Part III. $227. Exemption of the minister's house and property. The municipal laws of some, and the usages of most nations, require an official list of the domestic servants of foreign ministers to be communicated to the secretary or minister of foreign affairs, in order to entitle them to the benefit of this exemption (p). It follows from the principle of the extra-territoriality of the minister, his family, and other persons attached to the legation, or belonging to his suite, and their exemption from the local laws and jurisdiction of the country where they reside, that the civil and criminal jurisdiction over these persons rests with the minister, to be exercised according to the laws and usages of his own country. In respect to civil jurisdiction, both contentious and voluntary, this rule is, with some exceptions, followed in the practice of nations. But in respect to criminal offences committed by his domestics, although in strictness the minister has a right to try and punish them, the modern usage merely authorizes him to arrest and send them for trial to their own country. He may, also, in the exercise of his discretion, discharge them from his service, or deliver them up for trial under the laws of the State where he resides; as he may renounce other privilege to which he is entitled by the public law (9). any The personal effects or movables belonging to the minister, within the territory of the State where he resides, are entirely exempt from the local jurisdiction; so, also, of his dwelling-house; but any other real property, or immovables, of which he may be possessed within the foreign territory, is subject to its laws and jurisdiction. Nor is the personal property of which he may be possessed as a merchant carrying on trade, or in a fiduciary character, as an executor, &c., exempt from the operation of the local laws (r). (p) Blackstone's Commentaries, vol. i. ch. 7. LL. of the United States, vol. i. ch. 9, § 26. (2) Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 124. Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 20. Klüber, Pt. II. tit. 2, §§ 212-214. Merlin, Ré- Chap. I. § 228. Discussion The question, how far the personal effects of a public minister are liable to be seized or detained, in order to enforce the performance on his part of the contract of between the hiring of a dwelling-house, inhabited by him, has been American and recently discussed between the American and Prussian governments, governments, in a case, the statement of which may exemption of serve to illustrate the subject we are treating. Prussian respecting the public The Prussian Civil Code declares, that "the lessor is jurisdiction. entitled, as a security for the rent and other demands arising under the contract, to the rights of a Pfandgläubiger, upon the goods brought by the tenant upon the premises, and there remaining at the expiration of the lease." The same code defines the nature of the right of a creditor whose debt is thus secured. "A real right, as to a thing belonging to another, assigned to any person as security for a debt, and in virtue of which he may demand to be satisfied out of the substance of the thing itself, is called Unterpfands-Recht” (s). Under this law the proprietor of the house in which the minister of the United States accredited at the court of Berlin resided, claimed the right of detaining the goods of the minister found on the premises at the expiration. of the lease in order to secure the payment of damages alleged to be due on account of injuries done to the house during the contract. The Prussian government decided that the general exemption, under the law of nations, of the personal property of foreign ministers from the local jurisdiction, did not extend to this case, where, it was contended, the right of detention was created by the contract itself, and by the legal effect given to it by the local law. In thus granting to the proprietor the rights of a creditor whose debt is secured by hypothecation (Pfandgläubiger), not only in respect to the rent, but as to all other demands arising under the contract, the Prussian Civil Code confers upon him a real (8) Allgemeines Landrecht für die Preussischen Staaten, Pt. I. tit. 21, § 395, tit. 30, § 1. Part III. right as to all the effects of the tenant, which may be $229. Argument of the United States. found on the premises at the expiration of the lease, by means of which he may retain them, as a security for all his claims derived from the contract. It was stated, by the American minister, that this decision placed the members of the corps diplomatique, accredited at the Prussian court, on the same footing with the subjects of the country, as to the right which the Prussian code confers upon the lessor of distraining the goods of the tenant, to enforce the performance of the contract. The only reason alleged to justify such an exception to the general principle of exemption was, that the right in question was constituted by the contract itself. It was not pretended that such an exception had been laid down by any writer of authority on the law of nations; and this consideration alone presented a strong objection against its validity, it