No. 300.
Mr. Fish to Mr. Brent.
Sir: The question which arose between General Hovey and the minister for foreign affairs of Peru, relative to the right of that government to obstruct the departure of Colonel Farrand, who had been appointed a bearer of dispatches by the general, seems to be of too much general importance to be left unnoticed by this Department. It is of no moment in the particular case, as the Peruvian government ultimately connived at Colonel Farrand’s departure.
The occasion for the colonel’s employment in the character adverted to was the conclusion of two treaties between the United States and Peru, which were signed on the 6th and 12th of last month. General Hovey’s instructions recognized his right to make such an appointment in such a contingency. The appointment was made accordingly on the 12th of September, and Colonel Farrand’s passport in his official character issued to him on that day without any information to General Hovey that any branch of the Peruvian government or any person objected to the colonel’s discharging the duties of his trust. It seems, however, that subsequently, but before the colonel could start on his errand, a person claiming to be a creditor of his sued out judicial process forbidding him to leave Peru. General Hovey promptly complained of this proceeding as contrary to international law relative to the immunities of couriers, as set forth in Wheaton’s treatise on that subject. The minister, in his reply, while acknowledging the authority of Wheaton, endeavors to restrict the privilege of couriers as there declared to those appointed by a government to its legations abroad, and enlarges upon the inconveniences which the more extensive enjoyment of such immunities would lead to. It is true that no abuse of the privilege in this case is alleged, but its existence is impliedly, at least, denied. This denial, however, has no support from Wheaton, or from any other writer on that branch of public law. If the Peruvian minister supposed that he had any reason to hesitate in acknowledging the unqualified character of the rule laid down by Wheaton, the plain and unequivocal terms in which Calvo speaks upon this point may be enough to remove [Page 520] any such hesitation. The work of this author on international law was published in Spanish at Paris, in 1868. It is remarkable as embracing everything illustrative of the subject up to the time of its publication, and its clearness and precision are at least equal to its fullness. At paragraph 240, on page 350 of the first volume, may be found the words of which the following is a translation:
The inviolability which public ministers enjoy has also been extended to the messengers and couriers of the embassies and to those who proceed to them with official dispatches, and as a general rule to all who discharge, as cases may arise, any commission for those embassies.
This, it seems, should be conclusive of the question. If General Hovey had been aware that Colonel Farrand was justly liable to arrest, and had willfully appointed him a bearer of dispatches to screen him therefrom, this would have been sufficient cause of complaint on the part of the Peruvian government, and perhaps of censure of its minister by this Government. Even this knowledge on the part of the general, however, would not, it is conceived, have impaired the immunity of his courier under the public law. If alleged delinquencies or pretended claims are trumped up against persons appointed or about to be appointed couriers in foreign countries to prevent them from starting, the immunity guaranteed to them by public law may at any time be annihilated by an envious or malicious person. This is a result to be deplored and guarded against by all governments, by the government of Peru as well as by the Government of the United States.