U.S. Supreme Court THE DEN ONZEKEREN, 3 U.S. 285 (1796)
3 U.S. 285 (Dall.)
Geyer, et al.
Michel, et al. and the ship Den Onzekeren.
February Term, 1796
This was a Writ of Error to the Circuit Court, for the District of South Carolina; and, on the return of the record, the following pleadings appeared:
On the 2nd of February, 1795, a libel was filed by the Plaintiffs in error, stating, That the ship Den Onzekeren and her cargo, on the 16th of November, 1794, were and ever since have been, the property of Spooner and Springer, and other citizens of the United Netherlands, owners and freighters of the same: That peace and amity subsisted between 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 full force: That the Den Onzekeren sailed with her cargo from Demarara, in the West Indies, bound to Middleburg, in Holland, and in the course of her voyage on the 16th of November, 1794, was captured on the high seas, in lat. 27, N. and long. 63, W. by a French armed ship, called the Citizens of Marseilles, commanded by Captain Victor Chabert; That the said armed ship pretended to be called the Citizen of Marseilles, was fitted out, armed and equipped for war, in the port of Philadelphia, in the United States, contrary to the laws of nations, etc. that she went to sea, not having a legal commission to cruze; and that at the time of capturing the said ship Den Onzekeren, she was bound to Cayenne, to obtain a commission to cruize against the enemies of the French Republic: That the Citizen of Marseilles was armed, equipped, and fitted out for war at Philadelphia, New Jersey or Delaware, contrary to the laws of neutrality, etc. That she was armed, equiped, and fitted out for war while in Philadelphia, with 12 guns, and military stores equal to that force; but that after quitting the said port, to wit, in the river of Delaware, within the jurisdiction 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 guns, which she had concealed in her hold, and brought, or procured to be brought from the port of Philadelphia; and by providing herself with other military stores, contrary to the laws of neutrality, etc: That the Captain, officers, and crew of the said ship, Citizen of Marseilles, could not legally have any commission power or authority from any Prince or State, for a vessel fitted out, armed and equipped for war, in the United States; nor for a vessel whose force had been augmented in the United States, by adding to the number or size of her guns, or by addition thereto of any equipment solely applicable to war, much less could they have authority to carry and detain her prizes in the ports of the United States: That the said Victor Chabert, pretends to have a lawful commission from the French Republic, which the libellants pray he may be obliged to shew and file; but which said pretended commission, (if any there be) having been issued to a vessel, then actually being fitted, armed
or equipped as aforesaid, or whose force had been augmented in the United States, is null and void: That the whole, part, or several of the crew of the Citizen of Marseilles, consisted of American citizens, or inhabitants, enlisted and shipped in the United States: That if the said armed ship had been legally commissioned previous to her entering the port of Philadelphia, the subsequent augementation of her force in the United States, rendered her commission null and void, to all intents and purposes: And that the courts of the United States are bound to restore the prizes made by a vessel, whose force has been augemented within the neutral limits thereof. The libel, therfore, concudes, by praying restitution and damages.
On the 4th of March, 1795, a claim, sworn to in open court, was filed by John Michel, prize master of the said ship Den Onzekeren, and her cargo, stiling himself a native Frenchman, and citizen of the French Republic, in behalf of himself, Antonie Francois Planche, a native Frenchman, now resident at Philadelphia, owner of the private armed vessel the Citizen of Marsielles; and in behalf of the officers, mariners, and crew, or persons interested in the said vessel of war, being all French citizens. After protesting that the said libel is vexatious, and not good and sufficient in law, the claim proceeds to state, That he, the said John Michel, the said A. F. Planche, and the officers and crew, and persons interested in the said ship Citizen of Marseilles, and her said prize, are all French citizens: That the said ship Citizen of Marseilles, is a French vessel, was not originally armed and equipped, or fitted for war at Philadelphia, or any other port or place of the United States, but she was fitted, armed, or equipped for war at St. Domingo, and was duly commissioned for war, under the authority of the French Republic by Monge, Minister of the Marine Department, in France, by a commission issued at the Cape, as appears by a certified copy of the commission, of the said Planche, dated at on the day of in the year of our Lord one thousand seven hundred and filed agreeably to the demand of the Libelland: And that the capture was made in open war, on the high seas, and without the neutral limits of the United States. To the claim was added, a plea of the 17th article of the Treaty of Amity and Commerce, between the United States and France, in bar to the libel; and a prayer that the libel be dismissed with costs and damages.
