# Davis v. Packard (31 U.S. 41)

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United States Supreme Court
31 U.S. 41
Davis v. Packard
ERROR to the court for the correction of errors of the state of New York.
The now defendants in error, Isaac Packard, Henry Disdier and William Morphy, brought an action of debt, on a recognizance of bail, against the now plaintiff in error, Charles A. Davis, in the supreme court of judicature of the state of New York; the writ of capias ad respondendum in which action was returnable in January term 1830. The defendant, Mr Davis, appeared by attorney, and pleaded several pleas in bar, upon which issues were taken, both in fact and in law. The issues were determined against the defendant, and final judgment was rendered against him at the May term of the said supreme court, for four thousand five hundred and thirty-eight dollars and twenty cents debt, and four hundred and sixty-nine dollars and nine cents damages and costs.
Upon that judgment a writ of error was brought to the court for the correction of errors,-being the highest court of the state of New York,-and the plaintiff in error assigned error in the following words:
'Afterwards, to wit, on the first day of September in the year of our Lord one thousand eight hundred and thirty, 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, comes the said Charles A. Davis, by Andrew S. Garr, his attorney, and says, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that he, the said Charles A. Davis, before and at the time of the commencement of the suit of the said Isaac Packard, Henry Disdier and William Morphy, against him the said Charles A. Davis, was, and ever since hath 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. That being such, he ought not, according to the constitution and laws 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 the foregoing assignment, the following joinder in error was put in:
'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.'
The cause was argued upon the assignment and joinder, and the court for the correction of errors subsequently affirmed the judgment of the court below, with double costs, to be paid by the plaintiff in error.
Mr Sedgwick moved to dismiss the writ of error, for want of jurisdiction in this court.
He stated, that the error now assigned is, that the plaintiff is a consul of the king of Saxony, and was so at the time the action was instituted against him. This allegation was not made in the supreme court; and did not appear until the assignment of errors in the court of errors.
The question is presented to this court, whether a consul who submits himself to the jurisdiction of a state court, by entering into a recognizance of bail in an action depending in such a court, can take advantage of a want of jurisdiction without pleading it: can such a party plead his privilege in a court of errors, who has neglected to plead it in the courts below?
When this case, came before the court of errors, the plaintiff in error here, filed a plea stating his privilege as consul, and claimed that the courts of the United States had exclusive jurisdiction in suits against ministers and consuls.
No question came before the court of errors involving either the construction or the validity of any law of congress, or of any commission issued under the authority of such law. The court of errors had no right to receive or try such a question.
This position will be established by the decisions of the courts of New York, as to the jurisdiction of the court of errors. That court is only an appellate court.
To sustain the right of the court of errors to take cognizance of the plea of the defendant there, it must be shown that the court has jurisdiction of errors in fact. By the provisions of the constitution of the state of New York establishing that court, in all cases where writs of error are prosecuted to the supreme court, the judges of the supreme court are required to assign the reasons of their judgment in writing. It is only upon the judgment of the court below the court of errors acts; and if the questions presented to the court of errors have not been submitted below, there can be nothing for the revision or action of the highest court. And this is the construction which has been given by the legislature to the constitution. Cited, 1 Revised Laws of New York. 1st section, 5th article of the Constitution of the State of New York. Ibid. 165, section 4. 2 Cowen, 50. 2 Wendell, 144. Also the opinion of chancellor Walworth in this case, MS.
If the court of errors had no jurisdiction of the matters set forth in the plea, the validity of no part of the constitution of the United States, or of any act of congress, could have been drawn in question in its decision of the case. It never could have been intended by the constitution to interfere with the distribution of the powers of state courts under their constitutions and laws; and to say that a court of the last resort in a state, should not be restricted to the revision and correction of errors in the inferior courts.
The error of the argument to sustain the jurisdiction of this court in the case before it, arises from inadvertence to the distinction between courts of limited and of general jurisdiction; and no case can be found in the books where courts of the former character have properly gone out of the limits imposed by their constitution, to assume jurisdiction. The jurisdiction of the court of errors of New York is strictly limited by the constitution.
