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 of the country. 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 extra-territoriality. 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. (a) 180 (a) Baron de Bulow's Letter to Mr. Wheaton, 5th July, 1844. See an able review of the above controversy by M. Fölix, the learned editor of the Revue du Droit Français et Étranger, tom. ii. p. 31. [13) It is a general principle in domestic tribunals, that, if the property in question and taxes. § 242. The person and personal effects of the minister Duties are not liable to taxation. He is exempt from the payment of duties on the importation of articles for his own personal use and that of his family. But this latter exemption is, at present, by the usage of most nations, limited to a fixed sum during the continuance of the mission. He is liable to the payment of tolls and 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.131 And though, in general, his house is is an instrumentality of sovereignty, the court will not enforce the lien by compulsory process, although the case be one in which the law would create a lien on property as between citizens, as in case of salvage or collision. (Briggs v. The Light-ships, Allen's Rep. xi. Opinion of Judge Lowell, in The Siren, United States District Court, Massachusetts, 1866.) There is the stronger reason for this exemption in a case between an ambassador and a foreign tribunal. If, in the case between Mr. Wheaton and the Prussian Government, the landlord claimed only a lien or tacit hypothecation by act of law, to enforce which he would be obliged to invoke the aid of a court, and the property was of a kind which would be exempt from seizure by direct process, it should have been secured to the ambassador; and the case seems to have been of that nature. In the United States, the personal property of a diplomatic officer cannot be seized by judicial process, for any purpose (U. S. Laws, i. 118); nor can an inn-holder retain his wearing apparel or personal effects, to enforce an admitted lien. (Opinions of Att. Gen. v. 70.) In the case of an express pledge, by which the owner surrenders possession, and creates a qualified property, or jus in re, in the pledgee, he must be the actor himself, if he would regain possession. In that case, the pledgee does not need a compulsory process of a court. If Mr. Wheaton had pledged the articles to the landlord by a contract, he might be considered as having waived his official privilege in respect to them. But if the landlord had only a lien by force of general law, and that lien was only a right, to enforce which he was obliged to invoke the aid of a court and use its process, the question was not an abstract one of civil law on the existence of the lien, but a question of public law, whether compulsory process shall be permitted by a State against property in that predicament, whatever be the nature of the claim. In the Light-ship cases, above referred to, the builder had a lien on the vessels by general law, which attached before they became the property of the government; but it was held that the judicial tribunals could not enforce the lien against property in that predicament; that is, when held by the government as an instrumentality for the exercise of its sovereign powers. The remedy of the builders was an appeal to the government itself. It would seem, that, if certain effects of an ambassador are entitled to immunity on considerations of international convenience, they should be equally so when seized to enforce a tacit lien or hypothecation, as in any other case where there has been no express waiver of the immunity by a transfer of possession in the way of pledge or otherwise.] - D. [181 Dr. Twiss (Law of Nations, i. § 203) states the present rule and practice somewhat differently: "A foreign minister is privileged from being called upon to contribute personally to the general taxes of a country; that is, to such taxes as are levied by the government, and which are available for the general purposes of the State, in which the ambassador is not interested. But a foreign minister is not 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. (a) 182 Messengers and couriers. § 243. The practice of nations has also extended the inviolability 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. (a) 133 exempt from the payment of local dues which are raised for purposes of local administration, and which are expended on local objects, from which he himself, in common with his neighbors, derives immediate benefit. Thus, he is liable to pay local rates assessed upon his hotel or its site for sewerage, lighting, watching, and similar objects. This liability has sometimes been disputed; and Klüber holds it to be doubtful whether such rates can be rightfully exacted, if the ambassador is unwilling to pay them. Wheaton considers the ambassador's hotel to be subject to taxation, in common with other real property of the country. A practical difficulty will always be found in levying the rates, as the person and property of the ambassador are exempt from the jurisdiction of the civil tribunals, which must be appealed to in order to enforce payment, in the last resort."]-D. (a) 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. [182 See note 129, ante, on Diplomatic Immunity.]