The international law, as quoted by Secretary Martin, is equitable and
just, but, in my opinion, does not well apply to the case at issue. This
law presupposes that the native business men of any civilized country
exceed in numbers the foreigners who may reside and do business in it.
In the State of Panama all the merchants are, I believe, foreigners,
principally citizens of the United States, and are to bear the whole of
whatever taxation which every successful revolutionist may choose to
levy upon them to aid him in his, sometimes, unlawful purposes.
While the government of Panama was trying to sustain one class of
revolutionists the government of Bolivar was endeavoring to uphold
another, and levied very heavy contributions on foreign merchants for
that purpose. Every three or four years this practice has been ruinously
pursued by lawless persons in Colombia, and it is high time that it
should, so far as our people doing business here are concerned, in some
way or other, be restrained.
As there have been no claims as yet presented through me to this
government, founded upon said decrees or seizures, and as there is
plenty of time to review this subject and fix upon a reasonable rule in
the case by which I shall be governed, I have thought it better to
submit the matter for the President’s consideration and yours, than for
myself to reply to Secretary Martin’s said answer.
His answer is not altogether a very unfavorable one.
B.
[Translation.]
Señor Martin to Mr. Sullivan.
Office of the Secretary of the
Interior and Foreign Relations,
Bogota,
December 3, 1867.
Mr. Minister: I had the honor duly to
receive the communication of your honor dated the 27th of last
August, marked No. 32, and inclosing the instructions issued on the
13th of last June by the department of the United States of America
to your honor, as resident minister to my government, and to the
different American consuls and commercial agents in the Colombian
Union.
As these instructions refer to certain acts of the government of the
sovereign State of Panama, the executive has had to wait for
official and detailed information of said proceedings before handing
to your honor the reply which I herewith have the honor to address
to you to-day. At the same time as I give this answer permit me to
make a short résumé of the occurrences which have given rise to the
claims made by certain North American citizens before the Department
of State at Washington, so as to be able to duly appreciate the
justice of said claims and the spirit of the instructions referred
to, which were the result of said claims.
The 24th of October, 1866, the legislative assembly of the sovereign
State of Panama, issued the seventeenth law granting certain
authorization to the executive of the State; in therein is found, in
the second paragraph of the first article, that which authorizes the
raising, to double the value in the present year the commercial
contributions, peruana, &c.; and the third paragraph of the same
article first, which allows the State executive to anticipate the
collection of the rents and contributions of the State, so as to be
prepared for any eventuality which might produce the derangement of
public order, the executive of Panama issued the decrees of the 11th
of April and 24th of May last, making use of the authorities granted
by said law seventeenth of the State.
These decrees were matter for the consideration of the foreign
consuls residing on
[Page 1049]
the
isthmus when they replied on the 27th of May last to a circular note
of the 25th of the same which was addressed to them to inform them
that, as General Mosquera had dissolved the national congress,
refused to recognize sundry acts of said body, and declared the
republic in a state of war, the President of Panama would not admit
any force which might be sent by him to the isthmus so long as the
situation which then threatened the country might last.
Mr. Francis W. Rice, consul of the United States of America, in
giving with his colleagues the above mentioned reply of the 27th of
May, manifested that such decrees of the government of Panama were
contrary to public treaties and to the law practice of nations.
In view of these opinions, which were not accepted by the President
of Panama, he, the President, hastened to call a meeting of various
foreigners, so as to agree with them upon some measure which, might
replace that which they looked upon as prejudicial to their
interests; but the arrangement which was sought by the President of
Panama in the civilizing spirit of conciliation could not be arrived
at, and he was obliged to order that his previous disposition should
be carried into effect.
Afterwards he accepted a proposition which was made to him, that the
quarter which commenced on the 1st of June should be paid in
advance, reserving to himself the right to raise the contribution to
the limits of the said seventeenth law in case of need, after
temporarily suspending the execution of said decrees.
