Wilcox v. Luco

HABEIS ON, J. The defendant made his promissory note to the plaintiff for the sum of two thousand dollars, and in an action brought against him thereon in the superior court for San Francisco suffered default, and judgment was rendered against him and in favor of the plaintiff for the full amount of the note. Thereafter upon his motion, based upon his affidavit that at and prior to the commencement of the action and ever since he had been consul general of the republic of Chili, residing in San [641]Francisco and engaged in performing tbe functions'of bis office, tbe court vacated and set aside tbis judgment and ordered tbe action dismissed upon tbe ground tbat by reason of bis position as consul be was not subject to tbe jurisdiction of the courts of tbis state. From this order tbe plaintiff has appealed.

Tbe correctness of tbe order appealed from is to be deteimined upon the construction to be given to tbe constitution of tbe United States and the legislation of Congress thereunder, and not upon any consideration of tbe rules of international law. The immunity of ambassadors and public ministers from suits in tbe courts of tbe country to which they are sent is not extended by any principles of international law to consuls. “Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their official duties, and whatever special privileges may be conferred upon them by the local laws and usages or by international compact, they are not entitled by tbe general law of nations to tbe peculiar immunities of ambassadors. In civil and criminal eases they are subject to tbe local law in the same manner with other foreign residents owing a temporary allegiance to the state.” (Wheaton’s International Law, see. 249; 1 Kent’s Commentaries, 44; Story on the Constitution, sec. 1660; Giddings v. Crawford, Taney, 1.)

Section 2 of article III of tbe constitution of the United States declares that: “The judicial power shall extend .... to all eases affecting ambassadors, other public ministers and consuls”; and, “In all cases affecting ambassadors, other public ministers and consuls, 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.” It is held that the judicial power thus vested in the courts of the United States is t-o be exercised in accordance with such legislation as Congress may prescribe. Wherever the constitution does not make this jurisdiction exclusive of state authority, it may be made so by Congress, and Congress may also declare the extent to which the state courts may exercise concurrent jurisdiction, as well as at wbat stage of procedure the jurisdiction of the United States courts may attach in cases originally commenced in the state courts—either after