Geyer v. Michel

¶1THIS was a Writ of Error to the Circuit Court, for the Diftridt of South Carolina; and, or. the return of the record, the following pleadings appeared:

¶2*286On the ad of'February, 1795, a libel was filed- by the Plaintiffs in error, ftaiing, That the ihip Den Onzekeren and her cargo, cn the 16th oí November, 1794» were, and ever fince have been, the property of Spooner and Springer, and other citizens- of the United Netherlands, owners and freighters of the fame: That peace and amity fubfiftedbeiween. the United.States and the United Netherlands, and that a treaty between the two powers, was concluded on the 8th of October, 1782, which is in fuH force: That the Den Onzekeren failed with her cargo from Demorara, in the JVcjl Indies, bound tci Middteburg, in Holland, and in the cquife of her voyage or. ihc i6-> or' November., 1794, -was captured on the high fejssyin lac. 27- N. and long. 63, W. by a French'irmed ihip, called the Citizens of Mar-feilles, commanded by Captain FiEtor Chabertc That the faid armed ihip pretended to be caikd the Citizen of Mar (lilies, was. fitted out, armed -and equipped for ivcr, in the port of 'Philadelphia, in the United State;, contrary to the laws of nat'ons, &c. that foe went to fea, not having a legal commlfior to cruize, and that at. the time of capturing the faid (hip Den Onzekeren, ihe v/as bound to Cayenne, to obtain a commiffion to cm ire agaihft the. enemies of the French Republic: That the Cit:zen of Marfeiiies was-armed, equipped, and fitted out gor-war at Philadelphia, or fome other place in the river tr bay cf Delaware, in Pennfylvania, New Jerfey or Delaware, contrary to the laws of neutrality, &c. That ihe was armed, equipped, .and fitted out for war while in Philadelphia, •with 11 guvs, and military Jiores equal to that force; but that after quiftnig. the faid port, to. wit, in the river of Delaware, within the'-iu-riiui&ion of the United States, her force was added to, and augmented by opening certain other port holes, and'mounting certain other cannon, to wit, 16 gtlns, which ihe bad concealed in her hold, and brought, or procured to. be brought from the-port of Philadelphia-, and by providing har-lelf with other military flores, contrary to the laws of neutrality, Ü c: That the Captain, c.fEeei s, and crew of the faid ill ip, Citizen of Marfeiiies, coúld rot 'legally have any commiffion' power or- authority from ariy Prince or State,. for a veffel fitted out , armed and equipped for war, in the United States-, nor for a veffel whofe force had been augmented in the United States, by adding to the number or fize of her guns, or by addition thereto of any equipment folely applicable to war, much lefs could they have authority to carry and detain her prizes in the ports of the United States: That the faid Vistor Chabert, pretends to have . a lawful commiffion from the French Republic,.which the Libellants pray he may be ohligéd to ihew and file; but which faid pretended commiffion, (if anv there be) hiving been rffued to "a vsilbl, then actually being fitted, arm*287ed or equipped as aforefaid, pr whofo force had .been augmented in the United States,- is . n,ull and void : That the whole, part, or fe vera! of the. crew of the Citizen,of Marfeilles, confined of American citizens,' or inhabitants, enlifted and Slipped in the United States : That if the faid armed Slip had been legally commiiiioned previous to her entering thg port of Philadelphia,- the fubfequent augmentation of her force in the United States, rendered her commiffion .null and void, to all intents and purpofes: And that the courts of the United States are bound to reiiore the prizes made ’by a vsffel, whofe force has been augmented within the neutral limits thereof. The libel, therefore, concudes,. by praying reftiiution and damages.

¶3On the 4th of March, 1795, a claim,-fwom to in open court, was "filed by John Michel, prize mailer of the faid Slip Den 'Oniekcren, and her cargo, ¡tiling himfelf.a native frenchman, and citizen of the French' Republic, in behalf of faimfelf, Antonie Francois Planche, a native- Frenchman, now refident at -Philadelphia, owner of the private armed veflel the Citizen ■ of' Ma'rfiUes ;■ and in behalf .of'the officers, mariners, and -c.réw, or per¿»nfs «■nterefted in the laid veflel of war, being all French dtiz'ehS',.1 .Alter' 'proteRirig that the faid libel is ■vexatious, aiid not-good and.fufficient in law, the claim proceeds to Rate, That he, -the faid John Michel, the-faid. A. F. ■Planche, and the officers and crew,- and perfons interefted in the laid ihtp Citizen -of Marfeilles,- and her faid prize, are ail French -.citizen s': That the faid-ih'ip Citizen of Marfeilles, is a French véfísl; was riot originally armed and equipped, or ■fitted for war. at 'Philadelphia, or any other port or place of the United States, buflhe '.Vas fitted, armed, or' equipped for war at ''St. Domingo, end was duly' commiffioned for war, under the authority of the French Republic,- by Monge, MiniRer of the Marine Department, in France, by a commiffion ifiued at the Gape, as appears by a certified copy of the commiffion, «of the faid Planche, dated at . on the ■ day of' in the year of our Lord one thoufand ■feven bundred and filed agreeably to the demand of ■:íhe Libellánt: And that the capture was made in open war, on :the high feas, and without -the neutral'limits of the United ■States, To-the claim was added, a plea of the 17th.article of ■the’Treaty ofAmity and Commerce, between the United States " ánd Fr’ance,- in bar to the libel; and a prayer that the libel be difmiffed with cofts and damages.

