Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Hassaurek to Mr. Seward.
Sir: I have the honor to transmit herewith, marked A, to I, inclusive, copies of my additional correspondence with the minister of foreign relations on the subject of the steamer Washington, and its ramifications. The paper marked E E contains a translation of the preliminary decision of the presiding judge [Page 448] of the supreme court, given on the 14th ultimo, and not in September, as I erroneously reported in my despatch No. 184.
I do not see any prospect yet of effecting a satisfactory settlement of the case, unless the decision of the court of last resort should be favorable to the claimants. This, however, can hardly be expected in a country without an independent judiciary. * * * * * * * * *
With assurances of profound respect and distinguished consideration, I have the honor to remain your most obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
A.
Mr. Hassaurek to Mr. Bustamente.
The undersigned, &c., &c., &c., takes the liberty of reminding your excellency that on the 15th ultimo he addressed two notes to Mr. Pablo Herrera, minister of exterior relations, to which no answer has as yet been received at this legation. As the subjects of these notes are of the greatest importance to the undersigned, and to the continuance of the friendly relations hitherto existing between the two countries, the undersigned must request your excellency for an immediate answer, and, in the mean time, has the honor to remain, &c., &c.,
His Excellency Manuel Bustamente, Minister of Exterior Relations, Quito.
B.
Mr. Bustamente to Mr. Hassaurek.
The undersigned, minister of exterior relations of Ecuador, has the honor to address himself to his excellency the minister resident of the United States of America, acknowledging the receipt of his excellency’s estimable note of 1st instant, in which his excellency asks for an answer to two notes directed by his excellency to Mr. Pablo Herrera, then minister of exterior relations, on the 15th ultimo.
The undersigned will have the pleasure of answering, by next mail, the one of said communications which refers to the case of the steamer Washington; but with reference to the other the undersigned takes the liberty of representing to his excellency that, as it is an answer to a note directed to his excellency by my predecessor on the 1st of September last, the undersigned has not considered it his duty specially to reply to the same. It affords, however, great pleasure to the undersigned to assure his excellency the minister resident of the United States of America that the government of the undersigned will not fail to avail itself of every possible means to preserve and cultivate more and more every day (mas i mas cada dia) the friendly relations subsisting between Ecuador and the great republic of the United States of America.
The undersigned reiterates, &c., &c., &c.
C.
Mr. Hassaurek to Mr. Bustamente.
The undersigned, &c., &c., has the honor to acknowledge the receipt of your excellency’s communication of the 18th instant, informing the undersigned that by next mail your excellency would answer the one of his two notes of the 15th ultimo which refers to the Wash [Page 449] ington case, while your excellency did not deem it necessary to reply to his other note of the same date, because it was merely an answer to Mr. Pablo Herrera’s note of the 1st ultimo, or rather of August 30. The note, however, to which your excellency has kindly promised a reply, is likewise an answer to a note of Mr. Pablo Herrera, dated September 1 or August 30. Hence, why your excellency should reply to the one and not to the other, the two being based on entirely similar antecedents, the undersigned is unable to comprehend. The history of the note which your excellency has omitted to answer is briefly as follows: In No. 58 of the Correo del Ecuador, a newspaper published at the expense, edited under the control, and distributed under the direction of the former administration, a certain article appeared containing offensive references to the undersigned, who immediately applied to your excellency’s predecessor for an explanation. Mr. Pablo Herrera, while endeavoring to give satisfaction to the undersigned, furnished him with an additional cause of complaint by adopting and indorsing a paragraph published in No. 59 of the Correo del Ecuador, which, notwithstanding a few apparently flattering phrases, was disrespectful and offensive to the representative of the United States. On re-reading the note of the undersigned of the 15th ultimo, your excellency will find that the terms extemporaneo and incalificable, as applied in connection with the official proceedings of the undersigned to a claim which the undersigned, being convinced of its justice, has deemed it his duty to present and to insist upon, were such as to compel the undersigned to remonstrate and to demand a retraction. The undersigned must, therefore, insist either upon a withdrawal by your excellency of Mr. Pablo Herrera’s note or on an expunction of the objectionable quotation and indorsement, and also on a declaration by your excellency that the paragraphs in Nos. 58 and 59 of the Correo, referring to the undersigned, were unauthorized, and are disapproved by the Ecuadorian government.
Assuring your excellency of his profound respect, &c., &c.
His Excellency Manuel Bustamente, &c., &c., Quito.
D.
