demand for damages; but it is only in the last that there can be a demand for freight against the captors. As, then, this order of restitution is of such a kind as devolves the obligation of making the payment mentioned in the convention, on "account of captures at sea," and as it is only an order of condemnation of cargo that can devolve the obligation of the payment of freight, it is to be presumed that the convention meant to provide for the payment or restitution of the vessel or cargo only, which are due from the captors on an order of restoration, and not for the payment of freight, which is due only in the event of condemnation of the cargo, and this with some exceptions. If the condemned cargo is contraband; if the vessel is coasting from one port of the enemy to another; if she is engaged in a trade between another country and her colonies, not allowed of in a time of peace, or in any other way departs from the principles of a neutral conduct, freight is usually denied. These deviations, although they may not expose the vessel to confiscation, have been considered, by the usages of nations, as sufficient to forfeit the right of freight.

It may be difficult to reconcile the provision in the convention for the payment of debts, thus narrowed down and confined to demands for sup plies, for embargoes, and for vessels or cargoes ordered to be restored, with its more enlarged professions, and its repeated reference to the two articles. of the treaty of 1800. Yet I am inclined to think such ought to be its construction, and that the opinion of the two commissioners is correct. To extend the provision further, would, I think, be unauthorized by the articles themselves, or the rules of construction. The creditors for freight have no cause for complaint against the United States. These demands were against the French government. And if the convention has not transferred them, they still remain good as they were against their original creditors. The commissioners, who are made the judges, are of opinion that the debts for freights are not transferred. But if they were doubtful, the effect ought to be the same. They could never decide that an instrument of a doubtful, or fairly capable of a different construction, had charged the American nation with the debts of the French. The convention supposes, by its expressly referring to the French government, the right of deciding on such claims as shall be so rejected as to exempt the United States from their payment, that there may be some which they may be bound to satisfy. Among those may be the demands for freight. To charge the sum mentioned in the convention with these kinds of debts, if they are not fairly chargeable on it, would be not only injurious to the United States, but an injustice to the indisputable convention debtors, in the event of that sum being insufficient.

The foregoing opinions, although repeatedly reviewed, are submitted to your consideration with real diffidence.

RIGHTS AND IMMUNITIES OF PUBLIC MINISTERS.

The entry into a minister's garden by the agent of the owner of a slave, and there seizing and carrying away such slave to the owner, is not such a violation of the domicil of the minister as constitutes a punishable offence, under the act of Congress of April 30, 1790.

WASHINGTON, May 9, 1804.

SIR: I had the honor of receiving yours, enclosing Mr. Merry's, as his Britannic Majesty's minister to the United States. Its contents lead to a consideration of the immunities of public ministers in relation to exemp tions and protections of their dwellings, their domestics, servants, and laborers, in some new views of those subjects, and beyond any cases which, from my means of information, I can find to have occurred either in Europe or America. In such a case the discussion must depend, principally, on reasoning from general principles, and the analogy there is between it and cases which have been considered as settled. The circumstance of the person retained by Mr. Merry being a slave, and, with his mistress, a native of the country where the minister resides, forms points in the cause which make it differ materially, both in principle and in fact, from any which appear to have been sanctioned by the consent of nations. It is to be regretted that the officer or agent complained of had not, previously to the recapture of the runaway slave, advised Mr. Merry of his condition, and consulted on the means of reclaiming him. Had this requisition of decency and propriety been complied with, and which seems to have been enjoined by a respect for our own government, as well as for his, and for his official station in the country, there can be no doubt but he would have immediately dismissed from his employ the runaway servant of one of our citizens, and thereby have prevented an unpleasant discussion of unsettled principles of the laws of nations, and an apparent violation of privilege, which a religious respect for the usages of nations and the duty due to his situation obliged him to notice. Neither Great Britain nor any other nation can be more interested in "a religious observance of the laws of nations" than the United States; nor can the administration of the American government be less anxious for a principled and correct decision in the existing case than Mr. Merry. Both will be happy in the result of an examination which shall evince that no violation of official privilege or national law hath taken place.

