Talbot v. Janson

SUPREME COURT of the United States.

1795.

TALBOT, Appellant, verfus JANsoN, Appellee, et al.

HIS was a W~rit of Error, in the, nature of an Appeal, from the Circuit Couer for the Difiri& of Soith Carolina;

and the following circumftances appeared upon the pleadings :_ A Libel was filed againft Edward Ballard, Captain of an arm.: ed veffel, called L'A mi de la Liberte, on the Admiralty fide of the Diftri&t Court of South Carolina, in June, 1794, by 7ooi Janfon, late mafter of the Brigantine Magdalena (then lying at Ghar4'lon, within the j1urifdifion of the Court) in which it was fet forth, that the Brigantine and her cargo were the pro- perty of Citizens of the United Netherlands, a nation at peace, and in treaty with the United States of America ; that the Bri- gantine failed from Curacoa, on a voyage to Amlerdam ; but, on the 16th of May, 1794, being about fifteen miles N. W. of 'the Havanna, on the wet fide of Cuba, fhe was taken poffeflion of by L'Ami de la Liberte ; that on the next day the Libellant met another armed fchooner Falled L'Amide la Point a Petre, commanded by Captain JXnI. Talbot, on board of which the mate and four of the crew of the Brigantine lagdalena were placed ; and that the two fchooners, together with the Brigain- tine, failed for Charlefoon, where the laft arrived on the 25th of May, 1794, The Libellant proceeds to aver, that Ed hard Ballard, was a native of Virginia, a citizen and inhabitant of the United States, and a Branch Pilot. of the 6hcfapeake and Port Hampton ; that E'Ami de la Liberte is an American built veffel, owned by citizens of the United States (particularly by 7dhn Sinclair, Solomon JJ/ilfon, &c.) and was armed and equip- ped in Che/apeake -Bay and Charlon,".by kdward Ballard, and others, contrary to the Prefident'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 commiflion to capture, Dutch veffels, or property; that the capture was in dire& violation of the , 3 th and T9 th articles of the Treaty be- tween

1795.

CASEs ruled and adjudged in the

tween America and Holland; and that a capture without a commiffion, or with a void commifflon, or as pirates, could not diveft the property of the original, bonafide, owners, in whofe' favour, therefore, a decree of reftitution was prayed.

On the 27 th of June 1794, William Talhot, filed a claim in this caufe ; and, thereupon fet forth, that he was admitted a Citi- zen of the French Republic, on the 28th December 1793, by the Municipality of Point a Petre, at Guadaloupe ; and on the 2nd of January following, received a commiffion from the Gov- ernor of that ifland, as Captain of the fchooner L'A.ni de la Point a Petre, which was owned by Samuel Redick, a French citizen, refident at Point a Petre, fince the 31ff Dec. 1793, and had been armed and equipped at that place, as a privateer, under the authority of the French Republic. That the claim- ant being on a cruife, boarded and took the Brigantine, being the property of fUbje6Is 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 Liberteon board the Brigantine, yet as they produced no commiflion, or authority, for takiug poffef, sion of her, the Claimant fent her as his prize into Cbarl/on, having put on board feveral of his crew to take charge of her, and particularly 7ohn Remfen, in the character of Prize Mafter, to whom he gave a copy, of his commiflion. The Claimant, therfore, prayed, that the Libel fhould be difmiffed with Coffs.

On the 3 d of Nuly I794, the libellant filed a Replication, in which he fet forth, that JVm. Talbot, the claimant, is an Ameri- can citizen, a native and inhabitant of Virginia; that his veffel (formerly called "the Fairplay") is American built, was armed and equipped in Virginia, and is owned in part, or in whole, by John Sinclair, and Solomon fJ'ifon, American citizens, and Sam- uel Redick, alfo an American citizen, though fraudulently remo- ved to Point a Patre, for the purpofe of privateering. That

7. Sinclair had received large fums as his fhare of prizes, and

Captain Tal/bot had remitted to the other owners, their refpec. tive fhares. That there is a collufionI between Captains Ta-l- hot and Ballard, whofe veffels are owned by the fame perfons, and failed in 'company from Charleflon, on the 5th of May,

1794

On the 5 th July, 1794, William Talbot added a duplicate in which he protefted againfl the jurifdiaion of to his claim, the court; infifted that even if there had been a collufion be- tween him and Caplt. Zalard, it was lawful as a ftratagem of war ; and averred that 7ohn Sinclair was not the owner of the privateer, that Samuel Redick was role owner, and that he ne- yer had paid any prize money to John Sinclair.

On the 6th of AVugul, 1794, the DisITRIcT COURT deci- dcd iii favor of its jurifdiion, difiniffed the claim ofCaptain

1795.

SUPREME COURT of the United State'.

