king of France, pronounced against the legality of a seizure made at Paris, for the non-payment of rent, of the goods of the Venetian ambassador. This decision has been since constantly observed in every country.

"But this may be said to be carrying the privilege too far, since the seizure of the effects of an ambassador is not so much on account of the person as to a right in the thing thus seized; a right of which the proprietor cannot be deprived by the ambassador.”

This author had here anticipated the argument of the Prussian government, to which he replies as follows:"But far from unduly pressing the principle, by the effects which are spoken of in the declaration of 1679, I understood only personal effects, that is to say, those which serve for the use of ambassadors (id est utensilia), as I shall point out in that part of this treatise where it will be necessary to speak of their property. It is of these effects that I affirm, that they are not, and never have been, according to the law of nations, considered as in the nature of a pledge, to secure the payment of what is due from an ambassador. I even maintain that it is not lawful to seize them, either in order to institute a suit or to execute a judicial sentence" (u).

In his sixteenth chapter, Bynkershoek explains what he means by those effects which serve for the use of ambassadors, that is, utensilia. In this chapter he admits that the property, both personal and real, of a public minister, may, in some cases, be attached, to compel him to defend a suit commenced by those who might have a claim against him:-"I say the property (bona) in general, whether personal or real, unless they appertain to the person of the ambassador, and he possess them as ambassador; in a word, all those things without which he may conveniently perform the functions of his office. I except, then, from the number of those goods of the ambassador which may be thus attached, corn, wine, oil, every kind of provisions, furniture, gold, toilette orna

(u) Bynkershoek, de For. Legat., cap. ix. §§ 9, 10.

Chap. I.

Part III. ments, perfumes, drugs, clothing, carpets and tapestry, coaches, horses, mules, and all other things which may

§ 232. Vattel.

be comprised in the terms of the Roman law, legati instructi et cum instrumento."

In the following section he explains his doctrine, that certain effects of a public minister may be attached, in order to institute against him a suit, and to compel him to defend it, by showing that it is meant to be limited to the single case where the minister assumes on himself the character of a merchant, in which case the goods possessed by him, as such, may be attached for this purpose. "All these things," says he, "ought not, according to my view, to be excepted, unless they are destined for the use of the ambassador and his household. For it is not the same with corn, wine, and oil, for example, which an ambassador may have in his warehouses, for the purposes of trade; nor with horses and mules, which he may keep for the purpose of breeding and selling."

Vattel is equally explicit as to the extent of the privilege in question. The only exception he admits to the general rule is that of a public minister who engages in trade, in which case his personal goods may be attached, to compel him to answer to a suit. To this exception he annexes two conditions, the latter of which was deemed decisive of the present question.

"Let us subjoin two explanations of what has just been said: 1. In case of doubt, the respect which is due to the character of a public minister requires the most favourable interpretation for the benefit of that character. I mean to say that where there is reason to doubt whether an article is really destined to the use of the minister and his household, or whether it belongs to his stock in trade, the question must be determined in favour of the minister; otherwise there might be danger of violating his privilege. 2. When I say that the effects of a minister, which have no connection with his character, and especially those belonging to his stock in trade, may be attached, this must be under

stood on the supposition that the attachment is not Chap. I. grounded on any matter relating to his concerns as minister; as, for instance, for supplies furnished to his household, for the rent of his hotel, &c." (x).

In reply to these arguments and authorities it was urged, on behalf of the Prussian government, that if, in the present case, any Prussian authority had pretended to exercise a right of jurisdiction, either over the person of the minister or his property, the solution of the question would doubtless appertain to the law of nations, and it must be determined according to the precepts of that law. But the only question in the present case could be, what are the legal rights established by the contract of hiring, between the proprietor and the tenant. To determine this question, there could be no other rule than the civil law of the country where the contract was made, and where it was to be executed, that is, in the present case, the Civil Code of Prussia (y) The controversy having been terminated, as between the parties, by the proprietor of the house restoring the effects which had been detained, on the payment of a reasonable compensation for the injury done to the premises, the Prussian government proposed to submit to the American government the following question:

§ 233.

