
    *The State v. De La Foret.
    An ambassador or public minister of a foreign prince or state is not amenable to the laws of tbe nation to which, he is sent, 
    
    The law of nations does not exempt a foreign consul from liability to the laws of the State in which he resides. 
    
    The Federal Courts have not exclusive jurisdiction with regard to offences committed by foreign consuls in the United States ; but the consul is amenable to the laws of the State in which he commits an offence. A oonsul is neither ambassador nor public minister ; he is no more than a commercial agent (ut semble.)
    The defendant was indicted in the Circuit Court of Charleston, in January Term, 1816, for an assault and battery.
    A plea to the jurisdiction of the Court was interposed on the ground that he was the French Consul, and therefore not amenable to the laws of the State.
    The plea was sustained by the presiding judge, and now a motion was made to reverse that decision.
    
      
       Burlam. Prin. Pol. Law, 424, part 4, cliap. 15 ; Molloy de jure Mar. et Naval; B. 1, C. 10 ; Martens’ Law of Nations, B. 7, C. 5, sec. 1, 2, 3, 4;' Bar-buit’s case, temp. Talbot, 281; Triquet et al. v. Bath, 3 Bur. 1478; S. C. 1 Black. 471.
    
    
      
       1 Beawes, Lex Mercat. 291; Wickquef; Rights of Em. 40; Martens’ Law of Nations, B. 4, C. 3, sec. 8, and notes; Brown’s Admiralty Law, 505 ; Barbuit’s case, temp. Talbot, 283 ; Marshall v. Critico, 9 Bast. 447; Clarice v. Critico, 1 Taunton, 108; 1 Bac. Abr. tit. Ambassadors. R.
      See 1 N. & McC. 480, 527 ; 4 Rich. 286 ; 10 Rich. 474; State v. Pitman, 1 Brev. 32; State v. Antonio, 3 Brev. 562; 2 Tread. 776; State v. Tull, 2 Bail. 44; State v. McBride, Rice, 400, overruling State v. Wells, 2 Hill, 687.
    
   The opinion of the Court was delivered by

HUGER, J.

Two grounds have been taken in support of the plea :

1. That a foreign consul, by the law of nations, is not subject to the the laws of the State in which he resides. And,

2. That if he be subject to the laws of the country in which he resides, the Federal Courts have exclusive* jurisdiction under the Consti--1 -* tution of the United States, over all cases in which he is concerned. I shall examine these grounds in their order.

That an ambassador, or public minister of a foreign Prince or State, is not amenable to the laws of the nation to which he is sent, is, I believe, universally admitted. All the writers on the law of nations concur in opinion as to the existence as well as the propriety of this immunity : and no Court in this country either Federal or State, is known to have questioned its existence.

In England, as early as the ith of Ann, a statute was passed, “ exempting ambassadors and public ministers from the process of their Courts, and the statutes declares all such persons as should prosecute any writ or process against them, to be violators of the law of nationsand Congress, in 1Y90, passed an Act of similar import; but neither of these Acts extends to consuls.

The privileges of ambassadors and public ministers are great, but they appear to be necessary. They are the representatives of nations, employed in the transaction of the most important concerns, the proper management of which requires the most perfect exemption from all possible influence or control. But a consul appears to be neither ambassador nor public minister. He is not the representative of his nation, nor is he employed in the management of national concerns. He is no more than a commercial agent, attending to individual interests. Vattel, in B. 2, C. 2, S. 34, speaking of consuls, declares, “that they are not public ministers, and cannot pretend to the privileges of one.” Barbeyrac, Binkershock and Martens, declare them subject to the laws of the country in which they reside. But Yattel appears to think that as a consul holds the commission of his sovereign, he ought to be regarded as more under the law of nations than a common stranger. He goes so far as to say, that a consul’s functions seem to require “ that he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned,* unless he himself violate the „ law of nations, by some enormous misdemeanor.” It is a mere L suggestion, at variance with the opinions of all other writers on the subject; and with which he does not appear to be entirely satisfied himself. In B. 4, C. 6, sect. 15, he proceeds, “ we have spoken of consuls in the article of Commerce. Formerly agents were a kind of public ministers ; but in the present increase and profusion of titles, this is given to mere commissioners appointed by princes for their private affairs, and who not un-frequently are subjects of the country where they reside. They are not public ministers, and consequently not under the protection of the law of nations.” He here classes consuls with agents, to whom he denies the protection of the law of nations. In the case of Vineash v. Beckrer, 3 Maule & Sel. 284, Lord Ellenborough concludes a very full investigation of this question, with the opinion that no such privilege exists. And the Chief Justice of Pennsylvania, in the case of Kosloff, declares, “ that he cannot hesitate in the opinion that there is nothing in the law of nations which protects a consul general from indictment.” We have, indeed, in the case of United States v. Mr. Ravara, consul from Genoa, the opinion of the then Chief Justice of the United States, Mr. Jay, whose diplomatic services and great learning, entitle his opinion on this subject to great respect, “that consuls are not protected by the law of nations from the jurisdiction of the laws of the place where they reside.” 2 Dal. 291. I am therefore of opinion, that the plea cannot be sustained on the first ground.

