Señor Garcia to Mr. Seward.
Sir: Complying with your excellency’s desire, it affords me pleasure to resume in this communication the subject of which we treated in our interview of the 10th instant, and, for this purpose, to submit to your excellency’s impartial judgment a few more considerations which I deem it not amiss to recall to your mind, in view of the importance of the matter which has occasioned this correspondence.
I had the honor to inform your excellency in my note of 8th May last, that Peru had purchased two monitors in this republic, and that in the exercise of what, in the actual condition of her international relations, she deems a perfect right, and with the consent of your excellency’s government, she proposes to send those vessels to the Pacific.
Pending the receipt of a definite answer to that communication from the Department of State, I have received especial instructions to carry the aforesaid purpose into effect, the favorable season for the navigation of those vessels being close at hand, and for that purpose, as I explained to your excellency at the interview already referred to, to solicit the previous and explicit consent of the United States government, which is now free to grant such permission, inasmuch as all obligations of neutrality have ceased with the interruption or cessation of hostilities in the war on the Pacific.
The only cause which could now in any way abridge the right of Peru freely to procure naval armaments in this or any other country would be the existence of an effective state of war identical to that in which said republic and Spain were placed by the official declaration made at Lima on the 14th January, 1866, and which terminated on the 2d of May, of the same year, with the signal victory of the Peruvian arms, which compelled the naval forces of Spain not only to abandon the Pacific Ocean, but also to desist from every military operation or any subsequent act of hostility against the four nations allied for the common [Page 904] defense. That situation has remained unchanged for the last two and a half years, and so notable a circumstance would of itself suffice to prove that at present a state of war exists but nominally, and that all other nations, therefore, are authorized to consider it as terminated so long as the belligerents do not renew it by continued and effective acts of war, were there not in addition thereto innumerable other acts of deep significance performed indiscriminately by the various parties engaged in the quarrel, and even by other nations having relations with them, to confirm in an irrefutable manner the truth of that situation.
Your excellency will recollect that on the defeat of the Spanish squadron in the waters of Callao they at first sought neutral ports, and then those of their own country, in various divisions and distinct routes, to repair the disasters of that engagement. Two and a half years should have sufficed for that purpose or to send a new expedition to carry on the campaign, had the Spanish government, taught by its recent experience, not formed the deliberate intention of considering as terminated by that deed of arms all the unhappy projects which had sent its flag to South America. The complete inactivity maintained by Spain since that memorable event, the unequivocal evidence which she has on different occasions given of her desire to settle her differences with the allied republics by means of treaties rather than by arms, her abdication of the rules of war, of which I have spoken to your excellency in previous dispatches, by entering into an agreement at London with one of her adversaries for the removal of armed vessels of both nations from British ship-yards, the use which she officially ashed and obtained of both private and naval docks and ship-yards in the United States, in which to repair the frigate Gerona and the iron-clad Tetuan, restoring their offensive powers and consequently fitting them for the services and fatigues of a campaign, acts in open contradiction to the principles of international law, and which your excellency’s government would certainly not have permitted had Spain recognized the existence of an effectual state of war between herself and the allies of the Pacific, and, finally, the respect paid by her vessels of war, at present stationed on the coasts of Colombia, to the flag of one of the allied republics, under which two sailing vessels are now not only passing them almost daily, but on one occasion, while engaged in matters of commerce, received assistance from the said Spanish steamers, having been towed by them; all these confirm the belief that in abandoning active hostilities, Spain, who was the aggressor, has renounced the rights of an effectual state of war, and consequently relieved all other nations from the obligations of a neutrality which, under existing circumstances, is purposeless.
