obligated to regard while himself Mr. Thorndike's employee in superintendence of said roads, he, Mr. MacCord, delayed presenting the matter to his Government until a change of circumstances relieved him from such considerations. When I add that the foregoing circumstances had been fully submitted to and considered by the United States Government before it instructed this legation to present the matter to your excellency, there only remains, I think, one more objection to your excellency to answer-that is, the assertion that as Señor San Roman was a chief in insurrection against the Government of Peru recognized by foreign powers, the United States included, your excellency's Government is not responsible diplomatically in premises, and that Mr. MacCord's only course, if his allegations are true, is to prosecute judicially the said San Roman upon a personal responsibility for his acts.

Your excellency, as a reason for this position, said (1) that there existed a law in Peru that the Government could not be held responsible for any acts committed by insurgents or revolutionists, and foreigners were tacitly accepted into the country under that condition; (2) that, according to universally admitted international law, a government could not be held responsible for mob or insurrectionary violence.

Concerning the first point, I apprehend that the only force such local law as that to which your excellency refers can have so far as affecting diplomatic relations is to establish at the outset that there is no adequate judicial remedy in Peru for claimant, since such local law bars recourse against the Government through the courts; consequently direct diplomatic intervention offers the only means open to Mr. MacCord as an adequate "remedy" for a manifest and notorious tort.

On the other hand, I may call attention to the fact that, so far from being in the country solely subject to the conditions of the local law referred to by your excellency, Mr. MacCord was here not only under the larger principles of international law, but under the incontrovertible guarantees of a treaty then existing between the United States and Peru, article 16 of which declared: "The high contracting parties promise to give full and perfect protection to the persons and property of the citizens of each other, of all classes." Again, in the said treaty of 1870, it was declared, the citizens of either country, within the territory of the other, "shall not be liable to imprisonment without formal commitment under a warrant signed by legal authority, except in cases flagrante delictu, and they shall in all cases be brought before a magistrate or other legal authority for examination within twenty-four hours after arrest; and if not so examined, the accused shall forthwith be discharged from custody." Also, "they shall not be called upon for any forced loan or extraordinary contribution for any military expedition, or for any public purpose whatever, nor shall they be liable to any embargo or be detained with their goods or effects without being allowed therefor a full and sufficient indemnification, which shall in all cases be agreed upon and paid in advance."

*

*

*

Since this treaty was in full force at time of the outrage, and until March 31, 1886, and as I have had occasion to remark in another case involving a like question, was obligatory whether the state was that of war or peace, or whatever might be the circumstances of Peru during existence of the compact," the matter may probably appear as thus disposed of.

But concerning the general principle, even outside of treaty obligations-to illustrate how different has been the view of Peru at another time-I might refer your excellency to the correspondence between Mr. Seward and Mr. Barrada relative to the effort made by Peru to hold the United States Government responsible for the destruction of Peruvian property in 1862 on board a ship in Chesapeake Bay through the sudden attack of insurgents, notwithstanding the ship ventured into waters which were in the recognized limits of hostilities between the United States Government and the Southern States, at the time engaged not only in rebellion, but in one of the most fiercely contested and protracted wars of modern times, so formidable in its nature that not only foreign nations, but the United States Governmnt itself, virtually conceded to the rebellious States, which had a distinct geographical as well as political autonomy, "belligerent rights.”

Although, of course, such a contention on the part of Peru could not, under the circumstances, be sustained, still the incident is instructive as indicating, when Peruvians have been the sufferers, how widely the ideas of the foreign office have diverged from those now expressed by your excellency.

Here, too, I may refer to Note 95, of August 31, 1878, of Mr. Gibbs to Dr. Manuel Yrigoyzen, then minister of foreign relations of Peru, in a claim growing out of mob violence, in which allusion is made to the Spanish claims for losses, etc., caused by mobs in New Orleans and Key West in 1851, which were paid by the United States Government, of which I have made mention in the course of conversation with your excellency.

