Scruggs to Vicente Restrepo, February 21, 1885

Mr. Scruggs to Mr. Restrepo.

Mr. Secretary: I have carefully read your excellency’s important note, dated the 16th instant, relative to the privileges and immunities of foreign ministers, and as I reply thereto before having had the opportunity to refer it to my Government, I do so upon my own responsibility.

When once received, a public minister is entitled to all the privileges annexed by the law of nations to his public character; and among these, entire and absolute exemption from local jurisdiction. Not only is his person sacred and inviolable, but his movable effects, his servants, and the house in which he lives are likewise exempt from the operation of local law. And to make these exemptions the more complete, the fiction of exterritoriality has been invented, whereby though actually in a foreign country, he is supposed to remain within the territory of his own sovereign.

It follows, then, as a logical sequence, that civil and criminal jurisdiction over those attached to his legation rests with the minister exclusively, to be exercised by him according to the laws, regulations, or instructions of his own Government; and, above all, that his house cannot be invaded by order of either the civil or military authorities of the local Government, no matter how apparent the necessity therefor.

These exemptions and immunities are founded upon mutual utility, growing out of the necessity that a public minister should be entirely independent of the local authority in order to fulfill the duties of his mission; and the very act of sending the minister on the one hand and of receiving him on the other is a tacit compact between the two states that he shall be subject only to the authority of his own nation. These principles seem to me to be too well established and too generally recognized to require discussion, and I shall continue to expect their strict observance by the enlightened Government of your excellency. On the other hand, I as frankly admit that these exemptions can never justify a public minister in converting his legation into an asylum; and that if he should do so, and thereby attempt to shield a citizen of the country to which he is accredited from the operation of a local law, his conduct would be justly offensive and his recall might with reason be asked.

The right of such asylum is not sanctioned by public law; and even in very extreme cases, and when prompted by the humane impulse to save life, its exercise can be justified only by exceptional circumstances, and then only as a temporary expedient.

I am aware that occasions for claiming it have been frequent in the countries of this hemisphere; but it is believed that it has never, in any instance, been granted by a minister of the United States with the approval of his Government.

I improve, &c.,