on the subject of rights of legations is noticed, inasmuch as in it you take up certain positions which this Department cannot maintain or approve. "It appears that the correspondence between yourself and the Colombian foreign office arose from the refusal of a certain Señor Uribe, a wealthy Colombian citizen, to pay his war contributions, which led to an order for his arrest, and then to his being rescued and concealed by the minister of the Argentine Republic under the assumed right of asylum of his legation. This right the Colombian authorities appear to have respected; but the minister of foreign affairs addressed a circular note, a copy of which you inclose, to the representatives of foreign powers, protesting against the right of asylum of foreign legations for the enemies of the Republic, and intimating that, in spite of past toleration of it, the Government might feel itself under the necessity of claiming the surrender of individuals who had taken refuge in the residences of ministers, and of whom the legitimate authority may for any motive whatever be in search.' "In reply to this you inform the minister of foreign affairs, as you state, upon your own responsibility before having had the opportunity to refer it to your Government,' that a public minister 'is entitled to all the privileges annexed by the law of nations to his public character, and among these entire and absolute exemption from local jurisdiction; also that civil and criminal jurisdiction over those attached to his legation rests with the minister exclusively, to be exercised by him according to the laws, regulations, and instructions of his own Government, and above all that his house cannot be invaded by order of either the civil or military authorities of the local government, no matter how apparent the necessity therefor.' . . . “These remarks at any time would require to be materially qualified. . . . The works on international law do not sustain the unqualified right of asylum, and the Spanish law forbids it altogether. . . . The exercise of criminal and civil jurisdiction by a minister is practically a dead custom. . . . There is, it is true, a function of ministerial and consular extraterritorial jurisdiction attaching to representatives of Christian powers in certain non-Christian countries, as specified in section 4083 and following sections of the Revised Statutes, but that function is derived from treaties ad hoc, and is exercised and limited by means of laws passed to carry those treaties into effect. We cannot demand from other governments any more privileges for our diplomatic agents than are accorded by us to their agents here; and the laws of the United States do not confer such jurisdiction as you have claimed on ministers, as a class, in the absence of a right to do so acquired by a treaty, and still less could civil and criminal jurisdiction be exercised by a foreign minister in the United States, as you state, under the regulations and instructions of his own Government.' H. Doc. 551-vol 251 "In notes 128 and 129 to section 226, Part III., of Wheaton's International Law (Dana's edition, 1866), Mr. Dana discusses the whole subject exhaustively, and very properly remarks that the subject of diplomatic immunity of person and place has been obscured by the use of the phrase extraterritoriality;' that treating this figure of speech as a fact, and reasoning logically from it, have led to results of an unsatisfactory and not practical character; that the phrase should be treated as a figure of speech and not as a fact from which inferences can be drawn. The whole subject, he says, depends upon the principle the convenience of nations; nations necessarily agree that the functions of ambassadors must be performed with freedom, and the ultimate test is whether the exercise of the municipal authority in question is an unreasonable interference with that freedom. The Department of State long ago laid down the position of this Government as regards civil or criminal jurisdiction in a letter to Mr. Fay, United States minister at Berne, of the 12th November, 1860; in the above sense and as regards the right of aslyum, in an instruction of Mr. Fish to Mr. Bassett, at Hayti, dated 4th of June, 1875. (See Foreign Relations for 1875, p. 701.)" Mr. Bayard, Sec. of State, to Mr. Scruggs, min. to Colombia, June 16, See, also, Mr. Scruggs, min. to Colombia, to Mr. Bayard, Sec. of State, It seems that Señor Uribe left the house of the Argentine minister secretly, 66 (5) ECUADOR. $299. I have received your dispatch No. 29, of the 1st instant, in which you report the collapse of the titular government at Quito and the dispersion of its members in anticipation of the occupation of the capital by the successful revolutionary forces of General Alfaro. "I note your statement that the family of the late minister of war came to your residence on the 17th of August seeking shelter, and that, at the date you write, they were still inmates of your house. You add that General Savasti himself joined them on the following night, and still remains your guest, quite ill. The shelter thus given by you to one of the prominent members of the overturned government, and as it appears similarly granted by other foreign representatives to the families of members of the late government, does not appear up to the time of writing to have been of the nature of asylum, as the word is properly understood by international authorities, there having been apparently no national or municipal government in the capital. Shelter under such circumstances was a mere act of humanity, un accompanied by any assumption of extraterritorial prerogatives by you, or interference with any rights of legitimate government or Sovereignty. This is quite distinct from the so-called right of asylum, which can logically only be exercised in disparagement of the rights of the sovereign power by withdrawing an accused subject from its rightful authority. The practice of this kind of asylum is not a right derived from positive law or custom; it is not sanctioned by international law, and can only find excuse when tacitly invited and consented to by the state within whose jurisdiction it may be practiced. The Government of the United States has constantly declined to be bound by such questionable titles to accept its exercise, and has on many occasions and in positive terms condemned the usage and discouraged resort thereto by its representatives. In 1875, to select one among several examples, Mr. Fish instructed Mr. Cushing, then minister to Madrid, that The right of asylum, by which I now refer to the so-called right of a political refugee to immunity and protection within a foreign legation or consulate, is believed to have no good reason for its continuance, to be mischievous in its tendencies, and to tend to political disorder. These views have been frequently expressed, and, while this Government is not able of itself to do away with the practice in foreign countries, it has not failed