Contracts · MBE-tested
Talbot, Appellant, versus Janson, Appellee, et al.
3 U.S. 1333 Dall. 133·Supreme Court of the United States·1795
Neutral courts lack jurisdiction over prizes captured on high seas by belligerent from enemy under valid commission.
Summary
Talbot, a Virginia native who obtained French citizenship and a privateer commission from Guadeloupe, captured the Dutch brigantine Magdalena on the high seas and brought her into Charleston. The Dutch owners sued for restitution, arguing Talbot remained an American citizen operating an illegally outfitted American vessel. Both the District and Circuit Courts ordered restitution. On writ of error, the Supreme Court considered whether American courts had jurisdiction over a capture made under French authority and whether Talbot had validly expatriated himself to become a French citizen entitled to take enemy prizes.
Admiralty and Maritime LawInternational Law and NeutralityCitizenship and ExpatriationJurisdiction
Parties
Appellant: William Talbot (captain claiming French citizenship and commission). Appellee: Joost Janson (Dutch master seeking restitution for Dutch owners).
Procedural posture
Libel filed in District Court for South Carolina seeking restitution of captured brigantine. District Court decreed restitution; Circuit Court affirmed with damages. Talbot brought writ of error to the Supreme Court.
Facts
William Talbot, a Virginia native, sailed to Guadeloupe in late 1793 and was naturalized as a French citizen on December 28, 1793. On January 2, 1794, he received a commission from the French Governor to command the privateer L'Ami de la Point-a-Petre, allegedly owned by Samuel Redick (also a naturalized French citizen). The vessel was American-built (formerly "Fairplay") and had been owned by American citizens Sinclair and Wilson, who purportedly sold it to Redick via power of attorney dated November 24, 1793. On May 16, 1794, Talbot's vessel encountered the Dutch brigantine Magdalena approximately fifteen miles northwest of Havana. The Magdalena had been initially seized by another vessel, L'Ami de la Liberte, commanded by Captain Ballard (also a Virginia native who had renounced his U.S. allegiance but had not been naturalized elsewhere). The two privateers were alleged to be in concert, owned by the same American citizens, and illegally outfitted in U.S. ports. Both vessels brought the Magdalena into Charleston on May 25, 1794. Joost Janson, the Magdalena's master, filed a libel seeking restitution on behalf of Dutch owners, arguing the capture violated U.S. neutrality and the Dutch-American treaty.
Issue
Whether U.S. courts have admiralty jurisdiction to order restitution of a vessel captured on the high seas by a person claiming French citizenship under a French commission from property of an enemy of France, and whether the alleged American citizenship of the captor and illegal outfit of the vessel in U.S. territory defeat the validity of the French commission for jurisdictional purposes.
Holding
The opinion text is truncated and does not contain the Court's ultimate holding. The record shows extensive argument on two main legal theories: (1) that neutral courts lack jurisdiction over prize captures made on the high seas by belligerents from their enemies under color of commission, and (2) that American citizens possess a natural right of expatriation that, if validly exercised, would permit them to serve foreign powers as naturalized citizens.
Rule
**[Opinion truncated; rule cannot be definitively stated from available text]** The arguments presented suggest the legal principles at issue: A neutral nation's courts generally lack jurisdiction to adjudicate prize captures made on the high seas by a belligerent from its enemy under color of valid commission; and citizens possess a natural right of expatriation, though the effectiveness of purported expatriation for purposes of validating acts under foreign authority depends on the genuineness of the change in allegiance and whether the transaction was a colorable device to evade the neutral nation's laws.
Reasoning
**[Opinion truncated; reasoning section based on arguments presented]** The appellant advanced two principal lines of argument that would have been central to the Court's analysis: **I. Jurisdictional Limits on Neutral Courts** Talbot argued that American courts, as courts of a neutral nation, lack jurisdiction to adjudicate the validity of a prize capture made on the high seas by a belligerent nation (France) from its enemy (the Netherlands). The general rule is that prize questions must be determined by the courts of the captor's country. Neutral courts may exercise jurisdiction only in limited circumstances: (a) to protect their own citizens' property wrongfully seized; (b) to protect property of other neutral nations' citizens; or (c) to remedy violations of the neutral nation's own territorial jurisdiction (such as captures within neutral waters). Here, the capture occurred on the high seas, not in U.S. territorial waters. The property belonged to Dutch subjects, who were enemies of France. Under the 1778 Treaty with France, Article 17 granted France the right to bring prizes taken from enemies into U.S. ports and to carry them away. To examine the validity of a French commission issued within French territory to a person France recognized as its citizen would constitute an impermissible interference with French sovereignty. Even if the vessel were illegally outfitted in the United States, the presence of a French commission would prevent the capture from being deemed piracy. The June 5, 1794 neutrality act provided criminal penalties for illegal outfitting but did not authorize restitution of prizes taken under foreign commissions. **II. Expatriation and Citizenship** Talbot contended he had validly expatriated himself from the United States and become a French citizen. The right of expatriation, he argued, is a natural right antecedent to civil society. When government fails to protect individual welfare, persons may withdraw from the social compact. This right is recognized by civilian authorities (Grotius, Pufendorf, Bynkershoek, Vattel) and distinguished from the feudal doctrine of perpetual allegiance. The feudal concept of allegiance rested on land tenure—vassals owed service to lords from whom they held land. In contrast, citizenship in a republic arises from compact and embodies principles of equality and consent. "Allegiance is perpetual; citizenship may be relinquished." The argument traced historical examples of recognized expatriation, including entire nations (Athenians under Themistocles; Tartar migration in 1771) and individuals (foreign ministers, naturalized naval officers). Even nations adhering to perpetual allegiance doctrine make exceptions, tacitly acknowledging the natural right. Under the American federal system, powers not delegated are reserved to the states and the people. No constitutional provision prohibits emigration; Pennsylvania's constitution explicitly protects it. While government may prohibit kidnapping or seducing artisans to leave, it cannot restrain voluntary individual emigration. The naturalization power (power to admit) does not imply power to prevent departure. France recognized Talbot as a citizen after he took an oath of allegiance on December 28, 1793, and issued him a valid commission on January 2, 1794. Whether the underlying sale of the vessel to Redick was bona fide, and whether Talbot had truly severed his American ties, would be factual questions bearing on whether his expatriation was genuine or a fraudulent device to evade U.S. neutrality laws.
Judgment
Circuit Court decree affirmed (based on procedural posture; final Supreme Court disposition not included in truncated opinion).
Dissent
The opinion is truncated and does not include any dissenting or concurring opinions.
Why it matters
This early Supreme Court case addresses foundational questions of international law, neutral rights, and expatriation that remain relevant to conflict-of-laws and admiralty studies. The case is significant for 1L students studying: (1) the scope of admiralty jurisdiction and limits on U.S. courts' authority over foreign sovereign acts; (2) the historical debate over expatriation versus perpetual allegiance, which informed later statutory and constitutional developments in citizenship law; (3) the interplay between treaty obligations, municipal law, and the law of nations in the early Republic; and (4) how courts approach questions of fraudulent invocation of foreign authority to evade domestic legal restrictions. The extensive natural-law reasoning illustrates how early American jurisprudence drew on civilian authorities and Enlightenment political theory. The case also provides context for understanding the Neutrality Acts and early prize law.
Authorities cited
- Gideon Henfield's Case (Glass v. The Betsey), 3 U.S. (3 Dall.) 6 (1794) — cited approvingly to illustrate that neutral courts may order restitution where property of U.S. citizens or neutral-nation citizens is wrongfully seized
Opinion
Talbot, Appellant, versus Janson, Appellee, et al.
THIS was a Writ of Error, in the nature of an Appeal, from the Circuit Court for the District of South Carolina; and the following circumstances appeared upon the pleadings :— A Libel was filed against Edward Ballard, Captain of an armed vessel, called L' Ami de la Liberte, on the Admiralty side of the District Court of South Carolina, in June, 1794, by Joost Janson, late master of the Brigantine Magdalena (then lying at Charleston, within the jurisdiction of the Court) in which it was set forth, that the Brigantine and her cargo were the property of Citizens of the United Netherlands, a nation at peace, and in treaty with the United States of America; that the Brigantine failed from Curacoa, on a voyage to Amsterdam ; but, on the 16th of May, 1794, being about fifteen miles N. W. of the Havanna, on the west side of Cuba, she was taken possession of by L' Ami de la Liberte ; that on the next day the Libellant met another armed Schooner called L' Ami de la Point a Petre, commanded by Captain Wm. Talbot, on board of which the mate and four of the crew of the Brigantine Magdalena were placed ; and that the two Schooners, together with the Brigantine, failed for Charleston, where the last arrived on the 25th of May, 1794. The Libellant proceeds to aver, that Edward Ballard, was a native of Virginia, a citizen and inhabitant of the United States, and a Branch Pilot of the Chesapeake and Port Hampton ; that L'Ami de la Liberte is an American built vessel, owned by citizens of the United States (particularly by John Sinclair, Solomon Wilson, &c.) and was armed and equipped in Chesapeake Bay and Charleston, by Edward Ballard, and others, contrary to the President’s Proclamation, as well as the general law of neutrality, and the law of nations ; that Edward Ballard had not, and could not legally have, any commission to capture, Dutch vessels, or property ; that the capture was indirect violation of the 13th and 19th articles of the Treaty between America and Holland; and that a capture without a commission, or with a void commission, or as pirates, could not divest the property of the original, bona fide, owners, in whole favour, therefore, a decree of restitution was prayed;
On the 27th of June 1794, William Talbot, filed a 'claim in this cause ; and, thereupon set forth, that he was admitted a Citizen of the French Republic, on the 28th December 1793, by the Municipality of Poitit a Petre, at Guadaloupe ; and on the 2nd of January following, received a commission from the Governor of that island, as Captain of the schooner L'Ami de, la Point a Petre, which was owned by Samuel Redick, a French citizen, resident at Point a Petre, since the 31ftDec. 1793, and had been armed and equipped at that place, as a privateer, under the authority of the French Republic. That the claimant being on a cruise, boarded and took the Brigantine, being the property of subject of the United Netherlands, with whom the Republic of France was at war; and that although he found a party from L'Ami de la Liberie, on board the Brigantine, yet as they produced no commission, or authority, for taking pessession of her, the Claimant sent her as his prize into Charleston, having put on board several of his crew to take charge of her, and particularly John Remsen, in the character of Prize Master, to whom he gave a copy of his commission. The Claimant, therfore, prayed, that the Libel should be dismissed with Costs.
• On the 3d of July 1794, the libellant filed a Replication, in which he fet forth, that Win. Talbot, the claimant, is an American- citizen, a native and inhabitant of Virginia; that his velii-1 (formerly called “the Fairplay”) is American built, was armed and equipped jn Virginia, and is owned in part, or in whole, by John Sinclair, and Solomon JVilfon, American, citizens, and Samuel Re die alfo an American citizen, though fraudulently removed to Point a Petre, for the pu'rpofe of privateering,. That J. Sinclair had received large fums as his filare of prizes, and Captain Talbot bad remitted to the other owners, their'refpec-tive ihares. That there is a collufion between Captains Talbot’ and Ballard⅛ whole veííéls are owned -by the feme perfons, and failed in company from Cbarlejlon,- on the 5th of May,' j79-K .
On the 5th July, 1794, William Talbot added a duplicate to his claim, in which he protested against the jurisdiction of the court; insisted that even if there had been a collusion between him; and Capt. Ballard, it was lawful as a stratagem of war; and averred that John Sinclair was not the owner of the privateer, that Samuel Redick was sole owner, and that he never had paid any prize money to John Sinclair.
On the 6th of August, 1794, district court decided in favor of its jurisdiction, dismissed the claim of Captain Talbot, and decreed restitution of the brigantine and her cargo to the libellant for the use of the Dutch owners. An appeal was instituted, but in October Term, 1794, the Circuit Court affirmed the decree of the District Court; and allowed two guineas per diem for damages, and 7 per cent. on the proceeds of the cargo (which had been sold under an order of the court) from the 6th of August 1794, with 82 dollars costs. Upon this affirmance of the decree of the District Court, the present writ of error was founded. It may be proper to add, that Captain Ballard had been indicted in the district of Charleston on a charge of piracy; but was acquitted agreeably to the directions given to the jury by Mr. Justice Wilson, who presided at the trial.
