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Mr. Blaine to Mr. Shannon.

No. 53.]

Sir: I have received your dispatch numbered 58, of the 30th of January last, transmitting a copy and translation of a note dated January 11, from the minister of foreign affairs of the Government of Salvador, respecting the violation of the American consulate at San Salvador in July, 1890. I am much pleased with the courteous and friendly tone of Señor Gallegos’s note, and I only regret that its substance is not as satisfactory. The general circumstances out of which the present complaint arises are not questioned. The consulate of the United States was violated by Government troops and its flag torn down and insulted. Its property and archives, as well as the private property of its consul, were destroyed or carried away, and the consul himself subjected to great personal indignities and hardship. To be sure this occurred during revolutionary disturbances; but this fact, as well as every other palliating circumstance to winch Señor Gallegos refers, was anticipated by the Government of the United States and has been estimated at its fullest value. It has from the beginning desired to treat the incident with friendly forbearance and in the most conciliatory spirit. I am sure that its action in this respect further evidences the high consideration for the Government of Salvador by which this Government has been ever actuated.

It will relieve the matter of much needless general discussion to recall the present status of the questions at issue. On the 8th of August, 1890, and before any steps had been taken to right the wrongs complained of, the American minister, Mr. Mizner, arrived at La Libertad. Through Lieut. Denfield he entered into an agreement with the Salvadorian secretary-general. It was expressed in writing and divided under five heads. These articles of agreement, Señor Gallegos in his note says that his Government at once confirms, “since it recognizes the principles of justice upon which they rest.” The first two were complied with at the time, and the third in so far as the property and archives were remaining. The fourth and fifth were as follows:

(4)
That the minister of the Provisional Government charged with the foreign relations of Salvador should address to me (Mr. Mizner) a letter expressing his regrets and apologies.
(5)
That as soon as practicable a satisfactory payment be made for the damage done the property of the United States and the private property of the consul.

So far as this Department is informed no letter expressing the regrets and apologies of the Salvadorian Government was addressed to the American, minister. I have desired, however, to infer such an expression from the supposed desire and readiness of that Government to promptly reimburse the Government of the United States for the damage done to itself and to its consul.

It having been already agreed that a satisfactory payment should be made for the damage done to the property of the United States and the private property of the consul, there is no possible ground for difference between the two Governments in this regard except with respect to the determination of the amount. Upon this point the note of Señor Gallegos is far from satisfactory. He says:

My Government believes that the claim presented by Mr. Myers for the indemnization 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 [Page 35]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 indemnization, in like manner, is to be regulated according to general provisions.

If any question as to whether an indemnity is due were not precluded by the terms of the agreement, I should be in doubt whether Señor Gallegos did not contend that that question should be remitted to the courts of his country. As such a question is precluded, I assume that what he means is that this Government is bound to prosecute before the Salvadorian courts the assessment of the damages due to itself for the destruction of its property and that of its consul.

It is unnecessary to discuss what the proper course would be if during the occurrences in question the property of an ordinary resident alien had been destroyed, for such is not the present case. Mr. Myers was the consul of this Government. He had no business and no interest in San Salvador separate from and independent of its business and its interests. His property which was destroyed was properly and necessarily in the American consulate, which by the terms of the treaty was declared to be inviolable. This Government only famishes to its consuls a part of the equipment which is necessary for the conduct of its business and for their convenience. It matters not, however, whether the property in question belonged, under our consular system, partly to the United States and partly to its consul, or exclusively to the former. It was all necessarily connected with the conduct of the business of this Government and the injury done to it was as if clone to the United States.

No government can be more jealous than this in preserving for its tribunals the settlement of every question properly subject to their jurisdiction. The present incident, however, in none of its phases was ever a matter within the jurisdiction of the courts of Salvador, and the less so after the two Governments “recognizing the principles of justice” governing the case, had entered into an agreement with respect thereto. It is not within the province of the courts of any country to pass upon an agreement between two governments. It would ill become the dignity of the Government of the United States, nor will it consent to submit the agreement which it has made with the Government of Salvador to any tribunal other than one of their joint making. But irrespective of the agreement, it could not consent to go itself nor to send one of its officers, whose injuries arose out of the performance of his official duties, into the courts of Salvador to determine what damage has been done.

