Mr. Egan to Mr.
Blaine.
Legation of
the United States,
Santiago, October 26, 1891.
(Received December 3.)
No. 213.]
Sir: I have the honor to refer to my dispatch No.
209, and to say that under date of 20th instant I received from the minister
of foreign relations a reply to my note of 16th instant, a translation of
which is inclosed (inclosure No. 1).
In this note the minister maintains the opinion expressed by him in previous
notes regarding the action of the local authorities toward the legation. He
declines to argue the question of safe-conducts to enable the refugees to go
out of the country, and refuses to recognize the precedents cited, although
one of them, the resolution adopted in the Congress of Montevideo, in
December, 1888, and approved in the name of the Republic of Chile, which has
almost the force of an international compact, clearly and distinctly gives
the right to the chief of a legation which has given asylum to require from
the Government safe-conduct to enable the refugee to go out of the national
territory. He also seeks to maintain that the greater number of the refugees
in the legation are, under the decree of 14th September last, submitted to
the regular tribunals of justice.
I forwarded, on 20th instant, a synopsis of this note by telegraph.
On 22d instant I replied, as per copy inclosed (No. 2), pointing out the
avoidance on the part of the minister to take into consideration the
international principles and policy that had been always followed by Chile
in regard to this right of asylum, and the natural and indispensable
consequences derived therefrom, and suspending discussion upon this point
until my Government, acquainted with all the facts, shall resolve what it
considers proper under the circumstances.
I at the same time called the attention of the minister to the fact that,
having on three consecutive occasions distinctly admitted that the asylum
had been legitimately granted, he could not, without the will and permission
of the Government of the United States, consider the refugees in this
legation as submitted to the judicial tribunals.
I also pointed out that the decree of 14th September, which he put forward in
a previous note as a reason why the Junta de Gobierno could not make this
manifestation of friendship toward the Government of the United States, was
nullified by the decree of the Junta de Gobierno of 19th instant, a
translation of which I inclose (No. 3), which limits the power of the courts
and submits thereto only such persons as the Junta de Gobierno may specially
name.
I also inclose, for your information, translation of a decision of the
supreme court, given on 17th instant (inclosure No. 4), to which the decree
of 19th instant was the executive answer.
I concluded by pointing out that as he, the minister, had admitted that
safe-conducts had been, and may be, given as a matter of courtesy and at the
will of the Government, there could not be cause for surprise if the
Government of the United States should interpret as an act of but slight
courtesy and consideration this refusal now to grant safe-conducts in
accordance with the respect due to the invariable practice and international
policy of Chile.
The substance of this note I reported by telegraph.
To this note I received to-day, under date of 23d instant, a reply from the
minister of foreign relations expressing his belief in the inutility of
exchanging further notes “pending the result of governmental
[Page 199]
decisions, judicial proceedings, and
legislative measures,” and declaring that he considered the discussion
closed.
Upon this question, therefore, as well as upon that of the action of the
Santiago authorities toward the legation, I shall await your
instructions.
I inclose a translation of this note (inclosure No. 5).
The blunt refusal on the part of minister of foreign relations to recognize
such well-established precedents must place this Government in an awkward
position, and it should not surprise me if, when the National Congress meets
here on 6th November proximo, there would be an effort made to get out of
the difficulty by passing a law granting a general amnesty to all those who
took part in the late struggle.
I have, etc.,
[Inclosure 1 in No.
213.—Translation.]
Señor Matta to Mr.
Egan.
Ministry of Foreign Affairs,
Santiago, October 20,
1891.
Sir: In the afternoon of Saturday, the 17th
instant, was received in this department the note hearing date of
yesterday, the 16th, which the undersigned hastens to answer, in
resuming, responding to, one by one, the four points referred to
therein.
The honorable minister plenipotentiary insists in the opinion which he
had formed previously respecting the orders given by the intendente and
carried into execution by the police of Santiago, which was to arrest
persons entering into and coming out of the North American legation who
were or may have been suspected; and his excellency also stated that he
had left the solution of these proceedings to the Government in
Washington; and on which the undersigned for his part has already
expressed himself, after receiving instructions from the Junta, and on
comparing the reports and orders of the intendente, including his
opinion on the subject under discussion. The undersigned still maintains
his opinions. Believing, nevertheless, that he has not the right to
endeavor to dissuade the minister plenipotentiary of North America from
the line of action which he has adopted, he considers that this question
may now be regarded as exhausted.
The other point which his excellency the minister advances refers to the
reasons and almost rights with which the refugees and he in their aid
and protection can require for them a safe-conduct to go out of the
country.
The honorable minister plenipotentiary adduces arguments which the
undersigned does not think necessary to confute or prolong, because they
are based on foundations which are not accepted, nor acceptable in this
department, which, by obligations and study, gives more importance than
the honorable minister plenipotentiary attributes to the circular of the
14th of September, in which are submitted a list of persons among whom
are included the greater number of the refugees now found in the North
American legation.
The third point contained in the note of the 16th of October, referring
to analogous arguments and precedents established in this department to
prove that it is a legitimate right of the legation which gives the
asylum to require a safe-conduct for the refugees, limiting therefore
the penal jurisdiction of the country in which is its place of residence
to the penalty of banishment, which the undersigned does not recognize
nor could anyone recognize in the post which he now actually
occupies.
