Felipe Zapata to Stephen A. Hurlbut, January 5, 1872

Mr. Zapata to Mr. Hurlbut.

Mr. Minister: The President of the Union has considered with due attention your excellency’s communication hearing date the 1st of January, and received the 3d, relating to the indemnity for losses and damages caused to the owners and crew of the steamer Montijo, and has commissioned the undersigned to reply in the terms which he now proceeds to use.

Your excellency does not accept the views entertained by this office in relation to the private nature of the offenses committed by the captors of said steamer, and insist that the government of Colombia is responsible for said losses and damages.

Your excellency thinks proper, in support of your opinion, to set forth the following arguments:

That the wrongs which gave origin to this claim are of a nature very distinct from that of robbery and theft committed by private criminals or simple malefactors.

That the actual laws of Colombia, or rather that the law of April 16, 1867, on public order, by a very strong implication, recognize the right of armed revolution, and by the fact of imposing upon the general government and its agents a strict neutrality, give sanction to the disturbances of public order in the States.

That so far as regards foreign nations, who only deal with the national government and cannot enter into relations with the governments of the several States, this want of authority to restrain revolutionary movements is equivalent to sanctioning them by the laws of the republic, and, as a necessary consequence, to the responsibility of the nation for the wrongful acts which may be committed during such disturbances.

That sovereignty has an inherent right and duty to protect its subjects and foreigners resident against the loss of liberty and property, this being an absolute attribute essential to sovereignty, the principal object for which it is given, and one of the chief ends and purposes for which government is instituted among men.

That the first duty of all governments is to maintain peace, public order, and the security of life, liberty, and property, and that they are responsible for neglect or failure so to do. That this is the case especially with a government, if, after having entered into the most precise and clear guarantees, in treaties, of such rights in relation to foreigners, it should voluntarily disarm itself, without the consent of the other party, of the very power which is absolutely necessary to fulfill its treaty obligations, and should place itself in the melancholy position of looking on with folded arms in a useless neutrality, while its own citizens execute acts in defiance of the guarantees given.

That the law of April 16, 1861, is of no value so far as relates to the lights and privileges of foreigners resident in the country, acquired by pre-existing treaties, and can in no manner relieve the national government from the full and faithful performance of the stipulations of such treaties.

Your excellency then, limiting yourself to the case of the Montijo, states that certain individuals, “making use of this right of revolution,” formed a conspiracy against the legitimate government of the State of Panama, and in the course of the same, by fraud and by force, seized upon this American steamer and imprisoned her officers and crew, using them and holding them for the fulfillment of their revolutionary purposes.

For the government of Colombia the private nature of an offense committed upon the seas against individual property or security consists in the fact of its being executed by persons who hold no commission nor public position (oficio publico) or duty, and who act as simple private persons.

To estimate the true character of the capture of the Montijo the executive power has considered no other documents than those supplied by your excellency and annexed to your note of the 5th of August last. From these documents there result in substance—

That the vessel in question was captured on the 6th of April, 1871, by Thomas Herrera, Domingo, Diaz, and certain other individuals, whom Captain Saunders, of the Montijo, had received on board in the port of David in the character of passengers. That after having taken possession of the ship they held her in their power and made use of her until public order was restored in the State of Panama, meanwhile keeping the officers and crew on board, and compelling them to work the ship according to the will of the captors.

The fact of capture of the vessel took place before its authors had disavowed the authority of the government of the State of Panama and taken up arms against it.

“Neither Thomas Herrera, nor any other persons,” says the deposition of John Schuber, “had established or proclaimed any form of provisional government until after the taking of David, and not before.”

“The taking of the city of David took place on the 7th day of April. Neither Herrera, nor Diaz, nor any other person proclaimed himself as a revolutionist, or in arms against the government of Panama, until after the Montijo was captured.”—.(Deposition of Hannah E. Saunders.)

It results, then, that Herrera and his accomplices at the time of seizure of the Montijo acted solely as private individuals, since at that time they had not taken arms against the State government, and could not be considered as belligerents in civil war or revolutionists.

The undersigned cannot find in this offense a single circumstance which can give it that public character which your excellency assigns in the dispatch of the 1st instant. The jurisdiction of the waters in which the ship was captured by individuals received on board as passengers, without suspicion of hostile intent, belongs exclusively to the federal government.

If after the crime was committed, and by advantages thereby gained, its authors made a revolution against the sectional government of Panama, can that circumstance change the nature of the offense previously committed in another jurisdiction?

It is certain that the law of public order, cited by your excellency, imposes upon the federal government the duty of preserving neutrality in the domestic struggles within the States, but it can by no means be understood that the law or the government recognize in such revolutionists of a State the power of exercising belligerent rights in a territory subject to the national jurisdiction.

Whatever may have been the character of the revolution headed by Thomas Herrera, his acts performed in the waters of the nation can be considered in no other light than personal acts, for which he and his accomplices are responsible before the judicial power of the nation.

