No. 288.
Mr. Fish to Mr. Cushing.
Washington, November 5, 1875.
Sir: The receipt of your Nos. 487, 492, and 497, reporting the promotion of Brigadier-General Burriel, without any effective steps having been taken to carry out the protocol entered into in November, 1873, gives rise to renewed serious consideration touching our relations to Spain.
Since the receipt of the above-mentioned dispatches in reference to General Burriel’s promotion, your Nos. 555, 570, 580, and 589 have also been received. In your No. 555 you convey the agreeable intelligence that instructions have been issued by Lord Derby to Her Majesty’s representative to co-operate with you on this question, and in your No. 589 you inform the Department of an interview between Mr. Layard and the minister of state. In your No. 570 you give a history, and present the actual state of this negotiation, and in your No. 580 you forward a copy of your late note to the minister of state. Without information as to the effect of your remonstrances, it is advisable to recur to the subject, and to consider the course of the Spanish authorities in reference thereto.
Upon the 26th November, 1873, Mr. Carvajal, then minister of state, in a communication to General Sickles, made a proposition of settlement of the question arising out of the Virginius, in order, as he stated, to give public testimony that his government had no desire to indefinitely postpone the settlement of this matter, and in pursuance of the firm resolution of giving satisfaction for these wrongs, in accordance with the duties imposed by universal law and particular treaties. This was a spontaneous offer on the part of the government of Spain.
In so doing, Mr. Carvajal made four propositions, the second of which provided, in substance, that if it be proved that in the sentences and proceedings at Santiago there had been an essential failure to comply with the provisions of legislation or of treaties, the Spanish government would arraign those authorities before the competent tribunals. The protocol of November 29th thereupon stated that if, before December 25th, Spain should prove, to the satisfaction of this Government, that [Page 526] the Virginias was not entitled to carry the flag of the United States, the salute agreed upon would be dispensed with; it being understood that Spain would proceed, according to this second proposition made to General Sickles, “to investigate the conduct of those of her authorities who have infringed Spanish law or treaty obligations, and will arraign them before competent courts, and inflict punishment on those who may have offended.”
I need not remind you that this Government faithfully and promptly performed its obligation. The Attorney General, after a consideration of the evidence transmitted to him, gave his opinion, bearing date December 17th, that the Virginius was not entitled to carry the flag of the United States; and this Department, on the 22d of December, informed Admiral Polo of this conclusion. In like manner it was the duty of the authorities of Spain, without the necessity of any pressure from this Government, promptly and fairly, without delay or equivocation, to investigate the conduct of General Burriel and the other authorities, and to fearlessly bring to justice those who had infringed law or the provisions of treaties.
I propose briefly to examine the question as to the manner in which that government has performed this obligation.
Between the date of the protocol and of your general instructions, dated February 10th, no steps in the matter were taken by the authorities of Spain, as far as I am informed.
With this engagement, however, entirely unperformed, and before you had reached your post, General Burriel, over his own signature, published a communication in the “Epoca” of the 21st April, not only justifying his acts, but claiming they were directly authorized by a decree of General Dulce. He asserted them to be laudable and proper, and, pursuant to this decree, expressly authorized by Spanish law.
Under date of June 9, 1874, I referred to this publication as meriting a disavowal, particularly as the decree in question was well known to have been repealed, and stated that it was supposed that the neglect to take steps for the punishment of Burriel had been caused by the extraordinary condition of things in Spain; and that, if so, it was desirable to know that fact. Inquiry was then made whether proceedings were to be taken; and, if so, as to the time and nature thereof.
In your No. 60, of July 10, you forward a copy of the reply of the minister of state to your note in reference to this publication, and making inquiries as to the prosecution, in which Mr. Ulloa, while distinctly stating that the decree to which General Burriel refers had been repealed, asserts the right of that person, although an officer in the army of Spain, to freely publish his ideas, as he had ceased to hold official position in Cuba; and expressed his unwillingness to discuss the question of his prosecution as being bound up with the main question of the Virginius.
