No. 281.
Mr. Phelps to Mr. Frelinghuysen.

No. 71.]

Sir: Inclosed herewith are printed copies of the treaty of peace and all the correspondence relating thereto, including that had with the diplomatic agents of the protesting Governments. I have already forwarded [Page 414] copies of the treaty and supplemental agreement, translated.* I now send a translation of the letter of protest of the minister of France and Mr. Larrabure’s reply. The other correspondence is in effect quite similar. It will be seen that the Marquis Tallenay’s letter is very curt and is answered in much the same terms. It remains to be seen what course the protesting powers will take.

I have, &c.,

[Inclosure 1 in No. 71.—Translation.]

Mr. Tallenay to Mr. Larrabure.

Monsieur le Ministre: Articles 4, 6, 8, and 10 of the treaty of peace signed the 20th October, between Chili and Peru, provide for a cession of territory, without taking into consideration the guarantees which form liens, special or collective, of the creditors of Peru.

The Government of the French Republic does not consider it possible to permit this to be consummated without protesting against those clauses which must be considered null so far as regards its citizens.

In instructing me to announce to your excellency the sending of an identical note agreed upon between the powers interested, my Government insists that the question of debts shall be immediately reserved, with a view to an amicable arrangement between the two Governments and the creditors, or that a solution more satisfactory, based lap on contracts, shall be proposed to the Congress of Lima.

Accept, &c.,

[Inclosure 2 in No. 71.—Translation.]

Mr. Larrabure to Mr. Tallenay.

The undersigned has received your excellency’s communication of the 20th instant, intended to protest, in the name of the French Republic, against articles 4, 6, 8, and 10 of the treaty of peace, signed the 20th of October last, between Chili and Peru, and to declare that they consider them as null and without force with respect to the citizens of France.

You advise him also that an identical note has been sent, concerted between the powers in interest, and close suggesting that the question of the indebtedness of Peru be reserved until an amicable arrangement be made between both Governments and the creditors, or that there be proposed to the assembly convoked for the 1st of March a solution more satisfactory, based upon a regard to the contracts.

Already in the conference which the undersigned had with your excellency in this department, I spoke, among other things, of one to which regard must be had before a reply can be given to the note.

Having regard for the eminent endowments of your excellency the Government of the undersigned regarded your selection as envoy extraordinary and minister plenipotentiary in Lima as an evidence of the friendly sentiments which the noble French Republic entertains for Peru, but if a minister be not invested with a diplomatic character before the Government that receives him except by the presentation and reception of his credentials, one cannot explain an act of such importance as the protest without your excellency having first completed that requisite. The undersigned has offered and continues offering your excellency all possible facilities for the fulfillment of your mission in current affairs, and has observed, and will continue to observe, all the consideration due to your rank, but cannot tolerate the innovation introduced by the French legation, much less so when treating of a question sufficiently grave, as your excellency observes.

Returning to the note, the treaty to which your excellency alludes, has not been [Page 415] brought to the attention of your Government because the opportunity has not presented itself; it is still in the condition of a negotiation pending, reserved by its very nature and private character from other.(Chancelleria?) diplomatic offices with which it has no direct relation whatever.

A notification of it, or simply its publication by the Government of the undersigned would have been premature and in violation of established usage.

Peru enters into it by virtue of the right it possesses of governing itself, aright recognized since early in the century, at the time of its independence, by all powers, including the one your excellency so worthily represents, and cannot accept foreign intervention without violating its rights as a sovereign and independent state and without abdicating their prerogatives, which it has respected and does respect in all constituted nationalities; hence it may not give, nor feel itself called upon to give, participation in the treaties it negotiates without destroying the foundation of its own existence.

On the other hand, the debts which are the cause of your excellency’s protest, originated in loans made by individuals whom the Government of the undersigned did not think it necessary to ask their nationality; these debts have never had an international character, thus, as to-day it appears, part of them, at least, are in the hands of Frenchmen, according to your excellency’s note, of which the undersigned does not for a moment doubt, they may to-morrow, possibly within a few hours, pass into the hands of Americans or Russians, or business men of whatever nationality. Peru owes nothing to France, not as to the Government or the state, consequently those loans cannot become the subject of diplomatic intervention.

The undersigned does not wish, as it would offend your excellency’s enlightened Government, to linger in pointing out here the grave consequences that it might have upon the peace and external security of all nations, were such doctrine to be sustained.

He will point out to you only that with it the doors would be opened for reclamations and wars, which are precisely what modern international laws are designed to avoid; the relations between countries exposed to the fluctuations of the exchange would expose weak states to the mercy of the strong, and, in the name of the new rule which precedent had established as an international practice, one nation would be authorized to disturb the peace of another. A like doctrine, which a just and upright Government like that of your excellency cannot consent to, in the course of unforeseen human events might place France herself in the gravest dangers.

A few years since the English bondholders solicited the intervention of Her Brittanic Majesty’s Government, and notwithstanding the exertions of private gentlemen, made as such, the British foreign office (Chancelleria?) denied the right of diplomatic intervention, as appears from records in this office.

If such serious considerations do not convince the Government of your excellency, and it should consider it necessary to sustain the protest, the undersigned seizes the occasion to remind you that it is of public notoriety that for more than four years Peru has not controlled the hypothecated products.

Notwithstanding since the earlier days of the war of the Pacific, cargoes of guano and saltpeter have passed over the seas without any opposition, Peru even has asked at the proper moment, through its diplomatic or consular agents, the embargo of these cargoes in European ports without finding support on the part of the Governments which now protest. Under these conditions diverse arrangements have been made between creditors, and a public sale made of 1,000,000 tons of guano to which the guarantees apply, without notice on the part of the Republic of France or the other states. It has thus struggled alone, and for a long time, to save these interests, and afterwards signed a treaty of peace, because it was no longer in condition to continue the struggle.

Moreover, your excellency should not forget that in the outbreak of the war the Peruvian Government was engaged in an advantageous arrangement with its creditors; the guano and saltpeter more than sufficed for the debts. If Peru later on has found itself obliged to despoil the nation of the wealth which constituted the security, it has done so from the need to regard its own preservation, which is the first obligation, as it is the first right of a state; otherwise we should hold that war should never cease without the complete submission or the total destruction of one of the belligerents.

Such is the situation of Peru; and these are the reasons which alike prevent it from accepting the protest or acceding to the desires of the Government of the Republic of France. The undersigned will, when the opportunity offers, submit the treaty of 20th October to the national assembly, as it is his duty, together with the correspondence relating thereto. I should at the same time assure your excellency that Peru on its part will not omit any means looking to the continued maintenance of its good relations with France; relations which it wishes to strengthen as far as possible, equally in prosperity as in the hours of its humiliation and misfortune.

The undersigned renews, &c.,