§322. “Affecting Consuls, or Other Representatives of Other Countries.”

CONSULS.—The officers mentioned in the corresponding provision of the United States Constitution are “ambassadors, other public ministers, and consuls.” The relations of the Commonwealth with foreign powers being not diplomatic, but almost wholly commercial, the words “ambassadors” and “public ministers” were inapplicable. Thus “consuls,” who in the American provision are mentioned last in order, are the main subject of this sub-section.

Consuls, unlike ambassadors and other public ministers, are not protected by the law of nations, but are subject, both in civil and criminal cases, to the laws of the country in which they reside. (Kent, Comm. i. 44.)

“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 reside. 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.” (Story, Comm. § 1660.)

The words of the Constitution, coupling consuls with “other representatives of other countries,” seem to contemplate that jurisdiction shall only be conferred under this sub-section when the consul or other representative is affected in his official or representative capacity. (See Conv. Deb., Melb., p. 2456.) This construction is in harmony with the position of a consul as a public agent of the country which he represents. So far as his public position is concerned, the special protection of the federal jurisdiction is thrown over him; but where his public position is not affected there is no need to differentiate him from any ordinary citizen.

It would seem that the words of the United States Constitution—“affecting ambassadors, other public ministers, and consuls”—are interpreted differently as extending to the private as well as the public capacity of those dignitaries. Moreover the American Judiciary Acts make the jurisdiction exclusive of the State Courts, so that the dignitaries named can only be sued in the Courts of the Union. “This is not a mere personal privilege; it is a privilege of the foreign Sovereign, that his representative should be sued only in the Courts of the United States, with which Government alone he has relations ; and it is not waived by an omission to plead it to the action.” (Davis v. Packard, 7 Pet. 275. See also Kent, Comm. i. 45.)

“AFFECTING.”—It has been held in the United States that an indictment for offering violence to the person of a public minister is not a case “affecting” the minister.

“It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States and the individual whom they seek to punish; but one in which the Minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it.” (Per Washington, U.S. v. Ortega, 11 Wheat. at p. 469. See Story, Comm. § 1661 ; Kent, Comm. i. 39, 315.)

It seems, however, that the words of the Constitution are broad enough to cover cases where the consul or other representative is not a party, but may be affected in interest.

“If a suit be brought against a foreign minister, the Supreme Court [of the United States] alone has original jurisdiction ; and this is shown on the record. But suppose a suit to be brought which affects the interests of a foreign minister, or by which the person of his servant, or of his secretary, is arrested. The minister does not, by the

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mere arrest of his secretary or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed; not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases ‘affecting’ foreign ministers; and therefore jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to States. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons which all comprehend, to give the national courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties.” (Per Marshall, C.J., Osborn v. Bank of U.S., 9 Wheat. at p. 854. See Story, Comm. § 1662.)

“The Court has, I think, indicated that the phrase ‘affecting ambassadors,’ &c., includes all cases where the ambassador, &c., is either party to the suit or is directly affected and bound by the judgment.” (Burgess, Pol. Sci. ii. 329.)

OTHER REPRESENTATIVES.—The phrase “other representatives of other countries” is somewhat vague, but would presumably include all persons officially accredited to the Commonwealth by foreign governments. The expression, “other countries” occurs again in sec. 51—i., where trade and commerce “with other countries” means trade or commerce with persons outside the limits of the Commonwealth; but a representative of a country can hardly mean anything else than an accredited representative of the government of the country. The parallel expression in sec. 51 leads to the inference that the expression “other countries,” in this section as in that, includes all countries outside the Commonwealth, whether British or foreign.

PROOF OF JURISDICTION.—The mode in which the facts which give rise to jurisdiction are to be proved is a matter of procedure, to be regulated by the Parliament. (For U.S. cases, see Re Baiz, 135 U.S. 403: Ex p. Hitz, 111 U.S. 766; Kent, Comm. i. 39.)