consular appointment. [1 Beawes' L. M. tit. Consuls, p. 292, 293.] The former consular convention between France and this country, allowed consuls to exercise police over all vessels of their respective nations, " within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France, was merely voluntary, and altogether exclusive of any coercive authority; [Mr. Pickering to Mr. Pinckney, January 16th, 1797.] and we have no treaty at present which concedes even such consular functions. The doctrine of our courts is, [Case of the Bello Corrunes, 6 Wheaton, 168.] that a foreign consul, duly recognised by our government, may assert and defend, as a competent party, the rights of property of the individuals of his nation, in the courts of the United States, and may institute suits for that purpose, without any special authority from the party for whose benefit he acts. But the court, in that case, said, that they could not go so far as to recognise a right in a vice-consul to receive actual restitution of the property, or its proceeds, without showing some specific power, for the purpose, from the party in interest.

No nation is bound to receive a foreign consul, unless it has agreed to do so by treaty, and the refusal is no violation of the peace and amity between the nations. Consuls are to be approved and admitted in the usual form, and if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, revoked, and to be punished according to the laws of the country in which he is consul; or he may be sent back to his own country, at the discretion of the government which he has offended. The French consuls are forbidden to be concerned in commerce, and, by the act of Congress of February 28, 1803, American consuls residing on the Barbary coast, are forbidden also; but British and American consuls are generally at liberty to be concerned in trade; and in such cases the character of consul does not give any protection to that of merchant, when these characters are united in the same person. [Beawes' L. M. vol. 1. tit. Consuls, p. 291. 1 Chitty, 57, 58. 3 Rob. Adm. Rep. 27. The Indian Chief.] Though the functions of consul would seem to require, that he should not be a subject of the state in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign conntry to be consuls at its ports.

A consul is not such a public minister as to be entitled to the privileges appertaining to that character, nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe conduct, but he is entitled to the jus gentium. Vattel thinks, that his functions require that he should be independent of the ordinary criminal

jurisdiction of the country, and that he ought not to be molested, unless he violates the law of nations by some enormous crime; and that if guilty of any crime, he ought to be sent home to be punished. But no such immunities have been conferred on consuls by the modern practice of nations; and it may be considered as settled law, that consuls do not enjoy the protection of the law of nations any more than other persons who enter the country under a safe conduct. In civil and criminal cases they are equally subject to the laws of the country in which they reside. The same doctrine declared by the public jurists, has been frequently laid down in the English and American courts of justice. It seems, however, from some decisions in France mentioned by MrWarden,* that foreign consuls cannot be prosecuted before a French tribunal for acts done by them in France by order of their govern. ment, and with the authorisation of the French government, and that in general, a consul cannot be prosecuted without the previous consent of his government. Consular privileges are much less extensive in Christian than in Mahometan countries. In the latter they cannot be imprisoned for any cause whatever, except by demanding justice against them of the Porte, and they partake very considerably of the character of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognises in relation to the foreign ministers resident at Constantinople. By treaty an entire immunity is usually given to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties.

Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the constitution of the United States, which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers, and the federal jurisdiction is understood to be exclusive of the state courts. Kent's Commentaries.

146. Consuls 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. And in cases See page 456 of this volume.

against ambassadors, and other foreign ministers, and consuls, the jurisdiction has been deemed exclusive. Story's Commentaries.

147. Consuls are under the special protection of the law of nations, and may be considered, in a general sense, as diplomatic agents of the state which names them; they cannot, however, as to this prerogative, rank in the class of public ministers, not even of those of the third order, seeing that they are not provided with letters of credit, that they are merely furnished with letters of provision, [Provisional Powers] and that, finally, they cannot enter on the discharge of their functions, until they have obtained exequatur of the sovereign power, in whose states they are to reside. Martens' Manual. 148. Those consuls sent to barbarous states, and to the ports of the Levant, are an exception to this rule: those consuls alone are accredited and treated as ministers. The greater part of them, and especially the consuls general, named by the certain powers for the several places, or over several consuls, possess, in some points, even more prerogatives than those sent to the ports of Europe. ib.

The case of the Commonwealth against Kosloff. Sup. Court, Penn. Philadelphia, Jan. Sess. 1816. [Sergeant & Rawle's Reps. vol. 5.]

149. The grand inquest for the city and county of Philadelphia, having preferred a bill of indictment for a rape, against Nicholas Kosloff, Consul General of his Imperial Majesty the Emperor of Russia, a motion has been made to quash the indictment for want of jurisdiction in this court. Two causes are assigned for our want of jurisdiction. 1. That the privilege of immunity from criminal prosecutions, is conferred on consuls by the law of nations. 2. That by the constitution and laws of the United States, exclusive jurisdiction in all cases affecting consuls, is vested in the courts of the United States.

