The Judicial Power—Ambassadors Clause

The judicial Power shall extend . . . to all Cases affecting Ambassadors, other public Ministers and Consuls. . . .

—Christopher T. Landau & Chase T. Harrington

Introduction

The Ambassadors Clause of Article III extends the federal judicial power to “all Cases affecting Ambassadors, other public Ministers and Consuls.”¹ The phrase “Ambassadors, other public Ministers, and Consuls” apparently derives from a similar phrase in the British Diplomatic Privileges Act of 1708 and encompasses the full range of foreign representatives who have rights under international law. The clause seems designed both to provide a federal forum for cases involving the law of nations, including the proper application of diplomatic immunity, and to protect the United States’ international standing by ensuring proper respect for all members of foreign diplomatic missions.

History Before 1787

Going back at least to Roman times, international law has recognized that foreign diplomats duly accredited in a host nation are generally immune from that nation’s judicial process, absent a waiver of such immunity by the foreign sovereign.² Roman law disfavored permitting a lawsuit “against an ambassador . . . lest diplomacy be hampered.”³ The law of nations also obligated nations to ensure that offenses against a foreign sovereign’s diplomats would be punished to “give full satisfaction to the sovereign who has been offended in the person of his minister.”⁴

It was thus understood at the Founding that a failure to honor diplomatic immunity or to punish offenses against foreign diplomats could damage relations with other countries. For example, in 1708, the Russian ambassador to Great Britain was seized by creditors and jailed as a result of his debts. He was freed on bail, but Czar Peter of Russia demanded that the creditors responsible be severely punished. The creditors were put on trial and found guilty of violating the law of nations, but English law punished such infractions only as misdemeanors.⁵ In response to these tensions, Parliament passed the Diplomatic Privileges Act of 1708.⁶ This statute prohibited all judicial process against “Ambassadors or other publick Ministers” and prohibited their arrest.⁷ Justice Joseph Story referenced this incident as the “well known” backdrop of Article III’s Ambassadors Clause.⁸

After the United States declared independence from Great Britain, only state governments had authority to protect foreign diplomats and punish violations against the law of nations. The most the Continental Congress could do was implore states to carry out this responsibility. Thus, in 1781, Congress passed a resolution imploring states to “provide expeditious, exemplary and adequate punishment” for “infractions of the immunities of ambassadors and other public ministers.”⁹ The resolution also advised states to “authorise suits . . . for damages by the party injured, and for compensation to the United States for damage sustained by them from an injury done to a foreign power by a citizen.”¹⁰ Most states ignored this resolution.¹¹

Congress’s impotence led to crisis when a French adventurer, Charles Julian De Longchamps, assaulted the Secretary of the French legation in the United States, Francis Marbé-Marbois.¹² Following his arrest and release on bail, De Longchamps continued to harass Marbois, even threatening assassination, provoking international outrage.¹³ When De Longchamps was eventually put on trial in Pennsylvania, all Congress could do was pass a resolution that it “highly approve[d]” that the law of nations was at last being enforced.¹⁴

The Constitutional Convention

Despite profound differences among the delegates over the scope of the proposed federal judicial power, there is no record of any controversy about extending that power to cases involving foreign diplomats. Edmund Randolph of Virginia, perhaps in reference to the Marbois incident, lamented that “[i]f the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender.”¹⁵ Both the Virginia Plan (which contemplated a relatively broad role for the federal judiciary) and the New Jersey Plan (which contemplated a relatively limited role) recognized that the federal judicial power should encompass cases involving foreign diplomats. There was a general concern that state courts could trigger diplomatic incidents by failing to accord such diplomats the immunity and respect due them under international law.¹⁶ The ideal forum for such cases would be federal court.

