Mr. Becerra to Mr. Bayard.
Washington, May 14, 1885. (Received May 15.)
Sir: I have the honor to inform you that I have received your polite note of yesterday, and with it two printed copies of the communications exchanged between this legation and the Department of State with reference to the decrees of the Government of Colombia relative to the closing of ports, and the declaration that the vessels now engaged in committing acts of hostility against the city and port of Cartagena are pirates.
In acknowledging the receipt of the aforesaid note, and in thanking you for the courteous and opportune transmission of the said printed copies, I deem it expedient to ask your attention to a few considerations [Page 265] in regard to one of the two points in controversy, and, at the same time, to state the reason why without in any wise accepting the principles of doctrine according to which, in your extended note of the 25th ultimo, you impugn the right of the Colombian Government to close certain ports in its territory, I nevertheless do not insist on upholding and duly elucidating that right.
It happens that the controversy on this point is now practically unimportant as regards the efficacy of the results which the Government that issued the decree in question expected thereby to secure. The strong probability of a military dénouement which will certainly put an end to the spoliation of various national custom-houses, and the kindly spirit in which the different navigation companies whose vessels visit that coast for purposes of trade consented to the closing of the ports, suspending all shipments to them, are two circumstances which give the measure in question the character of a definite fact, for which reason it is scarcely necessary in referring to it to leave any record of dissent with the principles of doctrine set forth, or of the regret thereby occasioned to this “legation, which entertains a high respect for the judgment of this Government and for your own enlightenment.
The case is unfortunately not the same with respect to the true condition of the vessels now engaged in acts of hostility against Cartagena, the persons on board of which are threatening to give full rein there also, as their coadjutors have already done on the Isthmus, to their lamentable material irresponsibility and to the perverse instincts of their leaders. The increasing dangers which the existence and the, thus far, unrepressed action of those vessels involve, not only to the cities and towns of Colombia, but also to the interests of foreign residents on that coast, and even to the fundamental principles of international morale and security, as well as the fatal consequences that will result hereafter from a precedent authorized by the high respectability of the American Government, induce me to request you, Mr. Secretary of State, as I hereby very respectfully do, to reconsider, in view of the reasons which I shall endeavor to state as briefly as possible, the decision reached by you on this subject in your aforesaid note of the 25th ultimo.
The case is not, Mr. Secretary of State, as you take it for granted, that of an ordinary insurrection or civil way, in which the enemies that are contending by sea against the legally established Government cannot and ought not to be considered as pirates until they have rendered themselves deserving of that title and of the punishment which it involves by actual violations of international law to the prejudice of neutral nations. It is true that the vessels now engaged in hostilities against a portion of the Colombian coast are instruments of war in an insurrection against the regularly constituted Government of that country. It is also true that the main object of their hostilities is the authorities of that Government and the military forces that are sustaining those authorities and defending their existence.
It is necessary to examine, however, how those vessels have become instruments of war, and what is at the present time the nature of the forces that are commanding and manning them. This will enable us to ascertain what is their true character in the light of international law, which, as is well known, is the code of moral rules by which all civilized countries of the present day shape their course of conduct.
I can assure you, Mr. Secretary of State, and I will even add that there is evidence of this at the Department of State, that all those vessels, with the single exception of the General Cordova, which is the property of the nation, have come into the possession of the insurgents [Page 266] through the commission of acts of robbery identical in their nature and the means whereby they were committed with those which are characterized as piracy by American law (section 5370 Revised Statutes of the United States), and for whose perpetrators the penalty of death is provided.
The Game Cock, which is now known among the insurgents as the General Gaitan, belonged, for a time, at least, to the Panama Railway Company, and was forcibly removed from the Bay of Colon and taken to Cartagena by Benjamin Ruiz, one of the most active accomplices of the outlaw Pedro Prestan.
The Camacho Roldan, another of the vessels in the service of the insurgents, belongs, if I am not mistaken, to an English company, the Atlas Line, which, in the prosecution of maritime trade, navigates the Cartagena channel. This vessel was likewise forcibly taken from the service in which it was engaged and from the control of its lawful owners by Ricardo Gaitan, one of the ringleaders of the insurgents, and is now in the mouth of the channel—that is to say, in one of the localities mentioned in the aforesaid section 5370 of the Revised Statutes.
It is, moreover, a matter of public notoriety that the outlaw Prestan, after his flight from the city of Colon, which he had invaded, took forcible possession of Portobello, and of one or more large vessels, on board of which, together with many of his followers, he repaired to Cartagena, where he is now co-operating in the siege and perhaps in the ruin of that historic city.
In view of these facts, and their nature being compared with the principles on which, in the present case, American law is based, I am unable to see how it could be maintained that a flotilla thus constituted (and whose officers and men are, if not all, at least in great part, the same who committed those acts of depredation and violence) deserves to be considered as a mere instrument of war of a political insurrection. If this opinion were to prevail, being supported by so high an authority as the American Government, it would be difficult to see to what a wretched extreme of insecurity and abandonment the interests of commerce and of civilization in general would be reduced on the coasts of those countries which, like Colombia, owing to their trusting, perhaps, too implicitly in peace and in the elements which are fostered by it, have no permanent forces sufficiently strong to prevent crime, because it is evident that then all that the captors of defenseless merchant vessels would have to do, in order to secure impunity, would be to cover the latter, when once in their hands, with the flag of the same country, and declare war against the constituted authorities.
It will be urged that the repression and punishment of such outrages are matters to be attended to by the authorities of the country in which they are committed, to which it is easy to reply, first, that the state most directly injured thereby can with great difficulty prevent them, much less punish them in time.
The powerlessness which occasioned them is equally great, or still greater, to effect their punishment.
