States, who had retired months before the events which delivered Asuncion into the possession of the allies.

Furthermore, it did not appear natural, as the Brazilian general observed, that he should fail to take with him the archives of the legation, or to confide them to the care of the consular agents residing at Asuncion. And the circumstance of the American minister having occupied the house in reference was not of itself sufficient to determine the true origin of the deposits alluded to.

It may be added that with the withdrawal of Mr. Washburn from Paraguay, the privileges enjoyed by his residence ceased. "From the moment a public minister," says H. Wheaton, Elements International Law, compiled by Dana, section 224, “ enters the territory of the State to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an entire exemption from the local jurisdictions, both civil and criminal." These weighty considerations, as well as the want of authority of Mr. Kirkland, gave rise to the refusal of the Brazilian general to deliver to that commander the articles found in the house which Mr. Washburn had occupied.

But, in the same dispatch in which the Brazilian general conveyed this refusal to ' Mr. Kirkland, he declared that the restoration should be made as soon as it should be proved that the articles referred to belonged to Mr. Washburn or to persons who had not served the cause of the enemy.

In taking possession of them, Brazilian authority had no other object than to place them in safety that they might be delivered in proper time to the legitimate owners. Of this purpose irrefragable testimony is borne by the fact that large sums of money were scrupulously delivered to the provisional government of Paraguay, which under constitutional right might have been considered as prize to the victor. The imperial government has therefore resolved, in accordance with its previous action, to deliver to the Government of the United States all the articles found at the house in which Mr. Washburn had resided, without making any distinction between those which belonged to American citizens and which belonged to Paraguayans. This resolution does away with the necessity of any discussion as to the analogy between enemy's property deposited at the aforesaid house, and that which may be found on board a neutral vessel at sea. As a consequence of the said resolution, I shall ask the war department to issue the necessary order to deliver to the persons designated by the senhor chargé d'affaires, the articles taken possession of by the Brazilian military authorities which were found in the house, at the city of Asuncion, occupied by the American minister. The delivery will be made in conformity with the reports made upon the occasion of the taking possession of the property. I avail myself of the occasion to renew to Mr. Wright the assurances of my very distinguished consideration.

MANOEL FRANCISCO CORREIA.

No. 2.

Mr. Wright to Mr. Correia.

LEGATION OF THE UNITED STATES,
Rio de Janeiro, June 3, 1871.

The undersigned, acting chargé d'affaires of the United States, has the honor to acknowledge the receipt of the note addressed to him by his excellency Mr. Manoel Francisco Correia, under date of the 30th May, in reply to his note of the 4th of the same month, in reference to certain property of Paraguayans, of the Government of the United States, and of Mr. John A. Duheld and Mr. Washburn, alleged to have been seized as booty by soldiers in the service of the empire of Brazil, upon the occupation by them of the city of Asuncion. His excellency refers, in the first place, to a demand made by Commander Kirkland, of the United States steamer Wasp, upon the commander-in-chief of the Brazilian forces operating in Paraguay, Marshal Guilherme Xavier de Souya, for the delivery to him of the property which had been seized at the United States legation, and observes, citing Marshal Souya's dispatch of the Sth March, in reply to Cominander Kirkland, that the Marshal, after stating that he could not admit the claim of the commander of the Wasp, as this was a matter which belonged to the governments and their diplomatic agents, sets forth the motives which obliged the Brazilian military authorities to take possession of the property found in the house No. 95 Justice street, where it was stated Mr. Washburn had lived. This statement of Marshal Sonya, his excellency considers indispensable to his reply, and consequently transcribes it. From this statement it appears that Asuncion was converted by General Lopez into a "place forte," who, at the same time, obliged the inhabitants, natives and foreigners, to retire to the interior, taking with them whatever they could carry; that many months after this forced emigration, and when the city was abandoned even by the Paraguyan forces which had garrisoned it, the allied

