Mr. Shannon to Mr. Blaine.

No. 58.]

Sir: Referring to my No. 45, of January 7, 1802, I have the honor now to report that his excellency, the minister of foreign affairs of Salvador, has addressed me another and fuller communication in reply to my note regarding the yet unfulfilled conditions of Mr. Mizner’s agreement, consequent upon the violation and occupation by the military forces of that Government of the United States consulate at San Salvador in July, 1890.

In obedience to your instruction numbered 21, of November 20, 1891, I beg to herewith transmit this reply, accompanied by a translation.

I have, etc.,

Richard Cutts Shannon.
[Inclosure No. 58.—Translation.]

Señor Gallegos to Mr. Shannon.

Mr. Minister: There has been received at the offices of this ministry, under my eharge, the courteous note of your excellency, dated the 15th ultimo, relative to the incident of the violation of the United States consulate during the revolutionary disturbances which occurred in this capital the middle of last year, in consequence of which the American legation, then in charge of Mr. Mizner, proposed to this Government certain conditions of agreement, which your excellency enumerates, and then states that the first three conditions having been fulfilled, there still remains pending the question of pecuniary indemnity, on account of which the legation of your excellency, trusting to the offers made by the secretary-general of the provisional government to Lieut. Denfield, now presents two inventories prepared by Mr. Myers, from which it appears that the property of the American Government destroyed in the consulate amounts to $137.50, and the value of the private property of [Page 31]the consul so destroyed, $2,172.65, the reimbursement of which sums by tins Government is requested.

Your excellency adds that in the opinion of the American Government Mr. Myers is entitled to some additional compensation on the ground of injuries and sufferings to which he was subjected during the events referred to, and so that official makes a further claim for the sum of $15,000, but regarding which the Government of your excellency desires only that the Salvadorian Government may do whatever justice shall seem to require, this point being reserved for a later consideration.

Finally, your excellency calls the attention of this Government to the circumstance of Mr. Myers having been prevented from communicating directly with his Government and with his legation, and to the circumstance of his having been refused a passport to leave the Republic, except on the condition that his exequatur be withdrawn at the same time, and in proof of which your excellency appends a declaration of Mr. W. P. Fletcher, these two last charges being presented as important factors in this disagreeable affair, requiring some satisfactory explanation and reparation.

I immediately brought to the knowledge of the President-General of the Republic the note of your excellency and its several annexes, and in obedience to instructions received I now reply, declaring first of all, to your excellency that if, not only in the appreciation of the facts which occurred, but also of the claim based upon them, the opinion formed by this Government does not fully agree with the conclusions reached by the legation under the charge of your excellency, still not less firm on that account is the purpose which guides my Government in seeking to define the nature and responsibility of the facts referred to, not only in just regard for that which the dignity and the rights of the nation demand, but also in consideration of the relations of friendship which happily unite the two Republics.

I also desire to call the attention of your excellency to the circumstance that even before it was able to duly appreciate the facts which occurred in the American consulate, since the Republic was in the midst of a trying crisis which absorbed its whole attention, my Government sought to remove all doubt regarding its deferential and respectful attitude toward the American Government in acceding to the conditions that Mr. Mizner demanded by publicly honoring the American flag, and in like manner placing the consul, Mr. Myers, in possession of the consulate, of which he considered himself to have been temporarily deprived.

This course of action on the part of my Government, it is hoped, will be estimated at its just value by the illustrious Government of your excellency in reconsideration of the incident which gave rise to it, and in view of the claim now made.

Your excellency, referring to the conditions of the agreement proposed by Mr. Mizner, states there is still pending the condition relative to indemnity, and according to the inventories prepared by Mr. Myers, copies of which are furnished me, there is claimed, on this ground, the reimbursement of $137.25 as the value of the property of the American Government destroyed in the consulate, and $2,172.65 as the amount of the private property so destroyed belonging to the consul. My Government at once confirms, in this respect, the offers made by the secretary-general to Lieut. Denfield, since it recognizes the principle of justice upon which they rest. But, if it is an indisputable duty that an indemnity should be granted for damages caused to private property by the forces of the Government, so it is also of universal justice and constant practice among nations that the appraisal of such damages can not be left, in any case, to the individual decision of the interested parties, and much less be extended so as to equal the total value of the property so damaged; this class of claims being always subject to those general laws which each nation prescribes for itself, indemnification being regarded as a public debt for its recognition and payment.