Mr. Hassaurek to Mr. Buetamente.
The undersigned, &c., &c., begs leave to call the attention of your excellency to the correspondence between the consul of the United States at this place and the governor of the province with reference to the wrongful employment of the steamer Washington by and on account of the government without a sentence of condemnation, and without authority. by the tribunal before which the case is pending. The undersigned is sorry to say that such a proceeding is arbitrary and illegal, and must appear to him as an additional link in the long chain of irregularities and wrongs committed in the Washington case by your excellency’s predecessor, and which the undersigned hopes your excellency, upon reflection, and after an unprejudiced examination of the case, will disapprove. In the mean time the undersigned considers it his duty to protest against the use of the Washington by and for the benefit of the government, and before a final disposition of the case, and to hold the Ecuadorian government responsible for all the damages accruing therefrom to the owners.
Availing himself, &c., &c.
His Excellency Manuel Bustamente, &c., &c., Quito.
E.
Mr. Bustamente to Mr. Hassaurek.
As your excellency’s note of the 12th of September refers to an answer to a note of this department, dated August 30, with reference to the retention of the steamer Washington by the government during the pendency of an admiralty proceeding against her in the supreme tribunal of this republic, to the decision of which the case has been submitted, this department awaited the judgment of that court for the purpose of transmitting it to your excellency. That judgment has since been pronounced in the first instance and notified to the attorney of the company which claims the vessel; and I have the honor herewith to enclose to your excellency a certified copy of said decision, declaring the said steamer Washington a lawful prize to the government.
The enlightened and righteous judgment of your excellency will find in the document herewith transmitted the solid and incontrovertible reasons on which said decision is founded, [Page 450] the impartiality by which it is characterized, based on a truthful statement of the facts, and on a luminous application of the principles of international and maritime law, recognized in identical cases all over the world.
As soon as the second “sentence,”* of which the cause admits under the law organizing the judiciary, shall have been communicated to this department, I shall transmit a copy of it to your excellency.
I hasten to reiterate to your excellency, &c., &c.
His Excellency the Minister Resident of the United States of America.
Document referred to in paper E.—Decision of the presiding judge.
Seen: From their merit it appears that Matthew P. Game, president of the Guayas Steam Navigation Company, appointed on his own responsibility his son, Francis Game, captain of the steamer Washington, although said Francis Game, when captain of the steamer Bolivar last year, had voluntarily surrendered that vessel to the same revolutionistst that were defeated at Jambeli; that said captain, always maintaining a secret understanding with those conspirators, had undertaken to deliver to them the steamer Washington on her return trip from Bodegas, in consideration of $10,000 to be paid to him, he having received $1,000 on account; that on the 31st of May last, in accordance with said arrangement, and after the signals previously agreed upon had been given, said Francis Game waited off the island of Guare for John Marcos and two canoes filled with armed men under his command, and receiving them on board as friends, rejoiced with them over his perfidy, and continued his trip to Guayaquil; that at 9 o’clock of the same night, and before having arrived at Guayaquil, he landed most of the passengers, taking all the cargo with him; that availing himself of the immunity which said steamer Washington enjoyed for the navigation of the river as a merchant vessel, he took her alongside the war steamer Guayas, which his party boarded and took by surprise, treacherously killing her commander and committing other excesses; that subsequently they proceeded to the coast of Peru, where the revolutionists awaited them, and with the aforesaid and other vessels and men they had been able to unite, returned to Ecuador and overpowered the small garrison of Santa Rosas; that when their squadron approached Guayaquil, the President of the republic, in person, and with but one steamer, armed in haste, went out to meet them, attacked them valiantly and heroically, and obtained a splendid victory, in consequence of which triumph all the vessels of the hostile squadron, including the steamer Washington, were captured and brought into the port of Guayaquil, the steamer Guayas having sunk a quarter of an hour after her capture, owing to the injuries received during the battle. And considering:
1st. That the mere fact that the steamer Washington, armed with four pieces of artillery, was one of the vessels which composed the enemy’s squadron, and was taken after the battle, would in itself be sufficient to declare her a good prize in conformity with the Spanish marine ordinances†. which prevail in this republic, and in conformity with what international law prescribes, as among other publicists will be found in Jeoffroy’s Maritime Law, Carlos Abreu’s Treatise on Prizes, the celebrated American Wheaton, Ortolan, Heffter, and the numerous authorities cited by the latter.