From the material facts, which appeared upon the depositions and exhibits accompanying the record, the following circumstances were ascertained:
1ft. In relation to the citizenjhip of Captain Talbot and the property of the vejfel which he commanded, it appeared, that he was a native of Virginia, that he failed from "America in the' clofe of November 1793, and arrived foon afterwards at Point-a-Petre, in the ¡{land of- Gaudaloupe; that having taken an oath of allegiance to the French Rdpublic, he was there naturalized by the municipality as a French citizen, on the 28th of December 51793 and that on the 2d of January. 1794, authority was giver.by the Governor of Gaudaloupe to Samuel Redick, to fit out the fchooner, L’Ahi de la Point-a-Petre, under Captain Talbot’s command, Redick having entered into the ufual fecurity, as owner of the privateer. This fchooner was built in America, called the “ Fairplay,” and had been owned by John Sinclair, and Solomon JVilfon, American citizens; but the was carried to Point-a-Petre, by Captain Talbot, and there, on the ’31ft December, 1793, ky virtue of a power of attorney from Sinclair & JVilfon, dated the :24th of November, 1793,, he fold her for 26,400 livres, as the bill of fale ’fet forth, to S. Redick, who was a native of the United States, but had, alfo, been naturalized, (after an occafional refidence for fome time) as a citizen of the French Republic, on the fame-28 th of December-, 1793. The bill of fale, alfo, ftated that certain cannon and ammunition on board the veil'd were included in the fale. The fchooner, commanded by Captain Talbot, failed immediately after this tranfadlion, on a cruize, and had taken feveral prizes previously to the capture of the Magdalena. There was fome flight evidence, alfo, to fandlion an allegation, that of thefe prizes, taken fubfequent to the fale of the veil'd to Redick, a part of the proceeds had been paid by Talbot to the original. owners, Sinclair &r JVilfon.-
2d. In relation to the citizenship of Captain Ballard, and the, property of the vessel which he commanded, it appeared, that he was a native of Virginia; but that in the court of Isle Wight county, of April Term, 1794, he had renounced, upon record, his allegiance to that State, and to the United States, agreeably to the provisions of a law of Virginia; though previously to the capture of the Magdalena he had not been naturalized in, (nor, indeed, had he visited) any other country. L’ ami de la Liberte had been employed, but not armed, by the French Admiral, Vanstable, then lying with a fleet in the Chesapeake ; and on the 13th Germinal, 1794, ( 1794,) he had given Sinclair a general commission to command her, as an advice, or packet boat. This commission, however, was assigned by indorsement from Sinclair to Capt. Ballard, the assignment was recognized by the French Consul at Charleston, on the 11th of Floreal (the o ) following; and a cop of it had been certified and delivered by Capt. Ballard to the prize master of one of his prizes. There was full proof that L’ Ami de la Liberte had received some guns from L’ Ami de la Point-a-Petre, when they first met, by appointment, in Savannah river, and that the had been supplied with ammunition, &c. within the jurisdiction of the United States. It did not appear, that the had gone into any other than an American port though she had made repeated cruizes, before the capture of the Magdalena; and there were strong circumstances to shew, that the was still owned by Sinclair, though she had been employed by Admiral Vanstable.
. 3d. In. relation to the. concert of the .two fchooners, and the capture of the Magdalina, it appeared, that before Capt. Ballard’s veifel was fit for fea, it had been generally reported, and believed,.and there was fome evidence that Sinclair had declared, that ihe was deftined as a. concert, to cruize' with Capt. Talbot ; that Capt. Talbot bad, received á letter from Sinclair, di- ' redting him to proceed to Savannah river, and there wait for Capt. Ballard, in whofe veflel Sinclair meant to fail;' that, accordingly, fome days afterwards Capt. Ballard’s veifel hove in ‘fight off Savannah, when Capt, • Talbot faid, “ there is our owner, let us give him three cheers ;” that both veifels went to Tybee Bar, and failed more than a fnile above the light houfe, where four cannon and fome fwivels were taken from onboard of Capt. Talbot’s vefiel, and mounted on board' L’ Ami' de la Liberte; that Sinclair left the veflels in the river, and they Toon after failed together, as concerts, upon a cruize; and-that, accordingly, 'before the capture of-the Magdalena⅜ they had jointly taken feveral prizes, and, particulaily, the. Greenock, which was taken by them on the 15 th of. May^ only two days before the capture of the Magdalena, and the ■ Fortune der ■ Zee, which was taken the very day after her capture. It appeared, that the Magdalena was lirii taken pofiefilon of by Capt.. Ballard, who left a part of his crew on board of her; but Capt. Talbot was then in fight, and, coming up in about an hour afterwards, hé, alfo, took pofiefilon of the brigantine, and placed a. prize mailer and fome of his men on boárd. The two privateers continued together for feveral days, making fignals occafionally to each other; and, finally, Capt. Ballard alone accompanied the prize into Cbarlcjlon.
The cause was argued by Ingersoll, Dallas and Du Ponceau, for the Appellant; and by E. Tilghman, Lewis and Reed (of South-Carolina) for the Appellee.
On the facts the controversy was—Whether the two schooners were, or were not, owned by American citizens ? and were, or were not, illegally outfitted in the United States ? The question of ownership turned upon the fairness and reality of the sale of L’ Ami de la Point a Petre, to Samuel Redick ; and the truth of the allegation, that L’ Ami de la Liberte, had been purchased and commissioned by Admiral Vanstable for the service of the French Republic: And the question of illegal outfit, being conceded as to Captain Ballard’s vessel, depended as to Captain Talbot’s vessel, upon the circumstances, which have been recapitulated. On the law, the following positions were taken in favour of the Appellant. I. That
I. That the courts of the United States have no jurifdl&ion of the caufe, becaufe the capture of the Magdalena as prize, and carrying her in For adjudication, were a£ls performed under the^uthoiity of the French' Republic 5 the fuhject of the capturéis the property of an enemy of the French Republic; and, upon general principles, r.s well as by pofitive compact, the captor had aright to bring .the prize intoan American port. The commiSon of Captain Talbot is granted by a regular organ of the government of France, and if France re-co'gmfss-him as a citizen, (though America may have a right in the abftrafí, to controvert with France as a ma>ter of ¿fate, the a<ft of expatriation) no neutral power can con trad iii the faff for the purpofe of trying the validity of the prizes of the ■ Republic by a left, which is ftnótly n.unicinal in every country, in fubftance, form, and operation. 1 Com. Dig. 269. The courts of a neutral country may undertake to determine quef-tions of piracy; or queftions of re Hi tut ion, 'where (;xs m the cafe of Glafs et alverfus the Bet fey, ant.p. 6.) the property of its own citizens, or of the citizens of another-neutral nation, has been wrongfully feized, and brought-within its jurifdiótion ; or queftions arifing from a violation of the neutral jurifdiction of the country, as in the cafe of the Grange, which was captured in .the bay of Delaware; but no neutral power can determine a queftion of prize, upon a capture on the high feas by a belligerent power from his enemy. 4 hft. 154. 2 R- 3fol. 2. Bynk. £>. J.p. 1: I. 17. 2 Wood. 454. Lee. 2H. Sir L. Jenk. 714. Thus, there is no jus poJHiminium in a neutral port; Fatt. b. .3. c. 14.yi-2o8. p. 84. and America, as a neutral power, cannot award reftitution in this cafe, urdefs two things are eftabliiTied, ift, that the Plaintiff is in amity with America, and 2d, that France is in amity with Holland. 4 Inji. 154. Refides, France,'by the ijch article'of the treaty, has a right to bring into, and carry from, an American port, all the prizes that ihe takes-from her enemies. T hat the Dutch owners of the veffel were enemies of France is notorious ; but, ftill, the veffel muft be a prize, according to the law of nations, excluding.captures within a neutral boundary, &c. That question, however, when the capture is made on the high feas, by a belligerent power of the property of his enemy, can only be decided by the courts cf the country'of the captors'; and to examine the right of the French Republic to ifi'uc a . co.mmiffior: within her own dominions, to a perfoo recognised and claimed by her as a citizen,, is a diredt attack upon the foversignty and independence of France. It is urged, however, that Capt. Talbot’s veflll 'was, in fa£t, an American privateer, illegally fitted out in an American port;, the facts do not fupport either branch of the allegation ; but even in that point of view, if there was a cotnmiffipn from the French Republic, the capture cannpt.be deemed piracy: and fines puffing the a£t of the 51b of June 1794» (3 Vcl. t. 88.) there is a provision'for puniihing illegal outfits ; but not for rc-ilitution of their prizes, taken under a foieign commiffion, by foreign fubjedts. Upon a capture under a commiffion, to a French citizen, indepd, whether he is á nrtive citizen or naturalized, the thing muft be the fame in effect, to'foreign neutral powers. Every writer fupports this opinion, where the prize is carried infra prejidia-, and the American ports are infra preji-dia (a place of afylum and fafety) for French prizes, by virtue of the treaty. But even if the commiffion had been given to an American citizen, it would have-been confiftent With .the ufa ye of nations ;—«very nation, (for inftance, Rujjia and England) employing foreign officers and feamen in their privateers' and' ih:ps of war; and America herfelf, it will be remembered; employed La Fayette, and a train of French officers, previous to her alliance with France. See 13 Geo. ‘2. c. 3. f. 1. 17 voh Stat. ’at Large 358. Lex Mcr. 318. Cicizeníhip de fadla, is. enough for the objedt contemplated ; and Englanajrov\Acs. that ihe herfelf may navigate her privateers with- three fourths foreign feamen. 13 (feo. 203.
