Seward nor the subsequent correspondence complain of the refusal of the Paraguayan Government to permit its continuance, though among those who were forced to abandon the legation were several American citizens. It was only in behalf of Bliss and Masterman, the one an American and the other an Englishman, who were not arrested in the legation but outside of it, that redress was asked by Admiral Davis; and in their case the claim of official connection with the legation, whether rightly or wrongly alleged, carried with it the assertion of the personal immunity which the diplomatic character generally confers. It may also be observed that from the time Leite Pereira came to the legation it was closely policed, probably fifty men, as Mr. Washburn stated, being kept on guard day and night."

(9) PERU.

$303.

"I have to acknowledge the receipt of your despatches to No. 180, inclusive. Those numbered 170, 177, and 180 refer particularly to events of a serious character that had occurred within the precincts of the consulate at Tumbez, involving, to a certain degree, as you have presumed, the rights of the consul and the dignity of this Government. From the despatch referred to, the following facts are gathered:

"A Peruvian citizen, Don Domingo Elias (who had been imprisoned by his Government for incendiary publications against the President, but who was subsequently released), taking advantage of the hostile relations with Bolivia, enlisted a party of followers in support of his revolutionary schemes, and on the morning of the 21 October approached Tumbez with the object of attacking the city. Having entered the town the party was passing in front of the United States consulate, when it was attacked by the national guard and in a very brief time defeated. Don Domingo and nine others then took refuge in the consulate, whither they were pursued by the soldiers of the guard, and fired upon, with the effect of killing one of the followers of Elias, and endangering the lives of the consul's family and of many women and children who had taken refuge there. At length the firing ceased, and the house was surrounded by a guard, in spite of which, however, Don Domingo escaped on the night of the 22d.

a Dip. Cor. 1868, II. 833, 834. See Davis, Life of Charles Henry Davis, RearAdmiral, 321–330.

See, also, Mr. Seward, Sec. of State, to Mr. McMahon, min. to Paraguay, Jan. 23, 1869, MS. Inst. Paraguay, I. 136; Mr. Fish, Sec. of State, to Mr. McMahon, min to Paraguay, Sept. 2, 1869, MS. Inst. Paraguay, I. 143. Both these instruc tions express general approval of Mr. McMahon's course.

“It further appears that on the 26th October Señor Benavides, the governor of the province, arrived at Tumbez; that he sent for Consul Oakford, and during the interview which followed treated him in a most insulting manner; demanding the surrender of Don Domingo and threatening, in case of his refusing compliance, to send him to Lima in irons; declaring that the comandante of the town should have battered the consulate to the ground, with many other equally gross and violent remarks, uttered in the presence of a crowd, with the evident intention of making the insult as public as possible. Subsequently the governor moderated his tone, and reiterated his demand for the delivery of the refugees and their arms. The consul agreed to deliver the latter, but refused to surrender the former. Upon his return to his house, he was followed by the comandante, to whom were delivered the arms of the insurgents. At a second visit on the same day, the comandante demanded the men; this was refused. Within an hour or two the governor sent a written and peremptory demand for them, to which the consul replied as he had already done. "After receiving this reply the comandante appeared at the cousulate with a number of soldiers and said, in behalf of the governor, that he had come to take the men by force, and, the consul having stated that he could not resist as he had not the means of doing so, the refugees were taken by the officers and dragged from the consulate.

"In view of these outrageous proceedings you deemed it proper to demand, as you did by a note to the minister of foreign affairs of of the 5th December, in substance:

"1. That the authorities at Tumbez should go officially to the house of the consul and publicly apologize to him for the attack on his residence of the 21st October, and

"2. That Governor Benavides should also publicly apologize for his insult to the consul, and that he should be removed from office, and that such other satisfaction should be rendered as this Government might require. To these demands the minister has replied that Don Domingo and his followers fired from the consulate upon the authorities, and that the consul had allowed his house to be used as a fort, and these allegations are sustained by the testimony of Don Isadore Elias (a brother of Don Domingo) and Don Manuel Quintana, both of whom were of the party of refugees, and whose declarations were taken subsequently to their delivery to the Peruvian authorities. The minister's note closes by expressing the hope that the Government of the United States will disapprove of the conduct of the consul, and charge him to abstain from similar acts, while it will recommend to the governor that he should use less violent language in his interviews with the consul.

"You have determined not to accept this as a satisfactory arrangement of the differences at issue; and at the date of your last despatch intended to announce this determination to the minister.

"The Department does not concur in the view you have taken of this affair.

"Neither the law of nations nor the stipulations of our treaty with Peru recognizes the right of consuls to afford protection to those who have rendered themselves obnoxious to the authority of the government under which they dwell. And in a case so flagrant as that now under consideration it may be doubted whether even a high diplomatic functionary would be justified in casting the protection of his flag around those who were engaged in the commission of the highest crime recognized among civilized nations. It can not be questioned that the object of Don Domingo's band was rebellion and revolution. His character, as delineated in your 159, appears to be that of an active, ambitious and unscrupulous aspirant for power. To attain his end, it appears that in 1844 he seized upon the Governinent,' and his subsequent career seems to indicate a determination to subvert the existing order of affairs, with a view to his own elevation. But recently released from prison, to which he had been consigned for his incendiary publications, he endeavors to enlist an armed force to effect the accomplishment of his plans. There could be no doubt, therefore, as to the intention of himself and his followers. That their approach was expected and that it was regarded with terror by the helpless inhabitants of the town is proven by the fact stated by Consul Oakford, that his house was filled with women and children who had sought safety there. Had there been any doubt of the guilty intention of Don Domingo and his followers, the sympathies of the consul might with some reason have been enlisted in their behalf. Had they been unarmed men quietly traversing the streets and suddenly attacked by cruel and brutal soldiers, it would have been the dictate of a prompt and generous humanity to offer them an asylum, at all risks. But this Department sees no ground of the character adverted to to justify Consul Oakford's mistaken use of official prerogatives to screen the disturbers of peace from the necessary consequences of their acts.

