[Translation.]

Señor Benitez to Mr. Washburn.

I have received the note of your excellency, dated the 28th ultimo, in reply to that which I, on the 27th, had the honor to address your excellency, acknowledging the receipt of your note of the 22d, in which you confirmed the fact that the Portuguese subject, José Maria Leite Pereira, was sheltered in the American legation, in opposition to all governmental arrangements, and limiting myself to request the delivery of the said individual, accused of a grave offense, and who was to appear before the appropriate tribunal.

As in the same note I announced to you that I reserved to another time my reply to the different points touched upon in your excellency’s note of the 22d, and as, besides, the last dispatch of your excellency of the 28th contains other points not less important, and which, like the former, directly affect not only unquestionable rights, but also the principles which govern the conduct of nations in their mutual relations under the empire, of reason, of justice, and of law, you will permit me to consign in this note my reply to the two above-mentioned notes of your excellency.

Referring to my note of the 20th, in which I begged for information as to the fact which had been stated of the shelter given to Leite Pereira in your legation; the character and motive of his staying there; as well as concerning the request I made to be informed by list of the persons who, without belonging to the legation, are sheltered in it, you say that all these questions belong to the internal affairs of the legation, and that, consequently, your excellency is not under obligation to give any reply to it, except as a matter of courtesy.

You add that Leite Pereira went to that legation, accompanied by his wife, on the 16th ultimo; from that time he has remained as a guest; and that of motives of his going there your excellency is not further informed than that they were founded upon the representations of Mr. Guberville, at present charged with the French consulate, after his return from his late visit to San Fernando; and close the note of the 22d giving the list asked for of persons, and stating that although not belonging to the legation, your excellency has received them within it, some as guests and others in other capacities.

First of all, I must manifest to you that the expressions referred to as from Mr. Cuberville prove, although in a very unsatisfactory manner, that the refugee in question sought the house of your excellency to escape from justice, and, for the same reason, the title of guest given him by you with that knowledge does not appear to afford a very correct [Page 731] explanation. And, respecting the declaration of your excellency, that you were under no obligation to give the explanations called for by my government, concerning a subject of vital interest under present circumstances, I must declare in my turn that you can have no right in the present case to deny the information and the explanations solicited in my note of the 20th, for the reasons which you will find in the present; but before going further I will make a summary of your note of the 28th. In it you state that at 6 o’clock, on the 27th, my note of that date was delivered at the legation, and that one hour after its receipt arrived the officer alluded to in my note; that you informed me that you would not then deliver up the said Leite Pereira, but would write a reply to my note, adding that the reading of my note had caused you great surprise at seeing that, concerning two very prominent points, it did not show the respect due to the accredited minister of a friendly nation; that your excellency was requested in an almost peremptory manner to deliver up a gaest; that this request to deliver up one of your guests to an officer of police, sent to take him away, appears to you of so strange a nature that under no circumstances whatever could you accede to it; that all which you could do, even when the imputed crime was grave and specific, would be to notify the party that the legation could no longer shelter him.

And, after other observations made from this point of view, after citing Vattel and other writers upon international law, your excellency closes, requesting that the specific charges made against the said Leite Pereira may be communicated, in order that, should they be of the grave character requisite, he may be informed that that legation can no longer shelter him.

Having thus summed up the most essential points of your excellency’st wo notes, to which I have the honor to reply, I will immediately state to you that, according to the letter and spirit of said notes, your excellency has not chosen to give all your attention to a subject of such importance, looking from a very limited stand-point at the high principle son which the international code is based, and even refusing to recognize the legitimate right which my government has to take the measures which you so much wonder at, and which I doubt not you will reconsider.

It is painful for me, Mr. Minister, to find that your excellency has discovered in my notes any ground for the complaint made of lack of respect towards the accredited minister of a friendly nation, when my desire has been to abound in the contrary, according to the constant policy of my government, much more when this ministry had grave motives of complaint concerning the lack of consideration shown by you towards this ministry, and, what is more, toward the government itself; and since your excellency has chosen to provoke this controversy, you will allow me to mention these just motives.

