No. 112.
Mr. Bayard to Mr. Beach.

No. 42.]

Sir: The commander of the Wachusett, which, under orders from the Navy Department, revisits Guayaquil in connection with the Santos case, will have delivered to you my instruction No. 30, of May 1, 1885, prescribing your action thereon. It seems proper that I should acquaint you with the cause of the delay, now of more than a month’s duration, in the transmission of that instruction to you.

On the 14th of May last, the Wachusett being then at Panama and about to sail for Guayaquil, I was revisited by Senor Antonio Flores, minister of Ecuador, who had been summoned from Spain, as he informed me, for the purpose of adjusting the Santos case on an honorable and mutually satisfactory basis. Mr. Flores professed to be in ignorance of the merits of the case, the instructions which his Government had announced by cable as on the way hither not having reached him; but he raised the point that Mr. Santos, by a residence of more than two years in Ecuador after the date of his acquisition of United States citizenship, had completely annulled his acquired status and reverted to his original allegiance under the existing treaty. I told Mr. Flores that the presumption created by such two years’ residence had been most amply and conclusively rebutted, and that the evidence in rebuttal before the Department left no doubt as to the full obligation resting upon this Government to regard Mr. Santos’s citizenship as established, and to assert his rights, and accord him protection as a citizen.

As the result of my conference with Señor Flores, I addressed to him on the same day, May 14, a note, in which I invited him to visit the Department on the following day, May 15, there to inspect the instruction [Page 263] and accompanying documents then on their way to you, and I added:

Your perusal of these papers will give you the opportunity to telegraph your Government of your concurrence in the decision of this Department, and to request the trial or release of Mr. Santos. This being done may avoid the presence of a man-of-war of the United States at Gueyaquil, and so enable the prompt disposition of the matter as benefits the good relationship of the two countries.

On the morning of May 15, Mr. Flores sought a second conference with me. He professed his earnest desire to avoid the presence of the Wachusett in Ecuadorian waters, and stated that his powers were, he believed, sufficient to enable him to propose an arrangement by which Santo’s should be forthwith released, reserving the question of citizenship. He prepared a telegram in that sense to President Caamaño, and asked that it should be sent through the Department immediately, before he should have examined the papers and proofs which I had offered to submit to him. To this I assented, and the following telegram was accordingly dispatched:

President Caamaño, Guayaquil:

Dé usted permiso á Santos, por solicitud mia, para venir Estados Unidos per próximo vapor, comprometiéndose él á no conspirar y dando él certificado escrito de que nunca ha conspirado, sin tocar cuestion nacionalidad. Contesto “Convenido”—y cuestion arreglada.


This telegram, as translated by Señor Flores, reads in English as follows:

Give permission, at my request, to Santos for leaving to United States next steamer, he binding himself not to conspire, and giving written statement he has never conspired, reserving all question of citizenship. Answer “Agreed”—question settled.

I then informed Señor Flores that the departure of the Wachusett and the conveyance to you of my instruction of May 1 would be suspended for a reasonable time to permit of the acceptance and execution of this agreement by the President of Ecuador.

This agreement having been thus concluded, I placed at Senor Flores’s disposal the proofs submitted in rebuttal on Mr. Santos’s behalf, and permitted him to peruse at the same time the instruction to you dated May 1, and the report of the law officer of the Department. Senor Flores’s attention was drawn to the fact that the demand of this Government was simply for the immediate open and impartial trial of Mr. Santos on distinctly formulated charges, with all the guarantees of procedure and defense accorded by the treaty to United States citizens accused of crime in Ecuador; or, in default of such trial, his release from custody. Señor Flores was pleased to express his appreciation of the temperateness with which this Government had proceeded in the matter.

I learned, through the courtesy of the president of the Central and South American Telegraph Company, that Señor Flores’s message of May 15 was delivered to President Caamaño, at Quito, on the 21st of May. Since then I have not been informed by Señor Flores of the acceptance of the amicable mode of settlement which he and I had agreed upon.

Quite a voluminous correspondence has, however, been exchanged during the past month between Señor Flores and this Department. Much of it relates to the apparent delay which has occurred in acting upon the agreement here reached, but as this has been for the most part conjectural, and, in the absence of positive information, it seems unnecessary [Page 264] to do more than refer to it here; other points of this later correspondence, less conjectural in tone, may be more specifically mentioned.

