The New York herald., 1873-11-12


IN
Tho Murdcu at Santiago do Cuba
The Duty Of Our Government.
There is some reason to fear that the officials
of the State Department at Washington, in
their desire to maintain friendly relations with
tho Spanish government, may wander from
the main point involved in the case Of the
virginius If Secretary Fish win refr his
memory by reference to the Correspondence
which passed between himself and Mr.. Lopez
Roberts, the Spanish Minister in April and
July, 1869, he will probably find that in the
opinion of our government as then expressed
there could have been no authority, under in
ternational law or under our treaty obliga-
tions with Spain, for the seizure of the Vir-
ginius on the high seas unless Spain was ad-
mittsdly in state of war with Cuba. The
position of Mr.. Fish on this question
does mot admit Of doubt Writing to
! Minister Roberts on July 16, 1869, on
the subject Of the proclamation by
Captain General de Rodas, under which
the capture of the virginius is claimed to
have been made. our Secretary of State de-
clares that the vessels of the United States
can only be subjected to the provisions of that
proclamation ''when Spain avows herself to
be in state of war, or shall be manifestly
exercising the rights conceded only to
belligerents in time Of war" He very cor
rectly argues that the transportation on the
high seas in time of peace Of articles COM
monty known as contraband of war is q
legitimate trade and commerce, which cannot
be interfered with or denounced unless by o
Power at war with third party in the ad-
mitted exercise Of the rights of belligerent,
and that the freedom of the ocean can nowhere
and under no circumstances be yielded
~bs. the United States. The treaty Of 1795
between SPAN. md onr cssss,nTen. Ssss,n mainly
defines and regulates the reciprocal
relations and obligations Of the contracting
parties, without reference 70 either being
engaged in war. The eighteenth article of the
treaty refers to the right Of visit or of ap-
proach tn time Of war for the inspection Of
the passport and the Identification Of the mo-
tionality of vessel; but this article confers
| no right of visit and search in time of peace,
and only prescribes and limits the manner of
exercising belligerent right in time of war.
''The whole scope and aim of the eighteenth
article Of the treaty." writes Mr.. Fish, "estab-
fishes beyond possibility of question that it
fefers only to the rights which one OF the
parties may have by reason of beingin state
of war;" The Secretary even went so far as
to say that an attempt to enforce the
de Rodas proclamation against YES.
sells of the United States would
be taken as recognition by Spain that she is
in state ofwar and claims the rights ofa bel
igerent The Spanish government and its
representatives denied at that time, and have
continued to deny, the existence of war be-
tween Spain and Cuba, and hence could not,
by Mr.. Fish's showing, have legally made
seizure of the virginius, if she had been
loaded down with articles contraband of war;
provided she were an American vessel, with
American owners.
The only point, therefore, seems to be, was
the Virginius in fact an American vessel Her
character and mission, according to Mr. Fish,
have nothing to do with the question, for the
Secretary claims for all American vessels the
freedom of the seas and the right in
time of peace to carry articles COM
monty known as contraband of war without
challenge. The issues raised as to where the
Virginius was sighted, in what direction she
was headed and where she was captured, are
all foreign to the subject and are only calcu-
lated to mystify the real point Spain pro-
fesses not to be engaged in war, and hence
the Spanish authorities had no right, accord
ing to Mr.. Fish, to interfere with the vessel at
all, unless she was within their own iurisdic-
tion and engaged in the violation of munich
pal law. In this view Of the case the insult
to the American flag becomes the greater and
the murder Of persons found on board the
virginius the more brutal and revolving. The
Spaniards knew that they were contemptu-
ously disregarding the protest Of our govern
ment; that they were grossly violating their
treaty obligations, and their hasty assassina-
ton of their victims was on this account all
the more outrageous and all the more insult
ing to the United States.
The error we have committed has been in
yielding to the opportunities of Spain and
withholding from the Cubans the recognition
of their belligerency. The Spanish govern
ment recognized the belligerency of the South
sixty-six days after the bloodless assault ON
Fort Sumter, and we have refused at the de-
mand of Spain to recognize Cuban bellig-
erency although the Cubans have been for
five years struggling for their freedom, and
tens Of thousands of lives have been lost in
the war. Our weakness has emboldened the
murderous volunteers in their rufianism and
crime. Courteous as our governmenthas been
t9xaEds Spain the spaniards in Cuba nourish
deadly animosity against Americans and do
not hesitate TO indulge their hatred when
opportunity offers. At the present moment,
while our State Department is engaged in a