In order that a custom might acquire the force of law, it must have existed for a long time and without controversy. The diplomatic corps had no right to create new rules of international law. Señor Pacheco did not regard the ideas expressed by Señor Martinez as incompatible with the position of the Peruvian Government, which admitted asylum in the case of danger of death, as a rule of international law. But if the Government demanded the delivery of a person indicted for a crime, he should be given up. Mr. Barton suggested: "After sentence."

Señor Pacheco replied that the accused should be surrendered for trial. As to the argument that the abolition of asylum would impair the immunities of foreign ministers, Señor Pacheco observed that if this were so he would be forced to believe that in countries where there was no asylum diplomatic immunities did not exist. Repudiating also the alleged obligations of humanity, he invoked the testimony of all present that no act of violence had ever been committed in Peru to justify such an argument, and he referred besides to the penal legislation of the country, in which capital punishment was limited to certain cases of murder. He had been happy to hear the declaration of Senhor Varnhagen that asylum was not a right, but he could not accept his observation as to questions possibly arising from the lack of a conciliatory disposition on the part of the secretary of foreign affairs. A question of principle could not be solved by considering personal traits, and if there happened to be an obstinate foreign secretary there might be a foreign minister equally obstinate. M. de Lesseps said he had not expected that the conference would result in placing the members in different positions, and he hoped that, without reference to principles, they would, in deference to public opinion, come to an agreement, For himself, he would accept a decision based on the instructions of the minister of Chile, the ideas of Senhor Varnhagen, his own instructions, or the ideas which Señor Pacheco himself might express in writing after mature consideration. Señor Pacheco said that he had been studying the subject for more than a year. He was about to read a memorandum containing the conclusions of his Government, when, owing to the lateness of the hour, it was suggested that the document should be sent to the dean of the diplomatic corps. The conference was then adjourned.

In this memorandum, which was duly transmitted on the 1st of February, Señor Pacheco ably sustains, both by argument and the citation of authorities, the views presented by him in the conference. Moreover, he forcibly remarks that although the frequency of changes and commotions in South America has been alleged as an excuse for aslyum, those who have engaged in them, conscious that to-morrow they may be treated according to the measure of their own conduct, have generally abstained from acts of cruelty or ferocity which sometimes occur in lands where, because the government is more stable, the attempt to overthrow it generally lasts longer and excites greater vindictiveness. Nevertheless asylum had, said Señor Pacheco, been granted in Peru, not only to those in possible danger of losing their lives, but also to all classes of persons; to those terrified by fancied persecutions; to those against whom judgments had been pronounced by the legal authorities; and to those who wished to rid themselves of obligations purely civil. Such a practice, which put a veto upon

the administration of justice, constituted a refusal to recognize the sovereignty and independence of the nation and injured its highest rights. In conclusion Señor Pacheco made the following declarations: "1. That the Peruvian Government will not hereafter recognize diplomatic asylum as it has been practised up to the present time in Peru, but solely within the limits assigned to it by the law of nations, which are sufficient to solve the exceptional cases which might arise in this matter.

"2. That, as diplomatic asylum exists in the states of South America, and therefore the legations of Peru in those states enjoy its exercise. Peru renounces on her part the right of her legation in such states to the said privileges, and denies the same to the legations of such states in Peru." a

Against these declarations there does not appear to have been any protest. The ministers of Chile and Brazil, while reserving any question that might be raised, referred the matter to their Governments; but the former stated that he was not aware of the existence in Chile of "anything extraordinary or exceptional" to affect the modern law of nations in the matter of asylum." Mr. Hovey formally accepted the Peruvian declarations, and afterward communicated to the Government a general order of the admiral commanding the squadron of the United States in the Pacific, accepting the conclusions of the memorandum and applying them to his vessels. On May 30, 1867, the Peruvian minister in London reported that Lord Stanley, then secretary of state for foreign affairs, having read the memorandum, had concurred in the views of the Peruvian Government. His lordship remarked that if any Fenians were to take refuge in an embassy in London, it would be ridiculous to suppose that the British Government would have no right to reclaim them. The right of aslyum had, he said, been greatly abused, and he hoped that it would be limited and finally done away with altogether.