If the crime can be committed owing to the lack of vessels, it is evident that, owing to the same lack, the consequences of the depredation may be indefinitely delayed. And then the violation of international law, to the detriment of other nations, which, in such cases, is what constitutes the crime of piracy, naturally widens the jurisdiction of the judges who are to punish it. All civilized nations not only may, but ought, the case arising, to exercise that jurisdiction thus amplified, and with it their own right of self preservation and self-defense.
[Page 267]I am not aware that there is a single precedent in the history of the complicated enforcement of the rules of international law whereby the doctrine is established that merchant vessels which have been forcibly removed from the service in which they were engaged, by threats against the lives of their captains and crews, by surprise, and in bays, roadsteads, or mouths of rivers, “or in any river where the sea ebbs and flows,” as the American statute says, can be made to constitute a regular force, worthy of the respect, not only of neutrals, but even of the very nations whose subjects or citizens have been the victims of such act of violence. In support of the opposite argument, I can cite many authoritative examples, among which the most pertinent is doubtless that of the Magellan pirates (see Phillimore), the law in which case was laid down by the English Judge Lushington. Certain individuals rose in arms, in the year 1851, against the authority of the regular Government of Chili, captured in the Strait of Magellan (which at that time had not been declared neutral by Chili) the Eliza Cornish, an English, and the Florida, an American vessel, and, after murdering one of the two captains, they placed both vessels in the service of their cause, hoisting the Chilian flag over them. The Government of that Republic (as does now that of Colombia) declared the said vessels to be pirates, and Admiral Moreby, who was then in command of the British naval station in those waters, ordered them to be pursued as such, and sent the Virago, a British man-of-war, for that purpose. The action of this vessel was so energetic that both vessels were speedily recaptured, and the leader of the band of insurgents and his accomplices, having been apprehended, were turned over to the Chilian courts, and were subsequently tried and punished as pirates.
“I am of opinion,” said Judge Lushington, in the final decision pronounced by him in this case, “that the persons who did these acts were guilty of piracy. * * * It has been said that these acts were not committed on the high seas, and, therefore, this murder and robbery not properly or legally piratical. But in this case the ships were carried away and navigated by the very same persons who originally seized them [just as in the Colombian case]. I consider the possession at sea to have been a piratical possession, and the carrying away the ships on the high seas to have been piratical acts.”
The agreement of the facts and the nature of the doctrine established could not be more striking; I mean the agreement of the facts with those of the origin of the vessels that are now making war upon the inhabitants of the Colombian coast, and the agreement of the doctrine above established with the fundamental principles of American law on the subject of piracy.
The manner in which the aforesaid vessels were converted into instruments of war in the service of the insurgents having been sufficiently elucidated, it remains to examine the character subsequently assumed by the forces of those insurgents which are now operating against Cartagena.
It is well known that the incendiary of Colon, at the head of about seventy of his accomplices, arrived in that port on board of the vessels captured by him at Portobello, and that a command was at once given to him among the forces of the insurgents, who, by this fact alone, lose any title that they otherwise might have had to consideration as representatives of an armed political movement. This is true, because, by associating with such men, and, what is even more serious, by giving a superior military command to their depraved leader, and with it the [Page 268] means of committing at Cartagena a crime equal to that committed at Colon, those insurgents declared by implication, though none the less positively, that they accepted the responsibility and consequently the disgrace of that act of vandalism, thereby pursuing a different course from that of the insurgent leader at Panama, who at least tried to extenuate his own guilt by stipulating (although unnecessarily and although he had no right to do so) for the punishment of his lieutenant.
The territory which was partially laid waste by the torch of Prestan and his accomplices is, to a great extent, neutral territory, free to all nations, and open to their commerce and their people; in a word, it is the means possessed by those nations for communication between two hemispheres, and there the interests of the civilization of the present day have met, as it were, on common ground, in order that they may be mutually benefited and harmonized. For these numerous reasons it is proper to ask how those same nations and those same interests which were savagely attacked on the Isthmus of Panama by Prestan and his accomplices can respect that leader, his auxiliaries of yesterday and his upholders of to-day, now that the scene of his action has changed; how the United States Navy, which was, to a certain extent, a victim of the outrages and felonious acts of that outlaw, after having cooperated, in the name of its Government and in fulfillment of a treaty, in checking him at Colon, is now to respect him at Cartagena, considering him and his vessels as regular forces of an insurrectionary movement. The English admiral who recaptured the Eliza Cornish and the Florida, also took Cambiaso, the leader of the insurrection and the captor of those vessels, and it is certain that, if he had succeeded in escaping, and joined the partizans of his cause in any other part of the country, that mere change of locality would have affected neither the right by which the British officer so opportunely acted nor the principle on which he thus acted.
I take the liberty to call your attention, Mr. Secretary of State, to these decisive circumstances, and likewise to the no less important one that the United States, being bound by a treaty to guarantee the neutrality and safety of transit across the Isthmus of Panama, their Government cannot be indifferent to anything closely connected with that important obligation, owing to the mere circumstance of a change of locality. It would be inconsistent, to say the least, for the criminals who have disturbed the safety of transit across the Isthmus to be considered as mere insurgents against the authority of the Colombian Government, because they have retired to Cartagena, where they surely desire to secure a foothold, in order to return to their work of disturbance and devastation on the Isthmus.
These are the considerations which, without expecting (much less asking) from the United States Government more than has been mutually promised to each other by all civilized nations for the repression and punishment of the crime of piracy, I very respectfully submit to your enlightened judgment, Mr. Secretary of State, in the hope that they may induce you to view the subject now under discussion in the light in which it seems to me that I have presented it in this note, which I hope will, in due time, be also published.
I have, &c.,