
    Geyer, et al. versus Michel, et al. and the ship Den Onzekeren.
    THIS 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:
    
      On 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, armed 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.
    On 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.
    The 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 the 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.
    On 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.
    
      From this decree an appeal was interpofed, ■ and a writ of error was iffued out ofj and returnable to* the Circuit Codrt, which 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-iloners at Philadelphia, to examine witneiTes in the caufe, and the hearing was adjourned to the next Circuit Courts which fat at Cbarlfjlon, ftn the sjth of October following. At that Term, the cornmiflioners having made return of their procced-ings, the Circuit Court, after a hearing, on thenew evidence, reverfed the decree ofthe Diflrift Court.
    On 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:
    The 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
    
      About 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 ' fubftituted; 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 mounted, 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.
    The cafe was argued, by E. Tilghman and Lewis, for the Plaintiffs in error, and by Ingerfoll, Dallas, and Du P.onceau, .For the Defendant. •
    By 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.
    By 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.
    
      
       The decree’of the Diftridt Judge, pronounced in the cafe of Maodle et al vet put the Betfey, Cathcart.et at. (on a libel for reftitution of a'prize, oivned by Bnrijh fubjeits, and'captured by'the fame privateer) proceeded upon the fame fadls, and, of courfe, .decided the cafe reported. I have been favored-with a copy of that "decree, and, Iprefume, the infertion of if here, will be acceptable to the prnfeifion. In juftice to the Judge, -bowe'- er,. it is proper to premife, that new evidence was given to the Circuit Court, who reverted his decree.
      Bee, Dijlriil Judge. The caufe before the court-, and in v-hich I am now about to pronounce my decree, is a caufe .of confiderable impor- ' tance, as well with refpeft to the di cumdances of the cafe, .as the value of tbr property. It will not be neceffary for me ro recite at length the whole of the pleadings, and arguments that have been adduced, The fails Hated in the Libel, are partly admitted, and partly denied. The capture of the Betty Cathcart, on the high feas, out of the jurifdic-tional limits of the United States, and the ptoperty of the veffel and •cargo as belonging to Britijh fubje&s, are admitted on all hands. ’Tis admitted alfo, that at the time of the arrival of the Citizen cf Marfeiiies, in Philadelphia, Ihe was an armed ihip, and had a commilfion to cruize againft the enemies of France. An exception was taken to the commif-iion on two grounds: '
      1. That alllhe commiffions iffued by Santhonax and Polverel, had been recalled.
      2. That the certificate from Mr. Pelry, the confuí at Philadelphia, was only condi'ional.
      The only points, then, which it is neceffary for me to invdligate, are :
      t. Whether the force of this veffel was increafed and augmented within the limits of the United States.
      