Under date of June 20, 1834, Mr. McLane, Secretary of State, wrote concerning a contention of Mexico, similar to that made by your excellency:

"The mere revolutionary state of a part of Mexico can not be accepted by the United States as a defense to a claim on Mexico for injuries inflicted on citizens of the United States in Mexico in violation of treaty engagements."

I may also quote the language of Mr. Fish, Secretary of State, to Mr. Foster in Mexico, dated August 15, 1875, as follows:

"If a country receives strangers within its limits, it thereby incurs a liability to protect them from violence, not only on the part of its own authorities, but ordinarily also from violence on the part of insurgents. This latter ground of liability may be regarded as continuing at least until the government of a neutral country whose citizens may be aggrieved in the course of the hostilities shall recognize the insurgents as entitled to belligerent rights."

I need hardly remind your excellency, so far as known, there had been no concession of belligerent rights to the revolutionary Government to which pertained "Señor San Roman" when the outrages were perpetrated on Mr. MacCord, either by the Government of Peru, recognized at the time by foreign countries, or by any foreign nation diplomatically represented in this capital.

In conversation your excellency asked me, as though the question itself involved a refutation of the idea of national responsibility for the acts of the said "Señor San Roman," would not the United States Government have indignantly rejected a claim made against it for the acts of the Government of Jefferson Davis? To which I replied that I should have to know the character of such claim in order to properly answer your excellency. But, perhaps, in general terms I had better let the words of the State Department stand for themselves on this point:

Those from the Secretary of State to Mr. Foster, dated December 16, 1873, are: "It is true that this Government has not confessed its liability for the injuries to foreigners by persons claiming authority in the South during the rebellion. The reason for this disavowal is believed to be belligerent rights had tacitly, at least, been granted to the insurgents, not only by this Government but by those of the principal European nations. This is a concession which may be allowed to carry with it an acknowledgment that the party in whose favor it may be made is both competent and willing to do justice to the citizens or subjects of the grantor, and, indeed, may of itself be allowed to exempt the other party from such accountability the foreigners who were so injured are citizens or subjects of countries who acknowledge the insurgents as belligerents."

**

But whatever may be the different opinions as to the general international rule concerning responsibility or nonresponsibility of a government for revolutionary violation of personal and property rights of neutrals, and whatever its limitations or qualifications, this case in reality involves other reasons that place it upon more elevated grounds of equity, the irresistible force of which, I think, will be apparent. Your excellency has commented upon two distinct Governments existing in Peru at the time of the MacCord outrage; but it will be remembered that by the act which Generals Cáceres and Iglesias signed December 2, 1885, both Governments were, by their mutual consent, merged into the Provisional Government then established, of which the present Government, by popular and peaceable determination, made under the authority and administration of said Provisional Government, is the successor; so that whatever may have been the character of either the Iglesias or the Cáceres Government, by consent of each and of the people of Peru, given through the subsequent elections, the present constitutional Government reigns as the successor of both, and hence should be considered responsible for the acts committed by the officials, or under the authority of both, so far as they affect the interests of United States citizens.

Mr. Gallatin wrote, February 11, 1824, to Mr. Pierce:

"The doctrine that the present Government of France is not responsible for any injuries committed against the Americans by that of Bonaparte is so contrary to the acknowledged law of nations that it is not probable that it will be

officially sustained."

And President Jackson stated in his message, 1835:

"The defense to a diplomatic appeal for redress for spoliations that the wrong was done by a former sovereign who was a usurper is unfounded in any principle in the law of nations, and now universally abandoned, even by those powers on whom the responsibility for acts of past Tulers bore most heavily."

The "French spoliation claims" were, it may be remembered, therefore finally settled by France.

I might add that upon dissolution of the Colombian Confederacy the United States Government, in 1839, informed its members that it would hold them jointly and severally liable for our claims. That case was simply inverse to this-in Colombia there was dissolution and in Peru there was consolidation of powers, perhaps making this case, therefore, the stronger upon principle.

