NO ASYLUM INVOLVING INTERFERENCE.

29

charge made against them, but if caught they will be tortured and killed by the King's father. A demand may soon be made for them for some reason or other. It is desirable for them to leave. Yorktown will shortly leave for Shanghai. Will you authorize commander in chief to grant them passage?

SILL.

Mr. Sill subsequently explained that his intention was to prevent injury to the refugees. He says in a dispatch of January 20, 1896:

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I had at no time supposed that the refugees could be sheltered by me against officers of the de facto Government charged with apprehending them as violators of the laws of their country." On the contrary, they had been informed by me that I must at any time give them up upon proper demand from the Korean Government; hence my desire to get them out of the way before any demand for them should be served on me. To the telegram mentioned above, Mr. Olney made a very positive reply, as follows:

SILL, Minister, Seoul:

DEPARTMENT OF STATE,

Washington, December 2, 1895.

Refugees can not be sheltered by you against officers of de facto government charged with apprehending them as violators of the laws of their country. Use of Yorktown in manner suggested is wholly inadmissible. The Department sees with disfavor your disposition to forget that you are not to interfere with local concerns and politics of Korea, but are to limit yourself strictly to the care of American interests.

(U. S. Foreign Relations, 1895, pp. 974, 977.)

OLNEY.

Development of policy in regard to asylum.-The general attitude toward asylum in legations and upon vessels of war has in recent years become less and less favorable. In some of the early diplomatic correspondence of the United States asylum was regarded with favor. In 1844 Mr. Calhoun wrote to the representative in Brazil that, "The right of asylum in revolutionary times and in revolutionary countries should be indulgently construed." During the latter half of the nineteenth century the policy of the United States has been to discourage the granting of asylum. In countries outside of those in the Western Hemisphere the granting of asylum has been reduced to the narrowest limits and almost prohibited. In Central and South American States, and in the West Indies, there have been, however, frequent instances of the exercise of this means of protec

tion to refugees. Even in these countries the United States has tried to discourage the practice in late years. This is shown in a dispatch of Mr. Seward to Mr. Hollister, May 28, 1868, in which Mr. Seward says:

The revolutionary condition seemed to have become chronic in many of the South American nations after they had achieved their independence, and the United States, as well as the European nations, recognized and maintained the right of asylum in their intercourse with those republics. We have, however, constantly employed our influence for several years to meliorate and improve the political situation in these republics, with an earnest desire to relinquish the right of asylum there.

Secretary Fish, in a dispatch to Mr. Bassett June 4, 1875, speaking of persons who have sought asylum in the United States legation in Port au Prince in the time of civil disturbances, says:

It is regretted that you deemed yourself justified by an impulse of humanity to grant such an asylum. You have repeatedly been instructed that such a practice has no basis in public law, and so far as this Government is concerned, is believed to be contrary to all sound policy. The course of the diplomatic representatives of other countries in receiving political refugees upon such occasions is not deemed sufficient to warrant this Government in sanctioning a similar step on the part of the representatives of the United States.

Later, in 1883, Mr. Frelinghuysen says of this same correspondence:

* *

The views of this Government as to the right of asylum have long been well known. You will find them in the correspondence of this Department with your predecessor, Mr. Bassett. * While indisposed from obvious motives of common humanity to direct its agents to deny temporary shelter to any unfortunates threatened with mob violence, it is proper to instruct them 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.

(For many references, see 1 Wharton's Digest, sec. 104.)

Mr. Olney, in 1895, says that it is "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

ASYLUM GENERALLY DISCOURAGED.

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beyond the reach of the law to the disparagement of the sovereign authority of the State." (Foreign Relations, 1895, p. 246.)

Mr. Hay, in 1899, says, "It is evident that a general rule, in the abstract, can not be laid down for the inflexible guidance of the diplomatic representatives of this Government in according shelter to those requesting it. But certain limitations to such grant are recognized. It should not, in any case, take the form of a direct or indirect intervention in the internecine conflicts of a foreign country, with a view to the assistance of any of the contending factions, whether acting as insurgents or as representing the titular government." (Foreign Relations, 1899, p. 258.)