The second ground presents great difficulties. The complex nature of our government, the union of several sovereignties under one, and yet each preserving" a large proportion of independent sovereignty in itself; its recent establishment, which necessarily implies the absence of much experience, that will, in the progress of events, explain the meaning of its different parts, and reconcile them in one harmonious whole, must fre-#9901 1uen% originate questions of great nicety. In the ^consideration J of such questions, much caution ought to be observed. The great purposes for which our governments were established, must be constantly kept in view; and no narrow rules of construction be adopted, which shall check in their growth the protecting powers of the federal government.

To the State governments is committed the protection of all our domestic rights, on which depends almost the whole of private happiness. Here we have a field sufficiently ample to exhaust the powers of those, whose ambition it is to extend the bonnds of human happiness; here the greatest talents, and most exalted feelings may be indulged without the fear of wanting employment.

On the federal government is devolved the duty of national protection. To enable it to perform this duty, all the means of national defence are given; the army, the navy, the militia, the power of taxation, the power of borrowing money, the power of defining and punishing piracies and felonies committed on the high seas, and offences against the law of nations, to declare war, &c. But protection is not the only duty devolved on the federal government, by the Constitution of the United States. It has power to regulate commerce; to establish an uniform rul® of naturalization, and uniform rules on the subject of bankruptcies. It has power to coin money, &c., to provide for the punishment of counterfeiting the securities and current coin of the United States ; to establish post offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries ; to constitute tribunals inferior to the Supreme Court to exercise legislation over such district as may be ceded to them. Here are powers, the exercise of which are necessary to national convenience, and it is difficult to imagine how we should proceed without an exercise of these powers, or most of them, by the federal government. Were each State to regulate its commerce (a fruitful source *991-1 *of war,) we should not present to foreign nations a single, but a J divided front; and does not require the spirit of prophecy to foresee that the exercise of such a power by the States, would soon lead to a dissolution of the Union. We accordingly find in the 8th sec. of the 1st art. of the Constitution of the United States, the States expressly prohibited from the exercise of this power : “ To establish an uniform rule of naturalization and an uniform rule or law of bankruptcy. ” The exercise of this power by the States would necessarily defeat the object of the constitution. There could not bo an uniform system or rule, if twenty different governments had the power to legislate on the subject. It is not only the object of the constitution to have an uniform rule, but public convenience would seem imperiously to require it. We are citizens of the United States, and not of the respective States, and foreign merchants trade with us, and foreign governments recognize us when trading with them, not as the citizens of a district or State, but as citizens of the United States. It would seem to follow that not only the rule of naturalization should be uniform, but that the law of bankruptcy should be also uniform; and of this opinion were the Supreme Court of the United States, in the case of Sturges v. Crowninshield, 4 Wheat. 196. The power of coining money is expressly given to the federal government, and expressly taken away from the States. If this power had not been taken away expressly, I presume little doubt exists, that the States would have retained it, because an exercise of this power by the States would not have been inconsistent with an exercise of it by the federal government; nor would it have been more inconvenient to use the coin of different States, than to use the coin of foreign powers.