The Libellant filed A REPLICATION, in which, after the usual salvos and protestations, it was stated, that the force of the ship Citizen of Marseilles, was increased and augemented within the neutral limits of the United States, to wit, in the port of Philadelphia, and in the bay and river Delaware, by addint to
the number of her guns, and by additions thereto of certain gun carriages, and other equipments, solely applicable to war; by preparing for opeing, and actually opening, certain portholes on her main deck, abast the main chains, and also opening other port-holes in her quarterdeck, 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 that she had mounted at the time of her arrival in the United States, or in the port of Philadelphia: That the crew of the said armed ship was not wholly Frenchmen, as stated in the answer, but was composed partly of native Americans, partly of Englishment, Irishmen and Scotchmen, and other citizens of the United States: That the said pretended commission, a copy of which is exhibited, said to be given by Monge, Minister of Marine of the French Republic, but which appears blank as to its date, was not duly issued at St. Domingo, to the said A. F. Planche, but was illegally and improperly delivered and obtained in the United States, on condition of his, the said A. F. Planche, or the said Victor Chabert, repairing to some part of the French Republic to perfect the same: That the pretended commission marked B, pretended to be issued by Liger sfelicite Sontbonax, and pretended to be dated the 30th of September, 1793, if ever it was really issued, is void and of none effect, the National Assembly of the French Republic having annulled all acts and authorizations given by the said Santhonax: And that, by the Respondent's own shewing, it appears by a certificate signed Petry, and Philadelphia, the 27th of Vendemaire, 3rd year of the French Republic, (18th October 1795) that on a change of the commander of the said ship, the said Victor Chabert is expressly required to repair to some port of the Republic, for the purpose of prefecting the said blank commission first mentioned. The Libelland concluded with a demurrer to the plea of the 17th article of the treaty of amity and commerce between the United States and Frence, in bar; and repeats the prayer of the libel for restitution.
On the above pleadings a term probatory was obtained, several witnesses were examined at Charleston, and a commission issued to certain commissioners in Philadelphia to examine the witnesses. The commission being executed and returned, the cause was argued, and the District Judge, on the 27th of Paril 1795, by his final sentence, decreed restitution of the ship Den Onzekeren and her cargo, with costs; but without damages, on the ground of augementation of force only(a).
From this decree an appeal was interposed, and a writ of error was issued out of, and returnable to, the Circuit court, which sat at
On the 1st part, viz. whether the force of the Citizen of Marseilles was encreased and augmented within the United States. A number of witnesses have been examined, and a variety of other evidences adduced. The proofs in this cause have been very properly divided by one of the Counsel, into four classes or sets. I will, therefore, consider them in that order also.
The proofs which relate to the vessel at Cape Francois, before she sailed for Philadelphia.
2. Those which relate to her whilst at Philadelphia.
3. Those after she left the city, and previous to her goint to sea.
4. Those immediately after she got to sea.
To the first point, Mr. Boisseau only speaks of her as an armed vessel generally, to the month of June, 1793, but does not specify any particulars.
W. Charrie, who was on board two days, about this period, speaks of her as an armed vessel, with ten ports of each side, and guns in them, and also as having guns in her hold, but no particular number. These are the only witnesses to this, point.
If we proceed now to her appearance at Philadelphia, we find a contrariety of evidence.
