Urtetiqui v. D'Arcy
34 U.S. 692 (1835)

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U.S. Supreme Court

Urtetiqui v. D'Arcy, 34 U.S. 9 Pet. 692 692 (1835)

Urtetiqui v. D'Arcy

34 U.S. (9 Pet.) 692

ERROR TO THE CIRCUIT COURT OF THE

UNITED STATES FOR THE DISTRICT OF MARYLAND

Syllabus

Maryland. The plaintiffs instituted a suit in the Circuit Court of the United States for the District of Maryland, stating themselves to be citizens of the State of Maryland, and that the defendant was an alien, and a subject of the King of Spain. The defendant pleaded in abatement that one of the plaintiffs, Domingo D'Arbel, was not a citizen of Maryland nor of any of the United States, but was an alien, and a subject of the King of Spain. Upon the trial of the issue joined on this plea, the plaintiff's produced and gave in evidence under the decision of the circuit court a passport granted by the Secretary of State of the United States, stating D'Arbel to be a citizen of the United States. Held that the passport was not legal evidence to establish the fact of the citizenship of the person in whose favor it was given.

The defendant in the circuit court offered in evidence the record, duly certified, of the District Court of the United States for the District of Louisiana, containing the proceedings in a suit which had been originally instituted against D'Arbel in a state court of Louisiana, and on his affidavit that he was an alien, and a subject of the King of Spain, had been removed for trial to the district court, under the authority of the act of Congress authorizing such a removal of a suit against an alien into a court of the United States. The record was introduced as containing a copy of the affidavit of D'Arbel in the state court, upon which the case was removed. Held that this was legal evidence.

The defendants in error instituted an action of assumpsit in the circuit court, and in the declaration stated themselves to be citizens of Maryland, and that the defendant was a subject of the King of Spain. The declaration contained the common counts.

The defendant below, Domingo Urtetiqui, pleaded the general issue and also a plea in abatement, alleging that Domingo D'Arbel, one of the plaintiffs, was not, at the impetration of the writ, a citizen of the United States or of any one of them.

To this plea there was a replication, and an issue thereon. On the trial of the cause upon other issues joined, exceptions were taken to the ruling of the court, but as the cause was

Page 34 U. S. 693

decided in this Court exclusively upon the questions raised on the plea in abatement, they are omitted in this report.

The exceptions taken by the defendants in the circuit court were the following.

The plaintiffs in the circuit court having offered evidence to prove that Domingo D'Arbel was an inhabitant of Louisiana before and on 30 April, 1803, and continued to be an inhabitant thereof until the year 1818 or 1819 -- further to support the issue on their part, on the plea of abatement, and to prove the citizenship of D'Arbel, offered in evidence a passport granted by John Quincy Adams, then Secretary of State, on 22 March, 1824, to the said D'Arbel, as a citizen of the United States. To the admissibility of this passport as legal or competent evidence of the American citizenship of the said D'Arbel the defendant below objected, but the court overruled the objection and permitted the same to be read to the jury.

The defendant, to support his plea in abatement and for the purpose of showing the admission of D'Arbel, under oath, that he was on 8 May, 1817, a subject of the King of Spain, offered in evidence a record of the District Court of the United States for the Eastern District of Louisiana in a cause wherein John K. West, curator of James Niel, was plaintiff and Domingo D'Arbel was defendant, which had been removed, under and by virtue of the twelfth section of the act of 1789, from the District Court of the State of Louisiana for the First Judicial District upon the petition of the said D'Arbel, supported by affidavit, that he was on 8 May, 1817, a subject of his Most Catholic Majesty the King of Spain. The record offered in evidence set out the transcript or record from the state court, certified under seal by the deputy clerk of said court, and also the proceedings in the district Court of the United States thereupon, and the said record was certified in due form, as containing "a full, faithful and true copy of the transcript" from the state court, "and also of the proceedings which have taken place in said cause," in the district court of the United States. The defendant below also proposed to give in evidence that the D'Arbel mentioned in the record was the same D'Arbel, one of the plaintiffs in this cause.

The plaintiffs objected to the evidence so offered, and the

Page 34 U. S. 694

court refused to permit the record to be read in evidence for the three following reasons:

1. It is res inter alios acta.

2. The transcript from the court of the State of Louisiana is certified by Stephen Pedesclaux, deputy clerk, without any official seal. And,

3. The clerk of the district court of the United States certifies that the foregoing nine pages (meaning the record) contain a full, faithful, and true copy of the transcript from the First Judicial District Court of the State of Louisiana in the case wherein John K. West, curator of the estate of James Neil, is plaintiff and Domingo D'Arbel is defendant, &c. The certificate is in effect the copy of a copy.

The defendant below, to support his plea in abatement, also gave in evidence by competent witnesses that D'Arbel had declared himself to have been a native Frenchman, and born near the borders between France and Spain, whereupon the plaintiffs prayed the court that if the defendant offers no other evidence than what was then before the jury in support of his plea in abatement, the plaintiffs were entitled to the verdict, if the jury believed the plaintiffs' evidence, which prayer the court granted.