(10) VENEZUELA.

$304.

"That your mansion, as well as the house of other foreign legations in Caracas, should have been employed, during a period of popular excitement and alarm, as a temporary asylum for the weak or the timid who might have deemed their lives in jeopardy from lawless outrage, can nowhere be regarded either with surprise or regret,

a Dip. Cor. 1867, part ii, pp. 739–745.

The text of this order is not given by Mr. Hovey. But he communicates to Mr. Seward, without dissent, the version of it given by the minister of foreign relations in his report to the Peruvian Congress, which is as follows: "The admiral says that asylum had not been granted to this time, except from motives of humanity; but as in his opinion that practice had only existed through the tolerance of the Peruvian Government, that Government formally repudiating it, the vessels of war of the United States ought to conform fully and in good faith to the wishes of the Peruvian Government in a matter which exclusively concerns it and its subjects." (Id. 759.)

and it is gratifying to perceive that its employment for this purpose is not complained of in either of the notes addressed to you by the minister of foreign affairs for the Government of Venezuela, of which you have forwarded copies to this Department. The extent, however, to which this protection may be justly carried must be determined by the minister himself, under the exigencies of each particular case, and with reference to the established principles of the law of nations. A minister in a foreign country is regarded by the public law as independent of the local jurisdiction within which he resides, and responsible for any offenses he may commit only to his own Government. The same peculiar character belongs, also, to his suite, his family, and the members of his household, and in whatever relates to himself or to them is extended even to the mansion which he occupies. Whether its asylum can be violated under any circumstances, it is unnecessary, on this occasion, to inquire; but there is no doubt whatever that, if it can be rightfully entered at all without the consent of its occupant, it can only be so entered in consequence of an order emanating from the supreme authority of the country in which the minister resides, and for which it will be held responsible by his Government. For the established doctrine on this subject, I refer you to Vattel's Law of Nations, chapter 9, section 118; to Martens' Manuel Diplomatique, chapter 3, sect. 31; and to Wheaton's Elements of International Law, p. 174-184.”

Mr. Buchanan, Sec. of State, to Mr. Shields, min. to Venezuela, March
22, 1848, MS. Inst. Venezuela, I. 69.

See Mr. Calhoun, Sec. of State, to Mr. Wise, min. to Brazil, July 18, 1844,
MS. Inst. Brazil, XV. 106.

In 1858 a controversy arose in Venezuela with regard to the granting of asylum by the French chargé to General Monagas, who had then lately been forced to abandon the Presidency of Venezuela. In order to consider the situation thus created, Señor Urrutia, Venezuelan minister of foreign relations, invited the diplomatic corps to a conference, which was held on the 26th of March. Besides Señor Urrutia, there were present the diplomatic representatives of the United States, France, Great Britain, Spain, Brazil, and the Netherlands. Señor Urrutia proposed as a necessary basis of discussion that General Monagas should be placed at the disposal of the Government, and after some debate a protocol was drawn up and signed by all present. By this protocol it was agreed that General Monagas should, in writing, place himself at the disposal of the Government, at the same time promising that he would not oppose the progress of the revolution; that this declaration should be transmitted by the chargé d'affaires of France to the Venezuelan Government, whose members pledged their word that General Monagas should not be subjected to trial or

in any way molested, but that he should be treated with decorum and respect; that he should be accompanied to his house by the governor of the province, and that the French minister or any other member of the diplomatic corps desiring so to do might go with them; that there should be in the house two respectable persons appointed by the Government to see that the General was well treated and not subjected to insult; that his wife and one of his sons should be allowed to accompany him, and that his other children, the members of the diplomatic corps, and all persons not inspiring the Government with dis trust might come and go as they pleased; that the Venezuelan Government would be responsible for his safety while he remained in his dwelling, and that at the expiration of his stay, which was to be as brief as possible, he should be given a safe-conduct for himself and his family to go to a foreign country, where they were to remain as long as was necessary for the peace of Venezuela. The diplomatic corps individually and collectively pledged their word to make every effort within the sphere of their moral action, in order that the promises made by General Monagas in his letter of submission might be effective.

