No. 925.
Mr. Buck to Mr. Bayard.

[Extract.]
No. 420.]

Sir: Referring to my No. 418 of 29th ultimo, I now inclose textual copy of foreign office note No. 30, of August 28, 1888, relative to the “MacCord outrage” of June, 1885, with translation.

I will add, after some conversation with Minister Alzamora on the subject, I concluded it would be best, in view of the brief character of my first note, to address him in a second, of which I send copy, and which will show (of record) positions taken, and my reasonings in connection.

Upon reflection I considered this had better be done with such promptness as would not allow, from delay, the indulgence on the part of this Government of presumptions unfavorable to the claimant.

[Page 1372]

It may be pertinent to add, on the 3d instant Minister Denegri was interpellated in the senate by Señor Llosa. I therefore inclose newspaper cuttings of the whole, with translations of parts pertinent—that is of the sixth, seventh, and eighth interrogations and answers—the sixth as showing the disposition of Minister Denegri towards foreigners, the seventh and eighth as expressive of his opinion concerning Prefect San Roman, and Government approval of his acts.

Copy of the decree re-appointing Colonel San Roman (the author of the MacCord outrage) was sent as mentioned in postscript of my No. 409 of August 6, 1888.

September 11, 1888.

Since writing the above I have just received your No. 224, of August 14, inclosing copy of letter from Hon. S. N. Pettis, and copy of protest “touching alleged outrage” on Mr. V. H. MacCord.

Before writing of that dispatch, Department had been fully advised in this matter, and furnished copy of Mr. MacCord’s said protest, with my No. 376 of May 24 last, as shown by its instruction No. 208 of June 23, 1888.

I am, etc.,

Chas. W. Buck.
[Inclosure 1 in No. 420.—Translation.]

Mr. Alzamora to Mr. Buck.

No. 30.]

Mr. Minister: Your excellency’s esteemed communication of the 6th instant was duly received in this office, in which your excellency indicates having received instructions from the Department of State to submit to my Government the case of Mr. Victor H. MacCord, now consular agent of the United States at Mollendo, and to ask for an explanation of the circumstances; and that Mr. MacCord has given reasons for not presenting sooner his claim to the Government at Washington, which delay is satisfactorily explained in said Government’s mind.

Your excellency incloses a copy of the protest made by Mr. MacCord before Her British Majesty’s vice-consul at Arequipa for my information as to the facts, according to the exposition contained in it, and your excellency terminates requesting information as to the truth of what occurred.

My Government has never had knowledge of the facts referred to in said protest, nor would it be in its power to satisfy itself of the truthfulness contained in said protest after the long time transpired, since the protest is dated June 16, 1885.

It appears noticeable that Mr. MacCord should have made no question during all this time after he had not only obtained the full use of his rights, but has exercised his authority as Consular agent of the great Republic. It being a most special circumstance that Mr. MacCord has been accredited as consular agent at Mollendo during the administration of the same Mr. San Roman, against whom the protest appears to be made, and, as your excellency knows, he is prefect of the department of Arequipa, to which Mollendo pertains. It is still more remarkable that Mr. MacCord, having cultivated with the prefect of Arequipa the most friendly relations during two years without ever having mentioned the protest in question, should make use of it now that Mr. San Roman, in obedience to the orders of the Government, has removed Mr. MacCord from the superintendence of the southern railways, which he exercised as it appears from said protest.

But no matter what the realities or facts to which Mr. MacCord refers, they can in no case serve as grounds for diplomatic action, and still less so after the long time transpired.

These were in fact the acts of a chief in arms against the Government then recognized as legitimate by all nations, especially by the great Republic. The responsibility, if such should exist, does not therefore rest upon the Government of the nation, but personally on the authors of them.

That responsibility in any ease could not attach except after proof of the acts in question before the national tribunals, and as the result of their judgment.

[Page 1373]

Mr. MacCord has therefore no other course hut to prosecute judicially the authors of the acts to which he refers in his protest, and which he is hound to prove.

I have no doubt that your excellency will be persuaded by this statement that it is not possible for my Government to furnish your excellency with the information required, and that the principles I have laid down are just, as indicating the only way open to the claimant in order to obtain the reparation which he may believe himself entitled to.