2d. That for the purpose of protecting the steamer Washington against confiscation it is alleged that, according to a decree issued on the 6th of June by the supreme government, she was taken and captured by the factionaries, (facciosos,) who had been declared pirates; and that consequently, having been recaptured by government forces, she should be restored to the said company in conformity to the treaties with the United States of North America, and to the provisions of Ecuadorian law; but as, instead of showing that said steamer Washington was taken by force, it has been fully and conclusively proved that the captain himself delivered her into the hands of the insurgents, which fact even the minister resident of the United States has found himself obliged to admit, the company cannot avail itself of the treaties and legal provisions it has invoked. Moreover, if the government did labor under a mistake after the first news of the occurrence, it immediately rectified its judgment on the receipt of further particulars; and in the circular note which was addressed on the same day to the diplomatic corps, the connivance and responsibility of the captain were expressly set forth.‡
[Page 451]3d. That articles 623 and 624 of the commercial code are inapplicable to the present case, because they refer only to ordinary cases of navigation and commerce, and not to those in which a vessel losing its neutrality and its character of a merchant ship is armed and compromitted in a war, because then she will be subject to all the consequences and to all the responsibility established in favor of the offended and victorious belligerent by the law of nations.
4th. That it being impossible to deny the criminal delivery of the steamer Washington by Francis Game, which was the cause of the taking of the Guayas, and enabled the revolutionists to arm a squadron and to inflict such evils and losses on the country, it is now attempted to save the vessel under the pretence that she was not the property of the captain, but of the company, thus offending against sound principle and those very treaties; because under said treaties all articles of contraband of war may lawfully be confiscated; that is to say, all articles directly used for the purpose of making war, even when introduced in private and friendly vessels, without admitting the excuse that said arms or ammunitions do not belong to the captain. How much more then will she be liable to confiscation when herself armed for war purposes, and having been the only cause of said war.
5th. That from what the record shows, and from what is matter of public notoriety, it appears that the revolutionists could never have taken possession of the steamer Washington if it had not been for the connivance and co-operation of the captain; but even supposing they had attempted to take the steamer by force, the fact that the captain cowardly surrendered and gave up the ship without trying to escape or to defend himself would make him personally responsible with everything he had for the value of the abandoned vessel, as provided by the aforesaid ordinances and laid down by Bacardi in his dictionary of Spanish maritime laws.
6th. That it is entirely erroneous to suppose that, in times of war, the responsibility of the captain cannot be extended to the ship; in proof of which it must be remembered that according to the publicists already named, and others too numerous to mention, a vessel may be condemned as a prize for the captain’s misconduct, not only in the case now in question, but also when, notified to lay to, the captain refuses to submit to a visit either by offering actual resistance or by preparing to do so; when the captain cannot prove his neutral character; when, he openly violates a blockade, having been notified by one of the belligerents, and carries articles which are contraband of war; when his declarations furnish grounds to suspect him of complicity with the enemy, and he cannot satisfactorily explain them; when the vessel has changed her course without being able to account for it properly; in fine, whenever the conduct of the captain manifests hostility, or whenever he has placed himself and vessel under the orders of the enemy. Even in the New American Cyclopaedia, published by George Ripley, in 1863, under the title Prizes, the following decisive rule is laid down: (There being no copy of the cyclopaedia at Guayaquil, I cannot furnish the original passage, and must, therefore, make a re-translation.) “When the captain of the vessel has committed an act which subjects the vessel to condemnation, the cargo is generally considered liable to condemnation also.”
7th. That if, in conformity with the opinion which has universally obtained now-a-days, even neutral ships which transport contraband of war may be lawfully confiscated, if said contraband constitutes three-fourths of the cargo of the vessel, together with the rest of the cargo, (Negrin, Derech, Suternacional, Maritimo,) how much more so when the ship itself has been armed and constituted part of the enemy’s squadron.
8th. That in times of war, the principal reason which justifies us in taking possession of what belongs to the enemy, is the necessity to obtain indemnification for the losses suffered by war; said necessity being so much the more apparent in this case as without the surrender of the Washington by her captain, the peace of the republic would have remained undisturbed, and all the expenses as well as the cruel and painful sacrifices of the war would have been avoided.
9th. That for the very reason that both the president of the company and the captain of the steamer are citizens of North America, with which republic Ecuador cultivates the friendliest relations, and that the said individuals were, therefore, entitled to the protection of this government in their business, they should have been more careful to spare this country the great and irreparable injuries inseparable from revolutions and civil wars; the former by not confiding the command of the steamer to one who had already committed a similar offence by giving up the steamer Bolivar to the rebels at Machala, for which offence he had been generously pardoned by the government; and the other by not committing the treasonable acts above referred to.
