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CRS Annotated Constitution

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Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held the Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.736 Many years later, the Supreme Court held that consuls could be sued in the federal courts,737 and in another case in the same year declared sweepingly that Congress could grant concur[p.727]rent jurisdiction to the inferior courts in cases where Supreme Court has been invested with original jurisdiction.738 Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in state courts against consular officials. The leading case is Ohio ex rel. Popovici v. Agler,739 in which a Rumanian vice–consul contested an Ohio judgment against him for divorce and alimony.

A number of incidental questions arise in connection with the phrase “affecting ambassadors and consuls.” Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States v. Ortega,740 the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit “affecting” the minister but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an ambassador or consul.

The Court has refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and has laid down the rule that it has the right to accept a certificate from the Department of State on such a question.741 A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.742 However, in matters of especial delicacy, such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature in which a State is a party, Congress until recently made the original jurisdiction of the Supreme Court exclusive of that of other courts.743 By its compliance with the congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose.


Cases of Admiralty and Maritime Jurisdiction

The admiralty and maritime jurisdiction of the federal courts had its origins in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice–admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.744 Since one of the objectives of the Philadelphia Convention was the promotion of commerce through removal of obstacles occasioned by the diverse local rules of the States, it was only logical that it should contribute to the development of a uniform body of maritime law by establishing a system of federal courts and granting to these tribunals jurisdiction over admiralty and maritime cases.745

The Constitution uses the terms “admiralty and maritime jurisdiction” without defining them. Though closely related, the words are not synonyms. In England the word “maritime” referred to the cases arising upon the high seas, whereas “admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. A much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.746 At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance “of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to[p.729]suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; . . .”747 This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe.748

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,749 it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that “whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.”750 The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem over controversies arising out of contracts of affreightment between New York and Providence.


736 United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C. Pa. 1793).
737 Bors v. Preston, 111 U.S. 252 (1884).
738 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
739 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. Sec. 1351 .
740 11 Wheat. (24 U.S.) 467 (1826).
741 In re Baiz, 135 U.S. 403, 432 (1890).
742 Ex parte Gruber, 269 U.S. 302 (1925).
743 1 Stat. 80 –81 (1789). Jurisdiction in the Supreme Court since 1978 has been original but not exclusive. P.L. 95–393, Sec. 8(b), 92 Stat. 810 , 28 U.S.C. Sec. 1251 (b)(1).
744 G. Gilmore & C. Black, The Law of Admiralty (Brooklyn: 1957), ch. 1.
745 Nothing really appears in the records of the Convention which sheds light on the Framers’ views about admiralty. The present clause was contained in the draft of the Committee on Detail. 2 M. Farrand, op. cit., n. 1, 186–187. None of the plans presented to the Convention, with the exception of an apparently authentic Charles Pinckney plan. 3 id., 601–604, 608, had mentioned an admiralty jurisdiction in national courts. See Putnam, How the Federal Courts Were Given Admiralty Jurisdiction, 10 L.Q.460 (1925).
746 G. Gilmore and C. Black, op. cit. n. 744, ch 1. In DeLovio v. Boit, 7 Cas.418 (No.3776) (C.C.D. Mass 1815), Justice Story delivered a powerful historical and jurisprudential argument against the then–restrictive English system. See also Waring v. Clarke, 5 How. (46 U.S.) 441, 451–459 (1847); New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 6 How. (47 U.S.) 34, 385–390 (1848).
747 Sec. 9, 1 Stat. 77 (1789), now 28 U.S.C. Sec. 1333 in only slightly changed fashion. For the classic exposition, see Black, Admiralty Jurisdiction: Critique and Suggestions, 50 Colum. L. Rev. 259 (1950).
748 E.g., DeLovio v. Boit, 7 Cas.418 (No.3776) (C.C.D. Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) C.C.E.D.Pa. 1829) Justice Washington).
749 The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner Sally, 2 Cr. (6 U.S.) 406 (1805): The Schooner Betsy, 4 Cr. (8 U.S.) 443 (1808); The Samuel, 1 Wheat. (14 U.S.) 9 (1816); The Octavig, 1 Wheat. (14 U.S.) 20 (1816).
750 New Jersey Steam Navigation Co. v. Merchants’ Bank of Boston, 6 How. (47 U.S.) 334, 386 (1848); see also Waring v. Clarke, 5 How. (46 U.S.) 441 (1847).
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