General Monagas wrote his submission, but the Government of Venezuela, while abstaining from any act of violence, repudiated the protocol and compelled Señor Urrutia to resign. On April 21, Señor Toro, his successor, informed the members of the diplomatic corps. (1) that the Government of Venezuela considered the cooperation of the foreign representatives in the case as merely an exercise of their good offices, and the signing of the protocol by them as only a solemn testimonial of the promise made to General Monagas by Señor Urrutia; (2) that the Government did not consider the foreign representatives as parties to that promise, or believe that they intended to interfere in the domestic affairs of Venezuela, which could not be tolerated. Mr. Eames, the minister of the United States, replied that this declaration contained an exact definition of the significance and character of the paper, which bound only the honor and good faith of the Government; and his opinion was concurred in by the representatives of Brazil and the Netherlands. The chargé d'affaires of Spain said that the diplomatic corps had been called in as "intercessor, mediator, witness, and then as a party in a certain manner and to a certain extent," though he disclaimed any purpose to intervene in Venezuelan affairs.

On the 10th and 15th of April, Mr. Levraud and Mr. Bingham, the representatives of France and Great Britain, who seem at the time to have lived in the same building, complained that their dwellings had been violated, and suspended diplomatic relations. It seems that the Venezuelan Government had required the delivery of two persons called Gutierrez and Giuseppe, whom the French representative was

protecting, and had also, for reasons which it deemed sufficient, prevented the departure of General Monagas, though the promise in regard to his safety was kept." Señor Toro defended the action of the Government. He claimed for Venezuela the same rights that were accorded to governments in Europe, and asserted the rule laid down by Baron C. F. de Martens, that if a minister grants asylum to persons prosecuted for crimes or offences, the Government may not only surrounded his hotel to prevent the escape of the culprits, but if the minister refuses to give them up on the solicitation of the competent authority, may also take them by force. On the 5th of May the commanders of certain French and British ships of war assumed to demand reparation, which the Venezuelan Government refused to grant. The difficulty was adjusted by negotiation.

6. ASYLUM IN VESSELS.

(1) SHIPS OF WAR.
§ 305.

It is generally stated that a ship of war is not subject to the local jurisdiction in a foreign port. This exemption is by some writers maintained to be so absolute as to amount to extraterrioriality.

a Other grievances also were alleged. Mr. Bingham complained of having been burnt in effigy, an act which Señor Toro sought to explain by saying that it occurred on the day of the Feast of the Resurrection, when it was customary in Catholic countries as a pastime to hang up and burn something early in the morning in commemoration of the treacherous disciple.

Guide Diplomatique, Geffcken's ed. § 29.

c Seijas, El Derecho Internacional Hispano-Americano, II. 78–94.

d In his message to the Congress, April 12, 1860, the Vice-President of Venezuela says: "This incident, the account of which will be presented by the minister for foreign affairs, happily terminated in a manner satisfactory to our national dignity, and gave rise to certain negotiations which will be duly made known to you in the report from that department. It is but justice to make honorable allusion here to the Licentiate José St. Jago Rodriguez, to whom was confided in Paris the special mission of explaining to the French Government the true character of the proceedings adopted by the executive power relative to M. Levraud. . . . Subsequently the friendly relations between both countries . . have definitely recovered the genuine cordiality of former times." (51 Br. and For. St. Pap. 1305.) How long diplomatic relations between Great Britain and Venezuela remained in suspense, I am not informed. It appears, however, that a Postal Convention between the two countries was signed by the British minister at Caracas, May 1, 1861 (52 id. 944.) The message of the Vice-President of Venezuela refers to the disturbance of relations with France, but not with England.

e Levi, Int. Law, 114; Wheaton's Elements, part 2, ch. 2, § 95; Ferguson, Int. Law, § 112; Calvo, § 1550.

f Cauchy, Le Droit Maritime Int., 157; Halleck, Int. Law. Baker's ed., I. 176; Creasy's First Platform, 193.