What I have observed of the powers already noticed, will apply with equal force to all the powers enumerated in the constitution. Where powers are given exclusively to the federal government, or where expressly taken away from the States, the States cannot *exercise them ; or when the power given to the federal government is inconsistent or in- >- compatible with the exercise of that power by the States, the States are excluded. But when power is given to the federal government, and not expressly taken away from the States, and the exercise of such power by the States is not incompatible or inconsistent with the use of it by the government, the power is concurrent. The correctness of the rule has, I believe, never been questioned. And why should a State be prevented the exercise of a power which is not expressly taken away from her ? which is not exclusively given to the federal government, and the exercise of which power by the State can lead to no inconvenience? Nay, where the exercise of that power, not only does not produce inconvenience to the citizens of the United States, but where the abandoment of it by the State would necessarily lead to great inconvenience, as in the case before the Court ?

I shall now proceed to inquire if the Constitution of the United States has expressly granted to the federal government exclusive jurisdiction over consuls, or if the exercise of jurisdiction in such cases by the States, is incompatible with the exercise of such power by the federal government.

It is no where expressly taken away from the States ; if it therefore be not exclusively given to the federal government, or the exercise of it'by the States be not incompatible with the exercise of it by the federal government, I shall conclude that the States have concurrent jurisdiction.

The words of the constitution are, “ The judicial power shall extend to all eases in law and equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls, in all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party; to controversies between two or more States,” &c. The *words, “ extend to all cases r*c>23 affecting consuls,” do not seem necessarily to imply, that the State L Courts are excluded jurisdiction. But it is said, that inasmuch as the word all is prefixed “to cases in law or equity ; to cases affecting ambassadors ; to cases of maritime and admiralty jurisdiction,” and is not prefixed “ to controversies to which the United States are a party; to controversies between two or more States,” &c., the constitution must have intended to give exclusive jurisdiction in the first, and only concurrent in the last. I cannot perceive, that the introduction of the word all has produced the smallest effect on the meaning of this section. Were it omitted altogether, or attached to -every branch of the section, its meaning would be the same. My estate” means all my estate, and “ all my estate” can mean nothing more than my estate. I regard the word all as surplusage, where it does occur, and of course unnecessary where it does not occur. But the invariable practice of our Courts will furnish higher testimony of the incorrectness of the construction contended for, than verbal criticism can afford. It will be observed that the word all is prefixed to cases of admiralty and maritime jurisdiction, and yet the State Courts invariably sustain actions for seamen’s wages. But ean it be supposed that the constitution intended to exclude the State Courts from all jurisdiction over consuls, and yet meant to give them concurrent jurisdiction over controversies to which the United States were a party ? or to controversies between two or more States ? and yet this would be the case, if the construction contended for were to prevail.

As I am not satisfied to give to the word all, in this section, the importance which has been attached to it, I shall proceed to inquire if the power now in question be one of those, the exercise of which by the States would be incompatible with the use of it by the federal government.

Should a consul violate the law of the United States, or the constitution of the United States, or a treaty made by the United States, he *9941 ought be amenable *to the Federal Courts, and so far has the J constitution, I think, given jurisdiction to the Federal Courts. But when a consul offends against the criminal laws of the State, with which the Federal Courts have no concern, ean it produce any inconvenience to permit the State Courts to exercise jurisdiction ? Can the punishment of an offence against the State laws operate injuriously to the United States ? Were consuls, like public ministers, protected by the law of nations, they ought not, and would not, be amenable to the laws of either government. But as they are not privileged, because they are not the representatives of their nations, but mere private agents, no embarrassments can follow an exercise of jurisdiction over them by the States, that might not follow an exercise of similar jurisdiction over any other strangers. I am the more disposed to adopt such a construction as would save the criminal jurisdiction of the State from the difficulty of so reconciling the different parts of the section as would lead to a practical result.

The second paragraph of the section declares, that in all cases affecting ambassadors, public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. Original, here, appears to mean exclusive jurisdiction. In the case of Marbury v. Madison, 1 Cranch, 174, this point has been fully investigated, and, I think, satisfactorily decided ■ Should the State Courts then be deprived of jurisdiction, it follows, that consuls are amenable to no Court, but the Supreme Court of the United States. They cannot be tried in the Supreme Court of the United States, for two reasons : 1. Because the constitution, in the very section under consideration, declares, that “the trial of all crimes shall be by jury, and the Supreme Court of the United States have no jury.” And if Congress should provide a jury, it would then be impracticable, because, in the very same section, it is further declared that all crimes shall be tried in the State where they have been committed.

