IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA

Civil Action No. 916-58

WILLIAM WORTHY, JR., Plaintiff, v. JOHN FOSTER DULLES, Defendant.

WASHINGTON, D. C., Thursday, October 2, 1958.

The above-entitled cause came on for hearing on motions for summary judg ment before the Honorable EDWARD M. CURRAN, District Court Judge, at 10: 25

THE COURT. The conduct and exercise of foreign relations of the United States resides in the Executive Branch of the Government. Within the reasonable and proper exercise of foreign relations, the President of the United States may properly restrict the travel of certain citizens to certain designated geographical areas of the world when necessitated by foreign policy considerations.

Now, a passport renewal may validly be denied to a person who, after a hearing, the Secretary of State has concluded would engage in activities in foreign countries prejudicial to the orderly conduct of foreign relations because the Secretary has reason to believe on the basis of his past conduct and evidence of his future conduct that he would, if his passport were renewed, violate the restricting endorsements contained therein. Under the circumstances of this case, the refusal of the Secretary of State to issue a passport to the plaintiff does not violate his rights under the First Amendment; therefore, the plaintiff's motion for summary judgment is denied and the defendant's motion for summary judgment is granted.

Counsel for the defendant will prepare the proper order.

(Whereupon, at 11:55 a. m., the hearing in the above-entitled cause was concluded.)

520

II-A

CASES DECIDED BY THE SUPREME COURT OF THE UNITED STATES

DOMINGO URTETIQUI, PLAINTIFF IN ERROR, v. JOHN N. D'ARCY. HENRY DIDIER, AND DOMINGO D'ARBEL, DEFENDANTS IN ERROR. 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 plaintiffs produced and gave in evidence under the decision of the Circuit Court, a passport granted by the 80cretary 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 favour 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.

IN error to the Circuit Court of the United State. for the District of Maryland.

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

[*693

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 the 30th April, 1803, and continued to be an inhabitant thereof, until the year 1818 or 1519.-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 the 224 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 Ame

rican 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 the 8th of 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 Neil, 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 the 8th of 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.

*694]

The plaintiffs objected to the evidence so offered, and the *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 transcrip: 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 evilence offered by the plaintiffs, and to the ruling of the Court on the prayers of the defendant; and the Court sealed a bill of excep

tions. A judgment having been entered on the verdict of the jury in favour of the plaintiff, the defendant prosecuted this writ of error.

The case was argued by Mr. Kennedy, and Mr. Meredith, for the plaintiff in error; and by Mr. Johnson, and Mr. Taney, for the defendants.

For the plaintiff in error, it was contended, upon the first exception, that the passport granted by the Secretary of State to M. D'Arbel, was not admissible evidence.

Passports are not authorized by any act of Congress, and even when they are used in foreign countries, they are, from the comnity of nations in amity with each other, admitted as prima facie evidence of what they purport. They do no more than request that the person to whom the passport is given, may be [*695 permitted to pass freely, and that he may have all lawful aid and protection as a citizen of the United States.

It is denied that the passport was evidence, any more than a mere certificate of a claim by D'Arbel of citizenship. It may show an application to the Department of State; but the Circuit Court allowed it to be read as legal evidence of citizenship.

It is not judicial evidence, as it was not given under any law. Protections are not per se evidence. 3 Wash. C. C. R. 529. Such a paper has never been admitted to prove the facts stated in it. Passports are issued in the Department of State on request; and not upon evidence to support the assertion of citizenship on which they are granted. But if such evidence were required and furnished, unless by some direction or authority of a statute, they would not be evidence of the fact of citizenship.

It was not intended that a passport should be judicial evidence, either here or abroad. It is a political document addressed to foreign powers and foreign agents. Commanders of fleets and generals of armies grant them, and they pass for what they are worth. The practice of the Department of State cannot change the law of evidence.

Upon the second exception, it was argued, that the record of the proceedings in the case in the District Court of the United States, removed from the State Court by D'Arbel, was legal evidence of the declaration made on oath by him, to obtain the removal of the

cause.

It was introduced only to show the oath taken by D'Arbel. This was his mere declaration, and as such could be proved by the paper itself, as a declaration could be proved by a person who heard it. It is his own act, and as the record is certified according to the act of Congress, the contents of it were evidence.

D'Arbel had filed the proceedings in the District Court, from the State Court, and he was the only person who could do so; and to obtain the consent of the Court to receive them, he made the affidavit. It is not the proceedings in the State Court which are evidence, but

those in the United States Court, which were there upon the affidavit of D'Arbel, under the authority of the act of Congress; and the proceedings of the State Court became those of the Dis

696]

trict Court.

The removal of the proceedings in such a case to a Court of the United States, from a State Court, is like the removal of a case by certiorari, which takes up the whole record, and they become matter of record in the Court to which they go. The term "process." in the act of Congress, means all the proceedings. No new declaration is filed in the federal Court, and the Court may remand the case, If its removal has not been legal. Cited, 1 Wheat. 304. 345; 3 Story on the Constitution, 608; 1 Peters C. C. R. 44; 1 Paine, 410; 4 Wash. C. C. R. 286.

The objection that the record was res inter alios acta, would apply to all declarations made under any circumstances. The record is not to affect the right of any one but D'Arbel, and to prove the fact of his alienage. Suppose he had declared he was an alien, it would equally affect the rights of his copartners, and yet the right to prove such a declaration will not be denied.

As to the third exception, it was argued that it took from the jury the consideration of all the evidence in the case, and directed the jury to consider the plaintiffs' evidence only. This was an interference with the province of the jury.

Mr. Johnson and Mr. Taney, for the defendants in error, contended, on the first exception, that the passport was proper evidence. Documents of this description are made evidence by usage. The document is respected by foreign nations; it is granted by a high officer of the government, and it contains his official declaration of the fact stated in it, the citizenship of the person named in it. The laws of nations recognise passports as evidence of the national character they assert.

Acts of Congress recognise passports. 2 Laws U. S. 98; 3 Laws U. S. 528. The last act imposes a penalty on consuls for granting passports to persons not entitled to them.

The form, manner, and evidence on which a passport shall be granted, are not regulated by any particular law, but the Court will judicially take notice of the usage of the government to issue them. It is the universal usage of nations to grant them, and to respect them as protections according to the law of nations.

Upon the second exception, the counsel contended that *697] the record was not evidence in the case. Whether a cause shall be removed from a State to a federal Court depends on the State Court, and the record of the action of the State Court, presented as it was in this case, would not be evidence. No inquiry is inade in the Court of the United States as to alienage, that is made in the State Court; and the affidavit is only to satisfy the State Court of the fact alleged. The affidavit and the petition form no part of the record, and do not properly go up to the District Court.