        1. Whether fuch increafe is a breach of the laws of neutrality and nations: and
      3. What is required by the laws of neutrality in fuch cafes, or Whether the 17th article of the Treaty is a fufpenfion thereof as to the United States.
      On the ift part, vir. whether the force of the .Citizen 0f Marfeiiies was encreafed and ougir.entedviiib.va the United States. A number of witnef-fes have been examined, and a variety of other evidences adduced. The proofs in this caufe have been very properly divided by one'tsithc'Coiin-fel, ‘into four claffes or fets. I will, therefore, confider them in that order alfo. ‘
      The proofs which relate to the-.veffel at Cape Francois, before the failed for Philadelphia.
      2. Thofe which relate to her whilit at Philadelphia.
      3. Thofe after ihe left the city, and previous to her going to fea,
      4. Thole immediately .after ihe got to fea.
      To the firft point, Mr. Boiffeauonly fpeaks of her ás an armed veffel generally, to the month of June, 1793, but does not fpecify a«y particulars.
      W. Charrie, who was on board two days, about this period, fpeaks of her as an armed veffel, with ten ports oh each fide, and guns in them, and alfo as having guns in her hold—but no particular number. Theie are the only witneffes to this, point.
      If we proceed now to her appearance at Philadelphia, we find a contrariety of evidence.
      General Stewart; in his letter to the Collector 3d of September 1794, mentions her as having at her anival ib nine and 10 fix pounders'; bnt he does not fay, whether they were mounted or not. He fays Ihe 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 Oftober, 1794, he ■«refers to the above, and alfo .Rates the different reports of Mr. Milnorj one of the deputy infpeftors of the port, to him. The firft, on the 30th of September, 1793. He adds,'that the Ihip arrived laft autumn, with, 16 nine and 10 fix pounders,,but will only mount 12 guns, which' file brought ill that lituation—the others ihe is to carry in her hold. On the 14th of Oitober, General Stewart -vifired her again, and fays he finds no addition to the armament, file ivas reported, and had, on her arrival, viz. no fix poütiders on her main deck, and 2 on her quarter deck, and the reft of the guns in'the hold. No new ports had been opened fince her arrival. General Stewart'does not fay, .who reported her thus, on her arrival. It coaid not be Mr. Milnor, for he, on the 14th of Oitober, in his reports, fays, Having examined the.ihip called the Citizen of Maifeilles, on her arrival in port, I again examined her this day, and find no addition to hef armament,”&c. The fame number ofgnns areraen-tioned, that ihe had on her arrival. His other certificate which appears from General Stewart’s letter to he dated on the 30th of September, 1793, and made t.o him, of the then ailual armament of the ihip that day, the day of her arrival—fays—“ boarded the privateer ihip the Citizen of Marl'eilles, commanded by Planche, 12 fix pounders mounted and 3 not mounted, with other warlike apparatus—46 men.” By comparing ■the dates and extraéis in this exhibit, it plainly appears there is fome raiftake amongft the officers at that port. Mr. Milnor, on the 30th of September, 1793, the day Hie arrived, barreled her, and fays file had ja fix pounders mounted, and 3 not mounted: hé alfo vilited her .on. the 14th of Oitober, 2794, tind found no addition to her armament, the fame number of guns being me anted.
      ■ This evidence fro'1'the report of the officers of the port, clearly . proves, that the 'ihip, on her' arrival,, had. only 12 guns mounted—how manv others there were os board not mounted,' mill be left to the of-. ' ficers to fettle, as I cannot do it from the evidence adduced. Mr. Harrifon alio fixed to to on her main deck, and 2 or 4 on her quar-xSr deck. Michael Williams fays, ihe'had but'y of aiide on her main deck, and a on .her quarter deck. John Grenion, who failed in íheveilel from the Cape to Philadelphia, fays file had only 5 of afide .•on the- main deck, and 1 on each fide on the quarter deck, and that there were no more port holes' op.en than guns.
      Captain Montgomery, of the Revenue Cutter, who faw her at a dif-tance at her firft arrival, fuppoftd ' her. to have 10 ports of aiide, but whether all real,, or fome painted, he could not fay.
      From the whole of this evidence, then, it clearly appears to, me, that the ihip át her arrival, had only 12 guns'mounred, and none in her hold. If we now advert to the number of ports which were open either at her • an'ival, or at her "leaving the por/ of Philadelphia; we find file had the’fame number as of guns mounted. All the evidences who were near .her, fwear pofitively, that there were none abaft the main chains— though i'everal fay the ports were framed within, but planked over on .the outfide. Harrifoh’s‘‘evidence is coficlulive—becaufe he mentions hiS application’ to the governor for permiffion to open-more forts. which was refufed;—and‘Captain Chabert’s reply that he did not wiih to go contrary to' the laws of .the country, and that as he had carpenters of his own, he could open, them elfewhere, and at another place,' is fully-fufficieiu to fix this point.
      The 3d. clafs of evidence, is fuch as relates to the veffCl after her leaving the city, and prívloats to.her proceeding to fea..
      And from a careful revifion of this it does appear, that a number of ports were openctfand guns mounted in the fiver Delaware. Quin fwears pofitively to 14. Powel fays, there were 3 carpenters at work to. cut the ports through, and fit them—himfelf, Sievenfon and another; and that each took one for a day’s work. It could not therefore talce more than five days to effeét this, and from the latter end of Qdtoher to thp 4th of November, there wasfufficient lime to compleat it..
      The evidence of thefe tw5 witnefies has been impeached in feveral particulars, but it really appears to me, that there are fo many proofs and circumftances ftated, that corroborate their teftimony to molt of the points they fpeak of, that the e is not fufficieiit ground for me to repel the evidence they have given in toto.
      
