Mr. Gresham to Mr. Baker.
Washington, November 15, 1894.
Sir: The Department has received yours of October 26 last, with inclosures, relating to the Nicaraguan Government’s forcible seizure and occupation of the valuable property near Bluefields, known as the “bluffs,” owned in part by United States citizens. In reply to the American owners’ protest against this action, winch you submitted to that Government, the minister of foreign affairs has written you that under the constitution of Nicaragua and international law, “no foreigner can solicit the intervention of his Government in defense of his rights or pretensions until after he has exhausted all remedies which the laws of the country in which he lives allow him, and his complaints have been disregarded with notorious injustice.”
What remedies the laws of the country give for such cases are not-stated. You appear to think that the courts of Nicaragua should be appealed to for redress before this Government can interfere diplomatically. The note from Mr. Matus to you seems to intimate that the injured parties are required to apply directly to the Nicaraguan Government for relief, which, if granted, will be of grace rather than of right.
In reply to Mr. Matus’s suggestion that the parties should seek relief by direct appeal to his Government, it may be remarked that international law requires complaints on behalf of foreigners to come through their own Government. Unless it assumes the responsibility of presenting them, they need not be considered.
Your suggestion that recourse to the courts should be exhausted before diplomatic intervention is resorted to is, as a general proposition, sound, assuming of course that the courts have jurisdiction. But the treaty between the two countries entitles American citizens whose property has been taken by Nicaragua for public purposes, without full and just compensation paid in advance, to invoke in the first instance the diplomatic intervention of the United States in their behalf.
The very act of the Government of Nicaragua in taking the property without full and just compensation paid in advance was a violation of the treaty (sec. 3, Art. IX, treaty of 1867). No action of its courts (assuming them to have jurisdiction of such suits) can change the [Page 354] character of the act, or make it any the less a plain violation of the treaty.
Should the courts decide in favor of the aggrieved parties and award them compensation, and that compensation he actually paid, the treaty would still remain violated, because the compensation was not paid in advance of the taking of the property. To claim that redress must be sought through the courts is to claim that payment of compensation may be postponed till the property has actually been taken, in face of the treaty which says that payment must be made in advance. One party to a treaty can not thus practically change its terms and evade its requirements.
The American citizens suffering by this arbitrary appropriation of their property are entitled to the aid of their Government in securing from Nicaragua adequate indemnity for any losses they may have sustained.
I am, etc.