No. 93.
Mr. Hurlbut to Mr. Fish.
United
States Legation,
Bogota, January 6, 1872.
(Received February 16.)
No. 73.]
Sir: On the first day of December, 1871, I
presented for the consideration of the Colombian government the claim of
Schuber Brothers, owners of the Montijo, and of the officers and crew,
for compensation for seizure and detention of the ship and imprisonment
of the persons. I inclose a copy of my note and of the abstract of the
claim, not considering it necessary to forward copies of the evidence,
the principal part of which is in the Department.
The grievances complained of were so palpable, the evidence so
conclusive, and the principles on which it rests were, to my mind, so
singularly clear, that I considered it unnecessary to argue the question
at all in my communication to Señor Zapata.
The records of this legation, as well as of the French and English, are
full of cases not near as flagrant which have been promptly settled.
On the 28th December, 1871, I received from Senor Zapata a reply of the
date of 27th December, a translation of which is inclosed. In this
document, Senor Zapata takes ground wholly untenable, and in direct
conflict with the facts in the case, with which he is perfectly
familiar. He chooses to place this case in the category of ordinary
crimes committed by individual criminals upon individual sufferers,
triable and punishable exclusively in the ordinary courts of justice,
and ignores, I fear, willfully, the features of insurrectionary
violence, of conspiracy and of combined action, which remove the case
from the ordinary quality of simple crime, and give it an undeniable
public character.
I was exceedingly surprised by the contents of this note, and by the
decision announced that the national government denied responsibility
for the pecuniary damages sustained.
On the 1st day of January, 1872, I answered in the note of that date, a
copy of which is also inclosed. In ordinary cases, I presume I should
have accepted the note of 27th December as final, but I was unwilling to
do so without an effort to bring the Colombian government to a possible
reconsideration of a decision which I could not but regard as an
unfriendly act. To this end I addressed to Senor Zapata the note of
January 1, with such arguments as appeared to me best suited to convince
the mind of the secretary and President. Noticing in Senor Zapata’s note
of December 27 that the Colombian government takes shelter under the
prosecution ordered, and claims some credit for that act, on the third
day of January, 1872, I addressed to Senor Zapata a note
[Page 145]
of that date, a copy of which is also
inclosed, desiring to know officially what steps, if any, had been
actually taken in that matter, and again pressing upon his attention the
necessity of energetic and bona-fide prosecution
of the offenders to conviction.
My information from bur consul at Panama and from private sources was
that no real prosecution had, in fact, been instituted in Panama ‘and
that one of the principal offenders, Diaz, was and is now governor of
the city of Panama.
You will remember, sir, that the government of Colombia, although in
possession of the facts of these outrages, did not of its own motion
institute proceedings against the malefactors, but remained inactive for
weeks until driven into action by the demand made by me on the 5th of
August, 1871, in pursuance of instructions received from the
Department.
In permitting the seizure of the Montijo, in not rescuing her by force if
necessary, during the two months she was detained, in not prosecuting
her captors until compelled by the positive demand of the United States,
and finally in not acknowledging liability for the losses and damages,
it does appear to me that the Colombian government has very seriously
failed in its duties toward an ally and friend.
Much, of course, is to be attributed to the inherent weakness of the form
of government, as is illustrated by the extraordinary laws “of public
order “of the 16th April, 1867, (commented upon by me in my note of
January 1, 1872,) a translation of which is inclosed, and which is now
in force.
At a late hour this evening, (6th January,) I received two dispatches
from Senor Zapata of the date of 5th January, 1872, translations of
which are herewith inclosed. The time is so short before the closing of
the mail that I am compelled to send the rough draught of the
translation with some erasures.
The note of Mr. Zapata, on the subject of the liability of the nation, is
a very ingenious piece of special pleading intended for home
consumption. It is impossible for any man to doubt that the capture of
the Montijo was a part, and a principal one, of the insurrectionary
movement, and that it would never have taken place but for the
revolution.
It is not at all difficult to reconcile the two claims made by the United
States, for it is very possible, as indeed was the fact, for men to be
at the same time rebels and pirates, to be in revolution, and thus
invested with a certain political character for which Colombia is
responsible, and in the course of such revolution commit acts which
constitute piracy.
I have not had time, as yet, to answer Mr. Zapata’s last note, and should
decline to do so at all were it not that new views and new matter have
been introduced. The answer will be very brief.
