No. 178.
Mr. Preston to Mr. Fish.
[Translation.]
Legation of
Hayti,
Washington,
October 25, 1875. (Received October
26.)
The undersigned, envoy extraordinary and minister plenipotentiary of the
Republic of Hayti, has the honor, in obedience to the instructions of his
government, to transmit to the honorable Secretary of State of the United
States the memorandum which is inclosed with this note, and which the
President of Hayti causes to be communicated at the same time to each of the
powers represented at Port au Prince.
The undersigned thinks it proper for him, on transmitting this memorandum, to
make a few observations which his government has instructed him to submit to
the particular attention of the honorable Secretary of State of the United
States.
The undersigned will not remind the Hon. Hamilton Fish of the complications
to which the asylum granted by Mr. Bassett to certain Haytians might have
given rise. Inasmuch as these difficulties have been settled by a common
agreement and by means of mutual concessions, the undersigned does not think
proper to recur to them now; it seems to him indispensable, however, to
allude at least to the occurrences which have just taken place, with a view
to presenting a few observations with regard to the influence which this
so-called right of asylum may have upon the political destinies of the
nations among which it is exercised.
An attempt to create an insurrection was made in Hayti on the 1st of May. The
government was on its guard, and easily frustrated the guilty design.
Nevertheless, certain officers of the army refused to obey the orders which
were given them; they endeavored to incite the population of the plains to
rebel. Subsequently, when they became aware that the energy of the
government and the good sense of the people had sufficed to frustrate their
plans, when they saw themselves surrounded, a
[Page 339]
fight took place between them and the armed force. In
this melée Boisrond Canal killed two soldiers, and
then, in the midst of the struggle, escaped with three of his companions,
and, with them, sought refuge at the residence of Mr. Bassett.
The honorable Secretary of State, on learning of these facts, considered,
from the very outset, their grave consequences. He saw how the legitimate
authority of the government of Hayti was thus baffled. The honorable
Secretary of State knows what penalties the public law of the United States
provides for the crime of treason. Would the United States, if they were
dealing with one of their citizens charged with this crime, suffer a third
power to interfere, under any pretext whatever, for the purpose of opposing
their will? They would very properly regard any attempt of this kind as a
blow struck at their sovereignty. And yet among the people of the United
States, where veneration for constitutional liberty has so long prevailed,
such an act could not produce the fatal effects which it might in other
countries, where the spirit of revolution has long existed, and where it
opposes its bad influence to the regular development of free institutions.
This, however, is not the gravest aspect presented by the Boisrond Canal
affair.
The honorable Secretary of State knows the danger to which republican forms
of government are particularly exposed in a portion of this hemisphere. The
Spanish language has furnished the sorrowful word which designates it.
Military “pronunciamentos” are the plague-spot which threatens the future of
certain political communities. The rigorous maintenance of discipline in the
army is the only possible remedy for this evil. Yet the asylum granted to
officers may paralyze the arms of the government in such a manner as to
render the force of authority utterly nugatory.
Finally, the undersigned would refer to his note of the 26th of August last,
in which he laid before the Department of State of the United States the
facts which his government had brought to his knowledge, and expressed the
fear that not only was the American legation at Port au Prince serving as an
asylum for conspirators, but that the latter, being thus secured against
punishment, would continue to foment a criminal agitation in the country by
means of correspondence, which the head of the legation seemed unable to
prevent; so that in this way also the diplomatic asylum imperiled the rights
of sovereignty.
The undersigned knows how much such acts, when they are known to the
honorable Secretary of State, are disapproved by him. If the United States
have protected from the vengeance of certain great powers political refugees
who had come to seek an asylum on the soil of the American Republic, and who
there freely expressed their sentiments, and if this right of asylum has
always been defended with vigor and in so honorable a manner by the Federal
Government, the latter has never yet permitted refugees to make the soil of
the United States the base of operations against another power; it is almost
useless here to call to mind the firmness with which the Washington Cabinet
has always acted toward the Cuban insurgents, for instance, who have taken
refuge principally in New York, and the jealous care which it has exercised
in order to prevent or frustrate all their armed attempts against the
Spanish colony of Cuba.