being notorious that all the exceptions to the principle were carefully enumerated by the most esteemed public jurists. Not only is such an exception not confirmed by them, but it is expressly repelled by these writers. Nor could it be pretended that the practice of a single government, in a single case, was sufficient to create an exception to a principle which all nations regarded as sacred and inviolable. Doubtless, by the Prussian code, and that of most other nations, the contract of hiring gives to the proprietor the right of seizing, or detaining the goods of the tenant, for the non-payment of rent, or damages incurred by injuries done to the premises. But the question here was, not what are the rights conferred by the municipal laws of the country upon the proprietor, in respect to the tenant, who is a subject of that country; but what are those rights in respect to a foreign minister, whose dwelling is a sacred asylum; whose person and property are entirely exempt from the local jurisdiction; and who can only be compelled to perform his contracts by an appeal to his own government? Here the contract of hiring constitutes, per se, the right in question, in this sense only, that the law Chap. I. furnishes to one of the parties a special remedy to compel the other to perform its stipulations. Instead of compelling the lessor to resort to a personal action against the tenant, it gives him a lien upon the goods found on the premises. This lien may be enforced against the subjects of the country, because their goods are subject to its laws and its tribunals of justice; but it cannot be enforced against foreign ministers resident in the country, because they are subject neither to the one nor to the other. Let us suppose that the contract in question had been a bill of exchange drawn by the minister, not in the character of a merchant, but for defraying his ordinary expenses. The laws of every country, in such a case, entitle the holder of the bill to arrest the person of his debtor, in case of non-payment. It might be said, in the case supposed, that the contract itself gives the right of arresting the person, with the same reason that it was pretended, in the case in question, that it gave the right of seizing the goods of the debtor. In fact, there was no one privilege of which a public minister might not be deprived, by the same mode of reasoning which was resorted to in order to deprive him of the exemption to which he was entitled as to his personal effects. But to deprive him of this right alone, would be to deprive him of that independence and security which are indispensably necessary to enable him to fulfil the duties he owes to his own government. If a single article of his furniture may be seized, it may all be seized, and the minister, with his family, thus be deprived of the means of subsistence. If the sanctity of his dwelling may be violated for this purpose,. it may be violated for any other. If his private property may be taken upon this pretext, the property of his government, and even the archives of the legation, may be taken upon the same pretext. $230. The exemption of the goods of a public minister from Opinion of Grotius. Part III. every species of seizure for debt, is laid down by Grotius in the following manner : $231. Opinion of Bynkershoek. "As to what respects the personal effects (mobilia) of an ambassador, which are considered as belonging to his person, they are not liable to seizure, neither for the payment nor for security of a debt, either by order of a court of justice, or, as some pretend, by command of the sovereign. This, in my judgment, is the soundest opinion; for an ambassador, in order to enjoy complete security, ought to be exempt from every species of restraint, both as to his person, and as to those things which are necessary for his use. If, then, he has contracted debts, and if, which is usually the case, he has no real property (immobilia) in the country, he should be politely requested to pay, and if he refuses, resort must be had to his sovereign" (t). We here perceive that this great man himself, both as a public minister and public jurist, was decidedly of opinion that the personal property of an ambassador could not be seized, either for the payment or for security of a debt; or, according to the original textAd solutionem debiti aut pignoris causá. Bynkershoek, in his treatise De foro competenti Legatorum, cites with approbation this passage of Grotius. Bynkershoek himself, in commenting upon the declararatory edict of the States-General of the United Provinces, of 1679, exempting foreign ministers from arrest, and their effects from attachment, for debts contracted in the country, observes:- "The declaration of the States-General does not materially differ from the opinion of Grotius, which I have quoted in the preceding chapter. To which we may add, that this author states, that the effects of an ambassador cannot be seized, either for payment or for security of a debt, because they are considered as appertaining to his person. Respecting this principle, Antoine Mornac reports that, in the year 1608, Henry IV., (t) Grotius, de Jur. Bel. ac Pac. lib. i. cap. 18, § 9. |