      The witneiTes who prove the increafe of force in the river, are Quin, •who fays fhe mounted 28 guns—Captain .'Moptgomery fays 36.0V* 28.— Mr. Kevan fays, a whole tier fjre and aft. AH then fjieak of the veifel down the river, and befóte fhe went to fea.
      The 4th and /o/fclafs, is that relative to her, immediately after hec ' going to fea.
      One of the counfel for the claimant, objected to the teftimony qf.all the ■witneiTes on board the prize, as being tnterejicd and of courfe incomper tent, but he could not be ferious in this, bccaufe the conftant uniform , practice of the civil law courts has been to admit fuch evidence to certain points—In ColkBama JwuHca paf;e 135 is the famous cafe fp often reforted to^as fixing the law. In this cafe, it is exprefsly laid down, that the evidence to acquit or condemn, mu ft, in the firft inftance, tome from' the vefel taken, the perfons on board, and the examination on oath of the vtajier and other officers.
      
      The evidence they all give is reducible to two points,
      lft. The apperance and force <⅜£ the fhip both as to guns and men.
      2d. The intelligence obtained from .the' crew. As to the laft, 1 think . little attention Should be paid to the chit chat on board one of thefe privateers, and very frequently the witnefifés don’t underftand the language they hear fpoken, and report fromfecond hand : but they certainly are competent witnefies as to the number of gum and crew that were on board at the time of the capture ; and in this they allágree, that /lie mounted 28 guns, whet) fhe took the Den Onzekeren, out of which fhe. too.k two guns.to make 30, and feveral of them fay, file could mount 34 guns, having ports cut for that numbet
      Captain Raymon Sanchez Captain of the ,-⅞ Dichofo, taken on rho6th of November, two days after the'veifel reft the Delaware,. fays ihe mounted 28
      Lemuel Janfon, of the Den Onzekeren, fays, fhe mounted .28 guns. •Jacdb Vix,, a fail or o.n board tbe Dutch Ihip, fays the fame. John Hall-rirk, feamau on board the Rettv Cnfhcait, fays tbe fame., Charles. M’Donald, mate of this fliip, fays file had 28 guns cm the ^itíi of November, when they took him.
      Hans Evertfonj mate of the Den Onzekeren, taken tbe 16th of-November, fays flie had then 28 guns mounted.
      Adrianus Pappagaay, the doiftor of t^e D.utcli fliip,. fays file had 28 gun?. Here then is fuch, concurrent-teftimony of the increafed. force of this veflel, that it is impbfiiblc n.o.t to admit it ; and if admitted, itcarries,with.,it the mo.ft unequivocal proo.fthat the ihip the Citizen of Marfeilles, did encreaie her force of guns mourned and preparedjor .ufe nuithin the territory of the tlnited States:—There was nó poiitive proof, as-to the new gu«-.carriages being adtualky carried on board ; neither was there any of their being on board when fhe firft arrived. Mr. Har-tifón mentions the repairing of fome, and where old ones were'rotten, .the replacing them. If this was fo ety tor thof: guns that were actualty mounted at her arrival—I fee nothing againft'.it—it could not be called an augmentation of her force—neither is there any evidence fufiicient to convince my mind that the crew of the Citizen of Marfeilles, at her going our wasincreaferi, or if increafed, in any way that couid be faid to infringe oui neutrality. Though fome of the evidences fay they were not all native Frenchmen from their language, yet they all agree that the ftrength of the crew were fo, the others were a mixture, there is no proof of any 011c American citizen being on boa'-d, uniefs Quin wsa •, as to other nations, I know of no right we have to comroul their feamen. The 27th article of our treaty with Holland, which, by the 3d article of the treaty with Fiance, in my opinion is confirmed to them alfo, admits the carrying away feamen or other natives or inhabitants of rhe refpective nations on board of any of their veflels, whether of merchandize or war.
      From a cenefa! review of the evidence produced in this caufe, it appears dear >ii to me that the ihip Citizen of Marfeilles, at her arrival in Philadelphia, mounted only 12 guns and hado/&ri, but the precife number is not ■dfeertained, in her hold-, that at the time of her leaving the river, file had s6 or 28 mounted : That captain Chahert having.been refufed pemliiiion to open new ports in Philadelphia, and declaiing he did not wiih' to infringe the laws, and having afterwards done fo within the territories of the United States, could not and does not plead ignorance as an ex-cufe. Whatever he did was with his eyes open, and being forewarned,he muft abide the confequences.
      ■ It .remains now for pie to enquire into the law arifing from the foregoing fails, and the power and duty of this court thereupon.
      . There cannot be a doubt that if a profecution was inftituted againft Capr, Chabert, or arjy of the perfons concerned in increafing, augmenting, or piocuringxo be increafed or augmented, die force of the veil'd, under the aft of June laft, but that a conviftion muft follow. There ⅜ penalty of fine and iniprifonment is declared, as a punifhmenc fo. a breach of the fovereignty and neutrality of the United States, and this by a-municipal law of our own : but what does the law oí nations require farther ? I have in the courfe of the laft fummer, delivered my opinion on this queftion fo fully in this court, that' I need only now repeat fome part of the law then laid down. In the cafe aVJhnfon wfut Talbot, I ftated that this court, by the law of nations, has jurifdiftion over captures made by foreign veflels of war, of the yeffels of any other nation, with whom they are at war, provided fuch veflels were cqieipped here, in breach of our fo'-e-reignty and neutrality, and the prizes are brought infa pnefidta of t/Js country. By the law of nations, no foreign power; its fubje-fts or citizens, has any right to ereft caftles, inlift troops, or equip veflels of war in the territory or ports of another. Such afts are breaches of neutrality, and may be puniihed by feizing the perfons and property of the offenders; Yeffels of war/á equipped, are. illegal ab origine, and no prizes rhey make will be legal as to the offended power, if brought inf a pra'HJia. Tile feizure and reftoratlon of fuch. prizes are what the laws of neutrality juftly claim. You muft either permit both parties to equip in your ports, or neither. Should either equip without your confent, x'ae.leafl you can do, is to di veil them of the prizes they may have thus illegally taken, and reitere them to the other party, or elfe permit them to equip alfo. This caufe and this decree were fubmitted to the Circuit Court, jii Oftober laft, and there affirmed. An appeal to the Supreme Court is ftill undetermined, but until this opinion is overruled by that tribunal, I iiold myfelf bound to coniider it as a law*.
      ' I gave a like dccifion lately, in the cafe of the fchooner Nancy, from 'afull conviftion that the principles I laid down formerly, were founded $n the rules of propriety and the laws of nations. 1
      ⅜ See Talbot* verfus Janfon, ant p.
      