You will perceive from his other note of January 5, that practically
nothing has been done in the matter of the criminal prosecution in
Panama, nor in fact is it in the power of the federal government to do
anything more than to write official notes to the State officers, which
the latter notice or disregard at their pleasure.
The entire matter is most respectfully submitted, that such final
determination may be had in Washington as shall appear right, and I
trust that my course in the affair may be approved.
I am, &c,
[Page 146]
[Inclosure No. 1]
Mr. Hurlbut to
Mr. Zapata.
Legation of the United States, Bogota, December 1,
1871.
The undersigned, minister resident of the United States of America,
has the honor to present his compliments to the Honorable Dr. Felipe
Zapata, secretary for foreign relations, and to forward to him the
inclosed claim for personal damages and to property, caused by the
criminal acts of Thomas Herréra and others in the recent revolution
in the State of Panama.
The inclosed claims arise out of the seizure of the American steamer
Montijo, which has already been the subject of a reclamation on the
part of the Government of the United States, and the evidence is
principally contained in the papers already tiled by the
undersigned. It is with very sincere regret that the undersigned
feels compelled to ask of the United States of Colombia just and
reasonable compensation for the private wrongs and injuries done to
American citizens resident within its jurisdiction.
The undersigned had hoped that the compensation in money would have
been arranged in an amicable way in Panama, and is, in fact,
informed that the question was submitted to a friendly arbitration,
but unfortunately it appears that although an award was made in
favor of Schuber Brothers for a large sum of money, the other party
to the arbitration was either unwilling or uuable to fulfill the
same.
Recourse has therefore been had to the undersigned as the diplomatic
representative of the party injured.
It certainly appears a hard thing that the general revenues of the
Colombian government, derived mainly from the industry of the
peaceable and law-abiding people, should be called upon to make good
the spoliations of unprincipled and reckless men, but there is no
other remedy, and the undersigned, therefore, on behalf of his
government, has imposed upon him the necessity of requesting that
the inclosed claims may be fairly considered, and, if found to be
valid, as he fully believes them to be, that prompt and adequate
compensation may be made.
The undersigned renews the expressions of high consideration with
which he remains,
Yours, &c.
Memorandum of claims. &c. arising out of
seizure of American steamer Montiio.
| A.—H. Schuber & Bros., owners, for damages for
detention, &c, loss of business and injury to
vessel |
$43,965 |
| B.—John Schuber for false imprisonment, &c |
25,000 |
| C.—J. H. Saunders, captain, false imprisonment,
&c |
5,000 |
| D.—Robert Howard, chief engineer, false
imprisonment |
5,000 |
| E.—Petty officers and crew, false imprisonment, &c, 4
at $2,000; 15 at $500. |
15,500 |
|
94,465 |
United States Legation, Bogota.
The undersigned hands to the honorable secretary of foreign relations
the above specification of claims, with the following remarks:
- 1.
- The price of the steamer per diem of her detention is
fixed at $500, being the amount which the government of
Panama would have to pay in case of using the ships, vide Boletin Official No. 274, 20th
December, 1869.
- 2.
- The undersigned is not prepared to set a money value upon
forced imprisonment of American citizens. In one sense it
can hardly be set too high; in another, as innocent people
must pay it, he leaves the matter for amicable arrangement.
He adds to the testimony already offered the deposition of
Augustin Castellanos, the Boletin Official No. 274, and the
Paceta de Panama No. 50, and a copy of the crew-list of the
steamer.
[Inclosure No. 3.]
Mr. Zapata to Mr.
Hurlbut.
Bogota, December 27,
1871.
The undersigned, secretary of the interior and for foreign relations
of the United States of Colombia, has received the note bearing date
the 1st day of December current, which General S. A. Hurlbut,
minister resident of the United States of America, addressed to him,
the object of which is to present a claim for losses and damages
arising
[Page 147]
from the capture
of the steamer Montijo executed by certain private individuals in
the national waters.
This claim, having been very carefully examined under the lightof the
doctrines and customs of the law of nations, and especially with
strict attention to the articles of the treaty which controls the
relations between this republic and that which is so well
represented by your excellency, the undersigned has very soon come
to the conclusion that the parties interested possess no right to
demand of the national government the indemnity which they seek
for.