These facts are now known to the whole world, which has done full justice to
the good faith and energy of the Federal Government. It is, therefore, to
these sentiments of international justice, and to that respect for the law
of nations of which the Secretary of State of the United States has given so
many honorable evidences, that the government of
[Page 340]
Hayti appeals under the present circumstances. Is it
possible for the right of asylum to be exercised at an American legation,
when dangers to public tranquillity result therefrom like those to which
conspirators thus protected can cause it to be exposed? What! certain
refugees, after having violated the laws of their country, and having
escaped from all legal proceedings, maintain communication with their
confederates outside, and endeavor to appeal to the spirit of revolution;
and, meanwhile, are they to be protected by the flag which covers their
asylum, and, in fact, to become inviolable? The dangers of such a situation
are so evident as to render it unnecessary to dwell longer upon this
subject.
At the same time, as the undersigned has just remarked, such an exercise of
the right of asylum in the republics of the New World imperils the stability
of those republican institutions to the development of which the Government
of the United States attaches so high a value; those institutions cannot be
truly developed in those countries unless public tranquillity be assured
there. Now, if this purpose is to be accomplished, the spirit of intrigue
and of revolution must yield to liberty regulated by law; but how can this
be, if every conspirator knows that, under all circumstances, he can be
protected from the consequences of his acts, however inconsiderate and
guilty they may be, and that, after having disturbed the public peace, he
has nothing to dread, provided he can take refuge under the flag of a
foreign legation?
Such a state of affairs is so well described by a minister of the United
States, who was accredited some years since to one of the republics of the
Pacific, that it is impossible not to borrow his words:
“The practice of giving asylum,” said General Hovey, then minister of
the United States to Peru, in a dispatch to Mr. Seward, “has been
and still is a prolific source of revolutions in, and the
instability of, the South American republics. The traitor, who would
for his own ambition steep his country in blood, feels assured that
if he fails in his rebellion he has only to flee to the house of
some minister, and that there he will find a refuge beyond the reach
of justice. Thus encouraged, and the high crime of treason varnished
over with the soft name of ‘political offense,’ he launches
recklessly into his ambitious schemes, and the country is kept in
continual commotion.” (Diplomatic Correspondence published in 1868,
Part II, pp. 737, 738.)
Thus, the exercise of the right of asylum imperils even the most essential
attributes of the sovereignty of the state. In the second place, it permits
malcontents to organize the most criminal enterprises at their leisure,
since they stand in no fear of the law. Finally, it contributes, wherever it
is permitted, to the maintenance of a state of continual disturbance, which
retards or prevents the establishment of stable and fixed governments.
Such are the considerations which the undersigned desired specially to
present to the honorable Secretary of State. He now asks his kind attention
to the accompanying memorandum.
The undersigned avails himself of this occasion to renew to the honorable
Secretary of State the assurances of his highest consideration.
[Inclosure.—Translation.]
Legation of Hayti,
Washington, October 25,
1875.
Memorandum.—With a view to strengthening the
free institutions which the people of Hayti have intrusted to his care,
the President of Hayti thinks it his duty to propose to the Government
of the United States to give its consent to the abolition of the right
[Page 341]
of asylum which has
hitherto been exercised by the heads of legations accredited to the
cabinet of Port au Prince.
The President of the republic of Hayti has been struck by the annoying
and sometimes even fatal consequences which the exercise of this
so-called right has produced; he knows too well what international
conflicts it brings about, and what internal troubles it causes, to
hesitate any longer to ask the powers represented at Port au Prince to
come to an understanding with him, with a view to suppressing, by an
agreement mutually concerted, this dangerous custom.
