Señor Benitez to Mr. Washburn.
I have had the honor to receive your note of the 23d instant, in reply to that which I addressed you, bearing the same date, requesting the delivery of a sealed package of communications, which was delivered to you by the ex-Minister Berges. You state that neither in the two visits which you made to Berges, nor upon any other occasion, did he ever [Page 761] give you any package or communication of any kind, and that therefore I must be very ill-informed in that respect, since you have never received anything of that class, nor have you received from him any communication, either verbal or by letter, since his return from San Fernando. I have also received two other later notes, of the 25th and 26th instant, the first being in reply to my other note of the 23d, concerning the question which relates to Porter Cornelius Bliss and George F. Masterman, whom you consider as members of your legation, setting forth that, as to the question whether they are or are not justly and legally such, you waive the point, but that as you consider them as members of your legation, they are not subject to be judged by the tribunals of Paraguay; that if the government is nevertheless convinced that they are not members of the legation, it may prosecute them as criminals and fugitives, and that the writers upon international law have fully prescribed how such individuals may properly and legally be taken from the house of a foreign minister, but that the responsibility in this case will be upon the government of Paraguay, and not upon you. At the same time you make a fuller statement respecting the package of papers asked for in my note of the 23d, giving an extract from an entry in your diary. The last note of your excellency is accompanied by a communication from Porter Cornelius Bliss, who, you say, requested it to be forwarded; the said communication containing some revelations which suppose the existence, at a former time, of a secret committee composed of himself and other foreigners, the form and text of this communication appearing to be intended as a justification of his pretended innocence.
I shall reply to these notes together, as being coherent parts of the principal subject.
Although there are some points in these notes which I have read not without surprise, and which deserve to be immediately replied to, yet, not to lose precious time, I leave them aside to treat of the principal topics.
I would also have entered into further considerations concerning the question of Bliss and Masterman, but as you decline all discussion as to whether they are or are not justly and legally considered by you as members of your legation, I also ought, after what I have already said upon the subject, to abridge my reply. Nevertheless, I will observe that this act of your excellency is not in harmony with the benevolent manifestations which you have made in favor of justice, since it being in your hands, and a matter of the strictest duty to send away those individuals who ought to appear before the proper tribunal, you preferred to shield them with the title of members of your legation, without having proved, or being able to prove, that quality which has been officially disclaimed by my government.
You do not choose to give all the assistance which you might legally afford towards the investigation of the grave crime of high treason; and the fact of acceding in respect to some, and refusing in respect to others, to accede to the request to dismiss from your hotel the criminal refugees, as in the case of Bliss and Masterman, to which you interpose difficulties, although you have superabundant means to give them a decided protection, which circumstance assumes a more pronounced character, by referring to the fact in your note of the 20th instant, respecting your servant, you have stated your intention to dismiss him instantly from your hotel in case of being informed that he has not complied with your orders not to bring or carry any note, message, or communication of any kind, or from any person beside yourself and Madame Washburn. And [Page 762] the fact is so much the more characteristic, since you, in the exercise of your discretionary powers, might give up to the justice of the country your servants accused of crimes, and might renounce all privileges of that nature, respecting persons of your suite, with the exception of those who have been appointed by your government as secretaries of legation, &c.
The more I have sought in your notes for a plausible motive for your firm determination of not granting my request concerning those criminals, the more I have found that your refusal is based only upon these points: 1. That you think to have correctly denominated them as justly and legally members of the legation. 2. That if you were now to recede from that position, it would appear weak, and would be a confession of having acted illegally in dismissing them, for which reason you would be accused and censured by your government.
I ought to express to your excellency that I have in this respect a different opinion, based upon reason and justice. Is it not evident that this government has not recognized your protegés as members of the American legation, and that this fact is proved by official documents? Or how many times must the government make known to you its resolution? But even if you believed in a tacit recognition after your last attempt, was not the official declaration sufficient, which was made to you later, that this ministry has never recognized nor recognizes them as members of your legation, to modify your opinion and respect the justice of my petition?
