Mr. Adee to Mr. Powell.
Washington , August 3, 1899 .
Sir: There was received from you yesterday a cipher telegram, which was interpreted to read as follows:
Hatian sought asylum in legation; was removed by force; have demanded his return and apology from Government for invading same. Is to be returned. Please advise me as to surrendering him to authorities. Matters here very critical.
Shortly after the receipt of your telegram I was shown press dispatches purporting to give the particulars of the incident, as to which your report was silent. It appeared therefrom that, while a number of presumably political arrests were being made, one Duvivier, described as “a newspaper man,” was seized, that he dragged his captor within the precincts of the legation, that the captor succeeded in getting out again with Duvivier, that you had protested against the violation of your premises, and that the Haitian Government had apologized and returned Duvivier to you. This statement is not at variance with yours, and is supposed to present the salient facts with fair accuracy.
While the facts so appearing do not indicate that the man was a refugee in the ordinary acceptance of the term, by having sought asylum and been admitted to its enjoyment by you, but rather suggest that Duvivier and his captor were both intruders, forced upon you in the heat of a struggle and without your consent, the circumstance that the captor appears to have continued to assert forcible authority within your precincts by removing his captive thence would seem to have been such a violation of your diplomatic domicile as to justify your remonstrance and your demand for a restoration of the status quo which existed from the moment when the captor’s exercise of force within your dwelling became an infringement of your privilege.
Such an invasion of your domicile is, however, to be carefully distinguished from the collateral question of your right or power to afford to a native of the country immunity from the pursuit of the territorial authorities by claiming for him so-called “asylum.” The Department has uniformly discountenanced the assertion by its diplomatic agents of the claims of right of asylum. In holding, as it has repeatedly done, that its agents are not competent, under international [Page 381] law, to harbor an accused criminal from the pursuit of law it has also held that the pursuit must be shown to be orderly and regular. It could, under no circumstances, admit that mere arbitrary force can be exerted by local agents to effect the capture of any person within the minister’s dwelling.
Further than this, it is soundly held that, even when the refugee criminal is pursued in regular course of law, with exhibition of a warrant of arrest by a qualified officer of the courts, he may neither be formally arrested within the legation precincts nor formally surrendered by the minister to the agent of the law. The former would amount to an exercise of local jurisdiction within the envoy’s domicile which is inconsistent with his diplomatic immunities and his representative dignity. The latter would virtually be an assumption by the envoy of a nonexistent function of surrender by way of quasi extradition, for which no warrant of international or statutory law can be adduced. The envoy can neither admit service upon him of a local judicial warrant nor become in any way a party to the execution of the writ. Under the varying conditions presented by this class of questions it is impossible to lay down any hard and fast rule of action for an envoy’s guidance. The facts of each case are indispensable to a determination of the principles involved and the course to be pursued. It may be generally said, however, that sentiments of humanity and abstract justice counsel the affordance of shelter to an unfortunate person from lawless violence; that such shelter is a different thing from a claim of asylum from the regular justice of the territorial sovereign; that upon sufficient allegation of the criminality of the refugee, and upon adequate showing of the regularity of the judicial proceedings had against him, the right of the envoy to harbor him disappears, and that the evidence of criminality and of the regularity of the legal process against the accused should be made known to the envoy through the diplomatic channel and not by invasion of his domicile by attempted arrest therein.
Should a demand be diplomatically made upon you for the person of Duvivier, or any other person similarly situated, you will report it to the Department, with the evidence of criminality and of the regularity of the proceedings, in order that the matter may be determined with full knowledge of all pertinent facts.
The foregoing considerations will serve to elucidate the telegram sent to you to-day, of which a transcript is appended.
I am, etc.,