Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1884
No. 453.
Mr. Baker
to Mr. Frelinghuysen.
Caracas, April 27, 1884. (Received May 19.)
Sir: Referring to my No. 892, of date 10th instant and to my No. 902, of date 18th instant, both relative to the case of Mr. John Dalton, United States consul at Ciudad Bolivar, I have the honor to inclose herewith:
- 1.
- A printed copy of the letter or order of the President, Guzman Blanco, which I referred to in my No. 892 as the same appears in the Opinion Nacional of the 31st ultimo, together with a translation thereof.
- 2.
- A copy of the note referred to in my No. 892, of date 1st instant, which I addressed to Mr. Seijas, with a view of preventing the arrest of Mr. Dalton.
- 3.
- A copy and translation of Mr. Seijas’ note, of date 7th instant, in reply to mine.
- 4.
- A copy of my note of date 26th instant, in rejoinder to the note of Mr. Seijas.
- 5.
- A copy of the dispatch, of date 18th instant, and referred to in my No. 902, which I addressed to Mr. Dalton.
- 6.
- A copy and translation of a part of Venezuelan law, referred to in Mr. Seijas’ note.
I, of course, draw the attention of the Department to all of these in-closures in extenso.
My view is that the President’s order is in violation of constitutional guarantees, and especially and plainly in violation of the guarantee relative to ind vidual security.
* * * * * * *
I have still received no communication from Mr. Dalton on the subject.
I am, &c.,
Letter of the President.
Mr. Minister of Public Works: What the Government has done in the territories during the last three years has had as much foresight as its results have been satisfactory. Although there were no more than that, it would suffice to prove that the administration which closes has known how to conduct the Government with singular prudence.
Before the consequences of the crisis we are passing through could he felt in the country, it proceeded to create for it revenues which would supply the deficiency about to supervene in the existing revenues.
The territories being organized one after another, with laws, authorities, and administration, it began to yield the working of their natural products; it afterwards increased the yield, and it is increased in a manner so happy that the revenue created from the territories has advanced to cover that which, on account of the depreciation of coffee, the revenue of the Republic is losing, as may be seen by studying my recent message to the present Congress.
But, Messrs. John Dalton &Co., Palazzi Brothers, Hahn, Grillet & Co., Früshstück Brothers, P. Battistini & Co., N. Gärdes & Co., C. Vicentini & Co., Mönch, Kraft & Co., W. Kühn &, Co., Luis A. Portilio, and Mieheiaugeii and Figarella, of Ciudad Bolivar, protesting against what the Government has done for the working of Caura, have made representation in terms truly improper, as being disrespectful; for which, [Page 579] without loss of a moment, you will communicate to the minister of the interior, who will communicate on the matter to the president of the State of Bolivar, the constitutional agent of the federal government, in order that he may impose on said persons an arrest of three days in the quarters of the national force.
Furthermore, improving the departure of the first steamer, you, the minister of finance and of the interior, should communicate to your respective dependents, recommending to them the most rigid fulfillment of all the dispositions relative to the territories, especially respecting the Sarrapia, which may have come, or may come, from Caura, that which the merchants of Ciudad Bolivar may have inclusive—be it of whatever harvest—and whether or not they may have permits signed by Señor Pazos, who has fled without giving an account of the government of the territory with which he was charged, and for which it is also urgent to decree his subjection to trial.
I am, &c.,
Mr. Baker to Mr. Seijas.
Caracas, April 1, 1884.
Sir: My attention was arrested this morning by a letter from his excellency the President of the Republic to his excellency the minister of public works, of date 29th ultimo, as the same appears in the Opinion Nacional of the 31st ultimo. Upon inquiry I learn that it has not yet been published in the Gaceta Oficial. The nature of the contents of the letter, the violent presumption of its authenticity, though published in an unofficial periodical, and my clear conviction that it is my plain duty to draw your excellency’s urgent attention to it at the earliest possible moment, will obviously justify my reference to it in its present form of publication.