The question is, not whether the taking of the negro from the employ of a foreign minister, without previous notice to him or the government in which he resided, was sufficiently respectful towards them; but what are the legal and national rights and obligations, in reference to all the parties concerned, respectively. The immunities of foreign ministers, their retinues, domestic servants, dwellings, goods, &c., as stated by the approved writers on the laws of nations, are recognised by the United States in their fullest extent. Present inquiries as to the matter of the things alleged to be privileged, and exempted from the ordinary procedures in our country, as connected with a foreign minister, are: was Scott Mr. Merry's domestic servant? or was he his chattel, in the sense in which the law entitled them to that exemption? or was his garden parcel of his dwelling, to that purpose? The general positions in favor of such exemp tions have their exceptions. Some are mentioned in the books; others, equally within their reasons, with no militating decision, should be equally respected. The reclaiming of a slave by his master in a summary man

ner, is believed to be such a one, as against the mere question of a privi leged service with a minister of a foreign nation; as against his rights of domicil, it may be more questionable. If a garden is not the privileged parcel of, or appurtenant to, a dwelling-house, those rights could not have been violated in the existing case. This, then, is the first question: Was Scott Mr. Merry's domestic servant in the sense of national law, and in in his service, at the time of his capture?

The mere act of doing labor in a minister's house or garden does not, of course, make the laborer such a servant. The laborer may be the domestic servant of the sovereign of the country where the minister resides, or of some minister from another foreign sovereign; in which case, in the event of such laborer's getting into the actual employment of a minister, other than the one to whom he belonged, he would be considered as the servant of his first and rightful master. He could not be the servant of both have two such masters. Nor is the lodging in a minister's house, or even his certificate, incontrovertible evidence of the right of privilege; and without thus lodging and being certified, a person may be a privileged domestic. Although a distinction exists, in some respects, between servants who are natives of the country where the minister resides, and foreign servants brought with him, it does not apply to the present ques. tion; nor is it of importance to examine into the reasons of the difference which some authors make between menial servants and such as they call domestic ones-if, indeed, they are not the same. While the right of exemption or protection may be admitted to extend to every description of ministers' servants, this right must not be confounded with the abuse of it. A person, to be privileged, must be in reality and bona fide the servant of the minister; otherwise, no exemption can be claimed by him or for him. The law protects only such. With whatever good faith or fair intention a minister may receive a person into his service, if it is not also so, and legal on the part of the person received, he cannot be protected. If Scott was the servant of Mr. Merry, he must have become so by some act or contract between them, sanctioned by some usage or principle of law. It is assumed that Scott, at the time of his engaging in this service, was the runaway slave of a Mrs. Stone, and her property; and that he was retaken by her authority. As such, with what right could a foreign minister, with or without notice, employ him, privilege him, or retain him? Could there be a service by contract-a bona fide one? The slave was the property of his mistress, had no will of his own; was incapable of disposing of his time for a moment, of creating a right, or bind. ing himself by any contract which he could make. If so, the whole matter of engagement must be considered as void; and the negro was so far from being the hired servant for a month, that he was, from his condition in society, incapable of becoming one at will. The service of a slave is secured by the government to his owner. He may be considered as in custody of the law, in the custody of his owner. This master, by law, has the same right to restrain, reclaim, and maintain the possession of him, that an officer has in reference to his prisoner; considered as property, as the goods and chattels of the owner, the reasoning is still stronger. The right of recapture, as against a mere actual possession, is universal, and always justifiable, if not attended with a breach of the peace. The law of nations respects the right of the native inhabitants of a country where a foreign minister may reside, as well as his rights and immunities

Hence it is that the act of Congress, passed April 30th, 1790, which ex pressly recognises the right of public ministers, provides, as does the British statute, in conformity to national law, that the benefits of the same shall not be extended to the debts of persons who shall have entered into the service of a public minister, and as shall have been contracted prior to such entry. If a person capable of binding himself to service by contract is liable by law to be taken from the service of a foreign minister by his creditor, to whom, previous to engaging in the service, he was indebted, a slave, surely, incapable of contracting, may be taken by a master to whom, by previous obligation, the services of his life shall have been due, and whose property the slave shall have been. So a person in a service of this government, which is incompatible with the service of a foreign minister that he may engage in, will not be protected. On these princi ples, it is believed, a soldier, a sailor, an apprentice, a child, and a wife, engaging in the service of a public minister, would not be privileged; and, forming exceptions to the general rule, could legally be retaken by their superiors, master, parent, and husband, respectively, under circumstances not endangering the peace.