It is not the purpose of my Government, in making these observations, to cast any doubt upon the honorable character of Consul Myers, or discusss the accuracy of the figures which he presents as the amount of damages suffered. The sole object it has in view is one inspired by higher motives, and consists in not going beyond the limits of its friendly complacency toward the worthy functionaries of the American Government by relaxing in their favor the empire of the laws, which are equally obligatory upon them as upon Salvadoreans. Otherwise there would result, besides the discredit of our institutions, the injustice of establishing a difference of conditions, leaving to our native citizens an inferior place.

Your excellency will permit me, in regard to this point, to recall the fact that the prerogatives which by international law are granted to consuls have for their sole object to facilitate the discharge of such duties as belong to them, without recognizing that they have any diplomatic character or enjoy the exemptions which are peculiar to public agents. Therefore, the protection of person and property which is to be extended to consular officials is subject to the same conditions as that which is extended to citizens, and has for its basis the obligation of opening to them the tribunals, and granting them the same freedom in the use of judicial proceedings as the natives themselves enjoy.

[Page 32]

Setting out from this principle, my Government believes that the claim presented by Mr. Myers for the indemnification of the losses which he declares were suffered in his property and in that of the American Government, as a result of the events of July, 1890, can not be limited for the present to the mere fixing of a sum of money, so as to demand its simple reimbursement, without there being first held, in due form, those proceedings which the laws of the country prescribe and require as indispensable, before the tribunals established by the laws for proving and appraising of damages sustained, which indemnification, in like manner, is to be regulated according to general provisions.

As regards the compensation, which, in the opinion of the Government of your excellency, ought to be paid to Consul Myers on the ground of injuries and sufferings to which he declares he was subjected during the events referred to, the ministry under my charge, in the absence of data which the interested party should have laid before the tribunals of the country, instituted an inquiry by the departmental governor, in order to ascertain what in reality took place, and I am sorry to have to state to your excellency that from information thus obtained it appears that so far from Mr. Myers having suffered the slightest injury he was the subject of special consideration among the various families about him, who extended to him the most cordial hospitality, notwithstanding the difficult and unfortunate circumstances of the moment, it being further shown from the testimony alluded to that the consul had failed to make suitable return for the attentions which were lavished upon him, and rather gave ground for well-merited and bitter censures, which in deference to that official the Salvadoreans wished to overlook.

My Government, Mr. Minister, does not doubt that Mr. Myers may have experienced on that occasion painful privations and sufferings imposed by the circumstances, and all the more, if one takes into account the rather pusillanimous spirit of which he gave evident proofs; but it does not believe that, finding himself in the same general situation as that to which the entire community was subject on account of the events referred to, in themselves exceptional, this could justly be made the ground for a claim in his favor, it being frequently the case that governments are powerless to prevent occurrences of this nature, and that even among nations better organized they sometimes happen as a chastisement to communities.

Nevertheless, this point being reserved by your excellency for a mutual and ulterior consideration, my Government will respectfully await such indications as your excellency may have the goodness to offer upon the subject, not doubting that, animated by a spirit of rectitude and justice, some satisfactory solution will be reached.

Finally, I take pleasure in giving to your excellency a frank explanation of the manner in which this Government regards the facts upon which are based the charge that Mr. Myers was prevented from communicating directly with the American legation, and that of having refused him a passport to leave the Republic, unless upon the condition of withdrawing his exequatur at the same time.

