No. 470.
Mr. Soteldo to Mr. Frelinghuysen.
Washington , April 10, 1884. (Received April 11.)
Most Excellent Sir: I have the honor to acknowledge the receipt of your excellency’s communication of the 4th instant. I think that its contents require some observations on my part, which I trust will be favorably received, since they are dictated by a sincere desire to bring about the most cordial understanding in respect to the point in question.
I return my sincere thanks for the complimentary expressions whereby your excellency recognizes my efforts to bring to a final settlement the claim of the citizen Wheelock, when I was not aware of its importance, nor of its intimate relation with certain grave complications, nor with the institutions of vital importance for Venezuela in common with the other sister republics of the continent, which, if disregarded, would precipitate us into difficulties of all kinds, greater than that which we should have avoided.
In order to proceed methodically, I shall begin my observations in the order of the arguments and conclusions of the communication to which I propose to reply.
Your excellency infers from my note and from that of his Excellency President Guzman Blanco, which accompanied it, that the Government of Venezuela does not recognize the right of this Government to have recourse to diplomacy in order to secure the redress of a wrong suffered by one of its citizens, who has been maltreated under circumstances of peculiar cruelty. This assertion is not sustainable in this absolute and isolated form. What his Excellency thus maintains in the case in question is precisely what has been maintained by the United States, which have been our model since the very establishment of their independence, i. e., that foreigners entering a country become subject, ipso facto, to the laws of that country, which they are under obligations to respect and obey during the whole time of their residence there, and if they suffer injuries they are under the absolute necessity of seeking redress therefor, according to the usual legal methods, before the competent courts of the nation. They are not to have immediate recourse to diplomacy or to prefer international complaints unless they have exhausted all ordinary methods.
In cases in which they think that they have ground for a complaint against the Government for offenses received from public officers, with the sanction or approbation of the Government, or in pursuance of its orders, they must have recourse to the high federal court, which is a tribunal in every respect equal in its attributes and powers to the United States Court of Claims, and the same methods are to be pursued as in this country. Just as in this Republic, recourse to the Department of State would be considered irregular in the case of any injury done the citizens of another nation with a view of securing pecuniary compensation and the punishment of the parties implicated in the offense, without taking the trouble to have recourse to the courts of justice, or to present sufficient proofs or anything more than a simple statement of the party, so is such a proceeding considered by the laws of Venezuela. Such is likewise the doctrine of the United States, especially [Page 603] in regard to the exclusion of diplomacy in cases in which the cognizance of such cases belongs to the courts of justice. This was claimed by his excellency Mr. Seijas, minister of foreign relations, in his note to his excellency Mr. Baker, bearing date of August 23, 1881, which was recently published here, and the arguments of which I think proper to reproduce at the present time.
Attorney-General Randolph, in his report in relation to the case of Pagan, a British subject, February 22, 1792, confirms my statement in regard to abstention from recourse to diplomacy in cases which properly belong to the courts, and both in this and the other matters to which I have called attention he is in accord with Webster, who in the case of the New Orleans riot in 1851 refused indemnity to Spanish citizens and only allowed it to the consul of Spain in view of his special character.
The aforesaid note mentions the observations of Attorney-General Cushing in the case of the bark Eliza, May 27, 1855, in which he shows that the United states are not responsible for the failure of an American pilot who caused it to run aground, and shows that every country has power to legislate in regard to the condition of foreigners, and to compel them to obey the laws, as well as the duty to observe international rules towards the Spanish American states, with respect to which he says:
Great Britain, France, and the United States have assumed on various occasions rights of intervention in behalf of their subjects or citizens in those countries which none of us would tolerate in our Own country, in some cases through necessity, and in others with very doubtful discretion or justice. This has aggravated the evils of misgovernment there, as will palpably appear to any one carefully studying the international condition of the Republics of South America.
The reflections which I have just made render it unnecessary for me to demonstrate to your excellency that if Venezuela, in the matter of the claims of foreigners residing in her territory, whether permanently domiciled or not, considers them as being subject to its laws, and allows them the same means of redress that it does to its own citizens, following the example of the laws and practices of the United States, it cannot be said that that country has devised any method peculiarly its own that is not based upon the law of nations and upon the practices of this great Republic, in order to debar foreigners who have suffered injury from having recourse to the diplomatic intervention of their respective Governments, and to compel them to submit their complaints to the competent local tribunals.