There is not, then, the exactness which you invoke in your behalf that they are legally members of your legation; and it is out of my power to understand how, by receding from that position on the strength of a maturer reflection, you will appear weak, or how it would be a confession of having acted illegally in dismissing them, since the mission of a public minister is based upon political morality, and the exercise of his functions requires a respect for law, reason, and justice, preferring the general interests of nations to private interests; and it is starting from this principle that I am far from believing that you would be accused, or even censured, by your government, whose enlightenment, love for justice, and respect for international law are beyond all question; and my government takes pleasure in recognizing this fact.
You will allow me to make the following quotation from Vattel, who, speaking of a foreign minister, says:
He ought not to avail himself of his independence to oppose the laws and usages, but rather ought to conform to them so far as they concern him, although the magistrate has no power to compel him to do so. He is particularly bound to observe religiously the universal rules of justice.
But what most particularly draws attention is that the persons sheltered in your legation proved to be really the principal members of the plot, and that there still remain in it two individuals who are as criminal, as appears from documents of the case, as the other refugees whom you, at my request, dismissed from your house, and who have already appeared before the competent tribunal.
It is to be regretted that such individuals still remain in your house, protected by the American flag, since you cannot but admit upon your own conviction, that far from being members of your legation, they are improperly housed in it, and as you know and have declared that your hotel ought not to serve as an asylum to criminals, I again demand of you the fulfillment of this duty, urgently required by justice and law.
When you say in your note that the government can do what it chooses in the matter, upon its own responsibility, I ought to observe that you [Page 763] may tranquilize yourself concerning this point, and at the same time manifest that—
The question of the right of asylum is already resolved by public law and modern practice. If the inviolability of the foreign public minister extends to his residence, his hotel can no longer, as formerly, serve as an asylum for individuals, guilty of crimes, to evade the competent jurisdiction. It is now admitted that when a criminal has taken refuge in the hotel of an embassador, the state may, in case of his extradition being refused, order him to be taken out by force.—Modern European Law of Nations, vol. 3.
According to this principle of international law, your insistance in your refusal is destitute of all foundation, and can only give rise to the formation of other judgments.
The pretext is specious upon which you base your refusal. How could the recognition of Bliss, in the character desired, be hoped for, simply on account of having been presented for the second time along with Manlove, in the list of your suite, having been already refused by this ministry upon your first request? Besides, it is evident that you have recognized this, when, in your note of the 4th of April last, with which you send the list referred to, bearing date of February 24, containing the names of the persons of your legation, you make this statement:
I have duly advised all the persons who have not been accepted and recognized as attached to this legation, and consequently with a right to all its privileges and immunities, that if they go outside of the limits of the legation it will be at their own risk and peril, and if in doing so they should be arrested by the police, I shall not have to interfere in their favor.
This sentence sufficiently demonstrates that you have recognized that Bliss and Manlove have not been accepted as attached to your legation.
I ought to mention here the form in which you communicated to this ministry the said list of the persons of your legation, in which you inserted, for the first time, the name of George F. Masterman, and for the second time, those of Bliss and Manlove. It came along with your note, already referred to, of the 4th of April, as a sort of satisfaction to mine of March 31, saying that you had written a similar note on the 24th of February, which you had endeavored to send to the ex-minister Berges.
By what has been set forth, it will be seen that you did not, on the 4th of April last, consider as members of your legation Bliss and Manlove, nor Masterman; not only because you did not send your note of February 24, but, above all, because they had not been recognized in the proposed quality, to augment the number of persons belonging to your legation. Besides, when Manlove, who was in the same case with Bliss, was arrested by the police, you did not consider him as a member of your legation, because you recognized the non-existence of any right to invoke, which fact comes in to corroborate, in the strongest manner, the reasoning and the right which I have alleged in my request respecting these individuals, whom you now pretend to include legally among the persons of your legation.
As to the other statement of your excellency, that Bliss has gone into the streets without being molested by the police, you ought to persuade yourself that he was confounded by the policemen with those who are really members of the legation; but this error of fact cannot confer any right in the sense of the pretense and argument of your excellency upon the matter.
With these explanations of my previous observations, the question is entirely cleared up, and I cannot hesitate a moment in thinking that you will immediately proceed to expel these two criminals, who have [Page 764] abused, to an extreme degree, the confidence of your excellency and the hospitality which has been generously given them in my country.
You have made several quotations from Yattel upon this matter, and must know that this celebrated author says in his work:
The embassador’s house ought to be exempted from all insult, and under the especial protection of the law of nations; to insult it is to become culpable to the state and to all nations.
