Stephen A. Hurlbut to True translation from the original on file in this legation. S. A. HURLBUT, January 6, 1872

No. 93. Mr. Hurlbut to Mr. Fish.

Sir: On the first day of December, 1871, I presented for the consideration of the Colombian government the claim of Schuber Brothers, owners of the Montijo, and of the officers and crew, for compensation for seizure and detention of the ship and imprisonment of the persons. I inclose a copy of my note and of the abstract of the claim, not considering it necessary to forward copies of the evidence, the principal part of which is in the Department.

The grievances complained of were so palpable, the evidence so conclusive, and the principles on which it rests were, to my mind, so singularly clear, that I considered it unnecessary to argue the question at all in my communication to Señor Zapata.

The records of this legation, as well as of the French and English, are full of cases not near as flagrant which have been promptly settled.

On the 28th December, 1871, I received from Senor Zapata a reply of the date of 27th December, a translation of which is inclosed. In this document, Senor Zapata takes ground wholly untenable, and in direct conflict with the facts in the case, with which he is perfectly familiar. He chooses to place this case in the category of ordinary crimes committed by individual criminals upon individual sufferers, triable and punishable exclusively in the ordinary courts of justice, and ignores, I fear, willfully, the features of insurrectionary violence, of conspiracy and of combined action, which remove the case from the ordinary quality of simple crime, and give it an undeniable public character.

I was exceedingly surprised by the contents of this note, and by the decision announced that the national government denied responsibility for the pecuniary damages sustained.

On the 1st day of January, 1872, I answered in the note of that date, a copy of which is also inclosed. In ordinary cases, I presume I should have accepted the note of 27th December as final, but I was unwilling to do so without an effort to bring the Colombian government to a possible reconsideration of a decision which I could not but regard as an unfriendly act. To this end I addressed to Senor Zapata the note of January 1, with such arguments as appeared to me best suited to convince the mind of the secretary and President. Noticing in Senor Zapata’s note of December 27 that the Colombian government takes shelter under the prosecution ordered, and claims some credit for that act, on the third day of January, 1872, I addressed to Senor Zapata a note of that date, a copy of which is also inclosed, desiring to know officially what steps, if any, had been actually taken in that matter, and again pressing upon his attention the necessity of energetic and bona-fide prosecution of the offenders to conviction.

My information from bur consul at Panama and from private sources was that no real prosecution had, in fact, been instituted in Panama ‘and that one of the principal offenders, Diaz, was and is now governor of the city of Panama.

You will remember, sir, that the government of Colombia, although in possession of the facts of these outrages, did not of its own motion institute proceedings against the malefactors, but remained inactive for weeks until driven into action by the demand made by me on the 5th of August, 1871, in pursuance of instructions received from the Department.

In permitting the seizure of the Montijo, in not rescuing her by force if necessary, during the two months she was detained, in not prosecuting her captors until compelled by the positive demand of the United States, and finally in not acknowledging liability for the losses and damages, it does appear to me that the Colombian government has very seriously failed in its duties toward an ally and friend.

Much, of course, is to be attributed to the inherent weakness of the form of government, as is illustrated by the extraordinary laws “of public order “of the 16th April, 1867, (commented upon by me in my note of January 1, 1872,) a translation of which is inclosed, and which is now in force.

At a late hour this evening, (6th January,) I received two dispatches from Senor Zapata of the date of 5th January, 1872, translations of which are herewith inclosed. The time is so short before the closing of the mail that I am compelled to send the rough draught of the translation with some erasures.

The note of Mr. Zapata, on the subject of the liability of the nation, is a very ingenious piece of special pleading intended for home consumption. It is impossible for any man to doubt that the capture of the Montijo was a part, and a principal one, of the insurrectionary movement, and that it would never have taken place but for the revolution.

It is not at all difficult to reconcile the two claims made by the United States, for it is very possible, as indeed was the fact, for men to be at the same time rebels and pirates, to be in revolution, and thus invested with a certain political character for which Colombia is responsible, and in the course of such revolution commit acts which constitute piracy.

I have not had time, as yet, to answer Mr. Zapata’s last note, and should decline to do so at all were it not that new views and new matter have been introduced. The answer will be very brief.

You will perceive from his other note of January 5, that practically nothing has been done in the matter of the criminal prosecution in Panama, nor in fact is it in the power of the federal government to do anything more than to write official notes to the State officers, which the latter notice or disregard at their pleasure.

The entire matter is most respectfully submitted, that such final determination may be had in Washington as shall appear right, and I trust that my course in the affair may be approved.

I am, &c,

Memorandum of claims. &c. arising out of seizure of American steamer Montiio.

United States Legation, Bogota.

The undersigned hands to the honorable secretary of foreign relations the above specification of claims, with the following remarks:

• The price of the steamer per diem of her detention is fixed at $500, being the amount which the government of Panama would have to pay in case of using the ships, vide Boletin Official No. 274, 20th December, 1869.
• The undersigned is not prepared to set a money value upon forced imprisonment of American citizens. In one sense it can hardly be set too high; in another, as innocent people must pay it, he leaves the matter for amicable arrangement. He adds to the testimony already offered the deposition of Augustin Castellanos, the Boletin Official No. 274, and the Paceta de Panama No. 50, and a copy of the crew-list of the steamer.

Law in relation to public order.

• Article 1. When in any of the States any portion whatever of the citizens shall rise, with the object of overthrowing the existing government and organizing another, the government of the Union is bound to observe the most strict neutrality between the belligerent parties.
• Article 2. During the continuance of civil war in any State, the government of the Union shall maintain relations with the constitutional government until its authority shall cease to be acknowledged in the entire territory, and shall recognize the new government and enter into official relations with it as soon as it shall have been organized, in accordance with the first paragraph of the eighth article of the constitution.
• Articles. All laws and parts of laws conflicting with the present are hereby repealed.

Approved, &c, &c, April 16, 1867.

True translation: