Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Sullivan to Mr. Seward.
Sir: * * * * * * * * * * *
On the 20th of January last, in conformity with your instructions [Page 1058] of September 23, No. 14; October 30, No. 25; December 3, No. 28; I addressed a supplemental note, of which Inclosure A is a copy, to the Colombian government, demanding indemnities in behalf of the families of the American citizens murdered, as well as on behalf of the survivors of the outrage at Carthagena on the 1st of September last.
Secretary Martin had given me to understand, from time to time, that this demand would be settled without any difficulty; * * * but as the present administration was about to go out of office, and finding no communication from you on the subject, it addressed me a note, of which Inclosure B is a translation. * * * As I have resolved to defer my reply to said communication until after the new administration shall have been inaugurated, on the 1st of April instant, I thought I ought to inform you of the progress of this perplexing case up to the present time.
Unless changed by the action of President Johnson, * * I shall in my said reply hold the Colombian government responsible for said indemnities, believing that this is the desire of our government. * * * * * * * *
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
A.
Mr. Sullivan to Señor Martin.
Sir: In obedience to instructions from my government, and as supplemental to my note which on the 5th of October last I did myself the honor to address to your excellency on the subject of the murder of George A. Borchart and J. W. Murdaugh, and of the murderous attack upon T. L. Dornin and Lieutenant Smith by a mob of Colombians at Carthagena on the 1st of September last, I now further demand of the Colombian government indemnities in money for the relatives of the persons so murdered, as well as on behalf of the survivors of said outrage.
Colombia owes it to herself and to the high position which she occupies among the family of republics to convince her oldest sister and best friend, the United States of America, that justice and fair play shall ever be the unselfish object of the younger toward the children of the older republic.
I request that your excellency will inform me without delay of the action of your government on this demand.
I have the honor to be, sir, your excellency’s obedient servant,
His Excellency Señor Doctor Carlos Martin, Secretary of the Interior and of Foreign Relations, U. S. Colombia.
B.
Señor Carlos Martin to General Sullivan.
I have had the honor to receive the note of 20th January last, in which your excellency, in addition to that of the 5th of October last, which referred to offenses committed in Cartagena on 1st of September, 1867, upon the persons of Messrs. G. A. Borchart, J. W. Murdaugh, J. L. Dornin, and J. Smith, demands of the Colombian government indemnities in favor of the families of the two former, who died in consequence of the said offenses, and of the persons of the two latter.
[Page 1059]The government has entertained a feeling of regret upon being informed of the contents of the said additional note, because it cannot perceive upon what basis the demand made therein can be supported. On the contrary, it finds clear and precise rules in the law of nations, corroborated by the stipulations of the treaty at present in force between this republic and the United States of America, consonant with the internal laws of Colombia, and which demonstrate that the occasion for the government to concede the indemnification which your excellency solicits has not arrived.
Your excellency is aware that the Colombian government, as soon as it was informed of the crimes committed on the 1st of September, condemned them in the most solemn manner, and gave orders to the attorney general of the nation to carry into effect, by means of the respective agents of the public ministry, the investigation of the facts, with a view to inflict upon the parties responsible for the said crimes the punishment which the law decrees.
Your excellency lost no time, in the note which you were pleased to address to this office on the 11th of October above mentioned, to express your satisfaction with the conduct observed by the Colombian government respecting this affair, considering it a “fresh proof of the friendly spirit of the republic of the United States of Colombia toward the government and people of the United States of America,” and your excellency will have seen published in the Diario Oficial, No. 1,055, the note which, in consequence of the said requisition, the attorney general of the nation transmitted to the attorney general of the sovereign State of Bolivar, under date 14th October last.
Neither the recommendation of the federal executive power, nor that of the attorney general of the nation, was, however, necessary. On the very night of the 1st of September the competent authorities of Carthagena proceeded to draw up the procès verbal of the occurrence, visiting the places in which the crimes were committed, and receiving the declaration of such persons as were supposed to have been present.
Subsequently nothing has been omitted, with a view to obtain as complete a procès verbal as possible. The North American consul in Carthagena, who had handed your excellency a report of the said events, as being perfectly acquainted with them, was requested to point out the individuals who might be able to give information upon the subject. In this capital the testimony of Señor Juan Manuel Grau was received and added to that of such other individuals as the public papers have pointed out as having been present at the events of the 1st of September. Finally, Messrs. Miguel Cespe-des, Teodoro Yates Marquez, Vicente Barrios, and Nicholas Franco were arrested, as your excellency was informed from this office, as appearing to be responsible for the said crimes, and they still remain in prison at the date of the last advices received by the executive power.
As far as regards the design of this note, the narration of the few preceding facts, already known for the most part to your excellency, and taken from authentic documents, is sufficient, together with a statement of the principles of the law of nations, as regards the matter.
