ArtIII.S2.C2.1.2 Original Cases Affecting Ambassadors, Public Ministers, & Consuls

Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

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.1 Many years later, the Supreme Court held that consuls could be sued in federal court,2 and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where Supreme Court has been invested with original jurisdiction.3 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,4 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,5 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.6 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.7 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.8 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.

Footnotes

  1.  Jump to essay-1United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793).
  2.  Jump to essay-2Bors v. Preston, 111 U.S. 252 (1884).
  3.  Jump to essay-3Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
  4.  Jump to essay-4280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351.
  5.  Jump to essay-524 U.S. (11 Wheat.) 467 (1826).
  6.  Jump to essay-6In re Baiz, 135 U.S. 403, 432 (1890).
  7.  Jump to essay-7Ex parte Gruber, 269 U.S. 302 (1925).
  8.  Jump to essay-81 Stat. 80-81 (1789). Jurisdiction in the Supreme Court since 1978 has been original but not exclusive. Pub. L. No. 95-393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1).