Your note of the 3d ultimo to Mr. Alzamora is generally approved, but, for
your guidance in the future, it is proper that the Department should state
some qualifications of the doctrines you have announced on the subject of
the liability of a Government for the acts of insurgents whom it could not
control, and for the violence of mobs.
In respect of the latter, it is the doctrine of this Department that a
Government can not be held to a strict accountability for losses inflicted
by such violence. This subject has recently been discussed in the
correspondence between this Government and that of China, in relation to the
outrages inflicted upon Chinese subjects at Rock Springs and other places in
the United States by bands of lawless men. While the United States have paid
a considerable sum towards the relief of the unfortunate victims of these
outrages, yet this has been done as an act of generosity and friendship, and
not in pursuance of an acknowledged liability. The position of the
Government was the same in reference to the attacks on the Spanish consulate
in New Orleans, in 1850, to which you advert in your note to Mr. Alzamora as
affording an acknowledgment of the liability of a Government for acts of mob
violence towards foreigners. A full discussion of that incident will be
found in the note of Mr. Bayard to Mr. Cheng Tsao Ju, of the 18th of
February, 1886, published in Foreign Relations for that year.
In regard to the question of the liability of a Government for the acts of
insurgents whom it could not control, it may be admitted that there is some
contrariety in the opinions the Department has heretofore expressed. But,
while you cite to Mr. Alzamora the contention of his Government in regard to
the liability of the United States for the destruction of a Peruvian ship by
insurgents in the Chesapeake Bay, in 1862, it must also be remembered that
the position the United States took on that subject was that such
destruction having been effected by a sudden attack of insurgents which
could not, by due diligence, have been averted, the Government of the United
States was not bound to make indemnity.
On the whole, the Department has to commend the industry and care exhibited
in the preparation of your note.
Inclosed herewith is a copy of a letter of the 2d instant, with accompanying
papers from Mr. S. Newton Pettis, who has addressed the Department as
counsel for Mr. MacCord.
[Inclosure 2 in No. 232.]
Petition of Mr. MacCord.
The memorial of Victor H. MacCord, at present sojourning at Arequipa,
Peru, South America, begs leave to present:
First. That he is a citizen of the United States and was horn in Mercer
County, Pennsylvania.
Second. That he has been in Peru, South America, most of the time since
1870, and much of the time in the employ of the Mollendo, Arequipa and
Puno Railroad Company, and at one time acted as United States consul in
Peru.
Third. That he visited his home in Pennsylvania in 1883, from there going
hack to Peru for the purpose of closing up his affairs in South America,
which he informed his relations in Pennsylvania he thought he could do
within two years, with the intention of returning to his home in
Pennsylvania, never having abandoned his United States citizenship.
Fourth. That while in Peru he represented American interests, that it has
always been his intention to return to the United States, and that his
residence in Peru has been only temporary, and for business purposes,
and that he has never acquired a domicile in Peru, or out of the United
States.
Fifth. That he was in June, 1885, an employé of the Mollendo, Arequipa
and Puno Railroad Company, in the Republic of Peru, South America, with
his headquarters at Arequipa.
Sixth. That on or about the 12th day of June, A. D. 1885, your
memorialist was by the order of the prefect of the city of Arequipa,
Peru, Colonel Don Manuel San Roman, without any cause or provocation,
arrested and imprisoned in the San Francisco Barracks at Arequipa, and
while so imprisoned and in such confinement your memorialist received
from the said prefect a communication, of which the following is a true
copy:
“Give by telegraph the necessary orders to completely destroy the
railroad track between Cachendo and La, Joya. You have time to
comply with this terminal order
[Page 1379]
until to-morrow early, because being, as
you are, in the power of the authority who has to perform its
duty in these circumstances, the mere fact of the fugitive
engine attempting to pass La Joya in direction of this city will
put me in the case of shooting you without the least delay, as
you are the only person responsible for what has happened. God
guard you.
“Manuel San Roman.”
At the foot of which official note the following instructions are given:
“Mr. Tamayo,
“Resident Engineer:
“Please dictate the necessary measures to carry out the above
indicated order of the prefect.
“Fecha ut supra.
“V. H. MacCord,
“San Francisco Barracks.”
Seventh. That some time after the receipt of the foregoing note or
communication, an officer came to the cell in which your memorialist was
confined, and advised him to arrange his affairs as there was an order
to shoot him within an hour, and that in less than half an hour
afterwards he was marched out to the parade ground and stood up before a
file of soldiers armed with rifles, and asked if he wished to say
anything as he was about to be shot, whereupon your memorialist replied
that he had committed no crime, no offense, and had nothing to say;
thereupon, three or four of the officers retired a short distance, and
appeared to consult among themselves for a moment, when one said, “It is
not good to kill a man,” and then led your memorialist back to the cell
from which he had been taken.