The President of Hayti will here present a few considerations which
appear to him fully to justify the request which he presents.
In the first place, what is the right of asylum? On what principles is it
based? Does the law of nations authorize its existence?
The undersigned will here remark that there is not a single writer, from
Grotius to Bluntschli, who does not consider it an abuse.
The celebrated jurist Merlin, for instance, expresses himself on the
subject in the following terms:
“It is seen, then,” says he, “that the inviolability of a public
minister’s residence is in a manner consecrated by the unanimous wish
and the general consent of nations.
“In whose favor, however, is this inviolability established? The very
reasons on which it is based prove that it really exists only in favor
of the minister and his suite.
“He cannot, therefore, avail himself of this inviolability to convert his
house into an asylum for the protection of criminals from the penalties
which they have deserved.” * * * And farther on Merlin adds: “What,
then, is the proper way to end all disputes with regard to the right of
asylum? It is to return to the general principle which we have laid
down; it is to acknowledge, positively, that this so-called right is
only an abuse, an outrage against the sovereign authority, and that no
consideration should cause it to be tolerated.” (See Merlin, Répertoire
de Jurisprudence, vol. 20, Vo. Ministre Public, pp. 308 et seq.)
The undersigned, abstaining from presenting a number of quotations from
the best authors, all of which would confirm Merlin’s opinion, next
quotes Mr. Bluntschli, whose authority is now everywhere recognized.
“The dwelling of a person enjoying exterritoriality,” says he, “cannot
serve as an asylum to persons pursued by justice. It is the duty of such
a person to refuse to permit fugitives of all kinds to enter his
dwelling, and if they have effected an entrance to deliver them up to
the competent authorities.” (Droit international, paragraph 151.)
Farther on, Mr. Bluntschli adds: “There is no longer any right of asylum
attached to the residence of an envoy. On the contrary, an envoy is
bound to surrender to the competent authorities any person pursued by
the police or the judicial authorities of the country who has taken
refuge at his house, or to permit search to be made for the fugitive in
his house.” (See Bluntschli, Droit International, paragraph 200.)
The undersigned will now call the attention of the Government of the
United States to the declarations made by it on several occasions.
On the 25th of February, 1868, Mr. Seward, then Secretary of State, wrote
as follows to Gen. Alvin P. Hovey, minister of the United States in
Peru: “I observe that in your note to Mr. Pacheco (then minister for
foreign affairs of Peru) you have taken these positions, viz: That Peru
is entitled to all the rights and privileges of a Christian nation, and
as such should be placed precisely in the position of the United States,
France, England, and other Christian countries, and that the doctrine of
asylum cannot be properly claimed or enforced in Peru, unless it be in
exceptional cases recognized by the universal law of nations; that as
soon as a legal charge of crime is made, whether political or not, you
hold it to be the duty of the minister in whose legation an offending
party has taken refuge to leave him without interference to the
authorities demanding his arrest. * * * * These positions are altogether
approved.” (Mr. Seward to General A. P. Hovey: Diplomatic Correspondence
published in 1868, Part II, p. 764.)
And the Hon. Mr. Fish has given his adhesion to the same doctrine.
On the 16th of December, 1869, the Hon. Hamilton Fish wrote the following
in relation to the right of asylum to Mr. Bassett, who was then and has
ever since been minister of the United States in Hayti: “It has never
been sanctioned by the Department, which, however, appreciates those
impulses of humanity which make it difficult to reject such appeals for
refuge.” Finally, the Hon. Secretary of State added: “While you are not
required to expel those who may have sought refuge in the legation, you
will give them to understand that your Government cannot, on that
account, assume any responsibility for them, and especially cannot
sanction any resistance by you to their arrest by the authorities for
the time being.” (See Diplomatic Correspondence for 1871, pp. 695,
696.)
It would be easy to multiply here the precedents which are furnished by
the contemporary diplomatic history of the United States.
