OF GENERAL TRIBUNALS, AND FIRST OF THE SUPREME COURT.
A VIEW of the general
system will now be taken.
The only tribunal expressly noticed in the Constitution is the Supreme
Court, whose power is co-extensive with all the exigencies of the
government, and pervades every part of the United States, and the
territories belonging to them. In many particulars, however, it possesses
only an appellate jurisdiction; in a few, its jurisdiction is original.
In the latter are embraced all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a party.
Cases of the first description may be either civil or criminal. The
protection afforded by the laws of nations to diplomatic functionaries,
extends, however, so far that it is not easy to conceive any case in which
a person invested with that high character can be subjected either to
criminal or civil proceedings. But he may be entitled to prosecute others
— he may have received outrages or insults affecting his national
character, for which redress may be justly due. The United States, who are
responsible to foreign nations for their Ministers receiving all due
respect, and an almost unlimited freedom in the exercise of their
functions, supply the proper means for these purposes, by taking on
themselves and vesting in their highest tribunal, the cognizance of such
cases. When the proceedings are against one of these officers, we must
consider the jurisdiction of the United States as being from its own
nature exclusive of the state courts.
It may not be equally clear; if he should be the complainant, and seek
redress in either a criminal or civil case in the forum of a state, that
the latter could not take cognizance of it. The unity of the system would
perhaps be better promoted, if the state courts were authorized to decline
the cognizance of all such cases. The United States are responsible to
foreign nations for the due administration of justice in their own
tribunals only, and it might involve them in some difficulties, if state
courts, whose judges they do not appoint, and whom on account of
malconduct they could not impeach, were to intermeddle even on the
application of the minister himself in cases of this nature. But if the
state courts are not prohibited by their own constitutions, it does not
appear that they could justly refuse their assistance to a foreign
minister who thought it expedient to apply to them, although perhaps some
political inconvenience may occur to the mind reflecting on the
possibility of widely different views being entertained on the same
subject by a state court and a court of the United States.
Congress 1 has declared the
jurisdiction of the Supreme Court to be exclusive in all such suits or
proceedings against ambassadors or other public ministers, their
domestics, &c. as a court of law can have or exercise consistently
with the law of nations, but they have gone no further.
Such cases certainly come within the terms used in the Constitution affecting
ambassadors, &c., and such jurisdiction must have been intended to
The power given to congress to define and to punish offences against the
law of nations, has been partly executed by congress, 2
— 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
beendefined 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
In respect to civil suits, when a foreign minister may sue an alien, the
jurisdiction is confessedly concurrent, 3
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 might 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, he may revoke the admission of them,
4 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. 5
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.
What may be done in some other countries by the mere grant of the
executive magistrate, must with us 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
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, 7
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, 8
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 on a civil contract
either between itself and its own citizens, or citizens of another state,
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
originate 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. 9
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 congress; but the act was, in this respect, clearly held to
be unconstitutional and void, and the mandamus was refused. 10
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, 11
and therefore was of an appellate nature.
1. By the act of 24th Sept. 1789.
2. Act of April 30, 1790.
3. Act of Sept. 24, 1789.
4. Case of Du Plaine, consul
at Boston, in 1793.
5. 3 Dallas, 6.
6. Vattel, I. 2. ? 34.
7. 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."
8. 6 Wheaton, p. 399.
9. 1 Cranch, 175, Marbury v.
11. Ex parte Bollman, 4
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