Mannhardt v. Soderstrom

Txlghman C. J. now delivered the opinion of the court. This is an action on the case on a bill of exchange drawn by the defendant, who appeared and pleaded the general issue; at the same time entering a protest against the court’s jurisdiction, verified by his oath, in which he averred that at the time of issuing the writ in this cause he was, and still is consul general of his majesty the king of Sweden, in the United States of America. The defendant’s counsel have now brought the point of jurisdiction before the court, by a motion to quash the writ; and it is confessed by the counsel for the plaintiff that the defendant’s allegation, that he is consul general of the king of Sweden, is true. Before I proceed to deliver the opinion of the court on the main question, it will be necessary to take notice of one or two objections of the plaintiff’s counsel which relate to other points. They have placed some reliance on the circumstance of the. defendant’s having submitted to suits, judgments, and executions, in many instances; which they have proved by the records of this court, and the Common Pleas. In answer to this objection, it need only be observed, that in those cases it did not appear on the record that the defendant was a consul, and therefore the court could take no notice of it. They have also urged that the defendant is too late in excepting to the court’s jurisdiction after pleading the general issxxe; and cases have been cited on this head from the English books of practice. In answer to this objection it is sufficient to say, that by the established practice both in the courts of this state and of the United States, the court will put a stop to the proceedings in any stage on its being shewn that they have no jurisdiction. In the cases of Duncanson v. Maclure in this court, and of Snell v. Faussatt in the Circuit Court of the United States before Judge Washington, a defect of jurisdiction appearing, in the opinion of the defendant’s counsel, on the evidence given on the trial of the general issue, the point of jurisdiction was urged, and xxeither the counsel for the plaintiff, nor the court, suggested that there was any impropriety in going into the argument. These previous points being disposed of, I will consider the merits of the defendant’s motion, which will depend upon the constitution of the United States, and the “ Act to establish the [143] judicial courts of the United States” passed 24th September 1789, and commonly called the judiciary act. By the 2d section' of the 3d article of the constitution, it is declared that “ the “judicial power shall extend to all cases inlaw and equity aris- “ ing under this constitution, the laws of the United States, and- “ treaties made or which shall be made under their authority; “ to all cases affecting ambassadors, other public ministers, and “ consuls, to all cases of admiralty and maritime jurisdiction,. “ to controversies to which the United States shall be party, to “ controversies between two or more states, between a state and “ citizens of another state, between citizens of different states, “ between citizens of the same state claiming lands under grants “ of different states, and between a state or the citizens thereof “ and foreign states, citizens or subjects.” “ In all cases affecting ambassadors, other public ministers, “ and consuls, and those in which a state shall be party, the Su- “ preme Court shall have original jurisdiction; in all the other cases before mentioned, the Supreme Court shall have appel- “ late jurisdiction both as to law and fact, with such exceptions “ and under such regulations as the Congress shall make.” It is now sixteen years since the courts of the United States have been organized, and during that time the construction of the article relating to the judicial power, has been frequently considered. Many principles have been established, by which we are bound. In conformity to those principles we are to understand, that by the expressions “ the judicial power shall e.v “ tend” to the cases enumerated in the section above mentioned, Congress became invested with the right of assuming the exclusive jurisdiction for their courts; but in those of the said enu ■ merated cases, where the state courts had jurisdiction prior to the adoption of the constitution, and where the acts of Congress have not vested an exclusive jurisdiction in their own courts, the courts of the several states retain a concurrent jurisdiction. Thus in cases of “ admiralty and maritime jurisdiction,” the courts of the United States have always exercised an exclusive jurisdiction, and in disputes between “ citizens of different “ states” they have exercised a jurisdiction concurrently with the state courts. And yet in both cases the judicial power of the courts of the United States is founded on the same expression in the constitution, that is to say, that the judicial power of the [144] United States shall extend to those two cases among others that are enumerated in the same paragraph. It being then established that Congress had a right to assume an exclusive jurisdiction “ in all cases affecting consuls,” let us see what provision they have made upon that subject by their laws. The 9th section of the judiciary act ascertains the jurisdiction of the District Courts of the United States. (a) In the first parts of this section, jurisdiction is given to the District Courts in various matters both of a criminal and a civil nature, in some of which their jurisdiction is exclusive of the state courts, and in others concurrent with them. Towards the latter part of the section the District Courts are vested with 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 word suits includes those both of a civil and criminal nature; and the exception of “ offences above the description aforesaid” refers to a description in the first part of this section, viz. offences where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of imprisonment not exceeding six months, is to be inflicted. It is to be remarked that the jurisdiction of the District Courts in suits against consuls or vice consuls is exclusive of the state courts, but not exclusive of the courts of the United States; because the second section of the third article of the constitution had provided that “ in all cases affecting ambassa- * dors, other public ministers, and consuls, the Supreme Court “ shall have original jurisdiction.” Accordingly it is enacted by the thirteenth section of the judiciary act, that the Supreme Court of the United States shall have “ original but not exclu- “ sive jurisdiction of all suits in which a consul or vice consul “ shall be a party.’* Then the ninth and thirteenth sections of the judiciary act are consistent with each other and with the constitution; and in suits against consuls and vice consuls the jurisdiction of the state courts is excluded. Nor are we to wonder at this provision. One considerable object of our federal constitution was to vest in the United States the administration of those affairs [145] by which we are related to foreign nations. Consuls, although not entitled to the privilege of ministers, often exercise very important functions; and it is remarkable that in the constitution they are mentioned in conjunction with “ ambassadors and ■ “ other public ministers;” and like them they enjoy the important privilege of commencing suits in the Supreme Court of the United States. It was wise therefore to protect them from suits ,in the state courts, although they are left at liberty to bring actions against other persons in those courts, if they find it convenient and choose to do so. Upon the whole the court are of opinion, that, it appearing on the record that this suit is against the consul general of the king of Sweden, their jurisdiction is taken away by the ninth section of the judiciary act, and consequently the proceedings against the defendant must be quashed. Proceedings quashed. Footnotes [(a)] 1 U, S. Laws 53, 54.