No. 161.

Mr. Bayard to Mr. Scruggs .

No. 48.]

Sir: Your dispatch, No. 194, of the 23d of February last is received, and your reply of the 21st February to the minister of foreign affairs 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, and you will see by the inclosed extract from the new diplomatic instructiona, [Page 215] a complete copy of which will soon be sent you, what the views of this Department are as regards the so-called extraterritorial questions for the guidance of our diplomatic representatives abroad. It is generally safer when a minister receives such a communication as Señor Restrepo addressed to you not to make it the occasion of arguments, or of statements which might be construed as committing the Government, but to acknowledge it and refer it home for instructions.

As regards the right of asylum, which was the immediate occasion of the correspondence in question, the new instructions do not permit it for persons outside of the agent’s diplomatic or personal household.

The works on international law do not sustain the unqualified right of asylum, and the Spanish law forbids it altogether. There are several cases cited in the law books where the necessity of claiming the surrender of individuals who have taken refuge in a minister’s residence has been enforced and admitted by other nations.

In 1726 the Duke of Ripperda, minister of Philip II, took refuge in the hotel of the British ambassador at Madrid, but under the opinion of the council of Castile was taken by force from the ambassador’s hotel, and Great Britain did not claim the right of her ambassador to retain the refugee.

In 1747 a Swedish merchant, accused of high treason, took refuge in the hotel of the British ambassador at Stockholm, but the ambassador was finally obliged to yield to military force and to surrender the refugee. This event led at the time to a withdrawal of the respective diplomatic agents, but is now admitted, as well as the preceding case, to have been in accordance with the principles of international law.

In the same way the exercise of criminal and civil jurisdiction by a minister is practically a dead custom, and instances of it most be looked for among the causes célèbres as relics of an authority which was formerly only exercised by ambassadors as representing the person of the sovereign. For instance, in 1603 the Marquis de Rosny, afterwards Due de Sully, while French ambassador at London, sentenced a member of his suite to death, and asked the mayor of London to have the sentence executed, but King James I intervened and pardoned the condemned man. Again, in 1657, Queen Christina of Sweden, at Fontainebleau condemned and caused to be executed the Marquis de Monaldeschi, her grand écuyer.

Such were the privileges formerly reserved only to ambassadors, but as since the Congress of Vienna in 1815 the substantial equality of all grades of diplomatic agents is admitted, the accredited public minister of every state, whatever be his designation, enjoys the rights of inviolability and the privileges of extra territoriality with equal certainty and strength, and these powers of life and death, belonging exclusively to ambassadors, have been abandoned. 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.”

[Page 216]

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 asylum, in an instruction of Mr. Fish to Mr. Bassett, at Hayti, dated 4th of June, 1875. (See Foreign Relations for 1875, p. 701.)

While it may not be necessary to formally modify, your note of the 21st February to the minister of foreign affairs unless some difficulty or misunderstanding should arise from it, when the true position of this Government would have to be frankly made known, yet it would be as well for you in conversation with the minister of foreign affairs and with your colleagues to correct any misapprehension that you may discover to exist.

I am, &c.,

[Inclosure in No. 48.]

Extract from “Personal Instructions to the Diplomatic Agents of the United States in Foreign Countries.”

Section 48. In some countries, where frequent insurrections occur and consequent instability of governments exists, the practice of extraterritorial asylum has become go firmly established that it is often invoked by unsuccessful insurgents, and is practically recognized by the local government to the extent even of respecting the premises of a consulate in which such fugitives may take refuge. This Government does not sanction the usage, and enjoins upon its representatives in such countries the avoidance of all pretexts for its exercise. While indisposed to direct its agents to deny temporary shelter to any person whose life may be threatened by mob violence, it deems it proper to instruct its representatives that it will not countenance them in any attempt to knowingly harbor offenders against the laws from the pursuit of the legitimate agents of justice.