them, have been put into full operation and defined and perfected by statutes, which we designate the laws of the United States. Whenever, therefore, an individual has a claim or right under a statute of the United States, which he seeks to enforce, we see that this can be done by-and that the proper place to seek the power to accomplish it is in-some one of the different branches of the judicial department of the Government of the United States.''8

To all Cases arising under Treaties.-The clause extending the judicial power "to treaties" was introduced by Mr. Rutledge as an amendment to the report of the Committee of Detail, and passed without objection."

In considering the judicial power as extended to cases arising under a treaty we find a new element enters into the consideration. This is because of the character of a treaty. A treaty is a compact between independent and sovereign nations, and is not an agreement between parties or between corporations. Cases, therefore, which arise under a treaty contain different characteristics from those which arise out of the ordinary relations of contract.10 Every treaty, therefore, possesses a political character and the rights acquired under it are to that extent wholly independent of any rule affecting or controlling rights which can be enforced by judicial process, but are enforceable by the parties to the treaty.

"A treaty is the law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.'

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But there are questions arising under the Constitution, the laws, and treaties of the United States which are political in their nature and to which the judicial power does not extend, and which are controlled by

8 Miller on the Constitution, 320–321.

9 Journal, 617.

10 Head Money Cases, 112 U. S., 580, 598.

11 United States v. Rauscher, 119 U. S., 407-419.

the executive or legislative branches of the government. Paschal gives the following illustrations of these:

Where the title to property depended on the question, whether the land was within a cession by treaty to the United States, after our government, legislative and executive, had claimed jurisdiction over it, the courts must consider that question as a political one, the decision of which having been made in this. manner, they must conform to it.

So the protection of the Indians in their possessions seems to be a political question.

So as to State boundaries, unless agreed to be settled, as a judicial question. And so of foreign treaties, as to confiscations. So which must be regarded as the rightful government abroad between two contending parties, is never settled by the judiciary, but is left to the general government.

The same rule has been applied in a contest as to which is the true Constitution, between two, or which possesses the true legislative power in one of our own States.12

To all Cases affecting Ambassadors, other Public Ministers and Consuls.-The judicial power is also extended to all cases affecting ambassadors, other public ministers and consuls. In this clause, it is applied to a different classification from the preceding ones. Previously it extended to all cases in law or equity, which arose under the Constitution, the laws of the United States, and treaties made under authority of the Constitution or laws, but now the language changes and deals with cases which affect certain public officials, whom the Constitution designates as ambassadors, other public ministers and consuls. This is the first use in the Constitution of the word "affecting," and it is important to ascertain its meaning.13 As it appears in this connection, it has undergone judicial consideration, but not judicial construction. It was considered in the case of United States v. Ortega,14 where the court stated

12 Paschal on the Constitution, 195.

13 Von Holst says, this expression is vague enough to leave its interpretation quite at the discretion of the judge. Constitutional Law of the United States, 217.

14 11 Wheaton, 468.

an

that an indictment of a private individual for assault upon a public minister was not a case affecting such minister within the meaning of this clause; that it was 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 of the United States, that it affected the United States and the individual making the assault, but did not affect the public minister. Under an act of Congress, which gave jurisdiction to the circuit court of all causes, civil and criminal, affecting persons who are denied in a State court, or who cannot enforce in that court, the rights given them by the act, the question was whether a criminal prosecution for a public offense was a cause "affecting," within the meaning of the act, persons who might be called to testify. The court-the Chief Justice and an associate Justice dissenting-held it was not, saying the only parties to such a cause were the government and the one indicted, that they alone could be reached by any judgment of the court, and witnesses, either for the prosecution or the defense were not affected by it.15 But these cases only held that the particular conduct complained of did not affect a public minister or a witness, and did not define what conduct would affect officials within this clause.

Judge Story says, "It seems difficult to conceive how there can be a case affecting an ambassador, in the sense of the Constitution, unless he is a party to the suit on record, or is directly affected and bound by the judgment. ''16 The language of the Constitution is probably broad enough to cover cases where he is not a party, but may yet be affected in interest.

The subject was discussed by Chief Justice Marshall, in his opinion in Osborn v. Bank." "If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested. The

15 Blyen v. United States, 13 Wallace, 581, 592, 593.

16 2nd Story, 463.

179 Wheaton, 854.

minister does not, by the 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 the 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."

There is a general similarity in the position of ambassadors, ministers and consuls. They represent their governments in their respective positions in the countries to which they are appointed, but in another sense, their duties are wholly different. To ambassadors are committed the most delicate diplomatic affairs. At the time the Constitution was framed the highest official in the diplomatic service abroad was a minister. There no ambassadors appointed by the United States until 1893, when the position was created and Hon. Thomas F. Bayard was appointed Ambassador to the Court of St. James. Since then other ambassadors have been appointed and there are now ten such officials representing the United States, who are accredited to the following countries: Austria-Hungary, Brazil, France, Germany, Great Britain, Italy, Japan, Mexico, Russia and Turkey. Ambassadors are the highest representatives of their country abroad, while ministers are the second. highest. Consuls are the most numerous class which represent their country in foreign countries, and in rank constitute the third class of foreign representatives. Any foreign official in the United States belonging to either

of these classes is entitled to have any case which affects him, tried in a court of the United States and he cannot be deprived of such right. Such officials are the representatives of foreign governments in the United States and the Constitution most wisely and justly provides that their rights shall be determined in a tribunal which sustains sovereign relations to the nations which they represent and not in a State tribunal which can possess no sovereign relation to a foreign country. "The place of a foreign minister or consul," says Mr. Madison, "is to be viewed as created by the law of nations, to which the United States, as an independent nation, is a party, and as always open for the proper functionaries, when sent by the constituted authority of one nation and received by that of another. The Constitution, in providing for the appointment of such functionaries, presupposes this mode of intercourse branch of the law of nations.

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as

The word "minister" is defined by the Revised Statutes of the United States, to mean, "Any person invested with, and exercising the principal diplomatic functions." The word "consul" is defined by the same section to mean, "Any person invested by the United States with, and exercising the functions of consul general, vice consul general, consul, or vice consul."'19

Ambassadors, public ministers and consuls are representatives of a class recognized by the law of nations. They may be designated ambassadors, envoys, ministers, commissioners, charges d'affaires, agents, or otherwise, but in substance they possess the same functions, rights and privileges as agents of their respective governments for the transaction of its diplomatic business abroad, and their designations are chiefly significant as they relate to rank, precedence, or dignity.

Consuls do not seem to be charged with the performance of diplomatic duties, unless especially so designated for some temporary purpose.20 A consul, "though a

public agent, is supposed to be clothed with authority

18 Madison's Writings, vol. IV, 350.

19 R. S. sec. 4130. This act was passed prior to the act creating the position of ambassador.

20 In re Baig, 135 U. S., 403, 419, 423.