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privileges, and his belief that he was executing his duty lawfully, in arresting a fugitive slave, and disclaiming all intentional disrespect to Mr. Bankhead.

His counsel, Mr. W. L. Brent, contended that Jeffers, as the agent of the owner of the slave, had a right to take him anywhere; and also that, as a constable, he had a right to take up a runaway, that the diplomatic privilege extends only to foreign ministers and upon certains terms; and not to servants of a secretary of legation.

That the servant had not been registered according to the Act of Congress of 30th of April, 1790, § 26 (Stat. at Large, 112), and therefore Jeffers had a right to arrest him; because the act of Congress for punishing the violation of privilege does not extend to those who may arrest a servant not registered. By not registering his servant, the minister has waived his privilege, Seacourt v. Bowlney, 1 Wils., 20.

The court stopped Mr. Key in reply. THURSTON, J., said he wished no further time or argument. He was of opinion that Jeffers should be dismissed from office.

MORSELL, J., concurred.

CRANCH, C. J., would have taken time to consider; but said that his present opinion coincided with that of the court.

Whereupon the court passed the following order:

"Madison Jeffers, upon whom a rule was laid on the 30th of May last, to show cause why he should not be removed from the office of constable for the county of Washington, upon the grounds therein stated, appeared and filed his affidavit, and the same was read and heard, and he was further heard by his counsel whereupon

"It is considered by the court, that the said Madison Jeffers was guilty of a violation of the privileges of His Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary, as stated, in his letter to the Secretary of State referred to in the said rule; and the said Madison Jeffers, having shown no sufficient cause to the contrary, it is thereupon considered by the Court, this 7th day of June, 1836, that the said Madison Jeffers be, and he is hereby, removed from his said office of constable for the county aforesaid."

OPINION OF MR. FISH, SECRETARY OF STATE.

LETTER TO MR. PRESTON, DEC. 11, 1875.

(U. S. Foreign Relations, 1875, p., 343.)

A criticism of the practice of granting asylum to political refugees, by foreign legations, in the Spanish American States.

"The right to grant asylum to fugitives is one of the still open questions of public law. The practice, however, has been to tolerate the exercise of that right, not only in American countries of Spanish origin, but in Spain itself, as well as in Hayti. This practice, however, has never addressed itself to the full favor of this Government. In withholding approval of it, we have been actuated by respect for consistency.

"It is not probable that the practice would ever be attempted in this country, or, if attempted, could be tolerated, and the discountenance which the United States extends to the practice is upon the principle of doing to others as we would they should do unto us, so that when we acknowledge the sovereignty of a foreign state by concluding treaties with and by accrediting diplomatic officers to its Government, we impliedly, at least, acknowledge it as a political equal, and we claim to extend to all the political prerogatives and immunities which we may claim for ourselves.

"We sincerely desire that it may be universally recognized that foreign legations shall nowhere be made a harbor for persons either charged with crimes or who may fear that such a charge may be made.

"Prominent among the reasons for objection on our part to giving asylum in a legation, especially in the Governments to the south of us, is that such a practice obviously tends to the encouragement of offenses for which asylum may be desired.

"There is cause to believe that the instability of the Governments in countries where the practice has been tolerated may in a great degree be imputed to such toleration. For this reason, if for none other, the Government of the United States, which is one of law and order and of constitutional observance, desires to extend no encouragement to a practice which it believes to be calculated to promote and encourage revolutionary movements and ambitious plottings.

"Instances, too, have occurred where asylum having been granted

with impunity, has been grossly abused to the defeat of justice, not only against political offenders, but also against persons charged with infamous crimes. Such abuses are plainly incompatible with the stability and the welfare of Governments, and of society itself.

"Temptations sufficient to lead to an abuse of the practice cannot fail to abound in most persons who may exercise it. Such temptations are incident to human nature, and in countries where political revolutions are of frequent occurrence one must be gifted with uncommon self-denial to be wholly free from their influences.

"It is believed, however, to be sound policy not to expose a minister in a foreign country to the embarrassments attendant upon the practice. Still, this Government is not, by itself, and independently of all others, disposed to absolutely prohibit its diplomatic representatives abroad from granting asylum in every case in which application therefor may be made.

"We do not, however, withhold from them our views of the practice, and will expect that, if they do exercise the prerogative, it will be done under their own responsibility to their own Government. We would prefer, therefore, not formally to assent to the propositions contained in the memorandum above referred to without ascer taining the views of the other Governments concerned in regard to them.

