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.
