Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Hovey to Mr. Seward.
Sir: I have the honor to transmit herewith (inclosure No. 1) a copy and translation of an opinion given by the honorable M. T. Wreta, fiscal of the illustrious supreme court of Peru.
The duties of this office are similar to, but of more extensive jurisdiction than, those of the Attorney General of the United States, and his opinions and conclusions have like weight and authority. As many claims for aggravated injuries have been filed in this legation, (a part of which, with the proofs complete, have been forwarded to you heretofore for the action of the government,) and as the honorable fiscal has cited American authorities in the refusal of a French claim, of the same class as those I have referred to, I have deemed it to be my duty, and proper, under the circumstances, to protest, in the form of a “deduction,” against his very unjust and illegal conclusions, (inclosure No. 2.)
Without prompt action in this regard, I was fearful that the government of Peru might take some decisive action that might retard the [Page 878] payment of the claims of our countrymen. You will perceive that, in conformity with your dispatch No. 77, dated 21st February, 1868, I have made no diplomatic claims, but simply prepared the way for them in future, should the government of Peru fail to do justice without that unpleasant recourse.
While Americans stand foremost, at the present, with the Peruvian government, I regret to state that a large class of those who may be styled the “best society” in Peru entertain strong antipathies towards all foreigners.
The late magnanimous decree of President Melgarejo, of Bolivia, making all American’s, north and south, citizens of that republic, with full rights, on the simple registration of their intentions, can find no response in Peru. I trust that I have taken no position which will not meet with the entire approval of our government.
The sworn statements of the injured, with their proof, and the report of Grand Marshal La Fuente, late minister of the interior, clearly show that the remedy should come quickly from some source; and if the claims of our country men are not firmly and immediately supported by the government of the United States, I am fearful it never will come.
I am positively informed that the English, French, and Prussian chargés d’affaires have also sent protests to the minister of foreign affairs against the opinion of Dr. Wreta, to which I have referred, the subjects of each having suffered in the late outbreak.
I have the honor to be your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. G.
[Translation.]
Most Excellent Sir: The fiscal gives his opinion that “as Bernard Prieur has asked from your excellency the payment of $4,979, the value of goods robbed from his armory, situated in Baquijano street, No. 266, and gives as reasons that on the 6th of January last, during the mutiny of the people of this capital, his establishment was broken into, and he was left in utter want and misery”—founding upon these reasons, he considers his demand to be strictly just, and applies directly to your excellency without making the claim in a diplomatic channel as a French subject.
Although Prieur does not explain the manner in which the robbery was committed, you may read in the letter which he presents as proof, and which is written by the owner of the house in which his store is situated, Don Francisco Forcelledo, as follows: “On the 6th of January I was standing in the door of the house in which I reside, at the moment when the revolutionary movement took place, and I saw a disorderly troop of men of the lower classes breaking open the door of the store in which you have your armory, and who, after having penetrated therein, appropriated all the arms they could find.”
Society and the government always deplore the misfortunes that happen to natives and foreigners, and they protect equally the one and the other, in so much as may be within their power and the laws may permit, and condemn all violation of individual guarantees. An abstract examination of the events of the 6th of January, so far as regards political views, which lead to nothing in the present case, shows, that if at two o’clock on that day a mutiny among the soldiers of the barracks of San Augustin took place, followed by a popular rising in the streets, and that extended through the streets of Baquijano as far as the Callao railway station, the action of the authorities was so rapid and effective that in less than three hours the mob was dispersed, and the districts in which those occurrences took place were completely quieted. But during those few moments of strife many lives were sacrificed and, some crimes committed, which it was unable to foresee and impossible to prevent. Unfortunately, the situation of the armory of Prieur in one of the streets in which the riot took place served to excite the desire of the mob to take advantage of the opportunity to procure arms with which to resist the police, without there being a suspicion that there was a project [Page 879] to injure any particular person, much, less causing such damage to a foreigner in distinction to a native citizen.