The safe-conducts have been and may be given, but in all cases, not in
virtue of sufficient rights on the part of the legation giving the
asylum to demand or receive them, but of the courtesy, convenience, and
will of the Government, and of the country in which resides the
legation, and in certain cases and under certain restrictions by which
they are dictated, not by the prescription of certain laws and statutes,
but by those of honor, discretion, and delicacy. Safe-conducts, some
recently and others more remote, which emanated from the free will of
the person governing, without offending the law and thereby thinking to
serve the interests of the country, may have been given, and if such
case be examined into, it will be seen that they are of a very different
order, and have other significations than the safe-con-duets now
solicited.
The reasons of justice and convenience which previously dictated the
refusal to
[Page 200]
grant the
safe-conducts still existing, the undersigned believes it his duty not
to modify his resolution, and would regret much, and even should be much
more surprised, that the powerful Government of the great North American
people would interpret as a serious grievance which the Chilean
Government desires to inflict on its legation the legitimate use which
it makes of its privileges to decide a question that is united not only
with the prestige and the antecedents of the Supreme Junta, in whose
name I speak, but also with the interests, the decorum, and the
jurisdiction of the country.
Notwithstanding these divergencies of opinion, the undersigned avails
himself of this occasion to reiterate to his excellency the minister
plenipotentiary his distinguished consideration.
[Inclosure 2 in No. 213.]
Mr. Egan to Señor
Matta.
Legation of the United States,
Santiago, October 22,
1891.
Sir: I have had the honor to receive the note
which your excellency has been good enough to address to me under date
of 20th instant, No. 560.
Your excellency has been pleased to say that your excellency “gives more
importance than the undersigned has attached to the circular of 14th
September, which submits to the tribunals of justice a list of persons,
among whom are included the greater number of the refugees in the
legation of North America,” and that, the motives of justice and
convenience which dictated the refusal to concede the safe-conducts
solicited by this legation still continuing, the Government, in whose
name your excellency speaks, found itself unable to modify the
resolution adopted.
In another part of the communication your excellency says:
“Safe-conducts have been and may be given, but in all cases not in virtue
of sufficient right on the part of the legation giving the asylum to
demand or receive them, but of courtesy, of convenience, and of the will
of the Government and of the country within which resides the
legation.”
Your excellency avoids entirely, in the note to which I reply, to take
into consideration the irrefutable reasons advanced in my note of 16th
instant, in which are proven by evidence what have been the principles
and what has been always the international policy which, in a manner
permanent and invariable, have been uniformly followed by Chile with
relation to the right of asylum, and the natural and indispensable
consequences derived from such right.
This refusal on the part of your excellency to recognize principles which
form the international history of nations, which serve to regulate their
relations with each other, and which become and constitute an obligatory
right and duty for the country which has established and practiced them,
I may be excused from further considering in my reply to this note of
your excellency. I therefore leave in suspense all discussion upon this
point until my Government, acquainted with all of the facts, may resolve
what it considers proper under the circumstances.
At the same time I can not refrain from calling the attention of your
excellency to assertions which I am unable to understand as
satisfactory, and which without doubt must make a painful impression
upon my Government.
In the note of your excellency of 26th September, No. 304, your
excellency recognizes, as your excellency was obliged to do, the perfect
right with which the undersigned had proceeded in giving asylum to
certain political refugees. Your excellency states that:
“The asylum emanated from the principle of extraterritoriality inherent
to the person, the house, and the vehicles of the diplomatic agent.”
In another part of the same note your excellency corroborates the same
recognition of this right, adding:
“Notwithstanding that this department has been informed of the measures
that have been taken in order to prevent the refugees in said legation
from abusing the protection which had been
legitimately afforded to them”
And again in the note of your excellency of 29th September, referring to
arrests which had taken place of various persons on going out of the
legation, your excellency says that same resulted: “Not from the action
or official measures of the authorities, local or national, but from the concession, which the undersigned
believes lawful, to certain offenders called political.”
It is then recognized by your excellency on three consecutive occasions
that in
[Page 201]
granting asylum to the
political refugees this legation has acted with perfect correctness in
virtue of the principle of extraterritoriality accepted by your
excellency, and this being so it is entirely inexplicable to the
undersigned that your excellency could consider as submitted to the
tribunals by the circular of 14th September the refugees in this
legation, who are beyond the reach of your excellency and of the
judicial power to which your excellency refers.
The house of this legation is considered as an integral part of the
United States, and without the will and permission of my Government your
excellency could not consider as subject to the judicial action of Chile
those persons who, from every point of view, are beyond its
jurisdiction.
It is not possible to give, under those circumstances, to the circular of
14th September the significance which is attributed to it by your
excellency; and this circular, to which your excellency attaches capital
importance, loses besides its value and authority in view of the decree
issued 19th instant by the Supreme Junta de Gobierno, of which your
excellency is the worthy secretary of foreign relations.
