Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Hovey to Mr. Seward
Sir: I have the honor to enclose herewith the copy of the protocol of the conference held by the diplomatic body with the secretary of foreign relations, on January 29th, ultimo, in regard to the question of asylum, from which you will perceive that the representatives of France, England, Italy, Brazil, Bolivia, Chili and Hawaii, insisted upon the doctrine of asylum as heretofore practiced in Peru, and that I, in that conference, maintained the position which I have assumed in my correspondence with the department, (see enclosure No. 1.) I also enclose a copy and translation of the reply from the secretary of foreign relations to my note of January 15th, on the question of asylum, in which his excellency fully concurs in the position assumed by me, (see enclosure No. 2.) Subsequently, on the 29th of the same month, his excellency the secretary of foreign affaire issued his memorandum on the same question. This document is an able resumé of the whole matter, reviewing the principal authorities and the history of the practice of asylum in Peru.
The position assumed by his excellency, and the conclusions drawn from the same, seem to me to be wise and politic, placing the whole question in this country upon the well recognized doctrine of the law of nations. In conclusion he denies to the representatives of Peru abroad the right to exercise the privilege of asylum, and demands that other governments shall reciprocate. (See printed document and translation thereof, enclosure No. 3.)
I have the honor to be, with great respect, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Translation of protocol.
Having met in the department of foreign affairs of Peru on the 27th day of January, 1867, at 2 o’clock p. m., the undersigned, T. Pacheco, secretary of foreign affairs, J. de la Cruz Benavente, envoy extraordinary and minister plenipotentiary of Bolivia; Alvin P. Hovey, envoy extraordinary and minister plenipotentiary of the United States of America; Marcial Martinez, envoy extraordinary and minister plenipotentiary of Chili; F. A. de Varnhagan, minister resident of his Majesty the Emperor of Brazil; A. Cavalchini, minister resident of his Majesty the King of Italy; Thomas Eldrige, chargé d’affaires for Hawaii; Edmund P. de Lesseps, chargé d’affaires of France, and John Barton, acting chargé d’affaires of Great Britain, with the object of holding a conference on the subject of asylum:
Señor Benavente said that, considering the importance of the subject of asylum, he had proposed its postponement, and having studied it carefully, and heard the high opinions of his honorable colleagues, he regretted having to answer his excellency the secretary that he was not authorized to accept the complete abolition of the right of asylum, but that he would contribute most willingly to regulate its exercise.
Señor Pacheco said, that the regulation of the asylum was subject to so many difficulties that it would, in his opinion, increase the embarrassments it is intended to avoid; that after having studied the question attentively he had not been able to find any other possible solution than the re-establishment of the generally admitted principles of international law, and that he did not see any reason whatever why Peru and the other South American republics should be placed in a position distinct from that of the other civilized nations.
Señor Martinez said that he, as an American representative, believed himself obliged to reply, (although be had intended not to speak in the conference;) that Señor Pacheco having written to the government of Chili on the question of asylum, said government had expressed its opinion on the subject, and had given instructions to its representative in Lima.
Abstaining, said Mr. Martinez, from entering into the discussion of the principles of the case, and limiting myself to the consideration of the right of asylum as a usage, I think that in order to arrive at a just conclusion on the subject, it is necessary to examine the causes that have contributed to establish it. The asylum is a humane principle which had its origin in the political dissensions which have agitated the passions; thus it has frequently happened that at the same time that those who were in asylum were leaving it to occupy high stations, those who were in power have been obliged to save themselves seeking diplomatic asylum. Nevertheless, the government of Chili, being persuaded of the fact that abuses were committed in this matter of asylum, and that it originated unpleasant discussions with the foreign ministers, has thought that those abuses could be avoided by regulating the right of asylum by means of fixed principles, which would, at the same time, put a stop to all vexatious controversies, but the thought of the Chilian government has been not to abolish completely this humane and established custom, but to confine it to certain cases, and particularly to those in which the life of the refugee could be endangered.
