hold of Mr. Salmon. He stopped at a short distance from them, and remained till the fight was over.

To prove the public character of Mr. S. the following evidence was given: An official letter from Mr. Anduaga, the Spanish minister, just previous to his departure from the United States, dated the 15th March, 1823, and addressed to the secretary of state of the United States, informing him that he had appointed Mr. S. charge d'affaires of his catholic majesty, in the United States; and another letter, to the same effect, from the same person, addressed to Mr. S.-a letter from the secretary of state, dated the 20th of the same month, addressed to Mr. Anduaga, in answer to the above, recognizing the character of Mr. S. and stating he should, with pleasure, correspond with him.

Two letters from the secretary of state, dated the 4th of April, 1823, and the 24th September last, addressed to Mr. S. as charge d'affaires, the latter being in answer to one addressed to the department, complaining of the outrage committed by the defendant, in which the secretary regrets the circumstance, and states, in substance, that the public prosecutor would do what was proper on the occasion.

Mr. Brent, the chief clerk in the department of state, was then examined, who deposed, that Mr. Salmon was recognized by the president as charge d'affaires, on the retiring of Mr. Anduaga, and was accredited by the secretary of state, who had continued to correspond with him as such, from the departure of Mr. Anduaga, till within a short time past.

Mr. Salmon stated, upon his ex

amination, that Mr. Anduaga was appointed minister to the United States, under what was termed the constitutional government, which was established on the 9th March, 1820, and might be said to have terminated about the 1st October, 1823.

To prove that the public character of Mr. Salmon was known to the defendant, two letters from him, dated in May, 1824, addressed to Mr. S. as charge d'affaires, were read.

The counsel for the defendant offered to prove, by a witness, the contents of two decrees of the king of Spain, bearing date the 1st and 20th October, 1823, as well as another called the decree of purification, issued in December, 1824, for the purpose of showing that Mr. S., not having complied with the last decree, ceased to be a minister of the Spanish king. The court refused to permit such evidence to be given, stating, that although the unwritten law of a foreign country may be proved by witnesses, the written law can be proved only by itself.

To prove that a charge d'affaires is a public minister, entitled to the same privileges, immunities and protection, and that it is sufficient, though he have no letters of credence, if he be received by the government to which he is sent, and personally presented, the district attorney referred to Merl. Repert. of jurisprudence, vol. 8, p. 238, and contended, that the public character of Mr. Salmon was abundantly proved.

The counsel for the defendant insisted. 1st, That the alleged assault, by the defendant, was not sufficiently proved, the evidence of Mr. Wallace, upon that point, be

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offending the law. If done in friendship, for a benevolent purpose, and the like, the act would certainly not amount to an assault. But these acts, if done in anger, or in a rude and insolent manner, or with a view to hostility, amount not only to an assault but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or holding up one's fist at him, if done in anger or in a menacing manner, are considered by the law as assaults. It is, then, for you to say, whether, fromt he evidence which has been given in the case, Mr. Salmon's coat was seized, or laid hold of by the defendant in kindness, and for a justifiable cause, or in anger, and with hostile intentions? If the latter, it is an unquestionable case of assault and battery.

It was further argued by the defendant's counsel, that the only witness to prove the assault, is the party who considers himself to have been aggrieved, and therefore, that his evidence ought to be received with great caution, particularly as another witness, Mr. Wallace, who was present, did not observe the defendant to have hold of Mr. Salmon's coat. It is for the jury to say, whether the evidence of the fact, as stated by Mr. Salmon, is contradicted by Mr. Wallace, and if it be, whose statement is most to be believed, and whether this latter witness, who deposed that he passed the parties in the night, and stopped at some paces from them, had it as much in his power to give correct information in relation to the fact as Mr. Salmon, who was immediately engaged in the transaction, had? If there be no absolute contradic

tion, the mere circumstance that the testimony given in support of the prosecution, is by the party alleged to be aggrieved, ought to have very little influence on the decision of the case. The law makes him a competent witness. He has no interest whatever in the decision of this case, and if his character be unimpeached, his testimony, given in such a manner as not to justify a suspicion of his want of strict veracity, and he stands uncontradicted by other testimony, he is a credible witness, and entitled to be believed.

Again, it has been insisted, that, by waiving his privilege, in becoming a voluntary witness, he has, himself, violated the law of nations and his duty to his sovereign. If this be so, that is a matter to be settled by them. We have nothing to do with it. It deprives him neither of his competency nor of his credibility.

But, should the jury feel doubts as to the first assault, on the ground of any discrepancy in the evidence, the witnesses all agree, that after Mr. Salmon released the defendant, upon his promise to keep the peace, the defendant again approached him in a hostile and menacing manner, with his arm raised, when a further conflict was prevented by the commendable interposition of Mr. Smith. That this act amounted to an assault, admits of not the slightest doubt, and brings the case within the provisions of the act of congress, provided Mr. Salmon was a foreign minister, which is the second point to be considered.