on appropriate occasion to deprecate its existence and to instruct its representatives to avoid committing this Government thereto.' "In 1884, answering a request of the German Government for the views of the United States as to the propriety of restricting the exercise of asylum in Hayti to the citizens or subjects of the sheltering state, Mr. Frelinghuysen wrote: While indisposed from obvious motives of common humanity to direct its agents to deny temporary shelter to any unfortunate threatened with mob violence, it has been deemed proper to instruct them that it (the United States Government) will not countenance them in any attempt to knowingly harbor · offenders against the laws from the pursuit of the legitimate agents of justice.' "Your concluding request for instructions is presumed to relate to this incident of the shelter given by you to General Savasti and family. The foregoing citations will have sufficiently indicated the uniform rule of this Government to discountenance asylum in every form and to enjoin upon its agents the exercise of the utmost care to avoid any imputation of abuse in granting such shelter. It may be tolerated as an act of humanity when the hospitality afforded does not go beyond sheltering the individual from lawlessness. It may not be tolerated should it be sought to remove a subject beyond the reach of the law to the disparagement of the sovereign authority of the state. "Sections 46, 47, and 48 of the Department's printed personal instructions relate in terms to the extension of asylum to unsuccessful insurgents and conspirators. It seems to be very generally supposed that the case of a member of an overturned titular government is different; and so it may be until the empire of the law is restored and the successful revolution establishes itself in turn as the rightful government competent to administer law and justice in orderly process. Until that happens the humane accordance of shelter from lawlessness may be justifiable; but when the authority of the state is reestablished upon an orderly footing, no disparagement of its powers under the mistaken fiction of extraterritoriality can be countenanced on the part of the representatives of this Government.” Mr. Olney, Sec. of State, to Mr. Tillman, min. to Ecuador, Sept. 25, 1895, As to asylum in Ecuador, see dispatches of Mr. Hassaurek, minister to March 9, 1896, Señor Montalvo, Ecuadorian minister for foreign affairs, asked permission of Mr. Tillman, United States minister at Quito, to enter the lower part of the building, in which the latter resided, and arrest a Colonel Hidalgo, who was alleged to be a conspirator against the Government. It appeared that Mr. Tillman rented an apartment on the main floor of the building, but that the rooms below and in the rear, in some of which Colonel Hidalgo lived, formed no part of his quarters, while all the rooms opened on a court, to which there was a common entrance from the street. Mr. Tillman disclaimed any control over the entrance, as well as over the rooms not rented by him; but, when the officers came to make the arrest, he, at the request of Colonel Hidalgo, " tendered " the latter's "surrender " to them, and obtained for him a promise of kind treatment and a fair trial. On being advised of the incident, the Department of State instructed Mr. Tillman that it was not seen how there could have been any occasion for asking his permission to make the arrest, “unless on the absurd assumption that a minister's residential immunities embrace the entire edifice of which he may have rented a part; " that the request for permission to search other parts of the building than those occupied by him, and to pass for that purpose through the common avenue of access, placed him in the false position of a consenting party, a position which was not improved by his "kindly intervention" in the manner above stated; and that it would be proper for him to say to the minister of foreign affairs that he was responsible only for such part of the premises as he actually rented and occupied for residence and offices, and that, while he would neither invite nor tolerate abuse of his individual habitation as a refuge for evil doers cr suspects, he could not permit, even by remote implication, any in ference that he was to be regarded as accountable with respect to other parts of the building, or to be called upon to consent to the exercise of legitimate authority therein by the constituted Government." By a subsequent dispatch it appeared that Colonel Hidalgo, on the evening of his arrest, entered, by permission of a servant, Mr. Tillman's kitchen, and invoked, as a personal favor, Mr. Tillman's good offices to shield him from punishment by "cold baths." Commenting further on the case, Mr. Tillman said: "So general is the misunderstanding of the so-called right of asylum that a thief or a deserter from the army or an assassin considers himself safe if he can secure admission by force or fraud or deception into a building or grounds occupied by a foreign minister, and even lawyers and men of wealth and intelligence regard a refusal to receive them when pursued by Government officials for political offenses as a great discourtesy and contrary to the law of asylum in South America, and this opinion is so general that the Government itself is cautious not to seem to violate public opinion, however ignorant and uninformed and on however little of reason and law it is founded." January 16, 1899, Mr. Sampson, United States minister at Quito, reported that the revolution then going on in Ecuador had assumed threatening proportions, and that trenches had been dug and barricades thrown up on all streets leading to the palace. Under these circumstances the minister of foreign relations had inquired of him whether, "if the unexpected should happen and the Government should be defeated," he would "give asylum to the Vice-President (acting President in the absence of President Alfaro in Guayaquil) and all the members of the cabinet, with their families, and the chiefs of the army." On Mr. Sampson's giving an affirmative reply, the minister of foreign relations returned thanks and expressed “full confidence" in the "Stars and Stripes." Subsequently, however, the insurgents withdrew and retreated. In acknowledging the receipt of Mr. Sampson's dispatch, the Department of State called his attention to par. 51 of the Printed Personal Instructions, and to the precedents in Wharton's Digest, vol. 1, sec. 104," in discouragement of the practice of granting the so-called * asylum.'" a Mr. Sampson replied that, in promising asylum if need be to the chief officials of the Government, he had consulted par. 51 of the Per a Mr. Olney, Sec. of State, to Mr. Tillman, min. to Ecuador, April 4, 1896, For. Rel. 1896, 113. Mr. Tillman, min. to Ecuador, to Mr. Olney, Sec. of State, May 16, 1896, For. Rel. 1896, 114. c For. Rel. 1899, 256. ₫ Mr. Hay, Sec. of State, to Mr. Sampson, min. to Ecuador, Feb. 27, 1899, For. Rel. 1899, 256. |