Señor Pacheco answered, that having carefully studied the subject of asylum, the Peruvian government thought that custom had no precedent foundation in law; that the ideas which Señor Martinez had just expressed were not of such a nature that they might justify the establishment of a rule contrary to the admitted principle of law; that if the government of Chili and Señor Martinez confined the asylum to the only case of danger of death, the Peruvian government had the same idea, because this was the rule of international law.
Señor Martinez replied, that international law was very vague, and that he was not acquainted with those fixed principles which admitted the right of asylum in case of danger of death, and that it would be very satisfactory to him if Señor Pacheco was prepared to lay down in writing the principle admitting the asylum in case of danger of death.
Returning to the principal question, Señor Pacheco said, that if the government demanded the delivery of a person indicted for a crime, who had taken asylum in a legation, the minister should deliver him up. Mr. Barton said, after the sentence has been pronounced.
Señor Pacheco replied that he did not think so, but that the demand for and the delivery of the refugee should take place in order that he might be tried.
M. de Lesseps said, that it was also necessary to keep in mind the principal point in the question, which was the inviolability of the minister.
Señor Pacheco said, that the inviolability belonged only to the minister and his train. M. de Lesseps replied that the inviolability extended also to the house of the diplomatic agent, and this contributed what was called the exterritoriality of the minister’s house.
Señor Varnhagen said, that a declaration abolishing the asylum would destroy the diplomatic inviolability. I am going to speak, he added, not about the American States, but about the European nations. I also am an American, but have been in Europe as a diplomatic agent, and have seen that revolutions have always brought along the practice of asylum in Spain, Italy, Portugal, and even in France during the revolution of 1848. In all these countries during the revolution acts of inhumanity would probably have taken place had the privilege of asylum not existed. Although it be not a principle but a mere practice, to abolish it when it is necessary, and when those cases occur so frequently in which this immunity is claimed, would be to deprive the houses of the foreign ministers of the repectability whieh they enjoy, and to endanger their privileges.
[Page 741]Señor Pacheco said that he did not believe the immunities of the diplomatic corps would be impaired by the abolition of the asylum, because if it were so we would be forced to believe that in those countries in which there is no asylum the diplomatic immunities did not exist; that with reference to historical facts he would appeal to the testimony of gentlemen then present, as well as to that of those who belonged to the diplomatic corps, and was sure that they are convinced of the fact that no act of violence was ever committed in this country; that with reference to penal legislation, the capital punishment was limited to certain cases of murder; that consequently if the usages and laws of this country were taken into account, it was evident that there being no necessity for the right of asylum under the pretext of the death penalty, (the only cause which could justify it,) there was also no necessity for maintaining said privilege.
Señor Varnhagen said that without making any special allusion, (on which account he, who was always an American, had referred only to European countries,) he was obliged to say that when a revolution breaks out and political passions are excited, no one can say what may be the consequences of their outburst, nor to what extent the habits and customs of the people may be altered. It would not have been easy to Have foretold the condition to which France arrived in 1848. Besides, the practice of asylum exists in Europe, and cases of it occur frequently in duty; what is necessary is to avoid abuses, and the best way to obtain this end is to regulate said practice.
We ought also to keep in mind the prudence of the foreign minister, who generally neither offers nor promises asylum, but only gives it when it is taken in case of necessity.
M. de Lesseps said that the asylum had been availed of by many very well known personages.
Señor Pacheco answered that he did not think it proper to treat the question in that light, but from a general point of view, which was that of national dignity; that the personal advantages which one or more individuals could derive should not be considered superior to the rights and interests of the state; that when a case of asylum came up the government had the right to demand the delivery of the criminal.
M. de Lesseps said that, in the practical question, if the person that has taken refuge is not delivered up, what would then be done? Would there be a rupture?
Señor Pacheco answered that would depend on circumstances; and that the law of nations furnished for every case the proper rules of conduct.
M. de Lesseps replied that, before all things, it was necessary to save the inviolability and the exterritoriality. Would the rupture be with the minister only, or with his country? In this last case it would be war. What would then be the practical result?
Señor Pacheco answered, what the law of nations ordains: and he thought there was no necessity to introduce new principles, applicable only to certain nations of America, and unknown in the rest.