armies, victorious in various battles in December, entered it; that it is true that the Brazilian forces were the first that entered, and it is also true that they found many houses open and others unroofed; that this took place on the 1st January at night; that the first care of the Brazilian Colonel Hermes Ernesto da Fonseca, commander of the brigade which preceded by a few days the body of the allied armies which marched by land, was to cover the interior lines of the city, availing himself of the entrenchments of the enemy, to distribute patrols for the policing of the city, and to place guards in those houses which bore the shields of the French and Italian consulates, as well as in other buildings where he could see or might presume that they contained objects of value; that one of the houses in which the latter precaution was taken was that of No. 95 Justice street, where, it is said, the ex-minister of the United States had lived.

His excellency continues: "The motive of the precaution taken by the Brazilian military authority being known, it is proper to state the manner in which the articles found in the said house were taken possession of," and for this purpose quotes further from the statement of Marshal Sonya, as follows: The articles found in this house were inventoried and placed in security by a commission of officers from the military and civil departments of the Brazilian army, named for this purpose by Marshal Marquis, of Caxias, all of which appears from the respective reports made in the most precise, authentic, and trustworthy manner.

His excellency next observes that these reports were published at pages 107 to 109 of the report of the department of foreign affairs for the year 1869, and that in them is stated the amount of jewels and other articles found at the said house; that some furniture was also found, and a box fastened with screws, which were already apparently injured, having on the top a label which stated that it contained the archives of the American legation; that neither externally nor internally did the said house indicate that it had been the habitation of the minister of the United States, who had retired months before the events which delivered Asuncion into the possession of the allies; that furthermore, as Marshal Souya observed, it did not appear natural that the minister should fail to take with him the archives of the legation, or to confide them to the care of one of the consular agents residing at Asuncion, and that the circumstance of the American minister having occupied the house in reference was not of itself sufficient to determine the true origin of the deposits alluded to. "It may be added," says his excellency, "that with the withdrawal of Mr. Washburn from Paraguay the privileges enjoyed by his residence ceased." "From the moment a public ininister," says H. Wheaton, (Elements of International Law compiled by Dana, section 224.) "enters the territory of the state to which he is sent, during the time of his residence and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction, both civil and criminal. These weighty considerations, as well as the want of authority of Commander Kirkland," continues his excellency, "gave rise to the refusal of the Brazilian general to deliver to that commander the articles found in the house which Mr. Washburn had occupied; but that in the same dispatch in which the Brazilian general conveyed this refusal to Commander Kirkland, he declared that the restoration should be made as soon as it should be proved that the articles referred to belonged to Mr. Washburn or to persons who had not served the cause of the enemy; and that, in taking possession of them, the Brazilian authority had no other object than to place them in safety, that they might be delivered, in proper time, to the legitimate owners, of which purpose irrefragable testimony is borne by the fact that large sums of money were scrupulously delivered to the provisional government of Paraguay, which, under constitutional right, might have been considered as prize to the victor.""

His excellency concludes by informing the undersigned that the imperial government has resolved, in accordance with its previous action, to deliver to the Government of the United States all the articles found at the house in which Mr. Washburn had resided, without distinction between those which belonged to Americans and those which belonged to Paraguayans; that this resolution does away with the necessity of any discussion as to the analogy between enemy's property deposited at the aforesaid honse, and that which may be found on board a neutral vessel at sea; and that, as a consequence of this resolution, his excellency would ask the War Department to issue the necessary orders to deliver to the person designated by the undersigned the articles taken possession of by the Brazilian military authorities, and which were found in the house, at the city of Asuncion, occupied by the American legation, which delivery will be made in conformity with the reports or schedules made upon the occasion of the taking possession of the property. This, the undersigned believes, is a clear résumé of his excellency's note, to which he has the honor to reply.

In justification of the demand addressed by Commander Kirkland to Marshal Sonya, the undersigned would state that it is a sanctioned practice under his government that the commanders of national ships, where the interests of their country may seem to require it, and they may find no diplomatic or consular representative of their government present, may exercise consular or even quasi-diplomatic functions.