"The defeated party, having sought protection in the consulate, were followed and fired upon by the soldiers of the town. At this point there is a marked discrepancy between Mr. Oakford's statement. and that of Mr. James Houghton, whose affirmation before Consul Ringgold is the only account of the affair concurring generally in that of Mr. Oakford, with which the Department is furnished. The consul says that, as the party of Don Domingo entered his house, he H. Doc. 551—vol 2- -53

took from every man his arms, which he noticed were loaded, and removed the caps from the locks; therefore it is impossible that any shots should have been fired from those in his house upon the soldiers in the street. This statement of the consul is directly at variance with the declaration of the Peruvian refugees to which the minister of foreign affairs has referred. It differs also from the testimony of Mr. Houghton, who, on the other hand, alleges that he was in the consulate on the morning of the 26th October, six days after the insurgents entered it, and he saw the consul enter his house followed by the governor of the town, and several Peruvian officers armed that the governor demanded of the consul certain arms supposed to have belonged to several persons then under the protection of the United States consul. The consul then requested these persons to deliver up their arms, which they did, and the officers then left the house with said arms.'

"But, waiving for a moment the question as to the consul's right to afford protection to the defeated insurgents, after the heat of the engagement, it was his duty to deliver them to the Peruvian authorities upon demand. He was not the proper judge of their case; their offence was not against the laws of the United States, but against those of Peru, and to the properly recognized officers of that Republic they should have been surrendered. He says he feared they would be taken out and summarily shot. Such an apprehension on his part would have justified him in making every proper effort as an individual, in averting their fate; it would even have sanetioned his exertions to secure, if it had been possible, the pledge of the governor that they should not be harshly dealt with; but it did not justify him in stepping between the offended laws of Peru and the due administration of justice by the constituted authorities of a friendly government.

"The rudeness and insults addressed by Governor Benavides to the consul were inexcusable and ought to be atoned for; it is not surprising, however, that he should have been betrayed into an intemperate warmth of language by the interference of Consul Oakford in the discharge of duties with which he had been entrusted, and for which he and not the consul was accountable.

“The subsequent course of the governor, in sending to the consulate and arresting the insurgents, can not be condemned by this Government. The national flag was not insulted, nor the national dignity affected by this proceeding. The former had been unwarrantably used; under the treaty it would and should have protected the property of the consulate, and the persons and property of American citizens, but in this case no such plea for its use can be presented. The Government of the United States would not permit such an abuse of a foreign flag by a foreign consul to be made with impunity.

"The conduct of the consul is regarded by this Department as censurable in the highest degree, tending, if not disavowed by this Government, to impair our friendly relations with Peru, and establishing a precedent which would inevitably lead to consequences of a disastrous nature on the recurrence of similar events.

"You are instructed therefore to communicate to the minister of foreign relations the disapproval of this Government of Consul Oakford's course."

Mr. Marcy, Sec. of State, to Mr. Clay, min. to Peru, Jan. 24, 1854, MS.
Inst. Peru, XV. 126.

a

January 23, 1855, the Government of Peru, which had been installed by revolution on the 5th of the month, addressed to the diplomatic corps a circular containing a decree to the effect that "the ex-generals and all the refugees in the legations or on the foreign vessels " should "leave the Republic for the Isthmus of Panama, or go by that route.” The minister of the United States replied that as foreign legations were "entirely extraterritorial," and as the Government of Peru had no jurisdiction either over them or over foreign vessels of war lying in her ports, he presumed that the object of the circular "was to notify the Peruvian citizens in asylum in this legation that they should prepare to leave the Republic," and was not intended "to affect or in any manner diminish the privileges secured to the undersigned by the law of nations." The British minister, "as an act of pure courtesy," wrote that "the only refugee in the legation of Her Britannic Majesty was General Echenique, who left on yesterday's steamer;" but he also commented upon the "unbecoming tone of command" that pervaded the circular, and declared that he did. "not admit that the provisional government of Peru" had "the right to issue orders on subjects which concern Her Britannic Majesty's legation, or the commanders of her war vessels." Of the same purport was the reply of the French minister, who, however, further informed his excellency that he should ask him " at the proper time," to give the refugees in the French legation a sum of money sufficient "to take them abroad" and a "passport without designation." The minister of Brazil, while deploring that “the necessity should exist in Peru of having recourse to the exercise of the right of asylum established in times when misfortune had need of every species of guarantees against the barbarity of the middle ages," declined, without consulting his Government, to enter into a discussion of the right in question, which had been "officially recognized and constantly respected by all the governments" in Peru since its independence. If the present Government, he continued, desired to introduce changes,

a Lawrence's Wheaton (1863), note 137.