That the allied republics, comprehending the position in which Spain was placed by the battles and obstacles she encountered in the Pacific, have accepted her withdrawal, and the attitude at present maintained by her, as an implicit desistance from war, is confirmed by numerous acts. To them the situation is plain; war exists in principle, and so long as a solemn treaty of peace is not entered into may be renewed at any moment; but de facto it has ceased, and all of them respect the actual condition of affairs in consideration of their true interests and of the upright intentions which animate them. Thus, Chili entered into the agreement at London, already commented on by me, took out two ironclad corvettes in May last, and is now building a monitor at the same place. The President of that republic, in his last message to the national congress, states that the extraordinary powers conferred upon him to carry on the war with Spain are now no longer necessary, and asks that they may be annulled, inasmuch as that war has ceased in fact, [Page 905] and there is no reason to fear its renewal. Animated by the same conviction, that government, with the Peruvian, have dissolved the allied squadron, and both countries have suppressed the command in general, and the naval divisions of a state of war, and their vessels have returned to their ordinary stations. Nothing of this would have occurred, especially when it would have been so easy for them with their iron-clads to attack and destroy the wooden vessels which Spain has at the Philippines and on the eastern coast of South America, as also to prey upon Spanish commerce by means of privateers. Nor would the return of the exiled Spaniards to the territory of those republics have been allowed had the actual condition of affairs been otherwise considered by them, and were they not animated with the sincere desire to alter it in no way on their part unless provoked thereto by new aggressions, or unless unhappy causes should occur to render it unavoidable.
The situation created by the nature and incidents of the war, and by the temporary difficulties which have hitherto prevented an understanding by which to arrive at a solution of this question, constitutes an anomalous state which, in principle, is evidently one of war for the belligerents, although it be in fact an uncovenanted truce or a de facto peace, which they alone have the right to change into a new war by the simple renewal of hostilities and prior notification thereof; but so long as this does not take place, all authorities on the law of nations restore to other states, in view of the existing order of affairs, full liberty to exercise all those rights which are abridged or limited by an actual war.
Hautefeuille’s opinion, by its precision and truth, is decisive on this point. “The duties,” he says, “imposed on neutral nations by a state of war, refer expressly and essentially to that state. Whenever, for any reason, this ceases, although it be but temporarily, the duties of neutrals likewise cease, and peace, so far as they are concerned, is perfectly re-established during the suspension of arms. They then recover all rights which had been modified by war, and may exercise them during the time fixed for the duration of the truce, if such term has been fixed by agreement, or until the renewal of hostilities shall have been officially notified to them, if the suspension of arms has been indefinite.”
On the other hand, the celebration of treaties is not an essential condition of peace. War may terminate by the mere suspension of all acts of force, and this offers to neutrals the same guarantees and assures to them the same rights which they could derive from the stipulation of an express covenant. Pinheiro-Ferreira, although he does not elucidate this doctrine, recognizes it in these words: “It is seldom that war terminates with the mere cessation of hostilities. There is ordinarily a covenant, more or less express, which constitutes the treaty of peace.” Heffter, a very respectable authority among writers of international law, puts forth this doctrine: “That belligerents are not obliged to put an end to hostilities by means of formal conventions, although custom and expediency may counsel such proceeding;” and he adds, “they may, on the contrary, by a sort of tacit agreement, suspend hostilities and reestablish reciprocal relations of friendship, in which case no third power is allowed to act as if hostilities were continued.”
“The statu quo accepted by the belligerents on the suspension of hostilities will naturally serve, in such a case, as the basis for the re-establishment of the relations of peace.”
This opinion is corroborated by the example, given by Yon Steck, of the war between Sweden and Poland, which terminated de facto with the cessation of hostilities in 1716, although the de jure restoration of [Page 906] peace was not recognized until ten years later, by letters mutually exchanged between the sovereigns of both countries. The prolonged and bloody struggles between Spain and the new American republics, although decided on many a battle-field between 1809 and 1826, have only been slowly and gradually settled by written treaties during the course of forty years, and two of said republics are this day, after the expiration of half a century, still in a state of de facto or imperfect peace, never having settled by treaty the condition of their relations with the mother country. The war entered into under the name of Italian unity, between that kingdom and the Pontifical States, in which the former by force of arms took possession of some important provinces of the Holy See, has, notwithstanding the lapse of years, never been brought to a close by any treaty between the sovereigns of the two nations; the ravages of the invasion ceased by means of treaties celebrated with a third power clothed with the protectorate of those states. Lastly, the invasion of Mexico by the joint armies of England, Spain, and France, and the persistent intervention of the latter in the internal affairs of that republic, present the most decisive example in confirmation of the principle which I have laid before your excellency. Those doings gave rise to a formal and positive state of war between Mexico and the three nations aforementioned, which was recognized by the United States as well as by other impartial governments, and which imposed upon them the duties consequent to that situation. The contest terminated by the withdrawal of some of the invaders, and the expulsion of the others. No treaty has been celebrated between the late belligerents; the interruption of all official intercourse between them still exists, and, notwithstanding this, the war is considered as de facto terminated, and all obstacles, political, commercial, and otherwise, incident to that abnormal state of affairs, have been voluntarily removed by the United States, as also by all other nations similarly situated.