(1) Señor Flores has laid considerable stress on the circumstances that he is advised by his Government that proofs have been forwarded to him controverting the evidence presented in rebuttal by and on behalf of Mr. Santos. He had asked whether I would consider such proofs, when received, with a view to changing the decision reached by us in respect of Mr. Santos’s status as a citizen. I have not felt called upon to admit the suggested injection of such “proofs” at the present stage of the matter 5 for the agreement of May 15 was reached by common consent, without presentation of any proof whatever on either side, and the reservation of the citizenship question is complete and equally binding upon both parties; hence I see no more reason why this Government should prejudge the reserved question by taking cognizance of “proof” to be offered by Ecuador than it should insist on Ecuador’s prejudging it on “proofs” submitted by us.

(2) Señor Flores has made several overtures to me looking to an engagement in advance to submit to friendly arbitration any claim which may be presented on Mr. Santos’s part for reparation or damages. I have informed Señor Flores that I regard any such engagement as entirely premature; that no intimation or suggestion of ulterior claim for damages has been made to this Department except by Señor Flores himself; that the reservation of the question of Mr. Santos’s citizenship will naturally extend to and include any personal rights dependent upon his citizenship, and that, should ulterior questions of this character arise, I cannot conceive that they would not yield to the amicable and mutually honorable treatment which two nations must ever give to questions arising between them.

(3) On the 30th of May Señor Flores addressed me a note to the effect that he had received a delayed instruction from his Government, by mail, whereby he was empowered to adjust the Santos question, but that before doing so he desired to await the arrival of the documentary “proofs” above referred to, and to this end he asked a further delay.

I pointed out to Señor Flores, in reply, that he had already proposed the settlement of the matter by the release of Mr. Santos without prejudice to the reserved question of citizenship; that I had assented to this settlement, without, however, thereby waiving or annulling the ground on which our right to intervene to secure Mr. Santos’s trial, or release in default of trial, rests; that I had already, after the agreement of May 15 was reached, afforded Señor Flores the opportunity to inspect the evidence on our part, so that he might have the option of signifying his concurrence in the conclusions reached by this Government; that I now understood him to ask a reasonable delay in the execution of that agreement, so that, in the light of the expected documents, he might feel assured that he was discharging his duty toward his own Government, under his full powers, in carrying that settlement into effect; that I had no objection to according such a reasonable delay, in the conviction that it could merely postpone for a few days, and not overturn the good understanding arrived at; that my consent to the delay asked could not imply that the decision of this Government as to its duty in the premises would be changed or opened for discussion; and I reminded Senor Flores, in all frankness, of the grave responsibility he assumed should the result of the requested delay be (as I trusted it would not be) to lead him to annul the agreement of May 15, and so remit this Government to the assertion of its rights.

[Page 265]

Señor Flores replied June 2, reaffirming, so far as in him lay, the agreement of May 15, and disclaiming any purpose of assuming the responsibility of withdrawing from it in view of any proofs he might thereafter receive. He affirmed that he had repeatedly telegraphed to his Government arguing the acceptance and execution of the agreement of May 15, and he concluded by withdrawing his request for delay in order to examine the documents expected by him. I understood this withdrawal and the explanations by which it was accompanied as merely a personal declension of whatever responsibility might be imputed to him if the agreement of May 15 should fail, and that the whole matter reverted to where it was before he asked this special postponement.

(4) Several later notes from Senor Flores are devoted to argument to show that it may perhaps not be in the power of President Caamaño, any more than it is in his own power by virtue of the authority which President Caamaño has delegated to him, to effect the release of Mr. Santos except in conformity with the constitution and laws of Ecuador.

Señor Flores would seem to endeavor to create the impression that Mr. Santos has actually been convicted by due process of law, and can only be released by the exercise of the executive clemency in the manner prescribed by law. I have not felt called upon to discuss this point with Señor Flores. For your information, I may observe that the theory of actual conviction does not comport with the latest advices received from Guayaquil, which point to a dilatory and unsatisfactory preliminary examination before a committing magistrate (ensamario) without accordance of the treaty-rights to which an American citizen under such process would be entitled.

