in regard to compensation the same treatment which
French subjects received. Equality of treatment was
thus alone insisted on. Is it certain that it could have
been exacted ?
In Hayti, in 1872, the question of indemnities for
losses caused by civil war formed the subject of discussion
by two Brito-Haytian commissions. 1 The first adopted
the principle that foreigners must take the risks of such
events : the second held that they must be protected.
It instanced the action of France in compensating the
victims of the communists ; which of course was a
mistake, as the indemnities granted by France were
voluntary. And the curious view was taken, that since
other mixed commissions had adopted this harsher
principle in favour of other nations, the " most favoured
nation " clause required the decision of the first Brito-
Haytian commission to be reversed. The earlier com-
mission had in mind the Jamaica rebellion of 1865, when
the Haytian General Salomon was refused compensation, 8
and it limited compensation to unjustifiable acts of
government agents, and to cases in which it had been
expressly promised.
In 1872 the French Government shipped several parties
of destitute Communists to England. 3 " It cannot now
be tolerated," said Granville, 4 " that any country should
send its convicts to the territory of a friendly neigh-
bouring power without previously ascertaining the
willingness of such power to receive them." Mr. Thiers
thought the matter a small one, though he concurred
that " small punctures of the skin " might, if frequently
repeated, at last produce a serious wound. 6 But he quite
admitted the principle that, as Lord Granville phrased
1 67 S.P. 139, 153. 2 62 S.P. 584.
3 69 S.P. 1206, Lyons to Remusat, 17 May 1872.
* lb. 1203, Granville to Lyons, 16 May 1872.
6 lb. 1214, Lyons to Granville, 27 May 1872.
II
l62 ILLUSTRATION [chap, iv
it, " England should not be made a penal settlement for
France."
Three cases not strictly within our scope occurred in
relation to Spain in 1873. The Spanish steamer Murillo
ran down the emigrant ship Northfleet. The Murillo 's
master was suspended by the court at Cadiz for a year ;
Great Britain took no further steps, beyond furnishing the
Spanish Cabinet with a copy of Judge Phillimore's strong
remarks in the Court of Admiralty on the occasion of
the Murillo s return to England and the proceedings
against her there. 1
During the Carlist War of 1873, two British steamers
(the Queen of the Seas and the Deerhound) were seized on
the high seas by the Spaniards, on suspicion of conveying
arms to the insurrectionists. Lord Granville 2 pressed
for restitution. The latter ship had a cargo of 1,780
rifles on board, and was found in the immediate vicinity
of a disturbed district, but the insurrectionists were not
recognized as belligerents, and the capture could perhaps,
therefore, not be justified under the law of contraband.
The Spanish Government released ship and crew, the
British Minister reserving a right to demand compensa-
tion. 3 Apparently he did so without authority ; for
when the owner applied to Lord Granville for redress for
his sufferings and losses, he was told that when British
subjects enter into a speculation such as that in which
the Deerhound was employed, they must not look to
H.M. Government for compensation or support if the
expedition prove disastrous. 4 It is a little curious,
therefore, why they interfered at all.
The third case was that of the Virginius, too unim-
portant for our present purpose, and too well known, to
need discussion. 6
1 65 S.P. 446.
2 lb. 513, Granville to Macdonncll, 11 Sept. 1873.
s lb. 510, Macdonnell to Carvajal, 26 Sept. 1873.
1 lb. 527, Tenterdcn to Stuart, 4 Feb. 1874.
6 lb. 98 et seq.
chap, iv] PERU 163
Several cases of importance occurred in Peru in 1874.
Two young men of British nationality were kept on a
charge of murder for nearly a year in prison ; and the
prison (a disused mine) was such that " no language was
sufficient to convey an idea of the filthy and pestilential
hole." ' Their Minister obtained their removal to Lima,
and process was commenced against the magistrate who
had so long delayed the proceedings. The objection-
able jail was of 21 x 7 x 10 feet, and thirty-one prisoners
were put there, without bed or food. Natives had no
better treatment, so that the complaint could only be
that Peru was treating the youths with outrageous
cruelty. It will be observed that no apology or com-
pensation was made or asked for.
The British Consul (Nugent) thought it right to pursue
the matter, and expressed an opinion * that in cases
brought against foreigners international law required
that notice should be given to their Legation ; if they
were in poor circumstances, that they should have consular
assistance ; and that they should not be detained as long
and treated as barbarously as Bell and Stirling. On his
ultimately finding out the facts of the charge and the
strength of the evidence, his enthusiasm considerably
relaxed.
