Stephen A. Hurlbut to Felipe Zapata, January 1, 1872

Mr. Hurlbut to Mr. Zapata.

The undersigned, minister resident of the United States of America, presents his most respectful compliments to the Honorable Felipe Zapata, secretary of the interior and foreign relations, and has the honor to acknowledge receipt of his dispatch of the 27th day of December, 1871, in which the executive power of Colombia declines to consider the nation responsible for the payment of damages resulting from the seizure of the American steamer Montijo.

The undersigned deeply regrets the decision announced in the note referred to, inasmuch as he cannot concur in the reasoning of the honorable secretary, nor in the results arrived at.’ It appears to the undersigned that the wrongs from which this claim originated are in their nature widely different from the case of ordinary robbery or theft committed by private criminals or simple malefactors.

The existing laws of Colombia (Lei sobre orden publico, April 16, 1867,) recognize by a very strong implication the right of armed revolution, and consecrate these disturbances of public order within the States by requiring of the general government an absolute neutrality, and depriving the national authorities of any right to interfere, either to prevent, to control, or to put down such armed demonstration.

To foreign nations who deal only with the national government, and cannot recognize the individual States, this denial of power to interfere in or control such revolutionary attempts, amounts to a sanction given by the laws of Colombia to the revolutionary movement, and as a necessary consequence to the responsibility of the nation for all wrongful acts committed against foreign residents in the course of such revolution.

It is an inherent right and duty of sovereignty to protect its own citizens, and foreign residents, under solemn treaties, from loss of liberty and property. This is one of its essential attributes; the chief purpose for which sovereignty is granted, one of the primary ends and aims for which government is instituted among men.

On general principles, then, the undersigned affirms that it is one of the primary duties of all governments to maintain peace and public order, and the security of life, liberty, and property, and that for any failure or neglect to do so they are responsible. Especially is this the case if such government, after framing in treaties the most prercise and clear guarantees of such rights to foreign residents, (as in the treaty of 1848,) voluntarily, and without consent of the other party, disarms itself of the very power which is essentially necessary to the fulfillment of its treaty obligations and compels itself to the melancholy position of standing with folded arms in a useless neutrality, while its own citizens and subjects commit acts of spoliation and violence upon the property and persons of foreigners who are found within its limits in full confidence of the protection and security solemnly guaranteed many years before under pledge of the good faith of the nation.

The undersigned has no hesitation in stating his conviction that the law of public order of April 16, 1867, which compels the national government to neutrality in domestic insurrection, is waste paper so far as relates to the rights and privileges of foreign residents found in this country under existing treaties, and cannot in any manner relieve the national government from the full and faithful performance of its treaty stipulations.

In the present case, certain persons in the exercise of this “right of revolution” formed a conspiracy against the legitimate government of the State of Panama. In pursuance of this conspiracy, by force and by fraud they captured an American steamer, made prisoners of the officers and crew, and used ship and crew as instruments in their insurrectionary movements, held both ship and crew for sixty-two days, and only released then when they had served their purpose. This insurrection or revolution was closed by a treaty made between the legitimate government of Panama and the revolutionists, by the terms of which the State of Panama granted full amnesty to the wrong-doers for all their acts, and assumed the responsibility for all damages arising out of the revolution.

These facts, perfectly within the knowledge of the honorable secretary, evidently distinguish the present case from simple crime committed by private individuals, and invest the affair with a public character, which not only justifies but requires that the matter shall be investigated and adjusted by diplomatic channels.

The undersigned is very clear in his opinion that it was the duty of the national government to have protected the American steamer Montijo and her crew from seizure; that it was the duty of the national government, after she was seized, to have rescued her and her crew by whatever force was necessary; and that these duties are imposed upon Colombia by the laws of nations and by the terms of her own treaties.

But the national government has failed to perform these duties, whether from want of force, from misconstruction of its own powers under the law of April 16, 1867, or from simple negligence on the part of its agents. The cause of the failure appears to the undersigned wholly immaterial; the fact exists.

The government having thus failed to protect or to rescue, the persons aggrieved, through their diplomatic representatives, request the only thing which is left, just compensation.

This compensation they ask of the national government with whom the original contract was made in the treaty of 1848, and by whom the breach of that contract was permitted.

It is not a case of injury committedby private criminals: it has no single element of a private nature. It is not a case for the courts under any construction of public law nor of existing treaties. For all these reasons, imperfectly expressed as above, the undersigned very respectfully declines the suggestion made by the honorable secretary, that recourse should be had to the courts, and requests that the honorable secretary would have the kindness to inform him as speedily as possible if the views set forth in his dispatch of the date of December 27, 1871, are the final and deliberate judgment of the executive power in this matter, as the undersigned in such case is under the necessity of referring the whole matter to the Secretary of State at Washington, for the action of the President of the United States of America, and desires to do so by the next mail.

The undersigned avails himself of this occasion to renew the assurances of high consideration with which he remains, &c.