[Translation.], January 16, 1866
[Translation.]
SECOND MEMORIAL TO THE GOVERNMENT OF THE UNITED STATES OF COLOMBIA.
Citizen President of the United States of Colombia:
Robert A. Joy, agent of La Compania Unida de Navigacion por Vapor en el rio Magdalena, respectfully represents, that the communication from the secretary of the interior and foreign affairs has been received, dated 9th inst., No. 188, of the 2d section of the government department, in which appears the desire to transcribe the resolution of the executive, to my former memorial about the violent appropriation made of the steamer belonging to the company I represent, navigating the river Magdalena with passengers, cargo, and national mails, or at any rate to give me, in your name, an official answer to my before mentioned representation.
This answer, or the opinions and determination these involved, oblige me to address you again, and to take the liberty of analyzing the contents of that communication to establish better my petition, which, permit me to say, has not had the reception it ought to have had.
The company represented by me has large sums of money invested in the enterprise of steamers navigating the river Magdalena, based on the securities and guarantees offered by the constitution and the laws of the country.
Other companies have been formed and operate with the same object. Several of the richest and most populous of the States of Colombia make use of these steamers to carry on an active and important commerce. And the whole nation, more or less directly, is interested, perhaps in a greater degree than the company which I represent, in knowing what is effectively the liberty and security which can be counted upon in this navigation—what the value of the promises solemnly repeated relating to said navigation.
On treating, then, of the appropriation of the steamer Antioquia, I discuss a question, the solution of which necessarily affects many very great and respectable interests. The document which I now answer, in resuming, contains the following points:
1. The manifestation by the executive that it is fully informed, that on the 10th of last December the steamer Antioquia was detained on her voyage, forcibly appropriated and placed in the service of the government of the State of Magdalena, while said vessel was loaded with merchandise and with passengers, and the bags of the national mail on board.
2. The knowledge of the government of the Union that Mr. Manuel Vengoechea, calling himself an agent of the government of the State of Magdalena, possessed himself of the official and private correspondence of the mail which was on board said steamer, giving them such direction as he thought convenient.
3. The opinion of the national executive, that in cases like the present, it has only to pass to the procurador of the nation the documents presented, so that the tribunals may determine the amount of damages caused, and who are responsible to the company.
4. The opinion also of the executive, that the agent of La Compania Unida ought to have yielded to the vague indication made by the president of Magdalena, by appointing an agent to convey himself to any point that that functionary might wish to receive the appropriated vessel, and for not having consented to this indication the damages which I can claim ceased, since the time that said president made the offer.
5 The national executive considers that, as the president of the State of Magdalena is the constitutional agent of the government of the Union of said States, the measure adopted by said president for the return of the steamer (of course of the form in which he presented it) * * * * has the character of being dictated by the national executive, and the orders now given directly can only be considered as a repetition of said measure. Such are, in summary, the opinions expressed in the before mentioned note of the secretary of the interior and foreign affairs.
In analyzing them I shall be short, because I do not believe the opportunity has arrived to occupy myself with all the questions Suggested in the note.
The executive of the Union being informed that certain individuals, in the name of the government of the State of Magdalena, had forcibly possessed themselves of a vessel belonging to the Compania Unida, discharged her cargo on one of the banks of the Magdalena, taken possession of the official and private correspondence which she had in the national mail, and the vessel placed in the service of that State to make war upon its interior enemies, the government of the United States of Colombia, which knows all this, only finds, in this complex act in the accumulation of outrages, a question of indemnification to the company injured, for which alone has the procurador of the nation been instructed.
I cannot conceal from you, citizen President, the surprise with which I have seen the restricted proportions which have been attributed to such like excesses. If the authorities of the State of Magdalena are only responsible for the injuries caused to the company, what else would they have had to do, if the law had allowed them to take the vessels navigating the river whenever they required them? What becomes of the constitutional guarantees and those especially granted by the law of the 25th of May, 1864, on navigation, as well as the one in continuation of it, and the solemn compact in the contract for carriage of the mails, which has not long been made with me? What signifies the 25th article of the law of the 29th of April, 1865, organizing the national mails, which says: “All ordinary or extraordinary mails will enjoy, during the journey, perfect guarantee for the persons, beasts, and vehicles indispensable for the compliance with the service.” * * * * In consequence, they ought to be protected and assisted by the authorities on the route, and cannot be detained by any authority, employé, or functionary unless the conductor has committed some grave offence. * * * * For what does the case of procedure in criminal affairs form part of the national legislation, especially the articles 1st, 2d, and 13th and the penal code, according to which the infractions of the law ought to be punished.