    
    
      
      
         It may be ufeful to illuftrate this cafe, as well as to gratify curio-lity at a future period, to fubjoin a copy of the commifiion and endorfe-ments, which are in thefe words:—
      * Copie de Ja Commiffion en guerre, du Navire le Citoyen de Mar— feille, Capitaine Yiftor Chabert pourfervir de Commiffion pour'le con-duifteur de la prize Hollandoife nommée Dm Omukeren Cap. Laurent Hertenfvelt venant dé Eflequebo et Demerary, allant á Middleburg..
      Liberte Marine Francois.e Egalite
      Le Confeil Exécutif de la République Francoifc permet par ces pré- • femes au Cap. Planche, de faire armer et équiper en guerre un bati-meiit nommé Le Citoyen de Marfeille du port de 400 tonneaux ou environ, aéluellement au port, de la vil'Ie du CÍap, avec tal nombre de Canons, Boulets, et telle quantiré de poudre, piomb, et autres munitions de guerre et vivres qu’il jugera nécelfaire pour le mettre en état dc courir lur les pirates, forbans,gens fans aveu et goneralement tous les ennemis de la République Francoife, en quelques lieux qu’il pdurra les rencontrer et les prendre et amener prifonniers avec leurs navires, armés, et atures objets dont ils feroni failis ; á la charge parle dit Planche, de •fe conformer aux ordonnances de la marine et aüx loix décretéés par les P.eprefentuns du Peuple Francois, et notamment á 1’Article IV. de la L01 du 31. Janvier} concernant le nombre d’ homines devant former fon Equipáge, de faire enregiftrer les prefentes Jettres au Bureau des CiaíTes dulieu-de fon depart, d’y depofer un Role íigné et cert,ifié de lui, contenant les nonas, furnomsjag'e,, lieu de naiflance et demeure des gens de fon equipage,, et. á fon retour, .de faire fon rapport pardevant 1’ officier charge de 1’ Adminiftraiion des dalles de ce quife fera palie pendant fon voyage.
      Le confeilExecntif provifoire requiert tous peuples,Amis, ou Allies tie Ja République Francoife, et leurs Agents, de donner au dit'Planche, toute affiftaiice, paflage, et retraite en leurs ports avec fon dit vaifleau,.', et les prifes qn’ ii aura pu faire, offrantd’ en ufer dé méme en pareilles circonftances, maride et ordonue aux Commandants des batimens de L’Etat de laifler.librement paller le dit Plauche avec Ion vaifleau .et ceux qu’ii aura pu prendre fur i’ennemi, et de lui donner feeours et afl'iftancc.
      En foi de .qúbi le Confeil Executif provifoire de la Republique a fait figner les prefentes lettres par le Miniftre de la Marine -et y a fait ap- • poi'er le feeau de la Republique.
      