*The State courts then must retain their jurisdiction, or con- r*99K suls are virtually amenable to no Courts. It is by no means com- L plimentary to the wisdom of those who framed the constitution, to give to it the construction contended for. I believe 1 do them more justice in supposing that it was their intention to subject consuls to the jurisdiction of the Supreme Court of the United States, only for violations of the constitution, laws of the United States, and treaties, and from the State courts they did not mean to take jurisdiction over offences against the laws of the State.

There is another view of this subject, which must not be omitted. In the case of Sturgis v. Crowningshield, 4 Wheat. 197, it was decided, that it was not the mere existence of the power but its exercise which is incompatible with the exercise of the same power by the States. Had the constitution then given to the national government exclusive jurisdiction over consuls, inasmuch as they have not exercised this power, it is retained by the States.

I am aware that a distinction may be attempted between the legislative and judicial powers of the federal government, and that my reasoning may be admitted as correct with respect to the former, and be thought inapplicable to the latter. I have only to say, in the language of the profound commentator on the constitution, though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just, with respect to the former as well as to the latter; and under this impression I will lay it down as a rule, that the State Courts will retain the Jurisdiction they have, unless it appears to have been taken away in one of the enumerated modes ”

I am of opinion, therefore, that the plea ought not to have been sustained, and that the decision of the Circuit Court ought to be reversed.

Bay and Colgock, JJ., concurred.

Nott, J.,

dissented.

[*226 ^Whether the consul for a foreign State is amenable to the local jurisdiction of the country in which he resides, for a violation of the laws of that country, is a question on which I shall give no opinion, because I consider it one belonging to the courts of the United States to decide, and not to this Court. But that the jurisdiction belongs exclusively to the Courts of the United States, is too clear to my mind to admit of hesitation. And whether I look to the particular phraseology of the constitution, to the class of eases with which this is associated in that instrument, or to the general policy of the measure, I am equally led to that conclusion.

The individual States, taken unconnected by the articles of confederation, would be considered as separate sovereign, and independent States.

The government of the United States considered in its federal capacity, is constituted of that portion of the sovereignty which the individual States have surrendered or thrown into one common stock, for the benefit of the whole. That government therefore is as sovereign and independent over all matters thus surrendered, as the government of each State is over those which are retained.

It would seem to result as a necessary consequence of a government so organized, that there must be three distinct classes of judicial cases:

1. Those of a general nature, involving the interests of the United States in their federal or aggregate capacity.
2. Those of a mixed character, involving the common and mutual interests of the general and State governments, &c.
3. Those of a local nature, which belong exclusively to the individual States.

Over the first class, the Courts of the general government must be permitted to exercise exclusive jurisdiction,

*Over those of the second, they possess a jurisdiction concur- ‘ J rent with the several States.

And the jurisdiction of the third belongs exclusively to the Courts of the individual States.

Having thus seen that these three classes of cases must necessarily exist, the nature of the cases would, in most instances, enable us to refer them to the proper jurisdiction without the aid of the constitution. But the framers-of that instrument having considered it a matter of too much importance to be left to construction, have distinctly marked out, by metes and bounds, the jurisdiction to which each shall belong. The second section of the third article of the constitution provides, that the judicial power of the United States shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and. treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, public ministers, and consuls; in all cases of admiralty and maritime jurisdiction; to controversies between two or more States ; between a State and the citizens of another State ; between citizens of different States ; between citizens of the same State, claiming lands under grants of different States, and between a State and the citizens thereof, and foreign States, citizens, or subjects. This section embraces the two first classes above mentioned. It was unnecessary to notice the third, because all cases not delegated to the Courts of the United States, belong exclusively to those of the several States. Those belonging to the first class are all cases arising under the constitution, the laws of the .United States, and treaties made, or which shall be made, under their authority ; all cases affecting ambassadors, public ministers, and consuls, and all cases of admiralty and maritime jurisdiction. The second class includes all the other cases which follow in the succeeding part of the section.

