Opinion · Supreme Court of the United States

Dupont v. Pichon

Dupont v. Pichon, 4 U.S. (4 Dall.) 321 (1805)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1805-03-01
Topic
estate-planning

4 U.S. 321 (____) 4 Dall. 321 Dupont versus Pichon. Supreme Court of United States. *324 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.

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DUPONT v. PICHON,4 U.S. 321(1805)
DupontversusPichon.
MARCH TERM, 1805.
THE plaintiff had issued acapiasagainst the defendant, in an action upon the case, c. and a citation was served upon him, in the following terms:Page 322

"SIR,

"You are hereby cited to show your cause of action, and why "the defendant, claiming privilege as charge d'affaires of the "Frenchrepublic, should not be discharged from the process issued "against him, at the city hall, in the city ofPhiladelphia, at 10 "o'clock to-morrow forenoon.Philadelphia, 1st ofMarch1805.

"EDWARD SHIPPEN."

The citation was returned to the Judges of the Supreme Court, then holding a Court ofNisi Prius;1and after argument, byDu PonceauandDallas, for the defendant; and byIngersollandWallace, for the plaintiff, the following order was made by the Judges, who did not think, that individually, or sitting atNisi 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 instantMarch, 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 PonceauandDallasmoved, that the defendant be discharged absolutely from the process. They produced Mr.Pichon'scredentials, by which it appeared, that he had not only been appointed commissary general of commercial relations, but, also, charge d'affaires of theFrenchrepublic; his continuance in the latter character, however, being limited, until a minister plenipotentiary should arrive in theUnitedStatesfromFrance. It appeared by Mr.Pichon'sdeposition, that the minister, generalToureau, had arrived in theUnitedStatesabout the 12th ofNovember1804; that in compliance with Mr.Pichon'sinstructions from his government, he had been anxiously making all the necessary arrangements, for his return toFrancewith his family; that his detention in theUnitedStates, since the arrival of generalToureau, 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 fromAlexandriaforPhiladelphia, but were carried intoNew-York, in consequence of the obstructed navigation of theDelaware: and to the impracticability of obtaining a passage forEuropeat the port ofPhiladelphia, for a considerable time past; that Mr.Pichonhad never, in the slightest degree, abandoned, or suspended, his intention of returning toFrance; but, on the contrary, was determined to go thither, with all possible dispatch, as soon as the obstacles, whichPage 323he 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'sexecuting the functions of charge d'affaires, and before the arrival of generalToureau, it became his official duty to superintend and direct the equipment and supply of certainFrenchfrigates, lying in the harbour ofNew 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 onFrance, drawn, however, on his private bankers; that the plaintiff well knew, that Mr.Pichonacted in the premises merely as public agent of theFrenchrepublic, 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 theFrenchconsul atNew-York; and the fate of which Mr.Pichonhad not definitively heard.1

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; 1vol. 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 recognizing 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.Pichonought never to be deemed personally responsible.2.Ingersoll, Wallace, andBinneydisputed the extent of the privilege; and the sufficiency of the excuse for Mr.Pichon's protracted residence in theUnited States, after generalTourcau's arrival. They insisted that the appointment as charge d'affaires was limited in its own terms; that his arrival and continuance in theUnited Stateswere, principally, on account of his consular commission;Page 324and that, at least, proof should be produced from the secretary of state of his reception as a minister, before he was discharged from thecapias, upon the claim of privilege.
The COURT were decidedly of opinion, that Mr.Pichonwould be entitled to privilege as charge d'affaires, till his return toFrance; 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'sappearance, only till the sense of the Court could be obtained; and that Mr.Pichonmust now, probably, submit to imprisonment under the capias: the judges concurred in discharging him absolutely from the process.Page 325
  1. Page 322 SHIPPEN,Chief Justice, and SMITH and BRACKENRIDGE,Justices, composed the Court. ↩
  2. Page 323 After Mr.Pichonwas discharged from the process in this suit, the plaintiff issued anothercapiasfrom the Circuit Court of theUnited States;but before the writ was served, information arrived, that the bills drawn in favour of the plaintiff had been paid by theFrenchgovernment; and the proceedings were suspended, after notice of a motion to quash the writ on the ground of privilege. ↩
  3. Page 323 See 3Dall. Rep. 384. ↩