No. 926.
Mr. Rives to Mr. Buck.

No. 232.]

Sir: I have to acknowledge the receipt of your No. 420 of the 7th ultimo, in which you inclose copies of correspondence with the minister of foreign relations of Peru, on the subject of the outrage upon Mr. V. H. MacCord in 1885.

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.

[Page 1378]

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.

I am, etc.,

G. L. Rives,
Acting Secretary.
[Inclosure 1 in No. 232.]

Mr. Pettis to Mr. Bayard.

Sir: Since the receipt of Mr. Secretary Adee’s reply to mine of the 25th of last July addressed to you (the Secretary’s under date of August 14, 1888), I concluded to make a formal claim in favor of Mr. V. H. MacCord against the Peruvian Government in South America, which I have the honor to inclose to you herewith.

I am, etc.,

S. Newton Pettis.
[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,

S. Newton Pettis,

His Attorney, No. 302 Chestnut street, Meadville, Pennsylvania.
[Inclosure 3 in No. 232.]

Affidavit of Mrs. Sarah Ann Allen.

Commonwealth of Pennsylvania,
Crawford County, ss:

Mrs. Sarah Ann Allen, formerly Mrs. Dr. MacCord, being sworn, says that she was born on the 11th day of February, 1819, near Meadville, Crawford County, Pennsylvania; that she is now a resident of Linesville, in the county aforesaid, and was in 1885; that Victor Hugo MacCord, now sojourning at Arequipa, Peru, in South America, is her son, and was born in the Commonwealth of Pennsylvania on the 18th day of January, 1842; that she has read the foregoing memorial of Victor Hugo MacCord, addressed to Hon. T. F. Bayard, and that the facts therein set forth are correct and true, as she verily believes, and that her said son, Victor Hugo MacCord, informed this affiant, when at home with her in 1883, that he intended to settle up his business and return home, and that he expected to accomplish that in a couple of years and return to his home in Pennsylvania.

Sarah Ann Allen.

[l. s.]
Win. S. Rose,
Notary Public.
[Inclosure 4 in No. 232.]

Affidavit of Mrs. Mary Ada Gehr.

Commonwealth of Pennsylvania,
Crawford County, ss:

Mrs. Mary Ada Gehr, being duly sworn, saith that she is the daughter of Mrs. Sarah Ann Allen, and was bom May 27, 1862, at Espyville, in Crawford County, State of Pennsylvania, and that she has read the memorial of her brother Victor Hugo MacCord, and believes that the statements therein contained are correct and true, and concurs with the statements of her mother with reference to the statements made by her brother in 1883, while at home, concerning his return to his home in Pennsylvania so soon as he could settle his affairs in South America.

Mrs. Mary Ada Gehr

[l. s.]
Win. S. Rose,
Notary Public.