Loayza to General Alvin P. Hovey, Envoy Extraordinary and, September 13, 1870

Señor Loayza to Mr. Alvin P. Hovey.

Mr. Minister; I have had the honor of receiving your excellency’s note dated to-day, informing me that Colonel Farrand, who has been named the hearer of important treaties and dispatches you sent to the Department of State at Washington, has assured you that legal efforts are being made to prevent his embarkation in the steamer that leaves to-morrow for Panama, with the said treaties and dispatches.

Your excellency says that it is not necessary to remind me that no tribunal can impede, delay, or arrest the bearer of dispatches from a legation, and in proof of this is cited Wheaton’s International Law, paragraph 19, chapter 1, part iii, and your excellency concludes by requesting that the government will take such measures as to prevent the Peruvian authorities from violating the well-known laws of nations, and the comity between them.

I now have to reply to your excellency, deeply regretting that I am obliged to differ from you in this matter. I believe, and your excellency will agree with me, that the Peruvian government has given to that of the United States very special proofs of friendship and deference; nothing would be more agreeable for the government of Peru than to accede to every desire of the government you so worthily represent. On the other hand, nothing is further from the intention of the government in whose behalf I have the honor to speak than to infringe the principles of international law, and the practice of those regulations of friendship that serve to preserve harmony between countries. But justice has also its exigencies, and the constitution and laws of a state claim a respect which your excellency will be the first to acknowledge.

Whatever, according to the very distinguished American publicist, Wheaton, and other noted writers, the privileges of bearers of dispatches, I believe that your excellency will admit that there is an essential difference between the one who is named directly by his government and who cannot be molested afterward in any country while fulfilling his errand, and the one who, being previously amenable to the laws of the state where he resides and in which he has become in a manner liable, receives a charge which, though granted with the best intentions, cannot free him from his contracted obligations and from the actions of the national laws.

I believe, Mr. Minister, that no writer of international law has endeavored to establish judicial principles tending to abrogate the laws of countries, and it therefore appears to me that the distinguished Wheaton, speaking in the paragraph quoted, of the immunities of cabinet messengers and bearers of dispatches, only aimed to establish the privileges of an individual who arrives in a foreign country, fulfilling a commission from his government, but that it was not the intention of this or any other writer on the subject to fix as an international law, that any person residing in a foreign country may receive a commission, in virtue of which he is made free from the jurisdiction of the country to which he had previously been subject. The precedent that would be established by such a principle is fatal to the institutions of any country, and cannot therefore form a part of the great law of nations. Therefore, for these reasons, I comply with my unpleasant duty in informing your excellency that the government can do nothing in the manner you desire, since the executive cannot interfere with the acts of the judiciary, which indeed it must respect, and therefore, if Colonel Farrand has been judicially notified of the order of detention, (the only means by which he may be prevented from leaving the country without fulfilling certain obligations,) it must be by reason of legal proceedings, which it does not pertain to the government to examine or reform, and to which your excellency, assured as I am, is ready to render homage. Your excellency will not seek to render the laws of Peru and the action of justice null through a commission which might have been conferred upon any person.

Without examining the merits of any lawsuit that may exist against Colonel Farrand, without considering whether such a lawsuit, if it exists, is founded or not on justice, and acknowledging in the fullest manner the good faith that has animated your excellency, not only in this but in all your acts with my government during your long residence in this country, I trust that your excellency will appreciate the motives impelling me to this answer, as your excellency must be convinced that the most vehement desire of the Peruvian government is to gratify in every wish the Government of the United States and its legation in Lima.

I have the honor to be, &c.,