Talbot, and decreed reflitution of the brigantine and her cargo to the libellant for the ufe of the Dutch owners. An appeal was inflituted, but in Olober Term, 1794, THr CIRCUIT COURT affirmed the decree of the Diftri&t Court; and allowed two guineas per d/im for damages, and 7 per cent. on the pro- ceeds of the cargo (which had been fold under an order of the court) from the 6th of Auguil 1794, with 82 dollars coils. Up- on this affirmance of the decree of the Diftri& Court, the It may be proper to add, prefent writ of error was founded. that Captain Ballardhad been indicted in the diftricL of Charlef- ton on a charge of piracy ; but was acquitted agreeably to the direjions given to the jury by Mr. yu/ice WILSON, who pre- fided at the trial.

From the material facts, which appeared upon the depofi, tions and exhibits accompanying the record, the following cir-

Ift. In relation to the citizenflip' of Captain Talot and the property of the vefel which he commanded, it appeared, that he was a native of Firginia, that he failed from America in the clofe of November 1793, and arrived foon afterwards at Point- a-Petre, in the ifland of Gaudaloupe; that having taken an oath of allegiance to the French Republic, he was there natu- ralized by the municipality as a French citizen, on the z8th of December ;1793 and that on the 2d of Yanuary, 1794, autho- rity was given by the Governor of Gaudaloupe toSamuel Redick, to fit out the fchooner, L'Ami de la Point-a-Petre, under Cap- tain 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 7ohn Sinclair, and Solomon flYi/fon, American citizens; but ihe was carried to Point-a-Petre, by Captain Talbot, and there, on the 31ff December, 1793, by virtue of a power of attorney from Sinclair & J4Vilfon, dated the 2ath of November, 1793, livres, as the bill of fale fet forth, to S.

he fold her for 26,4o Redick, who was a native of the United States, but had, alfo, b2en naturalized, (after an occafional refidence for fome time) as a citizen of the French Republic, on the fame 28th of De- sember, 1793. The bill of fale, alfo, ftated that certain cannon and ammunition on board the veffel were included in the fale.

The fchooner, commanded by Captain Talbot, failed immedi- ately after this tranfaaEtion, on a cruize, and had taken feveral prizes previously to the capture of the Magdalena. There was tome flight evidence, alfo, to fanaion an allegation, that of thefe prizes, taken fubfequent to the fale of the veffel to .Redick, a part of the proceeds had been paid by Talbot to the original owners, Sinclair & Wifon.

2d. In relation to the citizenJhip of Captain Ballard, and the property

t36 CASES ruled and adjudged in the

1795. property of the ve/felwhich he commanded, it appeared, that he was a native of Virginia; but that in the court of Ifie of W'ight county, of 1pril Term, 1794, he had renounced, upon record, his allegiance to that State, and to the United States, agreeably to the provifions of a law of Virginia ;* though previoufly to the capture of the Magdalena he had not been naturalized in, (nor, indeed, had he vifited) any other country. L'ami de la Liberte had been employed, but not armed, by the French Ad- miral, fJan/Iable, then lying With a fleet in the Chefapcake ; and on the 13th Germinal, 1794, ( 1794,) he had given Sinclair a general commiflion to command her, as an advice, or packet boat. This commiffion, however, was affigned by indorfement from Sinclair to Capt. Ballard, the affignment was recognized by the French Conful at Charlefon, on the- ) following; and a copy iith of Floreal (the of it had been certified and delivered by Capt. Ballard to the prize mafterof one of his prizes. There was full proof that L'zlmi de la Liberte had .recciv'ed fotne guns friom L',Imi de la Point-a-Petre, when they firf./met, by appointment, in Sa- vannah river, ard that fhe had been fitpplied with ammunition, &c. within the jurifdition of the Ulited States.

It did not appear, that fhe had gone into any other than an American port, though the had made repeated cruizes, before the cap- ture of the Magdalena; and there were ftrong circumitances to fhew, that the was ftill owned by Sinclair, though fhe had been employed by Admiral Panflable.

of

3 d. In relation to the concert of the two fchooners, and the capture of the .Magdalena, it appeared, that. before Capt. Bal- lard's veffel was fit for fea, it had been generally reported, and believed, and there was fome evidence that Sinclair had declared, that fhe was deftined as a concert, to cruize with Capt. Tal- bot ; that Capt. 7albot had received a letter from Sinclair, di- refing him to proceed to Savannah river, and there wait for Capt. ,Ballard, in whofe veffel Sinclair meant to fail; that, ac- cordinZly, fomre days afterwards Capt. Ballard's veffel hove in fight off Savannah, when Capt. "Ialoot faid, " there is our owrer, let us give him three cheers ;" that both veffels went to C Whenfoeverany citizen of this fhal , by deed in writing, under his hand and ftal, executed in the pefence of, zand fubf'cribed by,

14efles, atd by them, or two of them proved in the Geneal Court, i' any Dilrict Court, or the court of the County or Corporation where lie retides, or by open verhal declaratlon uiade in either of the faid courts, " to be by them entercd of."ecord, declare that lie relinquiflses the ela- "racter of a citizen, and lhall depart out of this Commonwealth, fuch perfun thall, from the time of' his d-parture, be confidered as having excreifed his right of expatriation, and fhall thenceforth be deemed no

The words of the law are thefe CCCommonwealth, " cihizcs."