I am, etc.,

Isaac Alzamor a.
[Inclosure 2 in No. 420.]

Mr. Buck to Mr. Alzamora.

No. 112.]

Mr. Minister: In my interview of Friday last, in which references were made to my note No. 110, of August 6, 1888, and foreign office No. 30, of August 28, 1888, in reply, relative to the outrages perpetrated upon Mr. Victor H. MacCord in June of 1885 under the orders of Señor San Roman, then in military command at Arequipa, your excellency indicated that it was desirable to have the reasons for the delay of Mr. MacCord in presenting his case stated in the form of a note to the foreign office.

In response, it is to be observed, as I stated at the time, that there is no such thing as a bar by limitation of time affecting diplomatic rights; and as a better expression of this view, I may quote from a dispatch of the State Department touching this subject in our relations with Chili as far back as 1844, in which the Secretary pertinently wrote:

“There is no statute of limitation as to international claims, nor is there any presumption of payment or settlement from the lapse of twenty years. Governments are presumed to be always ready to do justice, and whether a claim be a day or a century old, so that it is well-founded, every principle of natural equity, of sound morals, requires it to be paid.”

While, therefore, I apprehend judgment upon the question of delay in this matter is solely within the discretion of the United States Government, and the announcement that the reasons therefor have appeared satisfactory to it should be conclusive upon that point, still, as an evidence of disposition to meet your excellency’s wishes as far as possible, I present the following statement and views thereon, suggested by your excellency’s request and verbal expressions made in the said interview.

Stated in brief, the facts appear substantially these: On June 11, 1885, the prefect of Arequipa, Colonel San Roman, then commanding the “Cácerist forces” in that section, who, according to your excellency’s note, were in insurrection against the Government at Lima recognized by foreign powers, the United States included, made requisition on Mr. MacCord, the general manager of the southern railroads, in the employment of the concessionaire, Mr. J. L. Thorndike, for an engine and train of cars to convey troops to a point on the Mollendo division of the road, placing the train under the command of Sergeant Major Valdez. While in charge of said officer, the engineer detached the engine and made off with it to Mollendo, then in possession of the Iglesias forces.

Although Mr. MacCord was in no way responsible for this occurrence, it having resulted from the treachery of the engineer and the carelessness of the guard, he was thrown into prison and threatened by the prefect that if use was made of the runaway engine he would be shot. Thereafter he was placed before a file of soldiers, asked if he wished to say anything, and told that he was about to be shot; but after conference among the officers, he was remanded to prison and ordered to pay a fine of 10,000 soles. Declining to do this, he was deprived of food and drink, and left standing in a damp cell, without furniture, even a stone which he had used as a seat being removed. Finally, after protest of the foreign residents of the city, headed by the consular corps, made in vain against the outrage, some commercial houses of the city raised the funds with which the fine was paid, and Mr. MacCord was then released, whereupon he immediately made protest, on June 16, 1885, before Her Britannic Majesty’s vice-consul, copy of which protest has been supplied the foreign office with my No. 110 of August 6, 1888.

At the time and until recently Mr. MacCord was in the employment of Mr. John L. Thorndike as manager of the said railroads. Therefore, in deference to the interests and discretion of Mr. Thorndike, in view of his relations to the Peruvian Government as concessionaire of the said railroads, which it seems Mr. MacCord felt obligated to regard while himself Mr. Thorndike’s employé in superintendence of said roads, he (Mr. MacCord) delayed presenting the matter to his Government until a change of circumstances [Page 1374]relieved him from such considerations. When I add that the foregoing circumstances had been fully submitted to and considered by the United States Government before it instructed this legation to present the matter to your excellency, there only remains, I think, one more objection of your excellency to answer. That is the assertion that as “Señor San Roman” was a chief in insurrection against the Government of Peru recognized by foreign powers, the United States included, your excellency’s Government is not responsible, diplomatically, in the premises, and that Mr. MacCord’s only course, if his allegations are true, is to prosecute judicially the said San Roman upon a personal responsibility for his acts.

Your excellency, as a reason for this position, said:

(1)
That there existed a law in Peru that the Government could not he held responsible for any acts committed by insurgents or revolutionists, and foreigners were tacitly accepted into the country under that condition.
(2)
That according to universally admitted international law, a government could not be held responsible for mob or insurrectionary violence.