Touching the observation of Marshal Souya, that it did not appear natural that Mr.

Washburn should have failed to take the archives of the legation away with him, or to confide them to the care of one of the consular agents residing at Asuncion, the undersigned begs to say that Mr. Washburn asserts that he delivered the keys of the house he had occupied to the Italian consul, Mr. Lorenzo Chapperon; but even had he not done this much there would have been nothing unnatural in the omission, nor in his not removing the archives, for it must be remembered, and this can scarcely have been unknown to Marshal Souya, that this American minister, Mr. Washburn, was flying, as it were for his life, from a savage who knew no law but his own brutal and malignant will and instincts. As regards the immunity to which the house that had been occupied by Mr. Washburn was entitled, and concerning which his excellency quotes from the distinguished Wheaton, it is doubtless true that diplomatic immunities and privileges, under a strict construction of international law, live only during the presence of the minister in the country to which he is sent; but these immunities, the undersigned is persuaded, would not be withheld, either by Brazil or any other civilization, from the residences of ministers which they might have been forced to abandon temporarily upon the bombardment or storming of a capital. And if so much may be assumed in regard to the residences of ministers in capitals taken by bombardment or storm, the undersigned respectfully submits that it was hardly expecting too much of Brazil that, when her forces entered, without opposition, into the capital of Paraguay, they should respect a house which was still technically the legation of the United States, containing its archives, and which the minister had been forced to abandon under circumstances notoriously involving great risk to his life. The undersigned entertains no doubt that his government will duly appreciate the magnanimity of the imperial government in having surrendered to the provisional government of Paraguay large sums of money to which, under the laws of war, it considered itself entitled, as well as the promptness with which it has responded to its appeal in behalf of those Paraguayans who had deposited property at the American legation at Asuncion.

The undersigned accepts the proposition of his excellency to deliver, to the person who may be designated by him, the property taken possession of by the military authorities of Brazil, at the legation of the United States at Asuncion, in conformity with the schedules or reports heretofore referred to, and requests that the delivery may be made to the Hon. John L. Stevens, minister resident of the United States to Paraguay, or to his representative. But the Government of the United States having been informed that Mr. Chapperon, the Italian consul heretofore referred to, asserted to Mr. Worthington, late minister of the United States to the Argentine Confederation, that at the time the city of Asuncion was entered by the Brazilian forces there was still remaining property at the American legation of the value of $200,000; that Mr. Worthington asserts that the Brazilian authorities at Asuncion acknowledged that they had taken $30,000, which they offered to pay over to him, but that he declined to receive it, for the reason that it was but a small part of what they had taken; that Mr. John A. Duffield, an American citizen, had property on deposit at the legation of the value of $15,000; that there was also at the legation a large box marked "archives of the legation of the United States," containing the archives of the former United States consulate at Asuncion, and a large number of books, a flag, letter-press, and other things belonging to the legation, many of the books having "U. S. legation" lettered on the backs of them, being found scattered about the town after the occupation; and that Mr. Washburn himself left personal property of his own at the legation to the value of $500 or $600, the undersigned must reserve to his government the right to take such further action in the matter as it may seem proper. The undersigned would still beg of his excellency, Mr. Manoel Francisco Correia, the favor that he will furnish him with two copies of the printed reports or schedules above referred to, and has the honor to renew to his excellency the assurances of his high respect and most distinguished consideration.

ROBERT CLINTON WRIGHT.

No. 185.]

No. 16.

Mr. Wright to Mr. Fish.

[Extract.]

LEGATION OF THE UNITED STATES,

Rio de Janeiro, July 13, 1871. (Received August 22, 1871.) SIR: In my dispatch No. 178, of the 10th ultimo, I had the honor to report to you what had occurred up to that date in reference to the

claim made upon this government in connection with the alleged sacking of the legation of the United States at Asuncion by troops in the service of the empire of Brazil.

