No. 70.
Mr. Bayard to Mr. Jacob.

No. 31.]

Sir: My instruction (No. 20) of the 12th ultimo directed you to support, by representations to the Government of Colombia, the protest which Mr. Adamson had been instructed to make against the arbitrary suspension of the publication of The Star and Herald by General Ramon Santo Domingo Vila, the civil and military governor of the national department of Panama.

No information has been received up to the date of writing to indicate that the temperate and just remonstrance of this Government against such an arbitrary and unfriendly act toward the property and interest of citizens of the United States dwelling in Colombia under the double guarantee of the existing treaties and the intimate friendliness of the two Governments has been heeded. Mr. Adamson’s later dispatches show a disposition on General Santo Domingo Vila’s part to relegate consideration of the matter to the diplomatic channel. It may be assumed that you have already initiated such a discussion, although the interrupted and uncertain character of postal and telegraphic communications in Colombia leaves room to infer, from the fact that nothing has been heard from you since the 5th of April, that you may be wholly unaware of the transaction.

The term of sixty days, during which General Santo Domingo Vila assumed to suspend the paper, expires on the 27th instant. That period could not be allowed to pass without recording the formal remonstrance which this Government has been constrained to make to that of Colombia.

[Page 172]

I accordingly sent you, on the 11th instant, a telegraphic instruction, as follows:

Instruction of 12th April instructed you to support protest of consul against suspension Star and Herald. It is important that Colombian Government disavow act and rebuke General Santo Domingo, or assume full responsibility.

It is now necessary to supplement that telegram by a fuller instruction.

The case is burdened by many extraneous facts which serve to confuse it; these I propose to eliminate.

A company of American citizens, employing their capital for the prosecution of a lawful enterprise, was organized on the 17th of December, 1883, according to the laws of the State of New York, under the title of “The Panama Star and Herald and the Estrella de Panama Company (limited).” The principal office, of that company is in the city of New York. The business operations of the company are conducted at Panama through the agency there established, and consist in the publication of the two journals from which the company takes its name.

That company is entitled to the protection of the Government of the United States in all its lawful operations in the territory of a friendly State under the faith of treaties between the two countries whereby the contracting parties “promise and engage formally to give their special protection to the persons and property of the citizens of each other, of all occupations, who may be in the territories subject to the jurisdiction of one or the other, transient or dwelling therein, leaving open and free to them the tribunals of justice for their judicial recourse on the same terms which are usual and customary with the natives or citizens of the country; for which purpose they may either appear in proper person, or employ in the prosecution or defense of their rights such advocates, solicitors, notaries, agents, and factors as they may judge proper in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions or sentences of the tribunals, in all cases which may concern them, and likewise at the taking of all examinations and evidences which may be exhibited in the said trials.”

The “special protection” so guaranteed is inconsistent with any arbitrary act of either Government whereby a citizen of the other may be deprived of his rights, or injured in his property without due process of law.

This act of the civil and military governor of the national department of Panama constitutes such a deprivation and injury.

The lawfulness of the publication of the papers in question, at the time of their recent arbitary suspension, is fully established—

By the circumstance that during the recent enforcement, under martial law, of a decree suspending the publication of all periodicals, a special exception was made by President Nuñez in virtue of his office, in favor of the Star and Herald, which exception remained in force during the whole period of such general suspension.
By the decree of General Santo Domingo Vila, of March 13, 1886, re-establishing the liberty of the press in the national territory of the department of Panama, and proclaiming the privilege of criticising freely all the official and administrative acts of the government of that department, subject only “to the restrictions imposed by the decrees and resolutions of the executive national power,” from which latter, as we have seen, the Star and Herald had been previously relieved by the supreme executive.

I do not dwell on the special privilege conceded by President Nuñez, [Page 173] lest it should be held that by relying upon an arbitrary favor by implication, I admit an equally arbitrary power to show disfavor. It is enough that the general suspension of the press of Colombia in July, 1885 (from which the Star and Herald was exempted), was solely justifiable by the existence of a civil war, and that the exigency having passed, the reign of constitutional law at once revived and had been proclaimed.

Liberty of the press having been restored, and the occasion for the exercise of extraordinary powers, which might be invoked by the supreme executive during the existence of civil war, having passed away, the Star and Herald, on the 26th of March last, found itself once more in undisturbed operation under the restored rule of law.

It is noticeable, in this relation, that, even were the lawful publication of the journal by American citizens subject to the irresponsible control of a military commander, which I do not for a moment admit, the supreme military authority of Colombia had expressly prohibited to General Santo Domingo Vila the exercise of such power. By a resolution of the war office at Bogota dated February 13, 1886, the President of the Colombian Republic ordered that no commander or military authority should thenceforth exercise other authority than that assigned to them by the code or prescribed by the Executive. This decree, which in terms suspended “the extraordinary faculties granted to the commanders and military authorities of the Republic on account of the exceptional state in which the country has been placed,” excepted from its operation one military commander, and only one, “the citizen general commander general of the column of the Atlantic,” who was General Julian Rengifo, and not General Santo Domingo Vila. The bearing of this supreme executive order on the question is important, as showing that from the 13th of February last the exceptional state of the country, due to civil disturbances, was declared at an end, and that the theretofore extraordinary powers exercised by the civil and military governor of the national department of Panama were replaced, as to military authority, by the prescriptions of law under “the respective code,” to which, of course, his civil authority was always subject.

On the 26th of March, therefore, when the occurrence now complained of took place, the publication of the Star and Herald was within the purview of municipal law, as well as under the special protection guaranteed by the treaty of 1846, and any infraction of law charged against the publishers was cognizable only by “the respective code.”