On 15 July 1874, the men were awarded six years'
imprisonment. It was alleged that this was coram non
judice, the judge who sentenced them being suspended.'
The case was appealed, and resulted in the sentence being
increased to fifteen years. 4 Meanwhile, Bell and Stirling
were well lodged and fed. The Minister (March), who
then took up the reclamations, did so in exceedingly
capable fashion. While sedulously avoiding everything
likely to irritate the Peruvian Government, Mr. March,
in an admirable despatch of 19 Oct. 1874, 5 showed that
1 67 S.P. 318, Nugent to Derby, 27 June 1874.
2 lb. 324, Same to Same, 27 July 1874. 3 lb. 326.
* lb. 340. 5 lb. 352, March to Aguera.
164 ILLUSTRATION [chap, iv
Bell as a minor ought to have had a curator ad litem,
that no interpreter was employed, as required by the
code, and that evidence tendered for the defence was
refused — (which could only have been done in a police
court in England.) The Supreme Court reduced the
sentence to nine years, 1 and March then continued to
press the fact of these irregularities having occurred
upon the Peruvian Government. He agreed that it was
open to the court, on the evidence, to find the accused
culpable. The Earl of Derby, on the advice of the Law
Officers, held * that in view of the fact that the last two
trials had been fairly conducted according to Peruvian
law, H.M. Government would not be justified in demand-
ing their release. And this although " from an English
point of view some of the proceedings had been objec-
tionable, the evidence unsatisfactory, and the sentence
excessive." Sir Spencer St. John, in an endeavour to
obtain a mitigation of the sentence, reported these
strictures to the Peruvians, and did so without the
qualifying phrase " from an English point of view." It
is not extraordinary that his efforts failed.
Another of these Peruvian cases was that of Higginson,
whose complaint was that he was taken forcibly out of
the British s.s. Santiago in Callao harbour, and thrown
into prison on a charge of attempted homicide on board
the vessel when at Panama, outside the jurisdiction of
Peru. (The injured party was a Chilian.) Higginson
was set at liberty, on the ground of irregularity, after five
days' * detention among criminals : and Mr. Nugent began
to ask for "some small" compensation. The Law
Officers and Lord Derby 4 concurred that " a gross out-
rage " had been committed, and supported the demand
for a full apology and compensation. It was necessary,
however, for them to retreat from this lofty position.
1 C6 S.P. 362. 2 lb. 388, Derby to St. John, 1 April 1875.
â– lb. 324 (eight days, according to ib. 327).
• lb. 329, Derby to March, 8 Oct. 1874.
chap, iv] TALISMAN CASE 165
Explanations' were furnished which showed that the
arrest and imprisonment were " in due course of law as
ordinarily administered in Peru," though based on what
eventually proved to be a gross error. 2 Great Britain
was therefore " precluded from insisting further upon
an apology and indemnity." Mr. Aguera, in furnishing
these explanations, again laid down the doctrine that
foreign settlers cannot expect to have special laws or
treatment applied to them which would place them in
a better condition than natives.
The next case was that of Hall, the captain of the
P.S.N. Co.'s Arequipa. The chief engineer, dismissed
at his instance, brought a prosecution against him,
which resulted in his being detained at Callao. The
engineer alleged an attempt to murder him on board the
ship : and it is admitted that he was roughly handled.
Mr. Nugent made an immediate demand for compensa-
tion, asserting that for two months the cause was delayed
whilst Drs. Sucre and Rospigliori disputed which should
try the case. Mr. Aguera declined to admit any re-
sponsibility for the acts of the judicature. Lord Derby
took the view that the case was one in which no inter-
ference was possible. 3 The trial was still further delayed
to a term of six months.
Perhaps the most interesting of these events, however,
was the expedition of the Talisman. It resembles in
its main outlines the expedition of the Dcerhound,' but
it issued in violence, and resulted in serious penal
consequences. The Talisman was fitted out in Chili,
and was captured on i Nov. 1874 at Pacocha under the
British flag. She had fired on Peruvian boats and had
captured a port-captain and several custom-house
officers, leaving her own captain a prisoner on shore at
1 66 S.P. 389, Aguera to March, 16 Jan. 1875.
2 lb. 389, Derby to St. John, 7 June 1875.
3 lb. 339, Derby to March, 10 Oct. 1874.
