Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1892
Mr. Shannon to Mr. Wharton.
Managua, June 29, 1892. (Received August 1.)
Sir: Referring again to the case of Consul Myers, I have the honor to inclose herewith copy of another note I addressed, in accordance with instructions contained in the Department’s No. 53 of April 6, 1892, to his excellency the minister for foreign affairs of Salvador; as well as a copy of the minister’s reply, accompanied by a translation.
I have, etc.,
Mr. Shannon to Señor Gallegos.
Managua, May 2, 1892.
Mr. Minister: Again referring to the subject of the violation of the American consulate at San Salvador in July, 1890, I have the honor now to state that the two courteous notes of the 2d and 11th of last January, which your excellency was good [Page 38] enough to send me in reply to my own note of December 15, 1891, were promptly laid before my Government, and, in accordance with instructions just received, I beg to further address your excellency upon the subject, and especially in reply to your more elaborate note of the 11th of January.
The courteous and friendly tone of this note has been very gratifying to my Government, though it is to be regretted that its substance is not so satisfactory.
The general circumstances out of which the present complaint arises are not questioned. The consulate of the United States was violated by the Government troops, and its nag torn down and insulted. Its property and archives, as well as the private property of its consul, were destroyed or carried away, and the consul himself subjected to great personal indignities and hardships. To be sure this occurred during revolutionary disturbances; but this fact, as well as every other palliating circumstance to which your excellency refers, was anticipated by the Government of the United States, and has been estimated at its fullest value. It has from the beginning desired to treat the incident with friendly forbearance and in the most conciliatory spirit, while its action in this respect further evidences the high consideration for the Government of Salvador by which my Government has ever been actuated.
It will relieve the matter of much needless general discussion to recall the present status of the question at issue. On the 8th of August, 1890, and before any steps had been taken to right the wrongs complained of, the American minister, Mr. Mizner, arrived at La Libertad. Through Lieut. Denfield he entered into an agreement with the Salvadorean secretary-general. It was expressed in writing and divided into five heads. These articles of agreement your excellency declares the Government of Salvador at once confirms “since it recognizes the principles of justice upon which they rest.” The first two articles were complied with at the time, and the third in so far as the property and archives were remaining. The fourth and fifth articles were as follows:
- “Article 4. That the minister of the provisional government charged with the foreign relations of Salvador should address to me (Mr. Mizner) a letter expressing his regrets and apologies.
- “Article 5. That as soon as practicable a satifactory payment be made for the damage done the property of the United States and the private property of the consul.”
So far as the Department of State at Washington is informed, and so far as the archives of this legation can show, no letter expressing the regrets and apologies of the Salvadorean Government was ever addressed to the American minister. My Government, however, had wished to infer such an expression from the supposed desire and readiness of the Government of Salvador to promptly reimburse the Government of the United States for the damage done to itself and to its consul.
It having been already agreed that a satisfactory payment should be made for the damage done to the property of the United States and the private property of the consul, there is no possible ground for difference between the two Governments in this regard, except with respect to the determination of the amount. Upon this point the note of your excellency is far from satisfactory. Your excellency says:
“My Government believes that the claim presented by Mr. Myers for the indemnification of the losses which he declares were suffered in his property and in that of the American Government, as a result of the events of July, 1890, can not be limited for the present to the mere fixing of a sum of money, so as to demand its simple reimbursement, without there being first held in due form those proceedings which the laws of the country prescribe and require as indispensable before the tribunals established by the laws for the proving and appraising of damages sustained, which indemnification in like manner is to be regulated according to general provisions.”
If any question as to whether an indemnity is due were not precluded by the terms of the agreement, one might be in doubt whether your excellency did not contend that that question should be remitted to the courts of Salvador. As such a question is precluded, my Government assumes that what is meant is that the Government of the United States is bound to prosecute before the Salvadorean courts the assessment of the damages due to itself for the destruction of its property and that of its consul.
It is unnecessary to discuss what the proper course would be if, during the occurrences in question, the property of an ordinary resident alien had been destroyed, for such is not the present case. Mr. Myers was the consul of the United States Government. He had no business and no interests in San Salvador separate from and independent of its business and its interests. His property which was destroyed was properly and necessarily in the American consulate, which by the terms of the treaty was declared to be inviolable. The Government of the United States only furnishes to its consuls a part of the equipment which is necessary for the conduct of its business and for their convenience. It matters not, however, whether the property in question belonged partly to the United States and partly to its consul, or exclusively to the former. It was all necessarily connected with the conduct of [Page 39] the business of the United States Government, and the injury done to it was as if done to the United States.