But the immunity and exemption of the house has only been established in favor of the minister and his servants, as is evidently seen by the very reasons upon which it is founded. Could the minister avail himself of them to convert his house into an asylum whither the enemies of the prince and of the state might shelter themselves, as well as malefactors of all classes, and thus evade the penalties which they have merited? Such conduct would be contrary to all the duties of the embassador, to the spirit which ought to animate him, and to the legitimate motive which caused him to be admitted. No one will dare to deny it; but we will go further, and establish as a positive fact, that the sovereign is not bound to suffer an abuse so pernicious to his state and so prejudicial to society; * * * and in the case of a criminal, whose detention or punishment is very important to the state, the consideration of a privilege, which was never conceded for the purpose of being converted into the prejudice and ruin of states, cannot detain the action of the prince.
Bello says, in his Principles of the Law of Nations:
The minister, moreover, ought not to abuse this immunity by giving asylum to the enemies of the government, or to malefactors. If he should do so, the sovereign of the country would have a right to examine how far he ought to respect the asylum, and, in matters concerning crimes of state, could give orders for the minister’s house to be surrounded by guards, to insist upon the delivery of the criminal, and even could take him out by force.
I did not intend to trouble you with citations of this kind, but, in the interest of supporting the reason of my demands, I have had to recur to them, being very much surprised that hitherto my just and necessary requests for the expulsion of these two great criminals from your legation have not been complied with, as well as concerning the delivery of the package of communications which you took charge of; but I cherish the hope that you will not choose to make any further delay, which could but be a grievance to my government, since you understand the serious nature of the case, and know so well the ulterior results which such a resolution may bring about in this question, by sheltering criminals, who, as I have officially informed you, are accused, with full proofs, of being important members of the combination of high treason; there being, besides, the precedent of the conduct properly observed by you respecting other criminals, giving credit to my official statement, and forming a favorable judgment respecting the national courts of justice.
As you say in your note of the 25th instant: “But if any man has reason to respect firmness and strict adhesion to duty, it is his excellency Marshal Lopez. After having maintained a struggle for national independence almost unparalleled in history, and having supported years of labors, perils, and sacrifices for the defense of his country and the maintenance of a principle, he cannot but regard with respect and approbation in another the same firmness and the same adhesion to conviction and duty.” I ought to express to you my thanks, and manifest at the same time that you may rest secure that his excellency the marshal President, firm and persistent with the principles of sound policy, and of his noble sentiments, will never fail to appreciate good actions, and attribute due consideration and respect to really meritorious acts, which involve a respect for justice and law, as he has never approved of actions or proceedings which depart from such holy principles.
I also thank you for your expression of sympathy and compliment towards his excellency the marshal President of the republic, and it will [Page 765] be my duty to transmit to his excellency, as you desire, your cordial congratulation for the discovery and frustration of the plot, as well as your congratulation upon his birthday.
I think it my duty to consign in this place the notable circumstance to be observed in the fact that you, in your note of the 25th, which I had not received when I made my trip to the capital, offered to aid in the discovery of the criminals, and that if I had any queries to make concerning any suspected person, or if you could give any information of consequence for the confirmation of the truth, you would be most happy to do so, in a friendly and confidential manner. You had thus written precisely at the time when I had resolved upon an entirely friendly step in the interest of putting upon a better footing your relations with this ministry, in virtue of our official notes exchanged; but, unfortunately, neither your spontaneous offers, nor the official step which I took, have produced the results which I had hoped for.
Being obliged to take especial measures in consequence of your conduct, so little in conformity with the principles of universal practice and mutual convenience in official intercourse, I made you a visit at your house on the 25th, in the afternoon, which if in fact, and I regret to say so, it was entirely without result, at the least it will imply always a positive testimony of distinguished consideration towards your excellency; my government exhausting in this manner all the means counselled by friendship, consideration, and respect for the friendly nation of the United States of America and its government.
You will remember that I then said that I had left my post to come and visit you, and inform you in a friendly manner that I considered the ground you had taken in your official correspondence as very serious, and that I desired that I might not be obliged to say in it things which I wished to avoid for your own honor, Mr. Minister, and that I should be obliged to do so to prove officially the reasons which the government has for being exigent with you in the pending questions.