A second question is, admitting Scott was not Mr. Merry's servant, so as to be protected against arrests or recapture, were the rights of the dwelling-house violated in taking him from the garden?

The house of a public minister is exempted from entry by any civil or criminal process, excepting in some very extraordinary cases. How wide this privilege of domicil spreads, has perhaps never been determined with any precision. A dwelling house, as to the purposes of protecting it and its occupants against the invasion of burglars, and the owner and his enclosed goods against the arrests of civil processes, is correctly known in law. Its limits, as legally defined in these cases, may be considered by some too narrow to comport with the rank and the respect due to the representatives of sovereigns. They may be so; but, to all necessary purposes, they are sufficiently large. All their out buildings and enclosures are protected by the laws of the country, in common with those belonging to its most distinguished inhabitants. Indeed, they are better protected; the security of privilege which attaches to a minister's personal chattels, wherever they may be, and of redress in our highest courts and most summary forms of justice, render the asylum beyond the mere dwelling-house of no import ance, or important only as a sanctuary for strangers. Would a debtor, a culprit, a runaway, a beast or a bird, be privileged and protected in the out buildings of a minister, appurtenant to his dwelling house, as they would be in the house itself? Can a garden be considered as parcel of this house, and the man who labors there as having the protection of the house? Certainly such privileges would be inconvenient to the public minister, and might be abused, to the great injury of the people ainong whom he should reside. It would create the necessity of personal appli cations whenever it should become necessary for the purposes of civil or criminal justice to enter his possessions; and, in case of his occasional absence, for the want of his consent, a fugitive must escape, or the privi lege be violated. Upon the whole, I can find no sufficient reason, either in precedents, principles, or in the official situation of a public minister, for extending the immunities of his domicil to his garden. As well might it be extended to his farm, and shield day laborers from the common duties and common justice of their country. This applies to Scott, considered

merely as a slave taken from the garden by his owner, and not as the servant of the minister. The extent of privilege contended for appears to me noways necessary for the discharge of the official functions of a pub lic minister. It makes him, to an unreasonable degree, independent; nor is it within the necessity or the policy of rendering him so. This independence has limits; he cannot do what he pleases; must conform to the laws of the country of his residence; and if, forgetful of duty, he should violate its laws and its customs, to the injury of others, his privilege consists more in the withholding the ordinary remedies from the injured, than in those positive co-operations of government against him which may seem to sanction the wrong after the sufferer has corrected it by doing himself justice.

If the principles which have been stated are correct, they exclude the idea of a resort to any court in the case which has been submitted. Mr. Merry's statement of the seizure having been made by an officer of justice, it is believed, is not correct. In this he must have been misinformed. As I understand it, the slave was taken by the agent of his owner, without any process or direction from a magistrate, as has been usual. And of course the case is not provided for, even on the supposition that Scott was the domestic servant of the minister, by the act of Congress. Notwithstanding, if this was the man's real character, and if the retaking him in the garden was seizing him in the minister's privileged dwelling, in the sense of law, there has been an offence against the rights of nations; and the offenders may be prosecuted by the minister, either in the district or the Supreme Court of the United States, or by an indictment in the district court. But, I repeat it: no court can readily avail itself of a precedent, or a principle, which will punish the owner of a slave of propertyfor taking it, in a peaceable manner, from the garden of a foreign minis ter. I have formed no opinion as to what might be thought expedient, under existing circumstances, if you should have doubts of the propriety of the above stated positions, or Mr. Merry be dissatisfied with their application. My views have been confined to the effects of what has been considered as strict law. Had the man been seized and taken away by an officer of the general government, who was removable at its pleasure, it might be fit to dismiss him for his neglect of the rules of decency and propriety, in proceeding without first applying to his government, or the minister, for direction or consent. But a private person cannot be thus subjected to these rules, or thus punished for a violation of them. Many and variant opinions may be, and probably will be, formed on this subject, should it become the topic of popular or legal discussion. The one which I have the honor to submit to your consideration may be adjudged erroneous; but it is embraced with confidence, and is the result of my best reflections.

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I have the honor, &c., &c.,

LEVI LINCOLN.

To the SECRETARY OF STATE.