Caleb Cushing to Cushin Alejandro Castro, August 18, 1875

Mr. Cushing to Mr. Castro.

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.

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.