In June, 1885, General Cáceres was the head of one of the contending governments in Peru, neither of which exercised supreme control over the whole of the national territory. But after mutual arrangement, as above referred to, under the act of December 3, 1885, on the 3d of June, 1886, General Cáceres, to whose government Colonel San Roman had pertained in his occupancy of Arequipa, was installed as the constitutional President of the Republic. This was done after due ascertain

ment of the popular will, and by the proclamation of the Peruvian Congress, assembled, as stated by the Provisional Government, in fulfillment of the arrangement of December, 1885, made between Generals Cáceres and Inglesias.

The outrages perpetrated against Mr. MacCord in June, 1885, were of general notoriety at the time, and of such a character as excited general indignation among foreign residents in Arequipa to an extent that elicited their united action in remonstrance and in a demand for legal trial, which, in violation of treaty and legal guaranties, was not accorded; nor was Mr. MacCord released until the money was raised and paid to the said Colonel San Roman, exercising authority under the government of General Cáceres, to the benefit of which the funds so paid accrued, in the defense of the cause of General Cáceres, and in resisting the "Lima Government." The above circumstances are believed to be of public notoriety, and at least in the main undeniable, but they are referred to subject to correction in any details if not accurately stated.

I may quote as pertinent to the imposition placed upon Mr. MacCord language used relative to other acts of a similar kind in behalf of the same political partisans, and about the same time, viz, the seizure of certain guano at Mollendo appearing to belong to United States citizens, which is equally applicable here. "It was appropriated to sustain a cause which has become national by the voluntary action of the people of Peru, its chief representative being at the present time the duly elected constitutional executive of the Republic"-with this difference, the seizure of the guano was not, it seems, accompanied by acts of personal violence and cruelty. Moreover, this same San Roman was retained as prefect of Arequipa, first by the Provisional Government of the council of ministers, and then by that of the present Government; and not only so, but the same "Señor San Roman," upon the expiration of a two years' term as such prefect under the present administration of General Cáceres, has been recently reappointed to the same office, with an official statement that his services have been satisfactory to the Government of Peru.

Thus the responsibility of your excellency's Government for the said acts of Prefect San Roman not only seems fixed by the arrangement of December 2, 1885, and the triumphant succession, in pursuance of it, of General Cáceres to the chief executiveship, but that responsibility seems still further emphasized by the consecutive reappointment of Colonel San Roman to the same post in which the outrages were perpetrated on Mr. MacCord, and by the public official approval of his acts in the decree making the reappointment dated August 11, 1888.

Trusting that your excellency will, with this fuller presentation, recognize the justice of the observations, respectfully presented, I avail, etc.,

CHAS. W. BUCK.

[Postscript.]

SEPTEMBER 11, 1888.

SIR: Since writing the above I have just received your No. 224, of August 14, inclosing copy of letter from Hon. S. N. Pettis, and copy of protest "touching alleged outrage" on Mr. V. H. MacCord.

Before writing that dispatch Department had been fully advised in this matter, and furnished copy of Mr. MacCord's said protest, with my No. 366, of May 24 last, as shown by its instruction No. 208, of June 23, 1888.

Your obedient servant,

CHAS. W. BUCK.

(See Ex. Doc. No. 4, Fifty-third Congress, third session, pp. 14, 15, 16, 17.)

Mr. Alzamora to Mr. Buck.

No. 34.]

MINISTRY OF FOREIGN RELATIONS OF THe Republic of Peru,
Lima, November 6, 1888.

Mr. MINISTER: The necessity, firstly, of obtaining certain information, and, secondly, the urgent and deep occupations of the Government during the last few days, have not allowed me to give attention to your excellency's dispatch of the 13th (3) September, No. 112, relative to the claim of Mr. Victor H. MacCord, growing out of the collection of a fine of 1,000 soles imposed in June, 1885, by the prefect of Arequipa.

Your excellency begins by demonstrating that in the course of diplomatic claims there is no prescription, supposing that my Government places in doubt this abstract principle; but the circumstance of my calling your excellency's attention to MacCord having permitted so long a lapse of time before asking your excellency's intervention, without hindrance in doing so, has no such meaning.