.'a2d 23d Dec. 1 7 2.

1795, SUPlt EM t COURT of the United States.

to Tybee Bar, and failed more than a mile above the light boufe, where four cannon and rome fwivels were taken fron on board of Capt. Talbot's veffel, and mounted on board L'.Ami de la Liberte ; that Sinclair left the veffels in the river, and they foon after failed together, as concerts upon a cruize ; and that, ac- cordingly, before the capture of the Magdalena, they had jointly taken feveral prizes, and, particularly, the Greenock, the 15th of May, only two which was taken by them on days before the capture of the Magdalena, and the Fortune It der Zee, which was taken the very day after her captuIre. appeared, that the ZMagdalena was firfi taken poffeffion of by Capt. Ballard, who left a part of his crew on board of her; but Capt. Taibot was then in fight, and, coming up in about an hour afterwards, he, alfo, took poffeffion of the brigantine, and placed a prize mafter and rome of his men on board. The two privateers continued together fot feveral days, making fignals occafionally to each other; and, finally, Capt. Ballard alone accompanied the prize into Charleton.

The caufe was argued by Ingerfoll, Dallas and Du Punceau, for the Appellant; and by E. 'lilghman, Lewis and Reed (of South..Carolina) for the Appellee.

On thefaa7s the controverfy was--.Whether the two fchoo- ners were, or were not, owned by Ajnerican citizens? and were, or were not, illegally outfitted in the United States? The queftion 'of ownerfbip turned upon the fairnefs and reality of the fale 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 purchafed and commirlioned by Admiral Vanflable for the fervice of the French Republic: And the queflion of illegal outfit, being conceded as to Captain Ballard's veflel, depended. as to Captain Talbot's vefiel, upon the circumftances, which have been recapitulated. On the law, the following pofitions

were taken in favour of the Appellant*.

Before the principal argument commenced, the two following points

cate of the colle&or of the cuftoms of the port of Char/yon, Piating, that it appeared by his official bookq, that the duties on the cargo of the Mag- dalena, had been paid by the Appellee. But it was objeded, for the Ap- pellant, that the Golle&or'. certificate could not be admitted to prove the faa ; the entry itfelffrorn the record, muft be exemplified. Befides, the Colleetor in not an officer appointed to certify a record ; and as a witnefs, the oppofite party fhould have had an opportunity to crofs ex- therefore, of any queftion, whether lew evi- amine him. hidependent, the certificate is inad- dence can be received on an appeal ii this coutt miffible.

TuE COUjRr rejeed the certificate, on the general ground ; and Wi- f;oice, added,

that he thought, atall events, it was premature to so, offer the evidence in this Rage of the caufe. The motion was renewed after

VoL. III.

138

CASEs ruled and adjudged in the i1795;

of the caufe, becaufe the captftreof the Magdalena as priz', and carrying her in-for adjudication, were a&s performed un-

der the authority of the French Republic; the fubjea of the capture- is the property of an enemy of the French Republic ; , and, upon general principles, as well as by pofitive cOmpa the captor had a right 'to bring the prize into an American port. The commiffion of Captain Talbot is granted by a re- gular organ of the government of France, and if France re- cognifes him as a citizen, (though Anerica may have a right in the abftraa, to controvert with France as a matter of ffate, the af of expatriation) no neutral power can contradiH the faft forthe purpofe of trying the validity of the prizes of the Republic by a teft, which is t1ri&ly municipal in every coun- i Coin. Dig. 269. The try, in fubftance, form, and operation. courts of a neutral country may undertake to determine quef- tions of piracy; or queftions of reftitution, where (as in the' cafe of Glafs et alverfius the Betfey, ant. p. 6.) the proper! y of its own citizens, or of the citizens of another neutral nation, has been wrongfully feized, and brought within its jurifili&ion ; or queftions arifing from a violation of the neutral jurifdiction of the country, as in the cafe of the Grange, which was cap- turcd in the bay of Delaware ; but no neutral power can deter- mine a queftion of prize, upon a capture on the high feas by a belligerent power from his enremy. 4 InJ. I54. 2 R. 3fol. 2.

1. T. 17. 2 Wffood. 454. Lee. 211. Sir L. 9enk.

Bynk.

