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hold of Mr. Salmon. He stopped amination, that Mr. Anduaga was at a short distance from them, and appointed minister to the United remained till the fight was over. States, under what was termed the
To prove the public character constitutional government, which of Mr. S. the following evidence was established on the 9th March, was given : An official letter from 1820, and might be said to have Mr. Anduaga, the Spanish minister, terminated about the 1st October, just previous to his departure from 1823. the United States, dated the 15th To prove that the public charac. March, 1823, and addressed to the ter of Mr. Salmon was known to secretary of state of the United the defendant, two letters from him, States, informing him that he had dated in May, 1824, addressed to appointed Mr. S. charge d'affaires Mr. S. as charge d'affaires, were of his catholic majesty, in the Uni- read. ted States; and another letter, to The counsel for the defendant the same effect, from the same offered to prove, by a witness, the person, addressed to Mr. S.-a contents of two decrees of the king letter from the secretary of state, of Spain, bearing date the 1st and dated the 20th of the same month, 20th October, 1823, as well as addressed to Mr. Anduaga, in an- another called the decree of purifi. swer to the above, recognizing the cation, issued in December, 1824, character of Mr. S. and stating he for the purpose of showing that should, with pleasure, correspond Mr. S., not having complied with with him.
the last decree, ceased to be a Two letters from the secretary minister of the Spanish king. The of state, dated the 4th of April, court refused to permit such evi1823, and the 24th September dence to be given, stating, that last, addressed to Mr. S. as charge although the unwritten law of a d'affaires, the latter being in an- foreign country may be proved by swer to one addressed to the de- witnesses, the written law can be partment, complaining of the out- proved only by itself. rage committed by the defendant, To prove that a charge d'affaires in which the secretary regrets the is a public minister, entitled to the circumstance, and states, in sub- same privileges, immunities and stance, that the public prosecutor protection, and that it is sufficient, would do what was proper on the though he have no letters of cre. occasion.
dence, if he be received by the goMr. Brent, the chief clerk in the vernment to which he is sent, and department of state, was then ex- personally presented, the district amined, who deposed, that Mr. attorney referred to Merl. Repert. Salmon was recognized by the of jurisprudence, vol. 8, p. 238, president as charge d'affaires, on and contended, that the public cha. the retiring of Mr. Anduaga, and racter of Mr. Salmon was abunwas accredited by the secretary of dantly proved. state, who had continued to cor- The counsel for the defendant respond with him as such, from the insisted. 1st, That the alleged asdeparture of Mr. Anduaga, till sault, by the defendant, was not within a short time past.
sufficiently proved, the evidence of Mr. Salmon stated, upon his ex- Mr. Wallace, upon that point, he
ing opposed to that of Mr. Salmon. tions, and of the United States, That, even if it were not, it is no offended as is charged, in the perassault for one person gently to lay son of a foreign minister, by an his hand upon another, or to take assault committed on him by the him by the coat, as Mr. Salmon defendant. It is a case which states was done in this case. That cannot fail to be highly interesting the first assault was committed by to the defendant, and to our goMr. Salmon, which will justify a vernment. To the former, on acbattery committed even on a foreign count of the punishment which minister.
might be the consequence of a 2d. That no evidence had been conviction ; and to the latter, be. given, sufficient to prove that the cause the government of the United defendant knew the public charac- States, like that of all civilized nater of Mr. Salmon, without which tions, is bound to afford redress for the offence is not made out. For the violation of those privileges although Mr. Salmon may have and immunities which the law of been charge d'affaires, in 1824, nations confers upon foreign miyet the defendant had reason to be- nisters, and which are consecrated lieve, that he was displaced by vir- by the practice of the civilized tue of the Spanish decrees, parti. world. A neglect or refusal to cularly that of purification.
perform this duty, might lead to 3d. That the minister, Mr. An- retaliation upon our own ministers duaga, had no authority to appoint abroad, and even to war. The Mr. Salmon charge d'affaires ; for case, therefore, from its importthe appointment could be made ance, recommends itself to the only by the government of Spain. gravest attention both of the court But if he had the power, still the and of the jury. official character of that gentleman There are two questions for your ceased with the constitutional go- consideration, 1st. Is the charge, vernment, and could only revive by that an assault was committed by a new appointment of the king the defendant upon Mr. Salmon upon his restoration, of which no sufficiently proved ? If it be, then, evidence had been given. They secondly, was Mr. Salmon a public denied that the recognition of his minister at the time the assault was public character by the executive made ? of the United States, was sufficient · As to the first question, (after evidence of his being a minister summing up the evidence, the judge and entitled to the immunities of said,) it was argued by the counsel one.