Let us generalize the opinions of the executive on this point, and we will see if the act of the appropriation of the steamer Antioquia is so insignificant as is pretended, and if it can be sustained by the side of the constitution and laws of the country.
Taking the doctrine of the executive from the special to the general, and it is equivalent to the following:
In every case in which a vessel conveying cargo, passengers, and national mail bags, is taken by force by agents of the State governments the shores of which are washed by the waters of the rivers navigated by said vessels, and the arrangement of the navigation of which is reserved for the general government, this will limit itself to the instructions of the procurador of the nation of what has happened, that he may promote before the tribunals what may be necessary to clearly establish the injury occasioned to the owner of the vessel, and who are the parties immediately responsible for the damage. For the rest, the States are free to appropriate steamers in all the rivers, to possess themselves of the mail bags and specie they carry, and to do with them whatever they think proper.
I do not believe, citizen President, that the above doctrine can possibly be sustained. The simple enunciation of it is sufficient to combat it; nevertheless allow me to bring forward the following disposition:
First. The sixth paragraph of the seventeenth article of the national constitution exclusively attributes to the national government the arrangement of the navigation of the rivers which wash the territories of more than one State.
Second. The third paragraph of the eighth article of the same constitution prohibits the States from restricting by imposts, or in any other manner, the navigation of the rivers.
Third. The first article of the before-mentioned law of the 29th of April, 1865, organizing the national mails, says that the mails constitute a special administrative department of the government of the Union, and the object of which is to carry, secure, and guarantee the correspondence, printed papers, and parcels which are sent by the mail lines kept by the national government.
Fourth. The third principal object of the national mail, as by the fifth article of the same law, is to protect commerce and the national industry, by conveying with safety and despatch the correspondence and funds by the mail lines of the Union.
Fifth. The twenty-eighth article of the same law imposes upon the authorities the duty of supplying individuals to guard and escort a mail that may be threatened, and to them the duty of resisting any attack with valor, and by use of arms.
Sixth and last. The tenth article of the contract made with the Compania Unida, for which I am agent, for the carriage of the Atlantic mail, says: “The public authorities of the place situated on the route which the mails have to travel, from this capital to Santa Marta, shall not embarrass in any way the operations of the vessels destined for the mail service,” &c.
Not even necessity could extenuate the proceeding that I complain of, because it is to the point to observe to you that the appropriation of the steamer Antioquia was decreed by Mr. Manuel Vengoechea, partner of a steam navigation company which makes a strong opposition to the Compania Unida; that it was done at a short distance from Baranquilla, in which port were the steamers unloaded of the company to which he belongs; that consequently if Mr. Vengoechea or his government was necessitated for a steamer, he might have contracted for one of his own company, without the necessity of appropriating one belonging to others, which, as I have said before, was not in circumstances to render service to the appropriating government. I have too high an opinion of the supreme magistrates of the nation not to be persuaded that after studying a little more this matter, they will give it the importance which it merits.
It is sustained that the agent of the Compania Unida ought to have accepted the vague indication of the president of the State of Magdalena, to appoint an agent who should receive the appropriated steamer in the place that he should determine, a doctrine which I esteem entirely unacceptable. If the government of the State of Magdalena had a legal right, which it has not, to take the vessel of the Compania Unida whenever it liked, it would still be a pretension, more than irregular, to think that the company should be bound to go and receive the appropriated vessels in the place appointed by the appropriating government. Even under this supposition, the company would have an indisputable right to exact that the delivery should be in the place of its domicile, because no legislation authorizes, nor could authorize, debtors to pay whenever they thought proper.
Well, then, if from a legal act does not emanate the correlative right to the obligation which is pretended, how can it for an act which is not authorized by law, but on the contrary is prohibited and punishable? How can such a right be suggested, or arise such obligation? For the rest, in my opinion it is more than doubtful that the order for the delivery of the vessel would have been complied with, for it is clear that if the president of Magdalena really lamented the act of appropriation, and desired to deliver the vessel, he would not have limited himself to a simple offer, but would have disapproved plainly, and with the energy belonging to a public functionary, the conduct of his agent: he would have ordered the return of the steamer to Baranquilla, and would have made a judicial deposit of it, in case the company was not disposed to receive. This is the process in such cases. But to pretend that the agent of the company should expose himself to a mock: to pretend that he should receive orders from the authors of the outrage committed; to pretend that he should go humbly to the place which should be pointed out to get back what had been forcibly wrested from him; to pretend that the affair should be amicably arranged, was to pretend what was impossible for a man of dignity who was aware of his rights.
