Mr. McKinney to Mr. Olney.

No. 200.]

Sir: I have the honor to herewith transmit to the Department a copy of a letter from the minister of foreign affairs in the Star and Herald case.

I have replied to the same, informing this Government that I have submitted the matter to your Department for further instructions, and have informed the minister that we can not accept the statement that the Government is not responsible for the acts of its agents; that the point he refers to in the treaty of 1846 applies only to private citizens, and not to officers or agents of the Government. It is a fact that the proprietors of the Star and Herald continued to publish their paper during the time the decree was in force, under another name but the same form, and that the actual loss to the company was nominal. I shall soon be in Washington, and will then give you full information on the subject.

I am, etc.,

Luther F. McKinney.

Mr. Holguin to Mr. McKinney.

Sir: I have the honor to refer to your excellency’s note of the 7th of last July, in which you inform me that your Government has ordered you to request an immediate solution of the Star and Herald Company’s claim. As your excellency will have seen in the report I had the honor to present to Congress upon the opening this year, this department has been actively engaged in gathering together all data which could be useful in clearing up the matter, and only awaited the arrival of certain documents from Panama before replying to your excellency’s polite communication.

Your excellency says that if my Government agrees to take the matter into consideration the claimants will accept a reasonable offer.

Permit me to observe to your excellency that the principal question for the Government is not precisely the sum total of the amount claimed, but the nature of the claim. The Government can not accept the change of nationality of an individual enterprise born in Colombia, which belongs to Colombian citizens, and which is allied in such a manner to our territory that its existence outside of Colombia can not be imagined.

The Star and Herald enterprise, founded more than fifty years ago by a citizen of the United States, became later, as your excellency knows, the exclusive property of M. A. Boyd, an Irishman, who claimed American citizenship and who married a Colombian, and left, upon his death, Colombian sons residing on the Isthmus, heirs to the property of the journal.

[Page 225]

It first occurred to the Colombian proprietors of the Star and Herald in 1884 or 1885—that is to say, when it was patent to all that civil war was about to break out—that they could escape the jurisdiction of the Colombian laws by nationalizing their enterprise in the United States. To this end they established in New York an anonymous society to represent the journal, and as soon as certain formalities had been gone through with they converted it into a North American enterprise; but in doing this they acted in an irregular, incorrect, and illegal manner, which the Government can in no case accept. Notwithstanding the pretended change of nationality, the journal constantly continued to mix itself in our political strifes like any organ of our press and, entering upon forbidden ground, came out in favor of the separation of the Isthmus.

Our authorities, ignorant, doubtless, of what the owners of the Star and Herald had done in New York, did not at that time present the corresponding protest, but this involuntary silence does not signify that the Colombian Government has at any time considered as legitimate the change of nationality by a simple resolution of the owners of an industrial enterprise which is the exclusive property of Colombian citizens, and which, by its special conditions, by its permanent situation in the country, resembles landed property. If this change of nationality is not admitted in commercial enterprises, still less can it be accepted in those of an industrial character such as the Star and Herald. But there is more. The acceptance of the Government of the proceeding of the Messrs. Boyd would be the authorization of the other journalistic enterprises of the Republic to be nationalized in any way in other countries in order to present diplomatic claims whenever the Government applies the laws in regard to the press which it may deem fit to enact in accordance with its undeniable right. Like the Star and Herald, the political newspapers would have citizens’ rights for interfering in interior politics and the privilege of foreigners for eluding the responsibility which their conduct might cause. This exceptional situation can not be admitted by any government, and, indeed, the most civilized countries do not grant foreigners the privilege of directing and publishing political journals, because this industry falls by nature within the class of privileges which foreigners can not enjoy.

But even admitting, for the sake of argument, that the Star and Herald Company really had at that time North American nationality, the claim would still be unfounded. The claim originated in 1886, as a result of a decree of the civil and military chief of Panama, Gen. Santo Domingo Vila, prohibiting the publication of the said journal for two months. In view of the abnormal condition of the Republic at that time, the decree of the civil and military chief would have been perfectly correct if he himself had not granted a few days before the absolute liberty of the press.

The National Government, considering this proceeding somewhat unjust, disapproved the suspension decreed by Gen. Santo Domingo, and as this gentleman showed himself but little disposed to revoke his order of suspension, the Government was obliged to accept his resignation. In acting thus the Government relieved itself of all responsibility, if it ever had any, for, according to the practice of nations and national legislation, no government is responsible for the acts of its agents or subalterns which are not in perfect accord with the faculties conferred upon them by law or the instructions which the government itself may have given them. For a government to share with its agents the responsibility of acts or this nature it would be necessary that, having been able to avoid them, it had not done so; that once accomplished, it had not attempted to frustrate their effects; that it had not disapproved the conduct of the agent; in a word, that it had ratified or sactioned them in some manner. None of the above exceptions are applicable to the case of the Star and Herald. The Government upon learning of the act accomplished attempted to frustrate its effects, ordering the civil and military chief of Panama to remove the prohibition of the paper, and when Gen. Santo Domingo declared that he would stand by his decree or hand in his resignation, the Government chose the latter, which shows a formal disapproval of the conduct of the civil and military chief in the matter under discussion.

If there is any responsibility, it must not be exacted from the Government, but from the functionary who exceeded the powers with which he was invested through the courts of Colombia.

As is understood by the treaty of December 12, 1846, between Colombia and the United States, article 35, section 4, of which says: “If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizen shall be held personally reponsible 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.”