II. That’Samuel Redick and Captain'7¾/⅛ had expatriated themfelves, and become French citizens; fo that the’former might lawfully own, and the latter might lawfully.command, a French privateer, for the purpofe of malting prize of íhipybc-longing to the enemies oí France.- The right of expatriation is antecedent and fuperior to the law of fociety. It is implied, likewife, in the nature and cbjedt of the focird'GQm'padl:, which was formed to ffiidd the weaknefs, and to fupply -the wants of individuals—to,protect the acquifitions óf hunum induil.-y,' and to promote the means of human hsppincfs. Whenever thefe purpofes fail, either the whole jfociety is difTolvcd, of the fuf-fering individuals are permitted to withe! _Vv. from it.- There are two memorable inftances of the expatriation of entire »«-• tipns (independent of the genera! courts of the patri archie!, or paftoral life) the one in ancient, and the other in modern ilory. When the Perfians apprpached Athens, the whole Athenian nation embarked in the fleet of Tbemif deles, and left Attica, for a time, in pofleflion of the Perfians. Pint, in vit. Themijl. Trav. of Anachar. 1 vol. p. 268. In the year 1771, a whole nation of Tartars, called Tourgouths,” making 50,000 families, or 300,000 fouls, emigrated from the banks of the Wolga, in Ruffia, and, after a progrefs of inconcdivable difficulty, f-ttl.d in the dominions of the Emperor-of China, who hofpitably received them, and erected a monument on the fpot, to como,emorate the event. Col* Mag. for Feb. 1788, But the abftratS right of individuals to withdraw from the fociety of which they are members, is recognized by an uncommon coincidence of opinion;—by every writer, ancient and modern ; by the civilian, as well as by the common-law lawyer; by the philofopher, as well as the poet: It is the law of nature, and of nature’s god, pointing to “ the wide world before us, where to.chufe- our place of reil, and Providence our guide.” 2 Bynk. 125. Wickefort. b. 1. c. 2. p. 1x6. Grot. b. 2. 5•/ 24. par. 2. 3. Dig. de cap. et pofl. Law. 11. f. 9. Wick. b. 1. f. ir. p• 244. Paff'- b. 8. x. c. 11. f. 3. p. 862. -i Fred. Code. 34. 5. 2 vol. 10. 1 Gill. FUJI. Greece. With this law', however, human initicutiojis have often been át variance; and no inftitutions more than the feudal fyfem, which made the tyranny of arms, the bads of fociety; chained men to the foil on which they were born ; and converted the bulk of mankind ‘into the villeins, or Slaves of a lord, or fuperior, From thefeudalfyfem, fprung the law of allegiance; which purfuing the nature of its origin, refls on lands; for, when lands were all held of the Crown, then the oath of allegiance became appropriate: it was the tenure of-the tenant, orvalla!. Blac. Com. 366- The‘oath offealty, and the ancient oath of allegiance, were, alraoft the fame; both reiling on lands;, both defignpting the perfon to whom fervice íhould ‘ b.e rendered ; though the one makes an exception as to thé fuperior lord, w-hile the other is an obliga-: fion of fidelity agaiiift. all men. 2 Bl. Com. 53. Pal. 140. Service, therefore, was alfo an infepar-tblc concomitant f fealty, as well as o.f allegiance'. The oath of fealty could not be violati-d without lofs of lands; and- as all lands were held me-diately, or immediately, of the fovercign, a violation of the oath 0/ allegiance, was, in fail, a voluntary fubmiffion to a ftate of outlawry. Hence arofe the dodlrfee of perpetual and univerlhi allegiance. When, however, the light of reafon was feed upon the human mind, the intercourfe of man became more general and mpre liberalthe military was gradually changed for the commercial ftate ; and the laws were found a setter protection for perfons and property, than arms. But even while the practical adminiilration of government Was thus reformed, fome portion of the ancient theory was preferyed; and, amungother things,the dodrineof perpetual allegiance remained, with the fictitious tenure of ail lands from the Crown to fupport it. .Yet, it is to he remembered, that whether in its real origin, or in its artificial ilate, allegiance, as well as fealty, reíls' upon lands, and it is due to perfons. Not f), with refped -to Citizen/hip, which has arifen from the diflolu— tion of the feudal fyftemj and is a fubilitute for allegiance, correfpopding with the new order of things. Allegiance and citizenihip, differ, indeed, in almoll every charaCteriftic. Ci-tizenihip is the efied of compad; allegiance is the offspring of'power and neceflity. Citizenihip is a political tie; allegiance is a territorial tenure. Citizenihip is the charter of equality; allegiance is a badge of inferiority.- Citizenihip is conilitu-tional; allc-giance is perfonal. Citizenihip is freedom; allegiance is fervitude. Citizenihip is communicable; allegiance is repulfivé, Citizenihip may be relinquiíhed; allegiance is perpetual. With fuch effential differences, the- dodrine of allegiance is inapplicable to a fyflem of citizenihip; which it caii neither ferve to controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance is the moil firmly eilaDliihed, the moil pertinaciouily enforced, there are ilriking deviations that demon-ilrate the invincible power of truth, and the homage, which, under every modification of government, mull be paid to the. inherent rights of man. In Ruf-fia, the volunteers who fupply the fleet with officers, or literary hjilitutions with profeffors, are naturalized. In Poland, an American citizen has been made Chancellor to the Crown. In France, Mr. Sart.ine, who was Miniiler of Marine, and Mr. Flecker, who was Miniiler of Finances,- were adopted, not native, fubjeds. In England, two years fervice in the navy, iffo faSlo, endows an alien with all the rights of a native. Thefe are tacit acknowledgments of the right of expatriation, veiled ¡lithe individuals; for, though they are inilances of adopting, not of difeharging, fubjedsj yet, if Great Britain--would (ex gratia) pr'oted a Ruffian naturalized by fervice, in her fleet, it is obvious that fhe cannot do fo without recognizing his right of expatriation to be fuperior to the Emprefs’s right of allegiance. But it is not only in a negative way, that thefe deviations in fupport of the general right appear. The dodrine is, that allegiance, cannot be due to two fovéreigns; and taking an oath of allegiancé to a new, is the ilrongeft evidence of withdrawing allegiance from a previous, fovereign. Thus, Louis XIV. received his own quondam fubjeds, the two Fi-dlers, as AmbaffadorS. Dr.'Story, an Engliihman, was fent to-England as the'miniiler of Spain, And in many nations the conditions on W!7ich an expatriation may be'affe£ted (fueh as paying a tax,- or leaving a portion of property behind) are actually prtfcrib-’ ed. Independent, however, of thefe inftances, in countries botind by the law of allegiance, it is to be confidered, what are tbs rights of cit.izenjbip on the fubjeil; and' like every other queftion of citizenihip, it depends, on the terms and fpirit of our focial compa£l. .The American Confederation is a complex machine, and fui generis. It creates joint federal powers;' but it recognizes feparate ftate. powers : It is confederate to focne púrpoFes; but confolidated to other purpofes. The formation of every focial compact is prefumed, however, by'elementary writers, ■ to be a furrender of fo much, and no more, of private rights, as are necelTary to' the prefervation and operation of the government; but'this principle is not left with us to mere implication ; it is formally declared in many ftate constitutions in favor of the people; and in the Federal Conftitution, it is declared in favor of the States, as well as of the. people. With refpedl, then, to the right of emigration, it has been under the consideration of the people and government cf the Union, fiom the moment of their birth, as an independent nation; infomucb, that the refufal to pal's laws for the encouragement of emigration to America, is charged as a proof cf tyranny and opprefiion, in the. enumeration of the grievances, which produced and juftified the revolution. The articles of Confederation contain not any claufes, exprefsly granting, or reftraining, the power and right of naturalization and emigration ; but they contain an exprefs refervation of all powers in favor of the States individually, which are not, in terms, transferred to the Union.. An infpeclion of the feveral ftate con-ftitutions will prove, that, in feme form or other, the principle has been recognized by every member of the Confederation ; and the Conftitutioii of Fennfylvania explicitly provides, that no law fhuli be paiied prohibiting emigration from the ftate. T his is, perhaps, the only diredl expreffion of the public fentiment on the fubjeft; but the very Silence that prevails Strengthens the argument. • The power of naturalizing has been veiled in feveral of the irate governments, and it now exifts in the general government; but the power to reftrain or regulate the right of emigration, is no where furrendered by the people ; and, tt mull be repeated, that, what has not been given, ought not to be aftumed. It may be faid, however, that fuch a power is nec.flary to the government, and (hat it is implied in the authoi ity to regulate the bufmefs of naturalization. In con-iirlcring thefe poíitions, it mull be admitted, that although an individua! has aright to expatriate himfeif, he lias not a right lei feduce others from their country. HenceJ thofe who forcibly, or fedudlively, take an ay a citizen, commit an aft, which firms a fair object of municipal police; anda confpiracy,Tor combination, to leave a country, might, like wife be properly-guarded againft. Such laws would not be an infraction of the natural right of individuals; for, the natural rights of man are perfonal; he has no right to will for others, and he does- fo, in effect, whenever he moves the. mind of another to his purpose, by fear, by fraud, or by perfuafion. The Englijh law and the law of Penufylvania, therefore, puniih kidnapping, and tranfporting, or (educing, .artifts, to fettle abroad as crimes. 4 Bl. Com. 219. 160; Penn. Laws 2 Vol. Dali. Edit. But this is all the power on the fubject,.which a government ought topof-fefs for its prefervation. The depopulation of a country by me fpontaneous co-operating will of numbers, proves nothing more than that a bad government exifts, or a bad foil is inhabited. .Such an event, however, is too remote a poffibi’ity, to be any where- a fubjeét of apprehenfion; and, with refpe&ta America, it is vifionary indeed! If then, the power of reftrain-ing emigration is not neeeflary to the exifter.ee.of government, much may be urged to (Lew, that it is a power of too delicate a nature to be t.iufted by the people to the integrity, of any government; fince, by legiflative regulations, the exercife of the right might be rendered fo difficult, that the right itfelf would be put in everlafting abeyance. Nor is there any effen-tial coincidence in a power to regelate naturalization, and ire a power to regulate emigration; fothat the grant.of the former-iha'll be deemed to include the latter. The idea of admitting, and the idea of excluding, are not analogous, • As to the point of policy, if a man wiflies to leave a country, he is not likely to remain in it, by force, beneficially to the ftate. The chara&er of the migrating, individual can have no influence on the right; his private motives of intereft, or ..of pleafure, do not affeéi the community; and it .is of np importance to what -country he goes. The moment he has expatriated himfelf, the ftate is no longer interefted, no longer, rcfponfible for his conduit; the legature, which bound them, is fevered, and caía never again be united, without their mutual con fen t: The emigrant has become analien. But in- the- a£t of-, naturalization, every community has a light'.totally to rejeft applications for ad million ; or to preferibe the terms; and then the character ®f the applicant, the motives of emigration from his old country, and. the evidences of attachment to his new one, (ire all tobe confider-ed. Let it, how.eycr, be fuppofed, for a moment, that the grant of the naturalization power'embraces a power of regulating emigration, the queition ftiil remains, Ras the power of regulating emigration been exercifed by Congrefs ? And if it has not been exercifed 15y the department of government, to whieh alone even by implication, it is granted, what authority has the court to interfere upon the fubjeét ? That the power has not been exerciled by Congrefs is conceded ; and if the court interferes, it will be a legiflative, not a judicial, aét: For, although it is contended,'that the law of nations furniihes rules to fup-ply the filence of the legiflature, there is fcarcely a fubjeét, to which the jurifdiction of.Congrefs extends, that might not, on the fame doétrine, be regulated, without the interpofition of that body. Thus,. Congrefs has power to .define and puniih piracies, felonies committed on the high feas, and offences againft the law of nations; and yet, without the exercife of that power, the law of nations would fupply rules as applicable to thofe cafes, as to the cafe of expatriation. But naturalization and expatriation are matters of internal police; and muft depend upon the municipal law, though they may be illuftrated and explained by the ¡principles of general jurifprudence. It is true, that the judicial power extends to a variety of objeéts; but the Supreme Court is only a branch of that power; and depends on Congrefs for what, portion it ihall have, except in the.cafes of ambaffa-dors, See. particularly defignatcd in the conftitution. The power of declaring whether a citizen ihall be entitled in anv form to expatriate himfelf, or, if entitled, to prefer-ibe the form, is not given to the Supreme Court; and, yet, that power will be exercifed by the court, if they ihall decide againft the expatriation of Captain Talbot. Let it not, after all, be underftood, that the natural, loco-motive, .right of a free citizen, is independent of every focial obligation. In time of war, it would be treafon to migrate to an enemy’s country and join his forces, under the pretext of expatriation. 