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.773 Many years later, the Supreme Court held that consuls could be sued in the federal courts,774 and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme Court has been invested with original jurisdiction.775 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,776 in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony.
773 United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793).
774 Bors v. Preston, 111 U.S. 252 (1884).
775 Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
776 280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. § 1351.
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,777 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.778 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.779 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.780 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.
777 24 U.S. (11 Wheat.) 467 (1826).
778 In re Baiz, 135 U.S. 403, 432 (1890).
779 Ex parte Gruber, 269 U.S. 302 (1925).
780 1 Stat. 80-81 (1789). Jurisdiction in the Supreme Court since 1978 has been original but not exclusive. Pub. L. 95-393, § 8(b), 92 Stat. 810, 28 U.S.C. § 1251(b)(1).
Last modified: June 9, 2014