M. de Lesseps said that if it was intended to deny the principle of inviolability, and if the practical result was to be the possibility of any violence committed against the houses of a public minister, he did not feel authorized to even enter into a discussion that started on that supposition.
General Hovey said that, in his judgment, we have no right to fix new rules on the subject of international law; that if a special custom existed in Peru it could be a matter of discussion between the Peruvian government and the foreign ministers; that according to English law, and the laws of the United States, and the Roman or civil law, in order that a custom might acquire the force of law, it was required that it should have existed for a long time, and without any controversy; that in the United States, in France, and England, there was no discussion on this question of asylum; and that as according to the principle of common equity what we do not wish done unto us we ought not to do unto others, he thought no right existed on the part of the United States, England, or France to demand of Peru the privilege of asylum; that he wished to be allowed to propose a question to the representatives of the American nations, Bolivia and Chili, which was whether they would. agree to have their respective nations treated less favorably than the other Christian nations, and receive fewer privileges than were granted to the other.
Señor Benavente said that, according to the assertions of MM. Varnhagen, Cavalchini, and Lesseps, the practice of asylum was known in Spain, Portugal, and Italy, and that Señor Cavalchini knew besides of a case of temporary asylum in the United States during the recent war.
General Hovey replied that the practice of asylum did not exist in the United States, and that if a case had occurred and the government had demanded the delivery of the transgressor, he would have been given up by the foreign minister who had him in his house. He added, that if asylum has existed in Europe sometimes it has been de facto, but not as a right, and that, consequently, it could not be claimed as such. He suggested the propriety of each representative present expressing to the government of Peru his respective opinion in writing, and that this would avoid misconstruction.
Señor Varnhagen said that he would really not send to the government a letter sustaining the right of asylum, which, though it could not be regarded as a right, was nevertheless a practice which ought to be maintained in order to avoid greater difficulties; that the possibility of abolishing it when a special case occurred would endanger the principle of inviolability; [Page 742] that serious questions could sometimes arise between the foreign ministers and the secretary of foreign affairs, depending on the more or less conciliatory character of the latter, and that, in order to avoid such questions, it was preferable to maintain the practice of asylum.
Señor Pacheco said he was very happy to hear the declaration that the asylum was not a right; that in regard to the observations just made by Señor Varnhagen, he (Señior Pacheco) thought they were not acceptable, because a question of principles could not be resolved considering only the character of persons; that if there happened to be an obstinate secretary of foreign affairs, there might also be a foreign minister equally obstinate, and that then it would be necessary to lay down that principles ought to be modified according to the character of the persons.
M. de Lesseps said, it is indispensable in all cases to respect the principle of inviolability.
Señor Martinez said, as regards me I must say that I have not entered into the discussion of the principles of the case.
Señor Pacheco replied that it was precisely the principles on which the practice of asylum was based that it was necessary to discuss; that this was what the government had done, and the result of their (the government’s) attentive and mature examination was the conviction that the only manner of reinstating the nation in her rights and avoiding unpleasant questions with foreign ministers was accepting unconditionally the principles of international law; that he regretted his disagreement with the majority of the diplomatic corps, and that he would consequently proceed to order the reading of the memorandum which he had drawn up by order of his excellency the supreme chief, in which are laid down the principles which the Peruvian government maintain, and the conclusions which they (the government) propose to observe as the rule on this subject.
M. de Lesseps was of opinion that the protocol should remain open; to which Messrs. Pacheco and Martinez replied that that would be useless.
M. de Lesseps continued, saying that he had not expected that the present meeting would produce the result of placing the members of the conference on different standpoints; that, on the contrary, leaving the principles of every one untouched, he thought that they should all come to an agreement; that public opinion was already being heard on the subject; that the public and the press were saying that a respectable conference, referring to the present one, in which there were persons of great ability, was discussing the question of asylum; that it would be regretted that it should come to an end without obtaining a practical result.