1 Dali Rep. 53. and, even in time of peace, it would be reprehenfibk- (fay the writers on the law of nature and nations) to deferí a country labouring under great calamities. S'o, if a man aéting under the obligations of an oath of office, withdraws to elude his refponfibility, he changes his habitation, but not his citizenihipf It is not, however, private relations, but public relations; private refponfibility, but public refponfibility; that can affeét the right: for, where the reafon of the law ceafcs, the law itfelf muft, alfo, ceafe. There is not a private relation, for which a man is not as liable by local, as by natural, allegiance;—after, as well as before, his expatriation : He muft take care of his family, he muft pay hts debts, wherever he refides ; and there is no fecurity in ref!raining emigration, as to thofe objeéts, fince, with refpeét to them, withdrawing is as effeétual, as expatriating. Nor,is it enough to impair the right of expatriation, that other nations are at war ; it muft be the country of the emigrant. No nation has a right to interfere in the interior police of another : the rights and duties of citiz-w.ihip, to be conferred, or releafed, are matter of interior'police; and, yet, if a foreign war could affect the queftion, every time-that a freih power entered into a war, a new reftraint would be impofed upon the natural rights of the citizens'of a neutral country; which, confidering the conftant warfare that afflicts the world, would amount to a perpetual con-troul. But the true diftindtion appears to be this -The citizens of the neutral country may ftill exercife the right of expatriation, but the belligerent power is entitled to fay, “ the ail of joining our enemies, flagrante bello, lhall not be a valid act of expatriation.” By this conftru&ion, the duty a nation owes to itfelf, the facred rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in diftindt and feparate courfes. To purfue the fubjedt one ftep further: -A man cannot owe allegiance to t'wo fovereigns. 1 Bl. Com. he cannot be citizen of two republics; If a man has a right to expatriate, and another nation has a right and difpofition to adopt him, it is a compadt between the two parties, confummated by the oath of allegiance. A man’s íaffc will, as to his citizenihip, may be likened to his laft will, as to bis cftate; it fuperfedes every former difpofition ; and when either takes effedt, the party, in one'cafe, is naturally dead, in the other, he- is civilly dead ;—but in both cafes, as good chrif-tians and good republicans, it muft be prefumed that he rifes-to another, if not to a better, life and country. . An adl: of expatriation, likewife, is fufceptible of various kinds of proof. The Virginia lav/ has feledted one, when the ftate permits her citizens to depart; but it is not, perhaps, either the moft authentic, or the moft conclufive that the cafe admits.- It may be- done obfcurely in a diftar.t county court; and even after the emigrant is releafed from Virginia, to what nation does he belong ?. He may have entered no other country, nor incurred any;oblígation tó any other fovereign. IN oír being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the political atmofphere, gazed at wherever he pafl.es, and fettled wherever he touches ? But, on the other hand,' the adt of fwearing allegiance to another fo-vereign, is unequivocal and conclufive; extinguifhing, at once, the claims of the deferted, and creating the right of the adopted, country. Sir Williasn Blackjlone, therefore, coiifiders it as the ftrongeft, though an ineffedtual, effort to emancipate a Britifh fubjedi from his natural allegiance; and the exifting conftitetion of France declares it exprefsly to be a criterion of expatriation. - The fame principle operates, when the naturalization law of the United States provides, that'the whole ceremony of initiation fhall be performed in the American courts ; and if it is here confidered as the proof ofadoption, fhall it not be confidered, alfo, as the teft of expatriation ? If America makes citizens 'in that way, ihall we not allow to other nations, the privilege of the. fame procefs ? In ihort, to admit that Frenchmen may be' made ci tizens by an oath of allegiance to America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After this difeuffioa of principles, forming a neceffary bafis fo.r the fa£is in this cafe, it is infilled, ift, That- Talbot was a naturalized citizen of the' French Republic at the time of receiving a commiffion to command the privateer, and of capturing the Magdalena. He left this country with the defign to emigrate; and the a£c of expatriation muft be prefumed to be regular, according to the laws of France, fierce it is certified by the municipality of Point a Pitre, by the French Conful, and by the Governor of Guada - loupe. 2d, That Redick was alfo, a naturalized citizen of the French Republic when he purchafed the veffcl, and received a commiffion to-employ her asa privateer. 3d, That Ballard’s expatriation and commiffion, however doubtful, cannot affeél Talbot and Redick.' .But ftill, it is obj cited, that thefe a its of expatriation, thefe commiffions, are all fraudulent and void. In private contraéis, in fubjeéts of municipal regulation, in matters of. meum et tuum, the rule is clear, that fraud vitiates every thing, and the fraud may be colleéfed from circumftances. But is fraud to be prefumed in a confliél of national rights ? It js fa-id, that a nation cannot beconfidered in the.light of pirates; I Wood, fo a nation cannot commit frauds. Let the matter be turned as it may, it will reft on this ground,—bad France any authority to naturalize, or to commiffion, Talbot and Redick ? America is deeply interefted, at leaf!:, in withholding a concef-fion, that any other nation, but France, can decide that queftion. The validity of her own naturalizations, the authenticity of her own commiffions, and the-claims of her imprefied fea-meh, are all involved.' France, then, is exclufivcly to judge ; ihe granted the authority, file can relcind it; íhe can puniih any abufe of it; and to her government muft be-the appeal, if America, or any other nation, has fuftained an injury by it. If, indeed, on' the pretext of fraud in the perfons who obtain.a French commiffion, our courts may annul them, Where will the inquifitorial cenforikip terminate ?■ Britiih patents of deni-zation, as well-as French adds of naturalization; and byery commiffion of the officers of a public ihip of War, as well ásof- ' a privateer, will be alike fubjeétto our fupremé contr.oul. But even the allegation of fraud, is unfupported by. any reafonable degree of evidence. The-fir ft crrcu.mftance -relied, on, is, that tile .a£⅛ of naturalization, bill of falo, and commiffion-to cruise, were in the cuftody of-Capt.- Talbot on board the privateer, aijd not held by Rcdici,.s.uPtnnt a Pitre. But, furcly, every privateer muft be always ‘ ready £o prove her owserihip and au-Aovity, to refcue her from the imputation of piracy, and to entitle her to fell her prizes. Again, it is faid, that Redick had no agent in. America. But it is fufficient to anfwer, that the Captain of a privateer is the natural agent for the owner; that ' it idle to expeft that the owner of a cruizing veffel Aall have an agent in every port, at which ihe may touch; and that, in Tá£t, Redick had fevcral agents in Charlejlon. It is added, as circumftancGS for fufpicion, that Talbot has not proved that his veffel was not fitted out in the United States,' whereas the proof of the affirmative lay with Appellee; the articles on board Talbot’s veffel, if not put on board at Guadeloupe might have been for trade; and Redick, a bona fide purchafer, bught' not tobe affected by an illegal outfit: 2 E/p. 282. 3 Wood. 213. Bl. C. 262. x T. Rep. 260. 3 T. Rep. 437.. 2'Wood. 412. 431. Hard. 349. Coivp, 341. 2 T, Rep. 750. that proof is not' made of notice of the fale to Redick, whereas it appears that Sinclair and Wilfon were actually informed of the tranfaítion ; and that Sinclair and IVilfon have not been produced as wit-neffes by ⅛⅝⅜ Appellant,- whereas it was the duty of the Appel-lee, if he thought their teftimony material, to examine them, and he had the fame means to compel their attendance.
III. That the capture being made by Captain Talbot, nowithstanding the participation of Captain Ballard, the vessel is a lawful prize. If, indeed, Talbot and Redick were regularly naturalized by France, if the vessel was regularly sold to Redick, and commissioned by the French government, it is obvious that the validity of the capture can only be impeached, by the circumstance of Capt. Talbot’s consorting with Capt. Ballard. That point may be considered in two ways : 1ft, Considering Captain Ballard acting under colour of a commission ; 2d, Considering Captain Ballard as acting without any authority at all.—1ft, The commission which Ballard held, was, at leaft, sufficiently colourable to justify Talbot the commander of a French privateer, in associating with him against the enemies of France. A general order, indeed, is sufficient commission, where there is evidence a person intended to act under it. 2 Vatt.s. 224. 5. 6. But he not only held a commission, but he was employed by the French government itself, failed urider French colours, and in the charascer of a French vessel had ' been permitted freely to leave and enter the American ports. It is true, that it is eventually discovered that he had clandestinely fitted out his vessel, in violation of the laws of the United States ; but Talbot had no right to question the validity of the commission, nor the legality of the outfit; and even supporting Talbot did assist in the outfit of Ballard’s vessel, that, as a substantive offence, might tender him amenable to punishment in our courts, but it could not vacate his French commission, nor render him, as a French citizen, a pirate throughout the world. The validity of the commission and the legality of the outfit are questioned, however, by a Dutch subject, before an American tribunal; and yet, Such a plea would not be sustained in France, and could not be allowed even in Holland. With respect to America herself, whatever punishment she denounces, for a violation of her neutrality, she may inflict; but on principles, of justice, she cannot convert one crime into another, an illegal outfit into piracy; she cannot punish for holding a commission, recognized by the authority that issued it; she cannot make an innocent man (for instance, Redick, the owner of the privateer) responsible for a guilty one; she cannot impair the right, or confiscate the property, of a man acting under a due authority, in order to punish a man acting without due authority; and fire cannot punish a man for associating out of her jurisdiction, with another, contrary to her laws, but consistently with the laws of the country to which he belongs. But what more did Talbot do, than is justifiable on the principle of stratagem by the laws of war ? It is illegal to outfit a vessel of war within the United States under colour of a French commission ; and, yet, after the vessel is outfitted, and on the high seas, may not an officer of France, without vacating his commission, employ he ? Foreigners are often retained as spies, and sometimes pressed into the service of a belligerent power. Vatt, B. c. f p. 593, 557. Grot. Puff. Heinec. 170. Why may they not be employed as consorts in cruizing ? A colourable commission was deemed sufficient to rescue Captain Ballard from a conviction for piracy; and if for that purpose, it ought surely to be sufficient to save Talbot, or rather, indeed, Redick, the party really interested, from a charge of piracy, the forfeiture of his commission, and the loss of the prize. Where there is a commission, there can be no piracy. 2 Woodes. 425. 2 Sir L. Fenk. 754. Moll. 64. and capture by deputation under colour of a commission is no piracy, though the ship is, carried into the port of a friend.—2 Woodes. 426. Moll. B. 1. c. 4.s. 19. p. 65. The case in 2 Vern. 592, quoted for the Appellee, is the case of Englishmen, acting as such, though under a Savoy commission, against friends of England; whereas the present case is that of an American, having lawfully expatriated himself, and after becoming a French citizen, receiving as such a commission, and making prize, in a French vessel, of the property of the enemies of France. But even on the point of the commission, it is said in the case that the prize might enure as a droit of Admiralty, on the principle of capture from an enemy, by an uncommissioned vessel. 2 Woodes. 433. And there are fome authorities that go the length of saying that capture by a neutral, where there is a commission, is good. Lex Merc. 227. Com. Dig. 269. 2d. But let it be supposed, in the second place, that captain Ballard had no authority at all, this will not destroy captain Talbot’s right of capture. A piratical capture does not, ‘it is agreed, alter the property; 2 Wood. 428 to 431, and as Ballard, in that case, had no right to feize the vessel, it still remained the property of the Dutch owners, liable to be feized any where by the French, their public enemies. Vatt. B. c. s. p. Burl. 219, 222, 225. Lee on Capt. 206. 2 Val. 26 r. If, indeed, a friend’s property is retaken from a pirate, the friend shall only pay salvage; but if an enemy’s property is to retaken, the right becomes entire and absolute in the re-captor. It would be war in a neutral country, say the authorities, to secure within her territory the spoils of one of the Belligerent parties; and is it not a greater partiality, a more striking aggression, to attempt to do so on the high seas ? It can only be by an extension of her neutral jurisdiction, that the United States can pretend to invalidate the capture, because the property was in the possession of Ballard, an American citizen; and surely, the unlawful act of her own citizen can give no right of authority to the United States, at the expence of the right and authority of a foreign nation. If, upon the whole, Ballard had a colorable commission, it justified Talbot; if he had no commission, his misconduct on the high seas, cannot add to the safety of the property of the Dutch, nor enlarge the jurisdiction and power of the United States; and even if Talbot had consorted with Ballard, an avowed pirate, the prize would be good as a droit of the French Admiralty, though perhaps neither of the captors acquired a property in it. Lex Merc. 246, Moll. b. I, s. IO. The facts, then, are briefly, that the two cruizers were in company when they first saw the Magdalena ; that, for their mutual interest, they afterwards separated to pursue separate vessels, that both were again in fight, however, when the prize was captured, that both took possession of her, and that both were in possession on her arrival in the port of Charleston. The force of one joint cruizer is the force of both; and, like joint tenants, the possession of one is the possession of both. It cannot be said, that she was first captured by Ballard; far, when two ships are in fight, both are considered as captors ; both entitled to share in the prize. 2 Wood. 447, Moll. 1. 1, c. 2, f. 22. 2 Leon. 182, Doug. 324, 32S, and, therefore, on that footing, if Ballard was not entitled, either the whole prize vested in Talbot, or Ballard’s share was adroit of the Admiralty of France; but America could have no pretence to hold, or release, any part of it. 2 Wood. 432; 3; 441- 456. 2 Vern. 592.
