DUPONT v. PICHON, 4 U.S. 321 (1805)

U.S. Supreme Court

DUPONT v. PICHON, 4 U.S. 321 (1805)  4 U.S. 321 (Dall.)

Dupont
v.
Pichon.

Supreme Court of Pennsylvania.

March Term, 1805

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.