Mr. Washburn to Señor Benitez.
Sir: At 6 o’clock last evening the note of your honor of the same date was left at this legation. Being absent at the time, it was not delivered into my hands till some time after. In this note you state that mine of the 22d instant has confirmed the fact that Don José Maria Leite Pereira is sheltered in this legation in contravention of all government orders.
Your honor adds that, reserving to a suitable occasion your answer to the different points embraced in my note, you limit yourself for the present to ask that the said Leite Pereira being accused and required to appear before the proper tribunal, I should deliver him to the police official who was to call for him two hours after the delivery of your letter.
The official came within one hour after the note of your honor was received by me, and I advised him that I would not then deliver the said Leite Pereira, but would to-day write an answer to your note of yesterday, giving my reasons therefor.
I must confess to a very great surprise on reading this note of your honor, as I conceive that on two very material points it does not show the respect due to an accredited minister of a friendly nation. I am requested in a manner almost peremptory to deliver up a guest of mine, against whom no specific crime or charge is laid, and who, like myself, is entirely ignorant of the nature of the accusation that you say has been made against him. I am also requested to deliver him to a police officer, who would be sent to take him. This request that a foreign minister should deliver a party to the police appears to me of so strange a nature that under any and all circumstances I must decline to accede to it. All that I could do, even were a grave and specific crime laid to his charge, would be to advise him that my house could no longer give him an asylum; and when he was out of it, then he might deliver himself up to the police, or wait till he was arrested.
I find that all the writers on international law that I have been able to consult agree both in regard to extradition from one country to [Page 729] another, and to the delivery of persons who have fled for asylum to the legation of a foreign minister; that he is not under any obligations to deliver them, except for some definite and high crime against the state or sovereign. This being recognized as the law in such cases, it follows that before surrendering Mr. Leite Pereira I must first ask for the specific offence or offences of which he is accused. Says Vattel, in speaking of the rights of asylum: “When we treat of certain common offenses, of people often more unfortunate than guilty, or whose punishment is not very important to the repose of society, the hotel of an ambassador may well serve as an asylum; and it is better to allow offenders of this class to escape than to expose the minister to see himself frequently disturbed under pretext of domiciliary visits—than to compromise the state in the inconveniences which might arise.” (Vattel, Law of Nations, book iv, chapter 9, section 118.)
Your honor will observe that according to this doctrine the mere allegation that a person is accused without stating his offense is not sufficient reason why he should be delivered up, and will do me the credit, I trust, to believe that if I did not surrender the individual in question it was from no wish or intention of shielding any accused person from the penalties of violated laws. It was simply to conform to the law established for such cases so exactly as to be my own justification in so grave a matter to my own government and the world.
The case for me is one of greater delicacy and responsibility from the fact that up to the day that Mr. Pereira came to my house he had been known to me and recognized by the government of Paraguay in an official capacity, that of acting consul of Portugal. His offense or crime, therefore, must have been committed when he still held that character; and the case presents grave doubts whether a consul of one nation has not exceptional and stronger claims on the protection of the minister of another than a person holding no public position. In the few authorities I have at hand I find no reference to any analogous case, as it appears that there is no precedent for a person holding a consular capacity being demanded as a criminal from the minister of another nation. Indeed, it has been held by many writers of high repute on international law, that in their persons they were entirely privileged, the same as ministers. One of these, Pinheiro Ferreira, in his commentary on Martyrs, says: “It may be affirmed in general that consuls, and commercial agents assimilated to consuls, as well as the persons forming part of the consulate, enjoy, like public ministers, inviolability as to their persons, though they have not the privilege of exterritoriality. Other modern authors of much celebrity go still further in support of the immunities of consuls, while some do not go so far. But as your honoris doubtless familiar with the principal authorities on international law, it is not necessary that I should quote further, and in giving the above extracts it has only been to indicate the gravity of the situation in which I am placed. A too ready acquiescence would bring upon me, I am convinced, the contempt of the government of Paraguay, as it would the censure of my own government and the obloquy of the civilized world. Under such circumstances I most respectfully request that the specific charges against Mr. Leite Pereira may be made known to me, when, if they shall be of the grave character that shall require it, he will be advised that this legation can no longer give him an asylum.
I will only add that Mr. Leite Pereira has at all times expressed his entire willingness to leave this legation, and even surrender himself to the authorities of the country, whenever I shall indicate that my house can give him no longer protection; that, conscious of no offense, and [Page 730] relying on the justice of the tribunals of Paraguay, he will be ready to meet and disprove any allegations that may be brought against him.
I take this occasion to tender to your honor assurances of distinguished consideration.
His Honor Gumesindo Benitez, Acting Minister of Foreign Affairs.