The opinion of the court was delivered by: We proceed, then, to inquire whether, under the constitution and laws of the United States, a circuit court may, under any circumstances, hear and determine a suit against the consul of a foreign government. In other words, whether other courts have been invested with exclusive jurisdiction of such suits. The constitution declares that 'the judicial power of the United States shall extend * * * to all cases affecting ambassadors or other public ministers and consuls;' to controversies between citizens of a state and foreign citizens or subjects; that 'in all cases affecting ambassadors, other public ministers and consuls, * * * the supreme court shall have original jurisdiction;' and that in all other cases previously mentioned in the same clause, '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 judiciary act of 1789 invested the district courts of the United States with 'jurisdiction, exclusively, of the courts of the several states, of all suits against consuls or vice-consuls,' except for offenses of a certain character; this court with 'original, but not exclusive jurisdiction of all suits * * * in which a consul or vice-consul shall be a party;' and the circuit courts with jurisdiction of civil suits in which an alien is a party. 1 St. 76-80. In this act we have an affirmance by the first congress–many of whose members participated in the convention which adopted the constitution, and were therefore conversant with the purposes of its framers–of the principle that the original jurisdiction of this court of cases in which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight. Very early after the passage of that act the case of U. S. v. Ravara, 2 Dall. 297, was tried in the circuit court of the United States for the district of Pennsylvania, before Justices Wilson and Iredell, of this court, and the district judge. It was an indictment against a consul for a misdemeanor of which, it was claimed, the circuit court had jurisdiction under the eleventh section of the judiciary act, giving circuit courts 'exclusive cognizance of all crimes and offenses cognizable under the authority of the United States,' except where that act 'otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein.' In behalf of the accused it was contended that this court, in virtue of the constitutional grant to it of original jurisdiction in all cases affecting consuls, had exclusive jurisdiction of the prosecution against him. Mr. Justice Wilson and the district judge concurred in overruling this objection. They were of opinion that although the constitution invested this court with original jurisdiction in cases affecting consuls, it was competent for congress to confer concurrent jurisdiction in those cases upon such inferior courts as might by law be established. Mr. Justice Iredell dissented, upon the ground that the word 'original,' in the clause of the constitution under examination, meant exclusive. The indictment was sustained, and the defendant upon the final trial, at which Chief Justice Jay presided, was found guilty. He was subsequently pardoned on condition that he would surrender his commission and exequatur.
Geo. H. Forster, for plaintiff in error.
B. F. Tracy and Wm. C. De Witt, for defendant in error.
This action was brought in the circuit court of the United States for the Southern district of New York. The plaintiff, Preston, is a citizen of that state, while the defendant is the consul, at the port of New York, for the kingdom of Norway and Sweden.
The object of the action is to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of merchandise. The answer denies the material allegations of the complaint, and, in addition, by way of counter-claim, asks judgment against the plaintiff for certain sums. To the counter-claim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant.
[Statement of Case from page 253 intentionally omitted]
Mr. George H. Forster for plaintiff in error.
Mr. B. F. Tracy for defendant in error.
[Argument of Counsel on Pages 254-255 intentionally omitted]
The assignments of error question the jurisdiction of the circuit court, under the constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government.
Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in a circuit court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is excluded from the jurisdiction of the circuit courts. In cases of which the circuit courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has, except under special circumstances declined to express any opinion upon the merits on appeal or writ of error where the record does not affirmatively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumtion, in every stage of the cause, is that it is without their jurisdiction, unless the contrary appears from the record. Grace v. American Ins. Co. 109 U. S. 283; S. C. 3 SUP. CT. REP. 207; Robertson v. Cease, 97 U. S. 646.
Much more, therefore, will we refuse to determine on the merits, and will reverse on the point of jurisdiction, cases where the record shows affirmatively that they are of a class which the statute excludes altogether from the cognizance of the circuit courts. If this were not so it would be in the power of the parties, by negligence or design, to invest those courts with a jurisdiction expressly denied to them. To these considerations it may be added that the exemption of the consul of a foreign government from suit in particular courts is the privilege, not of the person who happens to fill that office, but of the state or government he represents. It was so decided in Davis v. Packard, 7 Pet. 284. While practically it may be of no consequence whether original jurisdiction of suits against consuls of foreign governments is conferred upon one court of the United States rather than another, it is sufficient that the legislative branch of the government has invested particular courts with jurisdiction in the premises.
In U. S. v. Ortega, 11 Wheat. 467,–which was a criminal prosecution, in a circuit court of the United States, for the offense of offering personal violence to a public minister, contrary to the law of nations and the act of congress,–one of the questions certified for decision was whether the jurisdiction conferred by the constitution upon this court, in cases affecting ambassadors or other public ministers, and consuls, was not only original, but exclusive of the circuit courts. But its decision was waived and the case determined upon another ground. Of that case it was remarked by Chief Justice TANEY, in Gittings v. Crawford, Taney, Dec. 5, that an expression of opinion upon that question would not have been waived had the court regarded it as settled by previous decisions.
In Davis v. Packard, ubi supra, upon error to the court for the correction of errors of the state of New York, the precise question presented was whether, under the constitution and laws of the United States, a state court could take jurisdiction of civil suits against foreign consuls. It was determined in the negative upon the ground that, by the ninth section of the act of 1789, jurisdiction was given to the district courts of the United Siates, exclusively of the courts of the several states, of all suits against consuls and vice-consuls, except for certain offenses mentioned in the act. The jurisdiction of the state courts was denied because–and no other reason was assigned jurisdiction had been given to the district courts of the United States exclusively of the former courts,–a reason which, probably, would not have been given had the court, as then organized, supposed that the constitutional grant of original jurisdiction to this court, in all cases affecting consuls, deprived congress of power to confer concurrent original jurisdiction, in such cases, upon the subordinate courts of the Union. It is not to be supposed that the clause of the constitution giving original jurisdiction to this court, in cases affecting consuls, was overlooked, and therefore the decision in that case may be regarded as an affirmance of the constitutionality of the act of 1789, giving original jurisdiction in such cases also to district courts of the United States. And it is a significant fact that in the decision in Davis v. Packard, Chief Justice MARSHALL concurred, although he had delivered the judgments in Marbury v. Madison, 1 Cranch, 137, 1; Cohens v. Virginia, 6 Wheat. 264; and Osborn v. U. S. Bank, 9 Wheat. ...