approved by him would have the seeming but unreal operation to bind the United States by his own individual act, in derogation of the Constitution, which requires that no engagement shall be made with foreign powers other than by treaty solemnly celebrated by the President and duly ratified by the Senate." Mr. Seward, Sec. of State, to Mr. Hovey, Feb. 25, 1867. MSS. Inst. Peru. See As to importance of union between diplomatic agents abroad, see 8 John Adams' As to joinder of foreign ministers at Japan and China, see supra, §§ 67–68. XXVII. DUTIES AS TO ARCHIVES. $103. "The instructions of this Department to its diplomatic agents abroad have for a long series of years past strictly prohibited ministers from retaining for their private information or use copies of any correspondence of record in their legations. This rule has been found necessary, not only because such archives are public property, which no private person has a right to possess, but also because however great the discretion of the minister doing so may be during his lifetime, yet, after his death the instances in which valuable papers in relation to the confidential intercourse of this Government with foreign states may pass through other hands into unguarded publicity, are not rare." Mr. Evarts, Sec. of State, to Mr. Tuttle, May 19, 1879. MSS. Dom. Let. "The following record books should be kept at all missions of the United States abroad: "A dispatch-book, into which are to be copied all official communications written by the diplomatic agent to the Department of State. Press-copy books are not to be considered as permanent records. "A note-book, into which are to be copied all official communications written by the diplomatic agent to the Government to which he is accredited. "A letter book, into which are to be copied all other official communications written by the diplomatic agent. This book should contain the record of his letters to the consular officers under his jurisdiction. "A passport-book, in which are to be registered all passports issued or visaed by the diplomatic agent. "A miscellaneous record-book, for the entry of those official papers and records which cannot conveniently be classified and entered in the record books above named-and in this book should be included also copies of such translations of official papers as the diplomatic agent may forward with his dispatches to the Department of State. "A register of official letters received at the legation, which shall embrace the following information: Name of the writer, number and date of letter, when received, its import, and remarks thereon, as prescribed in the form hereto annexed. S. Mis. 162-VOL. I-43 673 "A register of official letters sent from the legation, stating the date and import of the letter, and the name of the person to whom sent, as prescribed in the form hereto appended. "A quarterly account current book, in which shall be recorded the accounts of the diplomatic agent and the legation accounts for contin gencies. "When a paper of any description is entered or recorded in either of the said books, it must be indexed by a reference both to the name of the author and the subject of the paper. "Instructions from the Department, and all official or business notes to the legation, intended to be permanently kept there, shall be indorsed with a short note of the contents and filed (not folded), until a sufficient number shall accumulate to form a volume, when they shall be bound. "All diplomatic agents are instructed, with a view to facilitate reference to previous correspondence, to keep in their offices the prescribed registers of all the documents, papers, letters, and books which have been, or which may be, at any time received, and also of those forwarded by them on matters connected with their official duties. "The copied records in the books above prescribed will include protocols of conferences, notes of official conversations, copies of corre spondence, and every memorandum necessary to a full understanding of the history of the mission. "Such ministers of the United States as by law are not allowed a secretary of legation will themselves keep up the record of their legations. Any such minister who may neglect this duty will be chargeable with the expense which the Government may incur in consequence of his neglect. "The public interest, and the convenience of official intercourse with diplomatic representatives abroad, require that every successor to a mission should be thoroughly acquainted with all the directions that may have been given by this Department to his predecessors, and all that may have been done by them in their official capacity. It is therefore the imperative duty of all diplomatic agents to carefully familiarize themselves with the records of their missions, and to preserve the archives of their own as well as of preceding terms with the utmost care for the benefit of their successors in office." Printed Pers. Inst. Dip. Agents, 1885. By article 11 of the treaty of 1819 between the United States and Spain, the Department of State was made the depository of the records and papers referred to in the article. They should not be delivered to the claimants, and any law of Congress which should authorize or direct them to be delivered up would be a violation of the treaty. 