Concerning the first point, I apprehend that the only force such local law as that to which your excellency refers can have, so far as affecting diplomatic relations, is to establish at the outset that there is no adequate judicial remedy in Peru for a claimant, since such local law bars recourse against the Government through the courts; consequently direct diplomatic intervention offers the only means open to Mr. MacCord as an adequate remedy for a manifest and notorious tort.

On the other hand, I may call attention to the fact that so far from being in the country solely subject to the conditions of the local law referred to by your excellency, Mr. MacCord was here not only under the larger principles of international law, but under the incontrovertible guaranties of a treaty then existing between the United States and Peru, article 16 of which declared: “The high contracting parties promise to give full and perfect protection to the persons and property of the citizens of each other, of all classes;” again, in the said treaty of 1870 it was declared: The citizens of either country within the territory of the other “shall not be liable to imprisonment without formal commitment under a warrant signed by a legal authority, except in cases flagrantis delicti; and they shall in all cases be brought before a magistrate or other legal authority for examination within twenty-four hours after arrest; and if not so examined, the accused shall forthwith be discharged from custody;” also, “they shall not be called upon for any forced loan or extraordinary contribution for any military expedition, or for any public purpose whatever, nor shall they be liable to any embargo, or be detained with their * * * goods or effects, without being allowed therefor a full and sufficient indemnification which shall in all cases be agreed upon and paid in advance.”

Since this treaty was in full force at time of the outrage, and until March 31, 1886, and, as I have had occasion to remark in another case involving a like question, “was obligatory whether the state was that of war or peace, or whatever might be the circumstances of Peru during the existence of the compact,” the matter may probably appear as thus disposed of.

But, concerning the general principle, even outside of treaty obligations—to illustrate how different has been the view of Peru at another time—I might refer your excellency to the correspondence between Mr. Seward and Mr. Barrada relative to the effort made by Peru to hold the United States Government responsible for the destruction of Peruvian property in 1862 on board a ship in Chesapeake Bay, through the sudden attack of insurgents, notwithstanding the ship ventured into waters which were in the recognized limits of hostilities between the United States Government and the Southern States, at the time engaged, in not only rebellion, but in one of the most fiercely contested and protracted wars of modern times, so formidable in its nature that not only foreign nations, but the United States Government itself virtually conceded to the rebellions States which had a distinct geographical as well as political autonomy, “belligerent rights.”

Although, of course, such a contention on the part of Peru could not under the circumstances be sustained, still the incident is instructive as indicating when Peruvians have been the sufferers how widely the ideas of the foreign office have diverged from those now expressed by your excellency.

Here, too, I may refer to note No. 95 of August 31, 1878, of Mr. Gibbs to Dr. Manuel Yrigoyen, then minister of foreign relations of Peru, in a claim growing out of mob violence, in which allusion is made to the Spanish claims for losses, etc., caused by mobs in New Orleans and Key West in 1851, which were paid for by the United States Government, of which I have made mention in the course of conversation with your excellency.

Under date of June 20, 1834, Mr. McLane, Secretary of State, wrote, concerning a contention of Mexico similar to that made by your excellency.

“The mere revolutionary state of a part of Mexico can not be accepted by the United States as a defense to a claim on Mexico for injuries inflicted on citizens of the United States in Mexico in violation of treaty engagements”

[Page 1375]

I may also quote the language of Mr. Fish, Secretary of State, to Mr. Foster in Mexico, dated August 15, 1875, as follows:

“If a country receives strangers within its limits, it thereby incurs a liability to protect them from violence, not only on the part of its own authorities, but ordinarily also from violence on the part of insurgents. This latter ground of liability may be regarded as continuing at least until the Government of a neutral country whose citizens may be aggrieved in the course of the hostilities shall recognize the insurgents as entitled to belligerent rights.”

I need hardly remind your excellency so far as known there had been no concession of belligerent rights to the revolutionary Government to which pertained “Señor San Roman” when the outrages were perpetrated on Mr. MacCord, either by the Government of Peru recognized at the time by foreign countries, or by any foreign nation diplomatically represented in this capital.

