No. 469.
Mr. Frelinghuysen to Mr. Soteldo.
Washington, April 4, 1884.
Sir: I had the honor to receive from you in due course a note dated the 8th of February, in relation to the Wheelock case, which has now for four years been the occasion of remonstrance and reclamation by this Government against that of Venezuela.
My thanks are personally due to you for the prompt and friendly manner in which you endeavored to bring this matter to a settlement by supplementing the representations of this Government and urging an immediate disposition of the claim. I must equally express my regret at your want of success, for, as now appears from your note and from the letter addressed to you by President Guzman Blanco, the Venezuelan Government does not recognize the right of this Government to seek diplomatic redress for one of its citizens injured under circumstances of peculiar hardship.
The argument is, as I understand it, briefly, that Venezuela, having in past times been involved in much expense by reason of compensating foreigners injured in person or property by unlawful acts of the Venezuelan authorities, has devised a domestic scheme of laws, whereby foreigners suffering any such wrong are deprived of the right of recourse to the diplomatic interposition of their Governments and constrained to abide by such action “as the local tribunals may take upon their complaints, and that in making efforts to secure the arrest, trial, and punishment of the officer who tortured Mr. Wheelock, the Venezuelan Government has exhausted all possible resources which it might be disposed to employ as an act of friendly deference to another power.
I must frankly express disappointment at this unexpected reply. It is impossible in the first place for this Government to accept the proposition that Venezuela is not liable now, because, in view of the expense of recompensing those foreigners who suffer from the inadequate protection the domestic administration of the country affords, that Government has enacted domestic laws disclaiming such liability.
There is no principle of international jurisprudence more firmly rooted than that independent states have the sovereign right of intervention to protect their citizens in a foreign state and redress the wrongs they may there suffer, and that this right becomes doubly assured in the presence of a denial of justice.
This Government has abundantly recognized this principle in its intercourse with other states. Their claims are admitted to ample discussion, and in case of final disagreement as to the merits of the complaints, [Page 600] international modes of settlement are resorted to. At the present time, a court of arbitration just held in Washington has decided the unsettled claims of France, on behalf of French citizens injured by the acts of our officers. Consideration of the rights involved outweighs in such cases all considerations of mere expense. In no case do we resort to legislative expedients to restrict the right of foreigners in this country to seek the aid of their own Governments for the redress of alleged wrongs.
The issue has been raised in various ways by several of the republics of the American continent, and this Government has consistently contended against such restriction. We hold that the status of a foreigner is, under international law, inherent, and can be neither affected nor destroyed by the municipal law of the state where such foreigners may happen to be sojourning. A foreigner’s right to ask and receive the protection of his Government does not depend upon the local law, but upon the law of his own country. His citizenship goes with him into whatever country he may visit, and the duty of his Government to protect him so long as he does nothing to forfeit his citizenship accompanies him everywhere. This duty his Government must discharge, and it could not, if it would, be relieved therefrom by the fact that the municipal law of the country where its citizen may happen to be has seen fit to provide under what circumstances he may be permitted to appear before the authorities of that country. Such a law cannot control the action or duty of his Government, for governments are bound among themselves only by treaties or by the recognized law of nations, and there is nothing in the existing treaties between the two countries or in the law of nations which recognizes as pertaining to Venezuela the right by the enactment of a municipal law to say how, or where, or under what circumstances the Government of the United States may or may not ask justice in behalf of one of its own citizens.
It may, perhaps, be broadly admitted that when the courts of a country afford adequate remedy to foreigners and natives alike in case of wrongful treatment, resort thereto in the first instance by the aggrieved party may be proper; but even in such a case the right of the sufferer’s Government to watch over the proceedings from the outset is inalienable. It is its duty to see at every stage that justice is done, to urge full and speedy compliance with the laws, and” by its counsel and remonstrance, its moral and material support, to advance the interest of its wronged citizen.
Mr. Wheelock’s case has, however, passed far beyond the initial stage to which President Guzman’s letter would now seek to recommit it. It has reached the higher plane of an apparent denial of justice.
The correspondence lately published shows that the departmental and State courts of Venezuela successively decided that no grounds existed for continuing the process or ordering the arrest of the commissary, Sotillo, who inflicted the illegal torture upon Mr. Wheelock. On his excellency’s own showing, this would have sufficed to dismiss the complaint forever, without recourse or appeal.
Conceding the right of this Government to ask justice for its injured citizen, the Federal Government of Venezuela ordered the State government to reopen the examination. This was done and the result was the same. Here, then, we have three failures of justice, any one of which, if President Guzman’s argument be admitted as well founded, was necessarily final.
But two years afterward the Venezuelan Government discovered that “the result of the proceedings involves civil responsibilites,” and a fourth investigation was held, the result of which amply bore ont the [Page 601] allegations of Mr. Wheelock’s complaint. Warrants were issued for the arrest of Sotillo, who had meanwhile left the country, and orders were issued to confiscate Sotillo’s property, which he had before this placed out of reach of judicial embargo.
Now, after more than four years have passed, it is claimed that the responsibility of Venezuela to punish the offender is met by these tardy and ineffectual proceedings; and, further, that the sufferer is wholly without civil recourse for material reparation, save such as the federal court may find due to him from the commissary, Sotillo.
I may be permitted to pass over, as not meriting serious consideration or argument, the allegation which your note implies, that the Government of Venezuela is not liable “on account of occurrences over which it had absolutely no control and of which it had no knowledge.” It is not claimed that the Federal Government directed, or was cognizant of, or consented to, the outrage perpetrated by its public servant in the execution of his public functions.
The simple complaint of this Government is, that an officer of justice of Venezuela, in the exercise of his official functions, subjected an American citizen, whom he had arrested on suspicion, to grievous bodily torture to extort from him a confession of guilt. For this act this Government asks the punishment of the offender, and expects that Venezuela will tender an equitable indemnity to the victim.
The President is surprised at the tardy proposal of Venezuela, now for the first time heard of in connection with the case, that Mr. Wheelock shall seek redress at the hands of the high federal court. Even if he had been disposed to consent to such a disposition of the matter in the interest of friendship and harmony between the two countries, a casual examination of the provisional decrees of 14th February, 1873, concerning the rights and indemnification of foreigners, which prescribe the procedure to which the complaint would be subjected, leads the President to withhold his acceptance of such a resort.
This Government cannot waive the right of its citizens to claim diplomatic protection as those decrees require. It cannot admit that if the court shall deem the claim for indemnity exaggerated the American claimant shall forfeit all rights and incur heavy fine or prolonged imprisonment. It cannot consent to allow the court power to dismiss the claim because more than two years have passed since the commission of the injury. It cannot, in a word, regard those decrees as controlling the equitable or moral rights of an injured American citizen.
I have remarked that more than two years elapsed before any judicial resort of Venezuela admitted that Sotillo was even liable to process. Permit me to ask, in no captious spirit, how it is supposed Mr. Wheelock would have fared had he submitted to those provisional decrees in the face of the solemn adjudication of three judicial tribunals of Venezuela that no grounds existed for subjecting the commissary, Sotillo, to legal process? Would fine and imprisonment have been added to the wrong under which he already lay? If so, would it not have been alleged that diplomatic redress was effectually barred to him by reason of his voluntary submission to the operation of those decrees?
A copy of the present correspondence will be sent to the United States minister at Caracas with instructions to say that this Government does not accept the reply made to its representations, and that it renews its demand for the punishment of the offender, and repeats its expectation that the Government of Venezuela will tender to Mr. Wheelock a just indemnification.
Accept, &c.,