In whatever manner the subtraction of the arms that belonged to Prieur was executed, it was always the crime of robbery committed by a crowd, accompanied by violence and house-breaking, which is provided for in 1st titulo, section 12, of the Penal Code. The corporal punishments laid down for those guilty of these crimes are to be applied, together with the restitution of the thing robbed, (article 371,) because such persons are both criminally and civilly responsible for their acts; and the civil responsibility comprehends, besides the restitution of the thing stolen, reparation for the injuries and indemnification for the losses, and is binding upon all of the delinquents, and falls upon their heirs in preference to all and every obligation posterior to the particular crime. (Articles 87, 92, adnfollowing. Penal Code.) But if, in conformity with the general ruling of section 1, lib. 1, del. C. de E. P., only those tribunals and judges established by the laws have the power to give a verdict as to such criminal and civil responsibility, for the reason that the administration of justice belongs exclusively to them. By the especial decision contained in the second part of the 92d article of the C. P., the judge and no other authority is competent to assign the proportionate amount which ought to be paid by each criminal for his civil responsibility, (without lessening his obligation as to being jointly responsible.)
Regulated by these decisions, Prieur ought to take advantage of his right, and not apply to your excellency, asking fiscal indemnification. If it is the law of nations that the utmost protection oVed to foreigners is to concede to them that which is conceded to natives, and administer to them strict justice as quickly and as impartially as to these, it is also that they ought not to complain, but be contented with being treated equally well with the natives; that they cannot pretend to any prerogatives in the proceedings, and that they are obliged to obey the law in so much as they are protected by it. Prieur, besides being a Frenchman, if he is protected in his person, property, rights, and actions, is not so protected in a distinct and privileged manner, but in the same as Peruvians themselves; and being, in the particular point, in the same condition as they according to article 3 of the treaty of December 10, 1861.
Although Prieur, to have recourse to your excellency, has viewed the robbery of his store in the light of an injury more or less proceeding from civil war, and committed by a multitude of people or a mob, the fiscal responsibility is in no respect compromised. In the republic, for natives and foreigners, the principle reigns, and has been solemnly promulgated, that the state is in no manner responsible for the payment of losses and damages occasioned by civil wars. They are accidents, misfortunes, public calamities for the persons upon whom they fall. So it was declared by the council of state in the vote with which the government agreed on the 11th September, 1834, and so it was declared in the supreme decree of the 9th of February, 1859.
The fiscal responsibility is founded upon another principle of universal justice, to wit: A government cannot be responsible when the acts that cause the injury are entirely independent of its will, and, when far from tolerating them, it tries to restrain them. And this principle, in these same words, was recognized and set down in the treaty between France and Venezuela in 1843.
In conformity with this principle, the minister of state, Mr. Rouher, denying before the French legislative body the charges made against him in the session of the 22d June, 1866, by Mr. Jules Favre, because he had not exacted effectively from the Russian government indemnification for the damages caused by a police agent to a dressmaker, Madame Masset, said: “In this little affair is involved a great international question; it is a fundamental rule in every country that the foreigner can have no more privilege than the native. I have never heard that the pecuniary responsibility of the government may be compromised by the crimes of its agents. Such responsibility has never been proclaimed in any place. In England, the minister, Lord Palmerston said, in the session of Parliament of 17th June, 1850:
“The honorable speaker (Lord Stanley) supposes that the government of the Queen has established as a principle to demand indemnity for every loss or damage suffered by English subjects in Greece or other countries, that result from tumults, riot, or similar causes. No, it is not possible to sustain that foreigners have the right, in every case, to expect indemnity from the government of the country in which they have suffered losses or injuries.”
In the session of the House of Commons on the 13th of June, 1865, the same Lord Palmerston answered to another charge concerning indemnifications. “That really the English subject, Mr. Taylor, had suffered considerable losses in consequence of the unqualified acts of the liberators of Sicily; but that the chief of the ministry thought, with the lawyers of the Crown, that the Italian government was not responsible for such outrages.”