Generaly Stewart, in his letter to the Collector 3rd of September 1794, mentions her as having at her arrival 10 nine and 10 six pounders; but he does not say, whether they were mounted or not. He says she will only mount 12 guns at going out, and carry the others in her hold. In his letter to the Secretary at war, dated the 14th October, 1794,
he refers to the above, and also states the different reports of Mr. Milnor, one of the deputy inspectors of the port, to him. The first, on the 30th of September, 1793. He adds, that the ship arrived last autumn, with 16 nine and 10 six pounders, but will only mount 12 guns, which she brought in that situation, the others she is to carry in her hold. On the 14th of October, General Stewart visited her again, and says he finds no addition to the armament, she was reported, and had, on her arrival, viz. 10 six pounders on her main deck, and 2 on her quarter deck, and the rest of the guns in the hold. No new ports had been opened since her arrival. General Stewart does not say, who reported her thus, on her arrival. It could not be Mr. Milnor, for he, on the 14th of October, in his reports, says. 'Having examined the ship called the Citizen of Marseilles, on her arrival in port, I again examined her this day, and find no addition to her armament,' etc. The same number of guns are mentioned, that she had on her arrival. His other certificate which appears from General Stewart's letter to be dated on the 30th of September, 1793, and made to him, of the then actual armament of the ship that day, the day of her arrival, says, 'boarded the privateer ship the Citizen of Marseilles, commanded by Planche, 12 six pounders mounded and 3 not mounted, with other warlike apparatus, 46 men.' By comparing the dates and extracts in this exhibit, it plainly appears there is some mistake amongst the officers at that port. Mr. Milnor, on the 30th of September, 1793, the day she arrived, boarded her, and says she has 12 six pounders mounts, and 3 not mounted: he also visted her on the 14th of October, 1794, and found no addition to her armament, the same number of guns being mounted.
This evidence from the report of the officers of the port, clearly proves, that the ship, on her arrival, had only 12 guns mounted, how many others there were on board not mounted, nust be left to the officers to settle, as I cannot do it from the evidence adduced. Mr. Harrison also sixed to 10 on her main deck, and 2 or 4 on her quarter deck. Michael Williams says, she had but 5 of aside on her main deck, and 2 on her quarter deck. John Grenion, who sailed in the vessel from the Cape of Philadelphia, says she had only 5 of aside on the main deck, and 1 on each side of the quarter deck, and that there were no more port holes open than guns.
Captain Montgomery, of the Revenue Cutter, who saw her at a distance at her first arrival, supposed her to have 10 ports of aside, but whether all real, or some painted, he could not say.
From the whole of this evidence, then, it clearly appears to me, that the ship at her arrival, had only 12 guns mounted, and none in her hold. If we now advert to the number of ports which were open either at her arrival, or at her leaving the port of Philadelphia; we find she had the same number as of guns mounted. All the evidences who were near her, swear positively, that there were none abast the main chains, though several say the ports were framed within, but planked over on the outside. Harrison's evidence is conclusive, because he mentions his application to the governor for permission to open more ports, which was refused; and Captain Chabert's reply that he did not wish to go contrary to the laws of the country, and that as he had carpenters of his own, he could open them elsewhere, and at another place, is fully sufficient to fix this point.
The 3rd. class of evidence, is such as relates to the vessel after her leaving the city, and previous to her proceeding to sea.
And from a careful revision of this it does appear, that a number of ports were opened and guns mounted in the river Delaware. Quin swears
Columbia, on the 12th of May, 1795. On the return of the record, a commission was issued to certain commissioners at Philadelphia, to examine
witness in the cause, and the hearing was adjourned to the next Circuit Court, which sat at Charleston, on the 25th of October following. At that Term, the commissioners having made return of their preceedings,
the Circuit Court, after a hearing, on the new evidence, reversed the decree of the District Court.
On the decree of the Circuit Court, the present writ of error was brought; and the following facts appeared from the evidence, and exhibits, transmitted with the record:
The citizen of Marseilles had arrived from Marseilles, at the Cape, in the month of June, 1793, at which time she was armed, having ten port- holes on each side of the main-deck, and a number of cannon in her hold. It was soon afterwards proposed, to employ the vessel in carrying certain deputies of the Colony to France; and with that view, her warlike equipments were encreased, and the Captain received a commission, signed in Paris, by the Minister of Marine, but not dated, with an authorisation endorsed by Santhonax, the Civil Commissary of the Republic, at the Cape, and by Petry, the French Counsul at Philadelphia.