Señor Pacheco having asked which were the principles that in M. de Lessep’s opinion ought to be laid down, the latter answered that a final resolution might be agreed upon in conformity with the instructions given by the government of Chili to its representative, or with the ideas of M. Varnhagen, or with the instructions which he (M. de Lesseps) had from M. Drouyn de Lhuys, or with the ideas which the secretary himself might express in writing after long consideration.
Señor Pacheco said that he had been for more than a year studying this question from all of its points of view, and that he had not been able to find any other solution but the one he had proposed.
Mr. Benavante said that he coincided with the opinions of M. de Lesseps, but that in no case could the want of temporary agreement be of consequence either to the secretary or the diplomatic corps; that the secretary spoke for the government of Peru, and that the representatives of foreign powers present having no authority to definitely decide anything, (as the secretary could do it,) the question was already of the cabinet, and consequently they (the ministers present) would inform their respective governments about it.
When the memorandum was about to be read, some of the honorable members remarked that the hour was rather late, and it was agreed that the secretary should send it to the senior member of the body, in order that he might communicate it to his honorable colleagues; which ended the conference, the proceedings of which it was agreed to preserve in the present protocol duplicate copies.
A true translation:
Señor Pacheco to Mr. Hovey
In accordance with the resolution passed in the conference of the 29th of January ultimo, I remit to-day to the envoy extraordinary and minister plenipotentiary of Bolivia, dean of the diplomatic corps, the memorandum containing the principles professed by the Peruvian government in regard to the question of diplomatic asylum, and the declaration which it has deemed proper to make, as bases of its future conduct in this matter.
The declarations to which the undersigned alludes are the following:
1. That the Peruvian government will not hereafter recognize diplomatic asylum as it has [Page 743] been practiced 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.
Your excellency will observe that the declarations of the Peruvian government are entirely consonant with those made by your excellency on the part of your excellency’s government contained in your excellency’s note of January 15th: and I may add that the Peruvian government is ready to concede to the government of the United States, or to its representative, the same and identical privileges which it may concede to the governments or representatives of other nations. Its object in the present question is to obtain for Peru the same privileges which are enjoyed by other civilized nations, without pretending to greater rights than those conceded to such nations, but never consenting that greater obligations shall be borne by Peru than are borne by the said other nations.
The note of your excellency thus being answered, I have the honor to renew to your excellency the assurances of my most distinguished consideration.
His Excellency the Envoy Extraordinary and Minister Plenipotentiary of the United States of North America.
Memorandum relative to diplomatic asylum.
The Peruvian government has deemed the question of diplomatic asylum, as now practiced in Peru, eminently worthy of attention, and having noted the action of the chargé d’affaires of France on the subject, conceive that the time has arrived to express its opinion and to publish the conclusions it has formed.
The Peruvian government has always recognized and respected the immunities of the diplomatic agents, and is positive that such immunities not only have never been infringed, even in the most calamitous periods through which the republic has passed, but rather have been granted more extension than that prescribed by the laws of nations. Far, then, from threatening these privileges, the government desires to place them more securely upon the two great bases proper to them, namely, the general principles of “international law and treaties.” If the last mentioned contain nothing relative to diplomatic asylum, the first are sufficiently explicit for the resolution of any question which might arise in the premises.
As a general assertion, it may be maintained that no author of international law can be cited who upholds the doctrine of diplomatic asylum, and never has this practice been considered as an indispensable element in the enjoyment of those privileges, immunities, and rights held by public ministers by virtue of international law, and practiced by them in all civilized countries.
Disagreeable as may be the necessity, the Peruvian government finds itself obliged to cite the opinions of the most noted publicists since this question, always regarded among us in a contradictory and confused manner, is now for the first time under serious discussion.