The cabinet of St Petersburg, adhering completely to the principles avowed by that of Vienna, sustaining the refusal of the Duke of Tuscany to indemnify the losses suffered by the English during the pacification of Liorna, said, in the dispatch of the 2d of May, 1850, for the information of the English cabinet, “when an individual establishes [Page 880] himself in another than his native country, he accepts the possibility of all those dangers to which that country may be exposed. Should it be admitted as a precedent, that which England desires to establish with respect to Naples and Tuscany, it would result that British subjects in foreign countries would occupy exceptional positions, with very superior advantages to that enjoyed by the inhabitants of all other countries, and the situation of the government receiving them would be intolerable. The Emperor would see the necessity of examining and defining, in a very precise manner, the conditions under which he would concede to a British subject the privilege of residence and property-holding.
“The cause of Naples and Tuscany is that of all weak states, whose existence is only guaranteed through the maintenance of the tutelary principles which we have just cited.”
The cabinet of Washington, refusing the indemnities asked by those Spanish subjects whose houses were sacked by an unbridled mob on the 24th of August, 1851, said, in a dispatch of the 13th November, “in every country, at times, mobs of the lower classes get together, and everywhere at times popular violence breaks forth, and outrages the laws and tramples upon the rights of citizens and foreigners. In such cases, public faith and national honor exact that not only those outrages should be condemned, but also that the authors Or perpetrators should be punished, whenever it is possible to bring them to justice.
“The Spanish subjects who have come to this country to mingle with our citizens, have a right to the protection due to Americans. It may well be that the losses of the Spaniards are greatly to be regretted, but withal it is well known that many American citizens have suffered equal losses from the same cause, * * * * and the subjects of her Catholic Majesty have no motive for complaint, if they are protected by the same laws and tribunals as the native citizens.”
Many native citizens and foreigners have suffered immense losses in the United States, occasioned by the last civil war, and nevertheless the principle of fiscal non-responsibility has not been broken. Neither has it been less loyally respected there when it was favorable to other governments and not to American citizens. So it may be seen from the Attorney General holding that the United States should not exact indemnification from Spain or Chili for damages caused by the bombardment of Valparaiso, said: “The undersigned does not believe that the principle that those foreigners domiciled in belligerent countries ought to suffer the same as native citizens all the eventualities of the war has ever been seriously controverted oa denied in practice.”
Sustained by these reasons of universal justice and the common convenience of all states, this department has opposed every claim for illegal indemnity that has come to its knowledge. On account of all expressed in the foregoing, that which corresponds to the present case is to declare that the nation is not responsible for the payment solicited by Prieur, leaving intact his right to bring a demand in the form prescribed by the laws against whomsoever he may think proper, and that a cause shall be instituted for the robbery of the store and armory, so that the culpable parties may effectually suffer the responsibility, both civil and criminal, in all the severity prescribed by the law.
The President.
Mr. Hovey to Señor Barrenechea.
Sir: I was not a little surprised to see in the newspaper Comercio of the 14th instant, No. 9888, the official opinion of the honorable fiscal of the supreme court of Peru, Doctor Wreta, in regard to the claim of Bernard Prieur, a copy of which I have the honor to herewith inclose.
As the claim referred to was made by a subject of France, I should not, at this time, have addressed your excellency in relation to the claim of any citizen of the United States, now in this legation, against the republic of Peru; but the statements and false logic contained in the honorable fiscal’s report, coming, as they have, from such high authority, alarm me for the rights of my countrymen, for, if adopted in their broad extent by your excellency’s government, I am fearful that the worst of consequences may ensue to those whose claims are now in my hands.
I therefore, without waiting the action of my government, have the honor to make, informally, the following protest, or deductions to protect, as far as possible, the rights of all concerned.
The ability of the honorable fiscal is of the highest possible cast. He seems to be able to find a technical excuse for almost any supposable case, but can it be possible that any man or government can justify the conduct of those who perpetrated the outrages committed in Chiclayo and Lambayeque, described by Grand Marshal La Fuente [Page 881] in the following manner: “A very lamentable event, and one fraught with the most unhappy circumstances for agricultural interests has occurred at Lambayeque, and throws a gloom over the epoch through which we have passed.
