him, he remains still subject to its jurisdiction. But it may be questionable whether his reception as a minister from another power, without any express reservation as to his previous allegiance, ought not to be considered as a renunciation of this claim, since such reception implies a tacit convention between the two States that he shall be entirely exempt from the local jurisdiction (s).

3. If he is at the same time in the service of the power who receives him as a minister, as sometimes happens among the German courts, he continues still subject to the local jurisdiction (t).

4. In case of offences committed by public ministers affecting the existence and safety of the State where they reside, if the danger is urgent, their persons and papers may be seized, and they may be sent out of the country. In all other cases, it appears to be the established usage of nations to request their recall by their own sovereign, which, if unreasonably refused by him, would unquestionably authorize the offended State to send away the offender. There may be other cases which might, under circumstances of sufficient aggravation, warrant the State thus offended in proceeding against an ambassador as a public enemy, or in inflicting punishment upon his person if justice should be refused by his own sovereign. But the circumstances which would authorize such a proceeding are hardly capable of precise definition, nor can any general rule be collected from the examples to be found in the history of nations where public ministers have thrown off their public character and plotted against the safety of the State to which they were accredited. These anomalous exceptions to the general rule resolve themselves into the paramount right of self-preservation and necessity. Grotius distinguishes here between what may be done in the way of self-defence and what may be done in the way of punishment. Though the law of nations will not allow an ambassador's life to be taken away as a punishment for a crime after it has been committed, yet this law does not oblige the State to suffer him to use violence without endeavouring to resist it (u).

(s) Bynkershoek, cap. 11. Vattel, liv. iv. ch. 8 § 112.

(t) Martens, Manuel Diplomatique, ch. 3, § 23.

(u) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 4. Rutherforth's Inst.

§ 225 d. Instances of the expulsion of ambassadors.

§ 226. Personal

exemption

Several instances are to be found in history of ambassadors being seized and sent out of the country. The Bishop of Ross, ambassador of Mary Queen of Scots, was imprisoned and then banished from England, for conspiring against the sovereign, while the Duke of Norfolk and other conspirators were tried and executed (x). In 1584, De Mendoza, the Spanish ambassador in England, was ordered to quit the realm for conspiring to introduce foreign troops and dethrone Queen Elizabeth (y). In 1654, De Bass, the French Minister, was ordered to depart the country in twenty-four hours, on a charge of conspiracy against the life of Cromwell (2). In 1717, Gyllenborg, the Swedish ambassador, contrived a plot to dethrone George I. He was arrested, his cabinet broken open and searched, and his papers seized. Sweden arrested the British minister at Stockholm by way of reprisal. The Regent of France interposed his good offices, and the two ambassadors were shortly afterwards exchanged (a). The arrest of Gyllenborg was necessary as a measure of self defence, but on no principle of international law can the arrest of the British minister by Sweden be made justifiable. For similar reasons Cellamare, Spanish ambassador in France, was, in 1718, arrested, his papers seized, and himself conducted to the frontier by a military escort (b). So recently as 1848 Sir H. Bulwer, the British ambassador in Spain, had his passports returned, and was requested to leave Spanish territory by the government. Certain disturbances had taken place in various parts of Spain, and the government persuaded themselves that Sir H. Bulwer had lent his assistance to the disaffected. This proceeding caused diplomatic relations to be suspended between the two countries during two years, and the dispute was only settled by the mediation of the King of the Belgians (c).

If it appears that the ambassador has not fully entered upon his functions, either by his credentials not having been presented, or by his not having been fully invested with the character by his own country, he cannot then claim the inviolability attached to regular ambassadors (d).

The wife and family, servants and suite, of the minister, participate in the inviolability attached to his public character. extending The secretaries of embassy and legation are especially entitled, family, as official persons, to the privileges of the diplomatic corps, in secretaries, respect to their exemption from the local jurisdiction (e).

to his

servants, &c.

vol. ii. b. ii. ch. 9, § 20. Bynkershoek, de Foro Competent. Legat. cap. 17, 18, 19. Vattel, liv. iv. ch. 7, §§ 94-102. Martens, Précis, &c., liv. vii. ch. 5, § 218. Ward's Hist. of the Law of Nations, vol. ii. ch. 17, pp. 291334. Wheaton, Hist. of Law of Nations, pp. 250-254.

(x) [Froude, Hist. of England, vol. x. p. 222, et seq. (ed. 1866)].

(y) [Ibid., vol. xi. p. 623].

() [Phillimore, vol. ii. § 164].

(a) [Hist. of England, Mahon, vol. i. p. 388, et seq.].

(b) [Ibid., vol. i. p. 484].

(e) [Calvo, Droit International, vol. i. § 523].

(d) [See case of Marquis de la Chetardie. Calvo, Droit International, vol. i.

§ 517. Case of Da Sa. 5 Howell, State Trials, 460].

(e) Grotius, lib. ii. cap. 18, § 8. Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 120--123. Martens, Précis, &c., liv. vii. ch. 5, § 219; ch. 9, §§ 234

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 (ƒ).

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 any other privilege to which he is entitled by the public law (g).

house and

property.

The personal effects or movables belonging to the minister, § 227. Exemption within the territory of the State where he resides, are entirely of the exempt from the local jurisdiction; so, also, of his dwelling- minister's 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 (h).

The question, how far the personal effects of a public minister are liable to be seized or detained, in order to

-237. Fœlix, § 184. [Taylor v. Best, 14 C. B. 487; Dupont v. Pichon, 4 Dallas (2nd ed.), 300.]

(f) Blackstone's Commentaries, vol. i. ch. 7. LL. of the United States, vol. i. ch. 9, § 26.

(g) 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, Répertoire, tit. Ministre Publique, sect. vi.

(h) Vattel, liv. iv. ch. 8, §§ 113-115. Martens, Précis, &c., liv. vii. ch. 8, § 217. Klüber, Pt. II. tit. 2, ch. 3, § 210. Merlin, sect. v. § iv. No. 6.

$ 228. Discussion between

can and

Prussian

govern

the Ameri- enforce the performance on his part of the contract of hiring of a dwelling-house, inhabited by him, has been recently discussed between the American and Prussian governments, in a case, the statement of which may serve to illustrate the the exemp- subject we are treating.

ments, re

specting

tion of

public ministers

from the

The Prussian Civil Code declares, that "the lessor is entitled, as a security for the rent and other demands arising local juris- 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."

diction.

§ 229. Argument of the

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 UnterpfandsRecht" (i).

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 right as to all the effects of the tenant, which may be 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

(i) Allgemeines Landrecht für die Preussischen Staaten, Pt. I. tit. 21, § 395, tit. 30, § 1.

States,

the Prussian court, on the same footing with the subjects of United 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 nonpayment 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 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

U