In conversation your excellency asked me, as though the question itself involved a refutation of the idea of national responsibility for the acts of the said “Senor San Roman”: Would not the United States Government have indignantly rejected a claim made against it for the acts of the government of Jefferson Davis?

To which I replied, that I should have to know the character of such claim in order to properly answer your excellency. But perhaps in general terms I had better let the words of the State Department stand for themselves on this point.

Those from the Secretary of State to Mr. Foster, dated December 16, 1873, are:

“It is true that this Government has not confessed its liability for the injuries to foreigners by persons claiming authority in the South during the rebellion. The reason for this disavowal is believed to be that belligerent rights had tacitly, at least, been granted to insurgents not only by this Government but by those of the principal European nations. This is a concession which may be allowed to carry with it an acknowledgment that the party in whose favor it may be made is both competent and willing to do justice to the citizens or subjects of the grantor, and indeed may of itself be allowed to exempt the other party from such accountability.* * * The foreigners who were so injured are citizens or subjects of countries who acknowledged the insurgents as belligerents.”

But whatever may be the different opinions as to the general international rule concerning responsibility or non-responsibility of a government for revolutionary violation of personal and property rights of neutrals, and whatever its limitations or qualifications, this case in reality involves other reasons that place it upon more elevated grounds of equity, the irresistible force of which I think will be apparent.

Your excellency has commented upon the two distinct governments existing in Peru at the time of the MacCord outrage, but it will be remembered that by the act which Generals Caceres and Iglesias signed December 2, 1885, both governments were, by their mutual consent, merged into the provisional government then established, of which the present Government, by popular and peaceable determination, made under the authority and administration of said provisional government, is the successor; so that whatever may have been the character of either the Iglesias or the Caceres governments, by consent of each and of the people of Peru, given through the subsequent elections, the present constitutional Government reigns as the successor of both; and hence should be considered responsible for the acts committed by the officials, or under the authority, of both, so far as they affect the interests of United States citizens.

Mr. Gallatin wrote, February 11, 1824, to Mr. Pierce:

“The doctrine that the present Government of France is not responsible for any injuries committed against the Americans by that of Bonaparte is so contrary to the acknowledged law of nations * * * that it is not probable that it will be officially sustained.”

And President Jackson stated in his message, 1835:

“The defense to a diplomatic appeal for redress for spoliations that the wrong was done by a former sovereign, who was a usurper, is unfounded in any principle in the law of nations, and now universally abandoned, even by those powers on whom the responsibility for acts of past rulers bore most heavily.”

The French spoliation claims were, it may be remembered, therefore, finally settled by France.

I might add that upon dissolution of the Colombian Confederacy the United States Government in 1839 informed its members that it would hold them jointly and severally liable for our claims. That case was simply inverse to this; in Colombia there was dissolution, and in Peru there was consolidation of powers, perhaps making this case, therefore, the stronger upon principle.

In June, 1885, General Caceres was the head of one of the contending governments in Peru, neither of which exercised supreme control over the whole of the national territory. But after mutual arrangement, as above referred to, under the act of December 3, 1885, on the 3d of June, 1886, General Cáceres, to whose Government Colonel San Roman had pertained in his occupancy of Arequipa, was installed as the coustitutional [Page 1376]President of the Republic. This was done after due ascertainment of the popular will, and by the proclamation of the Peruvian Congress, assembled as stated by the Provisional Government in fulfillment of the arrangement of December, 1885, made between Generals Cáceres and Iglesias.

The outrages perpetrated against Mr. MacCord in June, 1885, were of general notoriety at the time, and of such a character as excited general indignation among foreign residents in Arequipa to an extent that elicited their united action in remonstrance, and in a demand for legal trial, which, in violation of treaty and legal guaranties, was not accorded; nor was Mr. MacCord released until the money was raised and paid to the said Colonel San Roman, exercising authority under the government of General Cáceres, to the benefit of which the funds so paid accrued, in the defense of the cause of General Cáceres, and in resisting the “Lima Government.”

The above circumstances are believed to be of public notoriety and at least in the main undeniable, but they are referred to, subject to correction in any details if not accurately stated.

