The record of the proceedings in this case, brought up with the
writ of error to the Court for the Correction of Errors of the
State of New York, showed that the suit was commenced in the
supreme court of the State of New York, and that the plaintiff in
error, who was Consul General of the King of Saxony, did not plead
or set up his exemption from such suit in the supreme court, but,
on the cause's being carried up to the Court for the Correction of
Errors, this matter was assigned for error in fact, notwithstanding
which the Court of Errors gave judgment against the plaintiff in
error. The Court of Errors of New York having decided that the
character of consul did not exempt the plaintiff in error from
being sued in the state court, the judgment of the Court of Errors
was reversed.
As an abstract question, it is difficult to understand an what
ground a state court can claim jurisdiction of civil suits against
foreign consuls. By the Constitution, the judicial power of the
United States extends to all cases affecting ambassadors, other
public ministers and consuls, and the Judiciary Act of 1789 gives
to the district courts of the United States, exclusively of the
courts of the several states, jurisdiction of all suits against
consuls and vice-consuls except for certain offenses enumerated in
the act.
It has been repeatedly ruled in this Court that the Court can
look only to the record to ascertain what was decided in the court
below.
Matter assigned in the appellate court as error in fact never
appears upon the record of the inferior court; if it did, it would
be error in law. The whole doctrine of allowing in the appellate
court the assignment of error in fact grows out of the circumstance
that such matter does not appear on the record of the inferior
court.
If a consul, being sued in a state court, omits to lead his
privilege of exemption from the suit, and afterwards, on removing
the judgment of the inferior court to a higher court by writ of
error, claims the privilege, such an omission is not a waiver of
the privilege. If this was to be viewed merely as a personal
privilege, there might be grounds for such a conclusion, but it
cannot be so considered; it is the privilege of the country or
government which the consul represents. This is the light in which
foreign ministers are considered by the law of nations, and our
Constitution and law seem to put consuls on the same footing in
this respect.
If this privilege or exemption was merely personal, it can
hardly be supposed that it would have been thought sufficiently
important to require a special provision in the Constitution and
laws of the United States. Higher considerations of public policy
doubtless, led to the provision. It was deemed fit and proper that
the courts of the government, with
Page 32 U. S. 277
which rested the regulation of foreign intercourse, should have
cognizance of suits against the representatives of such foreign
government.
The action in the supreme court of New York against the
defendant was on a recognizance of bail, and it was contended that
this was not an original proceeding, but the continuance of a suit
rightfully brought against one who was answerable to the
jurisdiction of the court in which it was instituted and in which
the plaintiff in error became special bail for the defendant, and
therefore the act of Congress did not apply to the case.
Held that the act of Congress being general in its terms,
extending to all suits against consuls, it applied to this
suit.
A suit on a recognizance of bail is an original proceeding. A
scire facias upon a judgment is to some purposes only a
continuation of the former suit. But an action of debt on a
judgment is an original suit.
An action of debt on a recognizance of bail may be brought in a
different court from that in which the original proceedings were
commenced.
The defendants in error, Isaac Packard and others, instituted a
suit in the Supreme Court of Judicature of the State of New York
against Isaac Hill and Ralph Haskins, and at August term, 1824, of
that court, Charles A. Davis, the plaintiff in error, entered into
a recognizance as special bail of Isaac Hill. Judgment having been
obtained against the defendant Isaac Hill in that suit, the
plaintiffs in the same, Isaac Packard and others, brought an action
of debt on the recognizance in the same court against Charles A.
Davis, as bail, to January term, 1830. To this action Mr. Davis
appeared by attorney, and upon several issues of fact and in law
judgment was rendered against him at May term of the court for
$4,538.20 debt, and $469.09 damages and costs. Upon this judgment,
Mr. Davis prosecuted a writ of error to the Court for the
Correction of Errors for the State of New York.