2 Op., 515, Taney, 1832. XXVIII. RIGHT OF PROTECTION AND ASYLUM. § 104. Under this head the privileges of asylum of consuls as well as of dip. lomatic agents will be considered. The report of Mr. Livingston, Sec. of State, on Apr. 2, 1832, in regard to refuge given in 1831 by the United States ship St. Louis to the Vice-President of the Republic of Peru and General Miller, will be found in House Ex. Doc., No. 272, 22d Cong., 1st sess. The right of diplomatic asylum in revolutionary times and in revolutionary countries should be indulgently construed. Mr. Calhoun, Sec. of State, to Mr. Wise, July 18, 1844. MSS. Inst., Brazil. "A minister in a foreign country is regarded by the public law as independent of the local jurisdiction within which he resides, and responsible for any offenses he may commit only to his own Government. The same peculiar character belongs, also, to his suite, his family, and the members of his household, and in whatever relates to himself or to them is extended even to the mansion which he occupies. Whether its asylum can be violated under any circumstances, it is unnecessary, on this occasion, to inquire; but there is no doubt whatever that, if it can be rightfully entered at all without the consent of its occupant, it can only be so entered in consequence of an order emanating from the supreme authority of the country in which the minister resides, and for which it will be held responsible by his Government." Mr. Buchanan, Sec. of State, to Mr. Shields, Mar. 22, 1848. MSS. Inst., Venez. Though the privileges of asylum in Mohammedan states, as well as in South America, are more liberally dispensed than in the leading European states, they should be in all cases carefully guarded. Mr. Clayton, Sec. of State, to Mr. McCauley, May 31, 1849. MSS. Inst. Barb. "I was well aware of the custom of the representatives of Christian powers in the Barbary States to extend the protection of their flags over many individuals who are not citizens of their respective countries, and who cannot be properly considered as officials, such as brokers, interpreters, &c. But whilst I deem it the duty of the consuls to protect American citizens, and necessary and useful official persons connected with their consulates, they ought scrupulously and carefully to abstain from all interference in behalf of individuals who are neither citizens nor have any rightful claim to our protection, and the more especially when such protection is likely to bring the American consul into any kind of conflict with the rights and prerogatives of the representatives of friendly powers." Mr. Clayton, Sec. of State, to Mr. McCauley, Jan. 14, 1850. MSS. Inst. Barb, Acquiescence by the Government of Chili on former occasions in the exercise of the hospitality of asylum in its larger sense may preclude that Government from objecting to the continued granting such hospi tality to the same extent. At the same time, if that Government makes objection to a granting of that hospitality to a particular political refugee, the minister of the United States, in whose house such refugee is sheltered, should advise him that this shelter can no longer be afforded. Mr. Webster, Sec. of State, to Mr. Peyton, July 2 1851. MSS. Inst., Chili. "Neither the law of nations nor the stipulations of our treaty with Peru recognize the right of consuls to afford protection to those who have rendered themselves obnoxious to the authority of the Govern ment under which they dwell. * "The subsequent course of the governor, in sending to the consulate and arresting the insurgents, cannot be condemned by this Government. The national flag was not insulted, nor the national dignity affected, by this proceeding. The former had been unwarrantably used. Under the treaty it would and should have protected the property of the consulate and the persons and property of American citizens, but in this case no such plea for its use can be presented. The Government of the United States would not permit such an abuse of a foreign flag by a foreign consul to be made with impunity." Mr. Marcy. Sec. of State, to Mr. Clay, Jan. 24, 1854. MSS. Inst., Peru. "This Government will not consent that its consuls in Turkey shall be denied any privileges in regard to protecting persons not citizens of the United