Mr. Merry to Mr. Hay.

No. 453.]

Sir: I have the honor to acknowledge receipt of your No. 347 dated July 9, and in accordance with instruction therein shall address a note to the Nicaraguan foreign office in courteous but decided terms relative to the action of Judge Roman at Bluefields in ignoring the agreement between the Nicaraguan minister of foreign affairs and myself, which was subsequently approved by both Governments, and shall forward the Department a copy thereof.

I much regret the constantly recurring duty of addressing disagreeable dispatches to the Nicaraguan Government, but when the judge of a court presumes to ignore an international agreement and substitute therefor his judicial decision, given on ex parte evidence, it appears to me unavoidable. In a letter from Her Britannic Majesty’s Consul Bingham, dated San Juan del Norte, July 9, he writes:

The Government (Nicaraguan) has not up to the present asked me for or made mention to me about the money deposited in my hands. I also reported the matter to Her Majesty’s minister at Guatemala, and have received a telegram instructing me under no circumstances to pay over the money except at the joint request of the United States and Nicaragua, and further instructing me that should the Nicaraguan Government attempt to bring pressure to bear on me in the matter, to refer them to Her Britannic Majesty’s legation.

Judge Roman may possibly ignore the fund in the hands of Consul Bingham and proceed against the merchants by again seizing their property in order to enforce a third payment, in which case I shall promptly advise the Department.

I beg to inclose herewith copy and translation of Judge Roman’s “sentence” against the Bluefields merchants, which needs no comment further than that his assurance is equal to any judicial action that he may be ordered to take.

With assurances, etc.,

William Lawrence Merry.

Considered the present demand instituted by Don Tomas Infante, of legal age, bookkeeper, and of this vicinity, in representation of the Hacienda Publica of Nicaragua as administrator of revenue of the department of Zelaya, the 7th November, 1899, against Samuel Weil & Co., New Orleans Central American Trading Company, and Allen & Caldwell of this vicinity; Jacob Albert Peterson and Samuel Dean Spellman, of legal age and of this vicinity, and Orr & Laubenheimer, residents Rama, all merchants, for the amount or values that are charged for customs duties that they owe to the national treasury or Hacienda Publica of Nicaragua since before the 25th of February of the aforesaid year.

Procedure in rebellion of the accused because they did not appear in person nor name an attorney, as they were advised to do in act November 7 aforesaid, taken as answered the demand in act of April 2 of this year, and it was opened for evidence the 11th of the same April for the term of thirty days, the which completed, the plaintiff completing the copy of the good proof, committed his conclusions in writing the 12th of the present month of May, on which date copy was sent to the defendants, who made no use of it.

Considered: That the defendants neither alleged nor proved anything, for which reason this authority has to abide by the allegations and proofs of the plaintiff in order to decide article 375, Pr, N, E. Considering that the demand has been interposed [Page 818] without being ignorant that the accused gave the agents of the rebellion, initiated the 3d February, 1899, amounts or values equivalent to the customs dues claimed, but that does not excuse them from payment to the lawful creditor, since it is known that they made no payment after the 3d and before the 24th of February aforesaid, because it is known and proven that Gen. Juan Pablo Reyes Solis, recognized as governor intendente and inspector-general of the Atlantic coast, duty that he was charged with by the Government of Nicaragua, traitorously to this, created himself chief of the same rebellion that Reyes promoted, from which it results that consciously they made delivery of money to an illegal organization.

That as much for this as for the wording of the number one of the agreement of the 29th of April, 1899, the judgment has been instructed upon the basis of the existence of the obligation demanded.

Considering that the proof rendered by the claimant establishes as demonstrated that the rebellion initiated the 3d February, 1899, was not the work of the people, and can not be considered as a revolution, but it was the treason carried out by Gen. Juan Pablo Reyes Solis, who was before the legal authority, and, as such, governed the department of Zelaya; therefore he had no need to employ force to obtain the command or government of this region, since his own treachery was enough, from which it should not be considered a de facto government, what was only an ephemera or situation derived from the commission of a crime; that the change of legitimate authority to chief of a rebellion by the aforesaid treachery was notoriously known is shown by the fact of having fixed public notice by the vice consuls and consular agents of England and the United States notifying their fellow-citizens that they should abstain from taking part in the political movements of the country that Gen. Juan Pablo Reyes Solis was effecting, and finally, that North Americans, English, and other foreigners of different nationalities took part in the rebellion in various ways—enlisting in the ranks, furnishing provisions and even steamers to the rebels, and even delivering to the agents of the rebellion amounts of money that they owed to the legitimate Government for customs dues, without their being obliged by force nor embargoes to do so; arts. 254, no book, and 284 P. N. E.

Considering that the reason given that treachery could not give as result a de facto government, and that the payment made by the accused merchants, knowing the crime committed by Gen. Juan Pablo Reyes Solis and his subalterns, without the mediation of force nor pressure was not good, which does not exempt them from the obligation which they are under of paying those customs duties to the legitimate creditor, or, that is, the national treasury of Nicaragua; Art 1577 c. C.

Considering that in number three of the agreement of April 29, 1899, between the minister of foreign relations of Nicaragua, Don Joaquin Sanson, and the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. William L. Merry, there is laid down “the difficulty overcome once that it has been discussed before whom it may appertain,” respecting which the organic law of tribunals is very clear and conclusive, establishing in its article 70 that the judges of the district shall understand in the judgments in which appears the Hacienda Publica, whose value exceeds $500. With these grounds and in conformity with articles 198, 369 P. N. E., and 70 of the law of October 3, 1899, I give judgment, declaring that Samuel Weil & Co., Allen & Caldwell, Jacob Albert Peterson, Samuel Dean Spellman, and Orr & Laubenheimer owe to the fiscal or Hacienda Publica of Nicaragua the customs dues of which the agreement of the 29th April of the year cited treats, and that the present demands and condemns them to the payment of the costs of this judgment. Notify them.

S. A. Roman and Reyes,

Franco Navarro, Sect.

This simple copy of the sentence agrees with the original and is extended at the request of Dr. Duke W. Goodman, in Bluefields, July 18, 1900.

S. A. Roman and Reyes.

Before me,
Franco Navarro, Sect.

Bluefields, Nicaragua, July 14, 1900.

I hereby certify that the above and foregoing is a true and exact copy of the original now in the office of the consular agency of the United States at Bluefields, Nicaragua.

Duke W. Goodman,
Acting Consular Agent.