Mr. Hurtado to Mr. Blaine.
Washington, May 9, 1890. (Received May 12.)
Sir: On my return to Washington, after an absence of several days, I have had the honor to receive your esteemed note of the 7th instant, in which you call my attention to your communication of the 31st of January last past, hitherto not acknowledged, for which omission I beg to present my excuses and crave your indulgence.
Your said communication refers to the claim preferred against the Government of Colombia for the act of Gen. Santo Domingo Vila, at the time civil and military governor of the department of Panama, when in the year 1886 he gave an order prohibiting the publication of the Star and Herald newspaper for a period of 60 days.
From my last interviews with your predecessor on the subject of this complaint, I had gathered the inference that this question would not be supported by the Department of State as a claim against the Government of Colombia, at least while it remained in its present aspect and condition, that is to say, not before the courts of Colombia declared the act of Gen. Santo Domingo Vila to have been within the scope of his legal authority, and I communicated this impression to my Government.
[Page 274]On receipt, therefore, of your note on the 31st of January last, I made known its contents to the minister of foreign affairs in Bogota; and not having as yet received special instructions in reference thereto, I must adhere to those previously given me, whereby I was ordered that, in the event of the claim in question being urged as against the Government of Colombia, I should represent and submit that, since the act of Gen. Santo Domingo Vila had been disavowed, redress for the consequences thereof should be sought through an action against him personally before the courts of Colombia, and that only in case the court cleared him from responsibility on the grounds that he had acted within the scope of his legal authority could liability attach to the Government of Colombia.
The remarks contained in your note of the 31st of January last are directed to show that not even colorable cause existed to justify the proceedings of Gen. Santo Domingo Vila on the occasion in question; and the action taken in reference thereto by the executive department of Bogota, ordering the suspension of the publication to be removed, lends strength to the views you express. The laws of Colombia afford redress against public functionaries who transgress their authority, rendering them amenable before the courts of the country and liable for injuries they may cause, even should they act under the cover of their official position. In no ease, however, is the Government responsible for such misdeeds, unless it adopts and makes its own the cause of the official at fault. The nonresponsibiiity of a government for the acts of its citizens, unless it upholds them, is not peculiar to the legislalation of Colombia. The rule has been adopted by most, if not by all, constitutional governments, and is contained in a declaratory form in treaties between the United States of America and every other nation on this continent; it may be said to have now become an acknowledged principle of American international law.
The preceding considerations lead to the unavoidable conclusion that the reparation which the Star and Herald claimants are in quest of for the injuries they are alleged to have suffered through the suspension of their journal by order of Gen. Santo Domingo Vila must be sought by bringing suit against him before the courts of Colombia, and only in the event of the courts declaring that the act complained of was within the authority vested in the civil and military governor of the Department of Panama, thereby defeating the action for damages as against the defendant individually, could any liability accrue to the Government of Colombia for the injuries sustained by the plaintiffs in the case.
In conclusion, I beg to remark, with reference to the observation contained in the closing paragraph of the note to which I have the honor to reply that, if nearly 4 years have elapsed without the Star and Herald Company obtaining redress for the wrong inflicted on them, it is owing to the fact that the claimants have not applied for a remedy through the proper channel, namely, the courts of Colombia.
Immediately upon the suspension of the Star and Herald being ordered, the measure was protested against by the representatives of the United States, and the matter was brought to the attention of the Government at Bogota. As an act of international courtesy, the Executive interfered, seeking to afford relief to the claimants. Presuming at first that the suspension had been ordered for good and valid reasons, Gen. Santo Domingo Vila was asked to reduce its extent or duration, but, when the Government at Bogota became possessed of a full knowledge of the facts connected with that deplorable incident, it demanded [Page 275] of Gen. Santo Domingo Vila that he either revoke his order or at once resign his office into the bands of General Renjifo.
This demand of the President of Colombia was not intended to relieve the Star and Herald Company from the consequences of the restraint placed upon them, for, when it was made, the term of suspension of publication had nearly expired. Its object was to mark in the strongest possible manner the disavowal by the Government of the proceedings of Gen. Santo Domingo Vila, to afford satisfaction for the remonstrances made through the representatives of the United States respecting the suspension, and to allow the consequences of the unjust measure to fall heavily on its responsible author. When the position which Gen. Santo Domingo Vila occupied in his own country is taken into consideration, it can not be denied that there was no partiality shown him in the course that was followed by the administration.
Later on a claim against the Government of Colombia was presented to the minister of foreign affairs for injuries alleged to have been suffered by the Star and Herald Company in consequence of the suspension of their journal. The executive department had shown its willingness to favor the claimants to the utmost extent within its authority; but it was powerless to deal with the question in the new form it had assumed, nor was the claim considered proper or just as against the Government of Colombia. The claim has for its foundation—and it could rest upon no other—the infringement of treaty stipulations, and section 4 of article 35 of the treaty of December, 1846, between the two Governments clearly points out who the responsible party is in the case under consideration, and thereby absolves the Government of Colombia from the pecuniary liability which it is asked to assume.
With the highest consideration and esteem,
I have, etc.,