Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871
Mr. Wright to Mr. Fish
Sir: Asking your reference to my dispatch No. 174, of the 22d ultimo, and to the copy of a note accompanying it, which I had addressed to the minister of foreign affairs, concerning the alleged invasion of the legation of the United States at Asuncion, by soldiers in the service of the empire of Brazil, I have now the honor to transmit herewith, No. 1, a translation of the minister’s reply to my note above cited, and, No. 2, a copy of my answer to the ministers note.
From the former you will observe that the minister proposed to deliver to such person as I might indicate all the property taken possession of at the legation at Asuncion, without distinction, in accordance with the schedules prepared at the time by a commission of officers appointed for the purpose; and, from the latter, that I have accepted the ministers proposition, and have requested that the delivery may made to the Hon. John L. Stevens, our minister at Paraguay, or to his representative.
I am awaiting a copy of the schedules referred to by the minister, and for which I have asked, that I may send it to Mr. Stevens, and inform him of the arrangement which has been made.
I have asked for two copies of the schedules, that I might send one to you.
You will please observe that, while accepting the minister’s proposition, I have still reserved the right to our Government to take such further action as it may deem proper. * * * * *
Trusting that my action in this matter may meet your approval, I have &c.,
Mr. Correia to Mr. Wright
I have the honor to acknowledge the receipt of the note which Mr. Robert Clinton Wright, chargé d’affaires of the United States, addressed to me on the 4th instant.
The senhor chargé d’affaires refers to the extract from the dispatch of Mr. Hamilton Fish, dated 31st January last, which he delivered to me some days since, and in which his excellency refers to articles belonging to Paraguayans, to the Government of the United States, and to Messrs. A. Duffield and Washburn, left by the latter at the American legation at Asuncion when he retired thence.
Mr. Wright observes that from the dispatch referred to, it appears that the Brazilian forces, upon entering that capital, took possession of the said legation, and that the enemy’s property was seized by the said forces. The senhor chargé d’affaires states that his government makes no claim for any property not belonging to it or to American citizens; it appeals, nevertheless, to the magnanimity of the imperial government in favor of the Paraguayans who deposited their effects in the American legation. The Government of the United States, adds Mr. Wright, goes farther, and submits to that of Brazil the following question: Whether the Paraguayan property [Page 49] deposited in the said legation was not in analogous circumstances to that of the enemy’s property on board of a neutral ship at sea, which is not subject to seizure, under a principle admitted by Brazil. As regards the property of the United States and that of Messrs. Duffield and Washburn, the American Government, in any event, expects reparation.
The question being placed in this form, the senhor chargé d’affaires concludes by requesting that I will communicate to him the views of the imperial government in reference to the property deposited at the American legation, which, for the most part, belongs to poor and helpless women. That if the government of Brazil, according to the appeal which is confidently made to its magnanimity by that of the United States, shall entertain favorably the claims of the unfortunate Paraguayan women, the proofs of the losses sustained by them, which it may be possible to obtain, would be submitted to its consideration.
With this résumé of the note of the senhor chargé d’affaires, I proceed to give him due answer, which will be preceded by a narrative of what occurred in connection with this matter.
Mr. Kirkland, commander of the steamer “Wasp,” addressed, on the 25th February, 1869, to the commander-in-chief of the Brazilian forces operating in Paraguay, a dispatch which closes as follows: “I have also to call your excellency’s attention to the tact that, since the occupation of the city of Asuncion by the Brazilian army, the house which was occupied by the legation of the United States has been visited and sundry boxes, some of which were sealed, opened by force, and their contents taken away; besides this, the official archives of the legation have been removed. I request that your excellency will issue orders to those under your command, that they shall deliver to me, on board this vessel, all property belonging to the legation of the United States which may be in their possession.” On the 7th March the Brazilian general received another dispatch, in which Mr. Kirkland makes the following communication: “I have the honor to inform you of my departure, and to notify you that I have named Commander Frank MacNevins as agent of the United States pro tempore at this port, to receive and keep, until they shall be claimed by the proper authorities, all property and papers, of whatsoever kind or nature they may be, belonging to the Government of the United States, and which may be delivered to him by you in virtue of my request of the 25th February, or which may come into his hands through any other channel.” In a dispatch of the 8th March, Marshal Guilherme Xavier de Souya, after stating that he could not admit the claim of the commander of the “Wasp,” as this was a matter which belonged to the governments and their diplomatic agents, set forth the motives which obliged the Brazilian military authorities to take possession of the property found in the house No. 95 Justice street, where, it is stated, Mr. Washburn had lived.
