Mr. Tyler to Mr. Gresham.

No. 130.]

Sir: I have the honor to inform you that I have just received your dispatch No. 72, of the 18th of August, regarding the forcible removal, by the authorities in Hamadan, from the Rev. James Hawkes’s house in that city, of a Persian Jew who had taken refuge there; and also pointing out that the “Government does not claim the so called right of asylum for its official agents, and discourages it on all proper occasions.” Furthermore, that “according to the seventh article of the treaty of 1856 the domiciliary rights of citizens of the United States may not be expanded to embrace the protection by them of Persian subjects.”

In offering a few remarks on this subject, I beg most respectfully that it may be understood that I by no means wish to oppose my views to the decision of the Government, so clearly enunciated in your dispatch.

The case under consideration is somewhat unusual and peculiar, and I am afraid I have rather complicated the question by using the phrase “taken refuge” instead of “seeking protection,” which would have more correctly conveyed the significance of the facts as set forth in Mr. Hawkes’s letter.

The Akhund Mullah Abdullah, whose name has been so prominent in connection with these proceedings, holds no position, either admin [Page 504] istrative or judicial, directly from the Government, consequently, when he ordered the arrest and punishment of the person who sought Mr. Hawkes’s protection he was putting into action an entirely assumed, arbitrary, and illegal authority, and the men who had charge of Mirza Salazar were executing an unjustifiable and unwarranted order, and which was later on repudiated and condemned by both the Shah end his Government.

If, therefore, Mr. Hawkes, probably ignorantly, acted in contravention of the treaty, from humane motives, the opposite party willfully, knowingly, and cruelly, by the assumption of undelegated power, violated the constitution and laws of his country. It would almost seem, although I should not like to affirm the principle in opposition to the treaty, that Mr. Hawkes was justified in the action he took on that occasion. It is no doubt difficult, when the feelings and sentiments are excited, to observe the exact line which should separate the exercise of the sympathy of the individual from the submission of the will to judicial or international obligations. * * * Up to the present, however, it is satisfactory to observe that, go far as my knowledge extends, no complaint has yet been made by the Persian Government against our missionaries for infringing the provisions of the seventh article of the treaty.

I should like, in order to afford the means of possibly forming clearer conceptions of what the right or privilege of asylum, refuge, or sanctuary means, to offer a few observations on the present state and operation of this ancient custom.

It might possibly be inferred that it mainly or generally implied the protection which the domicile of the foreigner, whether official or not, gave to fugitives from the penalties attaching to their misdeeds. This, however, is but a very small fraction of the question, and is almost entirely given up.

Previously to the date of the treaty between the United States and Persia, especially during the period that the British legation in Teheran was under the direction of the Indian administration, the right of asylum possessed by the foreign legation was scarcely ever called into question. The treaty of 1857 between England and Persia abrogated that right so far as that legation was concerned, and I am not aware that it has been exercised since. The right in those days had, doubtless, political advantages, securing the services and support of influential and well-known personages.

At the present time, when intrigues are rife and competition between rival legations for political advantages is unduly keen, the right of asylum is of more than doubtful value. Notwithstanding all this, it is not more than three or four months since a Persian of considerable distinction claimed, and received, asylum in a foreign legation.

Although the right of granting asylum has been practically relinquished by foreign legations, yet it is, nevertheless, in full vigor and operation in the country, and is recognized as a very important part of the national polity. It is probably a survival, transmitted through the Arabs, of the Jewish cities of refuge and the protection afforded by the sanctity of the altar. It is not necessary to argue on the expediency or necessity of the custom, for in by far the greater majority of cases it shields the transgressor instead of affording justice to the sufferer.

It is, moreover, the general impression, founded, no doubt, on the commands of the Hebrew law, that the asylum or sanctuary is intended to protect the offender from the summary, and often cruel and unjust, vengeance of the person aggrieved. It is, however, more than this, and in [Page 505] its alternate character is more effective for good than in the object of its original constitution.

