Alvin P. Hovey to His Excellency, September 17, 1870

Mr. Alvin P. Hovey to Señor Loayza.

Sir: I have had the honor of receiving your excellency’s note, No. 44, in reply to my No. 29, dated the 13th instant, and ! regret that any difference has arisen between us, as I feel fully satisfied that your excellency, as well as myself, would not knowingly infringe any principle established by the law of nations. Before proceeding to answer your excellency’s arguments in full, it becomes my duty to reiterate a simple statement of the facts, so that just deductions may be drawn from the same. The treaties between the United States and Peru were signed, bearing date of the 6th and 12th instant. I informed your excellency at an early hour on the 13th that Colonel Farrand had been appointed bearer of dispatches by me. His passport and dispatches were delivered to him on the 12th instant. On the following day Colonel Farrand informed me that certain legal proceedings would probably be instituted against him for his detention in Peru. Thereupon I immediately addressed your excellency, informing you of the facts and begging your excellency to take such steps as would impede the Peruvian authorities from interfering with his voyage to the United States. Your excellency thought proper to decline my request, seeming to insist that the laws of Peru were superior to and controlled the law of nations. Dr. Elmore, the official mayor of the foreign office, brought this note to me in person, at 9.30 p. m., on the same day. I then again immediately addressed your excellency at 10.30 p. m., informing your excellency that it would be necessary for Colonel Farrand to leave on the morning of the 14th, at 8 o’clock, and still insisting upon the positions which I had already assumed. On the departure of Dr. Elmore from this legation, I was assured by him that I should have an answer to the same in time for the train at 8 a. m. I received no written answer from your excellency, but about 7.40 a. m. I received a line from Dr. Elmore, dated September 14, 7.15 a. m., saying: “The minister says he is sorry he can do nothing in the affair, and that the colonel need fear nothing being with you.”

I regarded this statement from the official mayor as an easy mode devised by your excellency to avoid the controversy between your excellency and myself, not supposing for one moment that after this semi-official announcement the least difficulty could take place, as the personal arrest of a member of a legation, in the presence of the minister, under such circumstances, could be regarded in no other light than a direct insult to his government.

I will further state to your excellency, as I have heretofore in due time stated, that at the time of delivering the passports and dispatches into the hands of Colonel Farrand, neither he nor myself had any knowledge of the intent to prevent his embarkation. I was not a little surprised on arriving on board the steamer to find an order for his detention before me. Giving, however, to the officer representing the captain of the port, a copy of the above-cited short note from the official mayor, Colonel Farrand was permitted to depart. From the foregoing facts, I felt assured that the whole matter had been indirectly prearranged by your excellency. Inasmuch, however, as your excellency seems still to insist that the local laws are superior to the law of nations, I deem it my duty to lay before your excellency the views I entertained, together with a few authorities upon this important question. Your excellency thinks proper to state that some other person or persons might have been chosen as bearers of dispatches. Your excellency will pardon me for saying that while Peru has the right to select her officers, the United States ought to be entitled to the same privilege.

It may or may not be politic, convenient, or possible to select this or that person to fill such an important position as that of bearer of dispatches. Extremes sometimes thoroughly test a principle. Let us suppose a minister in court inimical to his country, and that difficult and dangerous questions are to be settled. In such a case (which happily does not exist between our respective governments) it would then be within the power of the government where such minister resided to prevent all communications or dispatches to or from the government of such minister, unless the inviolability of the bearer of dispatches is conceded.

Wheaton, in the Elements of International Law, sec. 14, says:

“From the moment a public minister enters the territory of. a state to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an exemption from the local jurisdiction, both civil and criminal.”

Again, in section 19:

“The practice of nations has also extended the inviolability of public ministers to the messengers and couriers sent with dispatches to and from the legations established in different countries.”

Vattel, in the Law of Nations, p. 471, sec. 92, says:

“The law of nations, therefore, while it obliges us to grant admission to foreign ministers, does also evidently oblige us to receive those ministers in full possession of all the rights which necessarily attach to their character all the privileges requisite for the performance of their functions. It is easy to conceive that independence must be one of those privileges; since, without it, that security which is so necessary to a public minister would be enjoyed on a very precarious tooting. He might be molested, persecuted, maltreated, under a thousand pretenses.”