*

I have since received no communication from this government on the subject. In my said dispatch I ventured the hope that you might judge it best to take no further action in this matter * until I should be able to send you the report of the Brazilian minister of foreign affairs. This I have now the honor to do, under separate cover, as well as to transmit herewith a translation which I have made of an interesting memorandum presented by the minister of foreign affairs to the Italian minister.

*

I have, &c.,

ROBT. CLINTON WRIGHT.

Memorandum accompanying the note of Mr. Manoel Francisco Correia, minister of foreign affairs, to the Italian minister, dated 11th of May, 1871.

[Translation.]

Baron Cavalchini, envoy extraordinary and minister plenipotentiary of His Majesty the King of Italy, at a conference on the 19th of April, 1869, stated, by order of his government, that his government had received from Mr. Chapperon, consul in Paraguay, a report upon the entry of the Brazilian forces into Asuncion and Luque, and consequent outrages embracing the sack of his houses and the consulate itself, and damages to many Italian subjects. Mr. Cavalchini added that his government was obliged to give the greatest attention to this matter, but that it awaited a second report from Mr. Chapperon that it might again address itself to that of Brazil. In a Lote of the 1st of June, Mr. Cavalchini observed that from the documents annexed to the report of this department in the said year 1869, it is seen that the complaints he had presented at the conference of the 19th of April were not devoid of foundation, as in fact Asuncion and Luque had been sacked. In the first of these cities the Italian consulate was sacked on the 5th of January, notwithstanding it had been occupied by the Brazilian army since the 1st, and in the second the event occurred also on the 5th, upon the entry of a force commanded by Colonel Vasco Alves. Finally, with his note of the 6th of December, Mr. Cavalchini presented, by order of his government, a statement of the damages which the royal consulate and some Italian subjects resident in Asuncion and Luque allege that they have suffered when those cities were occupied by the Brazilian troops.

Before presenting the information and evidence which nullify the complaints made, it is necessary to consider the arguments upon which they are based. Mr. Chapperon, as well in the documents accompanying the said note of the 1st of December, 1869, as in his dispatch of the 6th of February, of the same year, addressed to Marshal Guilherine Xavier de Souya, presents only, in support of his claim, his own assertions. In opposition to these appear statements of the general and other officers of the Brazilian army. In view of two contradictory statements, and without regard to the greater or lesser credit which each one may merit, it becomes necessary for the discovery of the truth to make a vigorous analysis of both. Mr. Chapperon states that the alleged sacking of his houses in Asuncion and Luque took place on the 5th of January.

Mr. de Cuverville, ex-consul of France in Paraguay, who occupied at Luque part of the house in which Mr. Chapperon resided, and who also made accusations against the Brazilian troops similar to those under consideration, disagreeing in an essential point, asserts that the alleged sacking of his house, at the said city, took place on the 6th, and that of his house in the capital on the 7th. In a memorandum of the 2d instant, the imperial government shows that the imputation of Mr. de Cuverville is unfounded, confronting it with notorious facts, and taking into consideration dates cited by the Brazilian generals.

The same system will be pursued in this memorandum. One cannot but feel surprise that he who mentions the date of the alleged sacking at Luque and in the capital should not state, at the same time, why he did not remain there, whither he retired, and what the motive of his not being present at those points in which he could have watched over his own interests and those which had been confided to him, and of his being where there was nothing to protect. "The absence of the consular agents from Asuncion, at a moment when it was about to be subjected to military rule," said the Duke of Caxias, in his reply of the 26th January, 1869, to Mr. de Cuverville, was

66

naturally a grave difficulty in the way of the regular and orderly occupation of the enemy's capital, because there was wanting even those who might point out the residences of the said agents, and in general the houses which, containing merchandise or objects of value, might demand special protection."