It must be decided by this court that the court of New York erred, when it had no right to give a judgment on the suggestion of consular privilege, when the question of that privilege could not be decided by them, nor could that court direct an issue in fact to ascertain the fact asserted in the suggestion.
There is no necessity to sustain the jurisdiction of this court over the case before them, in order to give the protection to the rights of consuls, which is secured to them by the constitution of the United States. That protection should be asserted by plea or suggestion in the lower court, and if this has been omitted, a writ of error corum vobis in the inferior court would enable it to ascertain the privilege, and allow it.
Mr J. M. White, with whom was Mr A. S. Garr, for the plaintiff in error, and in support of the jurisdiction of this court, presented three points for the consideration of the court.
1. The defendant in the supreme court of the state of New York, being a foreign consul, that court had no jurisdiction of the action.
2. The defect of jurisdiction was not cured by the defendant's appearing and pleading to the action, and omitting to take the objection in the supreme court.
3. Although the want of jurisdiction does not appear on the face of the record of the supreme court, their judgment was nevertheless erroneous; and as such want of jurisdiction appeared by the pleadings in the court for the correction of errors, the judgment ought, for that cause, to have been there reversed.
It is alleged that this court cannot have jurisdiction of this case, because the constitution and laws of the state of New York have so regulated the powers of the court of errors of New York, that a privilege to which the plaintiff in error is entitled under the constitution of the United States, could not be maintained or asserted before that court.
It cannot be that state regulations can take away such a privilege. This would give to a state the power so to arrange the jurisdiction of her courts, as that the privilege of a consul might be excluded and destroyed. It is important for the peace of the United States, that such protection as consuls are entitled to by the laws of nations, shall be secured to them: and if the courts of the United States have not exclusively the cognizance of cases affecting them, there will be no certain and general rules by which their privileges and rights will be maintained and protected.
The constitution of the United States and the judicial act of 1789, have been drawn in question before the court of errors of the state of New York, and that court has decided against a right and a privilege claimed under the second section of the third article of the constitution of the United States, which declares, that 'the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers and consuls. In such cases, the Supreme Court shall have original jurisdiction.' The ninth section of the judicial act of 1799, gives to the district courts of the United States 'jurisdiction, exclusively of the courts of the several states, of all suits against consuls, or vice consuls,' except for officers of the description stated in the act.
These provisions of the constitution and of the act of congress, go to the foundation of the action; and the right of a consul to exemption from state jurisdiction need not be pleaded in abatement.
It is not a case in which concurrent jurisdiction exists in the state courts, and those of the union. The courts of the United States have exclusive jurisdiction of suits against consuls; and the consent of the consul could not give jurisdiction to the state court. The State of Georgia v. Madrazzo, 2 Peters. 1 Binney, 138.
The statutes of New York which regulated the proceedings of the court of errors of New York, and the constitutional provisions relative to that court, have been changed since this suit was originally instituted. Revised Statutes of New York, 601. Formerly an infant and a married woman might plead their disabilities in the court of errors, and that court would direct an issue in fact to determine the truth of the plea. If, by a statute of New York in full force when this suit was commenced in the inferior court, such were the privileges of infancy and coverture in the court of errors, why should not the exemption claimed by a consul be tried by an issue in the same court? This court will never admit, that a state can pass laws which will exclude the exemption from the operation of the state laws; and subject to the jurisdiction of the courts of a state, those who, by the constitution of the United States, are protected from such jurisdiction, and this by preventing the court of the state from taking notice of a plea of such exemption.
The constitution and laws of the United States do not point out how or where the consular exemption from state jurisdiction shall be pleaded; and it cannot be left to a state to regulate these. Cited in the argument, 2 Cranch, 125; 19 Johns. Rep. 33, 40; 9 Cowen, 227; Hickie v. Starke, 1 Peters, 98; Wilson v. The Black Bird Creek Marsh Association, 2 Peters, 250; 12 Johns. 493; 17 Johns. 468; 16 Johns. 341; 2 Cowen, 31; 2 Cranch, 126; 3 Caines, 129.
The court held this case under advisement until January term 1832, when,
Mr Justice THOMPSON delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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