I also said that I knew that you had received from Berges papers with certain precautions and declarations, and labelled them with your own hand, and that I attributed only to forgetfulness what you said in your note concerning this matter, adding that I should infinitely regret to be obliged to make use of the declarations of the criminals in official notes, since that would carry this ministry upon a ground which it has not wished to enter upon with you, Mr. Minister.
You said in reply that in your note of the same day you had stated all you had to say upon the matter, and on your inquiring if I had received it, I replied that it had not yet reached me. You then replied, saying that the truth was that you had not received any paper from Berges; that what had happened was, that upon that same occasion, the 22d of June, you had gone from Berges’s house to that of Doña Juana P. C. de Lopez, and from them to that of Vasconcellos, who sent some saddle-bags, some paper money to Leite Pereira, and some other things for his lady, who, at that time, were refugees in your legation. You brought me, of your own accord, your diary, for me to read the entry containing this statement, and also brought the saddle-bags referred to, stating that you had brought them in person, and had them in your office, but that you had received absolutely nothing from Berges; that he had never been at all confidential with you, but, on the contrary, preserved towards you a constant reserve; that you had stated the same thing once to his excellency the marshal President in Paso Pucú; that for the same reason you wondered that you should be thought upon confidential terms with him; that some time later you made him another visit with Madame [Page 766] Washburn, but that she remained in the parlor, and you alone went in where Berges was in bed; that on the two occasions that you visited him, it was for a very short space of time, and that your conversation was only what you had already mentioned in your official note; that nothing further occurred, nor had you forgotten anything; that what you had stated is the truth.
In reference to the question about Bliss and Masterman, you said that you held an opinion different from that of the ministry, and for that reason should leave the government to act as it might judge proper, again referring to your note of the same date, and regretting that I had not received it. In relation to this point, I replied that I referred you to what I have already said in my notes upon the subject. You continued, stating that you understood the grave nature of the case, and that if you assumed the ground you had officially taken, it was from a sense of your duty to act so that your government would approve of your conduct, and in the manner that appeared to yourself most proper, especially after having declared that Bliss and Masterman are members of your legation; that far from wishing to shelter criminals, you had already sent away others, and that if you had not done so (in this case) it was only for the reasons stated, but that government could do what may appear to it most proper in this respect, assuming the responsibility. In reply to which I manifested to you, Mr. Minister, that you should convince yourself that the government does not need other people’s advice, and that it would do what was just and convenient; that these affairs having arrived at the delicate and important state in which they now are, it could not but be expected of you, Mr. Minister, who has always manifested your sympathy in favor of Paraguay, that you would act in a manner to prove well your sincerity and sentiments of right and justice in this grave business. You replied that no one could make any charges against you in this matter; that it might be that criminal acts had been committed which you had not understood, or which had not come to your knowledge, but that you were tranquil. Then I said that you, Mr. Minister, ought to understand that we are in possession even of your confidential communications with the criminals from a very early period; that we did not wish to state this in notes, at least not in all its fullness, unless, unfortunately, we should be obliged to do so. Your reply was to inquire who were these persons, and I continued the conversation in the same strain, without specifying persons. You repeatedly said that you were tranquil; that you remembered nothing, and that if anything had come to your knowledge, you would not have kept silence. You repeated that it was not true that you had ever received such a package from Berges, since you had received nothing from him. You added that you were surprised to learn that Berges was accused of high treason; that you had supposed him to be a good citizen, but that you must declare that he has never communicated anything to you concerning the crime attributed to him, nor had you conversed with him of anything beyond what you had already manitested.
You also alluded to the manner of Leite Pereira’s coming to your house, saying that you had only admitted him until he should be demanded by the authorities; that you had expressed to Carreras and other persons in the legation the same thing, and that Leite Pereira had done badly in acting as he did.