* Vide supra, p. 162,
l66 ILLUSTRATION [chap, iv
Pacosmayo. The prisoners taken with the ship were
fairly well treated, 1 separated from convicts, 2 and per-
mitted free communication with their Consul ; but the
captain (Haddock) and the men with him were im-
prisoned at first in " a filthy hole " without decent
accommodation, and were robbed of £50 and boxes. After
their detention for ten months, Lord Derby wrote strongly
urging an immediate trial. It was explained that pro-
ceedings against the ship had to be disposed of first,
and that evidence had had to be collected in Chili. On
12 Nov. 1875 the ship was finally condemned on appeal,
and the President then set at liberty all but the captain
and two other officers. The trial of the latter was en-
deavoured to be expedited, but the reply was that no
interference with the judiciary was possible, and that
the delays of the old Spanish procedure were inherent in
the judicial system.
At the same time general representations were made
as to the length of time for which prisoners were kept
without trial. It was suggested that this was a very
common occurrence. 5 But only four such cases were
produced, 4 all of very serious criminal allegations.
Mr. March 6 draws attention to the fact that the sub-
ordinate judges in Peru have no discretion but to lodge
accused persons in jail, after which the proceedings are
prolonged and secret He does not suggest that foreigners
can complain of this, but recommends the conclusion
of a treaty to obviate such difficulties. Lord Derby
addressed a somewhat strong despatch to the Minister
on the subject, and as it was communicated to Peru
just at the time when the Talisman s crew were being
1 66 S.P. 356, March to Derby, 27 Nov. 1874 ; ib. 366, Same
to Same, 19 Dec. 1874 ; 370, Same to Same, 26 Dec. 1874.
2 Ib. 384, Same to Same, 20 Feb. 1875.
3 Ib. 360, March to Agucra, 2 Dec. 1874.
4 Ib. 390, 27 May 1875.
5 lb. 383, March to Derby, 12 Feb. 1875.
chap, iv] TALISMAN CASE l6j
released, 1 it produced the worst possible impression. The
Peruvians recalled that the trial of a native for attempted
assassination of their President had proceeded for eighteen
months. On 14 April 1876, the men were sentenced,
most leniently, to four years' banishment.
Meanwhile Derby was taking the high ground with
the Peruvian Minister in London that if the law enabled
untried prisoners to be detained for over a year, foreigners
were entitled to have it altered. 2 He made no allowance
for the particular cirumstances of Peru, nor for the great
evils which the Talisman's expedition caused to that
country. In reply to Galvez's very clear explanations, 1
he reiterates * the right " to protect British subjects
from manifest injustice in a foreign country even when
such injustice is inflicted in accordance with the technical
requirements of the law of that country." In the con-
crete, he considered that it was manifest injustice to delay
the discharge of the mate King on account of the pending
of an appeal interjected by the captain Haddock.
Galvez declined the discussion as to the limits within
which a government can maintain that it does not per-
mit the application of the laws of another country to
its subjects. That, he says, would be to abandon the
principle that foreigners must submit to national law.
It would put every new and rough country at the mercy
of its better established neighbours. Substantially, the
accused had little to complain of — they were guilty of a
grave crime. Lord Derby's next note 5 is much more
moderate in tone, and instead of insisting on immediate
release, he only reserves a right to bring forward the
delay as " strong ground " for compensation.
In the British Parliament a long debate took place
1 67 S.P. 228.
2 lb. 240, Derby to March, 13 May 1876.
3 lb. 254, Galvez to Derby, 13 June 1876.
4 lb. 257, Derby to Galvez, 20 June 1876.
5 67 S.P. 266, Derby to Galvez, 3 Aug. 1876.
l68 ILLUSTRATION [chap, iv
about this case on 21 March 1876. l Dr. Cameron, in
raising the question, expressly said, " If according to the
law of Peru, it were a capital offence to steal a farthing,
and a British subject chose to go into that country and
commit that offence, I do not see on what grounds I
could urge interference on his behalf. It would be the
old case of Que diable allait-il faire dans cette galere?"
What he complained of was the prolonged detention.
And he added that the conditions of imprisonment were
really much worse than diplomatists had considered them :
which is confirmed by the fact that the mate was fatally
shot while awaiting the result of the appeals. Mr.
Bourke, in reply, said that however little our people
might like the law and procedure of a foreign country,
we could only claim that they should be fairly tried by
the laws of those countries, and (he added) that their
trial should not be protracted beyond a reasonable
extent. That is a very vague, and, it is conceived, an
unwarranted addendum. In the Cagliari case, it was
the bad state of health of the prisoners, induced by the
original insanitary imprisonment, that was decisive.
