WASHINGTON, Circuit Justice
(charging jury). This is a prosecution instituted by the United States, for the purpose of vindicating the law of nations and of the United States, offended, as is charged, in the person of a foreign minister, by an assault committed on him by the defendant. It is a case which cannot fail to be highly interesting both to the defendant and to our government. To the former, on account of the punishment which might be the consequence of conviction; and to the latter, because the government of the United States, like that of all civilized nations, is bound to afford redress for the violation of those privileges and immunities which the law of nations confers upon foreign ministers, and which are consecrated by the practice of the civilized world. A neglect, or refusal to perform this duty might lead to retaliation upon our own ministers abroad, and even to war. The case, therefore, from its importance, recommends itself to the gravest attention both of the court and of the jury.
There are two questions for your consideration: (1) Is the charge, that an assault was committed by the defendant upon the person of Mr. Salmon, sufficiently proved? If it be, then (2) Was Mr. Salmon a public minister at tlie time the assault was made?
1. (After summing up the evidence as before stated, the judge proceeds:) It was argued by the counsel for the defendant, that, to constitute an assault, it must be accompanied by some act of violence. The mere taking hold of the coat, or laying the hand gently upon the person of another, it is said, does not amount to this offence; and that nothing more is proved in this ease, even by Mr. Salmon. It is very true that these acts may be done, very innocently, without offending the law. If done in friendship, for a benevolent purpose, and the like, the act would certainly not amount to an assault. But these acts, if done in anger, or a rude and insolent manner, or with a view to hostility, amount, not only to an assault, but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or holding up one’s fist at him, if done in anger or in a menacing manner, are considered by the law as assaults. It is then [361]*361for yon to say whether, from the evidence which has been given in the cause, Mr. Salmon was seized, or laid hold of, by -the defendant, in kindness and for a justifiable cause, or in anger and with hostile intentions? If the latter, it is an unquestionable case of assault and battery.
It was further argued by the defendant’s counsel, that the only witness to prove the assault, is the party who considers himself to have been aggrieved, and therefore, that his evidence ought to be received with great caution, particularly, as another witness, Mr. Wallace, who was present, did not observe the defendant to have hold of Mr. Salmon’s coat. It is for the jury to say, whether the evidence of this fact, as stated by Mr. Salmon, is contradicted by Mr. Wallace; and if it be, whose statement is most to be believed; and whether this latter witness, who deposed that he passed the parties in the night and stopped at some paces from them, had it as much in his power to give them correct information in relation to this fact, as Mr. Salmon, who was immediately engaged in the transaction had? If there be no absolute contradiction, tlA mere circumstance that the testimony given in support of the prosecution is by the party alleged to be aggrieved, ought to have very little influence in the decision of the ease. The law makes him a competent witness. He has no interest whatever in the decision of the case; and, if his character be unimpeaehed, his testimony given in such a manner as not to justify a suspicion of his want of strict veraóity, and he stands uneontradicted by other testimony, he is a credible witness, and entitled to be believed. Again, it has been insisted, that, by waving his privilege in becoming a voluntary witness, he has himself violated the law of nations, and his duty to his sovereign. If this be so, that is a matter to be settled by them. We have nothing to do with it. It deprives him neither of his competency, nor of his credibility.
But should the jury feel doubts as to the first assault, on the ground of any discrepance in the evidence, the witnesses all agree that, after Mr. Salmon released the defendant upon his promise to keep the peace, the defendant again approached him in a hostile, or menacing manner, with his arm raised, when a further conflict was prevented by the commendable interposition of Mr. Smith. That this act amounted to an assault admits of not the slightest doubt, and brings the case within the provisions of the twenty-seventh [28th] section of the crime act of 1790 [1 Stat. 11S], provided Mr. Salmon was a foreign minister; which is the second point to be considered.
2. Was Mr. Salmon a foreign minister, at the time the alleged offence was committed? The following evidence has been given to Xirove the public character of this gentleman. (Here the evidence before mentioned was stated to the jury.) The counsel for the defendant have gone into a rigid examination of the credentials of Mr. Salmon. They deny that any thing short of credentials emanating from the sovereign, from some department of his government charged to perform duties of this nature, could constitute him a minister; and, that, even if the appointment of a minister under the constitutional government of Spain was sufficient, it became void by the revolution, which restored the king to his former power, and rendered a reappointment necessary.
If these were questions fit for judicial inquiry and decision, we should say that the appointment of a charge d’affaires by a foreign minister, upon his retiring from the station to which he had been appointed, is usual in practice; and if he be recognized as such by that branch of the government which is authorised to receive ministers, and with which he is to transact the business of his own sovereign, his character of minister is unquestionable. And further, that if, after the constitutional government of Spain terminated, a reappointment, or a recognition, by the king, of the public character of this gentleman were necessary, still, as he is found, after a lapse of about two years, the recognized minister of Spain by our government, we ought to presume that his sovereign has done all that he thought necessary to clothe him with that character.