After this digression, I again called the attention of your excellency, more than once, to the importance of those papers which Berges gave you, and that, in order to be able to reply to your note about them, I had made you this visit, in order to see if in my reply it would be enough to [Page 767] appeal in a friendly manner to your memory, or if it would be necessary to aid it in a more convincing manner. You replied, losing your serenity, that it was false; that there was no such thing; that whoever had so stated had stated a falsehood, a lie to the government; that if there should be any such calumnies as that referring to papers of Berges, you would answer them well; that if there are bad men who wish to lie, it could not be helped; that, concerning this or anything else relating to the matter in question, you had no reason for reserve, and, on the contrary, would aid in clearing up the truth; thanking me for my friendly step, and turning your eyes towards many objects, trunks and boxes closed and sealed up, which there were in your parlor, you said that you had taken charge of them to serve various persons, but that you were ignorant of their contents.
On taking leave, I said that I retired with regret that a friendly step had been without result; and that doubtless also his excellency the marshal President would regret it, since his orders were to guard always towards you, Mr. Minister, all the consideration possible. You replied that you also regretted it, but that you could do nothing more in the matter, requesting me to thank his excellency, and to say to him that you much desired to be useful to him, and that you were disposed to do all that may be possible with the best good-will, and that you would do anything to serve him compatible with your duty.
This is essentially what passed in our conference; and although it produced no satisfactory result, I nevertheless hoped that, in consideration of the grave nature of the case, I might have had the good fortune to avoid for you the consequent painful results; but I see with regret that you have not yet been pleased to give the matter due consideration, and have placed yourself in a very especial situation.
In your note of the 23d instant, demanding the sealed package given you by the ex-minister, Berges, you say that he never gave you any package of communications, letter, or message of any kind, adding that you had talked about the state of the war, and other casual matters; that the only thing which you remember that he said was that the Brazilians could not hold out much longer; that their credit was exhausted; and that several provinces were in revolution; that on taking leave he requested you to come and see him afterwards, which you promised to do; but that you only went once more, accompanied by Madame Washburn, according to your diary, on the 3d of July, when you found him still in bed; that his conversation on that occasion was very similar to that of the previous occasion; but that neither then nor upon any other occasion did he ever give you a package or communication of any kind; that I must then be very ill-informed respecting the package referred to.
In your other note of the 25th, after speaking of the question of Bliss and Masterman, you add that as you had said you were not merely desirous but anxious to lend whatever assistance might be in your power to discover the truth respecting the combination which I had mentioned, that for this reason you would add what you might more properly have said in your note of the 23d, in reply to mine soliciting the delivery of a certain package; that as to this matter you had no more to say; but that, as I had stated that on the day after the return of Berges from San Fernando you visited him in his quinta and brought away that package, you would add that, as stated in your note of the 23d, you did not see him for several days after his arrival; and you then insert the entry from your diary, by which it appears that the same afternoon of your visit to Berges you went also to the house of Leite Pereira, where you found Vasconcellos; and that he sent by you some paper money for [Page 768] Leite himself, adding that you had been requested by Leite and his wife to go to their old residence, to bring several things which they needed, among which were some money and Paraguayan notes; and that on your return, about dark, you placed the saddle-bags in your office; stating, in conclusion, that although this matter is not very decorous for a diplomatic correspondence, you nevertheless gave all these details, hoping that they might be of use in arriving at the truth.
These are the points embraced in your two notes referred to concerning the very grave matter of the package of communications delivered to you by the ex-minister, Berges.
When I visited you, the 25th of this month, for the purpose of making the friendly suggestions referred to, I was animated by the best disposition towards you; and I hoped that, if not by my words, at least through regard to your own convenience, you would have given to my government a motive of gratitude, and also a proof of the sincerity of the desires and anxiety manifested by you to give whatever aid might be in your power to discover the truth, and to aid in the discovery of the criminals, offering to reply to questions concerning any suspected person, according to your expression; but the result of that conference has defrauded my most legitimate hopes, and has obliged me to transfer to my notes certain declarations of the criminals, which, as I said to your excellency, I much desired to avoid.