You will remember that when the state of the war in which the republic is engaged against its pretended conquerors demanded that the city of Asuncion should be abandoned by its inhabitants, and declared a military post, the government ordered its entire evacuation, as was communicated to you at the proper time, which order was scrupulously obeyed by natives and foreigners without distinction; but you, making yourself the only exception, thought it your duty to contravene the said disposition of the government. It was then that this government expressed the hope that this circumstance, regrettable for it, would not be the cause of any contravention of the government’s orders. Notwithstanding this, and the official statement made by you of having admitted[Page 732]temporarily into the legation several English families, your excellency has thought it your duty to continue maintaining in it a large number of foreigners of different nationalities, whom you admitted at a moment when, though without any foundation, they might believe themselves in danger from the approach of two hostile vessels; and you ought to be persuaded that although the government was not obliged to do so, yet, in pursuance of its usual policy of moderation, it chose to tolerate this conduct, in order that, since they were already within the American legation, they might not be troubled, confiding that the minister of the United States would dismiss them as soon as the grounds for fear had passed. Nevertheless, it is nearly five months since the two hostile vessels appeared and were momentarily in the port of Asuncion, and since all peril towards these individuals ceased.

Since that time, disagreeable circumstances have occurred between this ministry and the legation of your excellency, through the provocations given by your refugees, and, nevertheless, not one of them has left that residence in fulfillment of the orders of the government, and, on the contrary, others are received, as is proved by your notes.

Besides this, you ought to remember that your excellency has not had the goodness to communicate to this ministry even the simple acknowledgment of its note of the 23d of February, in whieh, among other things, it was said that in the desire of avoiding whatever disagreeable incident, it consented to the residence of the American citizens Bliss and Manlove in the dwelling of your excellency, but with the warning that, not belonging to the class of servants in which they appear in the list of the American legation, they cannot go out of it, in which case the police ought to arrest them, as was repeated to you in the posterior note of 4th March; but your excellency has been pleased not only not to acknowledge the receipt of that note of this ministry, but has regarded its request with little consideration, allowing the said individuals to go into the streets of the city, and, nevertheless, expressing in your note of March 24 that you did not recognize any violation of law or culpability on the part of Manlove, when, without any competent permission, he went to open the house of a French subject who was absent from that point.

When the consecutive cases of Manlove, Watts, and Bliss occurred, involving direct provocations to the authorities, this ministry, seriously calling the attention of your excellency, instead of proceeding to other measures, which it might rightfully have adopted, requested of you an assurance that these insults would not be repeated, but you did not choose to offer any. Nor did you see fit to acknowledge the receipt of the note of February 22, although it was accompanied by the governmental edict of the same date, ordering the total evacuation of the capital, it having been declared a military post, nor that of the 28th of the same month, in which your excellency was notified, by an authentic copy, of the supreme decree, which declares all the territory of the republic in a state of siege.

In spite of these antecedents, this ministry, being guided by the grave and circumspect policy of the supreme government of the republic, has guarded a conduct full of moderation towards the representative of the friendly nation of the United States, who cannot, without injustice, fail to recognize this fact; and it is indeed owing to this circumstance that I much regret that your excellency attributes to my note of the 27th any lack of respect towards the accredited minister of a friendly nation; and I can assure you that it is beyond my power to conceive that by the act of soliciting the delivery of a culpable person, who had [Page 733] taken refuge in the legation, and of having sent an officer to seek him, two hours after the delivery of the note, there can be inferred any offense to justify any such complaint.

I cannot but express to you my sincere thanks for the acquiescence or courtesy which your excellency supposes yourself to have used in giving me an account of the persons sheltered in your hotel, and you will permit me to declare, in turn, that this ministry cannot recognize in you the right to refuse to reply to the query made in its note of the 27th ultimo, since if this information belongs to the internal affairs of the legation, it does not less appertain to the territorial sovereignty of the place of your residence, as is demonstrated in the case of Leite Pereira, whose disappearance was not accounted for until your excellency’s note of the 22d ultimo.