And Bourke himself observed that quite recently in
England, it was possible that a prisoner might be com-
mitted in July and tried next April. 8 Lord James put
it that " no country had a right out of its own mere
arbitrary will to detain prisoners of another nationality
beyond the time they could detain their own subjects under
similar circumstances." 3 As we have seen, Mr. March
quoted a case where a Peruvian had been 4 detained
many months.
Mr. Evelyn Ashley took entire exception to this doctrine
of equality, but the vigour of his language diminished
the value of his observations. He wanted " gun-boats '
sent to Peru — where they would probably have been
blown up or rammed by the Huascar. Sir Stafford
1 Hansard, 3rd Scr. vol. 228, p. 2>77- 2 M. p. 403.
3 lb. p. 406. * Supra, p. 167.
chap, iv] TALISMAN CASE 1 69
Northcote joined him in disclaiming the bare doctrine of
equality as adequate.
Sir J. Holker, the Attorney-General, agreed that if
the delay were a matter for which the tribunals were
responsible, H.M. Government could not make out any
claim for compensation. The prior trial of the action in
rem which had caused the delay, he added, was as much
the law of France as of Peru. 1 Mr. W. E. Forster, with an
ill-tempered fling at " the course of Peruvian injustice,"
contradicted him, and said that there would be cause
of complaint if trials did not take place within what he
oddly called a " somewhat " reasonable time. Mr. W. E.
Gladstone also disclaimed the idea that a reference to
the courts absolved a government from liability. The
courts must come up to some level — " the ordinary level
which International Law required." He did not explain
what that level was ; and it is obvious that ideas of correct
legal procedure differ so greatly and are so liable to be
misunderstood, that it would be impossible to affirm
that a tribunal did not come up to standard because its
procedure involved great delay in cases of successive
appeals. No one would maintain the logical position
that equality is sufficient, and that a reference to a bad
tribunal is enough. But practically it is very dangerous to
lay down that equality is insufficient, and that any definite
" level " of capacity in the courts, of perfection in the
procedure, and of comfort in the jails must be provided.
Mr. O'Connor Power aptly instanced the American
Fenians who had been kept for long periods in jail with-
out a trial as suspects, and the matter dropped. 2
In 1873 Mr. Fish refused to accept responsibility for
1 Probably it was based on the Ord.de la Marine of 168 1. It
is quite in accordance with its spirit.
2 At the last assizes at Carmarthen in 1908 a young labourer,
tried and acquitted on a trivial charge of theft, had been in
jail four months. Another person tried at Bristol and discharged
had been in jail for the same time {Law Times, 26 Dec. 1908).
170 ILLUSTRATION [chap, iv
Mexicans assassinated in Texas. " Though the crime
may not be without precedent, it seems obviously
unreasonable, in view of the peculiar condition of the
quarter where it was perpetrated, to expect that it would
certainly be punished." Borderers "must not for some
time to come, expect either government to insure them." '
Mr. Bayard confirmed this position fifteen years later :
though Mexico laid stress on the fact that absolutely
nothing had been done to effect arrests. It is instructive
to compare the Honduras case. 2 Turkey was able to
cite with effect several such cases when complaints were
made of the disappearance in Kurdistan of F. Lenz. 3
The French ship Phare 4 was searched for arms at
Corinto in 1874, and some weapons and ammunition were
seized, while the master was given two months' imprison-
ment. A superior court thought the evidence insufficient,
and discharged him. France refused to be satisfied, and
eventually induced Nicaragua to go to arbitration before
the French courts, which awarded France about £1,600 and
costs. 5 The remarkable ground was taken by the court,
that " importation " means clearing at the custom-house,
and not bringing within territorial waters. Such an interpre-
tation would make the repression of smuggling impossible.
The imprisonment of a naturalized U.S. subject,
J. R. Santos, in Ecuador in 1874, gave rise to reclama-
tions which were in 1894 referred to the ex officio arbitra-
tion of the British Minister in Quito, or his nominee.
The important question of naturalization had been settled
by the Treaty of 1872, 6 and the main dispute was as to
its interpretation. A subsidiary question was whether
Santos had —
" Been guilty of such acts of hostilities and unfriend-
liness to the Government of Ecuador as, under the law
1 Far. Rel. U.S. (1875), 973 ct passim ; ib. (1886), 158 ; ib. (1888).
2 Supra, p. 83. 3 Moore, Digest, VI. § 1020.
4 Mcrignhac, loc. cit.% in ; Renault, Rev. de D.I. (i88i),22.
5 £3,000 (75,000 frs.) was asked for. " 65 S.P. 1317.
chap, iv] MAGEE CASE 171
of nations, deprived him of the consideration and protec-
tion due to a neutral citizen of a friendly state."
