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The Circuit Courts of the Union have jurisdiction concurrently 1826. with the District Courts, of offences within that description, in cases affecting consuls; and the Circuit Courts have exclusive jurisdiction of offences above that description, in cases affecting consuls. It has also been determined by the Supreme Court of Pennsylvania, that this last jurisdiction of the Circuit Courts is not only exclusive of the District Courts, but of the State Courts. Upon this ground, an indictment for a criminal offence under the laws of Pennsylvania, against the Russian Consul General, was quashed for want of jurisdiction by that Court, in 1816. (Commonwealth v. Kosloff, 5 Serg. & Rawle, 545.) In delivering the judgment of the Court in that case, Mr. Chief Justice TILGHMAN also examined the question, as to the nature and extent of the privileges of consuls under the law of nations, and decided that the privilege of immunity from criminal prosecutions was not conferred on them by that law. It had been previously determined by the English Court of K. B., in 1814, that they were not privileged as public ministers from arrest in civil cases. (Vivian v. Beeker, 3 Maul. & Selw. 284.) And the authorities, cited from the text writers on the law of nations, in these two cases, show that consuls are in no respect privileged as public ministers.

It results from the above provisions of the constitution, the acts of Congress, and the judicial expositions which have been given to them,

1. That no civil suit or criminal prosecution can be commenced against a foreign ambassador, other public minister, or consul, in any State Court.

2. That such ambassador, public minister, or consul, may, at his election, commence a suit in a State Court, (in other respects of competent jurisdiction,) against an individual.

3. That an ambassador, or other public minister, cannot be proceeded against in any civil case, by compulsory process, in any Court whatever.

4. That a consul may be sued, or proceeded against, civilly or criminally, in the Courts of the Union, in the same manner as a private individual.

5. That in civil suits against a consul, and in criminal prosecutions against him, within the limits of the criminal jurisdiction of the District Courts, the District Courts have jurisdiction of such suits or prosecutions.

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6. That in criminal prosecutions against consuls, for offences above the description of those cognizable in the District Courts, the Circuit Courts have exclusive jurisdiction, and concurrent jurisdiction with the District Courts in the other cases cognizable therein.

7. That the Supreme Court has original and exclusive jurisdiction of such suits or prosecutions against ambassadors, and other public ministers, as any Court of justice can exercise consistently with the law of nations.

8. That the Supreme Court has original, but not exclusive, jurisdiction of suits brought by ambassadors, or other public ministers, or in which a consul is a party.

9. That the Supreme Court has appellate jurisdiction of all cases, in which a minister or consul is a party, arising in the State Courts, and involving the construction of the national constitution, or the validity and construction of the laws and treaties of the Union, under the restrictions mentioned in the 25th section of the Judiciary Act of 1789, c. 20.

10. That the Supreme Court has appellate jurisdiction of all civil suits brought in the Courts of the Union, having original jurisdiction of the suit, where a minister or consul is a party, and the matter in dispute exceeds the sum of two thousand dollars.

la criminal cases arising in the Courts of the Union, no writ of error, or other appellate process, to remove the cause to the Supreme Court, has been provided by Congress; and the only mode in which such cases can be revised in this Court, is upon a certificate where the opinions of the Judges of the Circuit Court are opposed. (United States v. La Vengeance, 3 Dall. Rep. 297. United States v. More, 3 Cranch's Rep. 159. Ex parte Kearny, ante, Vol. VII. p. 42.) Consequently, a criminal case affecting a consul, can only be revised in this Court upon a division of opinions of the Judges of the Court below, certified under the 6th section of the Judiciary Act of the 29th of April, 1802, c. 291. [xxxi.]

The question as to what is the law by which cases affecting ambassadors, other public ministers, and consuls, are to be determined in the Courts of the Union, in the absence of any legislative provisions by Congress applicable to the particular case, would jead into too wide a field of discussion to be embraced by the present note. It is obvious, that the law of nations would, in some

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instances, form the rule of decision; in others, such as civil causes arising out of contract, and questions of property, the laws of the several States would form the rule; but in what manner the jurisdiction of the national Courts is to be exercised in prosecutions Ortega. against consuls for offences not declared penal by any act of Congress, is a subject on which a great contrariety of opinions has prevailed. In its more general application, this has been stated as a question, whether the United States, as a national government, have any common law, or, in other words, whether the Courts of the United States have any common law jurisdiction. In a late essay upon the nature and extent of the jurisdiction of the Courts of the United States, Mr. Duponceau has proposed a very elegant and ingenious solution of this problem, by assuming a distinction between the common law as a source of power, and as a means for its exercise. From the common law, considered in the first point of view, he contends, that in this country no jurisdiction can arise; while, in the second, every lawful jurisdiction may be exer. cised through its instrumentality, and by means of its proper application. He denies its capacity to confer any powers on the Courts of the Union which they do not possess by the written code of the national government; but, he insists, that as a system of jurisprudence, it is the national law of the Union, so far as it has not been altered by the constitution, or by acts of Congress. Thus, in the case of consuls, it is the constitution which gives the jurisdiction in personam, but it is the local law of the State, (whether common or statute,) which must furnish the rule of decision in the absence of any regulation by Congress applicable to cases affecting them. And, in this view, the learned author insists, that the 34th section of the Judiciary Act of 1789, c. 20., making the laws of the several States, except where the constitution, treaties, or statutes of the United States, otherwise provide, rules of decision in trials at common law in the Courts of the Union, in cases where they apply, includes both criminal and civil cases. But the question, for all practical purposes, is settled in this Court according to the authority of the case of the United States v. Hudson and Goodwin, 7 Cranch's Rep. 32.) in which it was determined, that the Courts of the Union cannot exercise a common law jurisdiction; although it is still considered as open for discussion, whenever a case shall arise rendering it necessary to reconsider that decision. (See the United States v. Coolidge, ante, Vol. I. p. 415.)

INDEX

THE PRINCIPAL MATTERS

IN THIS VOLUME.