The Counsel for the Appellees insisted upon the following points: 1ft. That the capturing vessels were American property. 2d. That even if the vessels were French property, the instruments, or agents, used to effest the capture, were American citizens. 3d. That both vessels were of American outfit, and therefore, the capture was illegal. 4th. That, at all events, Ballard acquired no right by the capture, and that Talbot, coming in under him, could have no higher pretensions than Ballard himself. From this view, it will be perceived that the course of their argument led principally to an investigation of the facts ; whence concluding, that the whole transaction was collusive and fraudulent, on the part of the owners and captains of the vessels, they cited authorities to shew, that fraud vitiates every act, and that although fraud cannot be presumed, it may be proved by circumstances 3 Cha. Ca.Wils. 230. 3 Co. 778. 81. I Burr. 391. 396, 4 T. Rep. 39.
On the points of law, the Counsel for the Appellee, held the following doctrines:
I. That Ballard and Talbot were Americans by birth, and had done nothing which could work a lawful expatriation. It is conceded that birth gives no property in the man; but, on the principles of the American government, he may leave his country when he pleases, provided it is done bona fide, with good cause, and under the regulations prescribed by law. I Vatt. B. 1 c. I9.S. 220. 221. 223. 223. Grot. B. 2. c. 5.S 24. Puff.B. 8. c. 11. p. 872, and provided, also, that he goes to another country, and takes up his residence there, under an open and avowed declaration of his intention. Thus, the rule is fairly laid down in 2 Heines. B. 2. c. 10. f. 230: p. 20; requiring from the emigrant not only an act of departure, with the design to expatriate, but the act of joining himself to another state. But a man may be entitled to the right of citizenship in two countries; and proving that he is received by a new country, is not sufficient to prove that his own country has surrendered him. If, indeed, it is lawful for one individual, any number of individuals, may exercise the right of expatriation under the circumstances contended for; and, then, we might behold a political monster, all the citizens of a country at war, though ’ the country itself is at peace. There must, therefore, from the nature of the case, be fome restraint on this loco-motive right: and it is a reasonable reftraint, recognized by the best writers, that it shall not be exercised either in contravention of a national compact, such, as the American treaty with Holland, which declares that the citizens of, either party shall not take commissions as privateers against the other. Art. 19. or to the injury of the emigrant’s country. Vatt. b. 2. c. b. f. 71 to 76. Privateering by the subjects of a neutral nation, is considered as an infamous practice. Ibid. b. 3. c. 15. f. 229. and if an act committed by a citizen is approved and ratified by his country, they adopt the offence as their own. Ibid. b. 2. c. 6. f. 74. The power of regulating emigration, is an incident to the power of regulating naturalization. It is vested exclusively in Congress; and the Virginia Act, under which Ballard pretends to have renounced his allegiance, can have no effect on the political rights of the Union. With respect to Talbot, his pretended expatriation was in itself an offence, and, therefore, cannot be a. justification: he failed from America in an armed vessel, illegally fitted out, with the design of becoming a privateer, against a nation in peace and treaty with the United States; and the sale of his vessel to Redick, was merely a colour to the general scheme of plunder and depredation, in which Redick was a partaker. If, then, Talbot is to be still considered as an American citizen, acting under a French commission, in capturing 2 Dutch prize, restitution must be awarded upon the principle of the decision in 2 Fern. 592. Holland being at peace with America, though fire is at war with France.
2. That even supposing Talbot’s expatriation, and the ownership of his vessel, to be, sufficient to authorize his own privateering, the circumstances of conforting with Ballard, knowing the American character of Ballard and his vessel, were sufficient to invalidate the capture. Can it be reasonable, or just, that a French privateer should associate with a pirate, or avail himself of the power of America, to feize the property of her allies, bring that property into an American port, and, yet, that an American court of, justice should be incompetent to redress the grievance ? But the actual capture was made by Ballard, whose right of capture is abandoned. "The tortious act had been compleated before Talbot was admitted by a fraudulent concert, into a share of the possession of the vessel; and even when admitted, he does not pretend to defeat the previous occupancy, or to controvert Ballard’s claim of prize. Ballard, (possessed by assignment of a commission, which did not authorise capture, and which was not, in its nature assignable) had wrongfully feized the vessel of an American friend; and, surely, if at the time of such feizure, and before Talbot boarded the vessel, the Dutch owners had a right to demand justice from the United States, as against Ballard, that right could not be destroyed by any immediate consequence of the wrong on which it was founded; such as Talbot’s being admitted by the agressor to a joint possession. Besides, Talbot assisted in arming Ballard’s vessel within the neutral jurisdiction of the United States; and this, together with the concert in capturing the Magdalena, amounted to a relinquishment, or forfeiture, of his commission.
3. That neither the law of nations, nor the treaty between America and France, prevents the interference of the judicial authority of the United States, in this case ; and it has already been adjudged, that the District Court has Admiralty jurisdiction, both as a Prize and Instance Court. Ant. p. 6. It is enough to repel the argument founded on the law of nations, to state, that the question is not, whether the court will take cognizance of a capture, made on the high seas, by the citizens of France, of the property of the enemies of that Republic, which is a question that can only be decided by the courts of the captor: but the gift of the controversy is—whether American citizens shall be permitted, under the colour of a foreign commission, to make prize of the property of the friends of America, either by their own independent,act, or in collusion and concert with a real French privateer ? As to the 17th article of the treaty with France, giving it a fair and rational exposition, it cannot include prizes taken by privateers unlawfully equipped in the American ports; and the vessels taken as prize, must not only belong'to the enemies of France, but he such as are taken bona fide by the citizens of France, which was not the fact in the present instance.
On the izd of Auguft, 1795,' the Judges delivered their opinions feriatim.
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Before the principal argument commenced, the two followingpoints eccurred : • .
I. The counfcl for the Appellee, offered to give in evidence, a certificate of the collector of the cultoras of ilie porr of Charhflon, Haling, that it appea: ed by his official books, thar the. duties on the cargo ot the Magdalena, had been paid by the Appellee. But it was objected, f,.r the Ap- ’ pellanr, that the Colleftor’s certificate could not be.admitted to prove the fait; the entry itfclf from the record, muft.bf exemplified. Belides, the Collector is not an officer app tinted to certify a record; and as a witnefs, theTippofite party Ihould have had an opportunity to crofs examine him. Independent, therefore, of any queilion, whether new'evidence can be received on an appeal in this coutt, the certificate is inad-miffible. • •
The Court rejeited the certificate, on the general ground ; and VVn.-son, 'Yujlia, added,, that he thought, atall events, it was premature to offer the evidence in this ftage of the caufe. The motion was renewed after the court had affirmed the decree of the court below, but with .no greater fuccefs.- # "
II. U was objected by Dallas, for the Appellant, that.ihe récord was not tranímitted$ agreeably to the directions of the judicial-act, the 19th fection.providing, that “ it iha.ll be the duty of Circuit Courts, in caufes in equity and of admiralty and maritime jnrjfdiccion, to caufe the facts, on vhicli they found their fentence, or decree, fully 10 appear upon the record, &c.” which had-not been done. It is truej that the pleadings, ex dims, and fentenfces ate certified by the clcrh, not.by the judges; and the emay have been oral ttitimony in the inferior courts. anfwer-cArthat every thing that had appeared below, now appeared here, un-fertile íVal of the Circuit Court.
’ Alter lome diicuiiion* however, the delire of the pai tics to obtain a de-cition on the merits, prevailed, and the objection was waved. The point has been linctfargned anddecided, in the gafe of ¡Vt¡carut ni rv.Dauc/iy)j>o/}.
[MAJORITY — /Paterson, JuJlice. Iredell, Justice. Wilson, Jujlice. Cushing, Jujlice. Rutledge, Chief JnJlice. By the court:]
/Paterson, JuJlice.
The libel in this cause was exhibited by Foost Fansen, matter of the Vrouw Christiana Magdalena, a Dutch brigantine, owned by citizens of the United Netherlands ; and its prayer is, that Edward Ballard, and all others, having claim, may be compelled to make restitution. The District Court directed restitution; the Circuit Court affirmed the decree; and the cause is now before this court for revision. The Magdalena was captured by Ballard, or by Ballard and Talbot, and brought into Charleston. The general question is, whether the decree of restitution was well awarded. In discussing the question, it will be necessary to consider the capture as made,
1. By Ballard,
By Ballard and Talbot.
1. By Ballard. This ground not being tenable, has been almost abandoned in argument. It is, indeed, impossible to suggest any reason in favor of the capture on the part of Ballard. Who is he ? A citizen of the United States : For, although he had renounced his allegiance to Virginia, or declared an intention of expatriation, and admitting the fame to have been constitutionally done, and legally proved, yet he had not emigrated to, and become the subject or citizen of, any foreign kingdom or republic. He was domiciliated within the United States, from whence he had not removed and joined himself to any other country, settling there his fortune, and family. From Virginia, he passed into South Carolina, where he failed on board the armed vessel called the Ami de la Liberte. He failed from, and returned to, the United States, without so much as touching at any foreign port, during his absence. In short, it was a temporary absence, and not an entire departure from the United States, an absence with intention to return, as has been verified by his conduct and the event, and not a departure with intention to leave this country, and settle in another. Ballard was, and still is, a citizen of the United States ; unless, perchance, he should be a citizen of the world. The latter is a creature of the imagination, and far too refined for any republic of ancient or modern times. If however, he be a citizen of the world, the character bespeaks universal benevolence, and breathes peace on earth and good will to man ; it forbids roving on the ocean in quest of plunder, and implies amenability to every tribunal. But what is conclusive on this head is, that Ballard failed from this country with iniquitous purpose, cum dolo ct culpa, in the capacity of a cruizer, against friendly powers. The thing itself was a crime. Now it is an obvious principle, that an act of illegality can never be construed into an act of emigration, or expatriation. At that rate, treason and emigration, or treason and expatriation, would, in certain cases, be synonimous terms. The cause of removal must be lawful; otherwise the emigrant acts contrary to his duty, and is justly charged with a crime.’ Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member ? As we have no statute of the United States, on the subject of emigration, I have taken up the doctrine respecting it, as it stands on the broad basis of the law of nations, and have argued accordingly. That law is in no wife applicable fo the present case : for, Ballard, at the time of his taking the command of the Ami de la Liberte, and of his capturing the Magdalena, was a citizen of the United States; he was domiciliated within the fame, and not elsewhere ; and, besides, his cause of departure, supposing it to have been a tota1 departure from and abandonment of his country, was unwarantable, as he went from the United States, in the character of an illegal cruizer. The act of the legislature of Virginia, does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia pass an act specifying the causes of expatriation, and prescribing the manner in which it is to be effected by the citizens of that state, what can be its operation on the citizens of the United States? If the act of Virginia affects Ballard’s citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States ? Allegiance to a particular state, is one thing; allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter ? The sovereignties are different; the allegiance is different; the right too, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty. Of course there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unifon and order. A flight collision may disturb the harmony of the parts, and endanger the machinery of the whole. A statute of the United States, relative to expatriation is much wanted; especially as the common law of England, is, by the constitution of some of the dates, expressly recognized and adopted. Besides, ascertaining by positive law the manner, in which expatriation may be elicited, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.
But there is another ground, which renders the capture on the part of Ballard, altogether unjustifiable. The Ami de la Liberte was built in Virginia, and is owned by citizens of that state; she was sitted but as an armed floop of war, in, and, as such, failed from, the United States, under the command, of Ballard, and cruised against, and captured vessels belonging to, the subjects of European powers, at peace with the said Hates. Such was her predicament, when she took the Magdalena. It is idle to talk of Ballard's commission ; if he had any, it was not a commission to cruise as a privateer, and if so, it was of no validity, because granted to an American citizen, by a foreign officer, within the jurisdiction of the United States. We are not, however, to presume, that the French Admiral or Consul would have issued a commission of the latter kind, because it would have been a flagrant violation of the sovereignty of the United States; and of course incompatible with his official duty. Therefore, it was not, and, indeed, could not, have been a war commission. It is not necessary, at present, to determine, whether acting under colour of such a commission would be a piratical offence ? Every illegal act, or transgression, committed on the high seas, will not amount to piracy. A capture, although hot piratical, may be illegal, and of such a nature as to induce the court to award restitution.