150. It has not been contended, that a consul is a public minister,but it is said, that a consul-general, such as Mr Kosloff, is prohibited from exercising trade and commerce, and entrusted with important concerns from his sovereign, and so nearly resembles a public minister, that he is entitled to some of his prerogatives, and in particular, to exemption from criminal prosecution. In considering this case, we must exclude from our view, the august personage to whom allusion was made in the argument. Concerning his high character, and the intimacy of the relations to be preserved with him, there is but one voice,-one wish. These considerations would have their deserved weight, in the proper place. But before us there is only a naked question of right, in which all nations are equally concerned: for we cannot but see, that that which is granted as the right of one, must be conceded as the right of all. The law of nations is sought for in the usages of nations, in the opinions of approved authors, in treaties, and in the decisions of judges.

151. With regard to the privileges of consuls, there is some difference

of opinion among respectable authors. Wicquefort, Bynkershoek, and Martens, allow to a consul no privilege, against suits civil or criminal; and the reason they assign, is, that consuls in no manner represent the person of their sovereign, but are sent for the purpose of assisting his subjects, particularly in matters of commerce, and sometimes of deciding disputes, which may arise between them, by permission of the government in whose dominions they reside.

152. Opposed to them is Vattel, who, although he does not assert, that a consul is entitled to the privileges of a public minister in general, is yet of opinion, that from the nature of his functions. "he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violates the law of nations by some uncommon crime.

153. Crimes against the law of nations, are sometimes understood to be, crimes which all nations agree to punish. Such are murder, and rape, among the civilized nations: and if that be the meaning of Vattel, his authority would not exempt the consul from the present prosecution. But what is of more weight than the judgment of authors, however respectable, is the opinion and the practice of our own government, and that of the foreign nations with whom we have had intercourse.

154. We have had treaties with France, Spain. Great Britain, Holland, Prussia and Sweden, in all of which the subject of consuls has been introduced, and in not one of which, have consuls been protected from suits civil or criminal. I say nothing of our treaties with the Barbary powers, because there are special reasons why all nations who send consuls to them, take care to provide expressly for their personal security. In the treaty with Great Britain, made in 1794, consuls are expressly declared, to be subject to punishment by the law of the country in which they reside. By the consular convention with France, in 1788, there is to be full and perfect immunity, concerning the chancery and its papers, but the house of the consul is to be no asylum for persons or effects. And in our other treaties, the most that is stipulated in favor of consuls, is, that they shall respectively enjoy the same prerogatives and favors, that are granted to those of the most favoured nations. These treaties afford a strong proof of the usage of nations-for it cannot be supposed, that they should have omitted to secure consuls from criminal prosecutions, if it had been thought desirable, or usual, to afford them that protection. But there is not wanting more direct proof of the opinion of our own government: in the "act for the punishment of certain crimes against the United States," passed April 30, 1790, penalties are inflicted on persons who sue out process from any court, against an ambassador or other public minister-but the act is silent as to consuls. And what is directly to the point, the 9th sect. of the "act to establish the Judicial Courts of the United States," (passed September, 24, 1789,) vests the

District Courts with jurisdiction of offences committed by consuls, in which the punishment does not exceed a fine of 100 dollars, &c. &c. Neither are we left, on this important subject, without the light of judicial decision. Mr Ravara, consul from Genoa, was indicted and convicted for a misdemeanor, in the Circuit Court of the United States. 2 Dall. 299. He was defended by able counsel, who contended for his privilege, on the authority of Vattel. But the court decided against him; and it is worthy of remark, that Ch. J. Jay presided, who had been long employed in a diplomatic finction of a high grade at the court of Madrid, and was one of the ministers of the United States who negociated the treaty which established our independence at Paris. No person, certainly, had better opportunities of knowing the usage of nations, or a better capacity for improving these opportunities. From all these considerations, I cannot hesitate in the opinion, that there is nothing in the law of nations which protects the consul general of Russia from this indictment.

155. A more difficult question remains to be considered-Is the jurisdiction of this court taken away, by the constitution and laws of the United States.

156. An agent of a foreign government, accused of a crime committed in the state of Pennsylvania, claims, not an exemption from trial, but the right of being tried by a court of the United States. His public relations are, not with the state of Pennsylvania, but with the government of the United States: and if the emperor of Russia should suppose that he had cause to complain of our treatment of his officer, he must address himself, not to the governor of Pennsylvania, but to the President of the United States. But even where there was a cause of complaint, cases may be easily supposed, in which the president might think it more conducive to the peace of the nation, to send a foreign agent out of the country, to be punished by his own sovereign, than to inflict punishment on him, by our own laws here.

157. If it was intended by the constitution, that no inferior court of the United States should have jurisdiction, it cannot be supposed that a state court was to have it, because there is much stronger reason for denying it to the state courts, than to the inferior courts of the United States. It will be perceived, that this principle shakes the decision in the case of Ravara, who was convicted in the circuit court, though not that part of the decision which respects the privilege of a consul.

158. No embarrassment, could equal that into which this court would be thrown, should it determine, that no court of the United States has juris. diction, in a case which affects a consul in every thing short of life, when the Constitution declares, that the Supreme Court shall have jurisdiction in all cases affecting him. Upon full consideration, I am of opinion that the indictment should be quashed, because this court has no jurisdiction. Indictment quashed.