10th. That in addition to the foregoing reasons which indisputably justify the confiscation of the steamer Washington, public tranquillity and the security of the republic imperiously require this measure; because, otherwise, a dangerous example might be set, encouraging any other foreign vessel which may happen to be in our ports as a merchant vessel to hire herself out for a specified sum to the revolutionists in the expectation that in case of a failure, her owners might reclaim her on the ground that said employment had been without their connivance.
[Page 452]For these reasons and those contained in the Vistas of the attorney general, administering justice in the name of the republic, it is declared that the steamer Washington is a good prize, and, as such, belongs to the nation.
PEDRO JOSÉ DE ACTETA.
A true copy:
F.
Mr. Hassaurek to Mr. Bustamente.
The undersigned, &c., &c., has the honor to acknowledge the receipt of your excellency’s communication of the 25th ultimo, accompanied by a copy of the sentence pronounced by the court of the first instance in the case of the steamer Washington, declaring said vessel a lawful prize to the government.
If the sentence itself has surprised the undersigned on account of its utter disregard of all principles of good faith, reason, and justice, the undersigned is still more surprised to see that your excellency should have been able to discover in it “solid and incontrovertible reasons, impartiality, a truthful statement of the facts, and a proper application, of the rules of maritime law.”
The undersigned can only account for this singular approbation of a palpably erroneous and unjust decision, on the hypothesis that your excellency, being overwhelmed by the pressure of business inseparable from the organization of a new administration, has not yet had the time carefully and impartially to examine the correspondence of the undersigned with Mr. Pablo Herrera, and especially the notes which, on the 17th of July and 7th of August, the undersigned had the honor to direct to your excellency’s predecessor.
To these notes the undersigned now invites your excellency’s attention, in the expectation that, becoming satisfied of the self-evident justice of the claim they advocate, your excellency will not hesitate to direct the attorney general (fiscal) to dismiss the proceedings in the supreme court, and to issue an order for the restitution of the vessel to its rightful owners.
The undersigned would have said nothing with reference to the decision of which your excellency has had the kindness to send him a certified copy, if it had not been for your excellency’s indorsement of the same, and the undeserved praises with which your excellency has seen fit to honor it These praises compel the undersigned to reply to that part of your excellency’s note, lest his silence be construed into acquiescence. The undersigned is sorry to observe that the presiding judge of the supreme tribunal of this republic should have rendered a decision which can reflect no credit on his country, because it not only violates all recognized principles of law, but, moreover, incorrectly states the facts of the case, or rather assumes as facts mere assertions, of which the record contains no proofs. It alleges that “Francis Game, while in command of the steamer Bolivar last year, voluntarily surrendered her to the same revolutionary and treasonable party that was afterwards defeated at Jambeli, for which offence the said Game was generously pardoned by the government.”
The undersigned is astonished that a judge should have ventured such an assertion, no evidence whatever having been introduced by the government to sustain it. The facts are entirely different. Francis Game did not voluntarily or treasonably surrender the steamer Bolivar to the insurgents, but she was taken by force by two parties of armed men, who compelled the captain, notwithstanding his protests, to serve them. This state of facts was established by more than a dozen witnesses examined by order of the government at Guayaquil, where a criminal proceeding (sumario) had been instituted against him. The prosecuting attorney, (fiscal,) however, declared that as the alleged offence had been committed in another district, the defendant could not be tried in Guayaquil. An order was then made to transmit the papers to Machala, but, as the testimony was altogether favorable to Game, no further proceedings took place. For this reason it will be obvious to your excellency that Francis Game could not have been “generously pardoned” by the government, because a pardon presupposes an offence, and no man can be presumed guilty of an offence without having been properly convicted by a competent tribunal.
That the sentence in question violates the principles of natural law and universal justice as well as the municipal law of Ecuador, and especially articles 626 and 627 of the civil code, articles 623 and 624 of the commercial code, and article 10 of the treaty between the United States and Ecuador, it is useless to repeat. This part of the question has been fully argued in the notes of July 17th and August 7th, above referred to, and there is not a single proposition in Judge Acteta’s decision which the undersigned has not already refuted. The undersigned only avails himself of this opportunity to declare to your excellency that in case said decision should be confirmed in the second instance, the government of Ecuador will be held responsible, not only for the full value of the steamer Washington, but also for all the damages accruing to the owners from her unlawful detention and confiscation.