On general principles governments are not responsible for the losses
and damages which foreigners within the limits of the respective
jurisdictions may suffer by reason of common crimes, except in cases
in which a notorious denial of justice can be proved in relation to
the special attempts which have given origin to such losses and
damages. As, in such cases, the work of justice consists in
apprehending the persons guilty of the wrongful act, in prosecuting
them in due form, and applying to them the punishment fixed in the
penal code, if they shall be convicted; it is evident that the
single fact of not commencing nor carrying into effect legal
proceedings against the guilty parties may be a ground for
reclamation against the government which fails in the duty of giving
protection to individual rights.
If, in addition to this, governments were bound to compensate for the
losses and damages suffered by foreigners, then immigration, far
from being considered as a benefit for a nation which encourages it,
must be looked upon as a misfortune, and, instead of encouraging and
stimulating it by offering aid, prerogatives, and exemptions, each;
nation would endeavor, on the contrary, to avoid it, in order to
free itself from reclamations in the innumerable cases of loss and
damage which the crimes of individuals might cause to the
immigrant.
Your excellency is perfectly aware that the capture of the steamer
Montijo was an, act committed by certain individuals who were
admitted by the officers of the ship as passengers, to be carried
from the port of David to the city of Panama.
The government of the republic, at the same time that it has deplored
and execrated: this act of violence, has taken, and continues to
take, all the means in its power to the end that these persons may
be prosecuted and punished. Nothing more is demanded or can justly
be demanded of any government.
The existing treaty between the two republics does not contain any
stipulation which could specially serve as a basis to sustain such a
demand.
Both parties are by this document bound reciprocally to bestow their
special protection to the persons and property of the citizens of
either, of all professions, traveling or resident in the territories
subject to the jurisdiction of either, “leaving open and free to
them the tribunals of justice for their judicial recourse on the
same terms which are usual and customary with the natives or
citizens of the country.” This is all.
The undersigned renews to your excellency the assurances of the high
and distinguished consideration with which he remains, yours,
&c,
True translation from the original on file in this legation.
S. A. HURLBUT,
Minister Resident,
United States of America.
[Inclosure No. 4.]
Mr. Hurlbut to
Mr. Zapata.
Legation of the United States,
Bogota, January 1, 1872.
The undersigned, minister resident of the United States of America,
presents his most respectful compliments to the Honorable Felipe
Zapata, secretary of the interior and foreign relations, and has the
honor to acknowledge receipt of his dispatch of the 27th day of
December, 1871, in which the executive power of Colombia declines to
consider the nation responsible for the payment of damages resulting
from the seizure of the American steamer Montijo.
The undersigned deeply regrets the decision announced in the note
referred to, inasmuch as he cannot concur in the reasoning of the
honorable secretary, nor in the results arrived at.’ It appears to
the undersigned that the wrongs from which this claim originated are
in their nature widely different from the case of ordinary robbery
or theft committed by private criminals or simple malefactors.
The existing laws of Colombia (Lei sobre orden publico, April 16,
1867,) recognize by a very strong implication the right of armed
revolution, and consecrate these disturbances of public order within
the States by requiring of the general government an absolute
neutrality, and depriving the national authorities of any right to
interfere, either to prevent, to control, or to put down such armed
demonstration.
[Page 148]
To foreign nations who deal only with the national government, and
cannot recognize the individual States, this denial of power to
interfere in or control such revolutionary attempts, amounts to a
sanction given by the laws of Colombia to the revolutionary
movement, and as a necessary consequence to the responsibility of
the nation for all wrongful acts committed against foreign residents
in the course of such revolution.
It is an inherent right and duty of sovereignty to protect its own
citizens, and foreign residents, under solemn treaties, from loss of
liberty and property. This is one of its essential attributes; the
chief purpose for which sovereignty is granted, one of the primary
ends and aims for which government is instituted among men.
On general principles, then, the undersigned affirms that it is one
of the primary duties of all governments to maintain peace and
public order, and the security of life, liberty, and property, and
that for any failure or neglect to do so they are responsible.