This statement is indispensable to my answer, and therefore I must transcribe it here.
“The city of Asuncion was converted into a ‘peace forte’ by General Lopez, who, at the same time, obliged the unfortunate inhabitants, natives and foreigners, to retire to the interior, taking with them whatever they could carry.
“Many months after this forced emigration, and when the city was abandoned even by the Paraguayan forces which had garrisoned it, the allied armies, victorious in various battles, in December entered it.
“It is true that the Brazilian forces were the first that entered, and it is also true that they found many houses open, others without roofs. This took place on the 1st January, at night. The first care of the Brazilian colonel, Hemes Ernesto da Fonseca, commander of that brigade which preceded by a few days the body of the allied armies which marched by land, was to cover the interior line of the city, availing himself of the entrenchments of the enemy to distribute patrols to police the city, and to place guards in those houses which had the shields of the French and Italian consulates as well as in other buildings where he could see or might presume that they contained objects of value.
“One of the houses in which the latter precaution was taken was that of No. 95, Justice street, where, it is said, the senhor ex-minister, of the United States, Washburn, had lived. The motive of the precaution taken by the Brazilian military authority being known, it is proper to state the manner in which the articles found in the said house were taken possession of.
“The articles found in this house, says Marshal G. X, de Souya, in his above-cited dispatch, were inventoried and placed in security by a commission of officers from the military and civil department of the Brazilian army; named for this purpose by Marshal Marquis, of Caxias, all of which appears from the respective reports made in the most precise, authentic, and trustworthy manner.”
These reports were published at pages 107 to 109 of the report of this Department for the year 1869, and in them is stated the amount of jewels and other articles found at the said house. Some furniture was also found, and a box fastened with screws, which were already apparently injured, having on the top a label which stated that it contained the archives of the American legation. Neither externally nor internally did the said house indicate that it had been the habitation of the minister of the United [Page 50] States, who had retired months before the events which delivered Asuncion into the possession of the allies.
Furthermore, it did not appear natural, as the Brazilian general observed, that he should fail to take with him the archives of the legation, or to confide them to the care of the consular agents residing at Asuncion. And the circumstance of the American minister having occupied the house in reference was not of itself sufficient to determine the true origin of the deposits alluded to.
It may be added that with the withdrawal of Mr. Washburn from Paraguay, the privileges enjoyed by his residence ceased. “From the moment a public minister,” says H. Wheaton, Elements International Law, compiled by Dana, section 224, “enters the territory of the State to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an entire exemption from the local jurisdictions, both civil and criminal.” These weighty considerations, as well as the want of authority of Mr. Kirkland, gave rise to the refusal of the Brazilian general to deliver to that commander the articles found in the house which Mr. Washburn had occupied.
But, in the same dispatch in which the Brazilian general conveyed this refusal to Mr. Kirkland, he declared that the restoration should be made as soon as it should be proved that the articles referred to belonged to Mr. Washburn or to persons who had not served the cause of the enemy.
In taking possession of them, Brazilian authority had no other object than to place them in safety that they might be delivered in proper time to the legitimate owners. Of this purpose irrefragable testimony is borne by the fact that large sums of money were scrupulously delivered to the provisional government of Paraguay, which under constitutional right might have been considered as prize to the victor. The imperial government has therefore resolved, in accordance with its previous action, to deliver to the Government of the United States all the articles found at the house in which Mr. Washburn had resided, without making any distinction between those which belonged to American citizens and which belonged to Paraguayans. This resolution does away with the necessity of any discussion as to the analogy between enemy’s property deposited at the aforesaid house, and that which may be found on board a neutral vessel at sea. As a consequence of the said resolution, I shall ask the war department to issue the necessary order to deliver to the persons designated by the senhor chargé d’affaires, the articles taken possession of by the Brazilian military authorities which were found in the house, at the city of Asuncion, occupied by the American minister. The delivery will be made in conformity with the reports made upon the occasion of the taking possession of the property. I avail myself of the occasion to renew to Mr. Wright the assurances of my very distinguished consideration.