It has been urged, in argument, that the Ami de la Liberte is the property of the French republic. The assertion is not warranted by, the evidence ; and if it was, would not, perhaps, be of any avail, so as to prevent restitution by the competent authority.The proof is clear and satisfactory, that she was an American vessel, owned by citizens of the United States, and still continues to be so. The evidence in support of her being French property is extremely weak and futile; it makes no impression, it merits no attention. But if the Ami de la Liberte be the property of the French Republic, it might admit of a doubt, whether it would be available, so as to legalise her captures and prevent restoration ; because she was, after the sale (if any took place) to the republic, and before her departure from, and while she remained in, the United States, sitted out as an armed vessel of war ; from whence in such capacity, and commanded by Ballard, an American citizen, she set fail, and made capture of vessels belonging to citizens of the United Netherlands. The United States would, perhaps, be bound, both by the law of nations and an express stipulation in their treaty with the Dutch, to restore such captured vessels, when brought within their jurisdiction, especially if they had not been proceeded upon to condemnation in the Admiralty of France. On this, however, I give no opinion. The United States are neutral in the present war ; they take no part in it; they remain common friends to all the belligerent powers, not favoring the arms of one to the detriment of the others. An exact impartiality must mark their conduct towards the parties at war; for, if they favour one to the injury of the other, it would be a departure from pacific principles, and indicative of an hostile disposition. It would be a fraudulent neutrality. To this rule there is no exception, but what arises from the obligation of antecedent treaties, which ought to be religiously observed. If, therefore, the capture of the Magdalena was effected by Ballard alone, it must be pronounced to be illegal, and of course the decree of restitution is just and proper. This leads us,
II. To consider the capture as having been made by Ballard and Talbot. Talbot commanded the privateer L’Ami de la Point a Pirre. The question is,as the Magdalena struck to and was made prize of by Ballard, and as Talbot, who knew his situation, aided in his equipment, and acted in confederacy with him, afterwards had a fort of joint possession, whether Talbot can detain her as prize by virtue of his French commission ? To support the validity of Talbot’s claim it is contended, that Ballard had no commission or an inadequate one, and therefore his capture was illegal: That it was lawful for Talbot to take possession of the ship to captured, being a Dutch bottom, as the United Netherlands were at open war and enmity with the French republic, and Talbot was a naturalized French citizen, acting under a regular commission from the Governor of Guadaloupe. It has been already observed, that Ballard was a citizen of the United States; that the Ami de la Liberte, of which he had the command, was fitted out and armed as a vessel of war in the United States; that as such she failed from the United States, and cruised against nations at peace and in amity with the said states. These acts were direct and daring violations of the principles of neutrality, and highly criminal by the law of nations. In effecting this state of things, how far was Talbot instrumental and active ? What was his knowledge, his agency, his participation, his conduct in the business ? It appears in evidence, that Talbot expected Ballard at Tybee ; that he waited for him there several days; that he set sail without him, and in a short time returned to his former station. This indicates contrivance and a previous communication of designs. At length Ballard appeared. On his arrival, Talbot put on board the Ami de la Liberte, in Savannah river, and consessedly within the jurisdiction of the United States, four cannon, which he had brought for the purpose. Were these guns furnished by order of the French Consul ? The insinuation is equally unfounded and dishonorable. They also fired a salute, and hailed Sinclair, a citizen of the United States, as an owner. An incident of this kind, at such a moment, has the effect of illumination. Talbot knew Ballard’s situation, and in particular aided in fitting out the Ami de la Liberte by furnishing her with guns. Without this assistance she would not have been in a state for war. An essential part of the outfit, therefore, was provided by Talbot. The equipment being thus completed, the two privateers Went to sea. When on the ocean, they acted in concert; they cruize together, they fought together, they captured together. Talbot knew that Ballard had no commission ; he so states it in his claim: the facts confirm the statement; for, about an hour after Ballard had captured the Magdalena, he came up, and took a joint possession, hoping to cover the capture by his commission, and thus to legalise Ballard’s spoliation. How silly and contemptible is cunning—how vile and debasing is fraud. In furnishing Ballard with guns, in aiding him to arm and outfit, in co-operating with him on the high seas, and using him as the instrument and means of capturing vessels, Talbot assumed a new character, and instead of pursuing his commission acted in opposition to it. If he was a French citizen, duly naturalized, and if, as such, he had a commission, fairly obtained, he was authorized to capture ships belonging to the enemies of the French Republic, but not warranted in deducing the citizens of neutral nations from their duty, and assisting them in committing depredations upon friendly powers. His commission did not authorize him to abet the predatory schemes of an illegal cruiser on the high seas ; and if he undertook to do so, he unquestionably deviated from the path of duty. Talbot was an original trespasser, for he was concerned in the illegal outfit of the Ami de la Liberte. Shall he then reap any benefit from her captures, when brought within the United States ? Besides, it is in evidence, that Ballard took possession first of the Magdalena, and put on board of her a prize-master and some hands ; Talbot, in about an hour, after, came up, and also put on board a prize-matter, and other men. The possession in the first instance was Ballard’s ; he was not ousted of it; they prey was not taken from him; indeed, it was never intended to deprive him of it. So far from it, that it was an artifice to cover the booty. Talbot’s possession was gained by a fraudulent cooperation with Ballard, a citizen of the United States, and was a mere fetch or contrivance in order to secure the capture. Ballard still continued in possession. The Magdalena thus, taken and possessed, was carried into Charleston. Can there be a doubt with respect to restoration ? Stating the case answers the question. It has been said that Ballard had a commission, and acted under it. The point has already been considered, and indeed is not worth debating; the commission, if any, was illegal, and of course the feizures were so. But then what effect has this upon Talbot ? Does it make his case better or worse f The truth is, that Talbot knew that Ballard had no commission, and he also knew the precise case and situation of the Ami de la Liberte ; to whom, she belonged, where sitted out, and for what purpose. Talbot gave Ballard guns within the jurisdiction of the United States, and thus aided in making him an illegal cruizer; he consorted and acted with him, and was a participant in the iniquity and fraud. In short, Ballard took the Magdalena, had the possession of her, and kept it; Talbot was in under Ballard by connivance and fraud, not with a view to oust him of the prize, but to cover and secure it; not with a view to bring him into judgment as a transgressor against the law of nations, but to intercept the stroke of justice and prevent his being punished. If Talbot procured possession of the Magdalena, through the medium of Ballard, a citizen of the United States, and then brought her within the jurisdiction of the said States, would it not be the duty of the competent authority to order her to be restored ? The principle deducible from the law of nation's, is plain;—you shall not make use of our neutral arm, to capture vessels of your enemies, but of our friends. If you do, and bring the captured vessels within our jurisdiction, restitution will be awarded. Both the powers, in the' present instance, though enemies to each other, are friends of the United States ; whole citizens ought to preserve a neutral attitude; and should not assist either party in their hostile operations. But if, as is agreed on all hands, Ballard first, took possession of the Magdalena, and if he continued in possession, and brought her within the jurisdiction of the United States, which I take to be the case, then no question can arise with respect to the legality of restitution. It is an act of justice, resulting from the law of nations, to restore to the friendly power the possession of his vessel, which a citizen of the United States illegally obtained, and to place Foost Fansen, the master of the Magdalena, in his former state, from whence he had been removed by the improper interference, and hostile demeanor of Ballard. Besides, it is right to conduct all cases of this kind, in such a manner, as that the persons guilty of fraud, should not gain by it. Hence the efficacy of the legal principle, that no man shall set up his own fraud or iniquity, as a ground of action or defence. This maxim applies forcibly to the present case, which, in my apprehension, is a fraud upon the principles of neutrality, a fraud upon the law of nations, and an insult, as well as a fraud, against the United States, and the Republic of France.
I am, therefore, of opinion, that the decree of the Circuit Court ought to be affirmed. Being clear on the preceding points, it supersedes the necessity of deciding upon other great questions in the cause ; such as, whether Redick and Talbot were French citizens; whether the bill of sale was colourable and fraudulent; whether Redick, if a French citizen, did not lend his name as a cover ; and whether the property did not continue in Sinclair and Wilson, citizens of the United States.
Iredell, Justice.
In delivering my opinion on the great points arising in this case, I shall divide the consideration of it under the following heads:
1. Whether the District Court had jurisdiction prima facie upon the subject matter of the libel, taking for granted that the allegations in it Were true.
2. Admitting that the court had jurisdiction prima facie, whether William Talbot had stated and supported a case sufficient to entitle him to hold the property as prize, exempt from the jurisdiction and controul of the District Court.
Í. The first enquiry is,
Whether the district Court had jurisdiction prima facie upon the subject matter of the libel, taking for granted that the allegations in it were true.
These allegations in substance are,
That the ship was taken on the high seas, by a schooner called L' Ami de la Liberte, commanded by Edward Ballard, who had no lawful commission, to take her as the property of an enemy of the French Republic, under whose authority the capture was alledged to be made.
That William Talbot, who came up after the surrender, and put some men on board, when; the'prize was in possession of Ballard, had also no lawful commission for the purpose of such a capture, being an American citizen, and his owners American citizens likewise.
That there was fraud and collusion between Talbot and Ballard, both vessels being in fact the property of the same owners, Wilson and Sincliar, who were American citizens.
Such, substantially, are the allegations of the libel, and admitting them to be true, nothing is more, clear than that the capture was unlawful.
But it is objected that this is a question of prize of no prize, and whether the ship was lawfully a prize, or not, is for some court of the French Republic alone to determine, under wholauthority Ballard and Talbot alledge they acted; and it is contended, that the capture in question being of a Dutch ship, and not an American, the United States have no right to decide a dispute between the Dutch and the French, in regard to a capture on the high seas, claimed as lawful by one party, and denied to be such by the other, since such an interposition would be equally a violation of the law of nations, and of the 17th article of the treaty with France.
To this objection, the following answers appear to me to be satisfactory:
1. That it is true, both by the law of nations, and the treaty with France, if a French privateer brings an enemy’s ship into our ports,, which she has taken as prize oh the high seas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumstances of the capture.
But this exemption from enquiry, by our courts of :uftice, in this refpefi, only belongs to a French privateer, lawfully com-miffioned, and, therefore, if a veffel claims that exemption, but does not appear to be duly-entitled to it, it is the éxprefs duty of the court, upon application, to make enquiry, 'whether fin is the vessel fie pretends, to be, lince her title to fuch exemption, depends on that very fact.
Otherwise, any vessel whatever, under a colour of that kind, might capture with impunity, and defy all enquiry, if she kept out of a French port, equally in violation of the law of nations, and insulting to the French Republic, which, from a regard to its own honour and a principle of justice, would undoubtedly disdain all piratical assistance. She might say, now, I trust, with as much truth as dignity, Non tali auxilio, nec Defensoribus if is tempus eget.
2. That such, an enquiry being thus proper to be made, if upon the enquiry it shall appear, that the vessel pretending to be a lawful privateer, is really not such, but uses a colourable commission for the purposes of plunder, she is to be considered by the law of nations, so far at least as a transfer of properly is concerned, or a title to hold it infilled upon, in the same light as having no commission at all.
3. That prima facie all piracies and trespasses committed against the general law of nations, are enquirable, and maybe proceeded against, in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it.
It is expressly held, in an authority quoted I Lex Mercatoria 252. “ That if a Spaniard robs a Frenchman on the high “ feas, their princes being both then in amity with the crown “ of England, and the ship is brought into a port in England, “ the Frenchman may proceed criminaliter against the Spaniard, to punish him, and civiliter, to have restitution of his “vessel.” The authorities referred to are, Selden mare claus. Lib. I chap. 27. Grotius de Jure Belli et Pacis, b. 3. c. 9. f. 16. both books of very high authority.