¶4The Libellant-filed. .A replication, in which, after the tilual falvos and proteftátions, it was Rated, that the force of the •fhip Citizen of Marfeilles, was increafed and augmented within the neutral limits, of the United States, to wit, in the port-of Philadelphia, and in the bay and river Delaware, by adding to *288the number of her guns, and by additions .thereto of certain carriages, and other equipments,' folely applicable to war} by preparing for opening, and adlually opening, certain portholes on her main deck, abaft the mainchains, and alfo opening other port-holes in her quarter deck, and adding to the number of her gun-carriages, .and furniture and tackle for gun-carriages, in order to the mounting of other, and a greater number, of guns than ihehad mounted at the time of her arrival in the United States, or in the port of Philadelphia : That the' crew of the faid armed (hip was not wholly Frenchmen, as ftat-ed in the anfwer, but was compofed partly of native Americans, partly of Englijhmen, Irijhmen and Scotchmen, and other .citizens of the United States '. That the faid pretended commiflion, a copy of which is-exhibited, faid to be given by Mange, Minifter of Marine of the French Republic, but which appears blank as to its date, was not duly iffued at St. Domingo, to the faid A. F. Planche, but was illegally .and improperly delivered and obtained in the United States, on condition of his, the faid A. F. Planche, or the faid ViSior Chabert, repairing to' fome part of the French Republic to perfedt the Jame : That the pretended commiflion marked B, pretended to be iffued by Liger Felicite S'onthonax, and pretended to be dated the 30th of September, 1793, if ever it was really iffued, is void and of none effedl, the National Aflembly of the French Republic having annulled all adls and authorizations given by the faid Santhonax : And that, by the Refpondent’s own (hewing, it appears by a certificate figned Petry,. at Philadelphia, the 27th of Vendemaire, 3d year of the French Republic, (1.8th October 1795) that on a change of the commander of the faid (hip, the' faid ViSior Chabert is exprefsly required tb repair to fomé port of the Republic, for the purpofe of perfecting the faid blank commiflion firil mentioned. The Libellant concluded with a demurrer to the plea.of the 17th article of the. treaty of amity and commerce between the United-States and France, in bar; and repeats the prayer of the libel for reftitution.

¶5On the above pleadings a term probatory was obtained, fe-veral witneffes were examined at Charlefton, and a commiflion ' iffued. to certain commiffiopers' in Philadelphia to examine other witneffes. The commiflion being executed and return-. ed, the caufe was argued, and the Diftridt Judge, on the 27th of April 1795, by his final fentencé, decreed.reftitution of the íhip Don Onzekeren and her car’-o, with coils ; bfit without damages, on the ground of augm tionof forcé only*.

¶6*289From this decree an appeal was interpofed, ■ and a writ of error was iffued out ofj and returnable to* the Circuit Codrt, *290which fat at Columbia, on the i-2th of May, 1795. On the re-tuirrl of the record, a csmmiffion was iil’ued to certain commif-*291iloners at Philadelphia, to examine witneiTes in the caufe, and the hearing was adjourned to the next Circuit Courts which *292fat at Cbarlfjlon, ftn the sjth of October following. At that Term, the cornmiflioners having made return of their procced-*293ings, the Circuit Court, after a hearing, on thenew evidence, reverfed the decree ofthe Diflrift Court.

¶7On the decree of the Circuit Court, the prefent writ of error was brought; and the following fails. appeared from the evidence, and exhibits, tra.nímitted with the record:

¶8The citizen of Marfeilles had arrived from Marfeilles, at the Cape, in the month of Juney 1793, at which time ihe was: armed, having ten port-holes on each fide of thé main-dfcck, and a number of cannon in her hold. It was foon afterwards propofed, to employ the veffel in carrying certain deputies of the Colony to France; arid with that view, her warlike equipments were encreafed, and the Captain received a commiffion, ligned in Paris, by theMinifter of Marine, but not dated, with an authorifation endorfed by Santhonax⅛ the Civil Commiflary of the Republic, at the Cape, and by Petry, the French Conful at Philadelphia.* About