The defendant excepted to the decisions of the court on the evidence offered by the plaintiffs and to the ruling of the court on the prayers of the defendant, and the court sealed a bill of exceptions. A judgment having been entered on the verdict of the jury in favor of the plaintiff, the defendant prosecuted this writ of error.

Page 34 U. S. 697

MR. JUSTICE THOMPSON delivered the opinion of the Court.

This case comes up on a writ of error from the Circuit Court of the Maryland District. It is an action of assumpsit. The declaration contains the common money counts and also counts for goods sold and delivered, work, labor, and services, and an insimul computassent. There is an averment in the declaration that the plaintiffs are citizens of the State of Maryland and the defendant an alien and subject of the King of Spain. The defendant pleaded the general issue and also a plea in abatement, alleging that Domingo D'Arbel, one of the

Page 34 U. S. 698

plaintiffs, was not at the commencement of the suit a citizen of the United States or any one of them, to which there was a replication, and issue thereupon joined. And by an agreement contained in the record, all errors in pleading are waived on both sides, and the cause comes here on five bills of exceptions taken at the trial, three of which relate to matters arising under the plea in abatement and the other two upon the merits.

The question arising upon the first exception turns upon the admissibility in evidence of the passport given by the Secretary of State, introduced to prove the citizenship of Domingo D'Arbel. The record states that the plaintiffs, further to support the issue on their part on the plea in abatement to the jurisdiction of this Court filed in this cause, offered in evidence the following paper purporting to be a passport from the Secretary of State of the United States, and which was admitted to be an original paper from the Department of State, signed by John Quincy Adams, then Secretary of State of the United States, and also offered evidence that the several endorsements on said paper were respectively in the handwriting of the several persons signing the same and that the said persons were the respective officers of the government of Mexico, as they style themselves in the said endorsements, at the periods at which the same were made. It was also admitted that at the date of the said passport, said D'Arbel was then in Mexico, and that the said passport was applied for and obtained for him, at his instance and by his request, by one of the co-plaintiffs, who transmitted the same to the said D'Arbel, into whose possession it came and by whom it was used, the only proof of said use being the said endorsements so made thereon. The passport is as follows:

"United States of America. To all to whom these presents shall come, greeting. I, the undersigned, Secretary of State of the United States of America, hereby request all whom it may concern to permit safely and freely to pass Domingo D'Arbel, a citizen of the United States, and in case of need, to give him all lawful aid and protection. Given under my hand and the impression of the seal of the Department of State at the City of Washington 22 March, 1824, in the forty-eighth year of the independence of these United States."

"JOHN QUINCY ADAMS"

Page 34 U. S. 699

To the admissibility of which paper in evidence the defendant by his counsel objected, the same not being legal or competent evidence of the American citizenship of said D'Arbel. But the court was of opinion, and so decided, that the said paper was legal and competent evidence of said citizenship, and the same was admitted.

There is some diversity of opinion on the bench with respect to the admissibility in evidence of this passport, arising in some measure from the circumstances under which the offer was made and its connection with other matters which had been given in evidence. Upon the general and abstract question whether the passport per se was legal and competent evidence of the fact of citizenship, we are of opinion that it was not.

There is no law of the United States in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood as matter of practice that some evidence of citizenship is required by the Secretary of State before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact of citizenship, or any proceedings had that will in any manner bear the character of a judicial inquiry. It is a document which, from its nature and object, is addressed to foreign powers, purporting only to be a request that the bearer of it may pass safely and freely, and is to be considered rather in the character of a political document by which the bearer is recognized in foreign countries as an American citizen, and which, by usage and the law of nations, is received as evidence of the fact. But this is a very different light from that in which it is to be viewed in a court of justice, where the inquiry is as to the fact of citizenship. It is a mere ex parte certificate, and if founded upon any evidence produced to the Secretary of State establishing the fact of citizenship, that evidence, if of a character admissible in a court of justice, ought to be produced upon the trial as higher and better evidence of the fact. But whether the circuit court erred in admitting the passport in evidence under the circumstances stated in the exception, this Court is divided in opinion, and the point is of course undecided.

Page 34 U. S. 700

The defendant, in order to support the issue on his part on the plea in abatement for the purpose of showing the admission of the said D'Arbel, under oath, that he was a subject of the King of Spain on 8 May, 1817, offered in evidence a document or paper purporting to be a record of certain proceedings in a cause in the District Court of the State of Louisiana in and for the First Judicial District of that state, in which John K. West, curator of the estate of James Niel, was plaintiff and the said Domingo D'Arbel was defendant, which proceedings contain a petition presented to the state court for the purpose of removing the cause into the district court of the United States, and in which petition it is alleged, that Domingo D'Arbel is a subject of His Most Catholic Majesty the King of Spain, and on this ground claimed to have his cause removed into a court of the United States pursuant to the act of Congress. To which petition is annexed the oath of the said D'Arbel that the facts contained in the petition are true and that he is a subject of His Most Catholic Majesty the King of Spain. To the admission of this evidence the plaintiffs' counsel objected, and the court sustained the objection. The exception embraces some matters upon which the Court expressed no opinion, and need not, therefore, be here noticed. So far as relates to the admissibility of this evidence, the objection is stated as follows:

"The plaintiffs object to the giving in evidence the record so offered for the purpose for which it is offered by the defendant, first because, if the jury find the facts stated in the plaintiff's first prayer, then it is bound to find a verdict for the plaintiff on the plea in abatement, and secondly because if not concluded, the said record purports only to give a copy of a copy of the petition and affidavit alleged to have been filed in the said case in the said record mentioned, and a copy of a copy of the said case as it purports to have been in the state court, which objection the court in part sustained, and rejected the record so offered in evidence."

In this we think the court erred. We do not perceive any well founded objection in any point of view to the admission of this record for the purpose for which it was offered, viz., to prove the declaration of Domingo D'Arbel under oath that he was a Spanish subject. It did not in any manner affect the rights of any other party to the judgment, and

Page 34 U. S. 701

was no more objectionable than the declaration or confession of D'Arbel made in any other manner or on any other occasion. But it did not lie in the mouth of D'Arbel to object to this evidence as a part of the record of the district court of the United States. It was his own act placing it on the record of that court, and that record was duly authenticated according to the act of Congress. This document or record, as it is called, begins with the following caption or memorandum:

"United States of America, Eastern District of Louisiana, ss. Be it remembered, that on 24 May in the year 1817, into the District Court of the United States in and for the then Louisiana District came Domingo D'Arbel, by his attorneys, and filed the following transcript or record, to-wit."

Then follow the record and proceeding in the state court, containing the petition and affidavit of D'Arbel that he was a Spanish subject. Thus, it will be seen that this record or proceeding in the state court was introduced into the United States district court by D'Arbel himself as the grounds upon which he claimed a right to have his cause tried in a court of the United States. It was therefore evidence offered by him originally in the district court of the United States, and it does not lie with him now to say that that record was not duly authenticated when introduced by him into the United States district court. It was not offered in evidence in the present case as coming directly from the state court, and all objections to the authentication by the clerk of the state court were, if well founded, misapplied. This record, as offered to the circuit court on the trial of this cause, came from the district court of the United States, and the proceedings and oath relied upon were then introduced by D'Arbel himself.

Whether the district court of the United States was bound to receive this as satisfactory evidence of the right of D'Arbel to remove the cause from the state court is not at all material. It was received by the United States district court as sufficient, and the cause was removed and proceeded in accordingly. But there can be no doubt that the United States court had a right to examine and decide for itself upon the grounds on which D'Arbel claimed to have his cause removed into the United States court. That court had a right to decide upon its own jurisdiction and remand the cause if sufficient grounds

Page 34 U. S. 702

for a removal were not shown. It cannot surely be in the power of the state court to compel the United States court to assume jurisdiction.

The third exception on the part of the defendant is to the ruling of the court upon the plaintiff's prayer, which is as follows:

The evidence having been given as set forth in the two prior exceptions by the plaintiffs, which is to be considered as forming a part of this exception, the defendant, further to support the issue, on the plea in abatement, gave in evidence by competent witnesses that the said D'Arbel declared himself to have been a native Frenchman and born near the borders between France and Spain, and that the said D'Arbel, mentioned in the foregoing evidence, is the same D'Arbel mentioned in the commission aforesaid. Thereupon the plaintiffs prayed the court that if the defendant offers no other evidence on the issue joined on the defendant's plea of abatement than there is now before the jury, that then the plaintiffs are entitled to the verdict if the jury believes the plaintiffs' evidence. Which prayer was granted by the court.

This prayer is rather obscurely stated, and the real point intended to be raised is not very apparent. Evidence had been given both as to the defendant and plaintiff, and the prayer would seem to ask the court to instruct the jury that the plaintiffs were entitled to the verdict if the jury believed the plaintiffs' evidence, and the court so instructed the jury. If this is the interpretation to be given to the prayer, the instruction was erroneous. The evidence given by the defendant was taken entirely from the consideration of the jury, and the verdict was made to depend upon their belief of the plaintiffs' evidence. But the decision upon this exception is not very important, as it will not affect the result upon the present writ of error, and it is not likely it will arise in the same form on another trial, and this remark applies to the two remaining exceptions on the merits arising on the accounts offered in evidence and the decision and instructions given by the court thereupon. Questions of law and fact growing out of the prayers and instructions on this part of the case are so blended and presented in such a shape that it is extremely difficult to decide upon them, and as the cause must go back, and as these matters may not be presented on

Page 34 U. S. 703

another trial under the same aspect, these questions may become immaterial and we pass them by without any decision.

The judgment of the circuit court is reversed, and the cause sent back with directions to issue a venire de novo.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland and was argued by counsel. On consideration whereof it is adjudged and ordered by this Court that the judgment of the said circuit court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said circuit court with directions to award a venire facias de novo.

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