p. 294 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 et autres munitions de guerre et vivres qu'il jugera nécessaire pour le mettre en état de courir sur les pirates, forbans, gens sans aveu et généralement tous les ennemis de la Republique Françoise, en quelques lieux qu'il pourra les rencontrer et les prendre et amener prisonniers avec leurs navires, armes, et autres objets dont ils seront saisis; à la charge par le dit Planche, de se conformer aux ordonnances de la marine et aux loix décretées par les Representans du Peuple François, et notamment à l'Article IV. de la Loi du 31. Janvier, concernant le nombre d'hommes devant former son Equipage, de faire enregistrer les presentes lettres au Bureau des Classes du lieu de son depart, d'y deposer un Role signé et certifié de lui, contenant les noms, surnoms, age, lieu de naissance et demeure des gens de son équipage, et à son retour, de faire son rapport pardevant l'officier chargé de l'Administration des Classes de ce qui se sera passé pendant son voyage. Le conseil Executif provisoire requiert tous peuples, Amis, ou Alliés de la République Françoise, et leurs Agents, de donner au dit Planche, toute assistance, passage, et retraite en leurs ports avec son dit vaisseau, et les prises qu'il aura pu faire, offrant d'en user de même en pareilles circonstances, mande et ordonne aux Commandants des batimens de L'Etat de laisser librement passer le dit Planche avec son vaisseau et ceux qu'il aura pu prendre sur l'ennemi, et de lui donner secours et assistance. En foi de quoi le Conseil Executif provisoire de la Republique a fait signer les presentes lettres par la Ministre de la Marine et y a fait apposer le sceau de la Republique. Donné à Paris le jour du mois de Par le Ministre de la Marine. Signé, Cottrau à l'original. (AU DOS EST ECRIT.) Nous, Leger Felicité Sonthonax Commissaire Civil de la Republique, délégué aux Isles Françoises de L'Amérique sous le vent pour y retablir l'ordre et la tranquillité publique. En vertu des pouvoirs qui nous ont été délégués par la lettre du Ministre du 13. 9bre. 1792 en consequence de la loi du même mois. Permettons à Planche d'armer en course et courir sur les ennemis de la Republique Françoise en quelques lieux qu'il pourra les rencontrer. La presente bonne et valable, à la charge par lui de se conformer en tous points aux ordres du Conseil Executif de la Republique et à toutes les Loix Maritimes non abrogées et notamment à celle de 1681. Fait au Cap le 30 Septembre 1793, L'An 2eme. de la Republique. Par le Commissaire Civil de la Republique Signé, Gault à l' original. S. adjt. de la Con. Civile. Je soussigné Jn. Bte. Petry, Consul de la Republique Françoise à Philadelphie, Etat de Pennsylvanie, certifie à tous ceux qu'il appartiendra que le citoyen Antoine François Planche dénommé dans la présénte lettre de marque, est resté dans cette ville et que le Capne. Victor Chabert le remplace pour commander le navire Le Citoyen de Marseille, Permis à lui en consequence de s'en servir contre les ennemis de la République, ainsi que pour se rendre dans un port de la dite République. En foi de quoi j'ai délivré ces présentes aux quelles j'ai apposé le scel consulaire, le vingt sept Vendemiaire L'An 3me. de la République Françoise une et indivisible. Signé, Petry à l'original. Je soussigné, Capitaine du navire armé Le Citoyen de Marseille, ai délivré la présente copie de ma commission en guerre, pour servir seulement de conduite de prise au Cen. Jean Michel, Conducteur de la prise Hollandoise Den Onzekeren, venant d'Esequebo et Demerary, dont étoit maitre Laurent Harteensvelt du Port et Havre de Middleburg, et la dite prise faite par moi soussigné Capne. du dit navire arrivé à la hauteur de 28 dégrés 5 minutes de lattitude Nord et 62 dégrés 20 minutes de longitude Occidentale, Meridien de Paris-Fait en mer à bord de mon navire armé le 26 Brumaire l'an 3eme. de la Republique Françoise une et indivisible. (16. 9bre, 1694. V. Stile.) Signé, Chabert, sur la dite Copie, 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 or 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 abaft, 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 whole, she had, externally, an appearance p. 295 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 left 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 up at the Cape; but, having consulted the Governor, he declined to do that, or any other thing, which was calculated to augment 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 repaired, 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 eye-bolts, 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-holes, that very few real Frenchmen belonged to her crew, and that part of them were enlisted in Philadelphia. But other witnesses declared, that the vessel only re 1569.25 L 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 had been deposited in the hold. She was visited by an American ship, while thus employed; p. 296 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 augmented in the port of Philadelphia, by encreasing the number of her guns, and guncarriages, 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 augmentation 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 augmentation 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 augmentation of force ; and that, in point of law, an augmentation 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.1 The decree of the Circuit Court affirmed. Moodie v. the ship Alfred. (3 Dallas, 307) 1796. THE allegation in this case, as supported by the evidence, was, that the privateer, which took the British prize in question, had been built in New York, with the express view of being employed as a privateer, in case the then