation of the United States,
Madrid, August 18 1875.
Sir: It has been to me the occasion of
great surprise to learn, through the medium of the public prints,
that D. Juan Burriel has been promoted from the grade of brigadier
to that of mariscal de campo in the military
service of Spain, and the intelligence will be received with equal
surprise by my Government.
As a general rule, it is true, neither my Government nor myself would
concern itself in regard to promotion or other changes in the
officiality, military or civil, of the Spanish government.
And my Government might hesitate to go beyond the point of informal
or friendly suggestion, if so far, in the case of the bestowment of
military honors by a foreign government on a subject who should
merely have drawn to himself the attention of the world by acts of
exceptional violence, cruelty, or inhumanity as an officer or as a
man. Nor would the simple fact that D. Juan Burriel, in the
wholesale execution at Santiago de Cuba of numerous passengers and
crew of the ill-fated Virginius, raised a cry of horror throughout
Europe and America not surpassed in loudness or intensity by that
which the similar acts of atrocity of Seballo at Olot, or of
Alphonso de Este at Cuenca, produced, have required me to make his
promotion the object of the present communication. Nor is this
communication induced by the mere circumstance that all the persons
whose lives were thus taken by D. Juan Burriel were captured on the
high seas under the flag of the United States, and that many of them
were citizens thereof, executed, as my Government conceives, by
judgments passed in violation of express treaty as well as of public
law.
[Page 516]
These considerations might indeed have sufficed of themselves to
justify remonstrance on the part of my Government against the
bestowment of promotion on D. Juan Burriel. But the question has
passed beyond that point.
It cannot be forgotten that, in view of these occurrences, the
Spanish government expressly engaged “to investigate the conduct of
those of her authorities who have infringed Spanish laws or treaty
obligations, (in the said occurrences,) and will arraign them before
competent courts, and inflict punishment on those who may have
offended.” It cannot be forgotten that the Spanish government has
already paid considerable sums of money to the governments of Great
Britain and the United States for the satisfaction of the families
or the persons of the subjects or citizens of those governments
aggrieved by the acts of D. Juan Burriel at Santiago de Cuba.
It cannot be forgotten that the Spanish government, in view of the
representations made by that of the United States, expressly engaged
“to give the opportune orders to the effect that by the competent
tribunal should be instituted an information respecting the conduct
at the authorities of Santiago de Cuba, which intervened in the
substantiation of the process and sentence of the citizens of the
United States who were executed in that place, exacting of those
authorities the responsibility which they may have incurred by
infraction of law or of treaty obligations;” that is to say, as
repeatedly explained orally and in writing, by subjecting those
authorities, especially D. Juan Burriel, to the “juicio de residencia” In making these engagements, the
Spanish government reminded that of the United States of the
separation between judicial and executive functions in Spain, and
the consequent necessity of judicial
proceedings, according to law, against D. Juan Burriel. My
Government willingly accepted his explanation as having reference to
doctrines of constitutional law, such as prevail in the United
States. It was satisfied with the general engagement of Spain to
“investigate” and to “arraign” the parties before “competent
courts.” It was satisfied with the special engagement of Spain to
subject the inculpated parties to the “juicio de
residencia” as the only competent legal jurisdiction.
And it patiently awaited the result, confiding without reserve in the
good faith of the Spanish government.
In the presence of these premises and considerations, my Government
will of necessity presume that the stipulated investigation of the
conduct of D. Juan Burriel, and his submission to the “juicio de residencia” have resulted in
acquitting him, not only of any violation of the municipal law of
Spain, but also of any infringement of treaty stipulations—a
decision that is in conflict with the explicit stipulations of
treaty between the United States and Spain. I should be wanting in
accustomed frankness toward your excellency were I to suppress the
expression of opinion that, even in this view of the circumstances,
the situation is grave, very grave; since, by the universally
received rule of the modern law of nations, the final judgment even
of a competent court may be the subject of diplomatic complaint and
reclamation as for denial of justice. And the situation will wear an
aspect of still greater gravity, if, in the absence of any such
acquittal of D. Juan Burriel, the Spanish government,
notwithstanding such general engagement of arraigument to the end of
punishment, and such special engagement of arraignment by residencia, shall have selected that officer
for promotion on the assumption of the commendableness of his acts
at Santiago de Cuba.
I therefore solicitously await your excellency’s explanations of this
untoward and unexpected circumstance.
I purposely confine myself in this note to the discussion of the
specific subject; but I cannot forbear to say that the present
incident (whatever may come of it) renders it urgent that we should
take up, and if possible adjust, the treaty question (with its
adjuncts) which lies at the foundation of this protracted and still
perilous controversy between our respective governments.
I have the honor to renew to your excellency the assurance of my most
distinguished consideration.
His Excellency the Minister of
State.
