[782] *Mr. Fish, Secretary of State, to Mr. Roberts, Spanish minister.
Washington, November 30, 1869.
The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of a note dated 27th of November, which Mr. Roberts, envoy extraordinary and minister plenipotentiary of Spain, did him the honor to send to him on the 29th instant, in which Mr. Roberts informs the undersigned that in May last the Spanish government, represented by a commission of naval officers, made with Mr. Cornelius Delamater, a ship-builder and citizen of the United States, residing in New York, a contract, whereby the latter agreed to build, for the account of the Spanish government, thirty vessels of a certain class, designed exclusively for the coast service and not for long voyages, which are to be delivered to the chief of said commission at the beginning of the month of December next.
[783] Mr. Roberts proceeds to give certain very good reasons why the building of those vessels was ordered to be done in this country, and why the contract was made between a Spanish representative and an American citizen. He then states that he has seen with the greatest surprise in the newspapers of the 21th and 25th *instant, certain documents connected with the judicial order relative to these vessels, signed by Mr. Edwards Pierrepont, attorney of the southern district of New York. Mr. Roberts also indicates his impression of the purport or object of what he calls these “orders.”
The undersigned regrets that Mr. Roberts should experience “great surprise” at the institution of judicial proceedings, or at the form in which such proceedings are reduced to their practical operation. The undersigned takes leave to assure Mr. Roberts that the peaceful institution of judicial proceedings in this country is not the cause of alarm, whatever of surprise it may excite to those who have in no degree violated the laws of the land or invaded the rights of other persons, or who contemplate no such violation or invasion.
[784] Mr. Roberts remarks that there is no doubt that the continuation of these proceedings may render it impossible for Mr. Delamater duly to fulfill his contract with the Spanish government, and it results, moreover, that the intervention of the Government of the United States would prevent the Government which he has the honor to represent from taking due and lawful possession of its property, his intervention *would be the de facto cause of the annulment of the contract made by Spain with Mr. Delamater.
Mr. Roberts has not now to be informed that Peru has requested the Government of the United States, as a neutral exercising the right imposed by the law of nations, to order the detention of these vessels, and not to allow them to leave the waters of the United States on any pretext whatever, alleging that the republic of Peru is at war with Spain.
The undersigned takes leave respectfully to remind Mr. Roberts that the judicial proceedings now pending against Mr. Delamater’s vessels are of precisely the same nature and are conducted by the same official of the Government and before the same tribunal as were the proceedings instituted some time since, at the instigation of the Spanish government, against the steamship Meteor, alleged to have been intended for hostile service in the interest of the allied republics, including Peru, against Spain.
The object in the present instance is the same as in the former, to ascertain [Page 747] whether any violation is contemplated of the laws which the United States have enacted to prevent and to punish violations of the neutral obligations of this Government. The only difference is, that then Spain was apprehend*sive of a hostile proceeding against her by Peru, and now Peru alleges a like intent on the part-of Spain against her. [785]
Mr. Roberts further says that the undersigned is aware that Spain had already accepted the mediation of the United States for the recognition of a peace, meaning a peace with Peru. Mr. Roberts could not have furnished a more complete justification for the judicial proceedings which have been instituted; and if the fact that Mr. Roberts here cites shall prove the turning-point in the decision of the case submitted to the courts, it will establish at once the candor of Mr. Roberts in presenting this important fact, and the necessity for the intervention of the authorities to prevent the departure of a military increase of the naval force of one of the two powers needing the mediation of a third and neutral power to restore peace between it and the power that complains of an intended violation of the neutrality of the government whose offices are invoked, and which is employed as a mediator. The undersigned, therefore, specially notes Mr. Roberts’s admission of a condition of relations existing between Spain and Peru which required a restoration of peace.
[786] While these relations continue, it belongs to other powers who are neutral to regulate their conduct toward the parties according to the existing conditions *of these relations.
