Loayza to General Alvin P. Hovey, Envoy Extraordinary and, September 16, 1870

Señor Loayza to Mr. A. P. Hovey.

Sir: Although it is notorious that Colonel Farrand sailed for Panama in the steamer of the 14th instant, and although this might be held as the conclusion of the discussion opened by your excellency with this department on the subject, I am obliged to answer the dispatch you sent me late on the night of the 13th, which was delivered to me by the official mayor, Dr. Elmore. My silence on such an important matter might perhaps be considered as an acceptation of the doctrines your excellency sustains, and which cannot be accepted by my government without establishing a precedent of the gravest consequences. I therefore proceed to answer your excellency’s note, affirming my regret at not being able to agree with your opinions on the subject.

It cannot be denied, and all writers on international law agree, that hearers of dispatches should not be interfered with in the discharge of their duties, and that their persons and the correspondence they carry should enjoy certain immunities, without which their errand could not be fulfilled. But it also cannot be denied that these prerogatives do not so far extend as your excellency desired they should in the case of Farrand, who, although named by you to convey dispatches to Washington, had not entered upon the discharge of his duty when he was informed on the 13th of the order of detention issued by a judge of the first instance in Lima, and who, in consequence of that order arising from acts of Farrand as a private citizen, and subject from the same to the laws of Peru, could not withdraw himself from Peruvian jurisdiction without casting a stain on that respect merited by the tribunals of Peru, and without violating the legal dispositions existing in regard to such detention. Colonal Farrand could have rendered the order null by the means established by the same laws, or by an arrangement with the person detaining him, and then might readily have fulfilled the charge your excellency intrusted him with, a charge which doubtless would not have been confided to him had it been supposed that by this means Farrand would escape the obligations he had contracted in Peru and the respectable action of justice.

The celebrated Martens, so jealous of diplomatic immunities and prerogatives, estabtablishes, in speaking of bearers of dispatches, that their inviolability only is affected in the territory of the state to which they are sent, or in the territory of the third power through which they pass to reach their destination, since, if such bearers of dispatches were detained in their voyage or in the state where they carry their charge, a grave offense would be committed, difficult to repair, and against a person discharging his delicate commissions.

Martens, whose authority is greatly respected, says thus:

“Any violence committed against them (bearers of dispatches) is considered as an atrocious violation of the law of nations, whether it be committed in the territory of the state where the courier carries his commission or in that of a third power through which he may pass.”

The case is not stated of a courier being detained in the state from which the dispatch is sent, but this omission on so important a point is perfectly explained by the fact that there the bearer of dispatches may be readily replaced by some other person named by the same authority, without injury to the official service and without allowing a concession of this nature to serve as a free pass for an individual who, on account of civil or commercial responsibilities, is impeded from abandoning the place of his residence, and without causing the protecting shadow of the banner of a friendly country to render such responsibilities of no effect, and nullify the action of the judicial power in the exercise of its peculiar and high attributions.

Your excellency’s penetration must admit the force of the reasons I have adduced, and will surely admit that the action of my government in the case, originating the present discussion, has been in perfect conformity with the principles of international law and the requirements of justice; and you will also admit that if an order of arrest was issued against a Peruvian citizen in the United States, the detention would be carried into effect, even if the person had been intrusted by the minister of Peru with dispatches for his government, which might easily be given to some other, who might leave that republic with no difficulty whatever.

This question, arising from Colonel Farrand’s departure, has terminated as a fact, but it is indispensable to clearly establish the doctrine in regard to the immunities of bearers of dispatches, so that it may never be alleged that the Peruvian government has accepted that fact as in conformity with the code of the law of nations, and that it may be clear that, far from this, it has protested against that act, and does protest against it, in the proper manner.

I beg to reassure, &c.,