Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 5, 1870
No. 298.
Mr. Alvin P, Hovey to Mr. Fish.
Sir: After having signed the treaties with Peru (mentioned in my No. 232) dated the 6th and 12th instant, I deemed the matter of sufficient importance, under my personal instructions, to send the same to the Department of State by a bearer of dispatches. Accordingly, on the 12th instant I appointed Colonel W. D. Farrand as such bearer, it being necessary that he should leave Lima at 8 a.m. on the 14th, so as to embark on the steamer for Panama. Some time after his appointment, and when his passport, treaties, and dispatches were in his hands, he informed me that a certain Abraham Wendell had caused legal process to be issued against him, enjoining him from leaving the country. Believing that the said order was entirely unjust, * * * * I immediately addressed a note to his excellency, the minister of foreign affairs, (inclosure No. 1,) informing him of the intended detention, and requesting his excellency to take such steps as would prevent it, at the same time citing to his excellency the doctrine contained in Wheaton’s international law. His excellency, in very kind terms, declined my request, taking issue with the writers on international law, upon the subject, and making a distinction unknown to the law of nations. (See inclosure No. 2, with translation.) Upon the reception of the same at 10.30 p. m. I replied to his excellency (inclosure No. 3) regretting the difference of opinion that existed between us, and delivered the note to the sub-secretary of state, (official mayor,) Dr. Elmore, who promised to give me an answer before 8 o’clock the following morning, the time of the departure of the train. At about 7.40 a. m. on that morning I received a note from him (see inclosure No. 4) in which I was informed [Page 511] that the minister still adhered to his former views, but said if I would go with the colonel to the steamer he would have nothing to fear. With this authority, I proceeded with Colonel Farrand on board the mail steamer, and after an attempt to detain him, and some conversation with the captain of the port, he was permitted to depart.
This matter may seem of but little importance to the Department, but * * * * * * I think it proper to go one step further and inform the Government of the nature of the claim.
In 1866, Farrand & Co. procured a charter from the Prado government here to construct a tram-way from Callao to Lima, and with the privilege of running street railroads through Lima. Under this charter shares of stock were issued, a few being given out gratuitously to persons who favored the road. Five of these shares, by some manner, came into the hands of Abraham Wendell. They never have had any marketable value in Peru. The name of Farrand appears upon the certificates as president. After the fall of Prado, at Arequipa, the charter granted to Farrand & Co. was declared void by the succeeding and present governments, and hence the roads were never built. Upon these certificates of stock, a wise court held Farrand personally liable for the full face of the same, and without any security being given by his adversary, and only a few hours notice, forbade him to leave the country as above stated. An affidavit is already on file in the Department of State, affirming that said stock was never of any marketable value. If necessary it would be easy to prove by all the principal merchants of Lima that such is the fact. * * * * * *
On the 17th I received another communication from his excellency substantially reiterating his former positions, (inclosure No. 5.) To this, on the same date, I replied, making a statement of all the facts, citing authorities and making an argument against the position assumed by his excellency, (inclosure No. 6.)
The Department will see by a perusal of my answer that under any and every phase of the case Colonel Farrand was fully authorized to depart, and that no just censure or liability can attach to this legation, or to the United States.
Mr. Alvin P. Hovey to Señor Loayza.
Sir: Colonel W. D. Farrand having been duly appointed hearer of important dispatches and treaties from this legation to the Department of State at Washington, informs me that legal efforts are being made by certain persons to prevent his embarkation on the steamer leaving Callao to-morrow for Panama, with said dispatches and treaties. I need scarcely say to your excellency that it is beyond the legal authority of any of the tribunals of another country to hinder, delay, or arrest any member of a legation, or any bearer of dispatches from the same. I respectfully refer your excellency to chapter 1, part iii, of Wheaton’s Elements of International Law, commencing at section 14 to 19, inclusive, the last, section 19, bearing more particularly upon this point.
I therefore respectfully ask such action on the part of the government of Peru on his behalf as will prevent the Peruvian authorities from violating the well-known international laws and comity of nations.
I have the honor to be, &c.,
His Excellency Sr. Dr. D. J. J. Loayza, Minister of Foreign Affairs.
Señor Loayza to Mr. Alvin P. Hovey.
Mr. Minister; I have had the honor of receiving your excellency’s note dated to-day, informing me that Colonel Farrand, who has been named the hearer of important treaties and dispatches you sent to the Department of State at Washington, has assured you that legal efforts are being made to prevent his embarkation in the steamer that leaves to-morrow for Panama, with the said treaties and dispatches.