His excellency here quotes from the following authors:
Wignefort, De l’Ambassadeur, etc., lib. sec. 28; Bynkershoek, “De foro Legatorum,” cap. 21; Vattel, “Droit des Gens,” lib. iv, ch. 9, sec. 118; Merlin, “Repertoire la Jurisprudence,” sec. 5; G. de Martens, “Droit des Gens,” lib. iv, ch. 5; C. de Martens, “Manuel Diplomatique,” ch. 3 ; Kluber, “Droit des Gens,” p. ii, tit. 2, sec. 1; Heffter, “Droit International,” lib. 1, ch. 1 ; Wheaton, “Elements International Law,” p. iii, ch. 1; Polson, “Principles of the Law of Nations,” sec. 2; Pinheiro Ferreira, “Cours de Droit;” Eschbach, “Etude du Droit,” p. 1, ch. 2 ; Woolsey, “Introduction to International Law,” p. 1, sec. 4 ; Ch. de Martens, “Causes celebres du Droit du Gens,” tom. 1, sec. 1; Bello, “Principios de Derecho International,” p. iii, ch. 1, sec. 3.
His excellency continues:
Authority being wanting to support the question of diplomatic asylum in international law, it has been sought for in the custom and tacit consent of the South American governments. Before examining the real value of such an argument the motives must be regarded, which, according to general opinion, have given rise to such a custom.
The first is the instability of our institutions, and the frequent political changes in these republics.
All countries in their infancy, and many which enjoy an advanced state of civilization, offer many examples of changes in their institutions, and even in their governments.
Few there are that maintain always an immovable, political stability.
If a change in the internal regimen of a country was a sufficient cause for diplomatic asylum, [Page 744] it would be deduced that this practice should exist from the inception of any commotion whatsoever.
But changes and commotions, although they may be frequent, are seldom accompanied by acts of cruelty or ferocity, for he who is engaged in them expects that to be meted to him to-morrow which he causes to be done today. In the very countries which laud the stability of their institutions and governments, acts frequently occur only to be attributed to the most barbarous passions.
The instability of South American institutions is not a sufficient reason for the establishment of diplomatic asylum in those nations. From an act no right can be born. And this right is but a faculty given to a foreign minister to judge the institutions and political affairs of the country to which he is accredited, thus forming a species of wardenhhip which must threaten the dignity and even the sovereignty of the nation.
With great justice Lawrence, in his Annotations on Wheaton, says, “the right of asylum claimed by diplomatic agents in South America, but abolished long since in Europe, places those states upon the same footing which is held by non-Christian nations.”
Therefore, before regarding the frequency, greater or less, of revelations in South American States, it is necessary to determine if they are to be considered as Christian nations or not.
From this point the present representative of the United States begins his argument, and necessarily the conclusions which he arrives at are strictly exact.
It is to be presumed that the remaining members of the diplomatic corps will not sustain a contrary position, but if they do not sustain it in a positive maner their persistence in holding to the doctrine of asylum would lead to the belief that the nations of South America should not be considered as Christians.
But asylum is a right derived from custom. To this we agree. But has it therefore to be perpetual? It had in Europe also the same character, yet it has been abolished there; and what plausible reason can be adduced that the republics of South America should not do the same that has been effected in Europe ? If the tacit consent of some of our governments has allowed this custom, their express intention to abolish it should certainly have more weight. Treaties are more binding than custom; yet they are not by their nature perpetual, and they appear or disappear at the will of the government, strictly in accordance with right. If written and perfect obligations may be thus abolished, certainly those which exist only in presumption can likewise be terminated.
Moreover, the rights and obligations of nations should be reciprocal. No country has the privilege of arrogating greater rights than those possessed by another, nor to place greater obligations on another than those resting upon herself. If the right of asylum be conventional or derived from custom, it is indispensable that the nation claiming it should likewise accord it to the nation from which it is claimed; and since this right is a mere privilege, any state enjoying it may renounce it at any time, without being obliged by another country to preserve it.
Humane reasons are adduced, also, towards the sustaining of this asylum. The existence of asylum, it is said, is more beneficial to the countries where it is in force than to the legations that may employ it, as by its means all violent persecutions and acts arising from such impeded.
