Hence it is that the act of Congress, passed April 30th, 1790, which expressly 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 principles, 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 importance, 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 applications 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 privilege 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 public 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 minister. 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.

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

To the SECRETARY OF STATE.

LEVI LINCOLN.

PAY OF SEAMEN DISCHARGED IN A FOREIGN COUNTRY.

The master of a vessel belonging to the United States, sold in a foreign country in consequence of her being stranded, is not, within the meaning of the legislature, liable for three months' unearned pay to the seamen under the act of 1803; for neither justice, policy, nor equity, requires an appropriation of the proceeds of a sale for the return of a crew, when the sale was the result of a disastrous providence.

WASHINGTON, December 31, 1804.

SIR: I have the honor to submit to your consideration a summary result of my examination of the 3d section of the law of February 28, 1803, respecting the three months' pay of discharged seamen in a foreign country, which you requested. This section, in substance, requires of the master of a vessel belonging to a citizen of the United States, on a sale of such vessel and a discharge of her company in a foreign country, or on the discharge of our citizen seamen there by their own consent, a payment of three months' wages, beyond what may be due at the time of such discharge, for each person so discharged-two-thirds of which to be paid to him on his engagement on board of any vessel to return to the United States; the other third to be applied for returning other citizen seamen from foreign ports to the United States, or supporting them there: which third is to be accounted for with the treasury every six months, by the person receiving the same. The words of this provision are general enough, and, in a literal construction, sufficiently broad to embrace the "crew of a vessel sold in consequence of her being stranded." But the question is, whether such a construction conforms to the meaning of the legislature, explained by principles of law and the subject-matter? If there have been any legal decisions in point, I am ignorant of them; and can, therefore, only decide on principles.

The law to which this is supplementary, provided, in its 7th and 8th sections, for the return or support of American seamen in five events: in case of shipwreck, sickness, captivity, and, in case of a discharge without consent, or a contract therefor, on a sale of the vessel. In this last case, if the master refuses to make reasonable provision for the return of such discharged seamen, the vessel might be arrested until there should be a compliance. In this act, the legislature considered the sailors who were to be provided for on account of a wreck, as distinct from those who, on account of the sale of their ship, might become destitute of the means of returning. There being, then, such a legislative construction in this act itself, as to confine its provisions for the return of the crew, in consequence of a sale of the ship, to an ordinary voluntary sale, and to exclude a wreck sale, or a sale of necessity, it is but reasonable to consider the same terms, when copied into the supplementary law, (as they rarely are copied, so far as they respect the description of the case intended to be provided for,) as having or being used in the same sense as they were in the original law, and, of course, as applicable only to sales in the ordinary course of merchandise. Neither justice, policy, nor equity, seems to require an appropriation of the proceeds of a sale for the support or return of a crew, which sale has been a losing one-the result of a ruined voyage, and necessitated by a disastrous providence. It is difficult to believe that the legislators meant to charge ship-owners, in addition to the loss of freight and a considerable part of their ship, as the case may be, to a loss of the amount of two months' wages beyond what might be due for the benefit

of the crew, and of one month's wages for the benefit of sailors at large; for this would be the effect of considering the act as embracing all sales— wreck sales. Such a construction would be taxing property, not in the hands of those who held it, but of those who had lost it; and as it respects one-third of the three months' pay, as a future provision for persons with whom the assessed have had no connexion.

There is another view of the subject. The laws of the United States do not describe the cases when seamen's wages shall be considered as due, and when not, or when payable pro rata, or when lost in toto from a destruction of the voyage and vessel; but have left these matters to be decided under the special circumstances of the particular cases, according to the marine law, or the common law, as practised on in the several States. By these laws, freight is always considered as the mother of wages; and so close is this legal connexion that whenever it can be claimed, the latter is demandable, and in the same proportion. If, therefore, the goods shall be saved and delivered at port, and the vessel lost, both freight and wages would be due; but if the goods should be lost, then both freight and wages would be lost; and this from a policy to stimulate, from a principle of interest, the sailors' utmost exertion to save the ship and cargo when in danger.

The law of 1803 must be so construed as to include all cases where there may be a sale of the vessel, or be considered as embracing those sales in the common course of merchandise only, where, on the sale, both freight and wages have accrued. On the former construction, if a vessel, on her passage to her port of destination, should, in distress, lose all her cargo, and, of course, her claim to freight, and yet arrive a mere wreck to a port, in which she from necessity should be sold and the crew discharged, they would be entitled to the two months' extraordinary wages, or rather to the benefit of them; but not to one cent of the ordinary wages. This construction would not only be attended with the above unreasonable consequence, but would also change the established principles of the marine and common law, by implication; which is never admissible but from necessity. Considering the law as applying to the last description of sales only, every word of it will have an operation, and be in perfect consistency with equity, policy, and the established provisions of the marine and common law. Besides, there is a verbal argument from the law itself in favor of the last construction. The words are, "three months' pay over and above the wages which may then be due to such mariner or seaman.” There is not, then, by this law, a general provision for all sailors who may be discharged in a foreign country on the sale of their vessel, but only for such to whom, on such discharge, wages may be due. The generality of the first member of the description of the persons to be provided for is circumscribed by this last qualification, "wages due." The reasoning stands thus: The law of 1803 does not require the three months' wages to be paid on account of that class of discharged sailors which may include those to whom, on a sale of their vessel, ordinary wages may not be due. Ordinary wages may not be due to the discharged sailors of a stranded vessel, on the sale of her wreck; therefore, the law of 1803 does not require the payment of the three months' wages on account of the discharged sailors of a stranded vessel, on the sale of her wreck.

On the whole, from the foregoing view of the subject, with deference to the opinions which may have been formed, or judgments given, I am

constrained to believe that the legislators meant to provide only in cases of the voluntary sales of their vessels and discharges of their crews, in the ordinary course of trade; and that such ought to be the construction of the act.

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

To the SECRETARY OF STATE.

LEVI LINCOLN,