Mr. Olney to Mr. Tillman.
Washington, September 25, 1895.
Sir: I have received your dispatch No. 29, of the 1st instant, in which you report the collapse of the titular government at Quito and the dispersion of its members in anticipation of the occupation of the capital by the successful revolutionary forces of General Alfaro.
I note your statement that the family of the late minister of war came to your residence on the 17th of August seeking shelter, and that, at the date you write, they were still inmates of your house. You add that General Savasti himself joined them on the following night, and still remains your guest, quite ill. The shelter thus given by you to one of the prominent members of the overturned government, and as it appears similarly granted by other foreign representatives to the families of members of the late government, does not appear up to the time of writing to have been of the nature of asylum, as the word is properly understood by international authorities, there having been apparently no national or municipal government in the capital. Shelter under such circumstances was a mere act of humanity, unaccompanied by any assumption of extraterritorial prerogatives by you, or interference with any rights of legitimate government or sovereignty. This is quite distinct from the so-called right of asylum, which can logically only be exercised in disparagement of the rights of the sovereign power by withdrawing an accused subject from its rightful authority. The practice of this kind of asylum is not a right derived from positive law or custom; it is not sanctioned by international law, and can only find excuse when tacitly invited and consented to by the State within whose jurisdiction it may be practiced.
The Government of the United States has constantly declined to be bound by such questionable titles to accept its exercise, and has on many occasions and in positive terms condemned the usage and discouraged resort thereto by its representatives. In 1875, to select one among several examples, Mr. Fish instructed Mr. Gushing, then minister to Madrid, that—
The right of asylum, by which I now refer to the so-called right of a political refugee to immunity and protection within a foreign legation or consulate, is believed to have no good reason for its continuance, to be mischievous in its tendencies, and to tend to political disorder. These views have been frequently expressed, and, while this Government is not able of itself to do away with the practice in foreign countries, it has not failed on appropriate occasion to deprecate its existence and to instruct its representatives to avoid committing this Government thereto.
In 1884, answering a request of the German Government for the views of the United States as to the propriety of restricting the exercise of [Page 246] an asylum in Haiti to the citizens or subjects of the sheltering State, Mr. Frelinghuysen wrote:
While indisposed from obvious motives of common humanity to direct its agents to deny temporary shelter to any unfortunate threatened with mob violence, it has been deemed proper to instruct them that it (the United States Government) will not countenance them in any attempt to knowingly harbor offenders against the laws, from the pursuit of the legitimate agents of justice.
Your concluding request for instructions is presumed to relate to this incident of the shelter given by you to General Savasti and family. The foregoing citations will have sufficiently indicated the uniform rule of this Government to discountenance asylum in every form and to enjoin upon its agents the exercise of the utmost care to avoid any imputation of abuse in granting such shelter. It may be tolerated as an act of humanity when the hospitality afforded does not go beyond sheltering the individual from lawlessness. It may not be tolerated should it be sought to remove a subject beyond the reach of the law to the disparagement of the sovereign authority of the State.
Sections 46, 47, and 48 of the Department’s printed personal instructions relate in terms to the extension of asylum to unsuccessful insurgents and conspirators. It seems to be very generally supposed that the case of a member of an overturned titular government is different; and so it may be until the empire of the law is restored and the successful revolution establishes itself in turn as the rightful government competent to administer law and justice in orderly process. Until that happens the humane accordance of shelter from lawlessness may be justifiable; but when the authority of the State is reestablished upon an orderly footing, no disparagement of its powers under the mistaken fiction of extraterritoriality can be countenanced on the part of the representatives of this Government.
I am, etc.,