Returning to the subject of sending an officer of police to accompany the person demanded, I cannot understand the reason which you can have had for so imperiously declining to deliver up the person in question. Although there may be no precedent for it, it is in the natural order of things, as derived from common practice; but your excellency shows conclusively that you are in no case disposed to give up to the authorities any of your refugees, but at most to say to him that your house can no longer give him asylum. If there could be any offense in the sending of the said officer, I consider it well washed out by your excellency’s negative and the sending away the same officer without having fulfilled his commission, it being, for that matter, very indifferent whether Leite Pereira be delivered up or dismissed from the United States legation, to be arrested in the street by a less distinguished functionary.

Your excellency says that, according to all writers upon international law, a foreign minister is not obliged to deliver up his refugees, except for some high and specific crime against the state or the sovereign, and adds, that this being recognized as law in such cases, it follows that before giving up Leite Pereira you ought first to call for the manifestation of the specific offense or offenses of which he is accused. Without recognizing in an absolute sense this principle, it is incumbent upon me to say upon this point that when the government of the republic solicited the delivery of Leite Pereira, clearly expressing that he had violated governmental dispositions, which is evident and notorious to your excellency yourself; besides the statement that he was accused, and that he must appear before a tribunal, you should not have hesitated a moment in recognizing that the criminality of the said individual is not of the character of the common offenses mentioned in your quotation from Vattel. From this point of view, I do not perceive any obligation to give you any more explanations concerning the crime of the accused person, whose appearance before the appropriate tribunal is imperatively necessary; and, on the contrary, I have reason to be much surprised at your pretension to be informed of the specific charges against Leite Pereira, in order that, should they be of the grave character requisite, he may be advised that he can no longer be sheltered; that is, constii tuting yourself the only judge of the question, and of the case of the delinquent in this country. To recognize in you this attribute would be to abdicate on the part of my government its rights and prerogatives, to the lowering of its honor and national dignity.

Please accept my special thanks for the transcription of a part of the paragraph 48 of chap. 9, book iv, of Vattel, and believe that it is precisely in view of this same quotation, and of what follows in the work of that celebrated author, that I have requested of your excellency that [Page 734] Leite Pereira should be placed in the hands of justice. And this is, Mr. Minister, as much as I think myself authorized to say in the matter of the guest who has provoked the discussion, trusting that you will consider yourself sufficiently informed to do justice to yourself in the case.

It has been precisely in order not to be obliged to molest you by following the course indicated by strict law, that this ministry has more than once expressed the desire that you would not shelter in your hotel, nor in its rear premises, so many persons of different nationalities, to the degree of depriving the public workshops of their artisans for many months, such as George Miles, prisoner of war, placed in the pay and service of the arsenal upon the same footing with the contracted operatives, John Watts, engineer, and William Newton, director of the foundery, all of them English, who like others are sheltered in your hotel.

Besides, the privilege of asylum, so long maintained without apparent motive, in a purely military post, without other inhabitants than the American minister, his guests and refugees, as your excellency calls them, might justly have given rise to a serious discussion concerning the extension which your excellency wishes to give to the immunities of your hotel; but the government has carefully endeavored to avoid it, and has limited itself in the matter to slight and friendly indications.

In what relates to the official character which you attribute to the refugee, I must say that before reaching the house of your excellency he received in the morning of the 16th ultimo a note from this ministry, in which, by virtue of a declaration of the chargé d’affaires of his Most Faithful Majesty the King of Portugal, he was notified that in the question which arose between him and the vice-consul of that nation long since, the latter alone would be recognized as the person with whom to treat in matters concerning the consulate of his Most Faithful Majesty, and that the former could not be recognized in the character of administrator of the consulate, which was solicited for him by Mr. Consul Madruga, by a note addressed to this ministry, but not answered. This fact leads me to omit all discussion of the question, especially since the same guest of your excellency will have informed you in detail of all that occurred with the government in this respect, in view of the official documents.