There cannot be a doubt that if a prosecution was instituted against Capt. Chabert, or any of the persons concerned in increasing, augmenting, or procuring to be increased or augemented, in the force of the vessel, under the act of June last, but that a conviction must follow. There a penalty of fine and improsonment is cedlared, as a punishment so. a breach of the sovereignty and neutrality of the United States, and this by a municipal law of our own: but what does the law of nations require further? I have in the course of the last summer, delivered my opinion on this question so fully in this court, that I need only now repeat some part of the law then laid down. In the case of Janson versus Talbot, I stated that this court, by the law of nations, has juridictionover captures made by foreign vessels of war, of the vessels of any other nation, with whom they are at war, provided such vessels were equipped here, in breach of our sovereignty and neutrality, and the prizes are brought infra praesidia of this country. By the law of nations, no foreign power, its subjects or citizens, has any right to erect castles, inlist troops, or equip vessels of war in the territory or ports of another. Such acts are breaches of neutrality, and may be punished by seizing the persons and property of the offenders. Vessels of war so equipped, ar illegal ab origine, and no prizes they make will be legal as to the offended power, of brought infra praesidia. The seizure and restoration of such prizes are what the laws of neutrality justifly claim. You must either permit both parties to equip in your ports, or neither. Should either equip without your consent, the least you can do, is to divest them of the prizes they may have thus illegally taken, and restore them to the other party, or else permit them to equip also. This cause and this decree were submitted to the Circuit Court in October last, and there affirmed. An appeal to the Supreme Court is still undertemined, but until this opinion is overruled by that tribunal, I hold my self bound to consider it as a law*.
I gave a like decision lately, in the case of the schooner Nancy, from a full conviction that the principles I laid down formerly, were founded on the rules of propriety and the laws of nations.
* It may be useful to illustrate this case, as well as to grafity curiosity at a future period, to subjoin a copy of the commission and endorsements, which are in these words:
Copie de la commission en guerre, du Navire le Citoyen de marselle, Capitaine Victor Chabert pour servir de Commission pour le conducteur de la prize Hollandoise nommee Den Onzekern Cap. Laurent Hertensvelt venant de Essequebo et Demerary, allant a Middleburg.
About the end of September, 1793 (a few days before her sailing) she had 28 guns mounted, 20 on her main-deck, 6 on her quarter-deck, and 2 on her fore-castle. Her destination, however, being suddenly changed, (the deputies taking another conveyance, and the commissioners putting the vessel in requisition, to carry 3 of 400 sick and wounded Frenchmen to America,) an immediate alteration was made, and her warlike equipments were rendered subservient to the accommodation of passengers. A partition was made before the main-mast, the 5 port-holes abast, were planked up, to make room for passenger's births, the 5 shutters were fixed to a corresponding number of port-holes on each side, the iron guns were removed where the shutters had been put up, and wooden guns were
substituted; so that on the wole, she had, externally, an appearance of the same force, that existed before the alteration, namely, 12 iron, and 16 wooden guns mounted. The number of iron guns in her hold, when she self the Cape, was from 12 to 16. On her approaching the American coast, she dismounted some of the wooden guns, for the conveniency of heaving the lead, and deposited them in the hold, leaving only 10 iron guns on the main-deck, and 2 on the quarter-deck. When she arrived in the bay of Delaware, she was taken for a vessel of war, with a compleat tier of guns on each side; and the official certificates of the surveyor and inspector of the port, (though there was some apparent, but no real, difference between them, as the one referred to the actual armament of the vessel, and the other included the guns dismounted) represented her as arriving with 12 cannon mounted, and a number of cannon in her hold. Soon after her entering the port, the Captain applied to a ship carpenter to open the port-holes, which had been shut upt at the Cape; but, having consulted the Governor, he declined to do that, or any other thing, which was calculated to augement the warlike force of the vessel. She was, however, dismantled at one of the wharves, 24 guns were landed from her, two remained in the hold, and two were lashed to the fore-castle; and, in the course of her general repairs, the state-rooms were knocked down, the vessel was caulked all over, her old gun-carriages were repaird, some 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 eyebolts, for fixing the gun-tackle, were taken out and re-placed, and she was furnished with a new mast. The vessel sailed from Philadelphia, publicly, at noon, and gave three cheers on her departure. The officers of the port, and several other witnesses declared, that she departed in the same apparent state of warlike force, as she exhibited on her arrival: the same number of guns being mounted, and the same number deposited in her hold. Two witnesses (of very doubtful credit) declared, that on her passage down the river, she took on board, swivels, gun-carriages, and mariners; that they assisted in opening the port-hols, that very few real Frenchmen belonged to her crew, and that part of them were inlisted in Philadelphia. But other witnesses declared, that the vessel only re-placed her wooden guns in the river; that although some of the crew joined her below, it was customary to do so; and that the crew consisted principally of Frenchmen, though there were men of a variety of nations on board. After the vessel had left the capes, she began immediately to open all the port-holes, and to mount the guns that has been deposited in the hold. She was visited by an American ship, while thus employed; and all her guns were
mounted, at the time of her taking other prizes; the Captain of one of them representing, indeed, in a protest, made ex parte, that she mounted upwards of 30 guns; and the American visitor stating, that the gun- carriages had been just painted, and were, together with their tackle, apparently new.