This is the truth of the circumstances, and on such acts, supported
by trustworthy documents in possession of the national executive, do
I now proceed to examine the claims referred to, and to take into
consideration the instructions which your honor has been pleased to
pass me a legalized copy of.
This appreciation would appear useless in consequence of the
suspension of the execution of the executive decrees of the
government of Panama issued in compliance with a law of the
assembly; but as this is a precedent which may in future cause new
questions, the federal executive thinks it might be examined.
The seventeenth law of the sovereign State of Panama, and the decrees
of the 11th of April and 24th of May last, in the execution of said
law, are not contrary to the national constitution, which allows the
States to establish contribution to provide for the expenses, so
long as the limit set down in the eighth article of our fundamental
law is not exceeded.
The treaty of amity, navigation, and commerce, existing between the
two countries, was not violated in any way by said acts, there not
being any stipulation exempting the citizens of North America from
the payment of ordinary contributions of the class now under
discussion.
Quite on the contrary, in the third article it is stipulated that the
citizens of either of the contracting countries may reside and trade
in the territory of the other, enjoying the same rights, privileges,
and exemptions as the natives, but subject to the
laws, decrees, and usages to which native citizens are
subject.
There is now only to inquire if these acts of the government of
Panama are contrary to the general stipulations of international
law. The general rule is saving only when restrictions are imposed
by public treaties, that foreign inhabitants have to bear the burden
which the laws impose upon the citizens without any other condition
than that of the burden of services; and obligations of this
description comprise equally citizens and foreigners.
In accordance with the above prescriptions of international law, the
Colombian law of the 21st of June, 1866, defining the condition of
foreigners, their rights and obligations, concedes to domiciled
foreigners the same guarantees and rights as the Colombians in their
persons and property, saving likewise the stipulations of public
treaties.
And these prescriptions of international law, which are ratified in
the Colombian law, are the expression of a very just obligation. If
foreigners come to our country for their convenience, under the
protection of our laws, it is natural that if the progress of the
country should require it, as actually happened, for the
preservation of public order and the support of the authorities, and
if this progress should reach them in their private affairs, that
they should lend their aid and contribute in a just and equal
measure to the preservation of public order, and the support of
these authorities who protect them.
This doctrine, wholly equitable, just, and in accordance with
international law, is that which is accepted and sustained by the
government of the Union in cases of the class to which I have
referred.
The instructions which your honor has been pleased to communicate to
me, appear to result from a report somewhat partial, and it is on
that account, without doubt, that the American government,
considering said contributions, destined for war purposes, judged
that the treaty between the two countries, as likewise the Colombian
constitution and international law, were a just support to the
claims. Proceeding on these premises, his excellency Mr. Seward, the
Secretary of Spate’s said instructions, that the citizens of the
United States of America, resident in Panama, were to refuse the
payment of said contributions, except under protest, and his
excellency the
[Page 1050]
Secretary
of State adds, that after it is fully known the character of the
conflict, his government will determine upon the question that might
be presented.
Evidently the instructions alluded to were dictated by a spirit of
foresight and benevolence for this government, which is appreciated
in a high degree by the President; but having been issued under
suppositions distinct from the actual facts, and from reports which
attributed to the acts of the government of Panama motives and
irregular tendencies which did not exist, the national government
considers that it ought to place said acts in their proper light, so
that the minister, being better informed, may manifest to his
government the true facts, that there may be no deception as to the
legality of the action of the Panama government with reference to
the decrees about the commercial contribution.
The executive considered just the instructions issued by his
excellency the Secretary of State of the United States of America
with respect to the observance of certain blockades. The federal
government, as soon as it received advice of the blockade of the
port of Santa Martha, disapproved in the most explicit manner of
said acts, in consequence of its having been decreed by incompetent
authorities to decree and carry into effect, and for other motives.
Timely orders were given in consequence of the blockade, and the
necessary measures taken that said orders should be obeyed, as they
were accordingly.
Having terminated the reply which the instructions communicated by
your honor to my department required, I have the honor to subscribe
myself General Sullivan’s obedient and faithful servant,
