THE plaintiff had issued a capias against the defendant, in an
action upon the case, &c. and a citation was served upon him,
in the following terms:-
Page 4 U.S.
321, 322
'SIR,
'You are hereby cited to show your
cause of action, and why the defendant, claiming privilege as
charge d'affaires of the French republic, should not be discharged
from the process issued against him, at the city hall, in the city
of Philadelphia, at 10 o'clock to-morrow forenoon. Philadelphia,
1st of March 1805.
'EDWARD SHIPPEN.'
The citation was returned to the Judges of the Supreme Court,
then holding a Court of Nisi Prius;1 and after argument, by Du
Ponceau and Dallas, for the defendant; and by Ingersoll and
Wallace, for the plaintiff, the following order was made by the
Judges, who did not think, that individually, or sitting at Nisi
Prius, they could quash the process:
'It is ordered, that the defendant be
discharged on common bail; and that at the next Supreme Court, in
Bank, on the 4th day of this instant March, it may be considered by
that Court, whether the defendant should, or should not, be
discharged from the process issued against him; or whether he
should be held to bail, and the present order be discharged.'
At the opening of the Court, on the first day of the term (all
the Judges being present) Du Ponceau and Dallas moved, that the
defendant be discharged absolutely from the process. They produced.
Mr. Pichon's credentials, by which it appeared, that he had not
only been appointed commissary general of commercial relations,
but, also, charge d'affaires of the French republic; his
continuance in the latter character, however, being limited, until
a minister plenipotentiary should arrive in the United States from
France. It appeared by Mr. Pichon's deposition, that the minister,
general Toureau, had arrived in the United States about the 12th of
November 1804; that in compliance with Mr. Pichon's instructions
from his government, he had been anxiously making all the necessary
arrangements, for his return to France with his family; that his
detention in the United States, since the arrival of general
Toureau, had solely and exclusively been owing to the business of
closing his official transactions as charge d'affaires, and to the
delay in receiving his public papers and documents, which were
shipped in a vessel from Alexandria for Philadelphia, but were
carried into New-York, in consequence of the obstructed navigation
of the Delaware: and to the impracticability of obtaining a passage
for Europe at the port of Philadelphia, for a considerable time
past; that Mr. Pichon had never, in the slightest degree,
abandoned, or suspended, his intention of returning to France; but,
on the contrary, was determined to go thither, with all possible
dispatch, as soon as the obstacles, which
Page 4 U.S.
321, 323
he had stated, should be removed, and the condition of his
family would permit. It was further stated in the deposition, that
during the time of Mr. Pichon's executing the functions of charge
d'affaires, and before the arrival of general Toureau, it became
his official duty to superintend and direct the equipment and
supply of certain French frigates, lying in the harbour of New
York; that he employed the plaintiff in that business, to make the
necessary advances of money; and for his reimbursement gave him
certain bills of exchange on France, drawn, however, on his private
bankers; that the plaintiff well knew, that Mr. Pichon acted in the
premises merely as public agent of the French republic, and is not
indebted to the plaintiff on his private account; nor, in any other
manner, than as the drawer of the bills of exchange, which were
delivered to the plaintiff by the French consul at New-York; and
the fate of which Mr. Pichon had not definitively heard. [
Footnote 2]
Upon these facts, it was urged, that although no privilege was
claimed for Mr. Pichon, as consul, he was entitled to privilege, as
charge d'affaires, eundo, morando, et redeundo; 1 vol. p. 110. s.
25, 26, 27. Vatt. B. 4. c. 6. s. 74, 5. p. 675, 6. Ib. c. 7. s. 83.
p. 682. Ib. c. 9. s. 125. p. 726. Ib. c. 8.s. 111. p. 713. Mart.
206. that he was not bound to produce any testimonials of his
diplomatic character, the notoriety of his reception by the
President, being all that the nature of the case, or uniform usage,
required; that a day's delay, in recognising the privilege of a
public minister, to obtain certificates from our own government,
must either compel him to give bail, or to submit to actual
imprisonment; and that the precedent established on this occasion,
would attract the serious attention of every foreign minister and
government. It, therefore, became highly important to claim and
obtain the discharge, on the single ground of diplomatic privilege,
without adverting to the official origin of the debt, for which the
suit was instituted; and for which Mr. Pichon ought never to be
deemed personally responsible. [
Footnote 3]
Ingersoll, Wallace, and Binney disputed the extent of the
privilege; and the sufficiency of the excuse for Mr. Pichon's
protracted residence in the United States, after general Toureau's
arrival. They insisted that the appointment as charge d'affaires
was limited in its own terms; that his arrival and continuance in
the United States were, principally, on account of his consular
commission;
Page 4 U.S.
321, 324
and that, at least, proof should be produced from the secretary
of state of his reception as a minister, before he was discharged
from the capias, upon the claim of privilege.
THE COURT.
The COURT were decidedly of opinion, that Mr. Pichon would be
entitled to privilege as charge d'affaires, till his return to
France; but Chief Justice SHIPPEN seemed inclined to wait for
information, from the department of state, as to his actual
reception by the president in that character. On its being
intimated, however, that the attorney of the district had become
responsible to the sheriff for Mr. Pichon's appearance, only till
the sense of the Court could be obtained; and that Mr. Pichon must
now, probably, submit to imprisonment under the capias: the judges
concurred in discharging him absolutely from the process.
Footnotes
Footnote 1 SHIPPEN, Chief
Justice, and SMITH and BRACKENRIDGE, Justices, composed the
Court.
Footnote 2 After Mr. Pichon
was discharged from the process in this suit, the plaintiff issued
another capias from the Circuit Court of the United States; but
before the writ was served, information arrived, that the bills
drawn in favour of the plaintiff had been paid by the French
government; and the proceedings were suspended, after notice of a
motion to quash the writ on the ground of privilege.
Footnote 3 See 3 Dall. Rep.
384.