The letter in question, which is really an order, states in effect that Mr. John Dalton and various other persons of Ciudad Bolivar, protesting against what the Government has done for the working of Caura, have made representation in terms truly improper, as being disrepectful; and directs that for this, without loss of a moment, the minister of public works will communicate to the minister of the interior, who will communicate on the matter to the president of the State of Bolivar, in order that he may impose on said persons an imprisonment of three days in the quarters of the national force.
I am fully persuaded that there can be no real law of Venezuela which authorizes the summary seizure and imprisonment, upon an executive order, of a citizen of the United States domiciled in Venezuela, for the mere joining with others in making a representation touching a matter of the domestic economy of the country in terms which the President may regard as disrespectful. I should be surprised to learn that there is such a law in any republic on the globe.
Mr. John Dalton, of Ciudad Bolivar, is consul of the United States of America, and I understand he is also a citizen thereof, domiciled in Ciudad Bolivar. Therefore, as in duty bound, as diplomatic agent of the United States of America, I do respectfully request that said order be not executed so far as it applies to Mr. Dalton; and I do respectfully and solemnly protest against its execution as applied to him.
I avail, &c.,
Mr. Seijas to Mr. Baker.
Caracas, April 7, 1884.
Mr. Minister: On the 2d I received your excellency’s communication of the 1st, in which, grounding yourself on the presumed authenticity of a letter published in the Opinion Nacional, you protest against its contents, after requesting that there may not be applied to Mr. John Dalton, consul of the United States at Ciudad Bolivar, the order of the President there communicated for the imprisonment of him and others who have addressed themselves to the first magistrate in disrespectful terms.
I will begin by indicating to your excellency that in fact the President of the Republic has expedited such order, although not for imprisonment, as your excellency qualifies it, but for arrest, by way of correction of the fault committed.
In Venezuela, by article 555 of the penal code, the violation of the respect due to [Page 580] authority is ranked as a fault against public order and is punished by arrest for the time of five to twenty days, unless on account of its gravity it may constitute the crime designated “desecration,” in which case the punishment is much greater. For this a proceeding is necessary and the punishment is applied by the tribunals. But, moreover, the authorities, as well legislative as political and judicial, can, without previous trial, impose by way of correction mulcts and arrests which are not considered as punishment, according to article 43 of the code cited.
Almost daily are read in the periodicals of this city notices of arrests decreed by the governor or the prefects of the federal district, in virtue of power which has been conceded to them by the President of the Republic, who has constitutional power to organize it and act in it as first authority, civil and political. (Article 65, No. 7 of the Constitution.)
By No. 10 of the same, in cases of foreign war, the President can “arrest or expel individuals who may belong to the nation with which this is at war, and who may be adverse to the defense of the country.”
According to article 137 of the penal code, the national Executive, the country being declared in civil war, can detain all individuals who for political motives he may believe prejudicial to the peace and security of the Republic.
“In time of peace,” says the second part of the article, “the national Executive cannot detain any citizen for political motives.”
Then it is clear that for other motives he can detain them.
In fact it would be an absurdity that the President of the Republic, chief of the general administration, sole representative of the respect of foreign powers, colaborer of the legislature, charged with the fulfillment of the laws, supreme chief of the national army, and to whom is committed the security of the country, and the guarding of its interests and its honor, should have his hands tied, and should have to leave unpunished lacks of respect for the Government—estimated according to his own criterion.
That of the United States has not proceeded thus when it has believed itself offended in its dignity by foreign diplomatic agents, as took place in 1809 with Mr. Jackson, British minister; in 1818 with General Lino de Clemente, chargé d’affaires of Venezuela; in 1849 with Mr. Poussin, representative of France; and in various other cases in which it has judged its respect offended by publications made, or letters addressed to the supreme magistrate, on matters pending in the department of exterior relations.
There is no treaty in force between Venezuela and the United States. So to their citizens article 10 of the constitution is applicable, which gives to foreigners the same civil rights as to Venezuelans, and the same security in their persons and property.
