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2 U.S. 234 (Dall.)


Supreme Court of Pennsylvania

September Term, 1795

This was a Scire Facias against the defendants, as garnishees of Gilbaud, Rouge & Co. French citizens, residing in the West Indies. A rule was obtained by the defendants to shew cause why the proceedings should not be quashed, upon the ground, that the plaintiff was also a French citizen, and that, therefore, the Court was precluded from exercising any jurisdiction, by the 12th article of the Consular Convention, which provides, that 'all differences and suits between the citizens of France, in the United States, or between the citizens of the United States, within the dominions of France, &c. shall be determined by the respective Counsuls and Vice-Consuls, either by a reference to arbitrators, or by a summary judgment and without costs. No officer of the country, civil or military, shall interfere therein, or take any part whatever in the matter: and the appeals from the said Consular sentences shall be carried before the tribunals of France, or of the United States, to whom it may appertain to take cognizance thereof.' [234-Continued.]

The facts, respecting the plaintiff's citizenship, were briefly these: He was a native of France, and resided in the Island of St. Domingo, at the period of the French revolution. He had afterwards accepted an office from Louis XVI. under the constitution establishing a limited monarchy; but previously to the abolition of monarchy, and the introduction of the Republican system (the 10th of Sept. 1792) he came to America, took an oath of allegiance to the State of Pennsylvania, under the act of March 1789 (2 vol. Dall. Edit. p. 676) which act, however, was at that time obsolete,* and purchased a tract of land, on which he resided. He had not been naturalized conformably to the act of Congress; but he had frequently been heard to express his abhorrence of the existing constitution of France; he had never done any act shewing his assent to it; and he had declared an intention to settle, permanently, in America.

The plaintiff's counsel (Lewis & Levy) made two points 1st. That the 12th art. of the Consular Convention applies only to cases where both parties, being French citizens, are actually resident within the United States, and, therefore, does not embrace the case of a foreign attachment. 2nd. That the plaintiff never was a citizen of the French Republic; and in support of the latter position they cited the following authorities: Vatt. B. 1. ch. 13. s. 161. 167. 2 Vent. 362. 3. 3 Bl. Com. 298. Vatt. B. 3. ch. 18. s. 293. 295. Ibid. B. 1. ch. 19. s. 220. 213. 2 Heinec. 220. Art. of Confed. s. 4. Johnson's Dict. 'Citizen.' 1 Dall. Rep. 58.

Page 2 U.S. 234, 235

For the defendants, it was urged, by Dallas & Du Ponceau, on the 1st point, that the Consular Convention extended to all differences and suits between French citizens; that a foreign attachment was, unquestionably, a suit; and that the difference, or suit, existing in the United States, it was not material, either to the words or spirit of the article, that both the parties should be actually resident within the United States. On the 2nd point, it was answered, that the plaintiff necessarily remained a French citizen, 'till he renounced his allegiance, or had done some act incompatible with it; that he was not a citizen of the United States; and unless he was a citizen of France, he exhibited the extraordinary spectacle of a human being who had no country!

By the Court. Many important topics have been discussed, in the course of this argument; but we do not think it necessary to decide on more than one of them. The sole question is were both the plaintiff and the original defendants citizens of the French Republic, at the time of instituting this suit? We are clearly of opinion, from the facts disclosed in the affidavits which have been read, that the plaintiff was not then, nor is he now, a citizen of France. It is true, that he has not acquired the rights of citizenship here; nor, as it appears, in any other country: but, whatever may be the inconvenience of that situation, he had an undoubted right to dissent from the revolution; and, as a member of the minority, to refuse allegiance to the new government, and withdraw from the territory of France. Every thing that could be said or done to manifest such a determination, has been said and done by the plaintiff, except the act of becoming the subject, or citizen, of another country.

Let the rule be discharged. *

Villeneuve versus Barrion.


[Footnote *] See Collet v. Collet and The United States v. Vilatto, post.

[Footnote *] On the subject of the Consular Jurisdiction, I have been favored with a note of the following decision, taken from the Records of the Circuit Court for the District of Massachusetts, in May Term 1792.

It was agreed by the parties to submit this question to the Court, to wit: Whether the Convention gave to the French Consul cognizance of all differences and suits between Frenchmen; or confined the same to the description of cases therein enumerated, or other cases not arising from transactions in the United States? And, further, that if the Court should be of opinion, that the Consular Jurisdiction extends generally to all differences and suits between Frenchmen, that then the plaintiff shall discontinue the present action without costs.

The Court, after hearing the counsel of both sides, on the question proposed, were of opinion, that the Consular Jurisdiction does not extend generally to all differences and suits between Frenchmen.

The plaintiff, thereupon, prayed leave to discontinue his said action without costs; which being granted, he did discontinue accordingly.

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