Again, sec. 143:

“Couriers sent or received by an embassador, his papers, letters, dispatches, all essentially belong to the embassy, and are consequently to be held sacred; since, if they were not respected, the legitimate object of the embassy could not be attained, nor would the embassador be able to discharge his functions with the necessary degree of security.”

The following authorities bear upon and support the same doctrine: Woolsey, International Law, sec. 92; Martens, Guide Diplomatique, sec. 26; Kuber, Droit de Gens, sec. 190; Heffter, International Law, sec. 204; Horne on Diplomacy, sec. 37.

Your excellency, in your No. 43, mates a distinction between bearers of dispatches who come into the country and those who may reside therein. Surely the authorities all agree that an envoy extraordinary and minister plenipotentiary has the power to clothe the messenger with inviolability as amply and fully as the sovereign of the court from which he is accredited. I will be pardoned for saying that your excellency will have great difficulty in finding a precedent or authority in any respectable work on international law for the positions your excellency has assumed. Your excellency’s argument from the omission of Baron Martens, in not mentioning couriers going out of a country, is fully met and answered by the words from Wheaton and Vattel, above quoted, “Couriers sent to or from the legations;” “Couriers received or sent by an embassador,” &c.; and Martens himself, quoted by your excellency, says: “Couriers are messengers sent by sovereigns, governments, or ministers, and that all violence committed upon them is an atrocious violation.” (Sec. 250, Précis Droit de Gens.)

May I ask your excellency how a courier could be sent from the legation, or couriers received or sent by an embassador, or sent by a minister, without going out of the country where the minister resides appointing him? This seems to me, in all courtesy, a full answer to your excellency’s argument on this point, as your excellency admits the inviolability in all other cases, and only controverts the great authors of international law as to couriers going out. When Wheaton says his person is inviolate, and Vattel that his person is sacred, and Martens that all violence committed upon his person is an atrocious violation of the law of nations. Let me ask again, if couriers could be stopped on account of local obligations, might not the labors of such ministers prove abortive? For the courier, like the minister, in the language of Vattel, above cited, “might be molested, persecuted, maltreated, under a thousand pretenses.” I have strong reason to believe that the action brought against Colonel Farrand, which has caused the present correspondence, falls within the spirit of the above quotation. The law of nations, so to speak, is the constitution of the civilized nations of the world, and is above all local laws and enactments.

The laws of Prussia made the personal property of a person who was the tenant of another subject for the payment of the rent, but the question arose, “not what are the rights conferred by the laws of the country upon the proprietor in respect to the tenant who is a subject of that country; but what are those rights in regard to a foreign minister whose dwelling is a sacred asylum, whose person and property are entirely exempt from the local jurisdiction, and who can only be compelled to perform his contracts by an appeal to his own government.” (Wheaton, sec. 17.) In this case it was decided that the embassador’s personal goods could not be seized. Bearers of dispatches are above declared to have the same inviolable rights. Nations enforce their diplomatic rights against the local authorities. Vattel. says:

“Rincin and Fregose, sent by Francisco I, as embassadors, were stopped on the river Po, and murdered by the governor of Milan. As the Emperor, Charles V, seemed to favor it, Francis had a just cause for declaring war against him, and even calling for the assistance of other nations * * * * Such an affair is a quarrel which involves the concern of. all nations.” (Sec. 84.)

I cite these authorities to show that nations cannot set up their local laws against the principles established by international law, either civil or criminal. I submit that the quotation from Martens, made by your excellency, is in strict accordance with the above authorities. Your excellency seems to be anxious to make an excuse that Martens has not gone further on your side to sustain your positions, but the first part of the section to which your excellency refers clearly shows that he denies the position assumed by your excellency.

The local courts, when the bearer of dispatches is duly appointed, cannot touch his person for civil or criminal liabilities, except perhaps for treason or treasonable conduct. The responsibility alone rests, in my opinion, with the government of the minister sending the messenger. If this position is correct, the just claim of any person here against Colonel Farrand cannot be jeopardized.

The extremely friendly relations that have existed since my arrival in Peru between our respective governments augment my feelings of regret that we should be compelled to differ, even on technical points; but I feel assured that the same harmony and fraternal feeling will exist whether I am or your excellency is in the error. As this affair has caused some little excitement within the capital, and as I have no right to make the correspondence relating to it public under the rules of my government, I conceive that your excellency would be doing full justice to all concerned; as you have the power, in publishing the entire correspondence.

I beg to reassure your excellency of my most distinguished consideration.