714. T~hus, there is no jus pofliminiam in a neutral port;

Pratt. b. 3. c. 14.]. 208. p. 84. and inierica, as a neutral pow- er, cannot award reltitution in this cafe, uilefs two things are ift, that the Plaintiff is in amity with America, aid efrablified, 2d, that Fy-ance is in amity with Holland. 4 f1J?. 154. Befides, France, by the I 7 ch article of the treaty, has a right to bring into, and ca:-ry from, an American port, all the prizes that he takes from her enemies. That the Dutch owners of the veffel were enemies of France is notorious ; but, frill, the veffcl muff be

.p.

afer the conrt had affirmcd the decree of the court bclow,'but with no greater fuccef-.

It. It was ohjeted by Dallas, for the Appellant, that the record was not tranfmitted, agreeably to the directious of the judicial aet, the 19th fection providing, that " it lhali be the duty of Circuit Courts, in cauifes in equty and of admiralty anti tariith'ne jisrifiction,'to caufe thefacts, on vhicl they found titeir fentence, or decree, fully to appear upon the record, &c." which lad not been "onner. It is true, that the pleadings, ex iiihs, and fentetices are certified by the clerk, not by thejtdges ; and Reed, anfwer- the e may have been oral teiluinony in the inferior courts. ed, Ihat every thing that had appeared below, now appeared here, un- de :i,

feal of"the Circuit Court.

After fome difcuffion, however, the defire of the parties to obtain a de- iiion on tl.e merits, prevailed, and the ob.jection was waved. T'he point hasbeer fince argued and decided, in the cafe ofi"ifcatlet alv.Dauc/ypjqo.

SUPREME COURT 'of the United States.

139

the thing mufl be the fame in eff'e

be a prize, according to the law of nations, excluding captures 1795. within a nuctral boundary, &c. That queftion, 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 of the country of the captors; and to examine the right of the Frenc-h Republic,to iffue a cominiflion within her own domi- nions, to a perfon recognized and claimed by her as a citizen", is a direc attack i4pon the fovereignty and independence of France.

It is urged, however, that Capt. Talbot's veffel was, in fad, an American privateer, illegally fitted out in an American port; the fads do not fupport either branch of the allegation:; but even in that point of view, if there wvasa commilfion from the French Republic,

and fince pffling the a& of the th of Yune '794, (3 Fol. p. 8g.) there is a provifion for punifhing illegal outfi-ts ; but not for re- flitution of their prizes, taken under a foreign commiflion, by foreign fubjeds. Lpon a capture under a cornrnimiion, to a French citizen, indeed, whether he is a native citizen or natural- ized, , to foreign neutral powers. Every writer fupports this opinion, where the prize is carried infra prefidia; and the American ports are infraprefi. alia (a place of afylum and fafety) for French prizes, by virtue of the treaty. But even if the commiflion had been given to an American citizen, it would have been confifFent with the ufage of nations ;--every nation, (for inflance, Ruffia and Engla;nd) employing foreign officers and feamen in their privateers and {hips .of war; and Xmerica h3erfelf. it will be remembered, em- ployed La Fayette, and a train of French officers, previous to her alliance with France. See 13 Geo . 2. c 3. f I. 17 vol.

Stat. at Large 358. Lex AWcr. 318. Citizenthip defao, is enough for the objed contempiated ; and Englandprovides that flhe herfelf may navigate her pri vatcer:Nwith three fourths fo, reign feamen. ii. That Samul Redick and Captain Talbot had expatriated themfelves, and become French citizens; fo that the former might lawfully own, and the latter might lawfully command,

longing to the enemies of France. The right of expatriation is antecedent and fuperior to thelavw of fociety.

It is implied, likewifc, in the nature and obje&L of the focial compadf, which was formed to fhield the weaknefs, and to fupply the wants of individuals-to proted the acquifitions of human indufm ry, and to promote the means of hunan hasppinefs. Whenever theft purpofes fail, either the whole lociety is dflfolved, or the fuf- fering individuals are permitted. to withdraw fcom it. There are two memorable inftances of.the expatriation of entire na- tions (independent of the general cou fe of the patriarchial, or paftoral

13 Geo. 2 c. 3.

140

CASES ruled and adjudged in the SWhen In

r795. paliroral life) the one in ancient, and the other in modern ftory. 'the Perfians approached Athens, the whole Athenian nation embarked in the fleet of Themifocles, and left Attica, for a time, in poffeflion of the Perfians. Plut. in vit. Themrnft. the year 1771, a Trav. of dnachar. i vol. p. 268. whole nation of Tartars, called " Tourgouths," making 50,000 families, or 3oo,ooo fouls, emigrated from the banks of the 1Jolga, in Ri.ia, and, after a progrefs of inconceivable diffi- culty, fettled in the dominions of the Emperor of China, who hofpitably received them, and erecdted a monument on the fpot, to commemorate the event. Col, /fag. for Feb. 1788. But the abftra& right of individuals to withdraw from the fociety is recognized by an uncommon of which they are members, coincidence of opinion ;-by every writer, ancient and mo- dern ; by the civilian, as wdl 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 reff, and Providence our guide."