No Government can be more jealous than that of the United States in preserving for its tribunals the settlement of every question properly subject to their jurisdiction. The present incident, however, in none of its phases, was ever a matter within the jurisdiction of the courts of Salvador, and the less so after the two Governments, “recognizing the principles of justice” governing the case, had entered into an agreement with respect thereto. It is not within the province of the courts of any country to pass upon an agreement between two Governments. It would ill be become the dignity of the Government of the United States, nor will it consent, to submit the agreement which it has made with the Government of Salvador to any tribunal other than one of their joint making. But, irrespective of the agreement, it could not consent to go itself nor to send one of its officers whose injuries arose out of the performance of his official duties into the courts of Salvador to determine what damage has been done.
On the other hand, I am instructed to say to your excellency that the Government of the United States disclaims any pretense of a right to alone determine this question. It had reason to believe that the inventories of the property destroyed, prepared by Mr. Myers, were made in good faith, and they were transmitted to me for submission to the Government of Salvador in that spirit. Having regard for the inherent difficulties, especially after this delay, of so exact a determination of the matter as would be desirable, it was thought that these schedules would probably be accepted as fair under the circumstances. My Government has no other desire, however, than to arrive at the actual damage, and it is content to make any review of Mr. Myers’s statements of the same which may seem to be required. It is believed that the determination of that matter ought to be arrived at without difficulty between your excellency and myself, and whether, as an aid to its consideration, it may be preferable for each of us to appoint a person to jointly examine it and report to us the result of their findings is a mere matter of detail.
Referring now to the subject of reparation for the personal injuries which Mr. Myers suffered, I am instructed to say that although that question is not covered by the agreement, still, upon general principles, it is regarded as one likewise to be determined solely by agreement between the two Governments. As your excellency appears to await such suggestions as I may have to offer with respect thereto, I beg to state that I am authorized to agree upon the amount of indemnity to be paid. And I am further instructed that, in the opinion of my Government, it can be best settled at the same time and in the same manner that the amount of damage for the property destroyed is agreed upon. Regarding the character of the injuries which Mr. Myers sustained, the information of my Government is that they were substantial. He returned to the United States soon afterward in impaired health, attributable, it is claimed by him and believed by my Government, to the experiences which he underwent at the time of the occurrences in question.
Finally, the honorable Secretary of State at Washington has read with interest your excellency’s explanation of the manner in which the Government of Salvador regards the facts upon which are based the charge that Mr. Myers was prevented from communicating with the American legation, and that of having refused him a passport to leave the Republic unless upon the condition of withdrawing his exequatur at the same time.
Your excellency says:
“Hardly had the capital been recaptured, although the frontier was in part uncovered, when Mr. Myers, without giving clue credit to what had occurred, proposed to forward the telegram of which your excellency inclosed me a copy,” and that, “without refusing to Mr. Myers permission to inform the Department of State at Washington of what had occurred, he, (the secretary-general) limited himself to simply proposing that the form of his telegram should be modified in the terms known to your excellency.”
Your excellency therefore concludes that Mr. Myers “was not prevented from communicating with his Government in any manner whatever, and although there was exercised a species of censorship in respect to the telegram which he proposed to send to Mr. Blaine on the 2d of August, 1890, for the excellent reason I have mentioned, still, that exceptional measure had a legitimate basis in the abnormal condition of affairs then existing, the Republic being in a state of siege, a situation which suspends the guaranty of the inviolability of correspondence. To this reason might be added still another—that the telegram alluded to may not in strictness be considered as an official act or report exclusively relating to the exercise of consular functions, the only case where officials of that class are to be recognized as independent of the State in whose territory they reside, according to the treaties.”