What is called robbery on the land, is piracy if committed at fea. 3 In ft. 113. 1 Com. Dig. 269. And as every robbery oh land includes a trespass, so does every piracy at fea. 1 Com. Dig. 268. Consequently, if there be an unlawful taking, it may be piracy or trespass according to the circumstances of the case, both being equally unlawful, though one a higher species of offence than the other, which cannot alter the intrinsic illegality of the fact common to both, hut only occasion a greater or less degree of punishment proportioned to the nature of the offence. It is, therefore, no answer to say, in bar of restitution, that no piracy has been committed, and therefore no restitution is to follow,since, if a trespass has been committed, though not a piracy, restitution is equally proper as if the offence had amounted to piracy itself.
4. That by a due consideration of the law of nations, whatever opinions may have prevailed formerly to the contrary, no hostilities of any kind, except in necessary self-defence, can lawfully be practised by one,individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority; it is instituted for national purposes, and directed to national objects ; and each individual on both sides is engaged in it as a member of the society to which he belongs, not from motives of personal malignity and ill will. He is not to fly like a tyger upon bis prey, the moment he sees an individual of his enemy before him. Such savage nations, I believe, obtained formerly. Thank God, more rational ones have succeeded, and a liberal man can frequently fee great integrity and honor on both sides, though different and irreconcileable views of national interest or principles may unfortunately engage two nations in hostility. Even in the case of one enemy against another enemy, therefore, there is no colour of justification for; any offensive hostile act, unless it be authorised by some act of the government giving the public constitutional function to it.
5. That nowithstanding an apparent contrariety of opinions on this subject, it would be easy to shew, upon principle, if not by authority, that such hostility committed without public authority on the high feas, is not merely an offence against the nation of the individual committing the injury, but also against the law of nations, and, of course, cognizable in either countries : But that is not material in the present stage of the enquiry, which affects only the conduct of our own citizens in our own vessels, attacking and taking, under colour of a foreign commission, on the high feas, goods of our friends.
This is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part, as it subsisted either before the act of Congress on the subject, or since that has provided a particular manner of enforcing it,) as well as of the law of nations generally; that I cannot entertain the flighted: doubt, but that upon the case of the libel, prima facie, the District Court had jurisdiction.
2. The next enquiry is,
Whether William Talbot has stated and supported a case sufficient to entitle him to hold the property as prize, exempt from the jurisdiction of the District Court.
This claim is grounded as follows :
1. That at the time of his receiving the commission, and at the time of the capture, he was a real French citizen, and his vessel was French property, viz. the property of Samuel Redick, a French citizen at Point-a-Pitre- in Guadaloupe.
2. That he had a lawful commiflion to cruize from the French Republic.
3. That whether Ballard had a lawful commission or not, he himself was lawfully entitled: 1. To part, if Ballard had a lawful commission, as having been in fight at the time of the capture, and therefore contributing to intimidate the enemy into a surrender upon the common principle. 2. If Ballard had no lawful commission, and is to be considered as a pirate, his capture did not change the property; of course, it remained Dutch, and he, as captain of a French privateer, had a right to feize and retain it.
The first point to be considered is,
Whether Talbot at the time of his receiving the commission, and at the time of the capture, was a French citizen.
This involves the great question as to the right of expatriation, upon which so much has been said in this cause. Perhaps it is not necessary it should be explicitly decided on this occasion; but I shall freely express my sentiments on the subject.
That a man ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first - breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.
The only difference of opinion is, as to the proper manner of executing this right.
Some hold, that it is a natural unalienable right in each individual ; that it is a right upon which no act of legislation can lawfully be exercised, inasmuch as a legislature might impose dangerous restraints upon it; and, of course, it must be left to every man’s will and pleasure, to go off, when, and in what manner, he pleases.
This opinion is deserving of more deference, because it appears to have, the sanction of the Constitution of this State, if not of some other states in the Union.
I must, however, presume to differ from it, for the following reasons:
1. It is not the exercise of a natural right, in which the individual is to be considered as alone concerned. As every man is entitled to claim rights in society, which it is the duty of the society to protect; he, in his turn, is under a solemn obligation to discharge all those duties faithfully, which he owes, as a citizen, to the society of which he is a member, and as a, man to the several members of the society individually with whom he is associated. Therefore, if he has been in the exercise of any public trust, for which he has not fully accounted, he ought not to leave the society until he has accounted for it. If he owes money, he ought not to quit the country, and carry all his property with him, without leave of his creditors. Many other cases might be put, shewing the importance of the public having some hold of him, until he has fairly performed all those duties which remain unperformed, before he can honestly abandon the society forever. But it is said, his ceasing to be a citizen, does not deprive the public, or any individual of it, of remedies in these respects : Yet the right of emigration is aid to carry with it the right of removing his family, and effects. What hold have they of him afterwards ?
2. Some writers on the subject of expatriation say, a man shall not expatriate in a time of war, so as to do a prejudice to his country. But if it be a natural, unalienable, right, upon the footing of mere private will, who can say this shall not be exerciled in time of war, as well as in time of peace, since the individual, Upon that principle, is to think of himfelf Only ? I therefore, think, with one of the gentlemen for the defendant that the principle goes to a {late of war, as well as peace, and it mufir involve a time of the greateft public calamity, as well as the profoundeft tranquillity.
3. The very statement of an exception in time of war, shews that the writers on the law of nations, upon the subject in general, plainly mean, not that it is a right to be always exercised without the leaft restraint of his own will and pleasure, but that it is a reasonable and moral right which every man ought to be allowed to exercise, with no other limitation than such as the public safety or interest requires, to which all private rights ought and must forever give way. And if in any government, principles of patriotism and public good ought to predominate over mere private inclination, surely they ought to do so in a Republic founded on the very balls of equal rights, to be perfectly enjoyed in every instance, where the public good does not require a restraint.
4. In fome inftances, even in time of war, expatriation may fairly be permitted. It ought not then to be. retrained. But who is to permit it ? The Legiflature furely; the conftant guardian of the public intereft, where a new law is to be made, or an old one difpeufed with, If they may take cognizance in One inftance, (as for example, in time of war) becaufe the public fafety may require it, why not in any other inftance, where the public fafety, for fome unknown caufe, may equally require it ? _ Upon the eve of a war, it may be ftill more important to exercife it, as we often fee in cafe of embargoes.
.5. The fuppóíítiori, that the power may be abufed, is. of no importance, if the public good requires its exercife. This fe.ver'Hh jealoufy, is a paflion that can never, be fatisfied. No man denies the propriety of the Legiflature having a taxative power. Suppofe it íhould be ferioufly objidled to, becaufe the Legiflature might tax to the amount of tqf. in the pound ? They have the power, bur does any man fear theexe.rcifeof ic ? A Legiflature mull pofiefs'every power necefiary to the making of laws. When conftrudted as ours is, there is no danger of any material abufe. But a Legiflature mifft be weak to the extremeft verge of folly, to wifli to retain any iban as a citizen, whofe heart and affedtións áre fixed on a foreign country, in preference to his-own. They would naturally wifli to get rid of him as foon as they could, and, therefore, perhaps, the proper precaution would be, to reftrain adts of ■ baniihment, (if fach could be at all permitted) rather than to limit the legifla-tivecontroul over expatriation. But .is there no danger of abufe on the other fide ? Have not all the contentions about, expatriation "in the courts, arifen from a want of the exercife of this very authority ? For, if-the Legiilature had prefcribed a mode, every one would know, whether it had or had not been purfued. and all rights, private as well as public, would be equally guarded; but upon the prefent doctrine, no rights are fecured, but thofe of the expatriator himfelf..
I, therefore, have no doubt, that when-the queftion is in regard to a citizen of any country, whofe conftitution has not prohibited the exercife óf the legiflative power in this inftance, it not, only is a proper inftance in which it may be exercifed, but it is the duty of the Legiilature to make fuch provifion, and for my part, I have always thought thé Virginia afíembly ihew-ed a very judicious foreiight in this particular»
Whether the' Virginia a<ft of expatriation be now in force, is a.queftion fo important, that I would not wiíh unneceilarily to decide it. If it be, I have no doubt that a citizen of that State, cannot expatriate himfelf in any other manner. It feems tnoft probable (but I think not certain) from this record,- that Talbot "was a citizen of Virginia. We are, however, undoubtedly to coniider him as a citizen of' the United States. Admitting he had a right to expatriate himfelf, without any law- pre-fcribing tbe method of his doing fo, we furely muft have feme evidence that he 1 ad done it. There is none, but that he went to the Weft Indies, and took an oath to the French Republic, and became a citizen.there. I do not think that merely taking fuch an oath, and being admitted a citizen there, initfelf, is evidence of a bona fide expatriation, or completely difeharges the obliga-tionshe owes to his own conntry. Had there been any reftric-tions by our own law on his quitting this country, could any a ¿i of a foreign country, operate as a repeal of thefe ? Certainly not, When he goes there, they know nothing of him, perhaps, but from his own reprefentation. He becomes a citizen of the new country, at his peril,- The a£t is complete, if he has legally quitted his own: if not, it is fubbrdinate to the allegiance he originally owed. By allegiance, I mean, that tie by which a'citizen of the United States is bound as a member of the fociety. Did any man fuppofe, when tbe rights of ci-tizenihip were fo freely and honorably Bellowed on the unfortunate Marquis de la Fayette, that that abfolved him, as a fub-je£t or citizen of his own country ? It had only'this effl-ét, that whenever he came into this conntry, and chofe to refide here, he was ipfo fia/rto to be deemed a citizen, without any thing farther. The fame confcqúence, I think, would follow in'refpeS to rights of eifizenihip, conferred by the French Republic, upon fome iiluftjious cbaraclers, in our own, and other countries, if merely intended, as ingeniouily fuggefted at the bar, that upon going to France, and performing the ufual requifites, they ihould be then French' citizens, where is the honour of it:—'Since any man may avail himfelf of‘an indif-criminate indulgence granted by law. Some difagreeable diJe.nmas, may be occafioned by this double citizenfhip, but the principles, as I have Rated them, appear to me to be warranted by law and rea fon, and if any difficulties arife, they fliew more ftrongly the importance of a law, regulating the cxercife of the right in queftion.
His going to the Wejl Indies, and taking an oath of allegiance there, coniidering it in itfelf, is an equivocal act. It might be done, with a view to relinquiih his own country forever. It might be done, with a view to relinquiih it for a time, in order to gain fome temporary benefit by it. If the former, and this was clearly proved, it poffibly might have'the ciFeft contended for. If the latter, it would fliew, that he voluntarily fubm.itted to the émbarraflments of two diftinft allegiances. He muft make them as confiftcnt as he can. By our treaty with Holland, any American citizen, cruifing. upon Dutch fubjefts, as commander of a privateer, under a foreign' commiffion, is to be deemed a pirate. If he left America, for the very purpofe of doing this, and became a French citizen, that'he might have a colour for doing fo, then his taking a French commiffion could not abfolve him from a crime .which he was committing in the very aft of taking it, and of which the French government might not be aware, as they are ’not bound to take notice of any other treaties but their own. If he went, intending to refide there for a-time, and to aóí under a commiffion, which he believed would, for the prefentj juftify him, tho’ this might excufe him from the guilt of piracy, it would not make i'uch a contradi lawful, becaufe, in this cafe, even his intention Was not] to expatriate himfelf forever ; and, confequently, he Hill remained an American citizen, and had no authority to take a commiffion at all. It furely is impoffible for us to fay, he meant a real expatriation, when his conduft prima facie, as much indicates a crime, as any thing elie. If he had fuch an intention before he left this country, why not mention it If a citizen of Virginia, andtheir-aft of expatriation was not in force, yet, furely, it preferibed as good a method of eftefting'it as any other, andhisnot purfuingthis method, (if he really meant an expatriation) can be accounted for in no other manner, but that he was confcious, the vsflel he was fitting out, was for the purjiofe of cruifing, and would havebeer.ftopt by the government, had his delign of expatriation fo plainly evinced it.. •
I therefore, muft fay, there is no evidence to fatisfy me, that, he ceafe'd to be an American citizen, fo as to be abfolved from the duties he owed' to his own country;. and, among others, that duty of not cruifing againft the Dutch, in violation of the law of nations, generally, andcf the treaty , with Flolland, in particular.
