No. 153.

Mr. Scruggs to Mr. Frelinghuysen .

No. 194.]

Sir: Some weeks ago an executive decree was issued levying a war contribution upon certain Colombian citizens named therein, among whom was a Señor Uribe, a wealthy citizen of this city. Upon their refusal to contribute, an order was issued for their arrest, whereupon the minister resident of the Argentine Republic went to Uribe’s house and escorted him thence through the public thoroughfare to the apartments of his legation in one of the city hotels.

A second decree was then issued, requiring all hotel-keepers to furnish the Government the names of their guests. The Argentine minister then left the hotel and took up his residence in Uribe’s house, giving the owner asylum therein.

The Colombian minister for foreign affairs then addressed each of the foreign representatives here a circular note, a copy and translation of which I inclose.

After an ineffectual effort to induce their Argentine colleague to give up Señor Uribe, each replied to this circular in his own way, all, however, maintaining the entire inviolability of the rights, &c., of legation, while condemning its abuse.

I submit herewith a copy of my own reply. Those of the English, German, Spanish, French, and Chilian representatives were in the same spirit.

The Argentine minister now says Uribe has left his legation, but no one seems to know where he is.

* * * * * * *

I have, &c.,

[Inclosure 1 in No. 194.—Translation.]

Mr. Restrepo to Mr. Scruggs .

Mr. Minister: Your excellency is aware that the unjustifiable rebellion which has broken out in the Colombian territory, a rebellion which has proclaimed no principle, nor invoked any right, has not urged the executive power into any odious extreme; on the contrary, the executive has been unwilling to avail itself of the tremendous right of war even in the legitimate cases of reprisal for acts of violence, pillage, and [Page 206] treason with which everybody is acquainted, but has rather limited itself to enforcing the ordinary proceedings of the law, and to decreeing such forced imposts as are necessary to maintain the public armed force; and the progress of the military operations.

The public of this city is every day witness of acts of toleration, of which the like has never been known in any of our previous internal commotions; to such a degree that in the end this magnanimity has come to be mistaken for weakness. My Government, however, has felt little concern at the existence of this error, which it has been at no pains to dissipate; indeed, far from causing any diminution of its authority, which is being daily reestablished wherever it has been momentarily lost, this error is considered by my Government as a title to the highest esteem, both within and without the country. In general the Government pursues only such of its enemies as are under arms, and even so with the sole view of reducing them to obedience and of re-establishing peace and the supremacy of the law.

If, as I flatter myself, your excellency will acknowledge that the course of events has been and is such as I have described, I desire to invoke these antecedents, which of themselves command respect, in order next to make known to your excellency, according to the instructions I have received from the citizen President of the Republic, the manner in which that magistrate and the Government over which he presides understand the immunities of the foreign diplomatic ministers, in regard to the asylum they may possibly feel themselves called upon to grant to individuals hostile to the Government and criminally engaged in the present civil conflict.

The right of self-preservation and of the supreme defense of states is recognized by the most learned publicists as paramount to all other considerations, even to the immunities which are enjoyed by diplomatic agents.

The action of my Government will therefore be guided by that rule, if such occasion, truly and happily very remote, presents itself; but it naturally trusts that the respectable diplomatic body accredited to the Government of the Union, of which your excellency is so distinguished a member, will not lay it under the necessity of claiming the surrender of individuals who have taken refuge in their residences, and of whom the legitimate authority may, for any motive whatever, be in search, as it cannot be supposed that any member of that body, there being no question of defending such refugees from any barbarous maltreatment, will desire to mix himself up in our unhappy domestic conflicts.

For the rest, my Government will recognize to the fullest extent the immunity of your excellency, and that of your family and dependents, as likewise that of your residence, and as far as the abundant resources at its command, both material and moral, will allow, will cause that immunity to be respected at any cost, provided that an so doing no damage or danger accrue to the nation, nor anything tend to destroy the guarantee of the right of equality consigned in the constitution which governs us.

Fortunately your excellency’s antecedents, and the great respectability of the Government you so worthily represent, are data which incline the Government to judge that the difficulties it is attempting to prevent are, as I above stated, very remote, and in this belief the present dispatch has no other object than that of calling your excellency’s attention, in a friendly manner, to the duties which the executive may find itself called upon to perform, and which it must perforce perform in the civil war the country is witnessing.

I deem it unnecessary to enter into a lengthened discussion of this point of public law on which examples drawn from the history of nations throw so much light, and therefore close the present note with no further addition than the assurance of the distinguished consideration with which I subscribe myself.

Your excellency’s, &c.,

[Inclosure 2 in No. 194.]

Mr. Scruggs to Mr. Restrepo .

Mr. Secretary: I have carefully read your excellency’s important note, dated the 16th instant, relative to the privileges and immunities of foreign ministers, and as I reply thereto before having had the opportunity to refer it to my Government, I do so upon my own responsibility.

When once received, 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. Not only is his person sacred and inviolable, but his movable effects, his servants, and the house in which he lives are likewise exempt from the operation of local law. And to make these exemptions the more complete, [Page 207] the fiction of exterritoriality has been invented, whereby though actually in a foreign country, he is supposed to remain within the territory of his own sovereign.

It follows, then, as a logical sequence, 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, or 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 exemptions and immunities are founded upon mutual utility, growing out of the necessity that a public minister should be entirely independent of the local authority in order to fulfill the duties of his mission; and the very act of sending the minister on the one hand and of receiving him on the other is a tacit compact between the two states that he shall be subject only to the authority of his own nation. These principles seem to me to be too well established and too generally recognized to require discussion, and I shall continue to expect their strict observance by the enlightened Government of your excellency. On the other hand, I as frankly admit that these exemptions can never justify a public minister in converting his legation into an asylum; and that if he should do so, and thereby attempt to shield a citizen of the country to which he is accredited from the operation of a local law, his conduct would be justly offensive and his recall might with reason be asked.

The right of such asylum is not sanctioned by public law; and even in very extreme cases, and when prompted by the humane impulse to save life, its exercise can be justified only by exceptional circumstances, and then only as a temporary expedient.

I am aware that occasions for claiming it have been frequent in the countries of this hemisphere; but it is believed that it has never, in any instance, been granted by a minister of the United States with the approval of his Government.

I improve, &c.,