Nor does the circumstance of Mr. Dalton being a consul hinder; for the Republic, in accord in this with the United States, does not admit that consuls may have diplomatic privileges or may be exempt from the civil and criminal jurisdiction of the place of their residence, as to what does not concern their functions, chanceries, flag, escutcheons, archives, and seals.
On the other hand, Mr. Dalton, at the same time that he is a consul, is a merchant in Ciudad Bolivar; and in such character, which gives him no right above the other merchants, but on the contrary places them on a level at every point, it was that he associated himself with the other signers of the protest.
But there is more: Mr. Dalton’s character of consul is a circumstance aggravating his fault; for, according to the regulations prescribed for the use of the consular service of the United, States edition of 1881, which I have in view, their consuls, when for lack of a diplomatic agent they may communicate directly with the Government, ought to do it in a courteous, and dignified manner, a precept which is extended to every class of correspondence with the local authorities.
It is there likewise seen that they are commanded to avoid public discourses as far as possible, and above all to abstain from unfavorable or critical comments on the institutions or acts of the government to which they may be accredited.
It is remembered that in the United States the French consul, Mr. Dillon, was arrested for not having complied with the order of appearance of the tribunal, notwithstanding that a clause of the respective conventions excepted the consul from such obligation.
According to the same book which I have before cited, the consuls of the United States in Belgium, Germany and Holland, are free from arrest, unless for crimes. In France they have personal immunities; but if they are Frenchmen or occupy themselves in trade, they can only claim the immunities conceded to other citizens of the country who possess property or are merchants. In Austria-Hungary merchant consuls can only be detained for mercantile debts. In Colombia the consuls of the United States have no diplomatic character. In Great Britain, Liberia, Holland (as to colonies), Nicaragua, and Paraguay they are considered as chosen for the protection of commerce.
[Page 581]In Venezuela, I should add, consuls have no diplomatic character, nor immunity from civil and criminal jurisdiction, as was declared in 1852 and in 1872, and lastly in the decree of the 25th of January, 1883.
As the Republic has made no consular convention with the United States, nor remains in force the last treaty of commerce of 1860, which included some consular articles, these rules of said instructions, paragraph 77 are applicable to the consuls of the United States here: “However, a consul, according to public law, is subject to the payment of contributions and imposts and municipal taxes on his property in the country, or on his trade, and in general, to the civil and criminal jurisdiction of the country where he resides. It is probable that, if he does not engage in business, and possesses no immmovable property, he would not be subject to arrest or incarceration except for a criminal charge, and in case of committing a crime he can be punished by the local laws, or returned to his own country.”
Besides being a merchant, the consul, Mr. Dalton, is proprietor of immovable property; so that all the circumstances favorable to his arrest concur in him.
In the extinguished treaty of 1860, between Venezuela and the United States, the case is provided for, and solved in the following manner, article 26:
“The high contracting parties grant to each other the liberty of having in the ports of the other, consuls and vice-consuls of their own appointment, who shall enjoy the same privileges and powers as those of the most favored nation; but if any of said consuls carry on trade they shall be subject to the same laws and usages to which private individuals of their nation are subject in the same place.”
Finally, if the President should hot have sufficent power for what he has done—which is denied—the present first magistrate would derive it from the extraordinary powers conferred on him.
The measure taken with Mr. Dalton is merely one of police. Had it been desired to subject him to a punishment he would have been ordered to be proceeded against, after withdrawing his exequatur, or he would have been expelled for the impropriety of his conduct.
What has been exposed will convince your excellency of the reason which has supported the first magistrate in imposing a correction on Mr. Dalton, not in jail, but in the quarters of the national forces, for a want of respect, which without doubt is punished in all countries of the globe where authority is conscious of its duties.
I renew, &c.,
Mr. Baker to Mr. Seijas.
Caracas, April 26, 1884.
Sir: Your excellency’s note of date 7th instant, in reply to my note of date 1st instant, relative to the case of Mr. John Dalton, United States consul at Ciudad Bolivar, has been received, attentively considered, and I regret to be constrained to add found to be completely unsatisfactory.
