Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890
Mr. Abbott to Mr. Blaine.
Bogota, August 18, 1890. (Received September 13.)
Sir: I inclose herewith a copy and translation of so much of the report of the minister of foreign affairs as relates to the claim of the Panama Star and Herald against this Government.
I am, etc.,
Extract from the report of the minister of foreign affairs.
the star and herald claim.
In 1886 the civil and military governor of Panama issued an executive decree suspending for 2 months the publication of the periodical Star and Herald, of which several citizens of the United States of America in said city are proprietors. The decree of the civil and military governor took into consideration the course which said newspaper had observed during days of public disorder, which course might be called hostile with respect to the National Government of the then State of Panama. Upon characterizing certain publications made in the journal referred to, it was natural to bear in mind the grave circumstance that it had mingled freely in politics, even to the extent of instigating upon the Isthmus the dismembering of the Republic.
The conduct of the authority in Panama at a time when the rights of the press were necessarily restricted would have been in no manner censurable if there had not intervened such circumstances as converted the decree into an irregular measure. The same civil and military governor had guarantied the absolute liberty of the press, a measure which placed the periodical, as well as the retraining publications, upon a normal footing. Therefore, the case resolved itself into an exceptional position, voluntarily created by the authority; and, on this account, the Supreme Government was obliged to order that the suspension should not take effect. The difficulties at the time, combined with the delay of communications, prevented the immediate fulfillment of the orders of the Government; and even the harsh necessity of accepting the resignation, which the civil and military governor made of his position in case said orders were irrevocable, was realized.
The proceedings of the Government with respect to the Star and Herald and civil and military governor of Panama should be considered with relation to the constitution and laws of Colombia and of the laws of nations. Under the first aspect, the right which every State has, even in time of peace, to regulate the liberty of the press, suspending or punishing, among other acts, those which may assail the public tranquillity, the political order, and the national sovereignty, is undoubted. This faculty, based upon the attributes and ends of the Government, is strengthened in time of war and during the epochs of transition from war to the normal order; but it is natural that it should be governed by the principles of common equity, which are obligatory under all circumstances.
With respect to the laws of nations, it must be borne in mind that the nationality of the owners of the Star and Herald did not create for them, either by virtue of general principles or by virtue of treaties, a privileged condition better than that of the Colombians. The laws and practices of the Republic in the matter of the civil rights of foreigners are surely as liberal as the state most advanced in this respect; but, although they may be such, for the honor of our country, they can not oppose [Page 261] the dictates of natural law which forbid the establishment of a preference in favor of foreigners as against one’s own citizens. Even the most civilized countries, which in this respect have succeeded in almost equalizing the condition of the foreigner and of the citizen, deprive the former of the right to direct, edit, and publish political periodicals, for the reason that this profession or industry belongs inherently to the sort of rights which the stranger can not enjoy.
It may be deduced from the foregoing that the Government of the Republic would not have remitted the penalty of the Star and Herald, nor would that of the United States have had the right to claim this measure, had the action of the civil and military governor been perfectly equitable. But, as the proceeding against the Star and Herald was exceptional and contrary to existing dispositions dictated by the same authority, the Government believed itself obliged to rectify the irregularity of the measures adopted with respect to the periodical. For this purpose it was thought proper to use first persuasive means, which, having been disregarded, decisive orders were pursued.
I have explained and illustrated the conduct of the Government of the Republic in the suspension of the Star and Herald, in order to fix the data upon which must be resolved the foregoing question raised by the Government of the United States of America respecting the responsibility of Colombia in the case.
The responsibility of governments for acts which their agents may have done in the exercise of their functions can not be admitted as a universal rule, unless submitted to the conditions which the practice of nations and common equity have established. Such conditions are the following:
- That the Government may have known opportunely the unlawful act which its functionary attempted to execute, and may not have desired to prevent it.
- That, having the necessary time to obviate the effects of the act of its agent or subordinate, it may not have immediately taken the requisite steps to frustrate those effects; and
- That after having received information of the act performed it may not have disapproved the course of the functionary, nor dictated measures for the preventing of similar abuses.
Applying to the case of the Star and Herald these most just conditions, admitted by eminent jurists and sanctioned by the practice of states, there clearly results the reason urged by the Republic for disclaiming all official responsibility in the matter. Because, in the first place, bearing in mind the extraordinarily difficult circumstances of such an epoch, which might well be said to savor of war, inasmuch as the public order was still perturbed, it was impossible for the Government to know in the beginning the irregularity of the suspension of the periodical. The conduct of the civil and military governor appeared proper enough at first, because of the abuse of the periodical, and it was much later that the Government was enabled to appreciate the circumstances which made such suspension censurable. And, finally, the Government not only disapproved the conduct of its subaltern, but in a certain way punished it, for the acceptance of the resignation which he presented irrevocably if the orders of the Government were of such nature, was equivalent to this.
Consequently, under the supposition that the Star and Herald may have suffered damages due to its suspension, the demand for indemnification to which this fact may give rise should not be made against the Government of the Republic, which, as has already been demonstrated, is not responsible, because innocent. I have made doubtful the hypothesis of damages, because it is a notorious fact that the parties interested in the publication of the Star and Herald knew how to avoid the consequences of the measure dictated against them by substituting another for the title of their periodical and continuing, moreover, under ordinary conditions, the publication and distribution of said journal. Thus, when the interested parties formulate, as it appears, their accounts in large figures against our Government, these calculations are based upon a supposition wholly inexact.
The minister of the Republic in Washington, charged with the measures relative to the claim which I have just treated, has defended the nonresponsibility in the sense just expressed.