Eighth. That upon the following day your memorialist was verbally
notified by the sub-prefect that, by order of the prefect, your
memorialist must pay a fine of 10,000 soles, and that it must be paid at
once, or severe measures would be taken against his person to compel the
payment, and that no delay would be allowed, when your memorialist
replied that it was entirely unjustifiable to impose a fine implying
culpability without even a semblance of an investigation, and asked that
a trial be given him, which was refused.
Ninth. That soon after the entire foreign colony resident in the city of
Arequipa went in a body to the prefect’s house and obtained from him a
promise to have your memorialist (still a prisoner) confined in some
other place which offered more security for his life, and that he would
be given a prompt trial in accordance with the laws of the country.
Tenth. That on the following day, June 14, notice was given your
memorialist by verbal message from the prefect that if the 10,000 soles
were not paid before 3 o’clock in the afternoon, the “extreme measures”
threatened would be applied, and the fine increased to 15,000 soles,
and, if delayed longer, to 20,000 soles, whereupon your memorialist
again protested against the illegality of the fine, and demanded the
trial promised the night before to the consular corps and the several
members of the foreign colony, which was refused, and threatening
replies only received.
Eleventh. That your memorialist, convinced of the arbitrary and brutal
proceedings which were evidently to be employed to compel payment, it
was suggested that the amount of the fine (although entirely
unauthorized) be deducted from the balance due your memorialist’s
employer, the railroad company, from the Government for work done, but
that was refused.
Twelfth. That on the morning of the 15th of June, 1885, your memorialist
was informed that by order of the prefect your memorialist could not be
allowed either food or water, and that every article of furniture be
removed from his cell, which order was forth with carried out, such cell
being a damp one, with a brick floor, and your memorialist was compelled
to stand, as everything, even a rough stone, which might have served as
a seat, was taken away.
Thirteenth. That it being impossible to exist without food or drink,
thanks to some of the commercial houses of the city of Arequipa, the
money was raised, to wit, the sum of 10,000 soles, and paid, and at 3
o’clock in the afternoon your memorialist was allowed to go at
liberty.
Fourteenth. That in view of and in consequence of the foregoing recital
of acts of indignity, barbarity, and illegality your memorialist lost no
time in making formal protest before Hon. Alexander Hartley, acting
British vice-consul, at the British vice-consulate, on the 16th day of
June, 1885, against the arbitrary, abusive, and barbarous proceedings of
the aforesaid prefect of Arequipa, Colonel Don Manuel San Roman,
declaring that the 10,000 soles in silver were paid under pressure and
threats of violence, reserving the right to make claim to a higher
authority, and to appeal to diplomatic means, if necessary, in defense
of his rights, and that the first use made of his liberty was to enter
such protest at the British vice-consulate, as aforesaid.
[Page 1380]
Fifteenth. That such protest was, by your memorialist, promptly forwarded
to the United States legation at Lima, Peru, with the following
certificate attached:
“Thus protested and declared in due form of law, at Arequipa
aforesaid, the day and month and year first ahove written.
“Alex. Hartley,
“Acting British Vice-Consul.”
Sixteenth. That the said prefect on the 8th day of December, 1886,
solicited the approval of his proceeding against your memorialist by the
Peruvian Government, when, without either notice to or hearing of your
memorialist, the Peruvian Government proceeded under the date of
December 15, 1886, to approve, and did approve of the said action of the
said prefect, Col. Don Manual San Roman, in the matter of which your
memorialist was informed by official note, dated the 22d day of
December, 1886.
Seventeenth. That since the 13th of June last (1888) your memorialist was
again made the victim of Peruvian persecution, by the authorities of
Arequipa, Peru, confined and imprisoned in his own office for five days,
so confined for twenty-seven hours without food or water, for the
purpose of forcing your memorialist to pay the amount of $3,000 for
taxes levied on the railway by the authorities, although your
memorialist was neither stockholder nor director in the said railway
company, while his connection with it had ceased some time before, and
of which oppression and barbarous treatment your memorialist made
complaint, and of such abusive proceedings he protested before the
English minister, and for all of which abuse, maltreatment, and
persecution your memorialist makes complaint to you, the high official
of his Government, and in such connection asks that reparation be
demanded by the Government of the United States of the Peruvian
Government, and your memorialist’s claim of $200,000 indemnity for the
treatment herein complained of be promptly prosecuted; and he will ever
pray.
Victor H. MacCord,
By
S. Newton
Pettis,
His Attorney, No.
302
Chestnut street, Meadville,
Pennsylvania.