for the defendant, that, to constiAfter argument by counsel, the tute an assault, it must be accom. district attorney, C. J. Ingersoll, panied by some act of violence esq. for the prosecution, and S. the mere taking hold of the coat, Chew, Kittera and J. R. Ingersoll, or laying the hand gently upon the esqrs. for the defendant: Washing. person of another, it is contended, ton, Justice, delivered the following does not amount to this offence, charge to the jury.
and that nothing more is proved in This is a prosecution instituted this case even by Mr. Salmon. It by the United States for the pur- is very true, that these acts may pose of vindicating the law of na- very innocently be done without offending the law. If done in friend- tion, the mere circumstance that ship, for a benevolent purpose, and the testimony given in support of the like, the act would certainly not the prosecution, is by the party amount to an assault. But these alleged to be aggrieved, ought to acts, if done in anger, or in a rude have very little influence on the and insolent manner, or with a view decision of the case. The law to hostility, amount not only to an makes him a competent witness. assault but to a battery. Even stri. He has no interest whatever in the king at a person, though no blow be decision of this case, and if his inflicted, or raising the arm to strike, character be unimpeached, his tesor holding up one's fist at him, if timony, given in such a manner done in anger or in a menacing as not to justify a suspicion of manner, are considered by the law his want of strict veracity, and he as assaults. It is, then, for you stands uncontradicted by other tes. to say, whether, fromt he evidence timony, he is a credible witness, which has been given in the case, and entitled to be believed. Mr. Salmon's coat was seized, or Again, it has been insisted, that, laid hold of by the defendant in by waiving his privilege, in becomkindness, and for a justifiable cause, ing a voluntary witness, he has, hinnor in anger, and with hostile inten- self, violated the law of nations and tions? If the latter, it is an un- his duty to his sovereign. If this questionable case of assault and be so, that is a matter to be settled battery.
by them. We have nothing to do It was further argued by the de- with it. It deprives him neither of fendant's counsel, that the only his competency nor of his crediwitness to prove the assault, is bility. the party who considers himself to But, should the jury feel doubts have been aggrieved, and therefore, as to the first assault, on the ground that his evidence ought to be re- of any discrepancy in the evidence, ceived with great caution, particu- the witnesses all agree, that after larly as another witness, Mr. Wal- Mr. Salmon released the defendant, lace, who was present, did not upon his promise to keep the peace, observe the defendant to have hold the defendant again approached of Mr. Salmon's coat. It is for him in a hostile and menacing man. the jury to say, whether the evi- ner, with his arm raised, when a dence of the fact, as stated by Mr. further conflict was prevented by Salmon, is contradicted by Mr. the commendable interposition of Wallace, and if it be, whose state- Mr. Smith. That this act amountment is most to be believed, and ed to an assault, admits of not the whether this latter witness, who slightest doubt, and brings the case deposed that he passed the parties within the provisions of the act of in the night, and stopped at some congress, provided Mr. Salmon was paces from them, had it as much a foreign minister, which is the scin his power to give correct in- cond point to be considered. formation in relation to the fact as Second. Was Mr. Salmon a fo. Mr. Salmon, who was immediately reign minister at the time the engaged in the transaction, had ? alleged offence was committed ? If there be no absolute contradic. (The judge here recapitulated the
evidence of Mr. Salmon's official constitution of the United States character, and then proceeded.) having vested in the president the The counsel for the defendant have power to receive ambassadors and gone into a rigid examination of other public ministers, has neces. the credentials of Mr. Salmon. sarily bestowed on that branch of They deny that any thing short of government, not only the right, but credentials, emanating from the the exclusive right, to judge of the sovereign, or from some department credentials of the ministers so reof his government, charged to per- ceived ; and so long as they conform duties of this nature, could tinue to be recognized and treated constitute him a minister ; and that, by the president as ministers, the even if the appointment of minister other branches of the government under the constitutional govern- are bound to consider them as ment of Spain, was sufficient, it be- such. If courts of justice could came void, by the revolution, which sit in judgment upon the decision restored the king to his former pow- of the executive, in reference to er, and rendered a re-appointment the public character of a foreign necessary.