Your excellency says that it is not necessary to remind me that no tribunal can impede, delay, or arrest the bearer of dispatches from a legation, and in proof of this is cited Wheaton’s International Law, paragraph 19, chapter 1, part iii, and your excellency concludes by requesting that the government will take such measures as to prevent the Peruvian authorities from violating the well-known laws of nations, and the comity between them.
I now have to reply to your excellency, deeply regretting that I am obliged to differ from you in this matter. I believe, and your excellency will agree with me, that the Peruvian government has given to that of the United States very special proofs of friendship and deference; nothing would be more agreeable for the government of Peru than to accede to every desire of the government you so worthily represent. On the other hand, nothing is further from the intention of the government in whose behalf I have the honor to speak than to infringe the principles of international law, and the practice of those regulations of friendship that serve to preserve harmony between countries. But justice has also its exigencies, and the constitution and laws of a state claim a respect which your excellency will be the first to acknowledge.
Whatever, according to the very distinguished American publicist, Wheaton, and other noted writers, the privileges of bearers of dispatches, I believe that your excellency will admit that there is an essential difference between the one who is named directly by his government and who cannot be molested afterward in any country while fulfilling his errand, and the one who, being previously amenable to the laws of the state where he resides and in which he has become in a manner liable, receives a charge which, though granted with the best intentions, cannot free him from his contracted obligations and from the actions of the national laws.
I believe, Mr. Minister, that no writer of international law has endeavored to establish judicial principles tending to abrogate the laws of countries, and it therefore appears to me that the distinguished Wheaton, speaking in the paragraph quoted, of the immunities of cabinet messengers and bearers of dispatches, only aimed to establish the privileges of an individual who arrives in a foreign country, fulfilling a commission from his government, but that it was not the intention of this or any other writer on the subject to fix as an international law, that any person residing in a foreign country may receive a commission, in virtue of which he is made free from the jurisdiction of the country to which he had previously been subject. The precedent that would be established by such a principle is fatal to the institutions of any country, and cannot therefore form a part of the great law of nations. Therefore, for these reasons, I comply with my unpleasant duty in informing your excellency that the government can do nothing in the manner you desire, since the executive cannot interfere with the acts of the judiciary, which indeed it must respect, and therefore, if Colonel Farrand has been judicially notified of the order of detention, (the only means by which he may be prevented from leaving the country without fulfilling certain obligations,) it must be by reason of legal proceedings, which it does not pertain to the government to examine or reform, and to which your excellency, assured as I am, is ready to render homage. Your excellency will not seek to render the laws of Peru and the action of justice null through a commission which might have been conferred upon any person.
Without examining the merits of any lawsuit that may exist against Colonel Farrand, without considering whether such a lawsuit, if it exists, is founded or not on justice, and acknowledging in the fullest manner the good faith that has animated your excellency, not only in this but in all your acts with my government during your long residence in this country, I trust that your excellency will appreciate the motives impelling me to this answer, as your excellency must be convinced that the most vehement desire of the Peruvian government is to gratify in every wish the Government of the United States and its legation in Lima.
I have the honor to be, &c.,
His Excellency General Alvin P. Hovey, Envoy Extraordinary and Minister Plenipotentiary of the United States of America.
Mr. Alvin P. Hovey to Señor Loayza.
Sir: I had the honor of receiving your very kind dispatch in reply to my note today. I deeply regret that I am compelled to differ from the conclusions at which your excellency has arrived. At the time of the appointment of Colonel Farrand as hearer of dispatches, I knew nothing of any attempt to hinder or prevent him from hearing the dispatches of this legation to my Government at Washington, nor was such known to Colonel Farrand, nor did any such cause exist at that time. Such being the case, I had full power to appoint him, as I might have appointed any citizen of Peru, the servant of my Government, and from the hour of that appointment, the mantle of my Government covered him not only from civil liability but from liability for crime within the jurisdiction of Peru. The law of nations is too clear upon this point to need citation. Unless governments are untrammeled in the selection of their agents, haw, may I ask, would it be possible to send dispatches when they might be detained by the government of the country where the legation is established?
Far be it from me, on the eve of my departure from this hospitable country, to throw the least obstacle in the pathway we have traveled so harmoniously together, for in every act, aspiration, and wish of my heart I have proved that I have been the true friend of Peru.
It is not the question as to who is to be the bearer of my dispatches; that, personally is an unimportant matter; but it is not unimportant that diplomatic privileges should be ignored.