Mr. Goñi, a predecessor of Mr. Roberts, in a letter dated July 29, 1868, claimed that the United States combined the character of neutral with that of mediator, and thereupon founded a “double right” to enforce neutrality and prevent the departure of vessels alleged to be destined for service in the Peruvian navy. May not Peru adopt Mr. Goñi’s language, and advance the same “double right” to a demand for an entire neutrality?
Under this view presented by the representative of Spain, it becomes the United States to consider whether they are not bound to recognize a condition under which neither party has the right within its territory to be bettered or strengthened—quo-validia fiat.
[787] Mr. Roberts devotes a considerable part of his note (the undersigned doubts not very accurately, but he has not tested the accuracy of the citation) to the presentation of extracts from certain correspondence of Mr. Garcia y Garcia, a former minister from Peru to this Government. He also cites, not quite accurately, however, an extract from a letter written by Mr. Seward, a predecessor of the undersigned, in July, 1868, which certainly does not recognize a situation of peace then existing between Spain and Peru, but wherein Mr. Seward expressly declares that the occasion had not arrived *when it was necessary to decide the grave question whether the war between Spain and Peru had been brought to an end or not, and adds that such decision would be made only after having carefully examined all the pertinent facts within its reach, and after having given due consideration to such representations as shall have been made by the several parties interested. Mr. Roberts does not assert or claim that such decision has been made, or even that the representations of the several parties interested, without the consideration of which, the Spanish minister was fully advised, such decision would not be made, have been submitted. Mr. Roberts appears to have overlooked certain statements made by Señor Goñi, subsequent to the date of Mr. Seward’s note to which Mr. Roberts refers.
[Page 748]In a note of Señor Goñi in reply to Mr. Seward, the former says, “To say that a state of war does not exist, when, nevertheless, no proposition of peace has been accepted, is an affirmation equally gratuitous and new, which it is not necessary to contest.” The undersigned reminds Mr. Roberts that Peru claims that she has never accepted a proposition of peace.
[788] Mr. Goñi further says, “As to the facts alleged, no one of thes8 implies, even remotely, the cessation of war;” also, “that although Spain * * * has suspended active hostilities, she still finds her*self in a state of war;” also, “that the state of war and the state of peace between two nations, first of all, and beyond all, are facts which depend upon the will of the parties interested, it belonging to them to decide by common accord what is the state in which they find themselves, and what the character of their respective relations,” &c., &c.; “that the determination of the said state of war cannot be brought about except by the declaration of the interested belligerent parties.” These are the declarations of Spain, not of Peru nor of the United States.
The undersigned is not apprised of any “common accord,” or of any “declaration of the interested belligerent parties,” since the date of Mr. Goñi’s letter, which has determined the state of war claimed by Mr. Goñi to have existed at that time between Spain and Peru, or to have changed the relations between them. Spain cannot rightly object to the conclusions to which the argument of her distinguished representative inevitably leads.
[789] Under these circumstances the undersigned is constrained to assure Mr. Roberts that the judicial proceedings which have been instituted, in the spirit of entire and equal friendship to the governments of Spain and Peru, will be allowed to proceed. The United States will *maintain their position of neutrality, and have full confidence in the integrity and the capacity of the tribunal to which the case has been submitted. Should that tribunal decide that Mr. Delamater has entered into a contract in violation of the law of the land, and in derogation of the neutral obligations of the country, the vessels will be detained. Should it decide that the vessels may depart without, violation of the laws, or of the obligations of the nation, they will be allowed then to depart. If Mr. Delamater has entered into an illegal contract, although it be with the representative of Spain, an ancient ally and a present friend of the United States, it cannot be executed, however much this government may regret the disappointment of a friendly power.
Whether or not that contract is illegal is the question upon which the court is to decide.
The undersigned offers to Mr. Roberts renewed assurances of his highest consideration.
- HAMILTON FISH.
- Señor Don M. Lopez Roberts.