The United States v. Ortega

• Decision Date: 16 March 1826
• Citation: 6 L.Ed. 521,11 Wheat. 467,24 U.S. 467
• Parties: THE UNITED STATES v. ORTEGA
• Court: U.S. Supreme Court

24 U.S. 467

6 L.Ed. 521

11 Wheat. 467

THE UNITED STATES v. ORTEGA.

March 16, 1826

March 16th.

Mr. Justice WASHINGTON delivered the opinion of the Court.

The defendant, Juan Gualberto de Ortega, was indicted in the Circuit Court of the United States for the eastern District of Pennsylvania, for infracting the law of nations, by offering violence to the person of Hilario de Rivas y Salmon, the charge d'affaires of his Catholic Majesty the King of Spain in the United States, contrary to the law of nations, and to the act of the Congress of the United States in such case provided. The jury having found a verdict of guilty, the defendant moved in arrest of judgment, and assigned for cause, 'that the Circuit Court has not jurisdiction of the matter charged in the indictment, inasmuch as it is a case affecting an ambassador or other public minister.' The opinions of the Judges of that Court upon this point being opposed, the cause comes before this Court upon a certificate of such disagreement.

The questions to which the point certified by the Court below gives rise, are, first, whether this is a case affecting an ambassador or other public minister, within the meaning of the second section of the third article of the constitution of the United States. If it be, then the next question would be, whether the jurisdiction of the Supreme Court in such cases, is not only original, but exclusive of the Circuit Courts, under the true construction of the above section and article.

The last question need not be decided in the present case, because the Court is clearly of opinion, that this is not a case affecting a public minister, within the plain meaning of the constitution. 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.

It is ordered to be certified to the Circuit Court for the eastern District of Pennsylvania, that that Court has jurisdiction of the matter charged in the indictment, the case not being one which affects an ambassador or other public minister.

Certificate accordingly.^a States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.' And that, 'in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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 Crimes Act, of 1790, c. 36. [ix.] s. 25. enacts, 'That if any writ or process shall at any time be sued forth or prosecuted by any person or persons in any of the Courts of the United States, or in any of the Courts of a particular State, or by any Judge or Justice therein respectively, whereby the person of any ambassador, or other public minister, of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized, or attached, such writ or process shall be deemed and adjudged to be utterly null and void, to all intents and purposes whatsoever. (s. 26.) That in case any person or persons shall use forth or prosecute any such writ or process, such person or persons, and all attorneys or soliciters, prosecuting or soliciting in such case, and all officers executing any such writ or process, being thereof convicted, shall be deemed violators of the law of nations, and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the Court.' The same section also contains a proviso, excepting from the operation of the preceding sections, any citizen or inhabitant of the United States, who shall have contracted debts before entering into the service of such minister, and requiring the name of such servant to be previously registered in the office of the Secretary of State, &c. The 27th section provides, 'That if any person shall violate any safe conduct or passport duly obtained, and issued under the authority of the United States, or shall assault, strike, wound, imprison, or in any manner infract the law of nations, by offering violence to the person of an ambassador, or other public minister, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the Court.'

The Judiciary Act of 1789, c. 20. s. 9. provides, 'That the District Courts shall have, exclusively of the Courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted.' 'And shall also have jurisdiction, exclusively of the Courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid.' The same act (s. 11.) provides, that the Circuit Courts 'shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States, shall otherwise direct, and concurrent jurisdiction with the District Courts, of the crimes and offences cognizable therein.' It also provides (s. 13.) that the Supreme Court 'shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a Court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul, or vice-consul, shall be a party.'

The question whether the jurisdiction of the Supreme Court in 'all cases affecting ambassadors, other public ministers, and consuls,' is exclusive as well as original, under the constitution, so as to preclude Congress from vesting in any other tribunal jurisdiction over such cases, has never been decided in terms by this Court. But, it was held, as early as the year 1793, in the Circuit Court for the District of Pennsylvania, by WILSON and PETERS, J. J. (IREDELL, J. dissenting,) that the jurisdiction in a criminal prosecution against a foreign consul, who was indicted for a misdemeanor at common law, was constitutionally vested in that Court, under the 11th section of the Judiciary Act of 1789, c. 20. (The United States v. Ravara, 2 Dall. Rep. 297.) It has, however, been expressly determined by this Court, that the clause of the constitution giving the Supreme Court appellate jurisdiction in all other cases than those in which original jurisdiction is granted, does not exclude the Court from exercising appellate jurisdiction in cases 'arising under the constitution, laws, and treaties of the Union,' and in 'cases of admiralty and maritime jurisdiction,' although an ambassador, other public minister, or consul, may be a party. If, for example, a foreign minister is sued in a State Court by an individual, and that Court should take jurisdiction, and give judgment against the minister, the Supreme Court of the United States may revise the judgment under the appellate powers given to it by the 25th section of the Judiciary Act of 1789, c. 20. So, where the inferior Courts of the Union take cognizance, as Courts of admiralty and maritime jurisdiction, of suits brought by foreign consuls in maritime causes in which their fellow citizens are interested, the appellate power of this Court has been constantly exercised....