In reply to this I am instructed to say to your excellency that whether the act of the Government of Salvador be called prevention of communication or mere censorship, it resulted in fact in pro venting Mr. Myers from sending the telegram to his [Page 40] Government which he desired to send. It does not relieve the matter that the Government of Salvador proposed another and different telegram which it was willing to permit to he sent. It was competent for the Government of Salvador itself to communicate to the United States Government such a report of the facts in question as may have seemed to it proper, but not for it to dictate to an official of that Government what he should report. The Government of the United States does not recognize the pertinency of any principles which may be thought to be applicable to a state of siege or martial law. At the time of the occurrences in question the city of San Salvador was in the undisputed possession of the Government forces, and there was nothing in the situation warranting interference with the right of free communication to which Mr. Myers was entitled by treaty and the principles of international law. Neither can my Government conceive of any communication between its consul and itself more intimately associated with his official duties than a report that the consulate and its archives had been destroyed and the performance of his official functions interrupted. Mr. Myers would have been most derelict in his duties if he had not attempted to communicate that fact. Such a communication was privileged, and, in the opinion of my Government, especially within the purview of the second section of article 35 of the treaty of 1870, which provides that:
“Consuls, in all that exclusively concerns the exercise of their functions, shall be independent of the State in whose territory they reside.”
Your excellency for similar reasons justifies the course of the Government of Salvador in refusing Mr. Myers a passport to leave the country, except upon the condition of the withdrawal of his exequatur at the same time; and your excellency finds also a further justification therefor in the fact that his departure from, the country had for its evident object * * * to nullify the action taken by the Government respecting the telegram which it proposed to send.”
This explanation of your excellency has therefore only strengthened the conviction of my Government as to the correctness of the language which was used with respect to this phase of the case in my note of the 15th of December last, and which I beg now to repeat:
“Article 32 of the treaty of 1870 is plain with respect to the right of the Government of Salvador to withdraw Mr. Myers’s exequatur upon reasonable grounds, but to refuse to give him a pass to leave the country, except on that condition, while making no objection to his continuing to exercise his consular functions if he would remain, was a species of duress the gravity of which is increased by the fact his avowed purpose in temporarily leaving was to communicate with his Government. It would seem to have been an attempt to do indirectly what Mr. Myers charges was also done directly, viz, to prevent his communicating with his superiors.”
My Government therefore renews its protest, as it is in duty bound to do against the interference of the Government of Salvador, both directly and indirectly, with Mr. Myers’s official communications.
With assurance of esteem and consideration, etc.,
Seoñr Gallegos to Mr. Shannon.
San Salvador, May 26, 1892.
Mr. Minister: Painful was the impression my Government received upon reading the courteous note of your excellency of the 2d instant, in which, referring to the reply which I had the honor to make on the 11th of last January regarding the claim for indemnity considered to be due the American Government, and its consul, Mr. Myers, your excellency insists, in accordance with instructions received from the Department of State at Washington, and relying upon the agreement concluded by the American minister, Mr. Mizner, with the secretary-general of the provisional Government of this republic—in excluding wholly from the discussion whatever does not specifically relate to the fixing of the amount due, and this also without recognizing the right of the tribunals of the country to take legal action in the matter—expressing the hope that a just agreement may be reached between that legation and this ministry, either directly or aided by the concurrence of other persons who may conjointly examine the subject.
Your excellency adds, in reference to the demand for indemnity on account of the personal sufferings claimed to have been experienced by the consul, that, although this question is not included in the agreement above cited, having regard to the [Page 41] general principles involved as one which can also be determined only by agreement between the two governments, and accordingly you declare yourself authorized to stipulate the amount of indemnity, which in the opinion of your Government can be better settled at the same time and in the same manner as the question of determining the amount of damages sustained. Such sufferings the American Government considers to have been of a substantial character, inasmuch as the health of that consular functionary was impaired in consequence of the sufferings he experienced during the occurrences which gave rise to this claim, as Mr. Myers himself maintains, and as his Government believes.
Finally, your excellency, in the name of the American Government, renews its protest against the direct and indirect intervention of the Government of Salvador in the official communications of the consul, inasmuch as its attitude with reference to the telegram which he proposed to send to his Government regarding the events which had occurred—although it would have had simply the force of a censure which even your excellency does not justify—had the inevitable result of preventing Mr. Myers from forwarding the telegram which he proposed to send, a course of action which had no justification either in the light of treaties or the principles of international law which recognized the right of free communication that authorized Mr. Myers to send to his Government a report so intimately connected with his official duties. This charge is corroborated by the fact of the conditional restriction imposed on Mr. Myers to withdraw from the country, your excellency considering that the very reasons with which this ministry sought to justify the course of the Government regarding this matter only strengthen the conviction of the American Government as to the exactness of the views presented in your excellency’s note of the 15th of last December, which views your excellency has deemed it expedient to reproduce.