“Between the proprietors of the estate of Vina and the neighboring population quarrels have been constantly taking place for some time past.
“These quarrels were brought to a climax by the triumph gained in Chielayo by the revolutionary party, and, for the moment, there was no authority at Lambayeque sufficiently powerful to cause private rights to be respected. The government immediately took measures to prevent a repetition of these occurrences, and Colonel Balta was sent to calm the excitement of the people in that section; this he did by means of his great influence, but it has been necessary to maintain in Lambayeque a force sufficient to guarantee those private rights which were so cruelly trampled upon.”—(Report of Grand Marshal La Fuenta, minister of the interior, to the Congress of 1868.)
The ingenuity of the honorable fiscal may be commended, but his conclusions will find no home in ethics, logic, sound policy, or the laws of nations. Indeed, in substance he ignores and denies all international claims made by domiciled citizens.
He says: “The cabinet of Washington refused to indemnify certain injuries inflicted upon Spanish subjects by an infuriated mob, in New Orleans, in 1851.”
I must remark, with great deference, that he is surely mistaken. Mr. Webster, the Secretary of Foreign Affairs, may have refused; but President Fillmore, on the 14th of June, 1852, in a special message to Congress, acknowledged these claims, and recommended their payment, which was done by virtue of an act of Congress passed August 31, 1852, which reads as follows:
“It is hereby appropriated to enable the President of the United States to make compensation to the Spanish consul and other subjects of Spain residing at New Orleans, and other subjects of Spain at Key West, for losses occasioned by violence in the year 1851, arising from intelligence recently received at those places of the execution of certain persons at Havana who had recently invaded the Island of Cuba, $25,000.”
When the honorable fiscal calls Mr. Webster, great as he was, “the cabinet of Washington,” I have clearly shown that he falls into an error. This same Daniel Webster claimed the Lobos Islands for the United States, yet both the President and Congress renounced the claim, and showed again the grave mistake he committed. We have many examples, in all ages and countries, that great men frequently commit not only errors but great blunders.
In the United State, which is not a centralized government like that of Peru, each town, county, or State is liable to the citizen for the damages caused to him by any mob force. Such town, county, or State are made by law corporate bodies, and can be sued in the courts of the country, and compelled to do justice. Thus the city of Louisville paid for injuries done by her mobs to the Catholics in 1858, the city of Cincinnati for damages caused by her negro riots, and the city of New York paid millions for the injuries proceeding from the draft riots which occurred during the late rebellion. Ample and complete protection to life and property is the absolute right of the citizen in every civilized nation. The government owes him this, because he, as a resident, pays to support the government. With us the doctrine is carried still further; and if a city, town, or county suffer bad roads, bad bridges, or any other nuisance to exist, and a person is injured thereby, he can bring suit and recover ample damages from the town, city, or State wherein he has been injured. This is the clear and undeniable law of the United States, and it is a perversion of logic to deny like liabilities here.
Let the distinctions I make be properly observed, and the conclusions I have drawn must inevitably follow.
The honorable fiscal further says: “Many native citizens and foreigners in the United States of America suffered immense losses occasioned by the late civil war, and, nevertheless, the principle of non-responsibility fiscal has not been broken, nor less loyally respected when it was favorable to other governments, and not to the American citizen.”
I will not stop to answer this statement in detail, but I can assure your excellency that millions of dollars have been paid to native and foreign citizens in the United States for the injuries done to person and property during the late conflict. The only refusals have been to disloyal men and to rebellious States. The riots in New York in 1863 were opposed to the war, and, in substance, favorable to the States in rebellion, yet that city alone paid millions of dollars for private injuries. As to those who committed treason in the United States, the argument of the honorable fiscal is wholly foreign to the subject. The Court of Claims at Washington is almost daily giving judgment for the very class of claims of which the honorable fiscal says “the non-responsibility fiscal has not been broken.”