My obfervations, as to Talbot, will, in a great meafure, apply to Redick, who appears to have been a citizen of Virginia. There is no evidence to fatisfy me, that he ceafed to be an American ziix’Ltn, and became a French citizen, afcfolvcd from the duty he owed, as a citizen, to his own country. There is nothing to ihaw this, but a refidence of no long duration, in a French Ifland, his taking an oath to the French Republic, and being admitted a French citizen, which, for the reafons I have given, I do not think fufficient.
In addition to my other obfervations, I may add, how is it poffible, upon this principle, for the public to know in.what lit nation they Hand, as to any one of thefeperfons? Itisnotimpoffible, (I believe inftances indeed have already happened of it) that an American citizen may go to fome of the dominions of the French, become a French citizen for a time, enjoy all the benefits of fuch, and afterwards, return to his .own country, and claim, and enjoy, all the privileges of a citizen there, without the leaf!: poffibility of the public knowing, otherwife than from accident, whether he has become a citizen of another government, or not. S.uppofe one of them was to infift on hplding an eftate in land, devifed to him after his new citizen&ip, how could it be proved he was an alien ?
Whether, therefore, the property of the privateer, was in-Redick, or in Wilfon and Sinclair, I think it was equally Ame-., rican property, tho’ I cenfefs, the weight of the evidence, im preffes.me ftrongly with a belief, that the property was Wilfon and Sinclair1 s. ■ And, in regard to the objedtion, that nothing they could fay or do, or Talbot either, could affect Redick, I think, as Talbot appears as the agent of Redick, of whom, we know nothing but through him, his declarations are. to be regarded as Redick's own, and any declarations of Wilfon or Sinclair, in his prefence, and any of the conduit: of either of them, fan&ioned by him, muft have the fame effeit, as if the declarations had been made in the prefence of Redick, and fuch conduit fanitioned by himfelf.
I confider the proof of the commiffion fufficient, but deny its operation, as I confider the veffel to have been an American vef-fel, owned by an American or Americans, and with an American Captain on board.
I now proceed to enquire into the confequences of Bailar As capture, and Talbot's co-operation with him, tho’ perhaps, up-en my principles, it is'not absolutely neceffary.
I. Ballard’s capture, I think, is clearly infupportable. Admitting him to have been expatriated, (which, if the Virginia Jaw was in force, I think he was) he did not become a French citizen at all. Only one of the crew was a Frenchman. I think, all the reft were proved to be Americans, or BngUJh. She -was fitted out in the United States. The commiffion, if good at all, was of a temporary and fecret nature, arid feems to have been confined toa fpecial purpnfe, to be executed within the United States. She certainly bad no authority to cruize, that being fpecified in every commiffion of that nature. Whoever were her owners, fire does not appear to have been French property. On the contrary, there is the higheit poffibility, that Talbot’s and. Ballard’s veffels had the fame owners. So con-fcious was hs of the illegality of his conduct,-that he even preferred no claim for the captured property. •
• 2. Talbot (confidering hirafeif as mafter-of a lawful priya-teei) claims .upon two grounds:. 1. Upon fuppofition of Ballard's being a lawful commiffi'on,. he- claim's, as being in fight at the time of the capture. To this, it' isfufficient to fay, that it was not a lawful commiffion. % If Ballard had no lawful commiffion, he claims upon his independent right, alledging, that if Ballard had no lawful commiffion, the property was not changed to Ballard, and therefore he had a right to take.
This claim (if Talbot’s was a lawful privateer) would undoubtedly be good, if he was not a confederate with Ballard. But it is clear that he was, that he cruized before and after, in company wiih him, that he put guns on board of- his veftel ; and there is the ftrongeft reafon to believe, that they both belonged to the fame owners. It is true, if Talbot had come up, ignorant of Ballard’s authority, and inadvertently put men on board the prize in conjunction with Ballard, fuppofing he had-a lawful commiffion, when in reality he had not, it might with fome reafon be' contended, that Talbot fiiould. hold the prize. But, wilful ignorance, is never excufeable ; when there is time to enquire, enquiry ought to be made. .There is not, however, the leaft reafon for fuppofing any ignorance in the cafe. He abetted Ballard’s authority, fuch as it. was. He acted in fupport of it, not in oppofition to it. It does not appear that he ever quéftioned it, until after his arrival in Charlejton. It was, therefore, a mere after-thcüght. A man having a com- . million, is authorized, but not compelled, to exercife it His will muft concur to make a capture under it. It does not appear, that he relied, at fea, upon his own force, but upon Ballard’s; at leaft, in this inftancc, upon his own and Ballard’s,' in conjunction1. A man having a lawful commiffion, isautho-rifecl to cruize himfelf, and to cruize in company with others, having lawful authority. It docs not authoriie him to afibciate with pirates, or any unlawful depredators, on the high feas. If he does fo, he departs from his commiffion, a (Turnes a new cha-rafter,’ which that docs not author!fc, .and rifques all the con-fequences oí it. It is/impoffible that Ballard pan be guilty of-a crime, and Talbot, who aflbciated with him, in the wilful commiiiion of it, can be wholly innocent of it. A man can be guilty of no crime, in obeying a lawful commiifion. He, therefore, in this inftance, if guilty of a crime, mull be conft-dered altogether detached from a rightful authority, which he abandoned, in fearch of the profit of an illegal adventure. If, at fea, he ailed in fupport of Ballard’s claim, how can he claim now, on the principle of that being infupportahle ? At lea, was the place for him to make his option. He has no right, after the prize is brought into port, to fay—“ I made a “bad option there: I fupported Ballard’s claim, whereas! “ ought to have oppofed it, and Hood upon my own. I will “ 72ow take this Dutch J,hip as a prize, by my own authority.” For fuch, in efFedl, 1 take to be the fubitance of any claim, fuggefted after his arrival in port.
Í therefore think, upon this ground, even admitting, that Talbot’s was a rightful privateer, his claim is iiifupportable.
Wilson, Jujlice.
As I decided this caufe in the Circuit Court, it gives me pleafure to be relieved from the neceifity of giving any opinion on the appeal, by the unanimity of fentnnent that prevails among rhe judges.
Cushing, Jujlice.
The fails in this cafe, fo fat as they appear to me to be eiibntial for forming an opinion, may be reduced to a very narrow ccmpafs, Ballard, the commander of a veil'd, -which was illegally fitted-out in the United States, cruizes in company with Talbot, who alledges that he is a French citizen, and produces a French commiifion. Ballard captures the Magdalena, a Dutch p: ize; then Talbot joins him ; and both, having put prize-maírers on board, bring the prize into the harbour of Charlejlon. The questions nrifing ■ on this ftatement are, limply, whether the capture, under fuch ciicumftances, is a violation of ohr treaty with Holland ? And whether it is fuch a cafe of prize, at the courts of the United Stales can take cognizance of, conhilently with the treaty between America and France? Now, the whole traniadtion at Gaitclaloupc, as well as here, prefents itfelf to my mind as fraudulent and collufive. But even fuppofing that hlalbot was, bona fide, a French citizen, the other circumftanccs-of the cafe are iufficient to render the capture void. It was, in truth, a capture by Ballard, who had no authority, or colour of authority, for his condudl. He was an Aynerican citizen; he had never left the United'States ; his veil'd was owned by American citizens; and the commiiiion, which he held by afiignment, was granted by a French admiral, within the- United States, to another-perlón, for a particular purpofe, but not for the pttr-poie of capture. Then, ihall not the property, which he has thus taken-from-a nation at peace with'the United States, and brought within our jurifdi&ion, be reftored to its owners ? Every principle of juftice, law and policy, unite in decreeing the affirmative; and there is no poiitive compadt with any power to prevent it.
On the important right of expatriation; I do not think it ne-ceiTa.ry to give an opinion; but the.docftrine mentioned by Hci-n-eccius, feems to furnifh a reafonable and fatisfaflorv rule. The adf of expatriation ihould be buna fide, and maniídíced, at leaft, by the emigrant’s aifu'al removal, with his family and effedfs, into another country. This, however, forms no part of the ground, on which I think the decree of the Circuit Court ought to be affirmed.
Rutledge, Chief JnJlice.
The merits of the caufe are fu obvious, that I do not conceive there is much difficulty in pronouncing a fair and prompt deciiion, for affirming the decree of the Circuit Court.
The dodfrine of expatriation is certainly of great magnitude; but it is not necefiary to give an opinion upon it, in the pre-fent caufe, there being no proof, that Captain Talbot's admif-iion as a citizen of the French Republic, was with a view to relinquifh his native country; and a man may, at the fame time, enjoy the rights of citizenihip under two governments.
It appears, upon the whole, that Ballard's veil'd was illegally fitted out in the United States; and the weight of evidence fa&isfies my mind, that Talbot's veil'd, which was originally American property, continued fo at the time of the capture, notwithftanding all the fraudulent attempts to give it a different complexion. The capture, therefore, was a violation of the law of nations, and of the treaty with Holland. The court has a,clear jurifdidion of the caufe, upon the exprefs authority of Pelacbes's Cafe. q. Iijl. And every motive of good faith and juftice muft induce us to concur with the Cir-cit Court, in awarding reiiitution.
The Decree of the Circuit Court affirmed.
The Counfel for the Appellees, then moved the court to ailefs additional damages, which was oppofed by Dallas, for the Appellant; and, after argument, the following order was made:
By the court:
Ordered, that the decree of the Circuit Court of South Carolina diftriéf, pronounced on the 5th day of November, in the year of our Lord one thoufand feven hundred and ninety-four, affinning the decree of the Diftrici Com:: of the fame diftridt, pronounced on the fixth day of Angttjl, in the year of our Lord one thoufand feven hundred and ninelyty-four, be in all its parts eftabliíhed and affi -mcd. And it is further confidered, ordered, adjudged and decreed, that the laid William Talbot, the Plaintiff in do to the fa id Janfen, the Defendant in error, in addition to the fum of one thoufand feven hundred and fifty-five dollars fifty-three cents, for demurrage and' intereft, and eighty-two dollars for coils, in the decree of the faid Circut Court mentioned, demurrage for the detention and delay, of the faid brigantine Prouw Chrif-tina Magdalena, at the rate of nine dollars and thirty-three cents, lawful money of the United States, per diem, to be accounted from the fifth day of November laft pail, till the.fixth day of June laft, the day of the actual fale of the faid brigantine, under the interlocutory order of this court, of the third day of March laft pail, to wit, for two hundred and thirteen days, a fum of nineteen hundred and eighty-fev.en dollar* and twenty-nine cents; and alfo intereft: at the rate of feven per centum per annum, for two hundred and ninety days, on the fum of fifty-one thoufand eight hundred and forty five dollars, being the amount of the falesof the cargo ofthe faid brigantine heretofore fold, by order and permiflion of the faid' Diftridt Court, and making a fum of two thoufand eight hundred and eighty-three dollars and forty-two cents; and alfo a like fum of feven per centum per annum on the amount of fales of the faid brigantine Vrouw Chriftina Magdalena, under the order of this court, that is to fay, intereft for feventy-feven days, on the fum of eighteen hundred and twenty dollars, from the faid fixth day of June laft, making the fum of twenty-fix dollars and eighty-feven cents, the whole of which inteieft to be accounted to this day, and making together the fum of two thou-fand nine hundred arid ten dollars twenty-nine cents, lawful money of the United States; and which faid intereft and de-murrage, make together the fum of four thoufand eight hundred and ninety-feven dollars fifty-eight-cents, in addition to and exclufive of the demurrage intereft and coils adjudged in the faid Circuit Court of the United States, for South Carolina diftridl; alfo nine-one dollars and ninety-three cents, for his cods and charges : and that the faid Joojl Janfen have execution of this judgment, and decree by fpecial mandate to the faid Circuit; Court, and procefs agreeable to the a£l of the Congrels of the United- States, in that cafe made and provided