a Bynk. i25. Wickefort. b. I. c. 2.p. 116. Grot. b. 2. 5.f 24. . Whick. b. i. f 1. par. 2. 3. Dig. de cap. et poft. Law. 12.f P 244, Puf. b. 8. 1- c. 1.1 3. p. 862. I Fred. Code. 34. 5- 2 vol. io. T Gill. IIiJ. Greece, With this law, however, human inftitutions have often been at variance; and no inflitutions 'more than the feudalfyjemi, which made the tyranny bf arms, to the foil on which they the bafis of fociety ; chained men and converted the bulk of mankind into the vil- were born leins, or flaves of a lord, or fuperior. From thefeudalfvlem, fprung the law of allegiance i which purfuing the nature of its origin, refs on lands ; for, when lands were all held of the Crown, then the oath of allegi,'nce became appropriate" [t was the tenure of the tenant, or vaffal, Blac. Coan. 366. The oath of fealty, and the ancient oath of allegiance, were, alr'oft the fame; both refting on lands j both defignating thV perfon to whom firvice fhould be rendered; though the one makes an exception as to the fiperior lord, while the other is an ohli(4a.

2 BIl. Com. 53 Pal 140, tion of fidelity againfi all men.

Service, therefore, was alfo an infeparable concomitant offeal ty, as well as of allegiance. The oath of fealty could not be violated without lofs of lands; and as all lands were held me-, diately, or immediately, of the flvereign, a violation of the oath of allegiance, was, in fa&, a voluntary fubmifflon to a hate of outlawry, Hence arofe the do6lrine of perpetual and •univerfal allegiance, When, however, the light of reafon was fhed upon the hunan mind, the Intercourfe of man became more general and more liberal the military was gradually changed for the commercial ftate ; and the laws were found a- qgttcr protc1ion' for perfons gnd property,

than arms, But evI SUPREME CO'URT of the United States.

to

even while the praa"idal adminiftration of government was thus f795. reformed, forne portion of the ancient theory was preferved ; and, L.-.. am ing other things,the do6trine of perpetual allegiance remained, with the fiditious tenure of all lanas from the Crown to fupport it. Yet, it is to be renembered, that whether in its real ori- gin, or in its artificial ftate, allegiance, as well as fealty, refts upon lands, and it is due to perfons. Not fo, with rcfpcd itizenjhip, which has arifen from the diftblu- tion of the feudal fyftem; and is a fubftitute for allegiance, correfponding with the new order of things. Allegiance and citizenfhip, differ, -indeed, in alnmoff every chara-eriftic. Ci- tizenfhip is the efle& of compa&L; allegiance is the offspring of power and neceffity. Citizenfhip is a political tie; allegiance is a territorial tenure. Citizenflip is' the charter of equality; allegiance is a badge of inferiority. Citizenfhip is coaftitu- tional; allegiance is perfonal. Citizenfhip is freedom; alle- giance is fervitude. Citizenfhip is communicable; allegiance is repulfive, Citizenfhip may be relinquifhed ; allegiance is perpetual. With fuch effential differences, the dodrine of al- legiance is inapplicable to a fyffem of citizenfhip; which it can neither ferve to controul, nor to elucidate. And yet,'even among the nations, in which the law of allegiance is the moft firmly eftablifled, the moft pertinacioufly enforced, there are lriking deviations that demonffrate the inviricible power of truth, and the homage, which, under every modification of go- vernment, mufl be paid to the inherent rights of man. In Ru'f- fia, the volunteers who fupply the fleet with officers, or lite- rary inflitutions with profeffors, are naturalized.

In Poland, an American citizen has been made Chanc-1or to the Crown.

In France, Mr. Sartine, who was Minifter of Marine, and Mr.

Nccker, who was Minifter of Finances, were adopted, not na- tive, fubjecdts. In England, two years fervice in the navy, i/fo facdo, endows an alien with all the rights of a native. There are tacit acknowledgments of the right of expatriation, velled in the individuals; for, though they are infiances of adopting, not of difcharging, fubjeffs; yet, if Great Britain would (ex gratia) prote6t a Ruflan naturalized by fervice, in her fleet, it is obvious that flhe cannot do fowithout recognizing his right of expatriation to be fuperior to the Emprefs's right of alle- giance. But it is not only in a negative way, that thefe devi- ations in fupport of the general right appear. The doarine is, that allegiance cannot be due to two fovereigns; and taking an oath of allegiance to a new, is the firongeft evidence of with- drawing allegiance from a previous, fovereign. Thus, Louis

