3 in a
circuit court case in which the judges held that Congress might vest
concurrent jurisdiction involving consuls in the inferior courts and
sustained an indictment against a consul.[321] Many years later, in
1884, the Supreme Court held that consuls could be sued in the federal
courts,[322] and in another case in the same year declared sweepingly
that Congress could grant concurrent jurisdiction to the inferior courts
in cases where the Supreme Court has been invested with original
jurisdiction.[323] Nor does the grant of original jurisdiction to the
Supreme Court in cases affecting ambassadors and consuls of itself
preclude suits in State courts against consular officials. The leading
case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian
vice-consul contested an Ohio judgment against him for divorce and
alimony. Justice Holmes, speaking for the Court, said: "The words quoted
from the Constitution do not of themselves and without more exclude the
jurisdiction of the State. * * * It has been understood that, 'the whole
subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United
States.' * * * In the absence of any prohibition in the Constitution or
laws of the United States it is for the State to decide how far it will
go."

WHEN "AMBASSADORS" ETC., ARE "AFFECTED"

A number of incidental questions arise in connection with the phrase
"affecting ambassadors and consuls." Does the ambassador or consul to be
affected have to be a party in interest, or is a mere indirect interest
in the outcome of the proceeding sufficient? In United States _v._
Ortega,[325] the Court ruled that a prosecution of a person for
violating international law and the laws of the United States by
offering violence to the person of a foreign minister was not a suit
"affecting" the minister, but a public prosecution for vindication of
the laws of nations and the United States. Another question concerns
the official status of a person claiming to be an ambassador, etc. In Ex
parte Baiz,[326] the Court refused to review the decision of the
Executive with respect to the public character of a person claiming to
be a public minister and laid down the rule that it has the right to
accept a certificate from the Department of State on such a question. A
third question was whether the clause included ambassadors and consuls
accredited by the United States to fo