Second. Was Mr. Salmon a foreign minister at the time the alleged offence was committed? (The judge here recapitulated the

evidence of Mr. Salmon's official character, and then proceeded.) The counsel for the defendant have gone into a rigid examination of the credentials of Mr. Salmon. They deny that any thing short of credentials, emanating from the sovereign, or from some department of his government, charged to perform duties of this nature, could constitute him a minister; and that, even if the appointment of minister under the constitutional government of Spain, was sufficient, it became void, by the revolution, which restored the king to his former power, and rendered a re-appointment necessary.

If these were questions fit for judicial inquiry and decision, we should say, that the appointment of a charge d'affairs by a foreign minister, upon his retiring from the station to which he had been appointed, is usual in practice, and if he be recognized as such by that branch of the government which is authorised to receive ministers, and with which he is to transact the business of his own sovereign, his character of minister is unquestionable. And further, that if after the constitutional government of Spain terminated, a re-appointment, or a recognition by the king, of the public character of this gentleman, were necessary, still as he is found, after a lapse of about two years, the recognized minister of Spain by our government, we ought to presume, that his sovereign has done all that he thought necessary to clothe him with that character.

But the conclusive answer to these arguments is, that these are matters of state, with which courts of justice have nothing to do. The

constitution of the United States having vested in the president the power to receive ambassadors and other public ministers, has necessarily bestowed on that branch of government, not only the right, but the exclusive right, to judge of the credentials of the ministers so received; and so long as they continue to be recognized and treated by the president as ministers, the other branches of the government are bound to consider them as such. If courts of justice could sit in judgment upon the decision of the executive, in reference to the public character of a foreign minister, and by pronouncing him unduly appointed, or improperly recognized, deprive him of the privileges of a minister, what an extraordinary anomaly would such an interference present to the world?

The individual who should be placed in this predicament, would, for all the purposes of his own or this government, be a minister, the representative of his sovereign, authorised to transact the business with which he is charged, and to bind his sovereign, whilst acting in obedience to his orders;-and yet he would be no minister in the view of the judiciary, and of course not entitled to the protection due to that character.

In other words, a public minister, without the privileges and immunities of one. For, notwithstanding this judicial interference, he would still continue to be a minister as long as the president should continue to recognize him as such, and no judgment of a court of justice could deprive him of that character, although it should withhold from him the

sanctity appertaining to it. Besides, if it belongs to courts of justice to meddle with these matters, and, looking beyond the acts and conduct of the president, to decide a person recognized by him to be a minister, to be no minister; surely that branch of the government ought to possess all the lights to guide their judgment which are possessed by the president, and should, consequently, be empowered to call for, and expose to public view, the archives of state, and the correspondence of the executive of this nation with foreign nations, in relation to the subject on which the decision is to be made. Yet who would be wild enough to maintain a proposition so extravagant and absurd?

The principles which have been stated, are those which governed this court in Liddle's case, decided in 1807, in which it was stated, that the certificate of the secretary of state, that the person claiming to be a charge d'affaires, was received and recognized as such by the executive of this government, was the best evidence which could be given of that fact. The only proper inquiry, in short, in cases of this nature, is, has the person claiming to be a foreign minister, been received and recognized as such by the executive of this government? If he has, the evidence of those facts is not only sufficient, but, in our opinion, conclusive, upon the subject of his privileges as a minis

ter.

Such has been the nature of the evidence given in this case.

It now remains only to notice two or three arguments of the counsel, upon which some reliance was placed. It seemed to be sup

posed by the district attorney, that even if the first assault had been made by Mr. Salmon on the defendant, the blow which was returned would have been an offence under the act of congress. But this is not the opinion of the court. A foreign minister, by committing the first assault so far loses his privilege, that he cannot complain of an infraction of the law of nations, if, in his turn, he should be assaulted by the party aggrieved. This was decided by this court in Liddle's case. It was insisted by the defendant's counsel, that it was incumbent on the prosecutor to prove that the public character of Mr. Salmon was known to the defendant at the time this transaction took place. If this position could be maintained, still, as it is shown by the defendant's letters to Mr. Salmon, in May, 1824, that he then knew that gentlemen to be the Spanish charge d'affaires; if he had afterwards ceased to be So, it lay on the defendant to prove it. Knowing him once to have been entitled to this character, he acted at his peril if it should turn out that that character still continued, or if, indeed, the reverse should not be proved.

But, in point of law, it is immaterial whether the defendant knew that the person assaulted, was the charge d'affaires or not. And this point, also, was decided in the case before referred to, of United States vs. Liddle.

As to the Spanish decrees, alluded to by the counsel for the defendant, there is no evidence given of them and, consequently, they are not to be noticed by the jury. It is impossible for the court or jury