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executed by congress, (102) offering violence to the person of an ambassador or other public minister, and suing out process against him or his domestics, are declared to be offences subjecting the parties to fine and imprisonment. Having been defined' by congress, they may properly be said to arise under the constitution and to be cognizable under the authority of the United States. But other violations of the law of nations than those expressly enumerated, may be committed, and if it is a sound doctrine, (which is intended to be hereafter examined,) that the criminal jurisdiction of the courts of the United States is confined to cases expressly provided for by statute, either such offences, however flagrant, must go unpunished, and the United States incur a national disgrace, or the state courts must be resorted to.
In respect to civil suits, when a foreign minister may sue as an alien, the jurisdiction is confessedly concurrent, (103) but it would seem that if a foreign nation brought a civil suit in a court of the United States, it ought to be in the Supreme Court, although here also it is apprehended that the state courts could also sustain it.
The reason for placing consuls on the same footing, deserves inquiry. Consuls are not diplomatic functionaries, or political representatives of a foreign nation. Their general character is that of commercial agents. They may be citizens or subjects of the foreign power, or they may be citizens and permanent inhabitants of the United States. The president may, at his discretion, acknowledge their capacity or refuse to do so. When he deems it expedient to revoke the admission
(102) Act of April 30, 1790.
(103) Act of Sept. 24, 1789.
of them, (104) by which act they would be at once stripped of their privileges and immunities, and reduced to the level of private persons. It may sometimes happen, that a consul in the absence of the proper minister of his country, may be charged with higher national duties, but in this case the greater character absorbs the smaller. In respect to the citizens or subjects of their own nations, they are sometimes admitted by the nation which receives them to exercise functions partaking of a judicial nature, but they cannot be carried so far as to affect others, nor be exercised at all without the permission of the government. And their procedures must be distinguished from a court, or an establishment in the nature of a court, affecting the interests of any others than the nation to which the consul belongs. In the year 1793, the French consuls attempted to exercise prize jurisdictions in the United States over captures made from the British, with whom France was at war, but the Supreme Court at once decided, that no foreign power can of right institute or erect any court or judicature of any kind within the United States, unless warranted by and in pursuance of treaties. (105)
But whether such functions are permitted and exercised or not, the other trusts and duties of consuls require that they should be treated with much respect. The sovereign who receives them, tacitly engages to afford them all the freedom and protection necessary to enable them to execute their functions, without which the admission would be illusory and vain. (106)
What may be done in some other countries by the mere grant of the executive magistrate, must with us
(104) Case of Du Plaine, consul at Boston, in 1793. (105) 3 Dallas, 6.
(106) Vattel, 1. 2. § 34.
be effected by constitutional or legislative provisions, and therefore, although a total exemption from civil and criminal process is not required by the nature of the office, yet a limitation of the general judicial power operating to a certain degree as a national protection, was deemed expedient and cannot be disapproved.
The legislative provisions that have been made in respect to them, may be considered as founded on the same article in the constitution. If the law of nations considers them as entitled to protection, offences against them fall within the class of offences against the law of nations.
Cases in which a state shall be a party originally, signified those in which a state was either plaintiff or defendant, as well suits brought by a state against individuals as those by individuals against a state, and also those in which the controversy was between two states; but the constitution having since been altered, (107) and a state being no longer liable to a private action, this provision must be confined to the other two cases. General expressions must always, be construed according to the subject. It has been justly decided that the words 'cases in law or equity,' apply as well to criminal as to civil matters, (108) but it cannot be conceived that a state was intended by the constitution to be able to prosecute in the Supreme Court of the United States one of its own citizens for an offence committed against itself, although it might have the power to institute in that court a suit
(107) The eleventh amendment is in these words, "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
(108) 6 Wheaton, p 399.
on a civil contract either between itself and its own citizens, or citizens of another state, or foreigners.
In all other cases, the Supreme Court possesses jurisdiction only by appeal or writ of error, that is, it may revise and correct the proceedings in a cause instituted in an inferior tribunal, but cannot create a cause, and the power thus withheld from it by the constitution cannot be given to it by the legislature. When an instrument organizing a judicial system, divides it into one supreme and so many inferior courts as the legislature may ordain and establish, then enumerates its powers and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court, by declaring the cases in which it shall have original jurisdiction, and those in which it shall have appellate jurisdiction, it follows, that in one class its jurisdiction is original and not appellate, and that in the other it is appellate and not original. (109)
It has already been observed, that it does not rest with congress to give a binding construction, to the constitution. It can neither diminish nor enlarge the powers of the Supreme Court. By the act of the 24th of September, 1789, congress undertook to vest in the Supreme Court, the power to issue writs of mandamus, in cases warranted by the usages and principles of law, to any courts appointed by, or persons holding office under, the authority of the United States.
In a case which did not come within the description of original jurisdiction, contained in the constitution, a mandamus was moved for in the Supreme Court, to be directed to a person holding an office under the authority of the United States, and therefore the case was within the letter and spirit of the act of
(109) 1 Cranch, 175, Marbury v. Madison.
congress; but the act was, in this respect, clearly held to be unconstitutional and void, and the mandamus was refused. (110) The same act provides that the Supreme Court shall have power to issue writs of habeas corpus, where persons are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same. A writ of habeas corpus was moved for, in a case where the prisoner was committed by the circuit court of the District of Columbia, on a charge of treason against the United States. The writ was granted because it amounted only to a revision of the decision of an inferior court of the United States, (111) and therefore was of an appellate nature.
(110) 1 Cranch, 175, Marbury v. Madison.