No. 593.
Mr. Baker to Mr. Frelinghuysen .

No. 686.]

Sir: Referring to my No. 570, and to your dispatch numbered 190—all relative to the custody of ships’ papers—I have to say that, after giving the matter careful and attentive consideration, I prepared a memorandum thereon, of date 10th instant, based—as fully and accurately as might be—on what you say in your said dispatch numbered 190. This memorandum I personally took to Mr. Seijas on the 10th instant. I read it to him in full; made some verbal remarks in explanation or enforcement of it; bespoke his attention to it; and commended it to the candid and just consideration of the President. Mr. Seijas said he would urge it upon the President.

I send a copy of said memorandum as an inclosure herewith, and draw your attention thereto in extenso. I gave a copy of it on the 10th instant to Colonel Mansfield, the British minister at this capital, and to-day I sent a copy of it to Mr. Pyer, the German minister. Colonel Mansfield has an instruction from his Government relative to the matter, as now moved by our Government, but Mr. Pyer has not, as I understand from him.

* * * * * * *

You will see, by consulting the 5th head of my memorandum, that the existing law of Venezuela, in relation to her own consular officers abroad, recognizes the principle that ships’ papers in a foreign port should be in the custody of their respective nations’ consular officers.

I trust you will find my memorandum sufficiently full, clear, and strong, and I have a good hope that the desired reform respecting the custody of foreign ships’ papers in the ports of Venezuela will be effected.

I am, &c.,

[Page 920]
[Inclosure in No. 686.]

memorandum respecting the matter of the custody of foreign ships’ papers while in the ports of venezuela.

Mr. Baker has the honor to very politely and respectfully recall the attention of his excellency Mr. Seijas to the matter of the custody of foreign ships’ papers while in the ports of Venezuela, concerning which matter Mr. Baker has heretofore had several friendly conferences with Mr. Seijas, and one with his Excellency, General Guzman Blanco, President of the Republic, leading up to a friendly suggestion or request of the President that Mr. Baker would obtain from his Government a statement of the reason why a change respecting the matter in question is desired, in order that he might present it in his next message to Congress.

Mr. Baker has consequently been advised by his Government of the grounds on which a strong friendly desire is felt by it for a change in the premises; and he has been instructed to present to his Excellency General Guzman Blanco a succinct memorandum founded thereon.

Mr Baker is advised by his Government that his Excellency the President of the Republic “should be disabused of any impression he may have formed that the matter is brought up as an innovation,” that “it has for more than fifty years been the occasion of discussion and remonstrance with various nations of Spanish America,” and that if it be now revived in connection with Venezuela it is because it seems necessary to the best interests of both countries that an anomalous practice should not exist between them in this respect.”

In view of the friendly attitude of the President of the Republic towards the matter in question. Mr. Baker will limit himself to a simple and brief statement of the grounds on which it is deemed that it would be advantageous to both countries if Venezuela should find it right in the exercise of her sovereign powers to concur in the friendly views of the United States respecting the subject-matter; and Mr. Baker believes that these grounds are so strong in their bare statement that they will at once arrest the favorable attention of the President.

1. It is eminently desirable that there should be agreement and harmony between all the republics of the western hemispheie in regard to the great general rules which they resort to in dealing with each other’s ships; and indeed it is alike desirable that a similar harmony of usage should prevail between all the nations of the civilized world. The basis of such harmony should be the general opinion and usage of civilized nations.

Now: “The law of the United States following the usage of most civilized countries provides that the custody of the papers of foreign ships shall rest with the consuls of their nations” except as to such foreign nations as do not reciprocate this provision. The law of the United States being thus in accord with the general practice of civilized nations, rests upon a very broad and solid foundation of public usage, not applicable to the United States only, but adopted and practiced by most civilized countries, and applicable with equal force of reason to all the rest.

2. “In the second place, apart from considerations of reciprocity founded on treaty, the sacredness of the principles of reciprocity as an enduring basis of international intercourse under the law of nations may be forcibly invoked” in support of the same position. “A vessel under a civilized flag on the high seas or in a foreign port possesses a national life of which its papers are the strongest evidence. They are to all intents a part of the vessel itself. To assume that by the act of entering a friendly port, a vessel is to be stripped of that which is in a large measure essential to the proof of its nationality, and to await, the pleasure of a local foreign officer before such part of its life can be restored to it, is inconsistent with international principles and usage.” Hence it is found “that the custom of nations (with but few exceptions in the Spanish-American ports of South America), recognizes the consul of the vessel’s nationality as the sole guardian of all national right appertaining thereto.” The exceptions referred to “are happily growing fewer,” and, inasmuch as they are in contravention of the general usage of nations, they cannot be regarded as resting on any “broad principle of comity,” but on the contrary must be regarded as violating comity. “The register is the evidence of the ship’s nationality, and as such, with the ship itself, are properly within the continuous jurisdiction of the vessel’s nation, and, therefore, in a foreign port, within the jurisdiction of the consul of that nation.”

3. “In the next place, a conclusive reason for the custody of ships’ papers by the consul of her nation is found in the necessity of preventing frauds against individuals in connection with marine survey repairs, bottomry bonds, the right of absent owners, &c., and protection of the rights of seamen. It is for these purposes that the legislation of nations provides that the register of a vessel while in port shall pass out of the control of her commander and into the custody of the consul. It is not at all necessary that these diversified rights should be subservient to the local police [Page 921] surveillance while in a foreign port, and yet the rule existing in Venezuela so subordinates them. Moreover, the exercise of these several rights over a vessel for which the laws of her nation make abundant provision is rendered almost impossible by the passage of the papers out of the control of the nation to which the vessel belongs.”

4. Several cases of alleged loss of ships’ papers in the ports of Venezuela under the existing practice have been brought to the notice of Mr. Baker. It seems plain that it were better that the responsibility for the safe-keeping of such papers while in port should be with the consul who represents the nation of the ship.

5. Mr. Baker understands that the existing law of Venezuela, in relation to its own consuls and commercial agents in foreign countries, wisely recognizes the impregnable principle that ships’ papers in a foreign port should be in the custody of their respective nation’s consular officers. This law prescribes such custody by Venezuela’s own consular officers of the papers of her own vessels during their stay in foreign ports, provided, of course, that there shall be no contrary arrangements in the country: (See Recopilacion de Leyes y Deeretosde Venezuela, tomo IV, p. 395.)

The principle contended for in this memorandum is strong obviously, invincibly strong, in every rational sense; and, in view of the good disposition of the President in regard to the matter, Mr. Baker hopes that the needed reform, solicited in so friendly a spirit by the Government of the United States, will be acceded to in a like friendly spirit by the Government of Venezuela.