As to the proof of these statements and payments, see acts of Congress, United States Statutes at Large, 1864, vol. xiii, pp. 148–381; acts 1865 and 1866, pp. 194–360–370; acts 1867, pp. 397–444. (The Annual American Encyclopedia for the year 1863, p. 816.)
I will now submit a few of the other facts and authorities bearing on this particular case, as adjudicated by the United States and other powers in Europe and America.
[Page 882]From the argument of his excellency Reverdy Johnson, now minister plenipotentiary of the United States in England, made by him as the attorney for Peru in the year 1828, I take the following extracts:
“You ask me if the United States have any claims upon the government of Peru for damages, or indemnity of any kind, for the seizure of the two vessels Georgiana and Lizzie Thompson.
“First, upon principle, irrespective of judicial or other authority, can such a claim be maintained? I am perfectly clear that it cannot, and for these, to me, very obvious and controlling reasons: Until there is a recognized change in the condition of a government, such government is responsible to foreign nations for all wrongs committed within its limits upon the persons or property of their citizens or subjects. This responsibility has more than once been asserted and enforced by the United States.
“It is no answer to such a demand that the defaulting government was willing, but unable, to afford the necessary protection. The duty to protect implies and involves the ability to protect. It is the fact, the failure to perform the duty, not the cause of the failure, that imposes the responsibility. Every government assumes upon itself the obligation to secure other governments, and their persons and property, against domestic wrongs, and is therefore responsible for all the consequences of such wrongs. If, however, there exists an insurrection or rebellion, so marked and long-continued as to probably result in general or permanent success, it is for other nations, upon their own responsibility, to decide for themselves whether they will consider the rebellious as an actual government, deal with it as such, and hold it as such to every national responsibility. Until this be done the original government is to be treated as the only government, its ‘foreign relations’ are to be considered as ‘undisturbed,’ and its ‘usual commercial relations’ with other nations continue as before.
“These principles are too obvious to be disputed, and they, indeed, being admitted by Mr. Secretary Cass in his letter of May 22, can there be a doubt that for any wrong perpetrated on an American citizen or his property, or upon the honor of the United States by the insurrectionary chief, Vivaneo, or by his orders, the rightful government of Peru would have been liable? If so, must it not be, is it not equally apparent, indeed is it not a consequence, that for an injury or wrong done to Peru by the United States or by her citizens under cover and through the instrumentality of the same insurrection, the United States cannot shelter themselves from the responsibility of the same insurrection?”
Mr. John Nelson, one of the greatest lawyers of the United States, and employed as attorney in this case with Mr. Johnson, by the Peruvian minister at Washington, expresses his entire concurrence with the above opinion.
Mr. J. S. Black, at that time the Attorney General of the United States, in his dictamen on the same case, fully concurs in the liability of the government of Peru to pay for injuries to private citizens.
Thus it will be seen that the eminent attorneys on both sides of this question openly and clearly admitted the obligation of a government to pay for injuries inflicted on the rights of foreign citizens.
One or two cases may more fully elucidate this point:
In the case of the United States against Palmer, (3 Wheaton, 643,) it was decided that “if the government of the Union remains neutral, but recognizes the existence of civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy.”
Let me remark that my government did not, through its representative here, nor by any expression of its officers, acknowledge the existence of civil war in this country during the time of the unhappy occurrences to which I have alluded, under the late revolution of General Pedro Diez Canseco, and which gave rise to the accompanying claims. Hence the resident citizens of the United States in Peru are entitled to regard this question as though no civil war had at that time existed.