Mr. Wright to Mr. Correia
The undersigned, acting chargé d’affaires of the United States, has the honor to acknowledge the receipt of the note addressed to him by his excellency Mr. Manoel Francisco Correia, under date of the 30th May, in reply to his note of the 4th of the same month, in reference to certain property of Paraguayans, of the Government of the United States, and of Mr. John A. Duffield and Mr. Washburn, alleged to have been seized as booty by soldiers in the service of the empire of Brazil, upon the occupation by them of the city of Asuncion. His excellency refers, in the first place, to a demand made by Commander Kirkland, of the United States steamer Wasp, upon the commander-in-chief of the Brazilian forces operating in Paraguay, Marshal Guilherme Xavier de Souya, for the delivery to him of the property which had been seized at the United States legation, and observes, citing Marshal Souya’s dispatch of the 8th March, in reply to Commander Kirkland, that the Marshal, after stating that he could not admit the claim of the commander of the Wasp, as this was a matter which belonged to the governments and their diplomatic agents, sets forth the motives which obliged the Brazilian military authorities to take possession of the property found in the house No. 95 Justice street, where it was stated Mr. Washburn had lived. This statement of Marshal Souya, his excellency considers indispensable to his reply, and consequently transcribes it. From this statement it appears that Asuncion was converted by General Lopez into a “place forte,” who, at the same time, obliged the inhabitants, natives and foreigners, to retire to the interior, taking with them whatever they could carry; that many months after this forced emigration, and when the city was abandoned even by the Paraguyan forces which had garrisoned it, the allied [Page 51] armies, victorious in various battles in December, entered it; that it is true that the Brazilian forces were the first that entered, and it is also true that they found many houses open and others unroofed; that this took place on the 1st January at night; that the first care of the Brazilian Colonel Hermes Ernesto da Fonseca, commander of the brigade which preceded by a few days the body of the allied armies which marched by land, was to cover the interior lines of the city, availing himself of the entrenchments of the enemy, to distribute patrols for the policing of the city, and to place guards in those houses which bore the shields of the French and Italian consulates, as well as in other buildings where he could see or might presume that they contained objects of value; that one of the houses in which the latter precaution was taken was that of No. 95 Justice street, where, it is said, the ex-minister of the United States had lived.
His excellency continues: “The motive of the precaution taken by the Brazilian military authority being known, it is proper to state the manner in which the articles found in the said house were taken possession of,” and for this purpose quotes further from the statement of Marshal Sonya, as follows: The articles found in this house were inventoried and placed in security by a commission of officers from the military and civil departments of the Brazilian army, named for this purpose by Marshal Marquis, of Caxias, all of which appears from the respective reports made in the most precise, authentic, and trustworthy manner.
His excellency next Observes that these reports were published at pages 107 to 109 of the report of the department of foreign affairs for the year 1869, and that in them is stated the amount of jewels and other articles found at the said house; that some furniture was also found, and a box fastened with screws, which were already apparently injured, having on the top a label which stated that it contained the archives of the American legation; that neither externally nor internally did the said house indicate that it had been the habitation of the minister of the United States, who had retired months before the events which delivered Asuncion into the possession of the allies; that furthermore, as Marshal Souya observed, it did not appear natural that the minister should fail to take with him the archives of the legation, or to confide them to the care of one of the consular agents residing at Asuncion, and that the circumstance of the American minister having occupied the house in reference was not of itself sufficient to determine the true origin of the deposits alluded to. “It may be added,” says his excellency, “that with the withdrawal of Mr. Washburn from Paraguay the privileges enjoyed by his residence ceased.” “From the moment a public minister,” says H. Wheaton, (Elements of International Law compiled by Dana, section 224,) “enters the territory of the state to which he is sent, during the time of his residence and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction, both civil and criminal. These weighty considerations, as well as the want of authority of Commander Kirkland,” continues his excellency, “gave rise to the refusal of the Brazilian general to deliver to that commander the articles found in the house which Mr. Washburn had occupied; but that in the same dispatch in which the Brazilian general conveyed this refusal to Commander Kirkland, he declared that the restoration should be made as soon as it should be proved that the articles referred to belonged to Mr. Washburn or to persons who had not served the cause of the enemy; and that, in taking possession of them, the Brazilian authority had no other object than to place them in safety, that they might be delivered, in proper time, to the legitimate owners, of which purpose irrefragable testimony is borne by the fact that large sums of money were scrupulously delivered to the provisional government of Paraguay, which, under constitutional right, might have been considered as prize to the victor.”