This Government disclaims any pretense of a right to alone determine that question. I had reason to believe that the inventories of the property destroyed, prepared by Mr. Myers, were made in good faith, and I transmitted them to you for submission to the Salvadorian Government in that spirit. Having regard to the inherent difficulties—especially after this delay—of so exact a determination of the matter as would be desirable, it was thought that these schedules would probably be accepted as fair under the circumstances. This Government has no other desire, however, than to arrive at the actual damage, and it is content to make any review of Mr. Myers’s statements of the same which may seem to be required. It believes that the determination of that matter ought to be arrived at without difficulty, between Señor Gallegos and yourself. Whether as an aid to its consideration you may prefer to each appoint a person to jointly examine it and report to you the result of their findings, is a mere matter of detail.

[Page 36]

Referring now to the matter of reparation for the personal injuries which Mr. Myers suffered, although that question is not covered by the agreement, still upon general principles it is regarded as one likewise to be determined solely by the agreement of the two Governments. As it appears by Señor Gallegos’s note that he awaits such suggestions as you may care to offer with respect thereto, you may inform him that you are authorized on behalf of this Government to agree upon the amount of indemnity to be paid. You may also say to him that in the opinion of this Government it can be best settled at the same time and in the same manner that the amount of damage for the property destroyed is agreed upon.

Regarding the character of the injuries which Mr. Myers sustained, the information of this Government is that they were substantial. He returned to this country soon afterwards in impaired health, attributable, it is claimed by him and believed by this Government, to the experiences which he underwent at the time of the occurrences in question.

Finally, I have read with interest Señor Gallegos’ explanation of the manner in which his Government regards the facts upon which are based the charge that Mr. Myers was prevented from communicating 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.

He says that “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 that “without refusing to Mr. Myers permission to inform the Department of State at Washington of what had occurred, he (the secretary-general) limited himself to simply proposing that the form of his telegram should be modified in the terms known to your excellency.” He concludes, therefore, that Mr. Myers “was not prevented from communicating with his Government in any manner whatever, and although there was exercised a species of censorship in respect to the telegram which he proposed to send to Mr. Blaine on the 2d 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 guaranty of the 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 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 the treaties.”

Whether the act of the Salvadorean Government be called prevention of communication or mere censorship, it resulted, in fact, in preventing Mr. Myers from sending the telegram to his Government which he desired to send. It does not relieve the matter that the Government of Salvador proposed another and different telegram which it was willing to permit to be sent. It was competent for the Salvadorean Government itself to communicate to this Government such a report of the facts in question as may have seemed to it proper, but not for it to dictate to an official what he should report. The Government does not recognize the pertinency of any principles which may be thought to be applicable to a state of siege or martial law. At the time of the occurrences in question the city of San Salvador was in the undisputed possession of the Government forces, and there was nothing in the situation [Page 37]warranting interference with the right of free communication to which Mr. Myers was entitled by treaty and the principles of international law. Neither can this Government conceive of any communication between its consul and itself more intimately associated with his official duties than a report that the consulate and its archives had been destroyed and the performance of his official functions interrupted. Mr. Myers would have been most derelict in his duty if he had not attempted to communicate that fact. Such a communication was privileged, and in the opinion of this Government especially within the purview of the second section of article 35 of the treaty of 1870, which provides that “Consuls in all that exclusively concerns the exercise of their functions shall be independent of the State in whose territory they reside.”

Señor Gallegos, for similar reasons, justifies the course of his Government in refusing Mr. Myers a passport to leave the country except upon the condition of the withdrawal of his exequatur. He finds also a further justification therefor in the fact that his “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.”

Señor Gallegos’ explanation strengthens my conviction of the correctness of the language which I used with respect to this phase of the case in my No. 21 of November 20 last, and which I now repeat:

Article 32 of the treaty of 1870 is plain with respect to the right of the Government of Salvador to withdraw Mr. Myers’ exequatur upon reasonable grounds, but to refuse to give him a pass to leave the country except on that condition, while making no objection to his continuing to exercise his consular functions if he would remain, was a species of duress, the gravity of which is increased by the fact that his avowed purpose in temporarily leaving was to communicate with his Government. It would seem to have been an attempt to do indirectly what Mr. Myers charges was also done directly, viz, to prevent his communicating with his superiors.

This Government, therefore, renews its protest, as it is in duty bound to do, against the interference of the Government of Salvador, both directly and indirectly, with Mr. Myers’ official communications.

I am, etc.,

James G. Blaine.