The proprietors of the Star and Herald, upon complaining to the Government of [Page 226] the suspension of the paper, qualified the decree of Gen. Santodomingo Vila as illegal. If the claimants themselves admitted its illegality, it could not compromise the Government unless the Government had sanctioned it. It is evident, however, that the contrary occurred, whereupon the claim has no foundation. I also call your excellency’s attention to the fact that if the editors of the Star and Herald pretended to obey the order of suspension, they really laughed at it, eluding its effects by printing and publishing the same journal under another name (The Telegram), which had a large circulation.

An examination of the numbers which appeared of this publication, and their comparison with those of the Star and Herald which preceded its suspension and with those which appeared immediately after the order of suspension had been revoked, show clearly the identity of the two papers. The size and kind of paper, the printing types, the distribution of matter, the advertisements of a permanent character, the office where the paper was printed, all was the same in both papers.

The editors, far from desiring to hide this, gave it to be clearly understood by adopting the title of the Evening Edition of the New York Herald.

Immediately upon the termination of the decree of suspension of the Star and Herald, the Telegram disappeared because there were no longer grounds for its continuance. There was, therefore, no paralyzation of work in the enterprise, nor were its interests injured. Therefore the prohibition of General Santodomingo, even considering it unjust, can not serve as a foundation for a claim for damages; it is an act that constitutes at most “injuria absque damnum.” As before stated, the owners of the Star and Herald naturalized their enterprise in the United States when civil war was about to break out in Colombia, a fact which aggravated the irregularity of their proceedings before the Government of the country. In seeking the protection of the United States they acted wholly for their own interests, for the moment they felt sure that peace was assured in Colombia they ceased to pay the annual quota to the State of New York as they were obliged to do.

After the organization of the company in the United States, Mr. Spies, a commission merchant of New York State, was chosen president, who failed in 1893 and ended by committing suicide. The vice-president was Mr. Frederick Boyd, a native of Panama, residing on the Isthmus and consequently a Colombian citizen, as is his brother Samual, who was manager on the Isthmus from the organization of the canal company until 1892.

Upon the failure of the enterprise all its property in Panama, as well as the privilege of publishing both papers, were sold at auction by the second circuit court, and bought in 1893 by Mr. Gabriel Duque, the present owner. To present and hasten the claim against the Colombian Government, Mr. Spies gave a power of attorney to Mr. Leonard Myers, a resident lawyer of Philadelphia; after the death of Mr. Ipies the power of attorney appears to have become null and void. In view of this data it occurs to me to ask who the person is who has the legal authority to support the claim of the Star and Herald in its character of an American enterprise? This Department, having confidence in the high spirit of justice which animates your excellency, does not doubt that in view of the foregoing considerations and data your excellency will understand the reason which prevents the Government from accepting the claim of the Star and Herald, and its desire to put an end to the matter which has been largely discussed for several years; so much the more when those who think they have a right to claim may appeal to the courts of the country, who will do them justice. Before closing permit me to rectify your excellency’s statement that my predecessor in this Department informed you that if the interested parties desired to make a reasonable reduction in the sum claimed the Government would take the matter into immediate consideration. This Department has always held the same opinion in regard to the value of the claim. Your excellency gave, doubtless, too much importance to a private question of my predecessor made from a different reason from what your excellency supposes, and Mr. Saurez took care to present to your honorable legation a categorical explanation of the true meaning of his words.

I reiterate, etc.,

Jorge Holguin.
[Inclosure 2.]

Mr. McKinney to Mr. Holguin.

Sir: I have the honor to acknowledge the receipt of your excellency’s note of the 10th of the present month relating to the claim of the Panama Star and Herald.

I will at once transmit the same to the Department at Washington for their consideration [Page 227] and wait their further instructions. Permit me, however, to call your excellency’s attention to some points in the communication referred to, in which I think your Department has fallen into involuntary error.

In my letter of July last on this subject I did not refer to the communication of Mr. Saurez when I said your excellency’s Government had expressed a desire to take up the case if the claimants would make a proper reduction in their claim. In the month of May, 1895, Mr. Uricoechea, in a private interview, after I had written him on the subject, said the Government was ready to take up the case and bring it to a conclusion if the claimants would make a reasonable proposition, which he expected should be much more favorable to the Government; that it was desirable to settle the matter without diplomatic action, and asked that the case be continued in Washington between the Department of State and the Colombian minister. On the 10th of May, 1895, I forwarded these facts to the Department of State. As the Colombian minister failed to reply to communications on the subject, the Department ordered me to take up the case again from this legation.

I desire also to refer to the statement in your excellency’s note that the Government is not responsible for the acts of its agents except under certain conditions; I must most respectfully differ on this point, as the Government must under all circumstances be responsible for the acts of Government officers or authorized agents; otherwise there would be no redress that would be adequate in case the citizens of either country were wronged by agents of the Government.

The point you refer to in the treaty of 1846 applies only to private citizens, but not to officers of the Government. If your excellency’s interpretation of the treaty was admitted, then any commander of an American man of war, while in a Colombian port, taking offense at the authorities, might shell a city and destroy it, but his Government would not be held responsible because he in so doing had exceeded his authority and must be held personally responsible for the act.

Such an interpretation of treaties and international law would be dangerous in the extreme, and could not be submitted to by the nations.

I take this opportunity to reiterate, etc.,

Luther F. McKinney.