In the Court for the Correction of Errors, the plaintiff
assigned as error
"That he, the said Charles A. Davis, at the time of the
commencement of the suit of the said Isaac Packard, Henry Disdier
and William Murphy against him the said Charles A. Davis, was, and
every since hath continued to be, and yet is, Consul General of his
Majesty the King of Saxony
Page 32 U. S. 278
in the United States, duly admitted and approved as such by the
President of the United States. That being such, he ought not,
according to the Constitution and law of the United States, to have
been impleaded in the said supreme court, but in the District Court
of the United States for the Southern District of New York or in
some other district court of the said United States, and that the
said supreme court had not jurisdiction, and ought not to have
taken to itself the cognizance of the said cause; therefore in that
there is manifest error. And this he, the said Charles A. Davis, is
ready to verify; wherefore, he prays that the judgment aforesaid,
for the error aforesaid, may be revoked, annulled, and altogether
held for nothing, and that he may be restored to all things which
he hath lost by occasion of the judgment aforesaid."
To this assignment of errors the defendants in the Court for the
Correction of Errors filed the following plea:
"And the said Isaac Packard and others, defendants in error,
before the President of the Senate, Senators, and Chancellor of the
State of New York, in the Court for the Correction of Errors, at
the City Hall of the City of New York, by David Dudley Field, their
attorney, come and say that there is no error in the record and
proceedings aforesaid nor in the giving of the judgment aforesaid,
because they say that it nowhere appears by the said record,
proceedings, or judgment that the said Charles A. Davis ever was
Consul of the King of Saxony, and they pray that the said Court for
the Correction of Errors may proceed to examine the record and
proceedings aforesaid and the matters aforesaid above assigned for
error and that the judgment aforesaid may be in all things
affirmed. But because the court aforesaid is not yet advised what
judgment to give of and concerning the premises, a day therefore is
given to the said parties here, wheresoever &c., to hear their
judgment thereon, for that the said court is not yet advised
thereof."
"Whereupon the said Court for the Correction of Errors, after
having heard the counsel for both parties and diligently examined
and fully understood the cause assigned for error and inspected the
record and process aforesaid, did order and adjudge that the
judgment of the supreme court be in all things affirmed, that the
plaintiff take nothing by his writ, and that
Page 32 U. S. 279
the defendants go without day; that the defendants in error
recover against the plaintiff in error their double costs in
defending the writ of error in this cause, to be taxed, and also
interest on the amount recovered, by way of damages, and that the
record be remitted, &c. Therefore it is considered by the said
Court for the Correction of Errors that the judgment of the supreme
court aforesaid be and the same is hereby in all things affirmed.
It is further considered that the said defendants in error recover
against the plaintiff in error their double costs, according to the
statute in such case made and provided, to be taxed in defending
the writ of error in this cause, and also interest on the amount
recovered by way of damages. And hereupon the record aforesaid, as
also the proceedings aforesaid in this same Court for the
Correction of Errors in the premises had, are to the said supreme
court, wheresoever the same may be held, remitted, &c."
Upon this judgment, Mr. Davis brought the case before this Court
by a writ of error.
At the January term 1832, the counsel for the defendants in the
writ of error, R. Sedgwick, moved to dismiss the writ of error for
want of jurisdiction. White having appeared for the plaintiff in
error, the motion, after argument, was dismissed.
31
U. S. 6 Pet. 41.
Page 32 U. S. 280
MR. JUSTICE THOMPSON delivered the opinion of the Court.
Page 32 U. S. 281
The writ of error in this case brings up for review a judgment
recovered against the plaintiff in error in the Court for the
Correction of Errors in the State of New York. The case was before
this Court at the last term,
31
U. S. 6 Pet. 41, on a motion to dismiss the writ of
error for want of jurisdiction. This Court sustained its
jurisdiction under the 25th section of the Judiciary Act on the
ground, that the decision in the state court was against the
exemption set up by the plaintiff in error,
viz., that he
being Consul General of the King of Saxony in the United States,
the state court had not jurisdiction of the suit against him. The
principal difficulty in this case seems to grow out of the manner
in which the exemption set up by the plaintiff in error was brought
under the consideration of the state court and in a right
understanding of the ground on which the court decided against
it.
As an abstract question, it is difficult to understand on what
ground a state court can claim jurisdiction of civil suits against
foreign consuls. By the Constitution, the judicial power of the
United States extends to all cases affecting ambassadors and other
public ministers and consuls, &c. And the Judiciary Act of
1789, § 9, 1 Stat. 76, gives to the district courts of the
United States, exclusively of the courts of the several states,
jurisdiction of all suits against consuls and vice-consuls except
for certain offenses mentioned in the act. The record sent up with
the writ of error in this case shows that the suit was commenced in
the supreme court of the State of New York, and that the plaintiff
in error did not plead or set up his exemption in that court, but
on the cause being carried up to the Court for Correction of
Errors, this matter was assigned for error in fact, notwithstanding
which the court gave judgment against the plaintiff in error.