The Committee of Detail therefore drafted Article III to extend the federal judicial power “to all Cases affecting Ambassadors, other public Ministers, and Consuls.”¹⁷ The provision was not the subject of any debate at the Convention, even in light of the heated discussion about the scope of federal judicial power. Nor did the Committee of Style make any changes.¹⁸

The Ratification Debates

The Ambassadors Clause similarly excited no controversy during the ratification debates. In Federalist No. 80, Alexander Hamilton noted that the extension of the federal judicial power to cases involving foreign diplomats has “an evident connection with the preservation of the national peace.” Even the Anti-Federalists agreed that such cases belonged within federal jurisdiction. Brutus observed that “none but the general government, can, or ought to pass laws on their subjects.”¹⁹ Agrippa agreed that “[t]he judicial department” should decide “cases where Ambassadours are concerned.”²⁰ George Mason, expressing his fear of federal courts at the Virginia ratification convention, nevertheless spoke in favor of “judicial cognizance in all cases affecting ambassadors, foreign ministers and consuls.”²¹

Statutory Limits on Jurisdiction Under the Ambassadors Clause

As noted, the Ambassadors Clause grants the federal courts jurisdiction over certain types of cases but does not purport to withdraw state court jurisdiction over such cases. Congress has never extended federal jurisdiction under the clause to its full limits. Article III establishes the outer bounds of federal jurisdiction but Congress is not required to extend such jurisdiction to those outer limits.²²

Section 13 of the Judiciary Act of 1789 gave the Supreme Court original and “exclusive 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.” This category concerned cases where the ambassadors and public ministers were the defendants. Section 13 also granted the Supreme Court “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.”²³ Here, ambassadors and public ministers could bring suit as plaintiffs in the Supreme Court, invoking its original jurisdiction, or in a lower federal court. (See Essay No. 134.) Moreover, the Supreme Court would have original but not exclusive jurisdiction in cases where a consul or vice consul is a plaintiff or a defendant. Section 9 added that federal district courts “shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls,” subject to certain exceptions.

State courts continue to enjoy concurrent jurisdiction, apart from specific categories of cases involving foreign diplomats that Congress commits to the exclusive jurisdiction of federal courts.²⁴ For example, State of Ohio ex rel. Popovici v. Agler (1930) held that an American divorce suit against a Romanian official could be brought in Ohio because Congress had not divested state courts of family law matters involving foreign diplomats.²⁵

What Suits “Affect” Ambassadors?

The Crimes Act of 1790 extended broad immunity to diplomatic personnel and their families.²⁶ This statute was based on the English Diplomatic Privileges Act of 1708. This immunity can be raised in federal court, but over what sorts of suits involving diplomats do federal courts have jurisdiction? In Osborn v. Bank of the United States (1824), Chief Justice John Marshall emphasized in dicta that this judicial power extends beyond cases in which a foreign diplomat is a party.²⁷ Marshall considered “a suit . . . [that] affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested.” In such a case, the “actual defendant pleads to the jurisdiction of the court, and asserts his privilege.”²⁸ Under the immunity statute, Marshall suggested that “if the suit affects a foreign minister, it must be dismissed not because [the minister] is a party to it, but because it affects him.”²⁹

Just two years later, however, the Supreme Court suggested a far narrower interpretation of “affecting.” United States v. Ortega (1826) held that a federal prosecution of a criminal defendant charged with assaulting a Spanish diplomat was not a case “affecting a public minister” that had to be brought in the Court’s original jurisdiction.³⁰ Rather, this case “affects the United States, and the individual whom they seek to punish.”³¹ The minister was “injured by the assault, but has no concern, either in the event of the prosecution, or in the costs attending it.”³² As a result, the prosecution could be brought in the lower federal court.

Modern Doctrine

Federal law today gives the district courts “original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against consuls or vice consuls of foreign states.”³³ That jurisdiction extends further to suits against “members of a mission or members of their families” as those terms are defined in the Diplomatic Relations Act of 1978.³⁴ The Supreme Court has “original but not exclusive jurisdiction” over “[a]ll actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties.”³⁵

The phrase “Ambassadors, other Public Ministers, and Consuls” refers to foreign diplomats accredited to the United States; it does not encompass diplomats or other government officials of the United States itself. Ex parte Gruber (1925) dismissed on jurisdictional grounds a proceeding brought against a United States consul general serving in Canada. As the Court explained, “[t]he provision, no doubt, was inserted in view of the important and sometimes delicate nature of our relations and intercourse with foreign governments.”³⁶ This authority “is a privilege, not of the official, but of the sovereign or government which he represents, accorded from high considerations of public policy, considerations which plainly do not apply to the United States in its own territory.”³⁷ In determining whether a particular party claiming diplomatic status in fact qualifies for that status, the Court has expressed a willingness to defer to the executive branch.