When the crime of high treason on the part of the ex-minister Berges had been discovered and investigated, he declared before the tribunal that he has had the following communications with the Marquis of Caxias: One original letter from Caxais himself, dated in Tuyucué, whose date he does not remember; that this letter was delivered to him through the American legation, and that his answer was sent by the same channel, the draught of which he says is to be found in the original (package?) That afterwards, at the time of the arrival of the gunboat Wasp, another letter came from the same marquis, dated the beginning of June, which Berges did not receive until the beginning of July, after returning from the army to the capital, on the occasion of the first visit of your excellency, who carried it to him personally. That with the letter was included a project of a reply and a proclamation, stating that these documents were sent to him and submitted to his consideration, since, having already forced the first fortifications and being about to take Humaita, he believed the end of the war to be near. That this letter was not replied to, since Berges could not write, on account of an impediment in his hand, for which reason you aided him to double or fold up this letter and its accompanying documents, as well as the previous one and the reply to it, putting them all in a wrapper, which was closed with a wafer, and was labelled by you with the inscription, “Papeles de Berges;” you took charge of and carried them to keep in the legation, offering to serve Berges in every way as minister and as friend.
And Berges himself adds, in his second declaration, that it was, in fact, at the time of the first visit which you made him at his house in Salinares, about the middle of the afternoon, that you personally carried him the second letter written by Caxias to him, when you said: “These papers came by the gunboat Wasp, and I received them under cover to me; it would seem that they are of importance.” That Berges took them and said, “Let us see,” reading them thereupon in your presence; and that, after a short time, you observed to him that the papers were long, and that therefore you would retire, as you had something to do; that to this he replied, “I shall claim a little more of your time; you might take a walk for a little while in the quinta.” That you said: “Your quinta is very [Page 769] sorry at present; rather give me a book to read.” That he then said to your excellency, “There are some,” pointing to a few books upon a small table, “such as the Count of Monte Christo, La Garota, a work by Ascasubi, &c.” That you got up to take one of them, he does not know exactly which, and read awhile, until Berges interrupted you, saying, “I am going to deposit these papers in your custody;” to which you replied, “Vaya! they are then from Caxias;” and he replied in the affirmative. You said to him, “These are delicate matters; I would prefer to take charge of jewelry or other things which you may wish to deposit in the legation, and I would do it without asking the so-much per cent. (without saying how much) which I ask from other persons; but these papers may involve me in a compromise with my own government for abetting correspondence with the enemy’s camp; for the rest I have no fear.” Berges then replied, “How can a thing be known which has passed between us? I will fold them up with the previous communication, (which you knew of,) and give them to you now to carry away.” That you, after thinking a moment, said, “I will take them, but if anything should happen, I will burn them, and say that I have received nothing.” That Berges then got up and took from a secret place in a red writing-desk, where he kept it, the first letter and the reply to it, and set about folding it up with the second one and the accompanying papers, as he had said in his before-mentioned previous declaration, the form of the package being quadrangular, about the size of a sheet folded in three; and having been closed with a wafer by Berges himself, you labelled it with the inscription already mentioned, “Papeles de Berges,” and put it in the inside pocket of your coat, over your breast, taking leave of him afterwards, and starting off in the direction of Trinidad. That about a week afterwards you visited him a second time, along with your lady, who remained in the parlor; and you went into Berges’s sleeping-room, he being in bed; on which occasion it was that you made him in more detail the offer of your services as minister and as friend.
These are, Mr. Minister, the foundations which this ministry has had for soliciting of your excellency the delivery of the package mentioned by the ex-minister Berges.
And I will conclude, stating to you that my government, which has never avoided the responsibility of its acts of whatever character, will not fear to assume it now before the enlightened government of the United States and the civilized world, by making use of the means prescribed by the writers upou international law, to take possession of the criminals, Porter Cornelius Bliss and George F. Masterman; but it costs me much, Mr. Minister, to persuade myself that you will continue to refuse to accede to the solicitation of the national courts of justice; and I would fain hope that you, weighing my considerations, will at last not refuse to hear them, and will give up the criminals to appear in judgment, not as members of the legation of a friendly power, but as men who have abusively gained access to it to shield themselves by it from punishment.
Your excellency inquires if my government doubts that that of the United States would administer full and inflexible justice, and I take pleasure in stating here that I have not the remotest shadow of doubt of it; but I will in my turn inquire of your excellency, if the American government can be in full possession of the case, as the national court of justice is, would it send the record of its trial for a new substantiation of the case? Could it do so? Would the firm and inflexible administration of American justice be sufficiently timely?
[Page 770]I request of your excellency to consider the state of the country and the character of the case at issue.
I improve this occasion to renew to your excellency the assurances of my most distinguished consideration.
His Excellency Charles A. Washburn, Minister Resident of the United States of America.