XIV. received his own quondam fubjecls, the two Fidlers, as

Ambaffadors. Dr. Story, an Englifhman, was feni to England as the minifler of Spein. And in many nations the conditions . n

CASES ruled and adjudged in the Independent, however, of thefe

1795, on which an expatriation may.be affe&ed (fuch as paying a tax, Y_1or leaving a portion of property behind) are adually prefcrib- inftances, incountrics ed. bound by the law of allegiance, it is to be confidered, what are tha rights of citizenhip on the fubjeat ; and like every other it depends on the terms and fpirit queftion -of citizcnfhip, of our focial compa&. The American Confederation is a com- plex machine, andfui generis. It creates joint federal pow- ers ; but it recognizes feparate ifate powers : It is confederate to fome purpofes ; but confolidated to other purpofes. The for- matiop of every focial compad is prefumed, however, by ele- mentary writers, to be a furrender of fo much, and no more, of private rights, as are neccffary to the prefervation and opera- tion of the government; but this principle is notleft with us to mere implication ; it is formally declared.in many flate con- ifitutions in favor of the people ; and in the Federal Corffitu- tion, it iS declared in favor of the States, as well as of the peo- ple. With refipe&, then, to the right of emigration, it has been under the confideration of the people and government of the Union, fiom the moment of their birth, as an independent na- tion ;. infomuch,, that the refufal to pafs laws for the encou- ragement of emigration to America, is charged as a proof of in the enumeration of the grievances, tyranny and opprefllon, 'lhe articles of which produced and juflified the revolution.

Confederation contain not any claufes, exprefsly granting, or reftraining, the power and right of naturalization and emigra- tion ; but they contain an exprefs refervation of all powers in favor of the States individually, which are not, in terms, trans- ferred to the Union. An infipe6tion of the feeral ifate con- Ptitutions will prove, that, in fome form or other, the principle has been recognized by every member of the Confederation ; and the Conflitution of Penylvania explicitly provides, that no law fhall be paffed prohibiting emigration from the ftate.

This is, perhaps, the only direct expreflion of the public fenti- ment on the fubje&; but the very filence that prevails ftrcngth- ens the argument. The power of naturalizing has been ve'ed in feveral of the ftate governments, and it now exiffs in the general government; but the powver to relirain or regulate the Tight of emigration, is no where furrendered by the people ; and, it muft be repeated, that, what has not been given, ought It may be faid, however, that fuch a pow- Iot to be a(Fumed. er is ncecflary to the government, and that it is implied in the authority to regulate the bufinefs of naturalization.

In con- fidcring'thefe pofitions, it muf' be admitted, that although an individual has a right to expatriate himfelF, he has not a right to feduce others from their country. Hencc, thofe who forci- bly or fedudlively, take am ay a citizen, commit an at, which forms

SUPREME COURT of the United States.

forms a fair obje6l of municipal police; and a confpiracy, or 1795. combination, to leave a country, might, likewife be properly k guarded againti.

Such laws would not be an infration 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 effeft, whenever he moves the mind of another to his pur- pofe, by fear, by fraud, or by -perfuafion. The Engliijb law and the law of Pennfylvania, therefore; punifh kidnapping, and tranfporting, or feducing, arti*, to fettle abroad as crimes. 4 B!. Com. 2 19. 16 o. Penn. Laws 2 Vol. Dall. Edit. But this is all the power on the fubjet, which a government ought to pof- fefs for its prefervation. The depopulation of a country by the fpontaneous co-operating will of numbers, proves nothing more than that a bad government exilts, or a bad foil is inha- bited. Such an event, however, is too .remote\a poflibility,' to be any where a fubje6} of apprehenfion; and, With refped to ifnerica, it is vifionary indeed! IfYthen, the power of reftrain.- ing emigration is not neceffary to the exiftence of government, much may be urged to fhew, that it is a power oftoo delicate a nature to be truffed 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 everlafling abeyance. Nor is there any effen- tial coincidence a power to regulate emigration ; fb that the grant of the former (hall be deemed to includc the latter.

, The idea of admitting, and the idea of excluding, are not analogous. As to the point of policy, if a m n, wifhes t6 leave a country, he is not likely to remain in it, by force, beneficially to the flate. 'The charalci- of the migrating individual can have no influence on the right; his private motives of intereft, or of pleafure, do not affed the. community; and it is of no importance to what country he goes. rhe moment he has expatriated himfelf, the ftate is no longer interc fed, no lonaer refponfible for his conduf; the legature, which bound tbe-m, is fevered, and can never again be united, without their mutual confent : The emigrant has be- come an alien. But in the aft of naturalization, every com- munity has a right totally to rejie applications for admiflon w, or to piefcribe the terms; and then the characfer of the appli- cant, the matives cf emigration from his old country, and the evidences of attachmcnrt to his new one, are all to be confider- ed. Let it, however, be fuppofed, for a moment, that the grant of th naturalization powver enibr'Ices a power of regulating emiigration, the queftion ftill remains, has the power of'regula- ti,,g emigration been exercifed by Congres ? And if it has not bcn eX':cifed by the d-partnent efgovernment, to which alone even by iinplication, the court

in a power to regulate naturalization, and in' ranted, what authority has

it is

144

CAsEs ruled and adjudged in the court to interfere upon the fubje& ? That the power has not t795.