Especially is this the case if such government, after framing in
treaties the most prercise and clear guarantees of such rights to
foreign residents, (as in the treaty of 1848,) voluntarily, and
without consent of the other party, disarms itself of the very power
which is essentially necessary to the fulfillment of its treaty
obligations and compels itself to the melancholy position of
standing with folded arms in a useless neutrality, while its own
citizens and subjects commit acts of spoliation and violence upon
the property and persons of foreigners who are found within its
limits in full confidence of the protection and security solemnly
guaranteed many years before under pledge of the good faith of the
nation.
The undersigned has no hesitation in stating his conviction that the
law of public order of April 16, 1867, which compels the national
government to neutrality in domestic insurrection, is waste paper so
far as relates to the rights and privileges of foreign residents
found in this country under existing treaties, and cannot in any
manner relieve the national government from the full and faithful
performance of its treaty stipulations.
In the present case, certain persons in the exercise of this “right
of revolution” formed a conspiracy against the legitimate government
of the State of Panama. In pursuance of this conspiracy, by force
and by fraud they captured an American steamer, made prisoners of
the officers and crew, and used ship and crew as instruments in
their insurrectionary movements, held both ship and crew for
sixty-two days, and only released then when they had served their
purpose. This insurrection or revolution was closed by a treaty made
between the legitimate government of Panama and the revolutionists,
by the terms of which the State of Panama granted full amnesty to
the wrong-doers for all their acts, and assumed the responsibility
for all damages arising out of the revolution.
These facts, perfectly within the knowledge of the honorable
secretary, evidently distinguish the present case from simple crime
committed by private individuals, and invest the affair with a
public character, which not only justifies but requires that the
matter shall be investigated and adjusted by diplomatic
channels.
The undersigned is very clear in his opinion that it was the duty of
the national government to have protected the American steamer
Montijo and her crew from seizure; that it was the duty of the
national government, after she was seized, to have rescued her and
her crew by whatever force was necessary; and that these duties are
imposed upon Colombia by the laws of nations and by the terms of her
own treaties.
But the national government has failed to perform these duties,
whether from want of force, from misconstruction of its own powers
under the law of April 16, 1867, or from simple negligence on the
part of its agents. The cause of the failure appears to the
undersigned wholly immaterial; the fact exists.
The government having thus failed to protect or to rescue, the
persons aggrieved, through their diplomatic representatives, request
the only thing which is left, just compensation.
This compensation they ask of the national government with whom the
original contract was made in the treaty of 1848, and by whom the
breach of that contract was permitted.
It is not a case of injury committedby private criminals: it has no
single element of a private nature. It is not a case for the courts
under any construction of public law nor of existing treaties. For
all these reasons, imperfectly expressed as above, the undersigned
very respectfully declines the suggestion made by the honorable
secretary, that recourse should be had to the courts, and requests
that the honorable secretary would have the kindness to inform him
as speedily as possible if the views set forth in his dispatch of
the date of December 27, 1871, are the final and deliberate judgment
of the executive power in this matter, as the undersigned in such
case is under the necessity of referring the whole matter to the
Secretary of State at Washington, for the action of the President of
the United States of America, and desires to do so by the next
mail.
The undersigned avails himself of this occasion to renew the
assurances of high consideration with which he remains, &c.
[Page 149]
[Inclosure No. 5.]
Mr. Hurlbut to
Mr. Zapata.
Legation of the United States,
Bogota, January 3, 1872.
The undersigned, minister resident of the United States of America,
begs leave to inquire of the Honorable Felipe Zapata, secretary of
the interior and for foreign relations, what progress, if any, has
been made in the prosecution of the captors of the steamer
Montijo.
The honorable secretary is aware that several months have elapsed
since instructions were forwarded under his direction by the
attorney-general to the proper officers in the State of Panama, and
the Government of the United States desires to know from official
sources what steps, if any, have been taken.
The undersigned considers it his duty to inform the honorable
secretary that a very great feeling exists in the United States in
relation to the seizure of that steamer and the imprisonment of her
officers and crew, and that both the people and the Government of
the United States await with anxiety those processes of law by which
the malefactors shall be punished and the dignity of both nations
vindicated. By a dispatch recently received from the Secretary of
State of the United States, the undersigned is instructed to call
the attention of the Colombian government to this important affair,
and to urge the necessity of vigorous prosecution, without any delay
which can be avoided, to the point of conviction of the
offenders.