In this decree is established that—
“Until there shall be reëstablished the proper administration of the
constitutional powers the persons arrested for offenses committed during
the dictatorship, or for complicity in them, shall not be put at the
disposition of the regular courts, with the exception of those who shall
be specially named.”
In the note of your excellency of the 9th of the present month, No. 463,
your excellency was good enough to say to me, as a reason or excuse for
not conceding the safe-conducts, as follows:
“Since was issued the decree of 14th September last, by which were
submitted to the judicial power the persons therein mentioned, the
Supreme Junta and its secretaries have been deprived of the power to
grant that which has been asked and which Mr. Egan believes, as in other
circumstances it would be, a friendly manifestation toward the North
American legation.”
In view of the facts, it is not possible for me to explain to my
Government in a satisfactory manner the impossibility in which your
excellency represents yourself to be to concede the safe-conducts
solicited; since by the supreme decree of 14th September your excellency
considers yourself unable to grant them by reason of the Supreme Junta
having delegated its powers to the action of the tribunals; and by the
supreme decree of the 19th of present month the Supreme Junta, not
considering reëstablished the constitutional regimen, decreed that there
should be placed at the disposition of the regular tribunals only such
persons as they might determine.
Your excellency has recognized that safe-conducts have
been and may be given as acts of courtesy and at the
spontaneous will of the Government of your excellency.
There can not, therefore, be cause for surprise on the part of your
excellency if the Government of the United States should interpret as an
act of but slight courtesy and consideration that the Chilean
Government, having the power in its hands to make this friendly
manifestation, should not wish to do so in accordance with the respect
due to the invariable practice and international policy of Chile.
Again renewing to your excellency the assurances officially and
personally of my highest consideration and esteem, I have the honor,
etc.,
[Inclosure 3 in No.
213.—Translation.]
Decree of Junta de Gobierno of October 19,
1891.
Santiago, October 19,
1891.
Considering that for the more rapid reestablishment of constitutional and
legal order in the Republic it is necessary to impose restrictions upon
individual guaranties with respect to the persons compromised in
transgressions during the dictatorship;
Considering that the Junta del Gobierno finds it its duty to adopt
preventive measures necessary to make effective the responsibility of
those persons, until there shall be reëstablished the proper
administration of the constitutional power;
The Junta del Gobierno decrees: That until shall be reëstablished the
functions of the constitutional power, the individuals imprisoned for
criminal acts during the dictatorship, or implicated in them, will not
be placed at the disposition of the ordinary justice excepting those who
shall be specially named.
The decree of the 4th of September, of the present year, in which was
ordered the reestablishment of the ordinary tribunals, shall be
understood and interpreted with the foregoing restrictions.
Let it be recorded and published.
(Signed:)
Jorge Montt, Waldo Silva, Barros Luco, M. J.
Irarrazaval, M. A. Matta, Isidoro Errazuriz, J. Walker, M. A.
Holley, Agustin Edwards.
[Inclosure 4 in No.
213.—Translation.]
Decree of supreme court of October 17,
1891.
Santiago, October 17,
1891.
Be it known: That Francisco Vargas Lazo, in the name of Don Malaquias
Concha, has appeared before this tribunal making it known that (the)
person in whose name he is taking action has been confined in prison
since the 2d of the current month, and for this reason presents this
demand, making use of his rights cited in article 134 of the
constitution
Having brought the person detained before this tribunal and there
reproducing the heretofore-mentioned complaint, accompanied with a copy
of the order of imprisonment, it appears that he has been detained on
the grounds of being a political offender.
The report of the Señor Intendente of the province, which has been
received today, mentions the acts for which it is supposed he is
responsible, and on the strength of which determined his arrest.
Considering:
- First. That the regular functions of the tribunals of justice
being now established, that they should now proceed in
accordance with the constitution and laws; and
- Second. That in judging the acts of which, according to the
report of the Señor Intendente, for which Don Malaquias Concha
is supposed to be responsible, corresponds solely to the
ordinary courts of justice.
Being obvious, that disposed, in article 134 of the constitution it is
declared that the herein-mentioned Don Malaquias Concha should be
immediately placed at the disposition of the competent judge.
Signed:
Barceló, Riso, Vial, Recabarren, Flores, Gallardo.
Decree by the Excma. Corte Suprema.
[Inclosure 5 in No.
213.—Translation.]
Señor Matta to Mr.
Egan.
Ministry of Foreign Relations,
Santiago, October 23,
1891.
Sir: There has been received yesterday evening
in this department the note of your excellency dated 22d, and the
undersigned proceeds to return the necessary reply.
As the principal points in question have been left by the honorable
minister plenipotentiary to the consideration and judgment of his
Government, from which he awaits the proper instructions, and as the
facts and the time, on the one hand, and the governmental decisions, the
judicial proceedings, and legislative measures on the other, must
suppress the matter in debate, determining the situation of the persons
for whom he requests safe-conducts, which the undersigned persists in
denying, it is useless to continue an exchange of notes, which would
only lead to a sterile discussion.
For this reason the undersigned considers the discussion closed, without
in the least diminishing the consideration, official and personal,
toward the honorable minister plenipotentiary, and has the honor,
etc.,