—D. (a) Vattel, liv. iv. ch. 9, § 123. Martens, Précis, &c., liv. vii. ch. 13, § 250. The Caroline, Robinson's Adm. Rep. vi. 466. [133 See note, infrà, on Carrying Hostile Persons or Papers.]-D. Public passing another accredited. § 244. The opinion of public jurists appears to be somewhat divided upon the question of the respect and minister protection to which a public minister is entitled, in pass-through the ing through the territories of a State other than that to territory of which he is accredited. The inviolability of ambassadors, State than under the law of nations, is understood by Grotius and which he is Bynkershoek, among others, as binding only on those to whom they are sent, and by whom they are received. (a) Wicquefort, in particular, who has ever been considered as the stoutest champion of ambassadorial rights, asserts that the assassination of the ministers of the French king, Francis I., in the territories of the Emperor Charles V., though an atrocious murder, was no breach of the law of nations, as to the privileges of ambassadors. It might be regarded as a violation of the right of innocent passage, aggravated by the circumstance of the dignified character of the persons on whom the crime was committed,- and might even be considered a just cause of war against the emperor, without involving the question of protection in the character of ambassador, which arises exclusively from a legal presumption which can only exist between the sovereigns from and to whom he is sent. (b) this poin § 245. Vattel, on the other hand, states that passports Vattel's are necessary to an ambassador, in passing through differ- opinion on ent territories on his way to his destined post, in order to make known his public character. It is true that the sovereign to whom he is sent is more especially bound to cause to be respected the rights attached to that character; but he is not the less entitled to be treated, in the territory of a third power, with the respect due to the envoy of a friendly sovereign. He is, above all, entitled to enjoy complete personal security; to injure and insult him would be to injure and insult his sovereign and entire nation; to arrest him, or commit any other act of violence against his person, would be to infringe the rights of legation which belong to every sovereign. Francis I. was therefore fully justified in complaining of the assassination of his ambassadors, and, as Charles V. refused satisfaction, in declaring war against him. "If an innocent passage, with complete security, is due to a private indi (a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 5. Bynkershoek, de Foro Legatorum, cap. ix. § 7. (b) Wicquefort, de l'Ambassadeur, liv. i. § 29, pp. 433-439. vidual, with still more reason is it due to the public minister of a sovereign, who is executing the orders of his master, and travelling on the business of his nation. I say an innocent passage; for if the journey of the minister is liable to just suspicion, as to its motives and objects; if the sovereign, through whose territories he is about to pass, has reason to apprehend that he may abuse the liberty of entering them for sinister purposes, he may refuse the passage. But he cannot maltreat him, or suffer others to maltreat him. If he has not sufficient reasons for refusing the passage, he may take such precautions as are necessary to prevent the privilege being abused by the minister." (a) He afterwards limits this right of passage to the ambassadors of sovereigns with whom the State through which the attempt to pass is, at the time, in the relations of peace and amity; and adduces, in support of this limitation of the right, the case of Marshal Belle-Isle, French ambassador at the Prussian court, in 1744, (France and Great Britain being then at war,) who, in attempting to pass through Hanover, was arrested and carried off a prisoner to England. (b) Bynkershoek's opinion on § 246. Bynkershoek maintains that ambassadors, passing through the territories of another State than that to this point. which they are accredited, are amenable to the local jurisdiction, both civil and criminal, in the same manner with other aliens, who owe a temporary allegiance to the State. He interprets the edict of the States-General, of 1679, exempting from arrest "the persons, domestics, and effects of ambassadors, hier te lande komende, residerende of passerende," as extending only to those public ministers actually accredited to their High Mightinesses. He considers the last-mentioned term, passerende, as referring not to those who, coming from abroad, merely pass through the territories of the State in order to proceed to another country, but to those only who are about to leave the State where they have been resident as ministers accredited to its government. (a) Merlin's opinion on this point. § 247. This appears to Merlin to be a forced interpretation. "The word passer in French, and passerende in Dutch," says he, says he, "was never used to designate a person returning from a given place; but is applicable to one who, having (a) Vattel, Droit des Gens, liv. iv. ch. 7, §§ 84, 85. (b) Ch. de Martens, Causes Célèbres du Droit des Gens, tom. i. p. 310. (a) Bynkershoek, de Foro Legatorum, cap. ix. Wheaton's Hist. Law of Nations, 243. |