The minister of state seemed to have forgotten, as other ministers, before and since have forgotten, the terms of the protocol and the obligation of his government. We find, therefore, a prominent officer in the army of Spain not only willing in his cooler moments to justify executions, the haste and objectionable features of which have no parallel in modern times, but claiming that the acts were done pursuant to certain decrees which it was well known had been repealed; and we further find, what appears more surprising, that the minister of state is not only unmoved at such a publication on the part of an officer charged with these high offenses, and whom his government had failed to prosecute, but is ready to advocate his right to freely express his “opinions.”
[Page 527]In your comments upon this note of Mr. Ulloa, you concur in the suggestion that it might be advantageous to discuss the question of Burriel in connection with the general settlement; and, in reply, under date of August 15th, I expressed the opinion that delay, although some such advantage as you referred to might be obtained thereby, was unsatisfactory, and that it was the opinion of the President that the time had come for something definite to be accomplished.
In your No. 106, of September 26th, you transmit a copy of a note addressed to the minister of state, which forcibly and distinctly presents the question of the guilt of General Burriel and the necessity of his punishment; and subsequently, with your No. 171, of December 1, you forwarded a copy of a further note, calling particular attention to the protocol, entirely unperformed, as distinguished from the general question. Nevertheless, in the reply of the minister of state, under date of December 3, Mr. Ulloa contents himself with expressing his intention to adhere faithfully to the protocol, and states that he will give orders that inquiry shall be instituted by the competent tribunals, proceeding, however, to argue as to what particular tribunal ought to be called upon to enforce these provisions, and showing a particular care as to the machinery by which the inquiry was to be conducted, not always remarkable in similar investigations conducted by that government.
It therefore appears that, for over a year, no steps whatever had been taken, and the Spainish government was still, at this late day, discussing certain abstract questions, when the investigation should have been made immediately by the authorities of Spain without the necessity of any communication from, or reference to, this Government.
I referred to this question in my telegram to you of December 7th, and called attention to the solicitude shown that General Burriel, although an officer of the army, and one who had been charged with, grave offenses, committed while holding a high command, should have the benefit of such unusual solicitude as to the manner in which the inquiry should be conducted.
In your No. 178, however, of December 8th, nothing yet being done, you report that Mr. Ulloa had informed you that he would address the minister of war to institute proceedings against the implicated parties; and in your telegram of December 9th you stated that the acceptance of the offered indemnity, on the terms proposed, assured executive arraignment of the authorities, and their trial by criminal process, equivalent to our own court-martial.
After the settlement of the indemnity question, however, no advance seems to have been made in reference to the trial of General Burriel. For this reason, in my No. 129 of February 19th, I referred again to the question, insisted that the protocol should be performed, and that Mr. Castro, who had succeeded Mr. Ulloa as minister of state, having freely expressed his opinions as to the general question of indemnity, could not be less frank in reference to this offender; and while the presentation of the question was left to your discretion, I expressed my opinion that the proper time was the earliest moment when punishment could be inflicted.
In your No. 388, of May 17th, you speak of the retirement of General Burriel from Madrid, of his humiliation, and the general reprobation of his acts; and add that knowing that his case was before a council of war, it seemed requisite to do no more than to make occasional references to it. It now appears doubtful whether his case was ever before any council of war, and it may be assumed as certain that nothing was done by the council, if any such ever assembled.
[Page 528]Since that date occasional references have been made by you to General Burriel’s case, but only as one of the elements of general settlement.
You may judge, therefore, after all that has been said, and after the engagement so distinctly made, the performance of which has been so often avoided, always, however, with renewed promises of fulfillment, of the surprise of this Government on learning that General Burriel had been suddenly promoted and taken into active service.