Lord Palmerston’s declaration before Parliament fully answers the honorable fiscal’s argument in relation to the recent bombardment of Valparaiso. The noble lord says: “It is, undoubtedly, a principle of international law, that when one government deems it right to exercise hostilities against the territory of another power, the subjects and citizens of third powers, who may happen to be resident in the place attacked, have no claim whatever upon the government which, in the exercise of its national rights, commits these acts of hostility. For instance, it was deemed necessary for us to destroy Sebastopol. There may have been in that town many Germans, Italians, Portuguese, and Americans, but none of these parties had any ground upon which to claim from the English and French governments compensation for losses sustained in consequence of these hostilities. Those who go and settle in a foreign country must abide the chances that may befall that country, and if they have any claim, it must be upon the government of the country in which they reside; but they certainly can have no claim whatever upon the government which thinks right to commit acts of hostility against that state. Therefore we were advised, and I think rightly, that British subjects in Greytown had no ground upon which they could call upon the government of this country to demand [Page 883] from the government of the United States compensation for injuries which they received in the attack upon that town.”
And I ask if the honorable fiscal’s argument is fair or proper when applied to a civil war which did not obtain the recognition of any foreign power?
To show the importance attached by the United States to claims of similar character, and to the delay in the non-payment of the same, held justly by her citizens against foreign governments, I cite the message of President Polk, dated December 2, 1845, in which our war with Mexico is predicated on the reprehensible conduct of that country in this regard: “But though Mexico cannot complain of the United States on account of the annexation of Texas, it is to be regretted that serious causes of misunderstanding between the two governments still exist, growing out of unredressed injuries inflicted by the Mexican authorities and people on the persons and property of citizens of the United States through a long series of years. Mexico has admitted these injuries, but has neglected and refused to repair them.”
“Such was the character of the wrongs, and such the insults offered to American citizens and the American flag by Mexico, in palpable violation of the laws of nations and the treaty between the two countries of April 5, 1831, that they have been repeatedly brought to the notice of Congress by my predecessors. As early as the 8th of February, 1837, the President of the United States declared in a message to Congress that ‘the length of time since some of the outrages were committed, the repeated and unavailing applications for redress, the wanton character of some of the outrages upon the persons and property of our citizens, upon the officers and flag of the United States, independent of the recent insults to this government by the late extraordinary Mexican minister, would justify, in the eyes of all nations, immediate war.’
“He did not, however, recommend an immediate resort to this extreme measure, which he declared ‘should not be used by just and generous nations confiding in their strength for injuries committed, if it can be avoided, but, in a spirit of forbearance, proposed that another demand be made on Mexico for that redress which has been so long and so unjustly withheld. In these views, committees of the two houses of Congress, in reports made to their respective bodies, concurred.
“Since these proceedings more than eight years have elapsed, during which, in addition to the wrongs then complained of, others of an aggravated character have been committed on the persons and property of our citizens. A special agent was sent to Mexico in 1838, with full authority to make a full and final demand for redress. The demand was made; the Mexican government promised to repair the wrongs of which we complained, and, after much delay, a treaty of indemnity was celebrated between the two countries. * * * * The claims were not paid at the due time, and Mexico applied for further indulgence, which was granted in that spirit of liberality and forbearance which has always characterized the conduct of this country towards that republic.”
This was the cause of the Mexican war.
My government has carried the principle of protection so far that both houses of Congress, on two several occasions, passed acts to indemnify citizens of the United States injured by France, partly on the ground that our own government had not used sufficient energy and diligence in the prosecution of those claims against France, and that such inactivity was a stain upon the justice of our government.
(See French spoliation claims; messages of the Presidents and discussions in the Congress of the United States in the years 1846 and 1855; convention with Great Britain 4th of July, 1831, in which provisions were made for mutual claims. See amounts paid by Brazil to citizens of the United States, and treaty with Brazil in 1849; treaty with Great Britain, 1826; conventions with the same nation, 1853 and 1854; conventions with Peru in 1841 and 1863; conventions with Mexico in 1843; conventions with Portugal in 1851; conventions with Sicily in 1832; conventions with Spain in 1819; conventions with Texas 1838; all of which undeniably controvert the doctrine asserted by the honorable fiscal of the non-liability of the government of Peru for injuries done to foreign citizens.)
