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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 an 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."

Then Mr. Olney quotes the instructions of Mr. Fish and Mr. Frelinghuysen discountenancing the practice of granting asylum, and stating that the Department's printed personal instructions relate in terms to the extension of asylum to unsuccessful insurgents and conspirators 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 afforded with a view to remove a subject beyond the reach of the law to the disparagement of the sovereign authority of the state.

"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 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." "

The officer of the United States bases his claim to correct action in granting the request of the messenger

1 For. Rel., 1895, p. 245.

ASYLUM TO GOVERNMENT OFFICERS.

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on the ground that this is an exceptional case as provided for by the Naval Regulations; that it is not an invitation direct or indirect; that, as stated in Snow's Lectures, p. 28, he is supported by international precedents; that the position assumed is supported by Hall in his statement that "something more may be permitted, or may even be due, in the case of the chiefs, or of prominent members of a government overturned by revolution. They retain a certain odour of legitimacy,' and further that the letter of Mr. Secretary Olney to Mr. Tillman in 1895 fully justifies his course as not being asylum but merely shelter, not interfering with the rights of legitimate government or sovereignty. As Mr. Olney says:

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"This is quite distinct from the so-called right of asylum, which can logically only be exercised in disparagement of the right of the sovereign power by withdrawing an accused subject from its rightful authority.”

By these and other arguments he maintains that he should grant an affirmative reply to the messenger of the constituted authorities. The officer also cites the instructions issued by the Secretary of the Navy during the civil war in Chile in 1891:

"In reference to the granting of asylum, your ships will not, of course, be made a refuge for criminals. In the case of persons other than criminals, they will afford. shelter wherever it may be needed, to Americans first of all, and to others, including political refugees, as far as the claims of humanity may require and the service upon which you are engaged will permit."

"The obligation to receive political refugees and to afford them an asylum is in general, one of pure humanity. It should not be continued beyond the urgent necessities of the situation, and should in no case become the means whereby the plans of contending factions or their leaders are facilitated. You are not to invite or encourage such refugees to come on board your ship, but should they apply to you, your action will be governed by considerations of humanity and the exigencies of the service upon which you are engaged."

ARGUMENTS AGAINST PROMISING ASYLUM.

In a parallel case in regard to asylum in legations consequent upon uprisings in Ecuador in 18991 the United States minister maintains that he was acting, in promising asylum if need be to the chief officials of the government of Ecuador, on the ground that he "would have saved from death the legitimate heads of the government until such time as they could again assume the functions of their respective offices."

Secretary Hay, replying, reviews the conclusions of Secretary Olney already cited, particularly the clause reading:

"It seems to be generally supposed that the case of a member of an overturned titular government is different; and so it may be until the empire of 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 in the mistaken fiction of extraterritoriality can be countenanced on the part of representatives of this Government."

Commenting on this position, Secretary Hay says:

"From the foregoing considerations it is evident that a general rule, in the abstract, can not be laid down for the inflexible guidance of the diplomatic representatives of the 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 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.

"I therefore regret that I am unable to approve the promise of shelter made by you to the members of the titular government before the emergency had actually arisen for decision as to whether the circumstances then existing would justify or make it permissible, and

1 For. Rel. U. S., 1869, 256-8.

POSITION OF DEPARTMENT OF STATE.

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especially am I unable to approve the apparent ground or motive of the promise that you would have saved from death the legitimate heads of the government 'until such time as they would again assume the functions of their respective offices.'

"The Government of the United States remains a passive spectator of such conflicts unless its own interests or the interests of its citizens are involved, and I conceive that it might lead to great abuses in the grant of such shelter, which is afforded only from motives of humanity, if assurances were given in advance to leaders of either of the contending factions that they might carry the conflict to whatever extremes with the knowledge that. at last they should enjoy impunity in the protection of this Government; yet such might be construed as the practical effect of the assurance given in this case. I am therefore constrained to withhold my approval of the assurances given at the time and under the circumstances stated in your dispatches and as understood by the Department."

Still less is there reason for the commander to promise to grant asylum on board a ship of war since he is liable to receive orders at any moment which may change his plans or move the ship to another part of the world.

The naval officer can not foretell the circumstances under which the President and his cabinet may finally come to him. He can not foretell what his own circumstances may be at a time indefinite in the future-indeed, he is not certain that his ship will be in the harbor or in condition to receive the President and cabinet in their emergency. As a promise to receive these persons would, in a measure, prejudge a controversy to which he should remain a "passive spectator," he would not be justified in making an affirmative reply.

He should therefore reply that his Goverment discountenances the practice of granting asylum on board ships of war, and the regulations of the service allow it only under extreme and exceptional cases, of which he would be obliged to judge in the actual emergency should such emergency unfortunately arise in regard to the President and cabinet or other persons while he remains in port. He could in no case promise asylum in advance of the urgent necessity.

SITUATION III.

At a port in China which is held under lease by a European state and at which there is no consul of the United States, a near-by American consul accredited to China attempts to exercise his ordinary extraterritorial jurisdiction. His authority is denied by a representative of the European state, and he appeals to the commander of an American war vessel in port to support him in the exercise of his authority.

What position should the commander take?

SOLUTION.

The commander should take the position that he could not support the consul accredited to China in the exercise of authority within territory thus held under lease by a European power.

The commander can assume that he is himself authorized to exercise those consular functions which are under such circumstances specifically delegated to naval officers by his government.'

NOTES ON SITUATION III.

STATUS OF LEASED TERRITORY.

The actual status of the territory acquired by lease from China to European powers has not been determined. By the treaties of the United States with China, United States consuls have certain rights over and above those ordinarily exercised in European countries. In the strictly Chinese portions of the Empire these rights still exist. The existence of these powers or of any right to exercise consular jurisdiction of any kind within the portions of China leased to various European states depends upon the effect of the lease of territory by one state to another. This must be decided by reference to fundamental principles and by the terms of the contract.

1U. S. N. Regs., art. 517.

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