Suppose, your excellency, that during the excitement consequent upon the discovery of gold in California, whenever an injury was done to one of the many foreigners who rushed to that distant region, the diplomatic ministers of the nations to which the aggrieved parties belonged had addressed the Department of State, demanding pecuniary redress, such as is asked in the present case, and the punishment of the delinquent, even though the latter had been a police officer of the place, having charge of purely local matters. If this would have been inadmissible at that time, and is so now, has been, and will ever be so in this country, there have not been wanting those who have sought to impose it upon the Spanish American Republics. All have hitherto resisted it by themselves alone, and all have endeavored to protect themselves by their laws, to the extent that some have endeavored to establish as a constitutional rule the principle that foreigners shall be subject to the laws of the country receiving them into its territory. The rule being one of international law, it seems scarcely necessary to mention [Page 604] it in the laws or constitutions, save for greater clearness and definiteness.
Nothing would be more dangerous than to allow to foreigners the privilege of burdening a nation with enormous international payments for every injury received by them or to relieve them from the obligation of having recourse to the courts to establish the truth of their allegations and the real rights of the parties. Your excellency will admit, with my Government, that foreigners entering the territory of a nation cannot claim greater or more important concessions of individual liberty and of local protection than the natives themselves, and that there would be no reason to impose upon it the burden of a more special guarantee because of any accident to those who, retaining their foreign nationality, reside in the republic. It is impossible to deny the principle of jurisprudence which extends the protection of a government to its citizens whithersoever they may go.
It is, however, to be understood that such protection in nowise relieves them from the duties and obligations contracted by them, particularly from that of obeying its laws, since two opposing sovereignties be admissible at the same time. In such a collision the sovereignty of the place would naturally have to be recognized, because a foreigner could never arrogate to himself more favorable conditions than the native in his own home. In the case of the present claim it cannot be said that there has been any denial of justice, because what has not been asked cannot have been denied. The complainant has not appeared before any Venezuelan court asking for the punishment of the party who injured him, or for the pecuniary redress of his wrongs. On the contrary, as soon as he was released on the ground of the insufficiency of the charges of G. Patroni who caused his arrest, and who was likewise an American citizen, he at once addressed the consul of the United States in the capital of the State, instead of having recourse to the courts. He next went to the island of Trinidad, whence he requested the United States minister at Caracas, by letter, to cause the Government of Venezuela to pay him an indemnity of $50,000. He then came to the United States, where he continued urging the Department of State, and afterwards the American Congress, to procure for him an indemnity of $250,000 for the injury suffered by him and for the Venezuelan Government’s delay in making payments of the first claim.
Where constitutional powers are divided as they are here, the Executive is not the proper officer to hear the complaints of private citizens, whether native or foreign. They must substantiate their claims before the courts specially charged with the administration of justice, and of the forms, without which there is no possibility of discerning facts or law. I have not studied or had an opportunity to render myself thoroughly familiar with the cases cited by your excellency of the damages claimed by French citizens, and am consequently unable to appreciate their resemblance to the present case.
When I said, in my note of February 11, that Venezuela had been obliged to raise a barrier to the ruinous abuses introduced as diplomatic claims, I cannot have stated that it had had recourse to any other methods than to the sound principles of public law in the same manner as other powers; still less that it had disregarded the rules of conduct which should be observed by all members of the great family of nations.
The argument that its courts had not furnished an adequate remedy to foreigners for injuries suffered by them could scarcely be admitted in any State.
[Page 605]In the case in question the claimant did not appear for the purpose of demanding the punishment of the party who had injured him, or the pecuniary redress to which he thought himself entitled, before any Venezuelan court. If such a thing should occur here, and if, when the case was commenced before a court, the injured party had not appeared, no one would consider as a denial of justice the declaration of such a court that there was no ground for the continuance of the case owing to the lack of an interested party and of the corps du délit.
When this happened, owing to the absence of the aggrieved party, both the President of the State of Guayana, where the case occurred, on which Wheelock’s claim is based, and the President of the Republic, took, each, in his turn, all measures within the sphere of their powers to secure the arrest and punishment of the offender.
Notwithstanding the absence of Wheelock, the aggrieved party, and of the difficulty of proving his statements, as he admits in his published letters, and as is admitted by all, sufficient evidence was secured after a most persistent and very careful investigation, to justify the courts in ordering the arrest of the offender and the seizure of his property.
No pains have been spared by the Government to bring the guilty party to justice, yet he has succeeded in effecting is escape. The good name of the Republic, and a solemn conviction of what was its duty, rendered this a task that had to be performed.