The proposition for the abolition of the right of asylum which is made by
the government of Hayti has nothing in it that is not agreeable to the
precedents established
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by the
United States as well as by the majority of the powers of Europe. In
1867 all the nations represented in Peru agreed to abolish the right of
diplomatic asylum there.*
At the commencement of that discussion the representative of the United
States alone sustained the demands of Peru; and it was at a conference
of the diplomatic corps held at the ministry of foreign relations that
the American minister addressed the members of the conference who still
opposed the reform, to the following effect:
General Hovey said that, in his judgment, we have no right to fix new
rules on the subject of international law; that if a special custom
existed in Peru, it could be a matter of discussion between the Peruvian
government and the foreign ministers; * * that in the United States, in
France, and England there was no discussion on this question of asylum;
and that as according to the principle of common equity what we do not
wish done unto us we ought not to do unto others, he thought no right
existed on the part of the United States, England, or France to demand
of Peru the privilege of asylum. (See Diplomatic Correspondence
published in 1868, page 741, Part II.)
The result is known. The powers represented in Peru accepted the
declaration of the minister of foreign affairs of that republic, viz,
“that the Peruvian government will not hereafter recognize diplomatic
asylum as it has been practiced up to the present time in Peru, but
solely within the limits assigned to it by the law of nations, which are
sufficient to solve the exceptional cases which might arise in this
matter.” (See ibid., pp. 742–43.)
Such is the precedent furnished to the government of Hayti by the guide
whom it thinks it ought to follow under the present circumstances. Like
Peru, it knows with what difficulties and dangers the exercise of the
right of asylum is fraught as regards its domestic tranquillity. It
knows how far the impunity which can be thus secured by conspirators who
are determined to disturb the public peace encourages their project, and
it considers this practice as one of the causes which most retard the
regular development of its national institutions.
In view of this situation, the gravity of which has been demonstrated by
recent events, it thinks that the question might be settled in the
following manner:
- 1.
- The right of asylum should be exercised in none of the cases
in which crimes and offenses against the common law are
concerned. It should be understood that a person charged with or
condemned for any crime or offense of this kind could, under no
pretext, find a refuge at any of the legations accredited to the
government of Hayti.
- 2.
- As regards political crimes or offenses for which provision is
made in the Haytian penal code, the rule laid down in Article I
should be observed also.
- 3.
- Nevertheless, certain altogether exceptional cases may
arise—those for which a reservation was made at the time when
the question of asylum was settled in Peru—in which the crime or
offense is not denned by the penal law of the country, and for
such altogether exceptional cases diplomatic asylum might be
tolerated. This is a question which it is almost impassible to
settle in advance, and must be specially regulated in each
particular case.
Nevertheless, notwithstanding the exceptional cases just referred to, it
should be understood—
- A.
- That any minister granting asylum should be obliged, within
two days, to furnish the name or names of the refugee or
refugees to the government of Hayti, together with a statement
of the reasons which induced him to grant the asylum.
- B.
- Any minister granting asylum should cause The refugee to be
disarmed, and use every means in his power to prevent him from
holding any communication with parties outside.
- C.
- This having been done, the minister who had received the
refugee or refugees should confer with the government of Hayti
for the purpose of inquiring whether it could consent to allow
the refugee or refugees to leave the territory of the republic,
either secretly or with a passport.
- D.
- In case the government of Hayti should refuse to consent to an
arrangement of this kind, and should persist in its refusal with
a view to maintaining its sovereign rights to their full extent,
the refugee or refugees should at once be delivered up to
justice; but the minister who had granted the asylum might still
use his influence to secure, should there be any reason to do
so, an ultimate commutation of the penalty.
Such is the settlement which the President of Hayti deems a proper one
for him to propose to the powers represented at Port au Prince, and he
flatters himself that they will regard this as a fresh evidence of the
firmness of the resolve which he has formed to devote the time during
which his constitutional power is to last to strengthening the
institutions which have been adopted by the people of Hayti.
