Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part I
No. 94.
Mr. Hurlbut to Mr. Fish.
Bogota, January 16, 1872, (Received March 2.)
Sir: I inclose copy of my final note to Señor Zapata of the 9th instant. To this I have received a reply stating that instructions have [Page 153] been forwarded to Senor Perez for the conduct of the matter at Washington. I hardly see what more is left to be argued. There is a demand and a refusal, and one party or the other must yield. I venture to express the wish that the final decision of this matter may be communicated through me to the Colombian government, as it was commenced by me.
Yours, &c.,
Mr. Hurlbut to Mr. Zapata
Bogota, January 9, 1872.
The undersigned acknowledges the receipt of the two notes of the honorable secretary of the interior and for foreign relations, bearing date of the 5th day of January, 1872.
He has forwarded the entire correspondence on the subject of the pecuniary damages to the Secretary of State of the United States, for such final action as may be deemed advisable. Although the transaction is now out of the hands of the undersigned, and in the control of superior authority, he deems it proper to reply to the note of the 5th of January, that his silence may not be accepted as an agreement with the positions therein stated.
The principal point of difference between the undersigned and the honorable secretary appears to be as to the character borne by Herrera and others at the time of the capture of the Montijo. The honorable secretary seems to be of opinion that these parties did not assume the character of revolutionists until the proclamation of the provisional government. In other words, he seems to think that it is the declaration of the parties, not their acts, which constitutes them in revolution. If the doctrine laid down by the honorable secretary is true, that the capture of the Montijo was not a revolutionary act, because no revolution had been proclaimed, then the capture of the city of David, which equally took place before the proclamation, was not a revolutionary act.
The purpose and intent of all acts are properly derived from the acts themselves, which are more expressive and more honest than declarations.
Does the honorable secretary or any one else for a moment believe that the persons who captured the Montijo would have done so, except for the purposes of a revolution in which this ship was to be an instrument? Does the honorable secretary believe that men of the intelligence and social position of the leaders of this insurrection would have ventured upon the dangerous experiment of violating the American flag if they had not believed themselves “belligerents “and protected under the law of “public order “as such?
It is of no consequence whether that belief was well founded or not. No man can doubt that such was the belief of the capturing party. This ship was perfectly known to be navigating these waters under contract with the government of Panama, by which contract that government had the right to use her services if necessary for such purposes as they pleased.
Thus the capture of the ship was piratical as regards the United States of America, criminal as regards the United States of Colombia, but simply a belligerent act as regards the State of Panama, under the law of April 16, 1867.
It was a skillful strategic movement on the part of the revolutionists by which they not only obtained the control of the ship for warlike purposes, but at the same time deprived the constitutional government of Panama of a powerful instrument of offense and defense which they were lawfully entitled to use. In the highest point of view it was a belligerent act as regards the State of Panama.
The honorable secretary thinks he perceives an irreconcilable contradiction between the two demands made by the United States.
The undersigned has great pleasure in referring the honorable secretary to the decision of the venerable Dr. Lushmgton, quoted by him, that it is entirely possible for parties to be at the same time and in the acts “rebels against their own government and pirates as against foreign subjects.” The one crime by no means excludes the other; on the contrary, one is the consequence of the other. Rebellion against constituted authority nearly always brings these kindred crimes in the train of evils, and those who defy the legitimate authority of their own state or nation are not likely to respect the rights of foreign subjects, or of a foreign nation, especially when the property of such foreigners can be eminently useful in the prosecution of their insurrectionary movement.
[Page 154]The undersigned is not prepared to admit or deny the principle laid down by the honorable secretary, that in all local revolutions the navigable waters of the country as exclusively of national jurisdiction must be respected by the revolutionists. His information is that such has not been the case in past times, nor can he see in the law of April 15, 1867, any such limitation.
The failure to recapture the Montijo for two months while she was thus navigating these waters of “exclusive national jurisdiction,” and almost in sight of the national forces in Panama, is sought to be excused by the honorable secretary by the want of “marine force.” The undersigned fully believes that a firm and peremptory demand by the national authorities upon the revolutionists for the surrender of the ship would have been respected and obeyed by them. No such demand was made, nor can the undersigned consider for a moment as valid the excuse of want of force. A nation is bound to have force enough to vindicate its authority and to preserve public order.
The undersigned cannot resist the conclusion that the revolutionists themselves, the government of Panama, and the agents of the federal government in that State, all considered the Herrera party as acting in the whole matter in the exercise of a “right of revolution,” which gave them the character of belligerents under the laws of Colombia. In no other way can the undersigned account for the remarkable inactivity of the agents of the federal government during this long period of time, and for the singular fact, that, although this capture took place early in April, 1871, no action was taken by the general government for the prosecution of the criminals until after the demand made by the Government of the United States, through the undersigned, on the 5th of August, 1871.
The undersigned is well aware that the questions raised in this case are likely to give rise to very important discussions of principles which ought to be definitely set-tied; and it is for this reason, and from his anxious desire that all causes of discord may be eliminated, that he has written the present dispatch, although the subject-matter has been removed from his personal control.
He begs the honorable secretary to believe that in this he is actuated by the highest feelings of regard to the genuine prosperity and proper position of the United States of Colombia. He finds from the examination of the archives of his legation that almost the only source of controversy between the two republics has been for injuries suffered by American citizens in these disturbances of peace and public order, either local to the States or general to the nation. He believes that the archives of his colleagues of the diplomatic corps will show a similar state of things.
If, then, the discussion of this affair shall tend to the establishment of such principles and the enactment of such laws as may remove this element of discord from the intercourse between the two republics, more clearly define the rights of the citizens of either, and more promptly and effectually punish all invasion of such rights, the undersigned will feel that a great good has been accomplished, and that the feelings of amity which have hitherto existed between the nations will prevail also among their respective citizens and show themselves in the cordial and respectful recognition of mutual rights.
With, &c,