Open Questions

• What are the outer limits of suits “affecting” ambassadors? If Congress sought to extend federal jurisdiction to the outer limits of the Ambassadors Clause, could it establish federal jurisdiction over all suits in which a foreign diplomat may be called as a witness?
• Does the Ambassadors Clause provide Congress with any substantive powers, such as the power to pass a federal law punishing those who commit torts against foreign diplomatic personnel?
• Could Congress provide for exclusive federal jurisdiction over state criminal cases against foreign diplomats? In 1820, a South Carolina court held that a consul could be tried for violating a state criminal law in state court.³⁸ Was this case wrongly decided as a textual matter?³⁹

1. Art. III, § 2, cl. 1. ↩︎
2. E. de Vattel, The Law of Nations, bk. IV, § 110 (1758). ↩︎
3. Justinian’s Digest. lib. v. tit. 1, De Judiciis, &c. leg. 24, § 2. ↩︎
4. Vattel, supra § 80. ↩︎
5. Margaret Buckley, Origins of Diplomatic Immunity in England, 21 U. Miami L. Rev. 349, 357 (1966). ↩︎
6. Id. ↩︎
7. Diplomatic Privileges Act, 1708, 7 Anne, c. 12, 88 3–4. ↩︎
8. 3 Story’s Commentaries, § 1653; Davis v. Packard, 32 U.S. 276 (1833). ↩︎
9. 21 J. Cont. Cong. 1136–37 (Nov. 23, 1781). ↩︎
10. Id. at 1137. ↩︎
11. Sosa v. Alvarez-Machain, 542 U.S. 692, 716 (2004). ↩︎
12. Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784). ↩︎
13. William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 491–94 (1986). ↩︎
14. 27 J. Cont. Cong. 502–04 (June 1, 1784). ↩︎
15. 1 Farrand’s 25. ↩︎
16. Id. at 21–22, 25, 242–45. ↩︎
17. 2 Farrand’s 422–26. ↩︎
18. Id. at 576. ↩︎
19. Storing 2.9.160. ↩︎
20. Storing 4.6.75. ↩︎
21. 3 Elliot’s 523. ↩︎
22. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494–96 (1983). ↩︎
23. Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73, 80–81 (emphasis added). ↩︎
24. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 517 (1898). ↩︎
25. 280 U.S. 379 (1930). ↩︎
26. Crimes Act of April 30, 1790, ch. 9, §§ 25–27, 1 Stat. 112, 117–18. ↩︎
27. 22 U.S. (9 Wheat.) 738 (1824). ↩︎
28. Id. at 854–55. ↩︎
29. Id. ↩︎
30. 24 U.S. (11 Wheat.) 467, 469 (1826). ↩︎
31. Id. ↩︎
32. Id. ↩︎
33. 28 U.S.C. § 1351; Diplomatic Relations Act, Pub. L. No. 95-393, 92 Stat. 808 (1978) (codified at 22 U.S.C. § 254a et seq. and 28 U.S.C. § 1364 (Supp. 11 1978)). ↩︎
34. Id. ↩︎
35. 28 U.S.C. § 1251. ↩︎
36. Ex parte Gruber, 269 U.S. 302, 303 (1925). ↩︎
37. Id. ↩︎
38. State v. De La Foret, 2 Nott & McC. 217 (Const. App. Ct. S.C. 1820). ↩︎
39. Josh Blackman, State Judicial Sovereignty, 2016 Ill. L. Rev. 2033, 2088–89, 2097–98 (2016). ↩︎