States which may be enjoyed by the consuls of other nations who have no special treaty stipulations on the subject. If custom in Turkey gives to foreign consuls the right of protecting even Ottoman subjects, it is presumed that this right is limited to such persons as may be absolutely necessary for the discharge of the consular functions, and must have originated and be tolerated on account of the difficulty of obtaining persons, not subjects of the Porte, sufficiently ac quainted with the Oriental languages. It is obvious, however, that it is the duty of the consul to exercise this privilege with discretion, and not to employ any person for the purpose of screening him from prosecution for offenses against the laws of the country or any one known to be reasonably objectionable to the Government." Mr. Marcy, Sec. of State, to Mr. De Leon, Aug. 16, 1854. MSS. Inst., Barb. Powers. To the same effect see letter of Mr. Seward, Sec. of State, to Mr. Hale, Dec. 11, 1866, ibid.; Mr. Fish, Sec. of State, to Mr. Beardsley, Mar. 31, 1873, ibid.; Mr. Fish to Mr. Jones, Nov. 16, 1876. See also circular of May 1, 1871; Mr. Evarts to Mr. Mathews, Mar. 13, 1880, ibid. See, as sustaining this view, Mr. Marcy's note on the Koszta case, Sept. 26, 1853; infra, § 198. A consul of the United States in Nicaragua has no right, as such, "under the law of nations to make his dwelling an asylum for persons charged with crimes or offenses against that Government." Mr. Marcy, Sec. of State, to Mr. Wheeler, May 11, 1855. MSS. Inst., Am. St. Violent entrance in a consul's house by soldiers, and misconduct therein, constitute an international wrong, for which the Government commissioning such consul is entitled to demand redress. Mr. Cass, Sec. of State, to Mr. Bigler, June 17, 1859; Ang. 16, 1859; May 1, 1860. During an insurrection in Valparaiso, early in 1859, Mr. Trevitt, consul of the United States, received into his house as an asylum certain political refugees. His house was subsequently attacked by Chilian 1 A soldiery, the surrender of the refugees effected, and his exequatur recalled by the Chilian Government. Mr. Bigler, United States minister at Chili, when reporting these facts, informed the Secretary of State that "the English consul at Talcahuano had recently given asylum to a certain number of refugees under circumstances similar to those under which Consul Trevitt had acted at Valparaiso, but that the Chilian Government had manifested no dissatisfaction with his conduct." Information was also given "that the practice on the part of consuls extending asylum to political refugees is almost generally permitted in the Pacific Republics, and in none more frequently than in Chili." Mr. Cass, Secretary of State, then instructed Mr. Bigler that "if this be so, the existence of such an usage, taken in connection with the statement you make in regard to the English consul, would go far to induce this Government to require the restoration of Mr. Trevitt's exequatur." Mr. Cass to Mr. Bigler, June 17, 1859. MSS. Inst. Chili. See Mr. Cass to Mr. Bigler, Aug. 16, 1859, on the refusal of the Chilian Government to recall the exequatur. "All Christian nations refuse to the Government of Morocco any right, power, or control whatever, in any circumstances, over the persons or property of Christians, or Franks, as they are called, residing in that Empire." Mr. Seward, Sec. of State, to Mr. McMath, Apr. 28, 1862. MSS. Inst., Barb. "Every citizen of the United States is required, when in Morocco, to seek from the consul and have a certificate showing that he is under the consul's protection. Failing to obtain this he has no right by law to remain there." Ibid. "The President hears with surprise and regret rumors of abuses of the privilege of granting protections committed by persons vicariously exercising consular functions in behalf of this Government within His Imperial Majesty's dominions. Recent improvements of administration present some grounds for believing that that privilege might now be relinquished without serious prejudice to the interests of the United States. It is not supposed, however, that in the event of either a radical change of administration, or of the occurrence of religious or other domestic disturbance in the capital or the provinces, the right of granting protections as heretofore exercised would be found indispensable to the safety of citizens sojourning in Turkey. In view of these oppos ing considerations the President has determined that you may announce to the minister for foreign affairs that the power of the ministers and of consuls to grant protection will, until further notice, be restrained so as to allow them to issue only to persons in the actual service of the United States. This restriction will not be deemed to have any bearing upon |