It has been argued here, that the exemption might have excluded
by the Court for the Correction of Errors, on the ground that it
was waived by not having been pleaded in the supreme court. It is
unnecessary to decide definitively whether, if such had been the
ground on which the judgment of the state court rested, it would
take the case out of the revising power of this Court, under the
25th section of the Judiciary Act, for we cannot say, judging from
the record, that judgment
Page 32 U. S. 282
turned on this point; but, on the contrary, we think the record
does not warrant any such conclusion.
It has been repeatedly ruled in this Court that we can look only
to the record to ascertain what was decided in the court below. The
question before this Court is whether the judgment was correct, not
the ground on which that judgment was given. And it is the judgment
of the Court of Errors, and not of the supreme court, with which we
have to deal. Looking the to the record, we find that when the
cause went up upon a writ of error from the supreme court, to the
Court for the Correction of Errors, it was assigned as error in
fact that Charles A. Davis, before and at the time of commencing
the suit against him, was and ever since has continued to be and
yet is Consul General of his Majesty the King of Saxony in the
United States, duly admitted and approved as such by the president
of the United States. The record shows no objection to the time and
place when and where this matter was set up to show that the
supreme court of New York had not jurisdiction of the case. The
only answer to this assignment of errors is that there is no error
in the record and proceedings aforesaid, nor in the giving the
judgment aforesaid, because it nowhere appears by the record,
proceedings, or judgment that the said Charles A. Davis ever was
Consul of the King of Saxony. This was no answer to the assignment
of errors; it was not meeting or answering the matter assigned for
error. It is not alleged in the assignment of errors that it does
appear by the proceedings or judgment in the supreme court of New
York that Charles A. Davis was Consul of the King of Saxony.
Matter assigned in the appellate court as error in fact never
appears upon the record of the inferior court; if it did, it would
be error in law. Suppose infancy should be assigned as error in
fact; would it be any answer to say that it nowhere appeared by the
record that the defendant in the court below was an infant? The
whole doctrine of allowing, in the appellate court, the assignment
of error in fact grows out of the circumstance that such matter
does not appear on the record of the inferior court.
But the answer to the assignment of errors prays that the
Page 32 U. S. 283
Court for the Correction of Errors may proceed to examine the
record and proceedings aforesaid, and the matters aforesaid above
assigned for error. Under this informal state of the pleadings in
the Court for the Correction of Errors, how is this Court to view
the record? The most reasonable conclusion is that the court
disregarded matters of form and considered the answer of the
defendants in error as a regular joinder in error. And this
conclusion is strengthened when we look at the form of the entry of
judgment.
"Whereupon the said Court for the Correction of Errors, after
having heard the counsel for both parties and diligently examined
and fully understood the causes assigned for error,"
&c., affirms the judgment.
The only cause assigned for error was that Charles A. Davis was
Consul General of the King of Saxony, and the conclusion must
necessarily follow that this was not, in the opinion of the court,
a sufficient cause for reversing the judgment. If it had been
intended to say it was not error because not pleaded in the court
below, it would probably have been so said. Although this might not
perhaps have been strictly technical, yet as the court gave
judgment on the merits, and did not dismiss the writ of error, it
is reasonable to conclude that the special grounds for deciding
against the exemption set up by the plaintiff in error would have
been in some way set out in the affirmance of the judgment.
If any doubt or difficulty existed with respect to the matters
of fact set up in the assignment of errors, the Court for the
Correction of Errors was, by the laws of New York, clothed with
ample powers to ascertain the facts. The statute (2 Laws N.Y. 601)
declares
"That whenever an issue of fact shall be joined upon any writ of
error returned into the Court for the Correction of Errors, and
whenever any question of fact shall arise upon any motion in
relation to such writ or the proceedings thereon, the court may
remit the record to the supreme court with directions to cause an
issue to be made up by the parties to try such question of fact, at
the proper circuit court or sittings, and to certify the verdict
thereupon to the Court for the Correction of Errors. "
Page 32 U. S. 284
No such issue having been directed, we must necessarily conclude
that no question of fact was in dispute, and as the record contains
no intimation that this matter was not set up in proper time, the
conclusion would seem irresistible that the Court for the
Correction of Errors considered the matter itself, set up in the
assignment, as insufficient to reverse the judgment. This, being
the only question decided in that court, is the only question to be
reviewed here, and viewing the record in this light, we cannot but
consider the judgment of the state court in direct opposition to
the act of Congress, which excludes the jurisdiction of the state
courts in suits against consuls.
