Mr. Washburn to Señor Benitez.
Sir: I had the honor to receive your note of the 16th instant on the following day, a little before noon. In this note, which is in answer to mine of the 14th, you, after giving a resumé of the contents of mine, proceed to give an account of the circumstances under which Mr. Porter C. Bliss and G. F. Masterman came into this legation.
In regard to Mr. Bliss you remark that soon after coming into the country he sought a contract for literary labor with the government that was conceded to him, and that from that time he had remained in its service and pay. Mr. Bliss informs me that he never had any written contract with the government, but was told he should receive certain compensation for the literary labors he was to perform; that from time to time he has received certain sums of money in payment of labor already performed, and that the amount received has not exceeded the sum due him. Such being his circumstances, I cannot see any good reason why I should not have admitted him into the legation and given him employment. You express surprise that I should have received a man of Mr. Bliss’s attainments and social position into the legation in [Page 746] the capacity of servant. You will permit me to observe that I think a wrong construction has been put on the word “service,” as employed in my note of the 22d of February. In saying that I had found it necessary to take more persons into my service than I had previously employed, I did not say in what capacity they were engaged. Mr. Bliss I needed as translator, and Mr. Masterman as medical attendant to my family, and as the peculiar qualifications of each were so well known I considered that it would have been entirely superfluous to state in what capacity they were employed. Nor do I find in consulting the most eminent authors on international law that ministers are ever required to state the capacity or character of the persons pertaining to their legations. It is enough that their names are given in, and, if not excepted to, they are thenceforth entitled to all the privileges of the legation.
In answering my note of 22d February, his excellency Señor Berges expressly recognized Mr. Bliss as belonging to the legation, but requested that, as he would not be known to the police as one of my servants, he would confine him self to it. In fact, he is the only person now in my house who ever has been recognized formally and in an official note. For some time after the order of evacuation was issued, Mr. Bliss and the most of those who came at that time to reside within my premises did not strictly confine themselves to it, though they never went far away from it. Mr. Bliss even continued to sleep in his own house opposite, and used to come and go in full sight of the police, and as he was never molested, concluded it was a matter of indifference to the government whether he still occupied his own house or confined himself to the legation. Indeed, when our unfortunate countryman, Mr. Manlove, came to grief, he went to the police office with him as interpreter, and, after his detention, took his meals to him for several times, so that I never could suspect his being a member of the legation could be questioned. He did not, as you intimate, seek refuge in my house. On the contrary, it was at my express request that he entered my service, though not as a servant, at a time that I thought his services would be most useful and necessary. You will, therefore, I trust, admit that, having accepted him as a member of this legation and given official notice of the fact, which notice was acknowledged, I cannot now repudiate him.
Respecting the case of Mr. Masterman, you say that it will be very painful to your government that, on account of a gracious concession to the minister of a friendly nation, he should have gained accession to this embassy to become criminal, and with impunity, under the immunities which are justly respected by the law of nations.
It cannot be so painful to you or to your government that anything of that kind should occur, as it is to me. To have my confidence abused in that way would show a degree of ingratitude of which I would fain hope no man is capable. But, if it has been so abused, and all that Mr. Masterman has been accused of shall be proved true, the law of nations prescribes a course for me entirely different from that proposed by your honor.
The law of nations, as you are aware, is very clear and explicit, not only in regard to the rights and immunities of ministers, but to all persons pertaining to their legations. “Such persons,” says Martens, (Law of Nations, book vii, chap. 9, note,) “are placed under the protection of the law of nations, and are consequently not submitted to the jurisdiction of the country which they inhabit, even though it may be their own. They cannot be tried for any of their civil or criminal actions, except by the state represented by the minister. The legislation of the principal states of Europe is positive on this point. * * * From the time that [Page 747] the persons of the minister’s suite leave his service they can be tried by the laws of the country where they are, if they are not subjects of the sovereign represented by the minister; in the contrary case the minister cannot consent to their extradition or to their being put in judgment for things done previous to their leaving him.” Thus you will see that if Mr. Bliss and Mr. Masterman were accused of specific crimes or offenses committed while in my legation, and had left it, according to this great writer, who, next to my own countryman, Mr. Wheaton, is generally regarded as the highest authority of modern times on matters of international law, I “could not consent to their extradition or to their being put in judgment,” except in their respective countries.
Says Wheaton, (part iii, ch. 1, sec. 15,) in speaking of the immunities of a minister: “This immunity extends not only to the person of the minister but to his family and suite, secretaries of legation and other secretaries, his servants, movable effects, and the house in which he resides. (Section 16:) The wife and family, servants, and suite of the minister, participate in the inviolability attached to his public character. * * * In respect to criminal offenses committed by his domestics, although in strictness the minister has a right to try and punish them, the modern usage merely authorizes him to arrest and send them for trial to their own country.”