Colonel Farrand is authorized to proceed to-morrow with his dispatches to the United States. I judge not of the controversy between himself and his contestants; I simply respectfully insist upon my diplomatic rights, and the rights of the emyloyés of the legation being respected and maintained, and shall with the greatest kindness to your excellency’s country, follow this same course, and would in Peru’s behalf defend the same principles to the last
I have the honor, &c.,
His Excellency Sr. Dr. D. J. J. Loayza, Minister of Foreign Affairs.
Mr. Elmore to Mr. A. P. Hovey.
My Dear General: The minister says he is sorry he can do nothing in the affair, and that the colonel need fear nothing, being with you.
I am not well of the throat; I can hardly speak.
Yours sincerely,
General A. P. Hovey, &c., &c., &c.
Señor Loayza to Mr. A. P. Hovey.
Sir: Although it is notorious that Colonel Farrand sailed for Panama in the steamer of the 14th instant, and although this might be held as the conclusion of the discussion opened by your excellency with this department on the subject, I am obliged to answer the dispatch you sent me late on the night of the 13th, which was delivered to me by the official mayor, Dr. Elmore. My silence on such an important matter might perhaps be considered as an acceptation of the doctrines your excellency sustains, and which cannot be accepted by my government without establishing a precedent of the gravest consequences. I therefore proceed to answer your excellency’s note, affirming my regret at not being able to agree with your opinions on the subject.
[Page 514]It cannot be denied, and all writers on international law agree, that hearers of dispatches should not be interfered with in the discharge of their duties, and that their persons and the correspondence they carry should enjoy certain immunities, without which their errand could not be fulfilled. But it also cannot be denied that these prerogatives do not so far extend as your excellency desired they should in the case of Farrand, who, although named by you to convey dispatches to Washington, had not entered upon the discharge of his duty when he was informed on the 13th of the order of detention issued by a judge of the first instance in Lima, and who, in consequence of that order arising from acts of Farrand as a private citizen, and subject from the same to the laws of Peru, could not withdraw himself from Peruvian jurisdiction without casting a stain on that respect merited by the tribunals of Peru, and without violating the legal dispositions existing in regard to such detention. Colonal Farrand could have rendered the order null by the means established by the same laws, or by an arrangement with the person detaining him, and then might readily have fulfilled the charge your excellency intrusted him with, a charge which doubtless would not have been confided to him had it been supposed that by this means Farrand would escape the obligations he had contracted in Peru and the respectable action of justice.
The celebrated Martens, so jealous of diplomatic immunities and prerogatives, estabtablishes, in speaking of bearers of dispatches, that their inviolability only is affected in the territory of the state to which they are sent, or in the territory of the third power through which they pass to reach their destination, since, if such bearers of dispatches were detained in their voyage or in the state where they carry their charge, a grave offense would be committed, difficult to repair, and against a person discharging his delicate commissions.
Martens, whose authority is greatly respected, says thus:
“Any violence committed against them (bearers of dispatches) is considered as an atrocious violation of the law of nations, whether it be committed in the territory of the state where the courier carries his commission or in that of a third power through which he may pass.”
The case is not stated of a courier being detained in the state from which the dispatch is sent, but this omission on so important a point is perfectly explained by the fact that there the bearer of dispatches may be readily replaced by some other person named by the same authority, without injury to the official service and without allowing a concession of this nature to serve as a free pass for an individual who, on account of civil or commercial responsibilities, is impeded from abandoning the place of his residence, and without causing the protecting shadow of the banner of a friendly country to render such responsibilities of no effect, and nullify the action of the judicial power in the exercise of its peculiar and high attributions.
Your excellency’s penetration must admit the force of the reasons I have adduced, and will surely admit that the action of my government in the case, originating the present discussion, has been in perfect conformity with the principles of international law and the requirements of justice; and you will also admit that if an order of arrest was issued against a Peruvian citizen in the United States, the detention would be carried into effect, even if the person had been intrusted by the minister of Peru with dispatches for his government, which might easily be given to some other, who might leave that republic with no difficulty whatever.
This question, arising from Colonel Farrand’s departure, has terminated as a fact, but it is indispensable to clearly establish the doctrine in regard to the immunities of bearers of dispatches, so that it may never be alleged that the Peruvian government has accepted that fact as in conformity with the code of the law of nations, and that it may be clear that, far from this, it has protested against that act, and does protest against it, in the proper manner.
