Mr. Uhl to Mr. McKinney.

No. 89.]

Sir: I inclose for your information copy of Department’s No. 1, of the 11th instant, to the Colombian chargé d’affaires ad interim at this capital, in regard to the claims of the Panama Star and Herald against the Government of Colombia.

I am, etc.,

Edwin F. Uhl,
Acting Secretary.

Mr. Gresham to Mr. Rengifo.

No. 1.]

Sir: I have the honor to inform you that my attention has been recently called by the attorney for the Star and Herald Company to the claim of that company against the Colombian Government for the suppression of its paper at Panama in the year 1886.

From an examination of the documents and correspondence in this Department relating to the claim, it appears that the Star and Herald was a newspaper established at Panama, owned and published by an American company. By special decree of the President of Colombia it was excepted from the operation of the general decree which suspended the publication of all newspapers in the Republic from September, 1885, to March 13, 1886. The granting of this special decree was coupled with the expression of a hope, which may be construed as an injunction, that strict circumspection as to political subjects would be observed by the publishers.

On March 6, 1886 (one week before general liberty of the press was reinaugurated), the President of Colombia, by a telegram from Bogota, ordered Gen. Santo Domingo Villa, the civil and military chief of the Department of Panama, to warn the Star and Herald to desist from censure, and if it persisted, to suppress it. What “censure” the paper had been guilty of does not appear.

On March 26, 1886 (two weeks after the general reestablishment of the liberty of the press), Gen. Santo Domingo Villa issued an order suspending the publication of the paper for sixty days from that date. He assigned as reasons (1) unfriendliness evinced by the paper toward the Government on more than one occasion during the last civil war; (2) the recent order from Bogota directing its suspension; (3) its failure to give an account of recent important administrative acts of the Government; and (4) its refusal to publish certain documents sent the editor, and the latter’s failure to answer a private note transmitted to him with the documents.

The only specific charge against the paper was that last recited; that is, its failure to publish certain documents transmitted to it by General Vila, with a private note to the editor. The documents referred to were telegrams preferring a charge of smuggling against General Montoya, a brother officer of General Vila; and the note of the latter, transmitting them to the editor of the Star and Herald, merely suggested that he might publish them if he saw fit to do so.

On April 2, 1886, the Government at Bogota, having heard of the suspension, telegraphed to General Vila, remonstrating against the severity of his decree, and [Page 219] requesting him out of regard for the Government of the United States to reduce the period of suspension from sixty to twenty days. On April 5 General Vila replied that he would do no act to disturb the friendly relations between the two Governments, but he nevertheless continued the suspension in force.

The Colombian Government seems to have given the matter no further consideration until May 17, 1886, when our minister at Bogota (Mr. Jacobs), having made earnest remonstrances on the subject, a telegram was sent General Vila censuring him and ordering him peremptorily to reestablish the Star and Herald. General Vila thereupon requested the appointment of a successor to himself, but the appointment was not made. On May 24, 1886, General Vila was again ordered to reinstate the paper or surrender his office; and the next day he replied, remarking that the full term of suspension fixed by him had expired, and tendering his resignation. The resignation was accepted and a new appointment made.

When this Government was first informed of the suspension, and before all the the facts as they have been above recited were known, it was unwilling to believe that the act was that of the Colombian Government itself. The American minister at Bogota (Mr. Jacobs) was therefore instructed to call the attention of that Government to what was supposed to be the unauthorized act of General Vila. He was directed “to ask of the Colombian Government either the frank disavowal of the act of its agent and the stern rebuke and punishment of Gen. Santo Domingo Vila for this reprehensible excess of authority, or the assumption of responsibility for his acts.”

In the course of this instruction it was observed that if the suspension were decreed by authority of the Government at Bogota, “this” would “merely transfer to the executive national power at Colombia the responsibility of wanton injury to the rights and property of American citizens;” and it was finally intimated that the Colombian Government might be liable to the persons injured by General Vila’s acts, even though it did not authorize, but disavowed them. A copy of this instruction from the Department to Mr. Jacob was delivered to the Colombian minister for foreign affairs in June, 1886.

On June 10, 1887, the Department transmitted to Mr. Maury, then the American minister at Bogota, for presentation to the Colombian Government, the memorial of the Star and Herald Company, claiming from that Government an indemnity of $91,000. The amount claimed, this Department then said, was reasonable and just, and even a much larger amount might have been regarded as not unreasonable, considering the wanton interference with rights under the protection of treaty, and the unwarrantable resort to violence instead of the guarranteed channels of the law.