        Donné á Paris le jour du mois de mil feptcent quatre vingt treize, 1’ an de la Republique Frarifoife
      Signé, Monge a P original.
      Par le Miniftre de la Marine.
      Signé, (lottrau a 1’ original.
      (AU DOS EST ECRIT.)
      Nous,-LegerFeI/cilé Soqlhonax CommiíTaire Civil de la Republique, délé.;né aux liles Franjnifes -de- L’ Amérique fous le vent pour y retab-3ír -’ordre et la tranquíllité'publique.
      En vertu des pouvoirs qui nous ont été délégués par la lettre dn Mi-niftve da 13. 9bre. 179a en confequence de la loi du méme mois.
      P' rmettcns á Planche d’ armer en courfe et courir fur les ennetnis d-e la Renubiique Frarifoife en quelques lieux qu’ il pourra les rencontrer. La prelente bonne'et valable, á la charge par lui de fe coil-former en tons points aux ordres du Confeil-Exectitif de la Republique et á toutes les Loix Maritimes non abrogées et notamment á celle de r6S1.
      Fait au Cap le-3o S.eptembre 17.93, L1 An teme, de la Repjubiique.
      Signé, Sonthonax á 1’ original.
      Par le Co-mmiíTaire Ci'vil déla Republique " Signé, Gault á P 91'iginal.
      S. adjt..de lá Con. Civile.
      Je fouíligné Jn. Bte. Petty', Conful-de la Repulilique Franfoife á Phi-ladelpbie, Etat de Pennfyl vanie,- certií^ a tous ceux qu’ il appanicndra .que le citoyen Antoine Francois Planche dénommé dans, la préfént-e lettre de marque, eft redé dans cette ville el que le Capne. Viétor Cha-bert le remplace pour commander le navire Le Citoyen de Marfeille, Perm is á lui en confequence de f’ en ierviv contte les ennemis de la Ré-publiqüe, ainii que pour fe-rendre dans un port dé la díte République.
      En foí de quoi jrai délivré-ces préfentes ,aux quelles j’ai appofé le f?el confulairefle vingt fept Yendemiaire L’ An 3me. de ía République Ftanpoife une et indiviiible.
      Signé, Petry á P original.
      Je fouftgné, Capitaine du navire armé Le Citoyen de Marfeille, ai délivré la préíente copie tie ma commiffion en guerre, pour fervir feulement decónduite de pr-ífe au Cen. Jean Michel, Condníteur de la prife Hoüandoife Den Onzekeren, venant d’ Efequebo et Denterary, riont étoir mait'-e Laurent Harreenftfelt du Port et Havre de Middlebnrg,'cf la dite prife faite par moi fouíligné Capne. du dit navire arrive a ia han- . teur de 28 dég-és 5 minutes de lattitude Nord et 6z dégrés ao minutes de longitude Ucc'dentale, .Mcridien de Paris—Fait en raer á bord de man navire armé le 26 Brumaife P an 3eme. de la République Franfoifeune et indiviiible. (16. 9bre, 1694. V. Scile.)
      Signé, Chabert, fur la dilc Copie,
    
   After confideration, the court were unanimoufly of opinion, that the decree of the~CircuitCourt ought tobe affirmed ; but the Judges did not aflign their reafons.

The decree of the Circuit Court affirmed. 
      
       See Maodie verjii* the Fhcdhe Anne*
      
     