Opinion
AUGUST TERM, 1796.
The Phœbe Anne, a British vessel, had been captured by a French privateer, and sent into Charleston. The British Consul filed a Libel, claiming restitution of the prize, upon a suggestion, that the privateer had been illegally out-fitted, or had illegally augmented her force, within the United States. On the proofs, it appeared, that the privateer had originally entered the port of Charleston, armed and commissioned for war; that she had there taken out her guns, masts, and fails, which remained on shore, till the general repairs of the vessel were completed, when they were again put on board, with the same force, or thereabouts; and that, on a subsequent cruize, the prize in question was taken. The decrees in the District and Circuit Courts were both in favor of the captors; and on the return of the record into this court, Reed, having pointed out the additional repairs, argued, generally, on the impolicy and inconveniency of suffering privateers to equip in our ports.
ERROR from the Circuit Court for the District of South Carolina.
Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right: the Treaty with France, whatever that is, must have its effect. By the 19th article, it is declared, that French vessels, whether public and of war, or private and of merchants, may, on any urgent necessity, enter our ports, and be supplied with all things needful for repairs. In the present case, the privateer only underwent a repair; and the mere re-placement of her force cannot be a material augmentation; even if an augmentation of force could be deemed (which we do not decide) a sufficient cause for restitution.
BY THE COURT: Let the decree of the Circuit Court be affirmed.
See p. 285. ant, Geyer et al. versus, Michael et al. and the ship Den Onzekeren.