Reply of

Prussia.

§ 234. Settlement of the question.

$235.

"If a foreign diplomatic agent, accredited near the Question government of the United States, enters, of his own by Prussia. proposed accord, and in the prescribed forms, into a contract with an American citizen; and if, under such contract, the laws of the country give to such citizen, in a given case, a real right (droit réel) over personal property (biens mobiliers) belonging to such agent: does the American government assume the right of depriving the American citizen of his real right, at the simple instance of the diplomatic agent relying upon his extra-territoriality ?” This question was answered on the part of the Ame- Reply of rican government, by assuming the instance contem- United States.

(x) Vattel, Droit des Gens, liv. iv. ch. 8, § 114. Mr. Wheaton to Baron de Werther. Note verbale, 15th May,

1839.

(y) Baron de Werther to Mr. Wheaton. Note verbale, 19th May, 1839.

§ 236.

Part III. plated by the Prussian government to be that of an implied contract, growing out of the relation of landlord and tenant, by which the former had secured to him, under the municipal laws of the country, a tacit hypothek or lien upon the furniture of the latter. It was taken for granted that there was no express hypothecation, still less any giving in pledge, which implies a transfer of possession by way of security for a debt.

This distinction was deemed important. There could be no doubt that, in this last case, the pawnee has a complete right, a real right, as it was called by the Prussian government, or jus in re, not in the least affected by diplomatic immunities. And accordingly, this was the course pointed out to creditors by Bynkershoek, who denies them all other means of satisfying themselves out of the minister's personal goods. Of course, these words were used with the proper restriction, which confines them to the apparatus legationis, or such as pass under the description of legatus instructus et cum instrumento.

With these distinctions and qualifications, the American government had no doubt that the view taken by its minister of this question of privilege was entirely correct. The sense of that government had been clearly expressed in the act of Congress, 1790, which includes the very case of distress for rent, among other legal remedies denied to the creditors of a foreign minister.

That this exemption was not peculiar to the statute law of this country, but was strictly juris gentium, appeared from the precedents mentioned by the great public jurist just cited in his treatise De Foro Legatorum, the great canon of this branch of public law (2).

Besides this conclusive authority upon the very point in question, Bynkershoek states the principle (out of Grotius) that the personal goods of a foreign minister cannot be taken by way of distress or pledge, and gives

(z) De For. Legat. cap. ix. Compare the catalogue of the personal goods so privileged, id. cap. xvi.

it the sanction of his most emphatic assent (a). Indeed Chap. I. the whole scope of the treatise referred to went to establish this very doctrine.

But to consider it on principle. Three several questions would arise upon the inquiry propounded by the Prussian government. 1st. Is the landlord's right, in such a case, a real right properly so called? 2nd. Admitting it to be so, can it be asserted, consistently with Prussian municipal law, against a foreign minister who has not voluntarily parted with his possession, on an express contract, to secure payment of rent or damages? 3rd. Supposing the municipal law of Prussia to contemplate the case of a foreign minister, can that law be enforced, in such a case, consistently with the law of nations?

There was, in all systems of jurisprudence, great difficulty in settling the legal category of the landlord's right. Pledge, although not property, is certainly a real right; but a mere lien or hypothek, in which there is no transfer of possession, is not a pledge. In England, and in the United States, the right of landlords was originally a mere lien, reducible by distress into a right of pledge. In Scotland the same right is sometimes called a right of property, and sometimes a mere hypothek, springing out of a tacit contract. Without pretending to determine precisely whether its origin ought to be referred to the one or the other principle (neither perhaps being fully adequate to account for all its effects), it is considered by the best writers as a right of hypothek, convertible by a certain legal process into a real right of pledge.

If this be a proper view of the subject, there was surely an end of the question: for the process of conversion is as much 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

(a) Bynkershoek, de For. Legat. cap. viii. Grotius, de Jur. Bel. ac Pac., lib. ii. cap. 18, § 19.

§ 237.

§ 238.