History is full of the liabilities of nations for wrongs done to their citizens, from the rape of the Grecian Helen to the present time. There is scarcely a quarrel or war that cannot be traced to such causes, yet the honorable fiscal says, in substance, that domiciled citizens must submit to the wrongs and outrages of the government of the country where they reside, and that such citizens “onght not to complain, but be contented with the same treatment as that accorded to natives of the country; that they cannot pretend to any prerogative in the proceedings, and that they are obliged to obey the law inasmuch as they are protected by it.”
Let me inquire, first, whether natives of this country themselves may not be so inhumanely treated as to have the undeniable right to demand justice from the government, and, secondly, as they are obliged to obey the law, the honorable fiscal says they should be protected by it. This is all that we ask, protection and justice.
But the records in these cases now presented clearly show that an officer of the United States and several non-combatant American citizens, taking no part whatever [Page 884] in the late controversies, have been most cruelly treated, and their rights most unlawfully trampled upon. I refer particularly to Consul Mountjoy at Lambayeque, whose character stands unimpeached in the eyes of my government; Consul Weile at Tumbez, though not suffering in consequence of the late revolution, was still beaten and incarcerated without justifiable cause; Mr. Alexander Ruden, whose fine cotton estate was completely distroyed; John Henness, who was severely beaten, and so injured as to lose the sight of one eye; George Hill, who was shot, robbed, and imprisoned, and remains in consequence a cripple for life; John Talbot, who received such injuries at the hands of the soldiery at Baton Grande that he fell down in the streets, and died in consequence; James Johnson and Francis Grannan, whose health from the same cause has been ruined for life, and who are in want from their incapacity to earn their daily bread; together with a number of others, whose cases I might also cite.
The honorable fiscal, quoting M. Rouher, one of the French ministers of state, where only one police officer and a dress-maker appear upon the stage, says, that he (M. Rouher) “never had heard that the pecuniary responsibility of the government could be compromised by the acts of its agents.”
This is good law and logic, but I must be pardoned in supposing that there is a broad difference in a controversy between a dress-maker and an officer of police, and the overwhelming force of mobs, maddened by the passions of the hour. One case is completely in the hands of the law, while the mob rises above and defies it.
But from the honorable fiscal’s stand-point, the officers and other offenders should have been punished for their crimes by the courts of the land; but I have yet to hear that a single officer, soldier, or civil authority, has been arrested and brought to punishment for any of the great crimes and misdemeanors which the Grand Marshal La Fuente, late minister of the interior, has so eloquently and so forcibly described.
I will be excused, I know, for indicating that the other cases cited by the honorable fiscal, of Taylor, injured by the liberators of Sicily, and the cases of Naples and Tuscany, will be found, when properly understood, very like that of the police agent against the dress-maker, to have little or no relevancy to the question at issue.
I have not the authorities before me, but feel well assured they cannot sanction the doctrine asserted by the honorable fiscal.
Again he says that the department under his charge “has opposed every claim for illegal indemnification that has come under its notice.”
This, under the logic of the honorable fiscal, means, necessarily, all claims made by foreigners, as he denies them their legitimate rights under the laws of nations. At the bottom of all statesmanship lies the principle of simple and impartial justice, and I regret to say that I have never heard of one single report, made by the honorable fiscal, favorable to a foreigner whose rights had been injured.
The honorable fiscal, continuing, says that “it has been solemnly declared that the state is in no manner responsible for the payment of losses and damages occasioned by civil wars,” and refers to the decisions of the councils of state of September 11, 1834, February 9, 1859, and other laws of Peru.
Yet it must be well known to him that many such claims have been admitted and paid by Peru since that date. He has entirely overlooked the mixed commission that met here, and adjusted many cases of that description in 1863; and that the sacking, in Callao, of establishments belonging to foreigners, by national troops, was admitted to be wrong by the late congress, and a commission appointed to adjust the claims for said injuries.