I have had occasion heretofore to consider this clause of the constitution. But as that opinion has not been published, I cannot by reference *2281 ^ sbow the train of Reasoning to which I must now resort in J support of my opinion. And I shall therefore be under the necessity of repeating what I have already said on the same subject.

The distinction between the two classes will be discovered in the language of the constitution. The judicial authority of the United States is extended to all those of the first class. In relation to the second the word all is omitted. If the jurisdiction of the United States Courts extends to all of the first class, then there is none to which it does not extend, and the jurisdiction must be exclusive.

To this it is answered, that the addition of that word does not enlarge, nor the omission of it restrict, the meaning of the words with which it is connected. That it may be stricken out of the first class, or added to the second, and the meaning will be precisely the same. I may, perhaps, admit, that if it had been carried through the whole section, it would not have given the United States Court exclusive jurisdiction over all the cases therein specified ; and that the omission of it altogether, might no.t have given the State Courts concurrent jurisdiction in all. But it is the addition of it in one part, and the omission of it in another part of the same section, that constitutes the distinction.

I have assumed a position which, I suppose, will not be denied, that there are some cases which belong exclusively to the Courts of the United States. And it must be supposed that it was intended to give the constitution some characteristic feature by which those cases might be distinguished.* And if it be by the addition or omission of a single word, and the intention be apparent, we must give effect to it. When we see it studiously repeated in relation to all the first enumerated cases, and studiously omitted when speaking of the second, we cannot suppose that such a change of phraseology was made without some object. It would be doing injustice to the venerable authors of that instrument, every word of which may be looked upon almost as a monument of prophetic wisdom, to suppose that it happened by accident, and not by design. *And if it may produce the effect which I have supposed, and r*o9q can produce no other, then we have a right to conclude, and, L indeed, I think we are bound to conclude, that that alone was the object, and no other. I apprehend that it will be admitted that all the other cases comprised in the same class belong exclusively to the Courts of the United States. And if so, I cannot conceive upon what principle this .particular case can be denied that privilege.

If, however, I am mistaken in supposing that that point will be conceded, I must once more recur to the cases there mentioned, and, I think, from an attentive perusal of them, the conclusion will appear inevitable. The first are cases arising under the constitution ; the laws of the United States, and treaties made under their authority. When the United States, in a federal capacity, assumed the powers of sovereignty, it became necessary that they should possess all the means of carrying those powers into effect. That the operations of every government should be carried on through the instrumentality of its own agents, is an essential attribute of sovereignty. And for that purpose the powers of the Legislature and judiciary must be co-ordinate and correlative. It was particularly proper, therefore, that all those cases should be given exclusively to the courts of the United States; otherwise the general government would be indebted to the courtesy of the States, for the exercise of their most important functions. That questions of this sort may come incidentally before the State Courts, and must be decided by them, I have no doubt. Such were the cases of Potter and Bulow v. The City Council, and Alexander v. Gibson, 1 Nott & M’Cord, 527, 480, decided, in this Court. But I presume it will not be contended that we have a direct authority over such cases.

The next description of cases embraced in this catalogue, are cases affecting ambassadors, public ministers, and consuls. To these it is answered, that ambassadors and public ministers are not amenable even Courts of the United States. That is a question on * which it is not my intention to give any opinion. It is sufficient for my purpose, that those who made the constitution supposed that such cases might arise, and made provision for them by consigning them exclusively to those Courts. Can it be supposed that the persons, to whom was confided the important duty of forming the constitution, did not foresee the difficult and delicate questions which would necessarily arise out of our relations with foreign nations ? Ambassadors and public ministers represent the persons of their sovereigns. Their business is with the United States, and not the individual States. And it would have been unwise and improper to have hazarded the peace of the country, by subjecting their rights or persons to the jurisdiction of the State Courts, over which the general government had no control. It was equally for the peace and security of the country and foreign ministers, that all cases affecting them should be placed in the hands where it appears to me most manifest that they have been placed.