existing controversy between Great Britain and the United States should terminate in war; that some of her equipments were calcu1 See post. Moodie versus the Phoebe Anne. lated for war, though they were also frequently used by merchant ships; -that the privateer was sent to Charleston, where she was sold to a French citizen ;-that she was carried by him to a French island, where she was completely armed and equipped, and furnished with a commission; -and that she afterwards sailed on a cruize, during which the prize was taken, and sent into Charleston. Reed, for the Plaintiff in error, contended that this was an original construction or out-fit of a vessel for the purpose of war; and that if it was tolerated as legal, it would be easy by collusion to subvert the neutrality of the United States, and involve the country in a war. THE COURT, however, without hearing the opposite Counsel, directed The Decree to be affirmed. Moodie v. the ship Phoebe Anne. (3 Dallas, 319) 1796. ERROR from the Circuit Court for the District of South Carolina. The Phabe Anne, a British vessel, had been captured by a French privateer, and sent into Charleston. The British Consul filed a Libel, claiming restitution of the prize, upon a suggestion, that the privateer had been illegally out-fitted, or had illegally augmented her force, within the United States. On the proofs, it appeared, that the privateer had originally entered the port of Charleston, armed and commissioned for war; that she had there taken out her guns, masts, and sails, which remained on shore, till the general repairs of the vessel were completed, when they were again put on board, with the same force, or thereabouts ; and that, on a subsequent cruize, the prize in question was taken. The decrees in the District and Circuit Courts were both in favor of the captors; and on the return of the record into this court, Reed, having pointed out the additional repairs, argued, generally, on the impolicy and inconveniency of suffering privateers to equip in our ports. ELSWORTH, Chief Justice. Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right: the Treaty with France, whatever that is, must have its effect. By the 19th article, it is declared, that French vessels, whether public and of war, or private and of merchants, may, on any urgent necessity, enter our ports, and be supplied with all things needful for repairs. In the present case, the privateer only underwent a repair; and the mere re-placement of her force cannot be a material augmentation; even if an augmentation of force could be deemed (which we do not decide) a sufficient cause for restitution. BY THE COURT: Let the decree of the Circuit Court be affirmed.1 1 See p. 137. ant. Geyer et al. versus Michel et al. and the ship Den Onzekeren. P. 332 Hills et al. v. Ross. (3 Dallas, 331) 1796. THIS cause came again before the court [see 3 Dallas, 184] and after a discussion upon the merits, it became a question, whether there had been a regular appearance of the parties to the suit below? The libel was filed by the British Consul, on behalf of Walter Ross, against Hills, May and Woodbridge (who formed a partnership in Charleston, under that firm) and John Miller. The plea was headed, the plea of Ebenezer Hills, one of the company of Hills, May, and Woodbridge, in behalf of himself and his said copartners, who are made Defendants in the libel of Walter Ross;' and concluded with praying, ' on the behalf aforesaid, to be dismissed, as far as respects the said Hills, May and Woodbridge.' The replication regarded the plea of Hill, as the plea of all the company; and the rejoinder was signed by Joseph Clay, junior, Proctor for the Defendants.' The decree below was against all the Defendants, and the writ of error was issued out in all their names; but there was evidence on the record, that May had been in Europe, during the whole of the proceeding, and no warrant of attorney, or other authority, to appear for him, was produced. Ingersoll, contended, for the Plaintiffs in error, that partners had not power to appear for each other to suits; and that, in fact, nothing appeared on the record to shew that they had done so, on the present occasion. Tilghman, on the contrary, relied upon the rejoinder, where the Proctor states himself to be employed by all the Defendants; and insisted, that his authority could not be denied, or examined, particularly in this stage of the cause, and in this form of objection.1 | On the 11th of August, the CHIEF JUSTICE delivered the opinion of the COURT, that, in the present case, there was a sufficient legal appearance of all the Defendants. On the merits, it appeared, that the Plaintiffs in error, had directed to be sold, certain prize cargoes, captured by Captains Talbot and Ballard, under the circumstances, stated in the case of Jansen versus Talbot, ant. p. 92; and that, after notice of the claims filed by the owners of the prizes, they had received and paid over the proceeds to the captors: 1 IREDELL, Justice. The doubt is, whether in a case like the present, one partner can authorise a proctor to appear for the whole company? CHASE, Justice. This court cannot affirm the decree, against persons who were not before the court that pronounced it; and the record must shew, that they actually did appear. A bare implication, the titling of the plea, or a general statement, that one of the partners acts on behalf of them all, is not sufficient: For, though partners, in a course of trade, may bind each other; they cannot compel each other to appear to suits, nor undertake to represent each other in courts of law. What, however, is the legal effect of an appearance by a Proctor, an officer of the court, is another ground that merits consideration. |