The case was argued, by E. Tilghman and Lewis, for the Plaintiffs in error, and by Ingersoll, Dallas, and Du Ponceau, for the Defendant.
By the former, it was contended, that the vessel had not a competent, legal, commission; that the force of the vessel was augemented in the port of Philadelphia, by encreasing the number of her guns, and gun-carriages, by opening new port-holes, and by enlisting American citizens: and, that even, if the facts were doubtful, as to all the other points, it was incontrovertible, that new gun-carriages had been substituted for old ones, which was an unequivocal alteration and augementation in a matter solely applicable to war.
By the latter, it was answered, that the commission was valid; that in point of fact, there was no evidence of any augementation of the force of the vessel, by cannon or mariners; that the substitution of new, for old gun-carriages, was a mere re-placement, not an augementation of force; and that, in point of law, an augementation of the force of a French ship of war, within the jurisdiction of the United States, is not sufficient ( according to our municipal law, or to the law of nations) to annihilate her warlike character, and to destroy the conventional right of asylum for herself and her prizes.
After consideration, THE COURT were unanimously of opinion, that the decree of the Circuit Court ought to be affirmed; but the Judges did not assign their reasons.*
The decree of the Circuit Court affirmed. Footnotes (a) The decree of the District Judge, pronounced in the case of Moodie et al versus the Betsey, Cathcart et al. (on a libel for restitution of a prize, owned by british subjects, and captured by the same privateer) proceeded
upon the same facts, and, of course, decided the case reported, I have been favored with a copy of that decree, and, I presume, the insertion of it here, will be acceptable to the prosession. In justice to the judge, however, it is proper to premise, that new evidence was given to the Circuit court, who reversed his decree.
Bee, District Judge. The cause before the court, and in which I am now about to pronounce by decree, is a cause of considerable importance, as well with respect to the circumstances of the case, as the value of the property. It will not be necessary for me to recite at length the whole of the pleadings, and arguments that have been adduced. The facts stated in the Libel, are partly admitted, and partly denied. The capture of the Betty Cathcart, on the high seas, out of the jurisdiction limits of the United States, and the property of the vessel and cargo as belonging to British subjects, are admitted on all hands. 'Tis admitted also, that at the time of the arrival of the Citizen of Marseilles, in Philadelphia, she was an armed ship, and had a commission to cruize against the enemies of France. An exception was taken to the commission on two grounds:
Footnote 1 That all the commissions issued by Santhonax and Polverel, had been recalled.
Footnote 2 That the certificate from Mr. Petry, the consul at Philadelphia, was only conditional.
The only points, then, which it is necessary for me to investigate, are:
[ Footnote 1 ] Whether the force of this vessel was increased and augmented within the limits of the United States.
