Mr. Washburn to Señor Benitez.
Sir: Excusing myself for the delay in answering that part of your note of the 31st ultimo, relating to the case of Mr. Bliss and Mr. [Page 797] Masterman, which I have deferred in order to answer the part of it which seemed to me of more pressing importance, and also to answer your subsequent very long note of the 6th instant, I will now proceed to give my reasons why I have not dismissed those two persons from my legation, and why I ought not to do so.
At the conclusion of your note of the 31st ultimo, you say that you have not the remotest doubt that full and inflexible justice would be done by the American government, and then ask if it can be in full possession of the case, as is the national court of justice; if it would send the record of its trial for a new substantiation, if it could do so, and would its administration of justice be sufficiently timely?
To these questions I will remark that there would undoubtedly be considerable inconvenience in sending these persons for trial to the United States; but that does not affect the law in the case in the least. Whenever an embassy is received from one government by another, the latter accepts it under the conditions imposed by the law of nations. This law is of such importance that its rigid observance is indispensable for the peace of the world. It is only under the protection of this law that nations can negotiate with each other, as to carry on their negotiations it is necessary, especially in time of war, that there should be some persons who should enjoy entire security and immunities from the local laws. This code, universally recognized as binding on all nations, has been of the greatest advantage to them all; but it also has its disadvantages. Under it the nations that receive foreign embassies are required to concede to them certain privileges which are not conceded to any other persons. They resign the sovereignty over the premises occupied by the embassador, and by the fiction of extra territoriality his legation is considered as the territory of his own government. Except under very extraordinary circumstances his house cannot be entered by the police, and no member of his legation can be cited before the local tribunals; and if they commit any offence against the laws of the country, all writers on international law declare that the minister shall either punish them himself or send them to his own country to be tried. These privileges and immunities, doubtless, frequently cause serious inconveniences to the local administration. But, is it not better to submit to such inconveniences rather than have the law abrogated? I have known, such instances of inconvenience in my own country; one of which I will mention. In the year 1856, an important witness of a homicide in the city of Washington, that excited great public attention, was an attaché of the Swedish legation. His testimony was very much desired by the tribunals, but he was never cited formally as a witness; and to the request that he would appear and testify voluntarily, he replied that he would not do so, and my government had no power to compel him.
Your honor asks, in your note of the 23d July, if it does not appear to me that if the immunities of a minister should reach to the extent claimed by me, that there would be no nation in the world which would be willing to accept an embassy? To this I will reply that all nations do, and are glad to, receive embassies on these very terms. What have I claimed? Simply this—that George F. Masterman, who came to my house at my solicitation as medical attendant of my family nearly eleven months ago, and has lived in my house ever since, and had his name given in as a member of the legation more than four months ago, to which no objection was made for three months afterwards, is to all intents and purposes a member of this legation, and entitled to all its privileges. I likewise claim that Porter G. Bliss, who also came to my house at my solicitation, to serve as translator, and to assist me in any other way [Page 798] that I might require, and whose name was given in at the time as a member of my legation, and no objection being then made to his remaining in it, but only to the capacity in which I had classified him, is also a member of this embassy.
You, on various occasions, speak of them as refugees who have sought asylum in my house. They did not seek asylum here. I sought them, and engaged them to come here because I needed their services. At the time they came there was no charge or accusation against either of them. How, then, can they be considered refugees? They were not refugees, and this is not a question of the right of asylum, but of the rights of legation.
You, however, allege that they have never been recognized by your government, but that, having refused to recognize them, I therefore have no right to claim them as exempt from the local jurisdiction. But this refusal was not made till after they had been claimed as criminals, and months after they had been tacitly acknowledged as belonging to the embassy. Such refusal was quite too late to affect the case.
The doctrine advanced by you, that a foreign minister cannot claim legation privileges for his servants, secretaries, and other members of his household, till the government to which he is accredited specially recognizes them by name, is something entirely new to me; something that I do not find in any writer on international law. If a minister gives in a list of his suite, and no answer is made, no objection is taken by the government, then it tacitly acknowledges that all included in that list are members of the legation, and it cannot afterwards plead its own failure to acknowledge the minister’s letter as a justification of its refusal so to recognize them.
That this is correct reasoning you must admit, if you will apply it to my own case. Though I have given two lists of the members of my legation, you have never recognized a single person now in it, unless it be Mr. Bliss, and Baltazar, the colored servant left with me by Dr. Carreras. But you have never recognized either my wife or child, or my private secretary, who has been in my service for more than a year and a half, or the servant girl that we brought with us into the country. According to your reasoning and logic, however, you have only to say that any one or all of them is accused, and that the government refuses to recognize them as belonging to my legation, and I have no remedy but to send them away. Such is the inevitable conclusion to be drawn from the premises and logic of your honor.
To the question whether or not the punishment that my government would administer would be timely, I reply I do not see why not. You cannot suppose that these two individuals, closely shut up as they are in this legation, and having no communication with any person outside of it, can be dangerous. If not, why will not their punishment, if proved guilty, be as timely some months hence as now? If they can give any evidence which is necessary to ascertain the truth in regard to other accused parties, they have both expressed their willingness to do it; and should the government choose to send a notary to my house to examine them, I will give him every facility for doing so. I will also say that Mr. Bliss has declared, in relation to the paper which you in your note of the 23d of July say that he “in a secret committee of mutual obligations” has signed to commit an infamous crime, that if any such paper signed by him shall be produced at this legation he will instantly leave it. To this I will add that while I shall still insist on my rights of legation, I will undertake that he keep his promise to me.