Mr. Chapperon knew, and argues therefrom, that the Brazilian general, as soon as he entered the place, began to police it, posting guards at certain houses, and taking other measures for the protection of life and property. Nothing more natural, therefore, than that Mr. Chapperon, consul of a friendly nation, should seek military authority, point out his own residence and those of his fellow-countrymen, asking such measures as he might deem best adapted for the protection of those habitations. Thus proceeding, Mr. Chapperon would have maintained the strict neutrality of his government, and, at the same time, would have fulfilled his duty in watching over Italian interests. But that agent only appeared when he thought it opportune to accuse the Braziliau troops of having sacked his residences. And this grave accusation rests alone upon the assertion of the claimant, who did not take a single step for the protection of the interests under his charge. And the responsibility of the Brazilian army for the alleged sacking is deduced precisely from the facts of its generals and officers, immediately upon entering Asuncion, having taken all the precautions humanly possible to protect the houses where it was supposed there might be objects of value. How could the Brazilian chiefs know which were the houses of the consular agents, and of the subjects of neutral nations, and those which contained objects of value and of commerce? In the entire absence of information from the parties interested, or from any other source, the military authority, when exploring the place, had to post sentinels, not at the houses where they knew articles of value existed, but at those which it seemed might contain them. Of course, under such circumstances, the precautions taken could not be complete, above all considering that the Brazilian army entered a city which was entirely unknown to it, and where no one was to be found to furnish the indispensable information needed to enlighten it as to the protection of neutral property. It was thus arguing, that Baron Cotegipe, in the said conference on the 19th of April, 1869, repelled the responsibility imputed to the Brazilian troops for the alleged sacking, whether this occurred before or after the occupation of the Paraguayan capital. Neither the belligerent who occupies a "place forte "nor he who abandons it to another belligerent can be responsible for the losses which may be suffered by the subjects of neutral nations, during the interval which intervenes between the retiring of one and the regular establishment of the other. It can be understood that during this interval the place may remain at the mercy of unscrupulous adventurers. This was precisely what occurred in Asuncion, abandoned by the Paraguayans a long time before the Brazilian troops entered it. When one of the belligerents occupies any "place forte," or city which may be under a proper administration, little inconvenience can arise from this fact so long as the principles of modern international law shall be observed. But if the occupant, as in the present case, finds everything disorganized and does not meet any one who can enlighten him or furnish the information necessary under such circumstances, irregularities must occur, which will be repeated at all times, in all countries, in all wars, the same causes being present. The Brazilian army cannot, therefore, be responsible for the criminal or reprehensible acts perpetrated whilst it did not control the place, or whilst, after having entered it, it was not possible for the Brazilian generals and officers to carry into effect the measures which they considered indispensable. The first care of the Brazilian generals upon entering Asuncion was to take measures for the protection of property.

It is therefore strange that this worthy procedure, in place of praise, should provoke accusations that these generals should not have prevented depredations committed without their knowledge, and which, moreover, occurred, as everything would induce the belief, before the army had occupied the capital and the city of Luque. He who, in a city, in a normal condition, charges himself with the safe-keeping or deposit of certain property, does not hold the local administration responsible, if by chance such property shall be stolen, he has rather to prove before the tribunals that there was no want of due care on his part, without which he is not relieved of responsibility for the loss of the property, even in the case of vis major, "Depositarius omnis qui dicit se rem amicisse, probare id debit." Doneau upon law, 7th Cod. Deposité. Such is also the doctrine laid down in note No. 5 to the art. 1845 of the Italian civil code, with notes by Vincenzo Cattaneo, vol. 2, page 1451. The alleged sacking might have been one of the accidents of vis major, of which the cited article 1845 treats; but inquiry must be made if the depositary took measures to guard what was confided to his safekeeping, or if he abandoned without just cause the places where the deposits existed. In a dispatch of the 12th February, 1869, published at page 98 of the report of this department of the same year, Colonel José Pereira de Silva, jr., says: "After our battalions had entered, I passed along some of the streets, and observed that in front of the houses which showed the arms of foreign consulates guards had been posted by order of Colonel Hermes Ernesto da Fonseca, who, on the night of the 1st January, had landed at this port, and asking why they were there, the respective commanders replied that