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. (a)

controversy.

§ 234. The controversy having been terminated, as Adjustbetween the parties, by the proprietor of the house restor- ment of the ing 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:

Proposal of the Prus

States gov

§ 235. "If a foreign diplomatic agent, accredited near the government of the United States, enters, of his own sian to the accord, and in the prescribed forms, into a contract with United an American citizen; and if, under such contract, the ernment. 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?"

States gov

§ 236. This question was answered on the part of the Reply of American government, by assuming the instance contem- the United plated by the Prussian government to be that of an im- ernment. plied 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

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

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. (a)

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

The sub- § 237. But to consider it on principle. Three several ject consid- questions would arise upon the inquiry propounded by principle. the Prussian government. 1st. Is the landlord's right,

ered on

(a) "Qui hæc (bona) considerantur ut personæ accessiones. Et secundum hæc Mornacius refert ad L. 2, § 3, de Judic. Regi Galliarum placuisse, anno 1608, male pro locario Parisiis Venêtæ reipublicæ legati mobilia fuisse retenta; et constanter ita usu est servatum deinceps ubique gentium. Sed forte dices; id nimium esse, quia ea mobilium detentio non tam fit ex causâ personæ, quàm jure in re, quod locatori competit in invectis et illatis, quodque jus, lege quæsitum, legatis auferre non possit. Sed tantum abest, ut nimium dicamus, ut vel bona, quorum meminit d. Edictum anni 1679, non aliter interpretemur, quàm bona mobilia, id est, utensilia, &c. Hæc utensilia nego, ex jure gentium, pignori esse, vel unquam fuisse, quin nec capi posse, vel ad ordiendum judicium, vel ad servandum, quod nobis debetur, vel ad exsequendam rem judicatam. Et facilè assentior Grotio, si de utensilibus accipias, quæ ipse dixit, ea nempe pignoris causâ capi non posse, nec per judiciorum ordinem, nec manu regiâ, explosâ sic distinctione, quæ aliis olim, sed sine ratione, placuerat." De Foro Legat. cap. ix.

Compare the catalogue of the personal goods so privileged, id. cap. xvi.

(b) "Bona quoque legati mobilia, et quæ proinde habentur personæ accessio, pignoris causâ, aut ad solutionem debiti, capi non posse, nec per judicorum ordinem, nec quod quidam volunt, manu regiâ, verius est: nam omnis coactio a legato abesse debet, tam quæ res ei necessarias, quàm quæ personam tangit, quo plena ei sit securitas." Bynkershoek, de Foro Legatorum, cap. viii. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 19.

in such a case, a real right properly so called? 2d. 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? 3d. 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?

landlord a

§ 238. There was, in all systems of jurisprudence, Was the great difficulty in settling the legal category of the land- right of the lord's right. Pledge, although not property, is certainly real right, or a real right; but a mere lien or hypothek, in which there jus in re? 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 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. (a)

It might, therefore, be considered as doubtful, a priori, whether, by the Prussian code, the right of the landlord is a real right, to (a) Story's Conflict of Laws, §§ 423-456, 2d edit.

the effect, at least, of putting it on the footing of property transferred by contract, for that was the argument.

If a real

be enforced

under the

Prussian

rogation of

§ 239. But suppose this to be the usual effect, by right, can it operation of law, of the contract between landlord and tenant, does it hold as against one not subject to tlie law; law, in de- not amenable to the jurisdiction; not, in legal contempladiplomatic tion, residing within the country of the contract? immunity? 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 contract 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 extra-territoriality of the public minister. He that enters into a contract with another knows, or ought to know, his condition. So says Ulpian, (1. 19, pref. D. de R. S.,) 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. § 240. But even supposing it did authorize the pretenbe enforced sion, it ought no more to derogate from the established by Prussian law of nations in this case, than in that of personal

If it can

law, is not

that in der arrest. The authorities cited above seemed to the Ameri

ogation of

tium?

the jus gen- can 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

sian gov

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. (a) § 241. The Prussian government declared, that its Rejoinder opinion upon the point in controversy remained un- of the Pruschanged by the above reasoning, and the authorities ernment. 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 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 extra-territoriality 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 extra-territoriality regards only the relations 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 extra-territoriality; it is only (a) Mr. Legaré's Despatch to Mr. Wheaton, 9th June, 1813.