In my former notes to you I have called your attention to this maxim [Page 799] of law, that “every man is to be considered innocent until he is proved guilty.” Yet you, disregarding this principle, continue to speak of these two members of my legation as criminals and refugees, without ever having given me any proof of their guilt. You have also complained that I should not receive your official statement of their criminality in preference to their own protestations of innocence.
I have not allowed myself to question the sincerity of your belief in, their criminality, but as you do not pretend to speak from your own knowledge I may yet doubt the truthfulness of your informants. Certainly you will not allege that the witnesses against them are persons who have enjoyed higher honors, or had previously been more respected than Berges and Carreras, whose declarations I know to contain almost as many falsehoods as sentences. If declarations so false have been made by them, with the object of connecting me with an infamous plot, is it not possible that equally false declarations have been made for the purpose of implicating others? I, acting according to the laws of my own country, must presume them innocent till I have a proof to the contrary. From your own personal knowledge of these gentlemen, you must be aware that they are, from education and habit, the very last people that conspirators and complotters would take into their counsels. Mr. Bliss, you are aware, is a man of extraordinary literary acquirements, and his whole taste and ambition is in literary pursuits; and Mr. Masterman is a man whose tastes and desires lead him to pass his whole time in scientific investigations. Neither one of them has any of the detestable gaucho characteristics that would lead them to take part in a revolution; and as I have known them both long and intimately, I am bound to take their solemn asservations, not only of innocence, but of entire ignorance of any plot or conspiracy, in preference to the declaration of any or many confessed conspirators or traitors.
But with me this is not a question of guilt or innocence. It is a question of the rights of legation. Months ago I gave in their names as belonging to my diplomatic suite, and the government by not objecting to them as members of my legation tacitly acknowledged them as such; it acknowledged them as much as it has acknowledged any one in my house, and has now just as much right to claim any one else of my family or household as to claim either of them.
I will add another consideration. Both of these men are so indispensably necessary to me that even if they did not belong to my legation, and the safety of the state were not endangered by their remaining here, I should ask it as a courtesy that they might fee allowed to stay for the present. Without the aid of Mr. Bliss I could hardly have carried on the heavy correspondence I have had during the last month; and were Mr. Masterman to leave me, it would be, under the circumstances—when the aid of no other physician can be obtained—at the risk of exposing the lives of my wife and child and other members of my family; and I am sure that the government has no wish to expose me to any such calamity.
The position taken by you that until a government expressly recognizes the members of a legation they cannot claim its privileges, but are liable to be arrested like any other persons by the police, would, or might, at least, render his right of extraterritoriality virtually a nullity. The government might thus compel him to dismiss all his servants; it might prohibit his own subjects to enter his service, and thus leave him without any servant or assistant in any capacity, except such as it might suit its own purposes that he should have. I have never asked either you or your predecessor to recognize the members of my legation by [Page 800] name, or, in other words, I have not asked the privilege of employing them. I am to be the judge of the persons necessary to the discharge of my official duties and the health and comfort of my family, and not the government of Paraguay. Should a minister on entering a country take with him in his suite known criminals, or persons obnoxious or dangerous from their political opinions, a government might undoubtedly object to concede to them legation immunities, and could insist that they should leave the country. But it would have no right to molest them, and would be bound to protect them in every way until they had ample time for their departure. In no case has a government a right to inflict any other penalty on a person attached to a foreign legation than to send him to his own country to be punished. If, however, the ground assumed by you is correct—that no person can claim legation privileges until he has been expressly recognized by the government, but may be cited before the local tribunals—then if I comply with your request of to-day, I may be called upon to send away the other members of my household tomorrow, as you have never recognized them as belonging to my legation.
If all are not in the same category, and some are and some are not entitled to legation privileges, will you please advise me which of the names in the list appended to this letter are recognized as belonging to my legation.
In your note of the 31st ultimo you observe that it is the more strange that I should still decline to send Mr. Bliss and Mr. Masterman from my house, since I shall then have superabundant means to give them protection. What those superabundant means are you do not advise me, nor do I understand what means will be left me to protect them when once in the hands of the local tribunals. Will you have the kindness to give me further information on this point?
In my note of July 14, you will recollect that from the tone and tenor of your preceding notes, and from the fact that you had finally called for two persons whom I had always considered members of my legation, I said it appeared that I had lost the respect and confidence of this government, and that, therefore, as it did not seem that I could be longer useful either to my own government or that of Paraguay, or to any individuals in the country, I requested passports for myself and for the members of my legation. To this you replied on the 16th, assuring me in the strongest terms that I still retained the esteem and confidence of your government, and expressing the hope that such assurances would lead me to reconsider my previous resolution. Such expressions I accepted as satisfactory, particularly when in the same note you again requested the dismissal of Messrs. Bliss and Masterman from my house, but said you would waive all further discussion on that matter, leaving it to my own sense of justice. I then believed that the demand would not be further pressed; but while preparing my note of the 20th ultimo, giving my reasons for the course I had felt it my duty to pursue, I was surprised and pained on receiving your note of the 19th, which was closely followed by those of the 21st and 23d, to observe a tone and tenor of an entirely different character.
This sudden change I have attributed to the strange and false declarations of Berges concerning me, and, if I am right in this surmise, I cannot wonder that, false as the declarations are, the government should have changed from confidence and regard to distrust and suspicion. But if the government has accepted my words in preference to those of a convicted traitor, I cherish the hope that it will resume the position taken in your note of July 16, and leave me to pursue the only course [Page 801] that in my opinion will be approved by my government, by public opinion, and by the family of nations.
I avail myself of this occasion to give assurance of distinguished consideration.
His Honor Gumesindo Benitez, Acting Minister of Foreign Affairs.