Referring to the first point, I have the honor to state to your excellency that, although in article 5 of the agreement concluded with the minister-general of the provisional Government of this Republic it was stipulated that as soon as possible an indemnity would be paid for the damages occasioned to the property of the American Government and its consul during the events which took place in this capital at the close of the month of July, 1890, it never entered into the mind of this Government to accept as an indisputable fact that such damages had actually occurred, and much less that their appraisal would be made by direct agreement with that legation, excluding all participation in the matter by the authorities of the country.
Among the attributes of the Executive of Salvador there has never been nor is there now either the power of recognizing the public debt or that of fixing the mode of its payment; such attributes belong exclusively to the legislative power, and out of due respect to that power this Government is of the opinion that there should have been embodied in the agreement referred to a statement to the effect that the payment of the indemnity was to be effected as soon as possible, this possibility referring exclusively to the legal determination of the damages sustained and of their amount, which it is not conceivable could be prevented, and much less made impossible, for the want of a mere $2,000, more or less, which is the maximum of the amount claimed.
If the terms of the agreement in providing that the indemnity be paid as promptly as possible could have no other reasonable or natural interpretation than the one which I have just pointed out, it is logical also to conclude that on the part of this Government there can not be left out of the discussion what exclusively refers to the determination of the amount due, as also there can not be prevented that participation in the matter which, according to our laws belongs to the authorities of the country.
The agreement referred to can not, in the opinion of this Government, have any other force or significance than that of acknowledging in a definite and special manner the obligation of the Government to indemnify the injuries which on account of the war may have resulted to the property of the American Government and consul, as well as the general obligation it is under towards all those who may have suffered losses; but that obligation in every case is to be fulfilled as regards the manner and form of paying the indemnity according to the laws prescribed for the purpose by the competent authority, and there is no reason or provision in support of that recognition and exceptional payment insisted upon by the legation. Your excellency, in urging the importance of the agreement referred to, appears to consider it as a real international stipulation having all the force of a treaty. Allow me to observe that in reality it has not nor could it have that character. The American legation, in charge of Mr. Mizner, considered that an outrage had been committed against the United States by the fact that the troops of this Government, in the moment of combat, had lowered the flag that was displayed over the American consulate, and that the consular residence had been violated in disregard of all treaty stipulations by the mere circumstance that our troops had occupied it while advancing in their attack on the artillery barracks. In consequence of this opinion, and on no other ground than this, that high functionary ordered Lieut. Denfield, of the American [Page 42] Navy, to demand satisfaction for those offenses and an indemnity for the resulting losses. This is all; and the Government of this Republic yielded, accepting the five clauses in which were embraced the claims of the legation, and at once complying with those relating to the public vindication demanded.
But neither the deference of this Government, always solicitous when seeking to express its invariable respect for the dignity of other nations, nor the character and nature of the vindication demanded, nor the form in which it was rendered can, in the opinion of this Government, allow that satisfaction to be considered as a treaty, and much less free it, in considering the questions of indemnity from the observance of the provisions of the law—the only obstacle which up to the present time has been offered by the American Government and consulate to prevent a complete settlement of the matter.
Your excellency will allow me for this purpose to repeat, as I did before in the name of my Government, that I recognize the principles of justice upon which rest the right to an indemnity for all the damages caused to the American consulate, and, without pretending to cast the slightest reflection upon the legation, to again limit, as I did before, such recognition to the fifth article mentioned, the only one to which it can be rightly referred, since, in the opinion of my Government, it was a matter of pure deference on its part to pay publicly in the way of satisfaction the homage of high consideration and respect which it believes has never been wanting, and which under all circumstances is due the American Government.
Begging you will excuse this slight digression, I appeal for the justification of our course to the Government of your excellency, which has always jealously preserved for its tribunals everything relating to their special jurisdiction, so that, appreciating a like care on the part of the Government of Salvador to preserve for its own tribunals the same respect, you may excuse this persistence when treating of the indemnity which is the object of the present claim, which indemnity, although it has been accepted in principle, can not be determined either as to its substance or its amount or the manner of paying it by setting aside the constituted tribunals and the procedure established by the legislature for that purpose. To grant access to these tribunals and subject oneself to the requirements of the laws established regarding this matter, far from implying any infraction of what your excellency calls an agreement between the two Governments is, on the contrary, in the opinion of this ministry, to seek by right ways its due fulfillment. Damages are to be compensated for, but in what do these consist? What is their value? These are the questions to be decided, and which only can be decided by the tribunals of the country in accordance with the usual methods established by the law.
