by hypothecation] upon the goods brought by the tenant upon the premises, and there remaining at the expiration of the lease" (y). 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. The American minister maintained, however, that such a decision was contrary to the principle of diplomatic immunity, inasmuch as it placed diplomatic agents on the same footing with the subjects of the country. The publicists who have referred to this case appear to support the arguments of the United States minister (z).

The person and personal effects of the minister 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 house 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 (a). And though, in general, his house is inviolable, and cannot be entered, without his permission, by police, customhouse, 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 (b).

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 visit and search,

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

(*) Cf. Moore, Digest, vol. iv. $ 663. For a review of the controversy, see Felix, Revue du droit français et étranger, ii. 31.

(a) Macartney v. Garbutt (1890), 24 Q. B. D. 368.

(b) Vattel, liv. iv. ch. 9, §§ 117, 118. Martens, Précis, liv. vii. ch. 5, $ 220. Manuel Diplomatique, ch. 3, $$ 30, 31. Merlin, Répertoire, tit. Ministre Publique, sect. v. § 5, Nos. 2,

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 (c).

minister

which he is

The opinion of public jurists appears to be somewhat divided Public upon the question of the respect and protection to which a public passing minister is entitled, in passing through the territories of a State through the other than that to which he is accredited. The inviolability of another State territory of ambassadors, under the law of nations, is understood by Grotius than that to and Bynkershoek, among others, as binding only on those to whom accredited. they are sent, and by whom they are received (d). 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 (e).

Vattel, on the other hand, states that passports are necessary Opinion of to an ambassador, in passing through different territories on his Vattel. 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

(c) Vattel, liv. iv. ch. 9, § 123. Martens, Précis, liv. vii. ch. 13, § 250. The Caroline (1807), 6 C. Rob. 466.

(d) Grotius, De Jur. Bel. ac Pac.

lib. ii. cap. 18, § 5. Bynkershoek, De
Foro Comp. Legat. cap. ix. § 7.

(e) Wicquefort, De l'Ambassadeur,
liv. i. § 29, pp. 433-439.

Of Bynkershoek.

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 individual, 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" (ƒ).

He afterwards limits this right of passage to the ambassadors of sovereigns, with whom the State, through which the attempt to pass is made, is at the time in the relation 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 (g).

Bynkershoek maintains that ambassadors, passing through the territories of another State than that to 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 lastmentioned term 'passerende' as referring not to those who,

() Vattel, Droit des Gens, liv. iv. ch. 7, §§ 84, 85.

(g) Ch. de Martens, Causes Célèbres du Droit des Gens, tome i. p. 310.

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 (h).

This appears to Merlin to be a forced interpretation. "The Of Merlin. word 'passer' in French, like 'passerende' in Dutch," says he, "was never used to designate a person returning from a given place; but is applicable to one who, having arrived at that place, does not stop there, but proceeds on to another. We must, therefore, conclude that the law in question attributes to ambassadors, who merely pass through the United Provinces, the same independence with those who are there resident. If it be objected, as Bynkershoek does object, that the States-General (that is, the authors of this very law) caused to be arrested, in 1717, the Baron de Gortz, ambassador of Sweden at the court of London, at the request of George I., against the security of whose crown he had been plotting, the answer to this example is furnished by Bynkershoek himself. 'The only reason,' says he, 'alleged by the States-General for this proceeding was, that this ambassador had not presented to them his letters of credence.' This reason (continues Merlin) is not the less conclusive for being the only one alleged by the States-General. When it is said that an ambassador is entitled, in the territories through which he merely passes, to the independence belonging to his public character, it must be understood with this qualification, that he travels as an ambassador; that is to say, after having caused himself to be announced as such, and having obtained permission to pass in that character. This permission places the sovereign, by whom it has been granted, under the same obligation as if the public minister had been accredited to and received by him. Without this permission, the ambassador must be considered as an ordinary. traveller, and there is nothing to prevent his being arrested for the same causes which would justify the arrest of a private individual" (i).

To these observations of the learned and accurate Merlin it may be added, that the inviolability of a public minister in this case depends upon the same principle with that of his sovereign, coming into the territory of a friendly State by the permission, express or implied, of the local Government. Both are equally entitled to the protection of that Government, against every act

(h) Bynkershoek, De For. Legat. cap. ix. Wheaton, Hist. Law of Nations, p. 243.

(i) Merlin, Répertoire, tit. Ministre Publique, sect. v. § 3, Nos. 4, 12.

Freedom of religious worship.

Consuls not

peculiar

privileges of

public ministers.

of violence and every species of restraint, inconsistent with their sacred character. We have used the term 'permission, express or implied'; because a public minister accredited to one country who enters the territory of another, making known his official character in the usual manner, is as much entitled to avail himself of the permission which is implied from the absence of any prohibition, as would be the sovereign himself in a similar case (k). A minister resident in a foreign country is entitled to the privilege of religious worship in his own private chapel, according to the peculiar forms of his national faith, although it may not be generally tolerated by the laws of the State where he resides. Even since the epoch of the Reformation, this privilege has been secured, by convention or usage, between the Catholic and Protestant nations of Europe. It is also enjoyed by the public ministers and consuls from the Christian Powers in Mohammedan and Oriental countries. The increasing spirit of religious freedom and liberality has gradually extended this privilege to the establishment, in most countries, of public chapels, attached to the different foreign embassies, in which not only foreigners of the same nation, but even natives of the country of the same religion, are allowed the free exercise of their peculiar worship. This does not, in general, extend to public processions, the use of bells, or other external rites celebrated beyond the walls of the chapel (1).

Consuls are not public ministers. Whatever protection they entitled to the may be entitled to in the discharge of their official duties, and whatever special privileges may be conferred upon them by the local laws and usages, or by international compact, they are not entitled, by the general laws of nations, to the peculiar immunities of ambassadors. No State is bound to permit the residence of foreign consuls, unless it has stipulated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to

(k) Vide supra, Pt. ii. ch. 2, p. 151. Later jurists and publicists are also divided as to whether ambassadors enjoy inviolability in third States. On the whole the main current of opinion is against absolute inviolability (cf. Annuaire de l'Institut de droit international, vol. xiv. p. 239), and in favour of limited immunity, i.e., conditional on the ambassador's good behaviour and innocent passage through the territory of the third State, when it is at peace with each of the other two States concerned. Cf. the Ameri

can case, Wilson vI Blanco (1889), 56 N. Y. Sup. Court, 582, and the English case, New Chile Gold Mining Co. v. Blanco (1888); in both cases the principle of immunity against civil suits was recognised in the case of a Venezuelan minister to the French Republic.

() Vattel, liv. iv. ch. 7, § 104. Martens, Précis, liv. vii. ch. 6, §§ 222 -226. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. ii. ch. 3, §§ 215, 216.