I beg to reassure, &c.,
His Excellency General Alvin P. Hovey, Envoy Extraordinary and Minister Plenipotentiary of the United States of America,
Mr. Alvin P. Hovey to Señor Loayza.
Sir: I have had the honor of receiving your excellency’s note, No. 44, in reply to my No. 29, dated the 13th instant, and ! regret that any difference has arisen between us, [Page 515] as I feel fully satisfied that your excellency, as well as myself, would not knowingly infringe any principle established by the law of nations. Before proceeding to answer your excellency’s arguments in full, it becomes my duty to reiterate a simple statement of the facts, so that just deductions may be drawn from the same. The treaties between the United States and Peru were signed, bearing date of the 6th and 12th instant. I informed your excellency at an early hour on the 13th that Colonel Farrand had been appointed bearer of dispatches by me. His passport and dispatches were delivered to him on the 12th instant. On the following day Colonel Farrand informed me that certain legal proceedings would probably be instituted against him for his detention in Peru. Thereupon I immediately addressed your excellency, informing you of the facts and begging your excellency to take such steps as would impede the Peruvian authorities from interfering with his voyage to the United States. Your excellency thought proper to decline my request, seeming to insist that the laws of Peru were superior to and controlled the law of nations. Dr. Elmore, the official mayor of the foreign office, brought this note to me in person, at 9.30 p. m., on the same day. I then again immediately addressed your excellency at 10.30 p. m., informing your excellency that it would be necessary for Colonel Farrand to leave on the morning of the 14th, at 8 o’clock, and still insisting upon the positions which I had already assumed. On the departure of Dr. Elmore from this legation, I was assured by him that I should have an answer to the same in time for the train at 8 a. m. I received no written answer from your excellency, but about 7.40 a. m. I received a line from Dr. Elmore, dated September 14, 7.15 a. m., saying: “The minister says he is sorry he can do nothing in the affair, and that the colonel need fear nothing being with you.”
I regarded this statement from the official mayor as an easy mode devised by your excellency to avoid the controversy between your excellency and myself, not supposing for one moment that after this semi-official announcement the least difficulty could take place, as the personal arrest of a member of a legation, in the presence of the minister, under such circumstances, could be regarded in no other light than a direct insult to his government.
I will further state to your excellency, as I have heretofore in due time stated, that at the time of delivering the passports and dispatches into the hands of Colonel Farrand, neither he nor myself had any knowledge of the intent to prevent his embarkation. I was not a little surprised on arriving on board the steamer to find an order for his detention before me. Giving, however, to the officer representing the captain of the port, a copy of the above-cited short note from the official mayor, Colonel Farrand was permitted to depart. From the foregoing facts, I felt assured that the whole matter had been indirectly prearranged by your excellency. Inasmuch, however, as your excellency seems still to insist that the local laws are superior to the law of nations, I deem it my duty to lay before your excellency the views I entertained, together with a few authorities upon this important question. Your excellency thinks proper to state that some other person or persons might have been chosen as bearers of dispatches. Your excellency will pardon me for saying that while Peru has the right to select her officers, the United States ought to be entitled to the same privilege.
It may or may not be politic, convenient, or possible to select this or that person to fill such an important position as that of bearer of dispatches. Extremes sometimes thoroughly test a principle. Let us suppose a minister in court inimical to his country, and that difficult and dangerous questions are to be settled. In such a case (which happily does not exist between our respective governments) it would then be within the power of the government where such minister resided to prevent all communications or dispatches to or from the government of such minister, unless the inviolability of the bearer of dispatches is conceded.
Wheaton, in the Elements of International Law, sec. 14, says:
“From the moment a public minister enters the territory of. a state to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an exemption from the local jurisdiction, both civil and criminal.”
Again, in section 19:
“The practice of nations has also extended the inviolability of public ministers to the messengers and couriers sent with dispatches to and from the legations established in different countries.”
Vattel, in the Law of Nations, p. 471, sec. 92, says:
“The law of nations, therefore, while it obliges us to grant admission to foreign ministers, does also evidently oblige us to receive those ministers in full possession of all the rights which necessarily attach to their character all the privileges requisite for the performance of their functions. It is easy to conceive that independence must be one of those privileges; since, without it, that security which is so necessary to a public minister would be enjoyed on a very precarious tooting. He might be molested, persecuted, maltreated, under a thousand pretenses.”