¶9*294About the end of September, 1793 (a few days before her failing) fhe had 28 guns mounted, 2o on her main-deck, 6 on her quarter-deck, and 2 on her fore-caftle. Her deftination, however, heing fuddenly changed, (the deputies taking another conveyance, and the commiffioners putting the vefle! in requi-fit-ion, to carry 3 or 400. fick and wounded Frenchmen to America,) an immediate alteration was made, • and her warlike eqipments were rendered fubfervient to the accommodation of paflengers. A partition was made before the main-maft, the 5 port-holes abaft, were planked up, to make room for paften-ger’s births, the 5 ihutters were fixed to a correfponding number of port-holes on each fide, the iron guns were' removed where .the ihutters had been put up, and wooden guns were ' *295fubftituted; fo that on the whole, ihe had, externally, an appearance of the fame force, that exifted before the alteration, namely, 12 iron, and 16 wooden guns mounted. The.number .of iron guns in her hold, when ihe left the Cape, was from 12 to 16.' On her ápproaching the American coaft, ihe dif-mounted- fome of the -wooden guns, for the conveniency. of heaving the lead, and depofited them in the hold, leaving only 10 iron guns on the main-deck, and 2 on the quarter-deck. When ihe arrived in the bay of Delaware, Ihe was taken for a veffel of war, with a compleat tier of guns-on each fide;- and the official certiftcates-of the furveyor and infpector of the port, (though there was fome apparent, but no real, difference between them, as the one referred to the aftual armament of the veffel, and the other included the guns difmounted) reprefented .her'as arriving with 12 cannon mounted, anda number of cannon in her hold.' Soon after her entering the port, the Captain applied to a ihip carpenter to open the port-holes, which had been fhut up at the Cape; but, having confulted the Governor^ he declined to do that, or any other thing, which was Calculated' to augment the warlike force of the veffel.. She was, however, di(mantled at' one of the wharves, 24 guns were landed from her, two remained in the.hold, and two werelaihed to the fore-caftle; and, in the courfe of her general repairs, the ftate-rooms were knocked down, the veffel was caulked all over, her old gun-carriages were repaired, fome new gun-carriages were made, by her-own. carpenters, in the room of an equal number of old ones, that were broken to pieces, the eye-bolts, for fixing the gun-tackle, were taken out and re-placed, and ihe was furnifhed with a new maft. The veffel failed from Philadelphia, publicly, at noon, and gave three cheers on her departure. The officers of the port, and feveral other witneffes declared, that ffie departed in the fame apparent ftate of warlike force, as.'(he exhibited on her arrival: the fame number.of guns being mounted, and the fame number depofited in her hold.— Two’witneffes (of very doubtful credit) declared, that on her paffage down the river, fh'e took on boaid, fwivéls, gun-car- - riages, and mariners;- that they affifted in opening the portholes', that very few real Frenchmen belonged to her crew, -/that part of them were enlifted in Philadelphia. 'But other witneffes declared, that the veffel only re-placed her wooden guns i-ri the river;. that although fome of the crew joined her below, it was cuftomary to dofo; and that the 'crew confided principally of Frenchmen, though there were men óf a variety of nations on hoard. After the veffel had left the capes, ihe began immediately to open all the port-holes, and to'mountthe guns that had been depofited in the hold. She was vifited by an American (hip, while thus, employed; and all her guns were *296mounted, at. the time of her taking other prizes; the Captain of one of them reprefenting, indeed, in a proteii, made ex parte, thát ihe mounted upwards of 30 guns; and the American vi~ iitor Hating, that the gun-carriages had been juft painted, and were, together with their tackle, apparently-new.

¶10The cafe was argued, by E. Tilghman and Lewis, for the Plaintiffs in error, and by Ingerfoll, Dallas, and Du P.onceau, .For the Defendant. •

¶11By the former., it was contended, that the veffel had not a competent, legal, commiffion; that the force of the veffel was augmented in the port of Philadelphia, by encreafing the number of her guns, and gun-catriages, by opening new port-holes, and by enlifting American- citizens: and, that even, if the fadts were doubtful, as to all the other points, it was incontrovertible, that new gun-carriages-had been1 fubftituted for old ones, which was an unequivocal alteration and augmentation in a-matter folely applicable to war.

¶12By the latter,.it was anfwered, that the commiffion was valid; that in point of fadt, there was no evidence of any augmentation of the force of the veflcl, ■ by cannon or mariners ; that the fubftitution of new, for old gun-carriages, was a mere re-placement, not an augmentation of force; and that, in point of law, an augmentation of the force of a French ihip of war, within the jurifdidtion of the United. States, is' not fufficient (according to our municipal law, or to the law of nations) to annihilate her warlike character, and to deftroy the conventional right of afylum for herfelf and her prizes.