Mr. McKinney to Mr. Olney.

No. 182.]

Sir: I have the honor to forward herewith a translation of the report of the minister of foreign affairs of the Republic of Colombia so far as it relates to the Star and Herald claim. * * *

If his statements regarding the practice of nations and international law were adopted, nations would have few claims against other nations, as a simple disavowal of acts committed by the authorized agents would relieve them of all responsibility.

He also evidently gives a forced interpretation to article 35, section 4, of the treaty of 1846.

The minister has promised soon to communicate with this legation regarding the Star and Herald claim. * * *

I am, etc.,

Luther F. McKinney.

Translation of the report of the minister of foreign affairs regarding the claim of the Star and Herald.

More than fifty years ago a citizen of the United States founded, in Panama, the newspaper Star and Herald.

As time passed, the enterprise came to be the property of A. Boyd, who, having married a Colombian, left, when he died, Colombian children, who inherited the [Page 222] printing establishment and the newspaper. These children had always lived in Panama as natives of the country, with the same rights and obligations that other citizens of Colombia possessed.

Desiring, without doubt, to remove themselves from the obligations of our laws, they went to New York, and there, after taking the steps they believed to be necessary, they formed a corporation to represent the paper and at once converted it into American property, although the industry was carried on in Colombia in such a way that it was not possible for the business to be conducted elsewhere.

The proceedings of the Boyds was irregular, incorrect, and illegal, and consequently does not bind the Colombian Government. At that time, probably on account of not having a knowledge of the actions of the said Boyds, our authorities made no protest in the case.

However that may be, the paper continued its course with all the claims of a foreign enterprise, yet constantly discussing our political questions, taking part in our debates, taking interest in local questions, and even on one occasion advocating the separation of the Isthmus of Panama, and at all times influenced by our civil strifes.

In 1886 Gen. Santodomingo Vila, at that time civil and military chief at Panama, issued a decree by which he suspended the publication of the paper for the term of two months.

In accordance with the laws that ruled at that time in Colombia, and recognizing the civil war that was in progress, the decree of the civil and military chief would not have been irregular if he himself had not guaranteed some days before the absolute liberty of the press, which gave the case an exceptional character and produced a certain amount of injustice. When the National Government received information of what had occurred, it disapproved of said decree and ordered at the same time that the suspension of the paper should not be carried into effect.

Owing to the lack of speedy communication caused by the war the orders of the Government were not duly carried out, and as the military and civil chief manifested a certain disinclination to comply with them, because he believed he had a right to adopt such proceedings, the Government was therefore obliged to accept the resignation offered on this account.

According to the practice of nations and international law, no government is responsible for the acts which its agents may perform if their proceedings are not to be found in perfect conformity with the powers which the laws confer upon them or with the orders and instructions which the Government has communicated to them.

If they should proceed in accordance with the laws or with the orders and instructions of the Government, their acts are legal, and consequently bind the nation. But if, disobeying the laws or legal instructions, they should adopt some procedure or take some measure that is beyond their powers, their acts are illegal, arbitrary, and make them personally responsible for the consequences.

In order that the acts of its agents should make the Government responsible, it is necessary that the following conditions should exist:

  • First. That the Government should have known in time the illicit acts that its agents pretended to commit and had not desired to impede it.
  • Second. That having had the necessary time to impede the effects of the acts of its agents, it has not done what is necessary to frustrate these efforts.
  • Third. That after having received information of the act committed, it has not disapproved the act of the agent nor dictated measures to impede the repetition of like abuses.
  • Fourth. That the Government ratifies or adopts the said act.

This doctrine is expressly recognized in the treaty of the 12th of December, 1846, between this Republic and the United States. Article 35, section 4, reads as follows:

“If anyone 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 the harmony and good correspondence between the nations shall not be interrupted thereby, each party engaging in no way to protect the offender or sanction such violation.”

When the owners of the Star and Herald made their protest to the Government on account of the suspension of the paper, they presented as a conclusive reason that the decree of the civil and military chief was illegal, so that, without knowing it, they applied the case to the doctrine contained in the treaty of 1846. If the decree were not illegal, the protest as made was not admissible, and if it were legal, the case comes under point 4 of the treaty above.

In order that the case should not come under the above point 4 of the treaty, it would have been necessary that the Government should have ratified or approved the decree or that it should be found under some one of the points to which I have referred that are common to the legislation of all constitutional countries.