A compromise was in the result arrived at. 1
A case like that of the Creole occurred in 1875. The
Peruvian vessel Maria Luz put into Kanagawa under
stress of weather, 3 with coolies on board. Some were
obliged to go on shore by the Japanese authorities for
examination, and they refused to return. The Emperor
of Russia, as arbitrator, decided that Japan was in no
way responsible.
In 1874 the celebrated expedition of Japan against the
Formosans took place. It was motived by the violent
acts of the Formosan savages ; but it was nevertheless
a clear infringement of the territory of China. By the good
offices of Sir T. Wade, the matter was accommodated by a
treaty. The Chinese recognized the duty of preventing
atrocities by their subjects, and agreed to pay compensa-
tion for the injuries done by the savages and for the
improvements made by the Japanese ; 500,000 taels in all.
Mention may be made of an outrage in 1874 upon
a gentleman called Magee, who occupied the post of
British Vice-Consul at San Jose de Guatemala. It was
certainly a most brutal, gross, and inexcusable assault
committed by the drunken local governor. The Diplo-
matic Corps agreed that £20,000 would be a fair com-
pensation, but Mr. Magee declined for private reasons
to make any demand on the Government. On account
of the official character of the assailed and of his assailant,
and the use he had made of the national forces in effect-
ing his purpose, the Guatemalan Cabinet made a very
full and proper expression of regret and took prompt and
active steps. They agreed to salute the British flag :
whilst the delinquent governor was shot by the passengers
when attempting to board a U.S. steamer with a view
1 88 S.P. 552.
2 Merignhac, loc. cit. § no; Annuaire de Vlnst. d > D.I.
(i877). 353-
172 ILLUSTRATION [chap, iv
to elope, and on his unexpected recovery was awarded
five years' penal servitude. There remained the question
of an indemnity, and as Magee did not want one for
the injury to the individual, it was not easy for Lord
Derby to extort £10,000 from Guatemala on the score
of the insult to the official. Guatemala eventually
declared that if the British Government was not con-
tent with the salute, and valued its dignity at £10,000,
it was welcome to the money. The action of the
American authorities was prompt and satisfactory.
But Lord Derby took up the matter in an imperious
spirit, which was really uncalled for, and the Guate-
malan representative was unable to place the matter to
him in a proper light.
Collisions on the high seas are not strictly within our
province. But we have dealt shortly with the case of
the Murillo, 1 and we must now just notice the case
of the Insulano. This was a Portugal steamer, which
collided with the British City of Mecca eighteen miles off
the Tagus in Jan. 1875. She sank, and the City of Mecca
was injured. The Portuguese court condemned the
City of Mecca. Mr. Morier at first entertained the mis-
taken idea that Portugal gave an absurd and unnatural
interpretation to the Regulations for preventing collision,
and was urgent that the Portuguese Government should
be made responsible. Eventually he recognized that the
fault of the court (if any) was of a much more subtle
kind, 2 and he agreed that " however glaring the mis-
carriage of justice, and however distorted the interpre-
tation forced upon the rules of the road at sea (so long
as the absolutely wrong reading of Art. 14 was not main-
tained), the matter must be regarded as a res judicata
which cannot be reversed by international action,"
1 Supra, p. 162.
2 It turned on the ultimate duty of the City of Mecca to take
measures to avoid the Insulano' s danger (74 SP. 1165, Salisbury
to Morier, 12 July 1879).
chap, iv] THE CITY OF MECCA I73
though he was obviously not at all pleased with it. 1
And he still objected to the " competence " of the Portu-
guese courts to try the case — though we are not aware
that it can be a subject of complaint by foreign nations
that a court should investigate any case that it thinks
proper. Whether or not they will recognize its decision
is a matter for themselves.
Morier's tendency to supervise the proceedings of
judicial tribunals received some check from the Marquis
of Salisbury, 8 who explained that the law of nations and
the practice of the English Admiralty alike recognized
the competence of any Admiralty Court in cases " com-
munis juris maritimi." The present case might have
been tried by the Admiralty Court of any country in which
the vessel happened to be. However, Lord Salisbury
reserved the right to object diplomatically to the judg-
ment if it should eventually appear to be wrong in prin-