The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-01
MINISTER JAY In VIENNA.
THE STORY OF HIS DIFFICULTY.
An American Minister and Aus.
TRAN Law.
INTERNATIONAL LAW.
FRANKPoRT-oN-rHE-MAN, May 4. 1874

much attention to the interesting diplomatlc and
legal difficulties which have recently arisen In
Vienna between orr Minister, the Hon. John Jay
and the Austrian judicial authorities, and so much
III feeling and denunciaton oil our represen tative
has been expressed on this side OF the water, that
have thought 1t well to get at the facts OF the
case. which are these I'm November 1862 Mr.. Jay
leased from certain Mr.. Fatton house for the
Embassy for term OF four years. that Is. until No
vember, 1878, at the rate Of $4,000 nOrins per
year. Several months before the expiration OF the
lease Mr.. Jay and the landlord agreed that upon
an increase OF the rent q new lease, as an extern
sion Of the old one, should be drawn up for one
year, each party to give one years notice. Mr..
Jay 1t appears then obtained sixty days. leave Of
absence from his post for the purpose OF visiting
the United States and, we now know, he is on
his way VIA England Tor home. Whether Mr. Jay
has the intention OF returning to Vienna or not we
cannot say; the Vienna journals say our Minister
has left the Danube for good.
Be this as 1t may, Mr.. Jay heard from o trust
worthy source, which the Vienna journals say is
the person OF Mr.. Jays sop-in-law. Baron
Schweinitz, that the house In which he resided
had been sold over his head. Now the Austrian
law says that In such all lease contracts are
rendered null and void and that six months notice
can be given or received; and IN November, 1873,
just as the new lease was commencing, Mr.. Jay,
taking advantage OF the sale and In comp lance
with local custom, gave notice to his landlord and
to the imperial District Court that at the expira
ton OF six months he should consider himself fully
at liberty to leave. BY 80 doing he waived In no
way either his privileges or rights as Minister;
but the Austrian journals persist IN saying that
when Mr.. Jay made notification to the Imperial
Court he thereby acknowledged its jurisdiction,
and, having 80 done, was amenable to the Austrian
courts to answer the preferred against him by
his landlord. But this position Is tenaDle for
in acting as he did Mr.. Jay simply compiled with
local custom. He had no alternative but to give
notice according to the custom OF the country.
"The exterritorial person." says Blum tschli, ais
bound to obey the general police regulations and
local customs OF the land"
In the month or April, 1874 the landlord took
exception TO Mr.. jays notification to the imperial
district court. He argued that he had neither sold
the house nor had any intention or SO doing. Ac-
cording to local custom, whenever o landlord OBJ
jects to the tenants notice to leave he notifies the
Court which then calls upon the tenant to give
his reasons. In this case the Court proceeded in
the usual manner and cited Mr.. Jay to appear be-
fore 1t. To this summons Mr.. Jay, taking the
ground OF his coterrtoral facilities very naturally
gave no heed. The summons was twice
repeated, with the same result as be-
FORE Then the Grand Marshal's onicials
cited him, and finally the summons was forwarded
through the hands or the Imperial Ministry OF For
eign Affairs. Mr.. Jay resorted to his rights and
privilege as q Minister, whereupon the citations
were discontinued. He claimed that he could only
follow the orders Of his government, whereupon
the Foreign ONCE desisted and ordered the COM
mon courts to cease their annoyances. Here the
matter rests. Mr. Jay has sailed for the United
States and he takes his personal effects along with
mer dwelling is empty. The landlord has received
his six months rent to May l, but he still claims
that the lease cannot be broken, and consequently
he viii sue for the rent from May to November.
Most interesting is now the TACT that the contract
for the new lease although formally prepared was
by some omission never signed by the contracting
parties at all. Whether Mr. Jay knew this fact
when he gave notice we cannot surmise. At any
rate, from this point OF view, Mr.. Jay is legally
evidently in the right He has given SIX
months notice, paid six months rent lat the rate
OF $12 900 nortns year,, and has remained in the
dwelling without contract. but with the assent
OF the landlord, all OF which is admissible and in
accordance with the laws and customs of Vienna.
In dealing with the case in question Mr.. Jay has
evidently been guided by proper comprehension
OF his own rights and immunities. The interests
and prosperity Of every State necessitate from
and to facilitate this communication custom has
provided that the sovereign OF every State shall
have the right, although under no obligation to
use 1t, to send public representatives to those
countries with which he desires main tain peace
full and amicable relations. These representatives
may be Ministers OF the FIRST second or third
class. When departing q credential 10 given
TO the Minister which he presents to the gov
SO soon as he is informed oil his recognition he en-.
ters upon the discharge OF his duties and from
% fe ne s tne Ia ags ana ae
He enjoys certain privileges and honors formally
accorded by treaty and by the customs OF nations.
OF which the person OF the ambassador is constd-
cred sacred. Were 1t not SO the negotiation be-
Tested and with safety. Second, he enjoys the
right OF exterritoriaty, whereby the minister,
although actually within the limits OF foreign
country. Is still considered as within the territory
OF the State whose representative he is. He is
thereby exempt from local Jurisdiction, which
sists In his exemption from the civil and criminal
courts-that is, nothing can be demanded OF a
minister which would In the least degree hinder
him In the discharge OF mis- duties to his govern
ment. This immunity extends to his family, suite
and members OF the legation, to his dwellings, car
riages and personals.
international law, treaties and custom we ind
that Mr.. jay was cited by the Austrian civil tr-
bunals to appear as defendant in q case. This act /
could be excused, perhaps, as regards the lower |
courts. Tor undoubtedly they proceeded in utter
ignorance OF the rights and privileges OF minis
ter but the Austrian Ministry OF Foreign Affairs
cannot be considered as acting under the same
circumstances, because 1t has preferred to give
precedence over international law to Its own com
mon law. Wicquelort says distinctly :-"The
rights the powers, the duties, the privileges OF
ambassadors are determined by the Aw Of nature
and nations and not by any municipal consttu-
tion." The Austrian Ministry further appears to
entertain the principle, ubi te tnUeneT0, ibi te
judica6o," whereby everybody who comes within
the limits OF State Is recognized as the subject
OF that state as regards its jurisdiction, thus
unjustly applying the laws or the country to
the minister there accredited dsregarding the
tights Of an exterrtorial person. rights OF Eur.
Amb.) 1t iorgets the duties winch a state taxes
upon itself when It recognizes minister from
friendly POwer:-'Not only not to hinder him In
the least IN the discharge OF his duties to his gov
ernment but also to protect him from intrusion on
the part OF her own ciLizens.o (3iuntschlD
Can an ambassador be cited to appear before the
courts OF q country to which he is accredited?
Thereby he would lose his independence and Sc
curity, which are absolutely necessary to him in
the discharge OF the instructions from his govern
ment International law tells US, can ambassa-
dor can only be considered as amenable to the