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own citizens or inhabitants. It is a settled principle of the laws of war that a spy may be put to death. One detected in his obnoxious employment within our lines in time of war, although not himself a soldier, is a legitimate subject of this severity; and upon the same principle we should be bound to admit the right of the enemy to execute any of our citizens or soldiers, apprehended by them in the performance of the same act.
We have heretofore adverted to the procedure of president Madison in the case of a citizen of the United States who had joined the enemy during the late war, and was apprehended as a spy within our lines on the frontiers: the course pursued by his directions, was both humane and consistent with the true principles of law. It gave to the individual the fairer prospect of acquittal on a trial by jury, accompanied with all the guards and precautions allotted to charges of treason ; while it more extensively enforced a principle of which all should be apprized, that it is lawful for no one to desert his country in the hour of her danger, and lift a parricide arm against her.
OF GENERAL TRIBUNALS, AND FIRST OF THE SUPREME
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* 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 Con
* By the act of 24th Sept. 1789.
stitution affecting ambassadors, f-c., and such jurisdiction must have been intended to be exclusive.
The power given to congress to define and to punish offences against the law of nations, has been partly executed by congress, *—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 been defined 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 resorted to.
In respect to civil suits, when a foreign minister may sue an alien, the jurisdiction is confessedly concurrent,f 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
* Act of April 30, 1790.
+ Act of Sept. 24, 1789.
to do so. When he deems it expedient, he may revoke the admission of them,* 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.f
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. I
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
* Case of Du Plaine, consul at Boston, in 1793.
# Vattel, 1. 2. $ 34.