From the instances cited above, and from many other instances where the opinion of the Government of the United States has been expressed, it is evident that the attitude of the United States is to discourage the grant of asylum to the utmost, and to limit its grant to cases where mob violence is threatened, or where the ordinary course of government is interrupted. This same tendency of restriction is evident in other countries as well as in the United States.

Attitude toward insurgent troops. In the case under consideration the insurgent troops have sought the shelter of the legation to escape the consequences of war, which as troops they had waged upon the regular government. In sheltering these troops from the regular troops the minister of the United States has in a measure taken the part of the insurgents against the established government. Such action has repeatedly been disavowed by the United States Government. If these insurgent troops have engaged in hostilities against the established government they are liable to the consequences of their action, and it is not the function of representatives of the United States to protect them from such consequences. As Mr. Fish said, in 1875:

Among other objections to granting such asylum it may be remarked that that act obviously tends so far to incite conspiracies against governments, that if persons charged with offenses can be sure of being screened

in a foreign legation from arrest they will be much more apt to attempt the overthrow of authority than if such a place of refuge were not open to them.

The printed Instructions to the Diplomatic Officers of the United States, issued by the Department of State declare that

The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's diplomatic or personal household.

In some countries, where frequent insurrections occur and consequent instability of government exists, the practice of extraterritorial asylum has become so firmly etsablished that it is often invoked by unsuccessful insurgents and is practically recognizd by the local government, to the extent even of respecting 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 representatives to deny temporary shelter to any person who may be threatened by mob violence, it deems it proper to instruct them that it will not countenance them in any attempt knowingly to harbor offenders against the laws from the pursuit of the legitimate agents of justice.

Asylum to officers of established government. In 1894 certain refugees were received upon the Bennington while that vessel of the United States Navy was at La Libertad in Salvador. These refugees were officers of the established government which the United States had recognized and when received were fleeing from the revolutionists. Of this event President Cleveland, in his message of December 3, 1894, says:

The Government of Salvador having been overthrown by an abrupt popular outbreak, certain of its military and civil officers, while hotly pursued by infuriated insurgents, sought refuge on board the United States warship Bennington, then lying in a Salvadorean port. Although the practice of asylum is not favored by this Government, yet in view of the imminent peril which threatened the fugitives, and solely from considerations of humanity, they were afforded shelter by our naval commander, and when afterwards demanded under our treaty of extradition with Salvador for trial on charges of murder, arson, and robbery, I directed that such of them as had not voluntarily left the ship be conveyed to one of our nearest ports where a hearing could be had before a judicial officer in compliance with the terms of the treaty:

From this passage of the President's message, and from the correspondence bearing upon the event, it is evident

NO PROMISE OF ASYLUM.

33

that the affair was regarded as one of granting temporary shelter to those who were pursued by an irresponsible body of troops. In other cases the United States has made a distinction between the granting of temporary shelter to those in imminent danger and the granting of asylum as a deliberate act. While the first is sometimes allowable, the latter has been uniformly discountenanced. It has also been admitted in practice that somewhat more of favor may properly be extended to officials of the established government than to parties in opposition to it.

General consideration of the Situation.—In the case as presented for solution, the troops opposing the established government have received asylum in the United States legation, and from fear lest there may be bloodshed the minister of the United States requests the United States commander to receive the refugees on board his vessel. Presuming that there would be no difficulty in bringing the refugees to the vessel, which would doubtless be contrary to the fact, should he agree to receive the refugees? Of course, the commander would have no right to take any steps to bring the insurgent troops on board his ship or to secure their safety within the jurisdiction of State X while they are passing from the legation to the vessel, even if he should grant the requested asylum. The commander could, however, land forces for the protection of American interests. If the legation of the United States is in danger, the landing of forces for its protection is legitimate and such action is not uncommon. No violation of the territory of State X by landing a guard to escort the troops of the insurgent party could be held to be a protection of United States interests without the special orders of the Government.

The commander would be justified in affording protection to the legation in case of danger to it or offense against its inviolability.

The commander would not assume to judge of the propriety or impropriety of the action of the United States minister. Nor should he share the responsibility of the minister. The fact that the minister has received these 18239-05-3