[Page 453]But desirous of avoiding the complications which would inevitably follow if your excellency’s government should persist in its present course, the undersigned still hopes that your excellency will, upon reflection and a thorough examination of the case, arrive at a different conclusion.
Reiterating to your excellency the assurances, &c., &c.
His Excellency Manuel Bustamente, &c., &c., Quito.
G.
Mr. Bustamente to Mr. Hassaurek.
The undersigned, minister of exterior relations of Ecuador, has the honor to communicate to his excellency the minister resident of the United States of America that he has received at this department the estimable note which was addressed to him by his excellency on the 25th October, asking for an answer to a communication directed to the predecessor of the undersigned, with reference to some expressions in No. 59 of the Correo del Ecuador.
The undersigned will have the pleasure of answering the note of his excellency the minister resident of the United States of America as soon as the urgent and complicated occupations of the undersigned, arising from the impending adjournment of Congress, will permit.
The undersigned reiterates to his excellency the assurances of his distinguished consideration.
His Excellency the Minister Resident of the United States.
GG.
Mr. Hassaurek to Mr. Bustamente.
The undersigned, &c., &c., has the honor to acknowledge the receipt of your excellency’s communication of the 1st instant, informing him of your excellency’s intention to answer his note of the 25th ultimo as soon as your excellency’s complicated and urgent occupations, arising from the approaching adjournment of Congress, will allow.
As the note which the undersigned had the honor of addressing to your excellency on the 25th ultimo refers to a matter of extreme delicacy and importance, the undersigned had hoped that it would be answered without delay, considering that this is not a new question, but has been pending for so long a time that the undersigned has been twice already under the unpleasant necessity of urging it upon your excellency’s attention.
He expects, however, from the honorable and straightforward disposition of your excellency, that it will now be brought to a satisfactory solution.
&c., &c., &c.,
His Excellency Manuel Bustamente, &c., &c., Quito.
H.
Mr. Bustamente to Mr. Hassaurek.
The governor of Guayaquil having represented to the government the bad condition of the steamer Washington, and the necessity of timely repairs before greater deterioration should take place, increasing the costs of repairs, as also the necessity of avoiding the danger of rust, it was ordered that said repairs should be made according to an estimate previously required. Once repaired and under an embargo to await the decision of the supreme court of the republic on the question of prize or no prize, it was natural to set her in motion, employing her to make trips to Bodegas for the purpose of carrying passengers and freight and of realizing some profits after paying the necessary employés.
[Page 454]I trust that your excellency’s penetration will appreciate this measure, which cannot be looked upon as wrongful or injurious to the parties in interest, considering that the steamer stationed in the river of Guayaquil would produce nothing; while her present proceeds are deposited in the treasury, to belong to the government if the sentence pronounced by the presiding judge of the supreme court should be confirmed in the second instance, or to be paid over to the claimants, after deducting the expenses, in case the decision should be in their favor.
I have thus had the pleasure of answering your excellency’s note of the 17th ultimo, and, after doing so, it affords me, &c., &c., &c., to remain, &c., &c.
His Excellency the Minister Resident of the United States.
I.
Mr. Hassaurek to Mr. Bustamente.
The undersigned, &c., &c., has the honor to acknowledge the receipt of your excellency’s communication of the 4th instant, in answer to his note of the 17th ultimo, protesting against the employment of the steamer Washington by and for the benefit of the government before the final decision of the question of ownership, now pending in the supreme court of the republic, and without any authority from that tribunal for such employment.
As your excellency’s observations do not change the aspect of the case, the undersigned merely begs leave to reiterate his protest, and to repeat to your excellency that, in case justice should be denied by the courts of the country to American citizens in cases where the government is the aggressor, they will look for protection to their own government, by which their rights will not be disregarded.
With expressions, &c., &c.,
His Excellency Manuel Bustamente, &c., &c., &c., Quito.
- A judgment is always called a “sentence” (sentencia) in Spanish.↩
- This is a mere assertion unworthy of a judge, because no evidence whatever had been introduced to sustain it. The record contains no proof of such an allegation, nor could any such proof be procured, as will appear from my note of November 1 to the minister for foreign affairs, a copy of which is herewith transmitted, marked—.—F. H.↩
- False. For the law of Spain on recaptures see Lawrence’s Wheaton, pages 661, 662.—F. H.↩