court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice, without an equitable, as well as a legal jurisdiction. Agreements to convey lands, claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those states, where the formal and technical distinction between LAW and EQUITY is not maintained, as in this state, where it is exemplified by every day's practice."

§ 1652. The next clause, extends the judicial power "to all cases affecting ambassadors, other 'public ministers, and consuls." The propriety of this delegation of power to the national judiciary will scarcely be questioned by any persons, who have duly reflected upon the subject. There are various grades of public ministers, from ambassadors (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained in the law and usages of nations.1 But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own

1 Three classes are usually distingnished in diplomacy; 1. Ambassadors, who are the highest order, who are considered as personally representing their sovereigns; 2. Envoys Extraordinary, and ministers plenipotentiary; 3. Ministers resident, and ministers chargés d'affaires. Mere common chargés d'affaires, are deemed of still lower rank. Dr. Lieber's Encyclopedia Americana, art. Ministers, Foreign. Vattel, B. 4, ch. 6, § 71 to 74.

country, any more than their sovereign; and their actions are not generally deemed subject to the control of the private law of that state, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions. The rights, the powers, the duties,

1 1 Black. Comm. 253; Vattel, B. 4, ch. 7, § 80, 81, 92, 99, 101; 1 Kent's Comm. Lect. 2, p. 37, 38, (2d edition, p. 38, 39.) — In the case of the Schooner Exchange v. M'Faddon, (7 Cranch, 116, 138,) the Supreme Court state the grounds of the immunity of foreign ministers, in a very clear manner, leaving the important question, whether that immunity can be forfeited by misconduct, open to future decision. “A second case," (says Mr. Chief Justice Marshall, in delivering the opinion of the court,) "standing on the same principles with the first, is the immunity, which all civilized nations allow to foreign ministers. Whatever may be the principle, on which this immunity is established, whether we consider him, as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign, at whose court he resides; still, the immunity itself is granted by the governing power of the nation, to which the minister is deputed. This fiction of ex-territoriality could not be erected, and supported against the will of the sovereign of the territory. He is supposed to assent to it.

"This consent is not expressed. It is true, that, in some countries, and in this, among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege, which he would not otherwise possess.

"The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the considerations, that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the ob

and the privileges of public ministers are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states.1 What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the law of nations, and need not be discussed here. But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than the highest judicature of the nation.

jects of his mission. A sovereign, committing the interests of his nation with a foreign power to the care of a person, whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent, that he shall possess those privileges, which his principal intended he should retain privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.

"In what cases a minister, by infracting the laws of the country, in which he resides, may subject himself to other punishment, than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such, as to render him amenable to the local jurisdiction, it must be, because they forfeit the privileges annexed to his character; and the minister, by violating the conditions, under which he was received, as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the original assent, has ceased to be entitled to them." See also 1 Black. Comm. 254, and Christian's note, (4); Vattel, B. 4, ch. 7, § 92, 99, 101; Id. ch. 8, § 113, 114, 115, 116; Id. ch. 9, § 117, 119, 120, 121, 122, 123, 124; 1 Kent's Comm. Lect. 2.

1 Ex parte Cabrera, 1 Wash. Cir. R. 232.

2 Vattel discusses the subject of the rights, privileges, and immunities of foreign ambassadors very much at large, in B. 4, ch. 7, of his Treatise on the Law of Nations.

§ 1653. It is most fit, that this judicature should, in the first instance, have original jurisdiction of such cases,1 so that, if it should not be exclusive, it might at least be directly resorted to, when the delays of a procrastinated controversy in inferior tribunals might endanger the repose, or the interests of the government. It is well known, that an arrest of the Russian ambassador in a civil suit in England, in the reign of Queen Anne, was well nigh bringing the two countries into open hostilities; and was atoned for only by measures, which have been deemed, by her own writers, humiliating. On that occasion, an act of parliament was passed, which made it highly penal to arrest any ambassador, or his domestic servants, or to seize or distrain his goods; and this act, elegantly engrossed and illuminated, accompanied by a letter from the queen, was sent by an ambassador extraordinary, to propitiate the offended czar.3 And a statute to the like effect exists in the criminal code established by the first congress, under the constitution of the United States.1

§ 1654. Consuls, indeed, have not in strictness a diplomatic character. They are deemed, as mere commercial agents; and therefore partake of the ordinary character of such agents; and are subject to the municipal laws of the countries, where they re

1 The Federalist, No. 80. See also 2 Elliot's Debates, 390, 400; The Federalist, No. 80; Marbury v. Madison, 1 Cranch, R. 137, 174, 175.

2 1 Tucker's Black. Comm. App. 361; Ex parte Cabrera, 1 Wash. Cirt. R. 232.

31 Black. Comm. 255, 256; 4 Id. 70.

4 Act of 1790, ch. 36, § 26, 27; 1 Kent's Comm. Lect. 9, p. 170, 171, (2d edition, p. 182, 183.)

side. Yet, as they are the public agents of the nation, to which they belong, and are often entrusted with the performance of very delicate functions of state, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, state and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also. The propriety of vesting jurisdiction, in such cases, in some of the national courts seems hardly to have been questioned by the most zealous opponents of the constitution. And in cases against ambassadors, and other foreign ministers, and consuls, the jurisdiction has been deemed exclusive.1

1 See Vattel, B. 2, ch. 2, § 34; Id. B. 4, ch. 6, § 75; Wicquefort, B. 1, § 5; 1 Kent's Comm. Lect. 2, p. 40, 43, [2d edition, p. 41 to 44 ;] 2 Brown's Adm. Law, ch. 14, p. 503; Viveash v. Becker, 3 Maule & Sel. R. 284; Rawle on Const. ch. 24, p. 224 to 226.

2 The Federalist, No. 80; Cohens v. Virginia, 6 Wheat. R. 396 ; 1 Kent's Comm. Lect. 2, p. 44, (2d edition, p. 45;) Rawle on Const. ch. 24, p. 224 to 226.

32 Elliot's Debates, 383, 384, 418; 3 Id. 281; 1 Tucker's Black. Comm. App. 183. Under the confederation no power existed in the national government, to punish any person for the violation of the rights of ambassadors, and other foreign ministers, and consuls. Congress, in November, 1781, recommended to the legislatures of the states, to pass laws punishing infractions of the law of Nations, committed by violating safe conducts, or passports granted by congress; by acts of hostility against persons in amity with the United States; by infractions of the immunities of ambassadors; by infractions of treaties, or conventions; and to erect a tribunal, or to vest one, already existing, with power to decide on offences against the law of nations; and to authorize suits for damages by the party injured, and for compensation to the United States, for damages sustained by them, from an injury done to a foreign power by a citizen. This, like other recommendations, was silently disregarded, or openly refused. See Journal of Congress, 23d of Nov. 1781, p. 234. Sergeant on Const. Introduction, p. 16, (2d edition.)

4 Rawle on Constitution, ch. 21, p. 203; Id. ch. 24, p. 222, 223;