But if the question was open for consideration here, where the
privilege claimed was not waived by omitting to plead it in the
supreme court, we should incline to say it was not. If this was to
be viewed merely as a personal privilege, there might be grounds
for such a conclusion; but it cannot be so considered. It is the
privilege of the country or government which the consul represents;
this is the light in which foreign ministers are considered by the
law of nations, and our Constitution and law seem to put consuls on
the same footing in this respect. If the privilege or exemption was
merely personal, it can hardly be supposed that it would have been
thought a matter sufficiently important to require a special
provision in the Constitution and laws of the United States. Higher
considerations of public policy doubtless led to the provision; it
was deemed fit and proper that the courts of the government, with
which rested the regulation of all foreign intercourse, should have
cognizance of suits against the representatives of such foreign
governments. That it is not considered a personal privilege in
England is evident from what fell from Lord Ellenbouough in the
case of
Marshall v. Critico, 9 East 447. It was a motion
to discharge the defendant from arrest on common bail on the ground
of his privilege under the statute 7 Ann. c. 12, as being consul
general from the Porte. Lord Ellenborough said this is not a
privilege of the person, but of the state he represents, and the
defendant having been divested of the character
Page 32 U. S. 285
in which he claims that privilege, there is no reason why he
should not be subject to process as other persons, and the motion
was denied on this ground.
Nor is the omission to plead the privilege deemed a waiver in
England, as is clearly to be inferred from cases where application
has been made to discharge the party from execution, on the ground
of privilege, under the statute of Ann, which is considered merely
as declaratory of the law of nations, and no objection appears to
have been made that the privilege was not pleaded. 3 Burr. 1478,
1676.
It may not be amiss barely to notice another argument which has
been pressed upon the court by the counsel for the defendants in
error, although we think it does not properly arise upon this
record.
It is said the act of Congress does not apply to this case
because, being an action upon a recognizance of bail, it is not an
original proceeding, but the continuation of a suit rightfully
commenced in a state court.
The act of Congress is general, extending to all suits against
consuls, and it is a little difficult to maintain the proposition
that an action of debt upon recognizance of bail is not a suit.
But we apprehend the proposition is not well founded; that it is
not, in legal understanding, an original proceeding.
It is laid down in the books that a
scire facias upon a
recognizance of bail is an original proceeding, and if so and
action of debt upon the recognizance is clearly so. A
scire
facias upon a judgment is, to some purposes, only a
continuation of the former suit, but an action of debt on a
judgment is an original suit. It is argued that debt on
recognizance of bail is a continuation of the original suit
because, as a general rule, the action must be brought in the same
court. Although this is the general rule, because that court is
supposed to be more competent to relieve the bail when entitled to
relief, yet whenever, from any cause, the action cannot be brought
in the same court, the plaintiff is never deprived of his remedy,
but allowed to bring his action in a different court, as where the
bail moves out of the jurisdiction of the court. This is the
settled rule in the State of New York, and it is surely a good
reason for
Page 32 U. S. 286
bringing the suit in another court when the law expressly
forbids it to be brought in the same court where the original
action was brought. 2 Wms.Saund. 71a; Tidd's Pract. 1099 (6th ed);
2 Arch.Pract. 86, b. 3, ch. 3; 7 Johns. 318; 9
id. 80; 12
id. 459; 13
id. 424; 1 Chit. 713; 18 Eng.Com.Law
212, note a.
But the reversal of the judgment in this case is put on the
ground that from the record we are left to conclude that the Court
for the Correction of Errors decided that the character of Consul
General of the King of Saxony did not exempt the plaintiff in error
from being sued in the state court.
Judgment reversed.
This cause came on to be heard on the transcript of the record
from the Court for the Trial of Impeachments and Correction of
Errors for the State of New York, and was argued by counsel, on
consideration whereof it is the opinion of this Court that the
plaintiff in error's being Consul General of the King of Saxony
exempted him from being sued.