The last description of cases included in this list, is cases of admiralty and maritime jurisdiction. These cases, springing out of the source from whence most of our collisions with foreign nations might be expected to arise, it was equally necessary and proper that those also should be confined to the tribunals of the general government. But I believe it is so universally admitted that the State Courts have no jurisdiction over admiralty and maritime cases, that I will not dwell longer on the subject.

I have now gone through with all the cases over which I consider that the Courts of the general government have exclusive authority. And when I find consuls included in the same catalogue, and coupled in the same sentence with ambassadors, and other foreigu ministers, I feel bound to consider them as entitled to the same privileges. I do not mean the same privileges allowed by the laws of nations to ministers of a higher grade, but to the privilege afforded them by the constitution, of being -, tried in the Courts of the United *States. The same principle of -1 J policy which prescribed the jurisdiction of the other enumerated cases, equally required that the consuls should be included also. They are the public agents of foreign nations. They have many important public duties to perform. They constitute a link in the chain of our foreign relations, which ought not to be broken by the interference of State authority.

We have had a recent instance of the deep interest which governments take in the privileges of their foreign agents, in the case of the American counsul, who was lately imprisoned in Spain. And we cannot suppose that other nations take less interest in their safety than our own. It is a case in which the pride and honor of a nation is concerned, and respecting which it cannot feel indifferent. Indeed, I consider it a question on which the peace of the United States may so much depend, that I cannot but feel some regret that any difference of opinion should exist in this Court on the subject. This defendant, I understand, is now the consul of France, in another State. Ought he to be drawn from his public duties to save his recognizance from forfeiture ? Or be detained from them to atone for his offence by any authority under the State ? Suppose he should be imprisoned, and his government should think he had been'wronged ? Redress would be sought for from the general government, and not from this. If the case was in a Court of the United States, the President, from motives of policy, and for the sake of peace, might discharge the prosecution, remit the recognizance, or pardon the offence. But he can have no control over it, if the jurisdiction belongs to the State Courts. As far, therefore, as policy can influence the decision, it is strongly opposed to the power which we are about to exercise.

There were but two grounds taken in the argument on which I felt any difficulty. The first was, that the immunity allowed by the constitution to consuls relates only to transactions connected with their consular functions. The second, that until Congress shall *make some provi- |-„.9q9 sion to enable the Courts of the United States to exercise their authority, the jurisdiction remains in the State Courts.

But a moment’s reflection dissipated all my doubts on the first point. It not only presupposes a right to inquire into the fact of his consulship, but also of the extent of his powers and the duties of his office. That is to say, the Court may give itself jurisdiction by stripping him of his consular character, or limiting his powers, and then try him for his offence. “ Gastigatque, auditque dolos.”

With regard to the second question, I am not satisfied that Congress has not made all the provision necessary to enable the Courts of the United States to exercise the jurisdiction vested in them by the constitution, if any such provision was necessary. But it appears to me a question not material to the decision. If the constitution has given the jurisdiction exclusively to the general government, the omission to exercise it cannot give jurisdiction to the States. Suppose Congress had omitted to provide for the punishment of treason or piracy, would the State Courts thereby acquire jurisdiction over those offences ? I apprehend not.

From any view, therefore, which I have been able to take of the question, I have seen no reason to change the opinion given in the Court below. Indeed, my confidence in that opinion is increased by the support which it has derived from the very able view taken of a similar question by Chief Justice Tilghman, in the case of Commonwealth of Pennsylvania v. Kosloff. (2 Am. Reg. 340.) See, also, Mannhardt v. Soderstrom, (1 Bin. 138.)

I am disposed to support the sovereignty of the States, but not to invade that of the United States, nor to violate the relations subsisting between them. I am afraid that the jarring element of which our confederacy is composed, are bound together by but feeble bands at best; and I am not disposed to weaken them by assuming an authority which we do not *possess, or even wishing for a jurisdiction which we pgao cannot safely exercise. L

I am of opinion, therefore, that this motion ought not to prevail.

Johnson and G-antt, JJ., concurred.

FT. B. — The judges were equally divided in the above case, but as by Act of Assembly, “the opinion of the judge who tried the cause, (Mr. Justice Nott.) shall not be allowed, and shall have no effect in the final determination of the case,” Mr. Justice Huger’s opinion is the judgment of the Court.  