No. 299.

Mr. Henry M. Brent to Mr. Fish.

No. 238.]

Sir: I have the honor to inclose herewith the copy and translation of a note from his excellency the minister of foreign affairs relative to the immunities to be accorded to hearers of dispatches.

I made answer to his excellency that I would transmit the document to the Department and await instructions.

H. M. BRENT.
[Translation.]

Señor Loayza to Mr. H. M. Brent.

No. 47.]

Sir: I regret having to commence my official intercourse with you in referring to an affair which has taken an unpleasant character, and in which the doctrine sustained by your legation cannot be admitted by my government without establishing precedents of very important consequences. It is understood that I refer to the departure of the American citizen, Mr. W. D. Farrand, violating the judicial orders of detention issued against him, at the request of persons to whom he was under certain responsibilities. Since the violation of these orders, issued in conformity with Peruvian laws and by competent authority, was an accomplished fact, and since the government of Peru could not be silent on such an important point, without admitting the theory sustained by General Hovey, it was found necessary to address to this high functionary the note of protest, with which you are perfectly conversant. I thought that this would terminate the discussion initiated by the American minister, in which this department has sustained, and does sustain, that the appointment of a person as bearer of dispatches is not sufficient to withdraw him from the jurisdiction of the tribunals of the country where he has resided as a private individual, and as such entered into various undertakings of a business character; but, nevertheless, the general addressed me the note which I received on the 19th instant a few hours before he made his official farewell. I find it indispensable to take notice of that dispatch regarding the matter under its true merits, and placing the question of international right in its correct limits, proving thus again that my government has, in this disagreeable affair, observed the proper circumspection, and has adhered perfectly to the principles of the great law of nations.

Following the plan established by his excellency General Hovey, I will first remark the facts preceding the departure of Colonel Farrand, to afterward enter into the question of the privileges of bearers of dispatches.

When, by the first dispatch of his excellency on the 13th instant, I learned of the appointment of Colonel Farrand as bearer of dispatches to Washington, and of the existance of certain orders of detention against him, I was pained at not being able to accede to the request contained in that dispatch, that Farrand might not be impeded from leaving in the steamer sailing for Panama on the next morning 5 since it was impossible to establish an unjustifiable exception, and violate the laws to which the person detained was liable, the government thus contributing to weaken the respectable orders of the judicial power, and causing the interested parties in the detention to lose their rights by a gubernatorial act, at once illegal and unjustifiable.

Such were the considerations that governed me in replying to General Hovey on the same day, a reply which was delivered to him by Dr. Elmore, the chief clerk of this [Page 518] department, who likewise brought to me at 12 o’clock on the same night the answer of the American legation. Without awaiting the result of the discussion, his excellency General Hovey departed for Callao in the first train on the morning of the 14th, and going on board the steamer Peru, the scene with which you are acquainted took place. It is said that the letter of the official mayor, transcribed in his excellency’s dispatch which I now reply to, was considered as an easy method devised by me to avoid the controversy, and that it was not supposed after this semi-official announcement that any difficulty would occur.

I must be permitted to recall to your honor that when a diplomatic discussion is being carried on in writing, it cannot be considered as terminated by private notes, not even bearing the signatures of the debating ministers, but only that of an employé of the department of the chief clerk; especially as the said employé did not state in his letter that the note was by the order or the request of the minister. On the other hand, from the tenor of this document, to which an importance is given it that is not merited, it appears that the minister who now addresses you insisted in denying the request, and this must be noted, since this department cannot refuse the request of the minister of a friendly power, to afterward concede it in an anti-diplomatic and indecorous manner. Since the minister of foreign affairs cannot and does not accept the responsibility of the acts of others, this point may be considered as fixed. But since the legation has given such importance to this letter, the same must be allowed to a document of the same nature, addressed to me by the official mayor on the same night, thinking he might not find me, and which he delivered to me in my house. In this he says: “The general accompanies Farrand to Callao to-morrow, and says that a very grave international question will take place if the authorities of Peru detain, in such circumstances, an officer of the United States.”

It therefore appears that the decision of his excellency to accompany Farrand was not the result of the letter from the official mayor, but had been formed from the morning of the 13th. This cannot be denied, unless it is agreed that the private letters of which I have spoken have not the semi-official character, which, if given to the first, must also be conceded to the last.

A number of quotations are made in the dispatch, which I have the honor of answering from noted writers, respecting the immunities, inviolability of the person and dispatches and papers of the messenger. These are hardly to the point, since I do not pretend to sustain that messengers while in the country to which they are sent, or in a third nation through which they must pass, can be detained. The present question is of a distinct character. It is whether an individual domiciled in a country in which as a private citizen he has made business transactions and contracted certain responsibilities can escape these by being named bearer of dispatches by a diplomatic agent. The question now fairly put is not sustainable by the theory invoked in favor of Farrand, and certainly no authority will be found to assert the immunity of the messenger simply from having received that, character, and against whom, before his entrance upon his duty, the orders of arrest were issued. It cannot be otherwise, since, if the doctrine upheld by the legation of the United States is admitted, it follows by clear logic that a diplomatic agent naming as messenger some person against whom legal writs were pending, or who from certain responsibilities was prohibited from leaving the country where they were contracted, was authorized to protect with his flag such a person even if before his entrance on duty the grave impediment against the messenger was known. Your honor will agree with me that such a theory, absurd and wholly untenable, and even supposing, as it must be supposed, that at the time of naming the messenger the minister was unaware of the obstacles existing, once cognizant of them the person should be left to justice, and another person named to discharge the commission, thus reconciling the exigencies of the diplomatic service with those not less to be respected, of the due administration of justice.

I have been very far from affirming in any of my communications that a messenger sent by a legation, an embassador, or a minister, should not leave the state from which he carries the dispatches. I have affirmed, calling upon the authority of Baron Martens, that the messenger is inviolable in the state to which he is sent, or in the territory of a third, through which he may pass to perform his duty, and that Martens, in not stating the case of the messenger being detained in the territory from which he is sent, clearly insinuates that the messenger may be there detained, if there are motives for so doing, since it is easy to replace him; since his responsibilities should not be ignored, contracted in the place of his residence, and since establishing a contrary theory, diplomatic agents would have the additional privilege of withdrawing from the courts of the country where they are accredited, any person subject to civil or criminal responsibilities, only by alleging the person was being sent as bearer of important dispatches. This necessary rectification made, the argument referred to is destroyed.

But even supposing that the Baron de Martens had made no distinction in this matter, it would always be impossible to sustain that a commission as bearer of dispatches would free a person from the action of the courts of the country where he resides, and [Page 519] from the liabilities he had there contracted. Bearers of dispatches cannot pretend to the same immunities as the higher members of the diplomatic corps; and if the Baron de Werch, plenipotentiary of the Landgrave of Hesse Cassel in France, was detained in Paris because he had not paid his creditors, and was not allowed to leave that capital until the Landgrave had assumed the responsibility of his debts, what would take place with respect to persons not having such rank in the diplomatic family? The question needs no reply.

The difference of opinion on the point in discussion does not alter the good understanding between the two governments, nor the harmony and personal consideration between the two ministers who have been engaged in the question, which I think is now concluded.

I must observe to your honor that in mentioning the delay in receiving the note I have just answered, it was only to fix that delay on record, and not to give the matter any undeserved importance.

I beg to assure your honor of my highest consideration.

J. J. LOAYZA.

Hon. Henry M. Brent, Chargé d’Affaires of the United States.