Mr. Hay to Mr. Dudley.
Washington, November 21, 1898.
Sir: I have received your despatch No. 187,a of October 24 last, transmitting a copy of the certificate of the United States consular agent at Tumbez to affidavits submitted by William Fowks in support of his claim against the Peruvian Government, this certificate having been omitted from the papers previously transmitted. This completes the evidence which the Department, in its instruction of August 27, 1896, indicated should be furnished.
The facts in this case, as they appear from the memorial and the affidavits presented in support thereof, are as follows:
William Fowks, a native-born American citizen, engaged at Tumbez, Peru, in the mercantile business as a member of the firm of Edward Fowks & Co., was imprisoned December 28, 1894, for twenty-four hours, by the commander of a revolutionary force opposing the regular Government, at the time in possession of the city of Tumbez. The insurgent commander demanded of Mr. Fowks 400 soles for the use of the insurgents. The money was refused, and thereupon the insurgent commander cast Mr. Fowks into prison and kept him there without food, water, or bed, until after the expiration of twenty-four hours, the severity of the treatment compelling Mr. Fowks to comply with the demand made upon him. Fearing further pecuniary exaction, Mr. Fowks, after his release, left Peru and abandoned the mercantile business in which he was engaged for himself and his partners, who were also, according to his statement, citizens of the United States. In 1896, Mr. Fowks presented to the Department a claim asking for the return to him of the 400 soles extorted by the revolutionary commander as above described, also indemnity for his imprisonment and his personal suffering while in prison, and finally, damages to reimburse himself and his partners for the loss sustained by the enforced abandonment of their business in Tumbez.
It appears from the sworn statements of Consular Agent Baldini, and the other witnesses, submitted in your dispatch No. 134, of May 28 last, that at the time of the revolution Tumbez was held by the regular Government forces under the command of the Subprefect Munoz, numbering from 30 to 150 men, regular troops; that upon [Page 431] the approach of the insurgent forces, numbering about 80 men, Munoz abandoned Tumbez. The revolution, which lasted about six months, was successful, and resulted in the establishment of the present Government. From the date of the imprisonment of Fowks until the inauguration of the provisional government, the revolutionary forces occupied Tumbez, the department of Piuria, in which it is located, being in the hands of the Government forces, numbering about 600 men. The commander of the insurgent forces which occupied Tumbez and imprisoned Fowks was Colonel Seminario, a nephew or the present second vice-president of Peru, and a member of the Peruvian Congress. The insurgents had not been recognized by this Government.
Article 15 of the treaty of 1887 between the United States and Peru, which was in force at the time of the occurrence above recited, contains the following provision: “The high contracting parties promise and engage to give full and perfect protection to the persons and property of the citizens of each other of all classes and occupations who may be dwelling or transient in the territories subject to their respective jurisdiction;” also, “that the citizens of one contracting party within the territory of the other shall not be liable to imprisonment without formal commitment under a warrant signed by a legal authority, except incases flagrantis delicti.” Also, “said citizens, when detained in prison, shall be treated during their imprisonment with humanity, and no unnecessary severity shall be exercised toward them.” Article 2 of the same treaty provides that “they (said citizens) shall not be called upon for any forced loan or extraordinary contribution for any military expedition * * * without being allowed therefor a full and sufficient indemnification, which shall be in all cases agreed upon and paid in advance.”
For the treatment to which Mr. Fowks was subjected, in violation of express provisions of treaty and of the principles of international law, the Peruvian Government is responsible (see the correspondence in the MacCord case, to which you have access). You are accordingly instructed to present a claim in behalf of Mr. Fowks for reimbursement of the money extorted from him, with interest at the rate of 6 per cent per annum from December 28, 1894, and for a reasonable indemnity—say $5,000—for the imprisonment and ill-treatment.
In the opinion of the Department the claim for damages for interruption of the business of Fowks & Co. is not a valid one, and you will not present the same.
I am, etc.,
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