S. Doc. 231, pt 3-12

Said circumstance involves such gravity that your excellency has thought necessary to express the reasons why MacCord has abstained until now from making any claim, and my Government finds in such explanations, thankfully acknowledged, much light in forming an exact opinion upon the claim which is the subject of this note. Further light is obtained through the information to which I made reference at first, and which my Government has collected in order to be acquainted with the whole matter, notwithstanding the reasons for declining, prima facie, all responsibility, as shown in my dispatch of August last.

My Government sustains in general said reasons, notwithstanding your excellency's exposition, and insists on the principle that it is not responsible for revolutionary acts, nor for the damages occasioned as the inevitable effect of operations of war, even if done by its own forces; but it has reasons to consider in the present case the fine imposed by Prefect San Roman as emanating from legitimate authority, as it frankly so declares, and for this reason it has resolved to study the case of MacCord, at the same time that it puts aside from the discussion the mentioned principles that have no application in the present case.

From MacCord's protest, as well as your excellency's explanations, kindly transmitted in the dispatch which I answer, and the information obtained by this office, it appears that the fine was not imposed on MacCord individually, but on the railroad of which he was the representative.

I find in MacCord's protest the following words:

"Convinced of the arbitrary proceedings that undoubtedly would be employed to enforce the fine, a proposition was made to deduct it from the amount the Government owed to the railway for work done."

And afterwards, alluding to the necessity he had of borrowing money to pay the fine, he says:

"That in consequence of the almost complete stoppage of traffic during the past year, owing to political disturbances, the railway company had not earned enough even to pay its workmen."

According to the explanations contained in your excellency's dispatch, which I answer, MacCord had not formulated his protest until the present because he was an employee of Mr. Thorndike, as administrator of the railways, and deference toward said gentleman, and consideration for his claims pending against the Peruvian Gov. ernment, led him (Mr. MacCord) to believe that he should await a change of circumstances which should free him from such considerations.

Finally, through the information collected by this office, it appears that the fine was caused by the railroad represented by MacCord having placed itself in accord with Col. Garcia y Garcia, who left the cars at Mollendo in an expedition against Arequipa, then defended by Prefect San Roman, and deliberately leaving at Mollendo, or at its neighboring stations, cars and wagons enough to transport the attacking forces, notwithstanding the imperative orders that had been communicated to him beforehand; and, finally, that he changed the driver of an engine that Prefect San Roman had ordered out, in order to carry out the plan of escaping, and handing it over to Col. Garcia y Garcia's troops, thus enabling them to cross the desert that separated them from Arequipa.

I have likewise ascertained that the fine was not imposed upon Mr. Victor H. MacCord personally, but upon the railroad company; that said company paid it, charging it in the books that MacCord still keeps, having deducted afterwards the amount from the salaries of the Peruvian employees.

I believe it unnecessary, Mr. Minister, to make reflections on the foregoing facts, in order to satisfy your excellency that MacCord's claim has no just foundation, and consequently I have the assurance that your excellency will not find it strange that my Government, after taking it in serious consideration, should maintain that it can not be admitted.

I renew, etc.,

ISAAC ALZAMORA.

(See Ex. Doc. No. 4, Fifty-third Congress, third session, pp. 23, 24.)

No. 120.]

[Mr. Buck in reply.]

Mr. Buck to Minister of Foreign Relations.

LEGATION OF THE UNITED STATES,
Lima, November 14, 1888.

Mr. MINISTER: I have received your excellency's note dated the 6th instant, and replying I may first rectify its error as to the amount of the imposition placed upon Mr. MacCord in June, 1885. It was not 1,000, but 10,000 soles, as shown in the copy of Mr. MacCord's protest accompanying my No. 110, of 6th August last, to the foreign office.

