968                           FOREIGN    RELATIONS.

is ascertained. Upon this point, which undoubtedly is the essential one in
the case., the
undersigned begs to observe that the delay suggested for the purpose of obtaining
testimony from Cuba to establish a fact already sufficiently certified seems
quite un-
necessary. Such evidence as might now be derived from the scene of the transaction
would be secondary, inconclusive, and incompetent:: Secondary, because, unhappily,)
the officers of the Virginius, the lawful custodians of her papers, are all
dead; incon-
clusive, because it cannot be expected that those who are responsible for
the catas-
trophe will furnish proof of their own misconduct ; incompetent, because
there is no
judicial tribunal in Cuba by which the lawfulness of the capture can be determined.
A prize-court cannot have jurisdiction of the case, since prize-courts exercise
their
powers only between belligerents, and belligerents and neutrals, in time
of war. War
is not recognized as existing in Cuba,, and Spain has been the foremost in
denying that
either party to the conflict enjoys, or is entitled to enjoy, belligerent
rights.
   The undersigned has heretofore declared, and he now repeats the declaration
in the
 name of his Government, that the Virginius was at the moment of her capture
on the
 high seas a regularly-documented American ship. The assertion of a government
 which has accorded to a vessel the right to sail under its flag is the best
evidence of
 her nationality. Every such ship is registered in the public archives. It
cannot be
 supposed that any respectable state would volunteer its protection to those
having no
 right to claim it. Nor is it usual when, in a case like this, the injured
government
 affirms the nationality of the ship, to put that averment in issue and demand
proof as
 a preliminary to the consideration of reclamations for an affront offered
to its flag.
 The undersigned, therefore, submits to the enlightenIed judgment of Mr.
Carvajal,
 that, in harmony with the usage and comity'of nations, Spain may well dismiss
all
 controversy as to the nationality of the Virgini1us, accepting as indisputable
the fact
 that she was a regularly-documented American ship, and, moved by the traditions
of a
 friendship uninterrupted for a century, proceed at once to accord to the
United States
 that measure of reparation which she has already loyally recognized as befitting
her
 own dignity and due to an ancient ally.
 The undersigned avails himself of this opportunity to repeat to his excellency
the
 minister of state the assurances of his most distinguished consideration.
                                                                D. E. SICKLES.
  His Excellency the MINISTEIR OF STATE.



                                [Inclosure 2 in No. 893.]
   Xir. Jos6 de Carvajal to General Sickles. (Received November 28, 1S73-5.3.0
p. m.)

     $                             [Translation._]

                                                    MINISTRY OF STATE,
                                                        Madrid, November
28, 1873.
  Sin: The undersigned, minister of state and member of the executive power
of the
Spanish Republic, has the honor to state to General Sickles, envoy extraordinary
and
minister plenipotentiary of the republic of the United States of America,
that he has
received his communication dated the 26th, replying to the propositions made
on the
same day for the settlement of the question of the Virginius, and stating
that you had
communicated them by telegraph to Washington for the decision of His Excellency
the President of the United States.
  I had great pleasure in the perusal of your note, which was inspired by
the highest
sentiments of honor and dignity, and I would have especial satisfaction in
treating
fully the doctrinal points contained therein, if, happily, I had not to-day
received
from the minister of Spain in Washington a telegram, which I must, first
of all, hasten
to bring to your knowledge, as well as the deterrmination of the executive
power.
  Mr. Jos6 Polo de Bernabd, duly authorized by Mr. Hamilton Fish, informs
me that
your Government, animated by the best desires of conciliation, would admit
a settle-
ment on the basis of the immediate return of the Virginius and the survivors,
reserv-
ing the salute of the flag to be performed if the Spanish government do not
prove to
the satisfaction of that of the United States, befoýe:*the: 25th of
December next, that
the Virginius had no right to carry the American flag.
  In reaching these conclusions the initiative was taken by the Spanish government,
and was indicated in a telegram addressed to our representatirve, being founded
upon
the noble and loyal words uttered by Mr. Fish in his iaterviews with the
same, that
if Spain had any complaints or reclamations to make, by reason of the acts
of the fir-
ginius, the United States were prepared in that case to apply the provisions
of interna-
tional lanv, and to prove that, being ever determined to do justice, they
held the pur-
pose to observ:e towar'd the Spanish republic a reciprocal and cordial friendship.