But the conclusive answer to these arguments is, that these are matters of state, with which courts of justice have nothing to do. The constitution of the United States having vested in the president the power to receive ambassadors and other public ministers, has necessarily bestowed upon that branch of the government, not only the right, but the exclusive right, to judge of the credentials of the ministers so received; and so long as they continue to be recognized and treated by the president as ministers, the other branches of the government are bound to consider them as such. If courts of justice could sit in judgment upon the decision of the executive in reference to the public character of a foreign minister, and by pronouncing him to be unduly appointed, or improperly recognized, deprive him of tbe privileges of a minister, what an extraordinary anomaly would such an interference present to the world! The individual who should be placed in this predicament, would, for all the purposes of his own, and of this government, be a minister, the representative of his sovereign, authorised to transact the business with which he is charged, and to bind his sovereign, whilst acting in obedience to his orders; and yet.
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WASHINGTON, Circuit Justice
(charging jury). This is a prosecution instituted by the United States, for the purpose of vindicating the law of nations and of the United States, offended, as is charged, in the person of a foreign minister, by an assault committed on him by the defendant. It is a case which cannot fail to be highly interesting both to the defendant and to our government. To the former, on account of the punishment which might be the consequence of conviction; and to the latter, because the government of the United States, like that of all civilized nations, is bound to afford redress for the violation of those privileges and immunities which the law of nations confers upon foreign ministers, and which are consecrated by the practice of the civilized world. A neglect, or refusal to perform this duty might lead to retaliation upon our own ministers abroad, and even to war. The case, therefore, from its importance, recommends itself to the gravest attention both of the court and of the jury.
There are two questions for your consideration: (1) Is the charge, that an assault was committed by the defendant upon the person of Mr. Salmon, sufficiently proved? If it be, then (2) Was Mr. Salmon a public minister at tlie time the assault was made?
1. (After summing up the evidence as before stated, the judge proceeds:) It was argued by the counsel for the defendant, that, to constitute an assault, it must be accompanied by some act of violence. The mere taking hold of the coat, or laying the hand gently upon the person of another, it is said, does not amount to this offence; and that nothing more is proved in this ease, even by Mr. Salmon. It is very true that these acts may be done, very innocently, without offending the law. If done in friendship, for a benevolent purpose, and the like, the act would certainly not amount to an assault. But these acts, if done in anger, or a rude and insolent manner, or with a view to hostility, amount, not only to an assault, but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or holding up one’s fist at him, if done in anger or in a menacing manner, are considered by the law as assaults. It is then [361]*361for yon to say whether, from the evidence which has been given in the cause, Mr. Salmon was seized, or laid hold of, by -the defendant, in kindness and for a justifiable cause, or in anger and with hostile intentions? If the latter, it is an unquestionable case of assault and battery.
It was further argued by the defendant’s counsel, that the only witness to prove the assault, is the party who considers himself to have been aggrieved, and therefore, that his evidence ought to be received with great caution, particularly, as another witness, Mr. Wallace, who was present, did not observe the defendant to have hold of Mr. Salmon’s coat. It is for the jury to say, whether the evidence of this fact, as stated by Mr. Salmon, is contradicted by Mr. Wallace; and if it be, whose statement is most to be believed; and whether this latter witness, who deposed that he passed the parties in the night and stopped at some paces from them, had it as much in his power to give them correct information in relation to this fact, as Mr. Salmon, who was immediately engaged in the transaction had? If there be no absolute contradiction, tlA mere circumstance that the testimony given in support of the prosecution is by the party alleged to be aggrieved, ought to have very little influence in the decision of the ease. The law makes him a competent witness. He has no interest whatever in the decision of the case; and, if his character be unimpeaehed, his testimony given in such a manner as not to justify a suspicion of his want of strict veraóity, and he stands uneontradicted by other testimony, he is a credible witness, and entitled to be believed. Again, it has been insisted, that, by waving his privilege in becoming a voluntary witness, he has himself violated the law of nations, and his duty to his sovereign. If this be so, that is a matter to be settled by them. We have nothing to do with it. It deprives him neither of his competency, nor of his credibility.
But should the jury feel doubts as to the first assault, on the ground of any discrepance in the evidence, the witnesses all agree that, after Mr. Salmon released the defendant upon his promise to keep the peace, the defendant again approached him in a hostile, or menacing manner, with his arm raised, when a further conflict was prevented by the commendable interposition of Mr. Smith. That this act amounted to an assault admits of not the slightest doubt, and brings the case within the provisions of the twenty-seventh [28th] section of the crime act of 1790 [1 Stat. 11S], provided Mr. Salmon was a foreign minister; which is the second point to be considered.