And I must ingenuously say to you that, although I am far from knowing the motives which led you to refuse to allow Leite Pereira to carry into effect his express desire to leave that legation to go and deliver himself to the authorities, I desire to respect the reasons which may have influenced you.

Although I do not propose to discuss here the incompetence of the location of the American legation within a military post, I must observe that I trust you will not fail to perceive that since Asuncion was converted into a military establishment, and the government and people, as well as the foreign agents and subjects residing in other places, not only the laws of the state are affected, but also a formal embarrassment has been created to the internal management of that post, by the existence of a diplomatic hotel within its limits.

Leaving aside, then, the question of the residence of your excellency in Asuncion, where there are no objects of diplomatic attention, I proceed to state to you that the ostensible motive of the asylum given by the American legation having ceased, that asylum must also cease, especially since it has begun to seriously affect the military regulations of the post and the most precise Orders of the government; that if at the moment of the evacuation of the city that asylum was tolerated, [Page 735] there is no reason, nor is it to be permitted, that such a state of affairs continue as a place for refuge; and declaring that I am under no obligation to give any explanation either respecting the individuals comprehended in it, nor of those who in future may take refuge there. Without any fear of committing myself, I can assure you that you cannot cite any precedent, and that, on the contrary, no one can fail to recognize the reason and justice which characterize the loyal and prudent conduct of my government in a question of great political transcendency; and you yourself must recognize that, under all its aspects, such a house, with diplomatic immunities, affords the greatest inconvenience and peril in a strictly military post. In a word, Mr. Minister, I cannot for a moment doubt that you, weighing in your mind these grave considerations, will find that the exercise of your ministry and of the immunities of your legation is incompatible with the condition of the place of your residence; and that by the simple fact of having placed it in a military post your excellency has relaxed a part of its privileges, and especially the right of asylum.

But these circumstances assume a still graver character when your excellency declares officially that Leite Pereira, like yourself, is totally ignorant of the nature of the accusation made against him, and since your excellency constitutes yourself the judge who should determine upon specific charges against your guest, whether the asylum should cease or continue.

Notwithstanding, my government, always disposed to observe every consideration toward the friendly nation of the United States, and to do in favor of its minister all that the welfare and the best defence of the state may permit, must declare that the refugees of your hotel can no longer be indefinitely tolerated in a military place without fear that, abusing their asylum, they may become dangerous to the state, if not agents of the enemy; and taking into consideration the situation of the republic and of the city of Asuncion, as well as the circumstances expressed in relation to the declaration made by you in your note of April 4th, that you cannot offer any securities that occurrences like that of Manlove, or others similar, will not be repeated, this government must call your serious attention to the point.

In attention to what has been stated, I request you will please dismiss from your hotel to-morrow, before sunset, the said Leite Pereira, as well as all the other individuals who, not belonging to the legation, are at present in it, some as guests and others in other capacities, as your excellency expresses it.

I will not conclude, Mr. Minister, without making another observation of high interest, which is, that when in general native and foreigners have religiously complied with the order for the evacuation of the city, and the government affords them all protection and assistance possible in the state of flagrant war existing within the country—struggling hand to hand with the enemy which tenaciously strives to exterminate them—when public order, the morality of the people in all parts, and governmental dispositions guarantee persons and interests, the indefinite permanence of these persons in the American legation cannot be taken in a favorable sense, these circumstances being in themselves sufficient, without referring to other antecedents, to call seriously the attention of the government upon it in the solemn moments in which we are living.

These powerful considerations constitute the fullest justification of the request of my government, and I cherish the most positive confidence [Page 736] that you will recognize not only the justice, but even the moderation of this petition, and that that asylum will cease.

I embrace this occasion to renew to your excellency the assurances of my distinguished consideration and esteem.

GUMESINDO BENITEZ.

His Excellency Charles A. Washburn, Minister Resident of the United States of America.