His excellency concludes by informing the undersigned that the imperial government has resolved, in accordance with its previous action, to deliver to the Government of the United States all the articles found at the house in which Mr. Washburn had resided, without distinction between those which belonged to Americans and those which belonged to Paraguayans; that this resolution does away with the necessity of any discussion as to the analogy between enemy’s property deposited at the aforesaid house, and that which may be found on board a neutral vessel at sea; and that, as a consequence of this resolution, his excellency would ask the War Department to issue the necessary orders to deliver to the person designated by the undersigned the articles taken possession of by the Brazilian military authorities, and which were found in the house, at the city of Asuncion, occupied by the American legation, which delivery will be made in conformity with the reports or schedules made upon the occasion of the taking possession of the property. This, the undersigned believes, is a clear résumé of his excellency’s note, to which he has the honor to reply.
In justification of the demand addressed by Commander Kirkland to Marshal Souya, the undersigned would state that it is a sanctioned practice under his government that the commanders of national ships, where the interests of their country may seem to require it, and they may find no diplomatic or consular representative of their government present, may exercise consular or even quasi-diplomatic functions.
Touching the observation of Marshal Souya, that it did not appear natural that Mr. [Page 52] Washburn should have failed to take the archives of the legation away with him, or to confide them to the care of one of the consular agents residing at Asuncion, the undersigned begs to say that Mr. Washburn asserts that he delivered the keys of the house he had occupied to the Italian consul, Mr. Lorenzo Chapperon; but even had he not done this much there would have been nothing unnatural in the omission, nor in his not removing the archives, for it must be remembered, and this can scarcely have been unknown to Marshal Souya, that this American minister, Mr. Washburn, was flying, as it were for his life, from a savage who knew no law but his own brutal and malignant will and instincts. As regards the immunity to which the house that had been occupied by Mr. Washburn was entitled, and concerning which his excellency quotes from the distinguished Wheaton, it is doubtless true that diplomatic immunities and privileges, under a strict construction of international law, live only during the presence of the minister in the country to which he is sent; but these immunities, the undersigned is persuaded, would not be withheld, either by Brazil or any other civilization, from the residences of ministers which they might have been forced to abandon temporarily upon the bombardment or storming of a capital. And if so much may be assumed in regard to the residences of ministers in capitals taken by bombardment or storm, the undersigned respectfully submits that it was hardly expecting too much of Brazil that, when her forces entered, without opposition, into the capital of Paraguay, they should respect a house which was still technically the legation of the United States, containing its archives, and which the minister had been forced to abandon under circumstances notoriously involving great risk to his life. The undersigned entertains no doubt that his government will duly appreciate the magnanimity of the imperial government in having surrendered to the provisional government of Paraguay large sums of money to which, under the laws of war, it considered itself entitled, as well as the promptness with which it has responded to its appeal in behalf of those Paraguayans who had deposited property at the American legation at Asuncion.
The undersigned accepts the proposition of his excellency to deliver, to the person who may be designated by him, the property taken possession of by the military authorities of Brazil, at the legation of the United States at Asuncion, in conformity with the schedules or reports heretofore referred to, and requests that the delivery may be made to the Hon. John L. Stevens, minister resident of the United States to Paraguay, or to his representative. But the Government of the United States having been informed that Mr. Chapperon, the Italian consul heretofore referred to, asserted to Mr. Worthington, late minister of the United States to the Argentine Confederation, that at the time the city of Asuncion was entered by the Brazilian forces there was still remaining property at the American legation of the value of $200,000; that Mr. Worthington asserts that the Brazilian authorities at Asuncion acknowledged that they had taken $30,000, which they offered to pay over to him, but that he declined to receive it, for the reason that it was but a small part of what they had taken; that Mr. John A. Duffield, an American citizen, had property on deposit at the legation of the value of $15,000; that there was also at the legation a large box marked “archives of the legation of the United States,” containing the archives of the former United States consulate at Asuncion, and a large number of books, a flag, letter-press, and other things belonging to the legation, many of the books having “U. S. legation” lettered on the backs of them, being found scattered about the town after the occupation; and that Mr. Washburn himself left personal property of his own at the legation to the value of $500 or $600, the undersigned must reserve to his government the right to take such further action in the matter as it may seem proper. The undersigned would still beg of his excellency, Mr. Manoel Francisco Correia, the favor that he will furnish him with two copies of the printed reports or schedules above referred to, and has the honor to renew to his excellency the assurances of his high respect and most distinguished consideration.