The Colombian Government suggested that the claim be submitted to a special commission, the appointment of which had been proposed, for the arbitration of American claims growing out of the last civil war in Colombia; and subsequently that Government expressed to Mr. Maury the opinion that, unless the claimants would accept the arbitration desired by it, they should proceed for redress against General Vila personally in the Colombian courts.

This Government thought, and so informed that of Colombia, that this claim, resting on principles somewhat different from the others, should be adjusted without reference to the method to be adopted for their settlement. Colombia then proposed that the negotiations in the case should be conducted at Washington, and during the month of December, 1888, some correspondence passed between this Department and Mr. Hurtado looking to an interview on the subject of claims. No record or memorandum of any interview regarding this claim is found in the Department.

The next correspondence, and the last on the subject, is that between the Department and Mr. Hurtado in 1890. Mr. Blaine, in his notes of January 31 and May 7 of that year, called Mr. Hurtado’s attention to this case, observing that the claimants had received no redress; that “such redress, it is thought, should now be tendered;” that this Government earnestly “desired a settlement of the case, and hoped it might soon receive a proposition looking to its adjustment.”

Mr. Hurtado, in reply, stated that from interviews with Mr. Blaine’s predecessor he had been led to suppose the United States would not press this claim diplomatically unless the claimants should first proceed against General Vila personally in the Colombian courts and those courts exonerate him from liability. He announced his Government’s position to be that it is under no liability to the claimants, because, as it is said, that Government distinctly disavowed General Vila’s action. The only recourse of the claimants, Mr. Hurtado suggests, is against General Vila personally in the Colombian courts, and in support of this position reference is made to article 35, paragraph 4, of the treaty of 1846. That paragraph is as follows:

“If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizens shall be held personally responsible for the same, and [Page 220] the harmony and good correspondence between the nations shall no the interrupted thereby, each party engaging in no way to protect the offender or sanction such violation.”

The long period which has elapsed since the receipt of Mr. Hurtado’s last note seemed to call for the foregoing review of this case. Replying now to that note, I beg to say I can not admit that Colombia has exonerated herself from liability to the claimants by disavowing the act of General Vila, or that the claimants can be required to proceed ineffectually against him in the Colombian courts before asking indemnity from his Government. I beg to call your attention to the fact that although the Government at Bogota knew of the suspension of the Star and Herald a very few days after it took effect it did not denounce the act as being in excess of General Vila’s authority. It merely requested him to reduce the period of suspension from sixty to twenty days. It did not concern itself further to see that this request was complied with, nor did it give General Vila any peremptory order to reinstate the paper until May 17, when the suspension had already been fifty-one days in force. Even then it took no steps to enforce its order by dismissing General Vila, but permitted him to remain in command and continue the suspension in force until it expired by the terms of his own decree of March 26 previous. Then, and not till then, his resignation was accepted.

That the suspension was the act of the Colombian Government, and not the mere unauthorized act of General Vila, appears likewise from the President’s telegraphic order to him of March 6, 1886, directing him to suppress the paper if it did not cease from censure, thus manifestly giving him discretion in the premises. The suspension was also admitted to have been the act of the Government, and was defended as being justified by the political state of the country in a note from Mr. Restrepo to Mr. Jacob of April 30, 1886. It was again acknowledged to have been the act of the Government, and sought to be justified, in a note from Mr. Restrepo to Mr. Jacob of May 17, 1886; and in this note Mr. Restrepo argued that the United States, if placed in the same position as that of Colombia toward the Star and Herald, would have taken similar measures.

In the face of these facts and admissions it is impossible for the Colombian Government to deny that the suspension of the claimant’s paper was authorized by it or to assert that it was the mere personal act of one of its citizens within the meaning of the treaty provision cited by Mr. Hurtado. Nor was any specific charge ever made against the paper which, even if established in proper judicial proceedings, would have justified its suspension. But there was no judicial proceeding or inquiry. The suspension was an entirely arbitrary act of executive power, and that no political emergency justified it is proved by the fact that the general decree restricting the liberty of the press had been rescinded two weeks before the date of General Vila’s order of suspension.

This Government can not believe that Colombia, on a reconsideration of the whole matter, will deny its liability to make the claimants a fair indemnity. The amount of the indemnity is another question. Although $91,000 has heretofore been asked, with the approval of this Department, the claimants announce their readiness to accept a compromise offer approximating what is right.

This Government feels itself entitled to expect such an offer from your Government at an early day and to insist that this matter, already so long delayed, be brought to a satisfactory conclusion.

Accept, etc.,

W. Q. Gresham.