The undersigned begs leave to state to the honorable secretary that
he has explained to the honorable Secretary of State of the United
States the difficulties which surround the prosecution of this case
arising from the peculiar political and judicial system of the
country, and which embarrass the action of the national government
in the matter, and has also stated what he fully believes, that the
executive power will to the extent of its means of action, and in
good faith, endeavor to bring this matter fairly before the courts
of the country.
The undersigned renews the assurances, &c.
[Inclosure No. 6.]
Mr. Zapata to Mr.
Hurlbut.
The undersigned, secretary of the interior and for foreign relations,
has the honor to answer the note which the Honorable General S. A.
Hurlbut, minister resident of the United States of America, was kind
enough to address to him on the 3d of the present month, with the
object of inquiring into the state in which the prosecution against
the captors of the steamer Montijo is found. The government of the
union, as your excellency very justly believes, has made use of all
its constitutional power to hasten the progress of said
prosecution.
As soon as the attorney-general forwarded the proper documents to the
officer of the same position in the State of Panama, that he might
commence the proper preliminary examinations, this office urged the
government of said State to use all means within its power to the
end that the proceedings should be pushed forward with all the
activity possible.
The same request was renewed on the 22d of November and 6th of
December, and is repeated today, as before, with special charge to
keep the federal government advised by each mail of the progress of
said examination, in relation to which the only thing wihch can now
with certainty be said is, that the documents above mentioned
arrived in Panama in the beginning of October last, and that the
proceedings were; then about to be commenced. It is, however,
expected that the next mail from the Atlantic, now soon to arrive,
will bring more precise information upon the particulars, which will
be at once transmitted to your excellency.
Your excellency may confidently repeat to your Government the
assurance which you have already given, that the government of
Colombia does not and will not spare any effort within the limits of
its constitutional powers in order that in the shortest possible
time the tribunals of the country may render a decision upon this
question, a decision which the undersigned now assures your
excellency will be controlled by the most rigid justice.
The undersigned reiterates to your excellency the assurances,
&c.
[Page 150]
[Inclosure No. 7.]
Mr. Zapata to Mr.
Hurlbut.
Mr. Minister: The President of the Union
has considered with due attention your excellency’s communication
hearing date the 1st of January, and received the 3d, relating to
the indemnity for losses and damages caused to the owners and crew
of the steamer Montijo, and has commissioned the undersigned to
reply in the terms which he now proceeds to use.
Your excellency does not accept the views entertained by this office
in relation to the private nature of the offenses committed by the
captors of said steamer, and insist that the government of Colombia
is responsible for said losses and damages.
Your excellency thinks proper, in support of your opinion, to set
forth the following arguments:
That the wrongs which gave origin to this claim are of a nature very
distinct from that of robbery and theft committed by private
criminals or simple malefactors.
That the actual laws of Colombia, or rather that the law of April 16,
1867, on public order, by a very strong implication, recognize the
right of armed revolution, and by the fact of imposing upon the
general government and its agents a strict neutrality, give sanction
to the disturbances of public order in the States.
That so far as regards foreign nations, who only deal with the
national government and cannot enter into relations with the
governments of the several States, this want of authority to
restrain revolutionary movements is equivalent to sanctioning them
by the laws of the republic, and, as a necessary consequence, to the
responsibility of the nation for the wrongful acts which may be
committed during such disturbances.
That sovereignty has an inherent right and duty to protect its
subjects and foreigners resident against the loss of liberty and
property, this being an absolute attribute essential to sovereignty,
the principal object for which it is given, and one of the chief
ends and purposes for which government is instituted among men.
That the first duty of all governments is to maintain peace, public
order, and the security of life, liberty, and property, and that
they are responsible for neglect or failure so to do. That this is
the case especially with a government, if, after having entered into
the most precise and clear guarantees, in treaties, of such rights
in relation to foreigners, it should voluntarily disarm itself,
without the consent of the other party, of the very power which is
absolutely necessary to fulfill its treaty obligations, and should
place itself in the melancholy position of looking on with folded
arms in a useless neutrality, while its own citizens execute acts in
defiance of the guarantees given.
That the law of April 16, 1861, is of no value so far as relates to
the lights and privileges of foreigners resident in the country,
acquired by pre-existing treaties, and can in no manner relieve the
national government from the full and faithful performance of the
stipulations of such treaties.