Your excellency’s preliminary corrective observation, indicating that the order of the President was “not for imprisonment,” as I had qualified it, “but for arrest by way of correction of the fault committed,” is found to be without substantial weight. To arrest and detain one in custody in military quarters for three days is, in reason and in the general legal sense, an imprisonment for that time.
Nor do I find any substantial weight in your excellencys palliative observation that “the measure taken with Mr. Dalton is merely one of police.”
There is nothing upon which my Government places so high a store as upon the rightful liberties of its citizens. The summary seizure and detention for three days in military custody of a man who is at once a citizen and a consul of the United States, is very serious business, demanding a clear warrant therefor, a warrant which in this case I am wholly unable to discover.
Nor do I find any cogent weight in your excellency’s general observation to the purport that it would be absurd to suppose that the President “should have his hands tied, and should have to leave unpunished lacks of respect for the Government, estimated according to his own criterion.” To be sure the President, as every chief magistrate of a nation, must be supposed to have proper power, limited by domestic and public law, to look about and attend to such matters, but I am persuaded that your excellency must see on reflection that the tremendous power you seem to claim for [Page 582] the President in these matters, unlimited except by his own criterion or judgment, is wholly untenable.
In short, I must candidly say that it appears to me that none of the observations of your excellency go with any cogent weight to the case.
Saving without prejudice all other things that might be said, it appears to me that the following is sufficient and conclusive.
As your excellency observes, article 10 of the constitution gives to foreigners the same civil rights as to Venezuelans. I draw your excellency’s attention to the guarantees to Venezuelans contained in article 14, section 6 of the constitution relative to the liberty of expressing thought; in article 14, section 10, relative to the liberty of petition; and in article 14, section 14, clause 4, relative to individual security. The provision of this last is:
“The nation guarantees to Venezuelans * * * neither to be taken nor arrested without the proceeding of a summary information of an offense (delito) having been committed which merits corporal punishment, and a written order of the functionary who decrees the seizure with an expression of the motive which causes it, unless taken in the act.”
This is the fundamental law of Venezuela, in conflict with which any other law or usage of the country is wanting in real legality, in presence of it, I regard the arrest and detention of Mr. Dalton as plainly illegal. If, as your excellency’s note leaves me to conclude, the order in question has in fact been executed at against him.
I avail, &c.,
Mr. Baker to Mr. Dalton.
Caracas, April 18, 1884.
Sir: Doubtless you have sometime since been made aware of a recent letter or order of the President, Guzman Blanco, directing, in substance, that you and some twenty or more other persons, of Ciudad Bolivar, be subjected to an arrest of three days in the quarters of the national force—that is, in effect, be subjected to three days imprisonment in the military quarters at Ciudad Bolivar—for, in short, having made a representation touching a certain matter of the domestic economy of the country, in terms which the President regards as “disrespectful.” This letter or order was published in the Opinion Nacional of the 31st ultimo. I first saw it on the morning of the 1st instant, and in the evening of the same day I sent to the minister of exterior relations, Mr. Seijas, a note on the matter, concluding with a respectful request that said order be not executed so far as it applies to you, and a respectful and solemn protest against its execution as applied to you. On the 8th instant I received from Mr. Seijas, in answer, a somewhat lengthy and completely unsatisfactory note, of date 7th instant setting at naught my request and my protest.
This much for the purpose of informing you, as is eminently proper in such a case, of the prompt action which I took with the view of preventing your arrest. I am left, however, to infer from the order, and from Mr. Seijas’ note that you have in fact been arrested.
I have not yet received any communication from you on the subject, and it may yet be too early for that. I draw your attention to paragraph 83 of consular regulations, 1881. If you have not already done so, you should as soon as practicable make a full report of the matter to the Department of State and to this legation.
I am, &c.,
Article 555. Those will be chastised by arrest for the time of five to twenty days * * 14th, who shall be wanting in the respect and consideration due to authority, or who shall lightly disobey it, tailing to fulfill the particular orders it may dictate to them, if the lack of respect or the disobedience shall not constitute an offense (delito).—Codijos de Venezuela, 1873.