I may quote as pertinent to the imposition placed upon Mr. MacCord, language used relative to other acts of a similar kind in behalf of the same political partisans, and about the same time, viz, the seizure of certain guano at Mollendo appearing to belong to United States citizens, which is equally applicable here: “It was appropriated to sustain a cause which has become national by the voluntary action of the people of Peru, its chief representative being at the present time the duly elected constitutional Executive of the Republic”—with this difference, the seizure of the guano was not, it seems, accompanied by acts of personal violence and cruelty.

Moreover, this same San Roman was retained as prefect at Arequipa, first by the provisional government of the council of ministers, and then by that of the present government; and not only so, but the same Señor San Roman upon the expiration of a two years’ term as such prefect under the present administration of General Cáceres, has been recently re-appointed to the same office, with an official statement that his services have been satisfactory to the Government of Peru. Thus the responsibility of your excellency’s Government for the said acts of Prefect San Roman not only seem fixed by the arrangement of December 2, 1885, and the triumphant succession in pursuance of it of General Cáceres to the chief executiveship, but that responsibility seems still further emphasized by the consecutive re-appointment of Colonel San Roman to the same post in which the outrages were perpetrated on Mr. MacCord, and by the public official approval of his acts in the decree making the re-appointment, dated August 11, 1888.

Trusting that your excellency will, with this fuller presentation, recognize the justice of the observations, respectfully presented, I avail, etc.,

Chas. W. Buck.
[Inclosure 3 in No. 420.—Translation.]

Interpellation of Mr. Denegri by Mr. Rosas.

Mr. Rosas asked that the minister should answer each of the inquiries which he had prepared, and which were as follows:

* * * * * * *

6.
Will the minister state why he was guilty of the crime of falsehood, which is provided for and made punishable by our penal code, when he asserted, in various official telegrams, that treasury notes were still in circulation, on the very days when everybody declined to receive them? What was his object in laying the blame of this upon foreign thieves, thereby offending all foreigners residing in this country? Will he state whether it is not true that the decree whereby he ordered possession to be taken of the Trujillo Railway was based upon grounds which had no existence in fact?
7.
Will he state what reasons he had for conferring the appointment of prefect of Arequipa upon Colonel Manuel San Roman, whose violations of the constitution have been so frequent and so notorious? Will he also state whether he thinks that it was in harmony with the principles of sound policy, and with the respect which is due to law, to confirm that appointment for two years more, without requiring the appointee to give any account of his official acts?
8.
Will the minister say whether he is willing to be held responsible for the violations of the constitution of which the aforesaid prefect has been guilty? His declaration that the Government is satisfied with the course pursued by Colonel San Roman is equivalent to saying that he accepts the responsibility for that officer’s acts.

In reply to the sixth inquiry the minister stated that he did not remember the exact words of his telegrams, but that if there was any discrepancy between them and the [Page 1377]facts, this was doubtless to be attributed to circumstances, for he knew that the merchants had pledged themselves to receive the treasury notes, although they afterwards refused to do so; that as to the foreign thieves, the whole country knew that the men who had tried to stir up disorder, so that they might be benefited thereby, were foreigners; that not a few of the mischief-makers had been imprisoned, all of whom were foreigners. As to the Trujillo Railway he asked that it might be clearly stated which of his decrees on this subject was the one meant.

Mr. Llosa said that the public and the whole country had already passed judgment upon the acts of the minister, and that it was consequently useless to discuss that point.

The minister then said that as the seventh and eighth inquiries had reference to the game thing he would answer them both at once. Colonel San Roman, he said, had been considered the most suitable person to fill the office of prefect of Arequipa, and the Government had approved his acts because of their correctness. The minister stated, in conclusion, that so strong was his conviction on this subject that he declared himself jointly responsible for the violations of the constitution which had been committed by the aforesaid prefect.

Mr. Llosa said that when Mr. Denegri had assumed the duties of his office the Government had agreed to remove the prefect, who had brought great discredit upon himself to such an extent that it would not be strange if a disturbance involving serious consequences to the country should arise at Arequipa solely on account of the acts of this corrupt prefect.

The minister replied that if Mr. Llosa thought that Colonel San Roman had been guilty of violating the constitution he was at liberty to demand his removal and to prefer the necessary charges.

The senate then took a brief recess.