The consular character of Mr. Myers and the circumstance that his property as well as that of the American Government had been injured in the consulate, which has the prerogative of inviolability, can in no respect alter these principles, inasmuch as the guaranty of property is under the safeguard of the same law, whoever be the person suffering through its infringement or whatever be the place where it is violated.
I do not think there can be inferred from the events which gave rise to this claim a premeditated and direct injury; and much less that such injury was done to American functionaries because of the fulfillment of their official duties so that this could impede in any manner whatever, morally, the proceedings of the consul before the tribunals. Any assertion to the contrary my Government must reject as a groundless charge, and does so through me in the most energetic manner, protesting that in the events referred to it can see nothing more than unpremeditated and casual accidents of the war, which, although in fact resulting in the temporary occupation of the consular residence and the lowering of the flag which served to distinguish it, does not constitute in law a true violation of the consulate nor an offense to the emblem of the sovereignty of the United States of America, the nature and ground of the consular prerogatives as well as the reason for allowing consuls the right to hoist the flag over their residences being a sufficient vindication of this charge, without taking into account the fact that the American Government had shown itself to be satisfied with the public honors paid to the national flag and with the frank expression of the excuses of the Government of Salvador.
Desiring, nevertheless, to avoid in this matter whatever can in any way be considered as reflecting upon the dignity of the Government of your excellency, the Government of this Republic has authorized me to propose, as the only means which occur to it of overcoming the difficulty without transgresisng the limits of its power or that of its friendly complacency, that this ministry submit to the tribunal of public credit sitting in this capital the information obtained regarding the injury done in the American consulate, as well as the inventory and appraisal which the legation has presented, and any other information which it may consider necessary to enable the tribunal to decide regarding the indemnity to be paid, fixing the amount and mode of payment.
With regard to the claim of indemnity for the personal sufferings of which the [Page 43] consul, Mr. Myers, complains, and which your excellency proposes to settle by fixing, through mutual agreement, the amount to he paid, since it is considered, in the opinion of the American Government, to be one of those claims which can only be settled by agreement between the two governments, I have instructions to state to your excellency that in the opinion of the Executive of this Republic there are no legal grounds for accepting this part of the claim as established, and that even when considered in the light of general principles it does not offer, in his opinion, any basis of stipulation which could lead to the determination of a sum of money to compensate such sufferings.
My Government, Mr. Minister, has never been able to consider itself as an arbiter and controller of the circumstances which caused those sufferings to the consul the same as to all the inhabitants of this capital. Such vicissitudes occur as a fatality, without the possibility of preventing or avoiding them, and this even in communities more advanced and better organized, imposing themselves by the irresistible force of facts.
Nevertheless, inasmuch as your excellency invokes the support of general principles, the interpretation of which by my Government can not be claimed to be more just than that of the American Government, I have been authorized to inform your excellency that, on the part of this Government, there is no objection whatever to submitting the decision of this point regarding the duty of the nation to indemnify pecuniarily such sufferings to the arbitral award of a friendly government chosen by common agreement, and that Salvador would regard the acceptance of this solution of the question on the part of the Government of your excellency as a very marked proof of the spirit of friendly deference and homage for the principles which form the basis of the relations of both peoples.
I conclude, Mr. Minister, by taking due note of the protests which your excellency has believed it your duty to repeat in regard to the direct and indirect interference attributed to the Government of Salvador in the official communications of the consul, Mr. Myers.
If the explanations of this ministry have not satisfied the American Government on account of a difference of opinion not only with regard to the facts of the case, but of the conduct pursued by this Government, then there only remains for me to submit in the name of my Government the justification of its conduct to what it believes it has full right, the impartial judgment of public opinion, protesting in my turn that the Government of Salvador will ever know how to show under all circumstances, as it has ever done thus far, the invariable consideration and inviolable respect which are due the American Nation and Government.
In the hope of receiving from your excellency a satisfactory reply and with renewed expressions, etc.,