I suppose your excellency is well informed of the circumstances under which occurred the incident alluded to. The capital of the Republic had been occupied by the troops of José Maria Rivas, who betrayed the government of Gen. Ezeta, at a time when his forces were defending the frontier against the armed intervention of the Government of Guatemala. The rebellion had established itself in the heart of the Republic, and it was necessary to display extraordinary activity and energy to overthrow it and reëstablish the action of the authority. In such difficult circumstances the Government, without giving truce to the rebellion, withdrew from Santa Ana a part of the army and suddenly attacked the barracks of the capital before it had been twenty-four hours in the power of the rebels, recovering the capital two days later and reëstablishing the empire of law. As soon as the firing began the neighbors of the American consul opened communication between their houses and the house of that official, considering, with reason, that they would be occupied by the forces in attacking the artillery barracks, which was situated in front of them, as indeed happened, and, in company with the consul, they took refuge in a house on the borders of the town, some 600 yards from the consulate, which during the attack offered free access to the troops to pass to the point from which the fire was directed against the enemy; the flag, probably for this reason, now being lowered, and Mr. Myers experiencing those injuries and sufferings of which he complains, Hardly had the capital been recaptured, although the frontier was in part uncovered, when Mr. Myers, without giving due credit to what had occurred, proposed to forward the telegram of which your excellency inclosed me a copy, and in which Gen. Ezeta appears as a simple military officer in command of disorganized troops, launching himself upon the capital, regardless of everything, carrying in his train destruction and disorder; when, without violating the truth, the consul could very well have informed his Government of the facts in a manner at once respectful to the chief of the nation and the well-regulated conduct which his forces had observed on that occasion, with out staining, even indirectly, the good name of the representative of authority and of the army of the Republic, especially at a moment when they had been most exalted [Page 33]by their energetic and successful efforts for the reëstablishment of order. Thus, undoubtedly, the secretary-general of the Provisional Government understood it from the first, and so, without refusing to Mr. Myers permission to inform the Department of State at Washington of what had occurred, he limited himself to simply proposing that the form of his telegram should be modified in the terms known to your excellency, altering only what could unjustly redound to the discredit of the Republic, although even as to the other points, such as those relative to the destruction of the residence and of the consulate, the truth was exaggerated to a marked degree. Mr. Myers, as your excellency can see from the declaration of Mr. Fletcher, did not wholly reject the revision of his telegram, but reserved for himself to declare afterwards if he would accept or not the substitution of one telegram for the other, and in regard to which it does not appear that he came to any final decision. Mr. Myers, therefore, was not prevented from communicating with his Government in any manner whatever, and although there was exercised a species of censure in respect to the telegram which he proposed to send to Mr. Blaine on the second day of August, 1890, for the excellent reason I have mentioned, still that exceptional measure had a legitimate basis in the abnormal condition of affairs then existing, the Republic being in a state of siege, a situation which suspends the guarantee of inviolability of correspondence.

To this reason might be added still another—that the telegram alluded to may not, in strictness, be considered as an official act or report exclusively relating to the exercise of the consular functions, the only case where officials of that class are to be recognized as independent of the State in whose territory they reside, according to treaties; the telegram being for that reason subject to the law of the state of siege, which authorizes the intervention that was exercised by the authority.

For similar reasons may be justified, in like manner, the condition imposed on Mr. Myers for issuing to him the passport which he requested so as to leave the Republic, since the guarantee of free emigration, which our institutions recognize, is another of those guarantees which are suspended by the state of siege; and if this would be perfectly legal in its common application, still, treating of the special case relative to Mr. Myers, whose departure from the country had for its evident object, as your excellency recognizes, to nullify the action taken by the Government respecting the telegram which it was proposed to send, I believe that for still stronger reasons there could be denied to that official the passport which he asked, and there could not only be imposed upon him the condition of withdrawing his exequatur, but it could be withdrawn at once.

I indulge the hope that your excellency will be able to justly appreciate the considerations herein set forth, taking always into account, as one of the most important data to judge of their merit, the exceptional circumstances in which the events occurred, and the significant proofs of deference with which my Government endeavored at first to soften the harshness of the situation to which Consul Myers was necessarily subjected, and to make amends afterwards, by public demonstrations of honor, for whatever could in any manner be considered as lowering or humiliating for the American Government, for which my Government has ever entertained, and still entertains, the most profound respect and distinguished consideration.

I remain, etc.,

Salvador Gallegos.