[ Footnote 2 ] Whether such increase is a breach of the laws of neutrality and nations: and
Footnote 3 What is required by the laws of neutrality in such cases, or whether the 17th article of the Treaty is a suspension thereof as to the United States.
positively to 14. Powel says, there were 3 caprenters at work to cut the ports through, and fit them, himself, Stevenson and another; and that each took one for a day's work. It could not therfore take more than five days to effect this, and from the latter end of October to the 4th of November, there was sufficient time to compleat it. The evidence of these two witnesses has been impreached in several particulars, but it really appears to me, that there are so many proofs and cicumstances sated, that corroborate their testimony to most of the points they speak of, that there is not sufficient ground for me to repel the evidence they have given in toto. The witnesses who prove the increase of force in the river, are Quin, who says she mounted 28 guns, Captain Montgomery says 26 or 28. Mr. Kevan says, a whole tier fore and aft. All then speak of the vessel down the river, and before she went to sea. The 4th and last class, is that relative to her, immediately after her goint to sea. One of the consel for the claimant objected to the testimony of all the witnesses on board the prize, as being interested and of course incompetent, but he could not be serious in this, because the constant uniform pratice of the civil law courts has been to admit such evidence to certain points. In Collectanea. Juridica page 135 is the famous case so often resorted to as fixing the law. In this case, it is expressly laid down, that the evidence to acquit or condemn, must, in the first instance, come from the vessel taken, the persons on board, and the examination on oath of the master and other officers. The evidence they all give is reducible to two points, 1st. The appearance and force of the ship both as to guns and men. 2nd. The intelligence obtained from the crew. As to the last, I think little attention should be paid to the chit chat on board one of these privateers, and very frequently the witnesses don't understand the language they hear spoken, and report from second hand: but they certainly are competent witnesses as to the number of guns and crew that were on board at the time of the capture; and in this they all agree, that she mounted 28 guns, when she took the Den Onzekeren, out of which she took two guns to make 30, and several of them say, she could mount 34 guns, having ports cut for the number. Captain Raymon Sanchez Captain of the brig Dichoso, taken on the 6th of November, two days after the vessel left the Delaware, says she mounted 28. Lemeul Janson, of the Den Onzekeren, says, she mounted 28 guns. Jacob Vix, a sailor on board the Dutch ship, says the same. 4Ohn Hallrick, seaman on board the Betty Cathcart, says the same. Charles M'Donald, mate of this ship, says she had 28 guns on the 11th of November, when they took him. Hans Evertson, mate of the Den Onzekeren, taken the 16th of November, says she had then 28 guns mounted. Adrianus Pappagaay, the doctor of the Dutch ship, says she had 28 guns. Here then is such concurrent testimony of the increased force of this vessel, that it is impossible not to admit it; and if admitted, it carries with it the most unequivocal proof that the ship the Citizen of Marseilles, did encrease her force of guns mounted and prepared for use within the territory of the United States: There was no positive proof as to the new gun-carriages being actually carried on board; neither was there any of their being on board when she first arrived. Mr. Harrison mentions the repairing of some, and where old ones were rotten, the replacing them. If this was solely for those guns that were actually mounted at her arrival, I see nothing against it, it could not be called an
augmentation of her force, neither is there any evidence sufficient to convince my mind that the crew of the Citizen of Marseilles, at her going out was increased, or if increased, in any way that could be said to infringe our neutrality. Though some of the evidences say they were not all native Frenchmen from their lenguage, yet they all agree that the strength of the crew were so, the others were a mixture, there is not proof of any one American citizen being on board, unless Quin was; as to other nations, I know of no right we have to controul their seamen. The 27th article of our treaty with Holland, which, by the 3rd article of the treaty with France, in my opinion is confirmed to them also, admits the carrying away seamen or other natives or inhabitants of the respective nations on board of any of their vessels, whether of merchandize or war.
From a careful review of the evidence produced in this cause, it appears clearly to me that the ship Citizen of Marseilles, at her arrival in Philadelphia, mounted only 12 guns and had others, but the precise number is not ascertained, in her hold: that at the time of her leaving the river, she had 26 or 28 mounted: That captain Chabert having been refused permission to open new ports in Philadelphia, and declaring he did not wish to infringe the laws, and having afterwards done so within the territories of the United States, could not and does not plead ignorance as an excuse. Whatever he did was with his eyes open, and being forwarned, he must abide the consequences.
It remains now for me to inquire into the law arising from the foregoing facts, and the power and duty of this court thereupon.
[ Footnote * ] See post. Moodie versus the Phoebe Anne.