Lys%. been exercifed by Congrefs is conceded ; and if the court inter- feres, it will be a legiflative, not a judicial, a&: For, although it is contendcd, that the law of nations furnifhes rules to fup- ply the filence of the legiflature, there is fcarcely a fubje&, to which the j urifdi&ion of Congrefs extends, that might not, on the fame do&rine, be regulated, without the interpofition of that body. Thus, Congrefs has power to define and punifh piracies, felonies committed on the higJiWcas, and offences againfl 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 mull depend upon the muni- cipal law, though they may be illufirated and explained by the It is true, that the judi- principles of general jurifprudence.

to a variety of objeds ; but the Supreme cial power extends Court is only a branch of that power; and depends on Congrefs for what portion it fliall have, except in the cafes of ambaflh- the conftitution. The dors, &c. particularly defignated in power of declaring whether a citizen fhall be entitled in any form to expatriate himfelf, or, if entitled, to prefcribe the form, is not given to the Supreme Court ; and, yet, that power will be exercifed by the court, if they fhall decide againift the expa- triation of Captain Talbot. Let it not, after all, be underftood, that the natural, loco-motive,. right of a free citizen, is inde- In time of war, it would pendent of every focial obligation. be treafon to migrate to an enemy's country and join his forces, i Dall Rep. 53. and, even in under the pretext of expatriation. time of peace, it would be reprehenfiblc (fay the writers on the law of nature and nations) to defert a country labouring under great calamities. So, if a man a&ing under the obligations of an oath of office, withdraws to elude his refponfibility, he chan- It is not, however, ges his habitation, but not his citizenfhip.

private relations, but public relations; private refponfibility, but public refponfibility; that can affe& the right: for, where the reafon of the law ceafes, the'law itfelf muft, alfo, ceafe. There' is not a private relation', for which a man is not as liable by lo- cal, as by natural, allegiance ;-after, as well as before, his ex- patriation: He muff take care of his family, he muft pay his debts, wherever he refides ; and there is nofecurity in reftrain- ing emigration, as to thofe objeds, fince, with refpea to them, withdrawing is as effedual, as expatriating. Nor is it enough to impair the right of expatriation, that other nations are at war ; it muff be the ccuntry of the emigrant. No nation has a right to interfere in the interior police of another : the rights and duties of citizenfhip, to be conferred, or releafed, are mat- ter of interior police;, and, yet, if a foreign war could affcdt the

1795.

StUi'PIEME COURT of the United States.

the qRulion, every time that a frefh power entered into a war, a new rcflraint would be impofed upon the natural rights of the citizens of a neutral country; which, confidering the conflant warfare that afflicts the woild,would amount to a perpetual con- troul. But the true diftin&ion, appears to be this :-.The ci- tizens of the neutral country may fill exercife the right of ex-- to fay, " the patriation, but the belligerent power is entitled a& of joining our enemies, flagrante bello, flhall not be a va]id By this conifru&ion, the duty a na- at of expatriation." tion owes to itfilf, the facred rights of the citizen, -the law of nations, and the faith of treaties, will harmonize, though mov- ing in diftind and ftparate courfes. To purfue the fubjec one fRep further: A man cannot owe allegiance to two fovereigns. he cannot be citizen of two republics.. If a t B1. Com. mai has a right to expatriate, and another nation has a right it is a compad between the two and difpofition to adopt him, parties, confirmmated by the oath of allegiance. A man's laft will, as to his citizenflaip, may be likened to his laft will, as it 'fuperfedvs every former dirpofition ; and when to his eftate; is naturally dead, ii either takes effe&, the party, in one cafe, 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 a& of ex- patriation, likewife, is fufceptible of various kinds of proof.

The Virginia law has feleded one, when the fate permits her citizens to depart; but -it is not, perhaps, either the moft au- It may thentic," or the moft conclufive that the cafe admits. be done obfcurely in a-difLfnt county court; and even after the emigrant is releafed from Virginia, to what nation does he be- long ? He may have entered no other country, nor incurred, any obligation to any other fovereign. Not 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, in the political atmofphere, gazed at detached and buoyant wherever he paffes, and fettled wherever he touches ? But, on tle other hand, the ad of fwearing allegiance to another fo- 'conclufive ; extinguiifiing, at vereign, once, the claims of the deferted, and creating the righ.t of the adopted, country. Sir JVilliam Blackhlone, therefore, confiders it as the ftrongeft, though an ineffedual, effort to emancipate a Britijb fubjed from his natural allegiance ; and the exifting conftitution of France declares it exprefsly to be a criterion of expatriation. The fame principle operates, when the naturali- that the whole cere- zation law of the United States provides, mony of initiation fhall be performed in the American courts ; and if it is here confidered as the proof of adoption, fhall it not If America be confidered, alfo, as the tet of expatriation ?

makes is unequivocal and VOL. Ill.'