The actual state of affairs, when notoriously established, is the only rule by which, in view of a strife between two or more nations, to define the position which of right belongs to non-belligerent powers. It is the only possible guide—the only legitimate one—when treating of so sad and disastrous an event as war. Those belligerents which, from impotency, exhaustion, or for any other reason, cannot or do not wish to continue hostilities, have no right to impose upon other nations, to the interests, the restrictions and burdens of a situation which they themselves have abandoned.
The contrary doctrine would give a nominal or paper war, so far as neutrals were concerned, all the rigors of a struggle in which victory is purchased with the blood of the belligerents. But, fortunately, this is not the case. Common reason, the law of nations, and the practise of all enlightened governments have marked out a very clear line of conduct for neutrals. Whenever a political or military act is evident, they have the right to proclaim it so, and to act accordingly; the rule of their action depends therefore upon the doings or in the attitude of the belligerents. To recognize a fact is but to declare the truth as it exists, and this is not only a right but an imperative duty, which on the other hand cannot in the least affect the position nor the rights of the disagreeing parties.
The annals of diplomacy furnish striking examples, which by analogy completely illustrate the present case. Queen Elizabeth recognized the independence of the Netherlands, who revolted against Spain in the sixteenth century, and England entered into a treaty in 1585 with the United Provinces, in spite of the protests of Spain, upon the ground, [Page 907] aside from the reasons of convenience, that the independence of said provinces was an accomplished fact.
In answer to the representations made by England against the recognition of the independence of the United States by France, the latter, among other considerations, stated “that her declaration to the court of London, dated 14th of March, 1778, concerning that recognition, was based on the unanswerable fact that the Americans were in possession of their independence when the treaties of alliance and commerce were concluded on the 6th of February, 1778, and that according to the equally unanswerable doctrines of public law, that fact was sufficient to justify the King’s entering into his engagements without examining the question of the legality of that independence.” “That is sufficient for his Majesty’s justification that the colonies, which by their population and the extent of their territory formed a considerable nation, had established their independence, not only by solemn declaration but also in fact, and that they had maintained it against all the efforts of England, and such was the position of the United States when the King negotiated with them.”
Speaking of the desolating and unfruitful war maintained by Spain against her former colonies in America, and initiating the recognition of their sovereignty, the President, James Monroe, in a special message to the Congress of the United States, dated 8th March, 1822, said as follows:
For the last three years the government of Spain has not sent a single corps of troops to any part of that country, nor is there any reason to believe it will send any in future. Thus it is manifest that all those provinces are not only in the full enjoyment of their independence, but, considering the state of the war and other circumstances, that there is not the most remote prospect of their being deprived of it.
When we regard, then, the greath length of time which this war has been prosecuted, the complete success which has attended it in favor of the provinces, the present condition of the parties, and the utter inability of Spain to produce any change in it, we are compelled to conclude that its fate is settled, and that the provinces which have declared their independence, and are in the enjoyment of it, ought to be recognized.
In proposing this measure, it is not; contemplated to change thereby, in the slightest manner, our friendly relations with either of the parties, but to observe in all respects, as heretofore, should the war be continued, the most perfect neutrality between them. * * * The measure is proposed under a thorough conviction that it is in strict accord with the law of nations; that it is just and right to the parties; and that the United States owe it to their station and character in the world, as well as to their essential interests, to adopt it.
