the exercise of jurisdiction, as the levying an execution; and the public minister is exempt from all jurisdiction whatever.

It was true that all hypothecations, or privileges upon property, are classed by some writers under the head of real rights, but this was by no means conclusive of the case under consideration. In a conflict of rights, this might entitle the privileged creditor to preference in the distribution of an inadequate fund, but the question was, how was he to assert that preference? By means of judicial process? If so, he is without remedy against one not subject to the jurisdiction, except by open violence, which, of course, is not classed among rights. Accordingly, privileges, and liens by mere operation of law, are usually considered as matters of remedy, not of right; as belonging to the lex fori, not to the essence of the contract.1

It might, therefore, be considered as doubtful, a priori, whether, by the Prussian code, the right of the landlord is a real right, to the effect, at least, of putting it on the footing of property transferred by contract, for that was the argument.

2d. But suppose this to be the usual effect, by operation of law, of the contract between landlord and tenant, does it hold as against one not subject to the law; not amenable to the jurisdic tion; not, in legal contemplation, residing within the country of the contract?

By the supposition, it was an incident in law of the relation between the landlord and his tenant, and it turns upon an implied contract. It was supposed that the tenant agreed to hire the house on the usual conditions; but one of them was, that if he failed to pay the rent, or indemnify for damages done to the premises, the landlord should have a remedy by distress. It was, therefore, inferred that it was not the law, or the judge, but the tenant himself, who had transferred, quasi contractu, this interest in his own property. But if this reasoning was correct, why should it not apply in the case of arrest and holding to bail? or in any case of attachment? The consent might as well be implied here, as in favor of a landlord. Indeed, the same implication might as reasonably be extended to all laws whatever, and foreign ministers thus be held universally subject by con

1 Story, Conflict of Laws, §§ 423-456, 2d ed.

tract to the municipal jurisdiction. The presumption implied in the contract under the law of the place, and binding on the parties subject to the jurisdiction is repelled by the immunity and extraterritoriality of the public minister. He that enters into a contract with another knows, or ought to know, his condition. So says Ulpian, (l. 19, pref. de R. J.,) and the landlord who lets his house to a foreign minister, waives his remedy under the law from which he knows that minister is exempt.

The American government was therefore inclined, in the absence of any authority to the contrary, to think that the Prussian municipal law, properly interpreted, did not, in fact, authorize any such pretension as that set up by the landlord, in the present instance. But even supposing it did authorize the pretension, it ought no more to derogate from the established law of nations in this case, than in that of personal arrest. The authorities cited above seemed to the American government entirely conclusive as to this point; and it was greatly confirmed in this view of the subject by the act of Congress declaratory of the law of nations, and by the opinion of other governments. In short, all the reasons on which diplomatic immunities have been asserted, and are now universally allowed, seem just as applicable to the case of liens and hypothecations in favor of landlords, as to remedies of any other kind. Indeed, nothing could afford a better practical illustration of this than the attempt of the landlord in the present case, by means of his pretended lien, to force the minister to pay damages assessed at his discretion, for an injury proved only by his own allegation.1

The Prussian government declared, that its opinion upon the point in controversy remained unchanged by the above reasoning, and the authorities adduced in support of it. According to its view, the question was not, whether the lessor had a right to retain a portion of the effects belonging to the lessee, and found on the premises at the expiration of the contract, as security for the damages incurred by its breach; but whether the lessor, by exerting his right of retention, had committed a violation of the

1 Mr. Legaré's Despatch to Mr. Wheaton, 9th June, 1843.

privileges of diplomatic agents, or, at least, a punishable act; and if, for this reason, he could be compelled, summarily, and before the competent judge had pronounced upon his claim, to restore the effects thus retained. This last question being resolved negatively, the decision of the first must necessarily be reserved to the competent tribunals.

The privilege of extraterritoriality consists in the right of the diplomatic agent to be exempt from all dependence on the sovereign power of the country, near the government of which he is accredited. It follows, that the State cannot exercise against him any act of jurisdiction whatsoever, and as by a natural consequence of this principle, the tribunals of the country have, in general, no right to take cognizance of controversies in which foreign ministers are concerned, neither are they authorized, in the particular case of a controversy arising out of a contract of hiring, to ordain the seizure of the effects of a public minister.

If, then, the privilege of extraterritoriality regards only the rela tions which subsist between the diplomatic agent and the sovereign power of the country where he resides, it is also evident that a violation of this privilege can only be committed by the public authorities of that country, and not by a private person. The legal relations of the subjects of the country are in no respect directly changed by the principle of extraterritoriality; it is only indirectly that this principle can operate upon those relations; so that in respect to citizens' controversies, the subject is not entitled to invoke the interposition of the authorities of his own country against the foreign minister upon whom he may have a claim for redress, and if he would commence a suit against him, he must resort to the tribunals of the minister's country. If, on the other hand, the subject can do himself justice, without having recourse to the authorities of his own country, his position in respect to the foreign minister is absolutely the same as if the controversy had arisen with one of his own fellow citizens.