[Page 223]

The Government not only disapproved said decree, but accepted the resignation of the civil and military chief for not having complied with the order communicated to him that the suspension of the paper should not be carried into effect. This implies a punishment placed upon the agent, and so the demand for indemnification should be made not against the Government, but against the individual; whatever might be the authority with which he was invested, because he exceeded his authority, and for this they should appeal to the courts of Colombia.

It should also be noted that the proprietors of the Star and Herald appeared to comply with the order for the suspension of the paper, but it is also true that they eluded its effects, printing and circulating freely the paper under another name (The Telegram), which was a continuation of the Star and Herald. The same form, paper, type, advertisements, make-up, published in the same office, and sent to the same subscribers, show that the owners wished to make it understood that it was the same paper, and they adopted that title which was the same as the second edition of the New York Herald; consequently the enterprise suffered no loss or injury on account of the suspension of the paper.

So much was this so that, when the term of suspension of the Star and Herald expired, it appeared anew under its old name, and the Telegram disappeared without anyone knowing that its circulation had diminished. Nevertheless the reclamation appeared very soon. In May of 1886 his excellency the minister of the United States presented to our foreign office strong manifestations regarding the matter. In June, 1888, the memorial of the Star and Herald Company was presented, claiming from the Colombian Government an indemnity of $91,000.

The negotiations were removed to Washington, and in 1888 our minister, Mr. Hurtado, had a number of conferences with the Secretary of State, from which he drew the conclusion that the claim would not be sustained by the American Government, “at least while the subject remained in its present condition and aspect; that is, until the courts of Colombia declare that the act of Gen. Santodomingo Vila was within the limits of his legal authority.”

In January, 1889, the Secretary of State directed a note to Mr. Hurtado asking anew for some solution of the case. In May, 1890, he sent another communication in the same sense. Our minister replied on the 9th of May, 1890, repeating what he had already said to the Secretary verbally and in writing, and giving his reasons for believing that the Government of Colombia was not responsible to the claimant.

After a long silence the Department of State directed a note to our chargé d’affaires in Washington, General Renjifo, dated February 11, 1895, in which, after stating the origin and state of the reclamation, a reply was given to the note of our minister, Mr. Hurtado, dated May 9, 1890, and reviewing in all its parts the said reclamation, concluding with the statement that “although formerly they had demanded $91,000, with the approbation of this Department, the claimants manifested that they were ready to accept an offer of a compromise approximating to what might be just in the case.”

This note was dated the 11th of February, 1895, but on account of the civil war our chargé d’affaires, General Renjifo, who was at the time in the Cauca on a military commission, did not receive it till the month of July of the same year, on his return to Washington. In the meantime Mr. McKinney, envoy extraordinary and minister plenipotentiary to Colombia, directed a note to this ministry calling up the same subject and manifesting that the claimants were ready to accept a compromise. My honorable predecessor manifested to Mr. McKinney that, as the subject was being treated in Washington, it was logical and convenient to continue to treat it in that capital, as General Renjifo would soon arrive there.

In a note of the 15th of April of this year, this ministry informed General Renjifo of certain important data that had been received from divers sources, and from which the following conclusions were drawn:

That the Star and Herald Publishing Company was organized in the State of New York in the year 1884 or 1885; that the company had not paid the annual taxes to the State of New York since 1890 or 1891. Not having complied with the laws of the United States in regard to these annual payments, it has lost all right of protection from the United States.

The president of the company was Mr. Spies, a commission merchant in New York, who failed in September or October, 1893, and terminated his life by suicide.

The vice-president was Frederick Boyd, a native and resident of Panama, consequently a citizen of Colombia, as also his brother, Mr. Samuel Boyd, who was manager in the Isthmus from the organization of the company until 1892, when the company appointed J. Hollander, and some months afterwards Mr. W. Benedicto.

The enterprise failed, and all its goods in Panama, as well as the right to publish both papers, were sold at public auction by the second civil judge of the court in June, [Page 224] 1893, and bought by its actual owner, Mr Gabriel Duque. In order to present and push a claim which the company had against the Government of Colombia, the president, Mr. Spies, gave a power of attorney to Mr. L. Myers, a lawyer resident in Philadelphia. Inconsequence of Mr. Spies’s death, in 1893, Meyers’s powers have ceased, and consequently he has no legal rights in the matter.

The enterprise having failed, and all that it possessed having been sold in 1893, the product of the sale should have been divided among the creditors, but as this was not done, the injured parties have a right to make a claim in the courts of Colombia.

Knowing the spirit of equity and justice that animates the Government of the United States, there is abundant reason to believe that this claim will produce no unfavorable results.

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