The means are not yet exhausted, most excellent sir, which have been and which will be used by Venezuela until the culprit is brought to justice. From the very outset, however, my Government has deeply regretted to be obliged to differ from that of your excellency in respect to pecuniary indemnities due from it on account of injuries done to individuals by persons not acting under its orders, much less with its sanction or approval. In my humble opinion, it is only in cases in which subordinates act in pursuance of the orders of their Government or with its approval, that their acts render the nation responsible to foreigners and to foreign Governments. An act performed by a public officer, especially by a mere commissary of police, whose grade is the lowest in the municipal and local department, entails no obligation of an international character, unless the officer obeys, in the performance of such act, orders received by him from his Government. Although this circumstance, in your excellency’s opinion, is entitled to no consideration, I am glad to see that the fact is acknowledged that my Government neither ordered, sanctioned, nor had the slightest knowledge of the outrage which is the basis of this claim.
If his Excellency the President of Venezuela has pointed out the proper course for the aggrieved party to pursue, and has not himself brought the case before the courts of justice, he has taken this course for the sole purpose of pointing out the real means of redress furnished by the laws in such cases.
I do not think that this case has by any means reached what may be considered as a denial of justice, for the reason which I have already stated, i. e., that there can be no denial where there is no petition. The applications which have been made by the complainant to the authorities of his nation will doubtless be considered as a petition, as will also the demands made by the United States Government of the ministry of foreigns relation of Caracas and of the president of the State of Guayana, who have done and are still doing all in their power to bring the guilty party to justice as a criminal; because, as regards pecuniary redress, it was scarcely necessary to tell officers of a republican government, where the attributes of the various administrative branches are [Page 606] perfectly well defined, that that was a matter with which they had nothing to do, and that if the party interested desired to obtain the amount claimed by him, it was necessary for him to bring his case before the courts of the country, just like any other private individual.
When the national Government was addressed, at the beginning of the controversy, in relation to the indemnity claimed in this case, his excellency Mr. Saavedra informed the diplomatic representative of the United States at Caracas, in his note of August 24, 1880, that the nation was not bound to pay any indemnity. In the concluding portion of the published translation of that note, the following passage occurs:
The Government thinks that, if there has actually been a crime, the obligation of the Republic is satisfied by the judgment and punishment of its authors, and that it would not owe pecuniary indemnification to the offended.
As it is not customary in this country to have recourse to the Executive for the redress of grievances or for the substantiation of cases in which private individuals are concerned, and as the courts are open to both natives and foreigners in Venezuela, without restriction, it can be said neither there nor here that the Executive dispenses or denies justice, in a forensic or international sense.
It seems superfluous to remark that the adverse decision of the courts cannot be considered as notorious injustice, when there is no absolute evidence of the sufficiency of the proofs presented. Nothing of the kind occurred, however, or could occur, for the reason that the party interested, whose presence was necessary in a case in which pecuniary indemnity was claimed on account of personal injury, left the place a very few days subsequently to the perpetration of the outrage, without bringing his case before the courts at all, so that a petition which was never presented cannot have been denied.
I regard as inadmissible the conclusion, in the note now under consideration, that there have been three repeated denials of justice, because, in the case of the proceedings instituted against Eusebio Sotillo, the accused, who was prosecuted on a criminal charge, declarations, were made by the inferior courts to the effect that there was not sufficient cause for his arrest or for the continuance of the case. Is there anything strange in this, when the injured party absented himself and declared it impossible to secure proof, as he did in the concluding portion of his letter to Consul Dalton? He there says:
I should have gotten you proofs of the above facts in affidavits, but the principal torture was inflicted in the woods, where every one was carefully kept back except the few peons and the interpreters, all of whom have such a fear of Sotillo that it is difficult to get them to swear to the truth.
What the party interested found it impossible to do cannot have been an easy matter for the government of the state or for that of the nation.
The efforts of the Venezuelan authorities were really most laudable, since they obtained evidence sufficient to justify the arrest of the accused, although this being done, it became necessary to suspend the proceedings until his arrest should be effected, since the laws of Venezuela do not allow a person to be tried in contumaciam. I think I have answered by the foregoing your note of the 4th instant relative to the case of Wheelock.
As this matter is now before the House of Representatives, your excellency might transmit my communications to that honorable body, together with the letter of his Excellency President Guzman Blanco, on the subject of this claim, so that all its phases may be made known.
I avail, &c.,