Since I have had the honor to represent my country in Peru, I have made no direct diplomatic claim against your excellency’s government. Such claims should, if possible, be avoided, as they usually end in controversy, and the friendly feelings of the two countries are often weakened.
In this view I now informally present to your excellency what I believe to be the just demands of my countrymen, and sincerely hope to avoid anything like formal diplomatic claims, believing that his excellency the President of Peru will do prompt and ample justice to all who may have been unjustly wronged, and I appeal to his excellency for no other class of men.
I may be pardoned for saying that since I arrived in Peru I have been one of its firmest and best friends, not of men, but of the republic. Your excellency, and the members of the former cabinets, are aware that what I now say is the simple statement of facts. I cannot enlarge upon this point.
In this view I know his excellency the President will pardon a few plain, blunt words which are intended to benefit all concerned.
Constant practice as well as sound policy demands that damages should be promptly paid for all injuries done to foreigners by intestine commotions, because, by so doing, peace and friendship are preserved. To the people of your own country this does not apply with the like force, since it is the policy of all progressive nations to invite immigration and capital. From such resources alone can the American republics hope to become powerful and wealthy.
But the payment of the present claims of the citizens of the United States against [Page 885] Peru can be urged with more force than those of any other people or nation, since, in my opinion, we have been a better and a truer friend to this republic than any other foreign nation has proved herself to be. This is no boast, but only the simple truth. But for the action of the United States, there can be no doubt that long since the Chincha Islands would have been in the hands of Spain. This is made patent by reference to the “Correspondencia Diplomatica relativa à la Cuestion Española,” No. 292, p. 369, and No. 293, p. 370.
The injuries received by citizens of the United States during the late struggle at Checlayo and the troubles at Lambayeque, to which I have referred are of such a character as, being ordinarily beyond the price of payment in money, would have caused immediate reprisals or war between my country and any powerful European nation.
Your excellency will observe, on reading the statements, that the injuries done to my conntrymen have not been confined to private citizens only.
If your excellency will have the kindness to examine the statements and proofs impartially, I feel assured that the strong common sense of your excellency’s government, and the manly, straightforward, soldier-like instincts of his excellency the President, will lead Peru to admit what I am thus painfully compelled to say.
In this country my government views every action in the most favorable light, because we sincerely hope that the republics of South America will be our sisters and our friends through all time to come.
But we must preserve and protect the rights of our citizens, otherwise our nation itself would soon lose the respect of our friends at home, and of the world abroad.
Like Rome, in ancient days, we cannot allow one lash to be unlawfully laid upon the back of an American citizen by another nation.
No nation can, at all times, control its entire people, especially when war is raging. Such command is impossible, but true policy and justice demand that those who are wronged, in such times, should be satisfied and indemnified with the least possible delay.
Should it be inconvenient at this time to pay for the said injuries in money, evidences of indebtedness, in some tangible form, might be substituted, as some of the claimants are now absolutely destitute, and delay will only add to their misfortunes.
At this time your excellency will understand that I make no formal diplomatic demand, and trust that his excellency the President will pardon any remarks that may offend, as my strong and anxious desire is to protect my countrymen, and add to the friendly relations now happily existing between our two countries.
To conclude, let me state what I believe to be the arguments, conclusions, and effects of the honorable fiscal’s position, if they are carried into execution by the government of Peru.
First. All domiciled citizens of Peru are denied the right of international support.
Second. The authorities cited by him are not justified by the laws of nations, and those relating to the action and doctrines of the United States misconstrued or entirely misunderstood.
Third. The policy announced, if put into effect, would involve untold difficulties, and give pain to every true friend of your excellency’s country.
Hoping that the government of Peru may see, with the views I have informally presented, both justice and policy in the immediate settlement of the inclosed claims without further diplomacy, I will say no more, but leave the whole matter in the hands of your excellency’s government, trusting that I will soon be informed of a favorable adjustment of the claims of my countrymen.
I have the honor of assuring your excellency of my most distinguished consideration.
His Excellency Señor Dr. Don J. A. Barrenechea, Minister of Foreign Affairs.