The Committee on Foreign Affairs of the House of Representatives, through Mr. Russell, presented to that same Congress, on the 19th of March, a very luminous report which, among other doctrines, contained the following:
The political right of this nation (United States) to acknowledge their independence, without offending others, does not depend on its justice, but on its actual establishment. To justify such a recognition by us, if is necessary only to show, as is already sufficiently shown, that the people of Spanish America are, within their respective limits, exclusively sovereign, and thus in fact independent. * * * Whatever may be the policy of Spain, however, in respect to her former American colonies, our recognition of their independence can neither affect her rights nor impair her means in the accomplishment of that policy. We cannot for this body be justly accused of aiding in the attainment of an independence which has already been established without our assistance. Besides, our recognition must necessarily be co-existent with the fact on which it is founded and cannot survive it. While the nations of Spanish America are actually independent, it is simply to speak the truth to acknowledge them to be so. * * Should Spain, contrary to her avowed principles and acknowledged interests, renew the war for the conquest of South America we shall indeed regret it; but we shall observe, as we have done between the independent parties, an honest and strict neutrality. But, on the other hand, should Spain, faithful to her own glory and prosperity, consent that her offspring in the New World should enjoy the right of self-government equally with their brethren in the Old, we shall sincerely rejoice; and we shall cherish with equal satisfaction, and cultivate with equal assiduity, the friendship of regenerated Spain and of emancipated America.[Page 908]
There is, therefore, in the matter of which I treat, the most complete harmony between the recognized rules of the law of nations and the practices observed by the most cultivated peoples between the suggestions of an enlightened reason and the precedents which the traditional policy of numerous governments have converted into precepts of positive right. That doctrine may be summed up in these two principles: a war may terminate not only by means of treaties, but also de facto by the cessation of hostilities, and, in the latter case, although the belligerents have the right to renew it, all restrictions and the obligations of neutrality cease, who are de facto restored to the relations of a state of peace with the former, so long as the situation is not changed by formal and effective acts of force previously announced to other nations; the actual recognized state of affairs, be it in treating of the cessation of a war, or the struggles of a people seeking to achieve or recover their independence, or, finally, of any international situation not clearly established by express treaties, fully and legitimately authorizes all other nations at once to resume every right which may have been abridged by war, without, in so doing, in any manner qualifying the motives or controverted rights of the belligerents.
The application of these rules, which your excellency will find in conformity with the principles of your government and the laws of this great nation, and in harmony with the just demands of the law of nations and universal interests, is obvious and conclusive in the present position of the United States with regard to the interrupted or de facto terminated war between Spain and the allied republics, and decides in a manner satisfactory both to your excellency’s government and to that which I have the honor of representing, the pending question of the speedy departure for the Pacific of the Peruvian monitors, at present lying in the port of New Orleans. I believe myself authorized to trust that your excellency, giving immediate attention to this matter, will be pleased to decide it in the favorable manner warranted as well by the incontrovertible right of my government to solicit permission to take out those vessels, as by that of the United States to grant it.
The foregoing would undoubtedly suffice for the end in view, when addressing an upright and enlightened government, such as that of your excellency’s; but the government of Peru voluntarily and deliberately desires to offer to yours the most perfect security as to the rectitude of its intentions in sending those vessels to the coasts of the republic, and for that purpose has instructed me to reiterate expressly in its name, to the United States government, the formal promise that the monitors will leave for the Pacific without attacking or in any way molesting any vessels or possessions of Spain, and without committing any act of hostility, directly or indirectly, against the flag of that nation, either at sea or on land, to which they may not be provoked. The honor of the Peruvian government, I again repeat on this occasion, guarantees to your excellency the strict fulfillment of this solemn promise.
Trusting that this dispatch, which the gravity and great importance of the matter have made too long, will merit the favorable reception which my government has well-founded reasons for expecting will be given by that of your excellency’s to the subject which has occasioned it, I have the honor of subscribing myself, with the highest consideration, your excellency’s most humble and obedient servant,
Hon. William H. Seward, &c., &c., &c.