2. Was Mr. Salmon a foreign minister, at the time the alleged offence was committed? The following evidence has been given to Xirove the public character of this gentleman. (Here the evidence before mentioned was stated to the jury.) The counsel for the defendant have gone into a rigid examination of the credentials of Mr. Salmon. They deny that any thing short of credentials emanating from the sovereign, from some department of his government charged to perform duties of this nature, could constitute him a minister; and, that, even if the appointment of a minister under the constitutional government of Spain was sufficient, it became void by the revolution, which restored the king to his former power, and rendered a reappointment necessary.
If these were questions fit for judicial inquiry and decision, we should say that the appointment of a charge d’affaires by a foreign minister, upon his retiring from the station to which he had been appointed, is usual in practice; and if he be recognized as such by that branch of the government which is authorised to receive ministers, and with which he is to transact the business of his own sovereign, his character of minister is unquestionable. And further, that if, after the constitutional government of Spain terminated, a reappointment, or a recognition, by the king, of the public character of this gentleman were necessary, still, as he is found, after a lapse of about two years, the recognized minister of Spain by our government, we ought to presume that his sovereign has done all that he thought necessary to clothe him with that character.
But the conclusive answer to these arguments is, that these are matters of state, with which courts of justice have nothing to do. The constitution of the United States having vested in the president the power to receive ambassadors and other public ministers, has necessarily bestowed upon that branch of the government, not only the right, but the exclusive right, to judge of the credentials of the ministers so received; and so long as they continue to be recognized and treated by the president as ministers, the other branches of the government are bound to consider them as such. If courts of justice could sit in judgment upon the decision of the executive in reference to the public character of a foreign minister, and by pronouncing him to be unduly appointed, or improperly recognized, deprive him of tbe privileges of a minister, what an extraordinary anomaly would such an interference present to the world! The individual who should be placed in this predicament, would, for all the purposes of his own, and of this government, be a minister, the representative of his sovereign, authorised to transact the business with which he is charged, and to bind his sovereign, whilst acting in obedience to his orders; and yet. he would be no minister in the view of the judiciary, and. of course, not entitled to the protection due from that character. In other words, a public minister without the privileges and immunities of one. For, notwithstanding this judicial interference, he would still continue to be a minister as long as the president should con[362]*362tinue to recognize him as such; and no judgment of a court of justice could deprive him of that character, although it should withhold from him the sanctity appertaining to it. Besides, if it belong to courts of justice .0 meddle with these matters, and looking beyond the acts and conduct of the president, to decide a person recognized by him as a foreign minister, to be no minister, surely that branch of the government ought to possess all the lights to guide their judgment which are possessed by the president, and should consequently be empowered to call for and to expose to public view, the archives of state, and the correspondence of the executive of this nation with foreign nations, in relation to the subject on which the decision is to be made. Yet, who would be wild enough to maintain a proposition so extravagant and absurd?
NOTE. A motion in arrest of judgment was made on the ground that this was a case affecting a foreign minister, and that therefore the circuit court had not jurisdiction. This point was taken to the supreme court upon a pro forma certificate of a division of opinion in this court, and there decided in favour of the jurisdiction. 11 Wheat. [24 U. SJ 467.
The principles which have been stated are those which governed this court in U. S. v. Biddle [Case No. 15,598], decided in 1807; in which it was stated, that the certificate of the secretary of state, that the person claiming to be a charge d’affaires, was received and recognized as such by the executive of this government, was the best evidence which could be given of that fact. The only proper inquiry, in short, in cases of this nature is, has the person, claiming to be a foreign minister, been received and recognized as such by the executive of this government? If he lias, the evidence of those facts is not only sufficient, but in our opinion, conclusive upon the subject of his privileges gs a minister. Such has been the nature of the evidence given in this case.
It now remains only to notice two or three arguments of the counsel, upon which some reliance was placed. It seemed to be supposed by the district attorney, that even if the first assault had been made by Mr. Salmon on the defendant, the blow which was returned would have been an offence under the act of congress. But this is not the opinion of the court. A foreign minister, by committing the first assault, so far loses his privilege, that he cannot complain of an infraction of the law of nations; if in his turn, he should be assaulted by the party aggrieved. This was decided by this court in Biddle’s Case.
It was insisted by the defendant’s counsel, that it is incumbent on the prosecutor to prove that the public character of Mr. Salmon was known to the defendant at the time this transaction took place. If this position could be maintained, still, as it is shown by the defendant’s letters to Mr. Salmon in May, 1824, that he then knew that gentleman to be the Spanish charge d’affaires; if he had afterwards ceased to be so, it lay on the defendant to prove it. Knowing him once to have been entitled to this character, he acted at his peril if it should turn out that that character still continued; or if indeed the reverse should not be proved. But I in point of law, it is immaterial whether the defendant knew that the person assaulted was charge d’affaires or not, and this point also was decided in the case before referred to of U. S. v. Biddle.
As to the Spanish decrees, alluded to by the counsel for the defendant; there is no evidence given of them, and consequently they are not to be noticed by the jury. It is impossible for the court or jury to say whether they do, or do not affect Mr. Salmon.
The jury returned with a verdict finding the defendant guilty.