On reading the verbal and written explanations furnished you by Mr. Castro, and reported in your Nos. 487 and 492, I can find nothing either explaining such steps, affording any excuse for the promotion of this officer without a trial, or furnishing any evidence that the Spanish government intended to fulfill its engagement. It is not material who issued the order for General Burriel’s preferment, by whose procurement or by what means it was accomplished, or whether the minister of state was absent or knew the facts. It is the act of the government of Spain. His history, his offense, and the failure to bring him to justice were well known to the authorities, and his promotion is the act of his government in full view of all these facts.
The want of military officers has been urged as an excuse; but even if under all these facts the necessities of Spain made it necessary to employ General Burriel, it was not necessary to promote him. If it was feared that proper punishment would remove him from the service of Spain, it was not requisite that marks of favor and approval should be shown him. It may be well to inquire, also, whether mariscal del campo, the grade to which it is announced he has been promoted, is, in fact, the next grade to that which he formerly held.
Pending some further information as to the effect of your remonstrances, I abstain from further discussion of this general question, simply observing that the statement of Mr. Castro, in his note to you of the 25th August, that, notwithstanding the promotion of General Burriel, it was the intention of the Spanish government to perform their promises in the protocol, is entirely unsatisfactory when considered with the entire neglect which has occurred in meeting these obligations in past times, and without some definite information as to precisely what is to be done, and the details thereof.
It is requisite to the maintenance of our relations with Spain that we should fully, frankly, and fairly understand precisely what has been done on this question and what is to be done. If nothing has been done and nothing is to be done, we should know that fact. If anything is to be done to carry out this long-delayed promise, it should be done without further discussion or delay, and in a manner calculated to produce an effect. It is believed that all the facts are at hand, that no prolonged investigation can be required, and it is but proper to say that simply putting in train some sort of investigation to wind its slow length along and produce no speedy or conclusive result, will not be satisfactory to this Government. In fine, the time has long passed when it should be definitely known whether the Spanish government does or does not take upon itself to say whether the acts of General Burriel were or were not in accordance with Spanish law and treaty obligations; and it is expected that an early and satisfactory reply to your note of the 4th day of October to the minister of foreign affairs, communicated with your dispatch to the Department, No. 580, of the date of October 6th, will enable you to ascertain the intentions of the Spanish government on tliese points, and to inform the Department at the earliest possible moment.
[Page 529]In prosecuting such inquiries, in bringing the Spanish government to recognize the position and importance of this question, and in obtaining a decisive ending thereof, I am happy that yon have the assistance and co-operation of the representative of Great Britain. I have read with satisfaction the incidents of Mr. Layard’s interview with the minister of state, referred to in your No. 589, and am of opinion that his frank and plain statement of the case will contribute to place this matter in its proper light. I am satisfied that the matter must be placed strongly and plainly before the Spanish government, which must be made to recognize that serious difficulty may follow further dilatory proceedings.
As to the manner of prosecuting this question and making the necessary inquiries, and having particular reference to the statements and suggestions in your confidential dispatch No. 570, I have to say that you have rightly interpreted the meaning of the telegrams of the 28th September and 1st October. It is the strong desire of this Government, as it has been, fairly and honorably to perform all its duties to Spain. It has the right to insist in return that the government of Spain shall, in the same spirit of fairness, perform its engagements and obligations to this country. It cannot be doubted or questioned that on this subject such obligations have been postponed, evaded, and left unperformed.
It has been and is our desire to satisfactorily adjust this and every other question, and in this desire we have been patient almost to the limit of endurance.
In this same spirit and in this view you have again been instructed to represent to Spain the injury that her course in reference to General Burriel inflicts on both countries, and its effect upon our relations, and it is earnestly hoped that the representation may be received and responded to in the same spirit.
Whether this question should precede or follow the treaty question or the confiscation cases, I cannot at this distance intelligently direct; but I can, however, and do, express the strong opinion that in reference to all these questions, equally, the relations of this country with Spain are endangered by delay, and that as to all, equally, the Spanish government should be informed that the maintenance of good relations with this Government depends on an early, a satisfactory, and a conclusive adjustment.
I am, &c.,