CHAPTER II.

CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS, AND CONSULS.

§ 31. The next class of cases assigned by the Constitution to the judicial power of the United States, includes "all cases affecting ambassadors, other public ministers, and consuls." These cases were included in the jurisdiction of the national tribunals, from motives of the most important national policy. Involving the relations of the national government with foreign powers, it is extremely fit that the national judiciary should be able to reach controversies of this description.

§ 32. They constitute a class of cases where the nature of the controversy is, in some degree, blended with the character of the party. An ambassador, or other public minister, may be "affected" by a cause, according to the meaning of the Constitution, and yet he may not be a party to the record. Indeed, it was the obvious purpose of the Constitution, not to make the jurisdiction in this class of cases to depend upon the fact that the ambassador is a party, but to give the national tribunals jurisdiction wherever this class of public functionaries were "affected." What is the precise force and extent to be given to this comprehensive expression, must depend in some degree upon the great purposes for which this clause was introduced into the Constitution."

1 Osborn v. U. S. Bank, 9 Wheat. 738, 854.

2 In Osborn v. The U. S. Bank, 9 Wheaton, 854, the Supreme Court said: "If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record.

§ 33. Its object was to insure to foreign ministers and agents, of each of the classes designated, the protection and immunity which the law of nations, or the municipal law of the United States, accords to them. That protection and that immunity are not confined to the person of the minister himself. They extend, in some degree, to those who serve under him in subordinate diplomatic situations, and to his family and servants. When, therefore, the Constitution of the United States declares that the judicial power shall extend to all cases affecting a foreign minister, it employs a broad expression, which must be understood to embrace not only cases in which the minister has a personal interest, but also those cases where the diplomatic immunity and privileges of the minister are invaded or involved, in the person of any one who is entitled to claim them through him, although the minister himself may not be a party to the proceeding. In this sense, he is clearly "affected," since a right, privilege, or exemption, claimed through him by virtue of his official character, is involved. On the other hand, if there is involved no such right, privilege, or exemption, claimed by the minister himself, or by some one

But, suppose a suit to be brought which affects the interest of a foreign minister, or by which the person of his secretary, or his servant, is arrested. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit, but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases "affecting" foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons which all comprehend, to give the national courts jurisdiction over all cases by which they were in any manner affected. In the case of states, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties."

through him, as attaching to and flowing from his official character, he cannot be "affected" by the suit in the sense of the Constitution, unless pecuniarily interested in its result. A pecuniary interest, however, ought, it would seem, to be direct and immediate, not remote and consequential.

§ 34. The Supreme Court have held that when the United States proceed by indictment for an offence against the law of nations, and that of the United States, by an assault committed upon a public minister by an individual, it is a case which affects the United States and the person whom they seek to punish, but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution, or in the costs attending it.1

2

§ 35. Who are foreign ministers, within the privileges secured by the Constitution, depends entirely upon recognition by the executive department of the government. The courts of the United States cannot inquire whether a person, recognised by the President as a foreign minister, was duly appointed by the government he claims to represent. The action of the President is conclusive. It seems, too, that the diplomatic character continues, until the party has left the country to return to his own, although he may have been superseded in his functions. It was held by the Supreme Court, that the chargé d'affaires of a foreign government near the United States, whose official functions ceased on the arrival of a minister of that government, but who was detained in the United States by circumstances, was not amenable to civil process.3

IU. States v. Ortiga, 11 Wheat. 467, 469.

U. States v. Ortiga, 4 Wash. C. C. R. 531.

3 Dupont v. Pichon, late Chargé d'Affaires of France, 4 Dallas, 321.

CHAPTER III.

CASES OF ADMIRALTY AND MARITIME JURISDICTION.

§ 36. We now come to one of the classes of cases where the jurisdiction of the courts of the United States depends upon the character of the controversy, without regard to the character of the parties, namely, "all cases of admiralty and maritime jurisdiction."

§ 37. The principle which defines the jurisdiction granted by these few comprehensive words is, that it embraces what was known and understood in the United States, as the admiralty and maritime jurisdiction, at the time when the Constitution was adopted.1 Much controversy has existed, and there has been some discrepancy between the authoritative decisions as to the nature and extent of this jurisdiction. But the general and uniform interpretation has pointed to a division of the subjects of this jurisdiction into two great branches; the one depending purely upon the locality of the act done, which is the subject of controversy, and the other depending upon the nature of the contract which forms the subject of the suit, in which, indeed, the locality where it was to be performed enters as an ingredient. The class of cases, in reference to which the jurisdiction depends purely upon locality, may be subdivided into three: viz., 1, Captures made jure belli upon certain waters, and all questions of prize and their incidents arising therefrom; 2, Crimes

The Propeller Genesee Chief, &c., v. Fitzhugh, 12 Howard, 443; The New Jersey Steam Navigation Co. v. The Merchants' Bank, 6 Howard, 344; Waring v. Clarke, 5 Howard, 441.

and offences against the laws of the United States committed upon the same waters; 3, Civil acts, torts, and injuries committed upon the same waters, not under claim or color of exercising the rights of war, as assaults and personal injuries, collisions of ships, illegal seizures or depredations upon property, illegal dispossession of ships, seizures for breaches of revenue laws, and salvage services.

§ 38. And here the question arises, which has led to a conflict of decisions, as to the locality on which the whole jurisdiction depends. What are the waters, embraced within the admiralty and maritime jurisdiction conferred by the Constition, and over which it is competent to Congress to extend that jurisdiction? With reference to this inquiry, it is to be observed, in the first place, that no doubt has been entertained, that it embraces what are called the "high seas," an expression in which are included all tide-waters, up to the line of high water mark. The doubt has been with reference

to other waters, where the tide does not ebb and flow;whether the Constitution intended to limit the admiralty jurisdiction to what are technically called the "high seas," or whether it extends to any and what waters above and beyond the line of high water mark? Upon this question, before noticing the recent decision of the Supreme Court of the United States, which has reversed former constructions of the Constitution, it will be proper to state the result of previous cases.

§ 39. The doctrine which had been acted upon until very recently, in reference to the admiralty jurisdiction, was, that in cases dependent upon locality, the jurisdiction is limited to the sea, and to tide waters, as far as the tide flows, and that it does not reach beyond high water mark. Thus, it was held that under this clause of the Constitution, the

1 United States v. Coombs, 12 Peters, 72; The Thomas Jefferson, 10 Wheat. 428; The Steamboat Orleans v. Phœbus, 11 Peters, 175; Waring v. Clarke, 5 Howard, 441.