Vattel, treating of the responsibility which may accrue to a nation from the actions of the members who form it, after establishing the principle that whoever maltreats a citizen indirectly offends the state whose duty it is to protect him, and that if a sovereign, who has the power to restrain his subjects within the bounds of justice and peace, permits them to offend a foreign nation or citizen, he aggravates the said nation as much as if he himself had offended it, expresses himself in the following terms:
“Neverthless, as it is not possible for the best organized state, or the most vigilant and absolute sovereign, to regulate at his pleasure all the actions of his subjects, and maintain them always in the strictest obedience, it would be unjust to impute to the nation or to the sovereign all the faults of the citizen, consequently it cannot generally be said that an offense has been received from the nation because it may have been received from one of its members.
“But if the nation, or its chief, approves or ratifies the action of the citizen, he makes it his own affair, and the offended party must then look upon the nation as the real author of the offense, of which, perhaps, the citizen has been but the instrument.
* * * * * * *
“And since the latter, the sovereign of the individual who has committed the offense, ought not to permit his subjects to molest or injure those of another, and still less audaciously to offend foreign powers, he must oblige the culpable party to make reparation for the injury or the insult, if it be possible, or to punish him in an exemplary manner, or finally, according to the case and circumstances, deliver him up to the offended state, in order that the latter may do justice.
“The sovereign who refuses to oblige his subject to repair the injury caused, or to punish the culpable party, or finally to deliver him up, makes himself, in some respects, an accomplice in the injury, and responsible for the same.”
Mr. Bello, in his treatise on international law, while stating the rights and duties of foreigners, established a doctrine similar to that of Vattel.
The before-mentioned author declares “that the foreigner, as soon as he enters the territory of another nation, contracts the obligation of submitting to the laws and [Page 1060] local jurisdiction, and the state offers him the protection of the public authority deposited in the tribunals; so that if the latter should unjustly refuse to hear his complaint, or should do him a manifest injustice, the foreigner may then interpose the authority of his own sovereign, having recourse to the minister of the nation near the government in whose territory he resides, or in order to be heard in judgment or to be indemnified for the injuries he may have received. He adds that the acts of jurisdiction of a nation over the foreigners residing therein, if they are in conformity with its own laws, must be respected by other nations, in virtue of the obligations which every person contracts on entering the territory of a foreign state to submit himself to its laws, and consequently to the regulations which it has established for the administration of justice, and finally from the obligation which the state contracts of observing the said laws as regards the foreigner, he infers that if the state approves, instigates, or tolerates the acts of injustice and violence of its subjects against foreigners, it makes them in reality its own, and makes itself responsible for them as regards other nations.”
It is apparent, therefore, that the cases in which a government is responsible for the acts of its subjects executed against foreigners are limited to those in which the said government approves, instigates, or tolerates the said acts, refusing to punish the culprits, or that the latter make good the injuries they have caused. The American legation has not made, nor could it in justice make, against the Colombian government the accusation of having approved, instigated, or tolerated the crimes of the 1st of September.
The contrary has been recognized by your excellency, and is proved by the facts related at the commencement of the present note, as well as by the trial in progress in Carthagena in consequence of the said crimes.
The injured individuals will possess the right to be indemnified for the damages received by the persons who caused them, establishing their claim before the authorities of Colombia, and in accordance with the laws of the republic to which they submit themselves, when they entered the territory of the union.
Equally clear with the statements of the law of nations above cited are, as regards the present case, those of the treaty rights between Colombia and the United States of America.
The treaty in force between the two countries states in the 13th article that the two contracting parties undertake reciprocally to dispense their special protection to the persons and properties of the citizens of each one in the territories, subject to the jurisdiction of the other; but in the same article the manner is determined in which the said protection is to be afforded them, “leaving open and free to them the tribunals of justice, in the same terms as are used and accustomed by the natives or citizens of the country.”
Besides, the laws of Colombia do not confer either upon foreigners or citizens the right to claim of the Union indemnification for injuries caused by crimes such as those committed on the 1st of September.
The said right is conferred upon the injured parties against the culprits, and consequently it is from the latter that the imdemnification which your excellency claims from the government must be exacted. Besides, the amount of the said indemnifications must be taken into consideration, as a matter of proof and judicial settlement.
The conclusion, therefore, of the trial which is at present being conducted in Carthagena, will be the means which may lead to the satisfaction of the claims to which I have referred.
The time has not yet arrived, in the absence of official data, for the solution of this question.
The result of the trial, at present in progress in Carthagena, will afford the clear and precise data required for the examination of the question respecting the responsibility for the lamentable assassinations to which the undersigned had referred. If, in accordance with the results of the judicial investigations actually in progress, the principles of the law of nations, and the stipulations of the treaty in force between Colombia and the United States of America, the Colombian government should appear to have incurred any responsibility, the republic will not refuse to satisfy the same.
The executive power will reiterate the orders communicated to Carthagena for the acceleration of the course of the judicial process before alluded to.
With sentiments of high and distinguished consideration, I have the honor to subscribe myself the honorable General Sullivan’s very attentive servant,