It was hardly necessary to observe that, in such a case, the party must keep within the limits of what is generally permitted. If he should resort to violence, he would render himself guilty of an infraction of the law, and would be punishable in the

same manner as if the adverse party were an inhabitant 20. Pubcountry.

inister

In the controversy now in question, no authority dependent on the Prussian government had participated, either directly or indirectly, in the seizure of the effects of the American minister; the proprietor of the house having retained them by his own proper act, there was then no violation of the privilege of extraterritoriality. There was no proof of any act of violence having been committed by him, and the mere act of retention could not be considered as an unlawful act.

On principle, every proprietor of a house, even where it is let to another person, remains in possession of his property. It follows, that the effects brought on to the premises by the tenant may be considered, in some respects, as in possession of the landlord. It is for this reason that the municipal law of Prussia, as well as that of most other European States, gives to the landlord a lien upon the goods of the tenant, as a security for the payment of the rent. The question how far this right, founded upon the positive law of a particular country, can be exerted against a foreign minister, may be dismissed from consideration; since the act of retention cannot be regarded as an unlawful and punishable act, and, in such a case, it belongs to the tribunals of justice to pronounce judgment upon the rights which the landlord may have acquired by the retention.1 (a)

§ 18. Duties and

The person and personal effects of the minister are not liable to taxation. He is exempt from the payment taxes. of duties on the importation of articles for his own personal use and that of his family. But this latter exemption is, at present,

1 Baron de Bulow's Letter to Mr. Wheaton, 5th July, 1844.

See an able review of the above controversy by M. Felix, the learned editor of the Revue du Droit Français et Étranger, tome ii. p. 31.

(a) [In the case of an attaché to the French legation the opinion of the Attorney-General was, that neither a landlord nor a taverner, under the color of a lien, can forcibly take from an ambassador his chest or trunk, whether it contains his wardrobe or other articles of mere personal convenience, or whether it contains the instructions or the archives of his legation. Neither the law of nations nor the law of Congress knows any difference. While the Secretary of State can take no legal measures, the law furnishes the attaché the most ample protection. Opinions of Attorneys-General, ed. 1852, vol. v. p. 70. Mr. Toucey, AttorneyGeneral, to the Secretary of State, February 13, 1849.]

priviles usage of most nations, limited to a fixed sum during the if, finuance of the mission. He is liable to the payment of tolls thd postages. The hotel in which he resides, though exempt from the quartering of troops, is subject to taxation, in common with the other real property of the country, whether it belongs to him or to his government. And though, in general, his house is inviolable, and cannot be entered, without his permission, by police, custom-house, or excise officers, yet the abuse of this privilege, by which it was converted in some countries into an asylum for fugitives from justice, has caused it to be very much restrained by the recent usage of nations.1

§ 19. Messengers and

The practice of nations has also extended the inviocouriers. lability of public ministers to the messengers and couriers, sent with despatches to or from the legations established in different countries. They are exempt from every species of visitation and search, in passing through the territories of those powers with whom their own government is in amity. For the purpose of giving effect to this exemption, they must be provided with passports from their own government, attesting their official character; and, in the case of despatches sent by sea, the vessel or aviso must also be provided with a commission or pass. In time of war, a special arrangement, by means of a cartel or flag of truce, furnished with passports, not only from their own government, but from its enemy, is necessary, for the purpose of securing these despatch vessels from interruption, as between the belligerent powers. But an ambassador, or other public minister, resident in a neutral country for the purpose of preserving the relations of peace and amity between the neutral State and his own government, has a right freely to send his despatches in a neutral vessel, which cannot lawfully be interrupted by the cruisers of a power at war with his own country.2

1 Vattel, liv. iv. ch. 9, §§ 117, 118. Manuel Diplomatique, ch. 3, §§ 30, 31. sect. v. § 5, Nos. 2, 3.

Martens, Précis, &c., liv. vii. ch. 5, § 220.
Merlin, Répertoire, tit. Ministre Publique,

2 Vattel, liv. iv. ch. 9, § 123. Martens, Précis, &c., liv. vii. ch. 13, § 250. Robinson's Adm. Rep. vol. vi. p. 466. The Caroline. [This case is distinguished by Sir W. Scott from the carrying, by a neutral, of despatches from the governor of an enemy's colony to the government at home, which is a ground of condemnation. Robinson's Adm. Rep. vol. vi. p. 441. The Atalanta.]