I send a copy of said memorandum as an inclosure herewith, and draw your
attention thereto in extenso. I gave a copy of it on
the 10th instant to Colonel Mansfield, the British minister at this capital,
and to-day I sent a copy of it to Mr. Pyer, the German minister. Colonel
Mansfield has an instruction from his Government relative to the matter, as
now moved by our Government, but Mr. Pyer has not, as I understand from
him.
You will see, by consulting the 5th head of my memorandum, that the existing
law of Venezuela, in relation to her own consular officers abroad,
recognizes the principle that ships’ papers in a foreign port should be in
the custody of their respective nations’ consular officers.
I trust you will find my memorandum sufficiently full, clear, and strong, and
I have a good hope that the desired reform respecting the custody of foreign
ships’ papers in the ports of Venezuela will be effected.
[Inclosure in No. 686.]
memorandum respecting the matter of the custody
of foreign ships’ papers while in the ports of
venezuela.
Mr. Baker has the honor to very politely and respectfully recall the
attention of his excellency Mr. Seijas to the matter of the custody of
foreign ships’ papers while in the ports of Venezuela, concerning which
matter Mr. Baker has heretofore had several friendly conferences with
Mr. Seijas, and one with his Excellency, General Guzman Blanco,
President of the Republic, leading up to a friendly suggestion or
request of the President that Mr. Baker would obtain from his Government
a statement of the reason why a change respecting the matter in question
is desired, in order that he might present it in his next message to
Congress.
Mr. Baker has consequently been advised by his Government of the grounds
on which a strong friendly desire is felt by it for a change in the
premises; and he has been instructed to present to his Excellency
General Guzman Blanco a succinct memorandum founded thereon.
Mr Baker is advised by his Government that his Excellency the President
of the Republic “should be disabused of any impression he may have
formed that the matter is brought up as an innovation,” that “it has for
more than fifty years been the occasion of discussion and remonstrance
with various nations of Spanish America,” and that if it be now revived
in connection with Venezuela it is because it seems necessary to the
best interests of both countries that an anomalous practice should not
exist between them in this respect.”
In view of the friendly attitude of the President of the Republic towards
the matter in question. Mr. Baker will limit himself to a simple and
brief statement of the grounds on which it is deemed that it would be
advantageous to both countries if Venezuela should find it right in the
exercise of her sovereign powers to concur in the friendly views of the
United States respecting the subject-matter; and Mr. Baker believes that
these grounds are so strong in their bare statement that they will at
once arrest the favorable attention of the President.
1. It is eminently desirable that there should be agreement and harmony
between all the republics of the western hemispheie in regard to the
great general rules which they resort to in dealing with each other’s
ships; and indeed it is alike desirable that a similar harmony of usage
should prevail between all the nations of the civilized world. The basis
of such harmony should be the general opinion and usage of civilized
nations.
Now: “The law of the United States following the usage of most civilized
countries provides that the custody of the papers of foreign ships shall
rest with the consuls of their nations” except as to such foreign
nations as do not reciprocate this provision. The law of the United
States being thus in accord with the general practice of civilized
nations, rests upon a very broad and solid foundation of public usage,
not applicable to the United States only, but adopted and practiced by
most civilized countries, and applicable with equal force of reason to
all the rest.
2. “In the second place, apart from considerations of reciprocity founded
on treaty, the sacredness of the principles of reciprocity as an
enduring basis of international intercourse under the law of nations may
be forcibly invoked” in support of the same position. “A vessel under a
civilized flag on the high seas or in a foreign port possesses a
national life of which its papers are the strongest evidence. They are
to all intents a part of the vessel itself. To assume that by the act of
entering a friendly port, a vessel is to be stripped of that which is in
a large measure essential to the proof of its nationality, and to await,
the pleasure of a local foreign officer before such part of its life can
be restored to it, is inconsistent with international principles and
usage.” Hence it is found “that the custom of nations (with but few
exceptions in the Spanish-American ports of South America), recognizes
the consul of the vessel’s nationality as the sole guardian of all
national right appertaining thereto.” The exceptions referred to “are
happily growing fewer,” and, inasmuch as they are in contravention of
the general usage of nations, they cannot be regarded as resting on any
“broad principle of comity,” but on the contrary must be regarded as
violating comity. “The register is the evidence of the ship’s
nationality, and as such, with the ship itself, are properly within the
continuous jurisdiction of the vessel’s nation, and, therefore, in a
foreign port, within the jurisdiction of the consul of that nation.”
3. “In the next place, a conclusive reason for the custody of ships’
papers by the consul of her nation is found in the necessity of
preventing frauds against individuals in connection with marine survey
repairs, bottomry bonds, the right of absent owners, &c., and
protection of the rights of seamen. It is for these purposes that the
legislation of nations provides that the register of a vessel while in
port shall pass out of the control of her commander and into the custody
of the consul. It is not at all necessary that these diversified rights
should be subservient to the local police
[Page 921]
surveillance while in a foreign port, and yet the
rule existing in Venezuela so subordinates them. Moreover, the exercise
of these several rights over a vessel for which the laws of her nation
make abundant provision is rendered almost impossible by the passage of
the papers out of the control of the nation to which the vessel
belongs.”
4. Several cases of alleged loss of ships’ papers in the ports of
Venezuela under the existing practice have been brought to the notice of
Mr. Baker. It seems plain that it were better that the responsibility
for the safe-keeping of such papers while in port should be with the
consul who represents the nation of the ship.
5. Mr. Baker understands that the existing law of Venezuela, in relation
to its own consuls and commercial agents in foreign countries, wisely
recognizes the impregnable principle that ships’ papers in a foreign
port should be in the custody of their respective nation’s consular
officers. This law prescribes such custody by Venezuela’s own consular
officers of the papers of her own vessels during their stay in foreign
ports, provided, of course, that there shall be no contrary arrangements
in the country: (See Recopilacion de Leyes y
Deeretosde Venezuela, tomo IV, p. 395.)
The principle contended for in this memorandum is strong obviously,
invincibly strong, in every rational sense; and, in view of the good
disposition of the President in regard to the matter, Mr. Baker hopes
that the needed reform, solicited in so friendly a spirit by the
Government of the United States, will be acceded to in a like friendly
spirit by the Government of Venezuela.