The two points of defense adopted in your excellency's preceding note (No. 34, of November 6, 1888) were:

1. The delay in presenting the claim; and

2. That the acts complained of, if committed, were those of an insurrectionary or revolutionary commander, for which the Government of Peru could not be responsible, and which induced the conclusion on its part that Mr. MacCord's only recourse was against the said San Roman as an individual wrongdoer. Your excellency concluded from these considerations that the claim was not admissible as a diplomatic one, and therefore the Peruvian Government could not even examine into it. These views occasioned the presentation of principles involved, as set forth in my No. 112 of September 3 last.

I now observe your excellency states that the objections made on account of delay do not reach to the point of prescription, but that such delay was a grave circumstance which required explanation; and while your excellency holds that the Peruvian Government maintains in general, notwithstanding the exposition of principles presented by this legation, that it is not responsible for acts of revolutionists, nor for damages caused even by its own forces as the inevitable effect of the operations of war, yet it has reasons to consider, in the present case, that the fine imposed by the prefect, San Roman, emanated from a legitimate authority, as it "frankly declares," and so had decided to enter upon a study of the case of MacCord; at the same time putting to one side discussion of the before-indicated principles, which your excellency believes do not apply to the facts as alleged now on behalf of the Peruvian Government.

Perhaps the tardiness of this admission, however now "frankly declared," was due to noninvestigation of the facts in this case, relative to which the foreign office note of August 28 last stated your excellency's Government had no information, etc. This supposition seems more pertinent in view of advices which I have just now received, that the said prefect, San Roman, on December 8, 1886, solicited approval of his proceedings referred to against Mr. MacCord, which the Government granted without even notice to or a hearing from him, under date of December 15, 1886, of which Mr. MacCord was informed by official note dated December 22, 1886. Presumably the proper office of your excellency's Government has a record of the correspondence, so that if this information, received since my last note on the subject, is in any way faulty, your excellency can indicate where it is so.

Had this been known at the date of my note of September 3 last it might have avoided the necessity for reference to some circumstances therein presented, as it was your excellency's former line of defense that also induced the discussion of principles in my said note, as herein before stated.

At any rate, since your excellency has apparently abandoned the position taken in your excellency's former note relative to the Government's nonresponsibility because of the said Colonel San Roman's therein alleged revolutionary character, I conceive there remains now no question as to the responsibility of the Peruvian Government for the indicated acts, according as their true nature may be demonstrated.

The facts your excellency alleges to be: That the railroad enterprise represented by Mr. MacCord placed itself in harmony with Col. Garcia y Garcia, the Iglesias commander in charge of the expedition which landed at Mollendo for the purpose of opposing itself to those of the said Colonel San Roman at Arequipa; that Mr. MacCord, contrary to the said Colonel San Roman's orders, left sufficient cars for the transportation of the Iglesias expedition from Mollendo to Arequipa, and afterwards changed the engineer of one locomotive which Colonel San Roman had ordered for the service of his forces, in order to realize a plan of escape, as it did escape to the forces of the said Col. Garcia y Garcia, thus enabling the latter to pass over the desert which separated his forces from Arequipa; and, finally, that the fine was not imposed on Mr. MacCord personally, but upon the enterprise (empresa), which paid it and entered it in books which Mr. MacCord conceals or retains, having discounted afterwards its value from the salaries of Peruvian employees.

As to these allegations made by your excellency's Government, it would seem for the present, at least, only necessary to note that, as this is the assertion of "new matter," it is incumbent upon the Peruvian Government to prove what is assertedsince in such state of the case the maxim "onus probandi incumbit qui decit non qui negat" applies; and until the evidences are presented, which presentation your excellency's Government has not yet made to this legation, it would seem unnecessary to consider what importance, if any, attaches to the allegations-as until presentation of proofs it is impossible to examine their relevancy or scope. Therefore, with such lights as this legation has upon the matters, it seems impossible to admit the said allegations on the part of Peru as an explanation justifying the acts complained of; and especially is this the case when it is noted that your excellency is pleased to treat the matter as though recovery of the fine ("multa") is the sole question involved, whereas that is only one feature of it, and by no means, as I conceive, the totality, or even the determining circumstance, affecting Mr. MacCord's rights.