Vattel, and all authorities on international law, so far as I have been able to consult them, agree substantially with those I have quoted; and the law being thus clearly and explicitly laid down, I would ask you whether you would have me respect or violate it? Of course you will say respect it. How, then, shall I send these members of my legation from my house, even though they be accused, without a direct and palpable violation of my duty as a minister?
Your honor adds that after the representations made, you lay aside the question whether or not these persons belong to the legation, and leave it to my sense of justice to expel them from my house after your narrative of facts, and the information that both Bliss and Masterman are important members of a combination which by agreement with the enemy was to have broken out shortly in the country, for the overthrow of its government and the destruction of the army that combats for its existence. That neither Masterman nor Bliss are members of such a combination of course I cannot prove, for to prove a negative is generally impossible. But if it shall be proved on full investigation that they are members of such a combination, I shall be more astonished than I ever was before. Ever since the evacuation of the city, Mr. Masterman, who is much addicted to scientific studies and investigations, has lived the life of a recluse, and had scarcely any communication with any one outside the precincts of the legation; while if Mr. Bliss, who has been all the while so intimate, so frank, so confidential on all matters with me that I supposed I knew every thought, and hope, and aspiration of his existence, has, as is alleged, been engaged in a great conspiracy all this time against the government, he is such an actor as would do infinite credit to his own dramas. He should at once drop the pen, and assume the sock and buskin.
Your honor will permit me to observe that the assumption that a person is guilty because he is accused, is in direct opposition to the principles of the common law. It is a maxim of this universal law that every man is innocent till he is “proved” guilty; but you appear to take the ground that as soon as a man is accused he is necessarily guilty, and you ask me to treat Mr. Bliss and Mr. Masterman as being so before a trial [Page 748] or before an examination, and before a particle of proof of their guilt has been given me. I must be governed by the laws of my own country, and according to them I must have the proofs of the offenses charged against a man before I can treat him as being guilty. You, however, adduce no proof, nor do you give me a particle of the evidence on which your charges are founded, and ask me to treat them as if guilty of high crimes.
The law of nations clearly prescribes the course to be followed when persons, members of a legation, are found to be engaged in any unlawful acts. It says that the government which it has offended may ask that they shall be sent to their own country to be tried, when the minister will be bound to comply with the request. Therefore if the charges and proofs against Mr. Bliss and Mr. Masterman shall be furnished me, with request that they should be sent to their respective countries to be tried, I shall then have no alternative but to comply, and at the first opportunity send them away—the one to the United States, the other to the custody of the English minister in Buenos Ayres. This course, it is hoped, will be satisfactory to the government of Paraguay, as it will remove persons obnoxious to it from the country, and will subject them to trial according to the laws of their own countries; and as there is little doubt that an American gunboat will soon be in these waters, there will probably be but little delay in carrying it into effect.
You will admit that I had good reason to be surprised at the statement in your last note that a combination had been formed which, by agreement with the enemy, was to have broken out shortly in the country, for the overthrow of its government and the extermination of the army which combats for its existence. That something of a dangerous character had been discovered I had previously supposed from having learned that certain energetic and unusual measures had recently been taken by the government. But of its form or extent, or of the persons implicated in it, I had not the most remote idea. Such conspirations not unfrequently happen during long periods of war, but I did not suppose there were men enough in Paraguay to make such a combination at all formidable who would have the folly to attempt it. There may have been men bad enough to attempt it, but I did not suppose there were any so foolish as to engage in a combination that could not offer any other issue than their own ruin. Your note of the 16th, however, convinces me that something of the kind has been attempted. But I cherish the hope that it will be found, after full investigation, that it is not so extensive as may have been apprehended; and I am very anxious to know, as I now confidently believe, that it will appear to be confined to a circle with which no person who has ever lived in this legation had any relations, connections, or intimacy, and I am fully persuaded that such a result of the investigation is the one that is most desired by his excellency Marshal Lopez.
Having thus reviewed at length the contents of your note of the 16th, I regret to find that my views of my duty differ as widely as ever from those expressed by you, and that, consequently, I see little prospect of being able to be personally useful by longer remaining here. For reasons your honor can well appreciate, I should have preferred to await at least the solution of the question of the passage of the American gunboat above the blockading squadron. Of course, if I remain, it will come sooner or later, if it takes the whole American navy to force its way. I apprehend, however, that rather than provoke a war with the United States the gunboat will be permitted to pass unmolested, and you will readily believe that I have no desire to save the allies from another such [Page 749] humiliation as they were subjected to at the time of my last arrival in Paraguay.
I improve this occasion to tender to your honor assurances of high regard and consideration.
His Honor Gumesindo Benitez, Acting Minister of Foreign Affairs.