Your excellency then, limiting yourself to the case of the Montijo,
states that certain individuals, “making use of
this right of revolution,” formed a conspiracy against the
legitimate government of the State of Panama, and in the course of
the same, by fraud and by force, seized upon this American steamer
and imprisoned her officers and crew, using them and holding them
for the fulfillment of their revolutionary purposes.
For the government of Colombia the private nature of an offense
committed upon the seas against individual property or security
consists in the fact of its being executed by persons who hold no
commission nor public position (oficio
publico) or duty, and who act as simple private
persons.
To estimate the true character of the capture of the Montijo the
executive power has considered no other documents than those
supplied by your excellency and annexed to your note of the 5th of
August last. From these documents there result in substance—
That the vessel in question was captured on the 6th of April, 1871,
by Thomas Herrera, Domingo, Diaz, and certain other individuals,
whom Captain Saunders, of the Montijo, had received on board in the
port of David in the character of passengers. That after having
taken possession of the ship they held her in their power and made
use of her until public order was restored in the State of Panama,
meanwhile keeping the officers and crew on board, and compelling
them to work the ship according to the will of the captors.
The fact of capture of the vessel took place before its authors had
disavowed the authority of the government of the State of Panama and
taken up arms against it.
“Neither Thomas Herrera, nor any other persons,” says the deposition
of John Schuber, “had established or proclaimed any form of
provisional government until after the taking of David, and not
before.”
“The taking of the city of David took place on the 7th day of April.
Neither Herrera, nor Diaz, nor any other person proclaimed himself
as a revolutionist, or in arms against the government of Panama,
until after the Montijo was captured.”—.(Deposition of Hannah E.
Saunders.)
[Page 151]
It results, then, that Herrera and his accomplices at the time of
seizure of the Montijo acted solely as private individuals, since at
that time they had not taken arms against the State government, and
could not be considered as belligerents in civil war or
revolutionists.
The undersigned cannot find in this offense a single circumstance
which can give it that public character which your excellency
assigns in the dispatch of the 1st instant. The jurisdiction of the
waters in which the ship was captured by individuals received on
board as passengers, without suspicion of hostile intent, belongs
exclusively to the federal government.
If after the crime was committed, and by advantages thereby gained,
its authors made a revolution against the sectional government of
Panama, can that circumstance change the nature of the offense
previously committed in another jurisdiction?
It is certain that the law of public order, cited by your excellency,
imposes upon the federal government the duty of preserving
neutrality in the domestic struggles within the States, but it can
by no means be understood that the law or the government recognize
in such revolutionists of a State the power of exercising
belligerent rights in a territory subject to the national
jurisdiction.
Whatever may have been the character of the revolution headed by
Thomas Herrera, his acts performed in the waters of the nation can
be considered in no other light than personal acts, for which he and
his accomplices are responsible before the judicial power of the
nation.
Where your excellency can find nothing but an act of a public
character, to which the law of 16th April, 1867, has given origin,
the undersigned perceives two acts entirely distinct.
Certain passengers on a foreign ship, engaged in legitimate commerce,
by wrongful use of force take possession of her in Colombian waters,
deprive the owner and crew of their liberty, and, doing violence to
their persons, navigate in open sea in the captured ship. This is a
most serious crime against the law of this country and international
law, a crime the punishment of which appertains to the federal
authority. The same individuals afterward employ the captured ship
to make a revolution against the government of Panama, which was
ended by agreement between the contending parties. This is another
act purely local, which may be tolerated by the law of public order,
but in nothing changes the character of the crime committed against
the persons or property of American citizens.
Can the fact that the captors of the Montijo afterwards carried on a
political movement in the State of Panama in any way alter the
nature of the violent acts by them previously committed?
A similar case to that of the Montijo, which occurred in Chili at the
end of 1851, may serve to illustrate the difference which exists
between violent acts committed upon the sea against persons and
property of foreigners, and the failure to protect the same on
account of mutinies or popular revolts.
In the course of a revolution headed by General Cruz, a government
official who commanded the garrison of Punta Arenas, led off the
force into insurrection, and violently took possession of two
foreign ships, one American, the Florida, the other English, the
Eliza Cornish—although these ships had been taken for the service of
the insurrection, the Admiral Moresby, commanding the British naval
station, recaptured the ships, and delivered the original captors to
the authorities of Chili.