[Page 516]Again, sec. 143:
“Couriers sent or received by an embassador, his papers, letters, dispatches, all essentially belong to the embassy, and are consequently to be held sacred; since, if they were not respected, the legitimate object of the embassy could not be attained, nor would the embassador be able to discharge his functions with the necessary degree of security.”
The following authorities bear upon and support the same doctrine: Woolsey, International Law, sec. 92; Martens, Guide Diplomatique, sec. 26; Kuber, Droit de Gens, sec. 190; Heffter, International Law, sec. 204; Horne on Diplomacy, sec. 37.
Your excellency, in your No. 43, mates a distinction between bearers of dispatches who come into the country and those who may reside therein. Surely the authorities all agree that an envoy extraordinary and minister plenipotentiary has the power to clothe the messenger with inviolability as amply and fully as the sovereign of the court from which he is accredited. I will be pardoned for saying that your excellency will have great difficulty in finding a precedent or authority in any respectable work on international law for the positions your excellency has assumed. Your excellency’s argument from the omission of Baron Martens, in not mentioning couriers going out of a country, is fully met and answered by the words from Wheaton and Vattel, above quoted, “Couriers sent to or from the legations;” “Couriers received or sent by an embassador,” &c.; and Martens himself, quoted by your excellency, says: “Couriers are messengers sent by sovereigns, governments, or ministers, and that all violence committed upon them is an atrocious violation.” (Sec. 250, Précis Droit de Gens.)
May I ask your excellency how a courier could be sent from the legation, or couriers received or sent by an embassador, or sent by a minister, without going out of the country where the minister resides appointing him? This seems to me, in all courtesy, a full answer to your excellency’s argument on this point, as your excellency admits the inviolability in all other cases, and only controverts the great authors of international law as to couriers going out. When Wheaton says his person is inviolate, and Vattel that his person is sacred, and Martens that all violence committed upon his person is an atrocious violation of the law of nations. Let me ask again, if couriers could be stopped on account of local obligations, might not the labors of such ministers prove abortive? For the courier, like the minister, in the language of Vattel, above cited, “might be molested, persecuted, maltreated, under a thousand pretenses.” I have strong reason to believe that the action brought against Colonel Farrand, which has caused the present correspondence, falls within the spirit of the above quotation. The law of nations, so to speak, is the constitution of the civilized nations of the world, and is above all local laws and enactments.
The laws of Prussia made the personal property of a person who was the tenant of another subject for the payment of the rent, but the question arose, “not what are the rights conferred by the laws of the country upon the proprietor in respect to the tenant who is a subject of that country; but what are those rights in regard to a foreign minister whose dwelling is a sacred asylum, whose person and property are entirely exempt from the local jurisdiction, and who can only be compelled to perform his contracts by an appeal to his own government.” (Wheaton, sec. 17.) In this case it was decided that the embassador’s personal goods could not be seized. Bearers of dispatches are above declared to have the same inviolable rights. Nations enforce their diplomatic rights against the local authorities. Vattel. says:
“Rincin and Fregose, sent by Francisco I, as embassadors, were stopped on the river Po, and murdered by the governor of Milan. As the Emperor, Charles V, seemed to favor it, Francis had a just cause for declaring war against him, and even calling for the assistance of other nations * * * * Such an affair is a quarrel which involves the concern of. all nations.” (Sec. 84.)
I cite these authorities to show that nations cannot set up their local laws against the principles established by international law, either civil or criminal. I submit that the quotation from Martens, made by your excellency, is in strict accordance with the above authorities. Your excellency seems to be anxious to make an excuse that Martens has not gone further on your side to sustain your positions, but the first part of the section to which your excellency refers clearly shows that he denies the position assumed by your excellency.
The local courts, when the bearer of dispatches is duly appointed, cannot touch his person for civil or criminal liabilities, except perhaps for treason or treasonable conduct. The responsibility alone rests, in my opinion, with the government of the minister sending the messenger. If this position is correct, the just claim of any person here against Colonel Farrand cannot be jeopardized.
The extremely friendly relations that have existed since my arrival in Peru between our respective governments augment my feelings of regret that we should be compelled to differ, even on technical points; but I feel assured that the same harmony and fraternal feeling will exist whether I am or your excellency is in the error. As this affair has caused some little excitement within the capital, and as I have no right [Page 517] to make the correspondence relating to it public under the rules of my government, I conceive that your excellency would be doing full justice to all concerned; as you have the power, in publishing the entire correspondence.
I beg to reassure your excellency of my most distinguished consideration.
His Excellency Sr. Dr. D. J. J. Loayza, Minister of Foreign Affairs.