It will thus be seen that this Government has not only approached the question of Mr. Santos’s rights as a citizen with every desire to reach an impartial judgment thereon after a most searching investigation, but that in the endeavor to reach a satisfactory adjustment in accord with the empowered representative of Ecuador, no effort has been spared to testify our wish that the perhaps just sensibilities of a friendly sister republic should be spared and every deference shown to it in attaining the desired result.

I am hardly called upon to conjecture, and still less to excuse, the causes of the delay in acceding to the mutually honorable agreement reached by Señor Flores and myself on the 15th of May and since repeatedly reaffirmed by him. I have no grounds at hand from which to infer that the object in view may have been to gain time for the completion of the judicial proceedings said to have been instituted against Mr. Santos, so that, being convicted without regarding his claim to treatment as an American citizen on trial, he might be the better pardoned with reservation of the question of citizenship; but the conjecture is at least within the bounds of plausibility. On the other hand, I do not see the necessity of pressing the proceedings to a point where executive pardon might be the only means of relief. In the preliminary and summary proceedings against Mr. Santos, which are the only ones of which I have any information, the abandonment of the process by the public prosecutor would seem to have been at any time available to enable the agreement of May 15 to be carried out with the reserve thereby conditioned.

The material fact before me, on which I can alone act, is that after a month’s delay the arrangement voluntarily offered by the plenipotentiary of Ecuador has not been accepted or executed by the Government which empowered him to offer it.

[Page 266]

The President has therefore come to the conclusion that a reasonable period of delay has been granted without avail 5 and he has directed that the instruction of May 1 be conveyed to you in the manner originally intended, and that you act in accordance therewith by demanding, either that Mr. Santos have prompt trial, with all the guarantees of procedure to which a citizen of the United States is entitled under existing treaty stipulation, or that, in default of such trial, he be set at liberty.

As you have already seen, from the summary herein given of my correspondence with Señor Flores, this Government has abstained from any intimation of purpose to uphold any claim for restitution of property or damages which Mr. Santos may hereafter present. Indeed, no such ulterior claim is before us. Were Mr. Santos set at liberty under the agreement of May 15, I should, of course, assume that the reservation of the question of citizenship carried with it reservations of all matters dependent upon such citizenship. But if the agreement falls through, and if it be found that Mr. Santos has been treated in disregard of his claimed rights as a citizen of the United States, it would be entirely in order and consonant with international usage and precedent in such matters to regard continued delay in recognizing Mr. Santos’s just rights as increasing the responsibility which this Government might ultimately be constrained to attach to that of Ecuador. If, therefore, the execution of the agreement of May 15 should be refused, or if the proceedings against Mr. Santos should be pushed to judgment in denial of the rights we competently claim for him as an American citizen, you should very distinctly intimate that subsequent claims on his behalf cannot but be aggravated thereby, should any such come up for consideration.

Finally, you will understand that the mission of the Wachusett is one of peace and good will, to the end of exerting the moral influence of our flag toward a discreet and mutually honorable solution, and in the event of Mr. Santos being released, to afford him the means of returning to the country of his allegiance and domicile. The purpose of her presence is not to be deemed minatory; and resort to force is not competently within the scope of her commander’s agency. If all form of redress, thus temperately but earnestly solicited, be unhappily denied, it is the constitutional prerogative of Congress to decide and declare what further action shall be taken.

You will show this instruction to Commander Mahan.

I am, &c.,

[Inclosure in No. 42.]

Mr. Bayard to Mr. Whitney.

Sir: Referring to my letter of the 1st of May last, requesting that the Wachusett might he directed to proceed to Guayaquil, Ecuador, conveying instructions to Consul-General Beach in relation to the case of Julio R. Santos, and referring also to the subsequent verbal understandings whereby the departure of the Wachusett from Panama has been temporarily delayed, pending certain correspondence here, carried on between the minister of Ecuador and this Department, looking to, the release of Mr. Santos, I have now the honor to request that telegraphic orders be sent to the [Page 267] commander of the Wachusett, directing him to proceed forthwith with his vessel to Guayaquil, in accordance with his instructions.

He will, of course, understand that his mission is entirely friendly, and that if the situation or treatment of Mr. Santos should seem to require it, he will ask the instructions of the Department.

I have the honor to be, sir, your obedient servant,