There are various places where persons can claim protection or asylum, but those most sacred and inviolable are the shrines of the early leaders of the Moslem faith. Those most accessible to the people of this city and vicinity are the shrine of the venerated Masuma at Koom, about 100 miles from Teheran, and that of Shahzadeh Abdul Azim, about 6 miles south of the city, and to which the tentative and only railway in Persia is constructed. The others are the Imaum zadehs, or inferior shrines, the houses of the expounders and administrators of the Islamic law, called Mudjtaheds; the principal mosques, although the Shah’s mosque in Teheran is excluded; the Shah’s stable; a cannon; the Shah’s harem, and sometimes the houses of the principal ministers of the Crown. These latter, however, are not considered as offering more than a temporary and rather a precarious protection, inasmuch as the asylum depends upon the will of the person responsible for the safety of the refugee; but to forcibly remove a person from the two shrines first mentioned until his guilt or innocence had been clearly proved would be considered an indignity and an assumption of unlawful power against the dead saint. When the guilt of the refugee is established on clear evidence it is not usual to screen him from the penalties of the law, for that would be tantamount to encouraging defilement and using the shrine for unlawful purposes. A strict surveillance, however, is not always kept over the refugees, and they not infrequently, when it is convenient to do so, make good their escape. It is in this respect that the asylum system fails, for while it affords an offender a ready and easily accessible place of safety, it often enables him, by gaining his liberty, to altogether avoid making satisfaction to the sufferer or the laws of the State.

The asylum is frequently taken advantage of by persons who have tried other means and have failed to obtain a hearing or a redress of their grievances by the ordinary methods. As the localities or places well known and recognized as asylums either belong to or are under the direction or control of influential persons, the complaint of the individual making this formal protest very soon reaches either the ears of the Shah or one of the responsible ministers. In the course of a long connection with the Persian law courts I have known great numbers of cases of this kind. On one occasion, being obliged to press for the settlement of a claim which had been standing over for a long time, the defendant brought his bedding and claimed asylum in the court, where he stayed for some time. About three and a half years ago I was intrusted by one of the foreign legations here with the conduct of a very complicated case; and as it did not move quite so rapidly as some of the parties expected, a large family with all their relations, numbering upward of thirty persons, threatened that unless the case was settled within a certain time they would all take asylum in my house. As my accommodation was of the most moderate dimensions, an invasion of such proportions was a serious matter, and I had to inform them that they would find very indifferent lodgings and treatment, and that they had better seek an asylum in the legation which employed me. I mention these, cases as not more typical than many others that have come under my notice, to show for what various purposes the asylum can be taken advantage of.

It is generally conceded to the subjects of all foreign states that their servants and permanent employes shall not be arrested and forcibly removed from their premises without first obtaining their consent. [Page 506] And so far as my experience has gone there has not been much complaint on that account, and I have known many instances where foreigners’ servants have been arrested in the public thoroughfares they have been liberated as soon as it became known to whom they belonged.

In order, however, that there may be no misapprehension on the subject of asylum in the minds of the United States citizens in Persia, I propose to send a copy of the inclosure to each mission station in the country.

I have, etc.,

John Tyler.
[Inclosure 1 in No. 130.]

Mr. Tyler to Mission Stations.

Sir: In connection with recent events in Hamadan the honorable the Secretary of State, in a recent dispatch, has directed my attention to a clause in the seventh article of the treaty between the United States and Persia, which stipulates that:

The diplomatic agent or consuls of the United States shall not protect, secretly or publicly, the subjects of the Persian Government, and they shall never suffer a departure from the principles here laid down and agreed to by mutual consent.

And in concluding adds:

The domiciliary rights of citizens of the United States in Persia may not be expanded to embrace the protection by them of Persian subjects when such protection is explicitly disclaimed by the Government of the United States, and when its assertion by their diplomatic and consular representatives is positively inhibited.

In order, therefore, that there may be no misunderstanding as regards this question, I have to request that in your dealings with Persian subjects you will be good enough to conform to the provisions of the treaty and the interpretation given thereof by the Secretary of State.

I remain, etc.,

John Tyler.

P. S.—Please show this to the members of your station.

J. T.