It is not pretended that the publishers infringed any law or regulation.

The complaint against them, as disclosed in the published correspondence, is merely this: That, on the 25th of March, General Santo Domingo Vila addressed a personal note to the editor of the Spanish section of the Star and Herald, suggesting that if he (the editor) thought fit and deemed it expedient (the Spanish words are “si lo tiene á bien y lo considera conducente”) he might publish in the Star and Herald certain inclosed copies of telegrams, and that the editor so addressed, in the exercise of the discretion so explicitly left to him, did not publish the telegrams in question.

Had this been alleged as a reason for suspension, even in the midst of civil war, and at a time when the laws are silent under the sway of arms, its sufficiency could not be acquiesced in. In a time of proclaimed peace, when the restoration of the rule of law had been announced, the frivolousness of the allegation becomes even more conspicuous.

Nevertheless, apparently acting in sheer caprice, and although expressly [Page 174] inhibited by supreme executive order from exercising any “extraordinary faculties” outside of the rule of law, General Santo Domingo Vila, on the 26th of March, announced the summary suspension of the journal, and in his order recites, as the only specific charge against the publishers—

That recently this newspaper has refused to publish documents of importance connected with the policy referred to—

I. e., the policy of reform in the administration of the affairs of the department—

without even having the courtesy to answer the polite private note [esquala] which accompanied them.

It is unnecessary to enforce the point that the act complained of was in no sense an infraction of law. That is abundantly proved by the letter of General Santo Domingo Vila to the subeditor of the journal, and by the admission, in the order of suspension, that the general’s communication was a private and personal note.

Itmay also be unnecessary to advert to the character of the publication requested by General Santo Damingo Vila, further than to say that the telegram, to which he thus sought to give unofficial publicity as a current item of news, was, in plain terms, a charge of smuggling, preferred against a brother officer, General Montoya. Had that telegram been officially communicated to the publishers of the journal by the civil and military governor of the national department of Panama, it would unquestionably have found a place in the official section of the journal. But having been transmitted unofficially by General Santo Domingo Vila to the subeditor, the right of the latter to obey the dictates of discretion and common prudence with respect to the publication of a news item, which might have been held libelous in a court of justice, is evident, even without the very explicit reserve of discretion assured to him by the general’s private note.

This incident is only indicated as tending to throw light on the motives of General Santo Domingo Vila in arbitrarily suspending the paper.

I am aware that in the said order of suspension it is recited—

That recently orders have been received from the executive national power at Bogota to suspend the publication and circulation of the said paper.

Of this there is no evidence beyond the recital quoted, and no intimation of any lawful charge on which to found such executive order of suspension in time of proclaimed peace and against the provisions of the constitution of Colombia. It is wholly inconsistent with the friendliness continuously shown by the journal to the titular Government of the Republic, and the repeated assurances of good-will and favor of the Government to the paper. And, even were the fact established, it would merely transfer to the executive national power of Colombia the responsibility of wanton injury to the rights and property of American citizens.

The Government of the United States has shown every consideration in this matter towards the civil and military governor of the national department of Panama. It has afforded him, through the temperate protest which, under its direction, was addressed to him by the United States consul-general at Panapaa, every opportunity to reverse his illegal action and repair the wrong occasioned thereby. General Santo Domingo Vila, I may be permitted to say, has not fitly responded. His answer is equivalent to a denial of the consul-general’s right to intervene, and the relegation of the discussion to the national Government at Bogota.

The relations of the United States toward Colombia are so intimate and friendly, and of such importance, that I would gladly have avoided [Page 175] a discussion of the matter between the two Governments. But no other course is open. Weeks have passed in the fruitless effort to obtain the simple justice which was naturally to be expected from one who, as the former honored representative of the Colombian Republic near this Government, was presumed to be fully aware of its amity toward Colombia. It is not known that any good results have followed your kindly intervention in drawing the attention of the Colombian Government to the consul-general’s protest. The time fixed for the duration of the suspension of the Star and Herald is drawing to a close, and I am reluctantly constrained to believe it possible that it will be allowed to pass without a formal renunciation of the wrongful act.

Further attempts by the Government of the United States to consider the question with the civil and military government of the national department of Panama would be inconsistent with self-respect, and also disrespectful toward a friendly Government, with whom alone this Government should deal.

It may be that before the receipt of this instruction by you, the Government of the Republic will have seen its way to dispose of this matter in accordance with international comity.

Should this not be the case, you will ask of the Colombian Government either the frank disavowal of the act of its agent, and the stern rebuke and punishment of General Santo Domingo Vila for this reprehensible excess of authority, or the assumption of responsibility for his acts.

It may be premature to consider the question remaining should the Government of the Republic disavow the acts of its agent, as it is reasonable to believe it will. Upon its answer must depend any further consideration of the scope of his agency, in its private or public aspects. It will, however, be well for you to bear in mind that the doctrine of personal responsibility of an agent for acts not within his delegated power and authority as an agent, may be qualified by the fact of the agency being a public one, such as that of a military commander to whom the employment of force is necessarily intrusted, to the end that he may execute his orders, and that the abuse or misuse of force by an agent expressly clothed, by reason of his office, with the ability to employ it, may not exempt the Government that employs him from responsibility for the results of intrusting him with so potent an instrumentality.

You will communicate this dispatch to the Colombian secretary for foreign affairs by reading it to him, and should he so desire, leaving with him a copy, unless the matter shall have been satisfactorily disposed of before this reaches you.

It is not deemed necessary to burden this communication with copies of papers and documents already in the possession of, or readily accessible to, the Columbian Government and pertinent to the case.

I am, &c.,