The company, besides humiliating itself with like proceeding, would have tacitly renounced its recourse against the general government, and established a terrible precedent for the future. Although the point I am now going to occupy myself with is not entirely clear, I think it necessary to refute the opinion therein contained, in case it should have been the intention of the executive to decline the responsibility which directly belongs to it in this matter, by announcing, as it does, that the tribunals will decide the quantity of the indemnification, and who are responsible, for the Compania Unida will never admit in such cases that it should be subject to the ordinary tribunals, or that the damages should be awarded by the executors of the acts.
In my character of foreigner, and as the representative of foreign interests, I am authorized to exact the payment of damages which have been caused us from the general government, with which alone can I understand myself when, in treating of the matter in hand, international rights are concerned. The political constitution of this nation expressly recognizes this doctrine as much in the ninety-first as in the paragraph of the twenty-first article, in which it says that “the indemnification which the Union may have to award for violating acts of the individual guarantees, recognized in the fifteenth article, committed by State functionaries, will be charged to the respective States, which will be responsible to the federal treasury for the pecuniary value of the indemnification awarded.” The direct responsibility of the general government, on the other part, is very clear, because, being bound to arrange the navigation of the river Magdalena, to maintain there the individual guarantees, and to comply with its own contracts, it is responsible for the illegal acts there committed on account of the inefficiency of the protection of the government.
The observations which I must make, citizen President, on the points which remain to be analyzed, are not less terminate. It appears to me that the interest of the government in this question is even greater than mine.
The answer to which I allude says this, which it is necessary to repeat: “As the President of the State of Magdalena is the constitutional agent of the government of the Union in said State, the measure adopted by said President for the return of the steamer is the same as if dictated by the national executive,” although that President never informed me that in this case he was acting as such agent. If this were so, the deduction would be rightly, that all the acts done by that functionary in which national interests are concerned ought to be considered as acts performed by the general government.
Thus, then, the extraction of the funds from the custom-house of Santa Marta by that magistrate to sustain the war in which that State is involved, an act which is generally attributed to him, ought to be considered as done by the general government, which in my humble opinion you will not accept, nor in justice ought it to be said; such a mode of reasoning appears to me that, besides going contrary to the truth of the fact, involves a community between the sectional governments and the general government, incompatible with the responsibility of the States.
For me, what is certain is that the President of the State of Magdalena never thought of giving said order as agent of the general government, and that to accept it as implicitly, including the will of the national executive in such like acts as these functionaries, would obligate the acceptance always in the same way, and in every case, which is entirely unsustainable
Having terminated this short examintion, the moment has arrived to state the object of my first memorial, and that of this representation. It is confined to two principal points:
1st. To denounce to the general government the illegal acts committed against the property of the Compania Unida de Vapor en el rio Magdalena, the ill usage of the employés of the steamer Antioquia, the attack on the liberty of industry to which they were victims, and the hindrance to the progress of the mail, passengers, and cargo that were on board said steamer.
2d. To protest, as I do again protest, to recover in proper time from the general government the damages and losses which have been experienced by the company that I represent, the estimate I made in my previous memorial serving as a basis.
With respect to the first part, which is, without doubt, the principal, and upon which I beg of you to fix your attention, I believe that my duty is accomplished as far as I can do it. The reparation which, without doubt, will be given for the grievances done, is chiefly demanded by the public strongly interested in the matter. As to the second, it is not time to proceed further in this discussion. Therefore I limit myself to solicit respectfully that an order be given me, so that in the presence of an agent of the local government and of a judge or notary, the steamer Antioquia be delivered to me in the port of Baranquilla, the State in which she is found at the time to be minutely stated.
To terminate this representation, it only remains for me to request you to read the accompanying official document, in which the President of the State of Magdalena orders me not to allow the mail steamers to touch in Banco, on account of there being troops opposed to his government. On this point I would wish an express declaration from the general government, and that this document be placed also to the procurador general of the nation.
Deism, citizen President, to attend to this representation, and resolve in accordance with it.