These facts having come before the English admiralty, for the purpose
of obtaining a certificate to reclaim prize-money, Dr. Lushington,
judge of this high tribunal, decided among other things the
following principles in his masterly decision:
That the acts relating to the capture of the ships aforesaid ought to
be considered piratical, and in no manner connected with
insurrection or rebellion.
That although the acts were not committed on the high seas, the court
of admiralty considers that the possession of such vessels on the
sea, by the same individuals who had seized them, was a piratical
possession, and the having navigated with them on the high sea an
act of piracy.
That from the power which insurgents or rebels of a country might
possess, of committing acts of hostility against their own
government, it does not follow that they cannot commit piratical
acts against the subjects of other countries.
And finally, that acts of piracy constitute pirates without its being
necessary to examine if the individuals who commit such acts
intended to do so indiscriminately.
The capture of the Florida and the Eliza Cornish was not performed by
simple individuals received on board as passengers, but by the
forces of a revolution which held authority from the chiefs of the
insurrection, and notwithstanding such capture was held to be
piratical, and the undersigned has no knowledge that any
responsibility was ever sought to be charged upon the government of
Chili for such acts.
Your excellency has considered that the captors of the Montijo were a
party of pirates, and the Government of the United States of America
requests that they may be punished as such. The undersigned cannot
decide what was the crime committed, inasmuch as that is the
exclusive attribute of the judicial power. But in considering
[Page 152]
the last reclamation made
by your excellency, it was imperative to take into consideration the
one first made, in order to reconcile the terms of both; for, if the
captors of the Montijo were pirates, as the Government you so
worthily represent believes them to be, their acts have no public
character, and are mere common crimes.
The undersigned does not believe that any nation can be held
responsible for piracies committed by its subjects, or committed
within its waters, when it has neither encouraged them nor made
itself culpable by tolerating the offense. If the Montijo was
captured by pirates, the duty of the nation is to punish them with
all rigor for their crimes, and, so far as relates to the captured
property, the tenth article of the treaty with the United States
determines what ought to be done in such cases. It says, (Article
10, treaty of 1848:) “The executive power has not understood the
‘law of public order,’ in such manner that he could permit a failure
of protection necessary to the security of foreigners in domestic
struggles. Thus, when notice was received of the Panama revolution,
the commander of the national forces stationed in Panama was ordered
to give due protection to the persons and property there situate,
under the guarantee of public treaties, giving efficacy to the
liberty of neutral strangers, and respect to their property. The
Montijo could not have been captured and returned immediately to her
owners, for your excellency knows that the nation has no marine
force, and it cannot be asked that equal security be given on sea as
on land, and it is for this reason that crimes committed against the
security of ships and their crews are considered so much more
serious, because it is more difficult to give them effective
protection.”
Now as to the treaty by which the revolution of Panama terminated,
and which your excellency mentions to show that the government of
Panama conceded by its complete amnesty for all the acts executed
during the disturbance of public order and assumed the
responsibility of the damages caused, the undersigned is bound to
state that such treaty cannot have and does not have any effect
whatever, except in regard to those matters within the jurisdiction
of the state, and is wholly ineffective so far as refers to matters
within the jurisdiction of the federal government as are crimes
committed within the waters of the nation. The opinions expressed in
the present note, and in the one which the undersigned had the honor
to direct to your excellency on the 27th day of December last,
express the determination of the executive power in relation to this
reclamation, and as your excellency announces that if this republic
insists upon such decision, you must submit the matter to the
consideration of your government.
The President of the Union has sent proper instructions to the
representative of the nation at Washington, to the end that if the
Cabinet at Washington shall judge it convenient so to do, the affair
may be further discussed in that city.
With sentiments, &c.
[Inclosure No. 8.]
Law in relation to public order.
- Article 1. When in any of the States
any portion whatever of the citizens shall rise, with the object
of overthrowing the existing government and organizing another,
the government of the Union is bound to observe the most strict
neutrality between the belligerent parties.
- Article 2. During the continuance of
civil war in any State, the government of the Union shall
maintain relations with the constitutional government until its
authority shall cease to be acknowledged in the entire
territory, and shall recognize the new government and enter into
official relations with it as soon as it shall have been
organized, in accordance with the first paragraph of the eighth
article of the constitution.
- Articles. All laws and parts of laws
conflicting with the present are hereby repealed.
Approved, &c, &c, April 16, 1867.
True translation:
