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consul, Mr. Myers, complains, and which your excellency proposes to settle by fixing, through mutual agreement, the amount to be paid, since it is considered, in the opinion of the American Government, to be one of those claims which can only be settled by agreement between the two governments, I have instructions to state to your excellency that in the opinion of the Executive of this Republic there are no legal grounds for accepting this part of the claim as established, and that even when considered in the light of general principles it does not offer, in his opinion, any basis of stipulation which could lead to the determination of a sum of money to compensate such sufferings.
My Government, Mr. Minister, has never been able to consider itself as an arbiter and controller of the circumstances which caused those sufferings to the consul the same as to all the inhabitants of this capital. Such vicissitudes occur as a fatality, without the possibility of preventing or avoiding them, and this even in communities more advanced and better organized, imposing themselves by the irresistible force of facts.
Nevertheless, inasmuch as your excellency invokes the support of general principles, the interpretation of which by my Government can not be claimed to be more just than that of the American Governinent, I have been authorized to inform your excel· lency that, on the part of this Government, there is no objection whatever to submitting the decision of this point regarding the duty of the nation to indemnify pecuniarily such sufferings to the arbitral award of a friendly government chosen by common agreement, and that Salvador would regard the acceptance of this solution of the question on the part of the Government of your excellency as a very marked proof of the spirit of friendly deference and homage for the principles which form the basis of the relations of both peoples.
I conclude, Mr. Minister, by taking due note of the protests which your excellency has believed it your duty to repeat in regard to the direct and indirect interference attributed to the Government of Salvador in the official communications of the consul, Mr. Myers.
If the explanations of this ministry have not satisfied the American Government on account of a difference of opinion not only with regard to the facts of the case, but of the conduct pursued by this Government, then there only remains for me to submit in the name of my Government the justification of its conduct to what it believes it has full right, the impartial judgment of public opinion, protesting in my turn that the Government of Salvador will ever know how to show under all circumstances, as it has ever done thus far, the invariable consideration and inviolable respect which are due the American Nation and Government.
In the hope of receiving from your excellency a satisfactory reply and with renewed expressions, etc.,
Mr. Shannon to Mr. Wharton.
LEGATION OF THE UNITED STATES, Managua, June 30, 1892. (Received July 21.) SIR: I have the honor to inclose herewith copy of a note (with translation) forwarded to this legation during my recent visit to San José, Costa Rica, by his excellency the minister of foreign affairs of Salvador, giving official notification of the intention of his Government to arrest the operations of the treaty of amity, commerce, and consular privileges concluded between the United States of America and the Republic of Salvador December 6, 1870. His excellency at the same time expresses the desire of his Government to renew the treaty on more satisfactory terms.
By virtue of this official notification and in accordance with the first point of article 37, the existing treaty will continue in force until May 30, 1893.
I have, etc..
RICHARD CUTTS SHANNON.
[Inclosure 1 in No. 128-Translation.]
Señor Gallegos to Mr. Shannon.
MINISTRY OF FOREIGN AFFAIRS,
Mr. MINISTER: I have the honor to inform you excellency that, with the desire of renewing on more satisfactory terms the general treaty of peace, friendship, commerce, etc., concluded between this Republic and the United States of America, December 6, 1870, and the ratifications of which were exchanged March 11, 1874, the Government of Salvador has, by decree of this date, resolved to denounce the same, as in effect it now does.
The existing treaty will therefore be considered as continuing in force until May 30, of next year.
I beg your excellency to have the goodness to bring the foregoing to the knowledge of the American Government and to accept the assurances of the distinguished regard with which I am, etc.,
Mr. Shannon to Mr. Foster.
LEGATION OF THE UNITED STATES, Managua, July 11, 1892. (Received August 1.) SIR: Referring still again to the case of Consul Myers, I have the honor to inclose herewith a copy of a note, with translation, that I have received from his excellency the minister for foreign affairs of Salvador, requesting me to furnish him with a certified copy of the agree ment concluded in 1890 between the minister-general of the Provisional Government of Salvador and Lieut. Denfield, U. S. Navy.
Among the inclosures that accompanied the Department's instruction No. 11, of September 26, 1891, was a copy of Mr. Mizner's No. 141, of August 18, 1890, in which he reports his action in the Myers case and refers both to the "instructions" he gave Lieut. Denfield and to the latter's report showing that the "instructions" had been complied with. But neither Mr. Mizner's "instructions" nor Lieut. Denfield's report accompanied the copy of Mr. Mizner's No. 141 which was sent me.
In your No. 21, of November 20, 1891, the five conditions or articles contained in Mr. Mizner's letter of instructions to Lieut. Denfield are set out at length, and an extract is also given from Lieut. Denfield's report, referring in such terms to the agreement of the secretarygeneral to comply with the remaining articles that it would seem the agreement had not been reduced to writing, but was only verbal. And yet in your No. 53, of April 6, 1892, it is stated that through Lieut. Denfield Mr. Mizner entered into an agreement with the Salvadorian secretary-general and it was "expressed in writing."
As the secretary-general himself, Don Benjamin Molina Guirola, returned to San Salvador from Washington some time ago and is now in San Salvador, I have no doubt there has been learned from him all the facts of this case, and that the character of the agreement he made with Lieut. Denfield is perfectly well known to the minister for foreign affairs.
In view of all this and our peremptory refusal to take the case into the Salvadorian courts, I deem it my duty to refer this request of Dr. Gallegos for a certified copy of the agreement to the Department, and respectfully await your instructions in regard to it.
I have, etc.,
RICHARD CUTTS SHANNON.
[Inclosure in No. 143-Translation.]
Señor Gallegos to Mr. Shannon.
MINISTRY OF FOREIGN AFFAIRS,
Mr. MINISTER: Not finding in the archives of this ministry the original of the agreement concluded between the minister-general of the Provisional Government of this Republic and Lieut. Denfield of the American Navy, in the name of the legation which is to-day under the charge of your excellency I beg you will have the goodness to furnish me with a certified copy of the agreement, which ought to be found in the archives of the legation.
Thanking your excellency in advance for this favor, I have, etc.,
Mr. Foster to Mr. Shannon.
DEPARTMENT OF STATE,
SIR: I have received your No. 128, of the 30th ultimo, communicating a note of May 30, 1892, whereby the Government of Salvador announces that it will arrest the operations of the treaty of amity, commerce, and consular privileges of 1870 on the 30th May next (1893). You will invite the suggestion by Salvador of the more satisfactory terms on which the negotiation of a new treaty is proposed.
I am, etc.,
JOHN W. FOSTER.
Mr. Shannon to Mr. Foster.
LEGATION OF THE UNITED STATES,
Managua, October 13, 1892. (Received November 11.) SIR: In January, 1885, Don José Dolores Gámez (not Gomez), a Nicaraguan political refugee, having embarked at San José, Guatemala, for Punta Arenas, Costa Rica, on board the Pacific Mail Company's steamship Honduras, Capt. James McCrae commanding, efforts were made by the Nicaraguan authorities to arrest Gámez while the steamer was lying in the port of San Juan del Sur, but without suc
Capt. McCrae refused to give up his passenger; refused to go on shore when requested by the comandante to do so; and finally, when requested not to sail for twenty-four hours, did, it is alleged, sail in two hours and without the usual permit from the comandante of the port.
For these offenses Capt. McCrae was tried in the Nicaraguan courts, but in examining those volumes of our Foreign Relations that refer to the case I find that the reports sent to the Department at the time with regard to the legal proceedings taken against the captain were not only incomplete, but wholly erroneous.
Mr. Blaine is his No. 206 of November 18, 1890, to Mr. Mizner, cites Mr. Bayard's No. 226 of March 12, 1885, as "reviewing the facts (of
the Gámez case) so far as known, and adverting to the incompleteness of the information as to the proceedings against the captain."
Mr. Bayard in his No. 226 of March 12, 1885, to Mr. Hall (vide Foreign Relations for 1885, p. 82) uses the following language:
The consul reports that for these offenses the captain has been tried by the Nicaraguan Government and found guilty, and although he has not been able to learn the nature of the sentence, he is convinced from the present attitude of the Government that the sentence will be executed in case of the return of the captain or the vessel within the jurisdiction of the Government of Nicaragua.
Finally, Mr. H. H. Leavitt, United States consul at Managua, in his note to Mr. Hull of February 3, 1885 (vide Foreign Relations for 1885, p. 71), says:
For these alleged offenses he (the captain) has been tried by the Nicaraguan Government and found guilty, but I have not yet been able to learn what sentence they had passed upon him.
In this connection I might also quote the words of his excellency Señor Anguiano, minister for foreign affairs of Guatemala, who, in his special report to the legislative assembly, dated March 31, 1890, regarding the capture and death of Gen. J. Martin Barrundia, at page 65, refers to the Gámez incident in the terms of which the following is a translation:
Upon the arrival of the Honduras at San Juan del Sur the authorities requested the captain to deliver up Gamez. He refused to do so, and put to sea without the customary permit. For this violation of the fiscal laws of Nicaragua a suit was brought in the courts, and the captain was declared guilty by default (en rebeldia).
As I find upon inquiry that all these statements and reports regarding "the sentence passed upon" Capt. McCrae are wholly erroneous, and as the Gámez case has acquired unusual importance through the fact that Mr. Bayard's decision in reference to it was the chief ground upon which Mr. Mizner defended his course in the Barrundia affair, I have thought it desirable, in order to complete the Department's record of the case, to obtain a copy of the sentence itself, and herewith beg to transmit it accompanied by a translation.
The sentence, it will be seen, goes fully into the case, citing authori ties on international law to prove that the delivery of Gámez to the Nicaraguan authorities could not properly be demanded of the captain under the circumstances; and that the charge of disrespect for the authorities brought against the latter was unfounded.
The passages cited from the writings of Bello and Calvo, and from the codes and constitution of Nicaragua, are herewith appended in the original, accompanied by translations.
I take the liberty also of adding a remarkable passage from Riquelme, the last paragraph of which refers to a supposed case similar to that of Gámez.
The sentence in the case of Capt. McCrae is dated February 9, 1885, and although it was promptly referred to the supreme court at Granada for consultation, that tribunal did not pronounce judgment till April of the present year, when a decree was issued simply approving the sentence without making any review of the case or giving any reasons. The sentence was published in "La voz del pueblo," a newspaper of Granada, immediately after being pronounced and led to an animated discussion in the press throughout the country.
I have, etc.,
RICHARD CUTTS SHANNON.
[Inclosure 1 in No. 220.-Translation.]
CRIMINAL COURT OF THE FIRST INSTANCE,
In view of the summary information officially taken against the captain of the North American steamer Honduras, James McCrae, supposing him to be guilty of the crime of disrespect against the authority of the governor and intendant of San Juan del Sur, Col. Don Adolfo Guerra, an adult 50 years of age, ariculturalist and resident of Potosi, it being said that the said captain openly disobeyed the said governor by not delivering up to him Don José Dolores Gámez, G., who passed by San Juan del Sur on board of the Honduras the 20th ultimo, which delivery was demanded by order of the supreme government; and,
Considering, that to constitute the crime of disrespect according to paragraph 5 of article 177 of the penal code, it is necessary that there should be open resistance or disobedience to the authority, which circumstances do not appear clearly shown in the present case, because if indeed it be true that Capt. James McCrae did not deliver Senor José Dolores Gámez, G., whose delivery was demanded verbally by the comandante of the port of San Juan del Sur, it is also true that such obligation on the part of the said captain did not exist, or at least is doubtful, and still more so in the form in which the delivery of the said Señor Gámez was demanded, since, although the ship from which such delivery was demanded is a merchant ship, and ships of this class, according to the general principles of international law, are subject to the local jurisdiction, this subjection is not absolute according to those same principles, but limited to crimes, as well as to offenses falling within the jurisdiction of the police and committed on board of said ship.
Consering, that if indeed it be true that Señor Gámez, when his delivery was demanded of the captain of the Honduras by the comandante of the port of San Juan del Sur, was in Nicaraguan waters, so also it is true that when the said Gámez took passage in that steamer it was from one of the ports of the other republics of Central America, and that this circumstance renders still more doubtful the obligation that the captain was under to deliver him up, because, when certain cases have arisen analogous to the one under consideration among nations more civilized than our own, it has been alleged, as a reason to justify the delivery, that both the embarking of the passenger, as well as his delivery, must be made in national waters. Considering, that the said Señor Gámez is not accused of common crimes, but of political offenses according to the decree of the 9th of September of last year, which appears at pages 9 and 10 of the papers in this suit, and that it is a doctrine universally accepted in the works of writers on international law that if indeed merchant vessels are subject to the local jurisdiction as regards persons accused of common crimes, they are always exempt from that jurisdiction as regards those accused of political offenses, all of which relieve the captain from the obligation of making the delivery demanded of him.
Considering, that if for the extradition, from places which enjoy extraterritoriality, of those accused of common crimes, there are always required more formali. ties than that of a simple verbal order, notwithstanding that, as to this class of accused persons, governments have not presented much difficulty in stipulating their delivery, and that, as previously said, Señor Gámez is not a person accused of common crimes.
Considering, that if the disrespect charged is considered to have been shown because Capt. James McCrae did not come on shore at the demand for his presence there by the comandante of the port-in this demand that functionary did not express the object for which he required the captain's presence, and this circumstance excused the captain from appearing, since no person can be required to appear before the authorities without some justifiable canse, and at the same time stating it.
Considering, that the circumstance of the steamer Honduras not having remained in port the twenty-four hours which the governor required of Capt. McCrae, does not constitute a crime or offense, but only furnishes ground for a civil action, resulting from the violation of a contract, provided such violation be committed; and all this being certain, as it is, the crime of disrespect imputed to the captain of the steamer Honduras, James McCrae, was never committed.
In view of these considerations, therefore, and in accordance with the doctrines of Don Andres Bello, expressed in his "Principios de Derecho Internacional," chapter 4, No. 8, pages 66 and 67; the views of Don Carlos Calvo, given in his “Derecho Internacional, teórico y práctico de Europa y América," first part, chapter 5, paragraph 200, pages 314 to 317; and in view of the terms of article IV of the constitution of the Republic, article 177, paragraph 5 of the penal code, and article 186, first paragraph, of the code of criminal procedure,
I now decide, that there has been committed no crime of disrespect for which the captain of the steamer Honduras, James McCrae, has been tried, and in consequence I