This reason is less weighty than the former. The rights of nations are certainly founded on humanitarian principles, but they assuredly do not give to one country the power of dictating to another certain fixed and determined rules of conduct not observed by others. If the doctrine was certain, it would be adduced that the European states, in abolishing asylum, withdrew from the path of humanity and followed that of barbarism. Therefore, to sustain this practice in Peru would be to stamp those states of Europe as not civilized, but barbarous. And Peru can appeal to the testimony of the honorable diplomatic corps as a proof that neither on the part of her government nor people have such acts occurred as would warrant the belief that humanity, justice, and morality were not strictly observed within her limits. Isolated cases may, of course, be cited, but incidents of such a nature are undoubtedly less frequent in Peru than in other countries, which count their progress in civilization not by years but by centuries. And for cases of such a character there is no necessity to recur to immunities or privileges. National right contains rules applicable to the point—rules of which the observance would certainly be more convenient for those persons who occupy the high posts of representatives of foreign powers. If diplomatic asylum was confined by such limits, nothing could be said in its contrary; but, as is well known, frequent controversies have occurred on the point between the government and legations here, in which, unfortunately, the dignity and respectability of the nation have sometimes suffered.
Asylum has been granted to all classes of persons. These, sometimes, terrified by a political persecution, often proved illusory. It has been granted when the person favored was in the possible danger of losing his life; it has been granted to those over whose heads judgment was pronounced by the legal authorities, and the demand for their delivery, made by the proper tribunals, has been refused, thus vetoing the administration of justice; and, finally, it has been conceded to those who wished to exempt themselves from obligations purely civil. All of these acts are but refusing to recognize the sovereignty and independence [Page 745] of the nation, and for this reason the present government desires to abolish a practice which so often and so deeply has wounded the highest rights of the nation.
Considered in a humane point of view, diplomatic asylum would be a favor extended to the citizens or subjects of the state where the legation may be resident; from whence it is derived, first, that the citizens or subjects of the state find greater protection in foreign legations than that which they receive from the laws and authorities of the state; second, that this protection, threatening the sovereignty of the nation, should not be denied existence by the state, which, according to natural right, exercises exclusive authority over its citizens or subjects. But the logical consequence is, that if a state has allowed such a protection to be exercised by a foreign legation within its limits, the state can at pleasure, for itself and its citizens or subjects, deny the further exercise of any such protection. The admission of a favor is no obligation, and the person receiving the favor may renounce it at any time.
To insist upon the protection, against the will of the state to which belongs the person favored, is to arrogate the sovereign powers of said state, and to attempt to deprive it of its high and legitimate rights over its subjects or citizens, and would be to convert the fiction of exterritoriality, only applicable to the minister and his suite, into a means, always at the hands of such citizens or subjects, to avoid obeying those laws and obligations to which they are, by all right, liable.
The very fact of calling the exterritoriality of a minister’s dwelling a fiction shows clearly the difference which exists between such dwelling and the country of the minister himself; and from this appears conclusively the weakness of the argument employed by some, when, desiring to sustain the practice of asylum, they assimilate in all respects the minister’s dwelling to a foreign soil. It is very desirable to find some solution to this difficult question, but such a mean is almost impossible to arrive at.
Apart from exceptional cases, for the which international and natural right amply prescribe, it is impossible to conceive an instance in which, preserving the practice of asylum, the chief of a legation does not become a judge, determining the proceedings of the government, the action of the courts of the law, and of the remaining state authorities.
The Peruvian government, therefore, believes that the only method of avoiding the disagreeable occurrences which have frequently taken place between it and the foreign legations in Peru—the only method of restituting the nation in the plenitude of its rights—is to adhere strictly to that prescribed by the law of nations in the question of asylum, unless other countries now not recognizing the practice may be disposed to adopt it, on a general and uniform basis, thus obtaining the perfect equality and the just and indispensable reciprocity which should be the normal rule in the relations of all to each other.
Therefore the Peruvian government deems it its duty and right to declare, as it does declare, first, that it will not recognize, in the future, diplomatic asylum, as practiced until now, in Peru, but only within the limits assigned to it by the laws of nations, which are sufficient to resolve the questions that, in exceptional eases, may occur; second, that, as diplomatic asylum exists in the South American states, the legation of Peru in such states exercising the right, Peru now renounces, on her part, this privilege, and denies it to the legations of such states in Peru.