Where your excellency can find nothing but an act of a public character, to which the law of 16th April, 1867, has given origin, the undersigned perceives two acts entirely distinct.

Certain passengers on a foreign ship, engaged in legitimate commerce, by wrongful use of force take possession of her in Colombian waters, deprive the owner and crew of their liberty, and, doing violence to their persons, navigate in open sea in the captured ship. This is a most serious crime against the law of this country and international law, a crime the punishment of which appertains to the federal authority. The same individuals afterward employ the captured ship to make a revolution against the government of Panama, which was ended by agreement between the contending parties. This is another act purely local, which may be tolerated by the law of public order, but in nothing changes the character of the crime committed against the persons or property of American citizens.

Can the fact that the captors of the Montijo afterwards carried on a political movement in the State of Panama in any way alter the nature of the violent acts by them previously committed?

A similar case to that of the Montijo, which occurred in Chili at the end of 1851, may serve to illustrate the difference which exists between violent acts committed upon the sea against persons and property of foreigners, and the failure to protect the same on account of mutinies or popular revolts.

In the course of a revolution headed by General Cruz, a government official who commanded the garrison of Punta Arenas, led off the force into insurrection, and violently took possession of two foreign ships, one American, the Florida, the other English, the Eliza Cornish—although these ships had been taken for the service of the insurrection, the Admiral Moresby, commanding the British naval station, recaptured the ships, and delivered the original captors to the authorities of Chili.

These facts having come before the English admiralty, for the purpose of obtaining a certificate to reclaim prize-money, Dr. Lushington, judge of this high tribunal, decided among other things the following principles in his masterly decision:

That the acts relating to the capture of the ships aforesaid ought to be considered piratical, and in no manner connected with insurrection or rebellion.

That although the acts were not committed on the high seas, the court of admiralty considers that the possession of such vessels on the sea, by the same individuals who had seized them, was a piratical possession, and the having navigated with them on the high sea an act of piracy.

That from the power which insurgents or rebels of a country might possess, of committing acts of hostility against their own government, it does not follow that they cannot commit piratical acts against the subjects of other countries.

And finally, that acts of piracy constitute pirates without its being necessary to examine if the individuals who commit such acts intended to do so indiscriminately.

The capture of the Florida and the Eliza Cornish was not performed by simple individuals received on board as passengers, but by the forces of a revolution which held authority from the chiefs of the insurrection, and notwithstanding such capture was held to be piratical, and the undersigned has no knowledge that any responsibility was ever sought to be charged upon the government of Chili for such acts.

Your excellency has considered that the captors of the Montijo were a party of pirates, and the Government of the United States of America requests that they may be punished as such. The undersigned cannot decide what was the crime committed, inasmuch as that is the exclusive attribute of the judicial power. But in considering the last reclamation made by your excellency, it was imperative to take into consideration the one first made, in order to reconcile the terms of both; for, if the captors of the Montijo were pirates, as the Government you so worthily represent believes them to be, their acts have no public character, and are mere common crimes.

The undersigned does not believe that any nation can be held responsible for piracies committed by its subjects, or committed within its waters, when it has neither encouraged them nor made itself culpable by tolerating the offense. If the Montijo was captured by pirates, the duty of the nation is to punish them with all rigor for their crimes, and, so far as relates to the captured property, the tenth article of the treaty with the United States determines what ought to be done in such cases. It says, (Article 10, treaty of 1848:) “The executive power has not understood the ‘law of public order,’ in such manner that he could permit a failure of protection necessary to the security of foreigners in domestic struggles. Thus, when notice was received of the Panama revolution, the commander of the national forces stationed in Panama was ordered to give due protection to the persons and property there situate, under the guarantee of public treaties, giving efficacy to the liberty of neutral strangers, and respect to their property. The Montijo could not have been captured and returned immediately to her owners, for your excellency knows that the nation has no marine force, and it cannot be asked that equal security be given on sea as on land, and it is for this reason that crimes committed against the security of ships and their crews are considered so much more serious, because it is more difficult to give them effective protection.”

Now as to the treaty by which the revolution of Panama terminated, and which your excellency mentions to show that the government of Panama conceded by its complete amnesty for all the acts executed during the disturbance of public order and assumed the responsibility of the damages caused, the undersigned is bound to state that such treaty cannot have and does not have any effect whatever, except in regard to those matters within the jurisdiction of the state, and is wholly ineffective so far as refers to matters within the jurisdiction of the federal government as are crimes committed within the waters of the nation. The opinions expressed in the present note, and in the one which the undersigned had the honor to direct to your excellency on the 27th day of December last, express the determination of the executive power in relation to this reclamation, and as your excellency announces that if this republic insists upon such decision, you must submit the matter to the consideration of your government.

The President of the Union has sent proper instructions to the representative of the nation at Washington, to the end that if the Cabinet at Washington shall judge it convenient so to do, the affair may be further discussed in that city.

With sentiments, &c.