"Some, at least, of those propositions appear to be fair enough; but as the circumstances of cases in which asylum may be granted greatly vary, it would, in the opinion of the undersigned, be preferable, until an understanding and an approach to accord of views as to the future practice in this regard can be had by the other powers, that every such case should be treated according to its merits, rather than that we should be fettered in advance by rules which may be found not to be practically applicable or useful." 1

1 The printed personal instructions of the government of the United States to its diplomatic agents of date of 1885, contains the following clause :

"In some countries, where frequent insurrections occur and consequently instability of government exists, the practice of exterritorial asylum has become so 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."

(b) On Board Ships of War.

CASE OF JOHN BROWN.

OPINION OF SIR WILLIAM SCOTT, 1823.

(Halleck's International Law, I., 185.)

In the opinion of Sir William Scott, the right of asylum as regards political refugees does not properly belong to ships of war.

In 1820, John Brown, a British subject, commanded a vessel engaged in the revolt against the Spanish Colonies. He was taken prisoner by the Spaniards, but escaped from prison, and took refuge on board H. M. S. "Tyne," lying in the port of Lima. Sir William Scott, being requested by the Admiralty, gave his opinion on the question, as follows :-" Sir,-I have to acknowledge the receipt of your letter dated the 25th ult., enclosing copies of a letter, and its enclosures from Captain Falcon, of H. M. S. Tyne,' and of the case and opinion of the King's Advocate, relative to Mr. John Brown, a native of Ireland, who, being a prisoner, in the hands of the Spaniards, effected his escape and came on board the 'Tyne' at Callao, and has since arrived on board the same within the realm of England (having claimed the protection of the flag), and acquainting me that their Lordships conceiving that they had no authority to detain him, and being supported in that opinion by the concurrence of the King's Advocate, had allowed him to depart without restraint. Upon this statement I have no observation to make, not being desired by their Lordships to make any; but if my opinion had been required, it would have coincided with what has been advised and done. A more extensive and important question is proposed to me, viz.: Whether any British subject coming on board any of H. M.'s ships of war, in a foreign port and from the judicature of the State within whose territory such port may be situated, is entitled to the protection of the British flag, and to be deemed as within the Kingdom of Great Britain and Ireland?' Upon this question proposed generally I feel no hesitation in declaring that I know of no such right of protection belonging to the British flag, and that I think such a pretension is unfounded in point of principle, is injurious to the rights of other countries, and is inconsistent with those of our own.

The

rights of territories are local and are fixed by known and determined limits. Ships are mere movables and are treated as such in the general purchase of nations. It is true that armed neutralities have attempted to give them a territorial character, but the attempt when made has been always most perseveringly, and at all hazards, resisted and defeated by the arms of our country, as inconsistent with the rights of hostility and capture. No such character is allowed to protect ships of war, when offending against the laws of neutrality upon the high seas, where no local authority whatever exists; still less can it be claimed where there is a visible and acknowledged authority, belonging to an independent State in amity with the nation of which the ships of war belong. Such a claim can lead to nothing but to the confusion and hostility which wait upon conflicting rights. The common convenience of nations has for certain reasons, and to a certain extent, established in favor of foreign ships of war, that they themselves shall not be liable to the civil process of the country in whose ports they are lying, though even the immunity has been occasionally questioned. But that individuals, merely belonging to the same country with the ships of war, are exempt from the civil and criminal process of the country in its ordinary administration of justice by getting on board such ship, and claiming what is called the protection of the flag, is a pretension which, however heard of in practice occasionally, has no existence whatever in principle. If the British flag converts a man-of-war into a British territory, the flag of other nations must be allowed to possess the same property in their marine; for there is no principle whatever that can be appropriated exclusively to the British flag.

"It therefore must be allowed reciprocally that a Spaniard getting on board a Spanish ship of war lying in Portsmouth harbor shall be protected from British justice. I believe the administration of that justice would return a very speedy and decisive negative to any such pretension on behalf of Spaniards charged with being amenable to British law.

"But the inconvenient effects of considering such a ship a Spanish territory would go much further to the extent of protecting at British criminal who found his way into her. For no process of British justice can be executed on a British subject in a Foreign territory. When I give this as my decided persuasion upon this subject generally, I do not mean to say that in the infinite possibility of events cases may not arise in which such a protection might be indulged.

"But such cases are justified only by their own peculiar and ex

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