minister, and by pronouncing him If these were questions fit for unduly appointed, or improperly judicial inquiry and decision, we recognized, deprive him of the should say, that the appointment of privileges of a minister, what an a charge d'affairs by a foreign minis- extraordinary anomaly would such ter, upon his retiring from the sta- an interference present to the tion to which he had been appoint- world ? ed, is usual in practice, and if he be T he individual who should be recognized as such by that branch of placed in this predicament, would, the government which is authorised for all the purposes of his own or to receive ministers, and with which this government, be a minister, the he is to transact the business of his representative of his sovereign, auown sovereign, his character of thorised to transact the business minister is unquestionable. And with which he is charged, and to further, that if after the constitu- bind his sovereign, whilst acting in tional government of Spain termi. obedience to his orders ;-and yet nated, a re-appointment, or a re- he would be no minister in the view cognition by the king, of the public of the judiciary, and of course not character of this gentleman, were entitled to the protection due to necessary, still as he is found, after that character. In other words, a a lapse of about two years, the re- public minister, without the privicognized minister of Spain by our leges and immunities of one. For, government, we ought to presume, notwithstanding this judicial interthat his sovereign has done all that ference, he would still continue to he thought necessary to clothe him be a minister as long as the presiwith that character.
dent should continue to recognize But the conclusive answer to him as such, and no judgment of a these arguments is, that these are court of justice could deprive him inatters of state, with which courts of that character, although it of justice have nothing to do. The should withhold from him the sanctity appertaining to it. Be- posed by the district attorney, that sides, if it belongs to courts of jus- even if the first assault had been tice to meddle with these matters, made by Mr. Salmon on the deand, looking beyond the acts and fendant, the blow which was reconduct of the president, to de. turned would have been an offence cide a person recognized by him under the act of congress. But to be a minister, to be no minis- this is not the opinion of the court. ter; surely that branch of the go- A foreign minister, by committing vernment ought to possess all the the first assault so far loses his lights to guide their judgment privilege, that he cannot complain which are possessed by the presi- of an infraction of the law of nadent, and should, consequently, be tions, if, in his turn, he should be empowered to call for, and expose assaulted by the party aggrieved. to public view, the archives of state, This was decided by this court in and the correspondence of the ex- Liddle's case. It was insisted by ecutive of this nation with foreign the defendant's counsel, that it was nations, in relation to the subject incumbent on the prosecutor to on which the decision is to be prove that the public character of made. Yet who would be wild Mr. Salmon was known to the deenough to maintain a proposition fendant at the time this transaction so extravagant and absurd ? took place. If this position could
The principles which have been be maintained, still, as it is shown stated, are those which governed by the defendant's letters to Mr. this court in Liddle's case, decided Salmon, in May, 1824, that he then in 1807, in which it was stated, knew that gentlemen to be the Spathat the certificate of the secretary nish charge d'affaires ; if he had of state, that the person claiming afterwards ceased to be so, it lay to be a charge d'affaires, was re- on the defendant to prove it. ceived and recognized as such by Knowing him once to have been the executive of this government, entitled to this character, he acted was the best evidence which could at his peril if it should turn out be given of that fact. The only that that character still continued, proper inquiry, in short, in cases of or if, indeed, the reverse should this nature, is, has the person claim- not be proved. ing to be a foreign minister, been But, in point of law, it is immareceived and recognized as such byterial whether the defendant knew the executive of this government ? that the person assaulted, was the If he has, the evidence of those charge d'affaires or not. And this facts is not only sufficient, but, in point, also, was decided in the case our opinion, conclusive, upon the before referred to, of United States subject of his privileges as a minis- vs. Liddle. ter. Such has been the nature of As to the Spanish decrees, althe evidence given in this case. luded to by the counsel for the de
It now remains only to notice fendant, there is no evidence given two or three arguments of the of them and, consequently, they counsel, upon which some reliance are not to be noticed by the jury. was placed. It seemed to be sup- It is impossible for the court or jury