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CASES ruled and adjudged in the k.,,-..d

I795. makes citizens in that way, fhall we not allow to other nations, the privilege of the fame procefs ? In hort, to admit that Frenchmen may be made citizens by an oath of allegiance to America, is, virtually; to admit, that Americans may be expa- triated by an oath of allegiance to France. After this difcufflon of principles, forming a neceflary bafis for the fadts in this cafe, itis infifed, ift, That Talbot was a naturalized citizen of the French Republic at the time of receiving a commiflion to com- mand the privateer, and of capturing the Magdalena. He left this country with the defign to emigrate ; and the ad of expa- triation muff be prefumed to be regular, according to the laws of France, fince 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 veffel, and received a commifljon to employ her as a privateer.

34, That Ballard's expatriation and commiffion, however doubtful, cannot affct Talbot and Redick. But ftill, it is objeded, that thefe a8s of expatriation, thefe commiffions, are all fraudulent and void. in In private contrads, in fubje&s of municipal regulation, matters of meum et tuum, the rule is clear, that fraud vitiates every thing, and the fraud may be colleded from circumfanwes.

But is fraud to be prefumed in a conflid of national rights ? It is faid, that a nation cannot be confidered in the light of pirates ; i Wood. fo a nation cannot commit frauds. Let 'the matter be turn'ed as it may, it will reft on this ground,-had France any authority to naturalize, or to commiffion, Talbot and .Redick?

America is deeply intereffed, at leaft, in withholding a concef- fion, that any other nation, but France, can decide that quef- tion. The validity of her own naturalizations, the authenticity of her own commiflions, and the claims of her impreffed fea- men, are all involved. ' France,' then, is exclufively to judge ; fhe granted the authority, ihe can refcind it ; fhe can punifli any abufe of it; and to her government muff be the appeal, if Ame- rica, or any other nation, has fuftained an If, .indeed, on the pretext of fraiud in the perfons who obtain a French commiflion, our courts may annul them, where will ihe inquifitorial cenforfhip terminate ? Britifh patents of deni- zation, as well as French adts of naturalization ; and every commiffion of the officers of a public fhip of war, as well as of a privateer, will be alike fubjed to our fupreme controul. But is unfupported by any reafonable even the allegation of fraud, degree of evidence. The firif circumftance relied on, is, that the ads of naturalization, bill of (ale, and cominiffion to cruize, were in the cuftody of Capt. Talbot on board the privateer, and not held hy Redick, at Point a Pitre. But, furely, every pri- vateer muff be always ready to prove her owmerikip and au-, thority

injury by it.

SVPREME COURT of the United tates.

147

thority, 'to refcue her from the imputation of piracy, and to en- 1795. title her to fell her prizes. Again, it is faid, that Redick had kyJ 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 expe& that the owner of a cruizing veffel thall have an agent in every port, at which (he may touch; and that, in faa, Redick had feveral agents in Charle/fon. It is added, as circumiftances for fufpicion, that Talbot has not proved that his vefill was not fitted out in the United States, where s the' proof of the affirmative lay with Appellee ; the articles' on board Talbot's veffel, if not put on board at Guadaloupe r'ight have been for trade; and Redick, a bona fide purchafer, otght not to-be affected by an iflegal outfit: 2 Efp. 282. 3 Wood.

213. B!. C. 262. I 7. Rep. 26o. 3 7 Rep. 437. 2 Wood. 412.

431- Hard. 349. Cowp. 34t. 2 '. Rep. 750. that proof is not made of notice of the fale to Redick, whereas it appears that Sinclair and JFilfon were aflually informed of the tranfa&ion ; and that Sinclair and Wi fon have not been produced as wit- neffes by the Appellant, whereas it was the duty of the Appel- to examine them, lee, if he thought their teffimony material, and he had the fame means to compel their attendance.

withfianding the participation of Captain Ballard, the veffel is a lawful prize. -If, indeed, Talbot and Redick were regularly naturalized by France, if the veffil was regularly fold to Red- ick, and commiffioned by the French government, it is obvious that the validity of the capture can only be impeached, by the circumiftance of Capt. Talbot's conforting with Capt. Ballard. ift, Corifidering That point may be confidered in two ways: Captain Ballardas ailing under colour of a commiffion ; 2d, Confidering Captain Ballardas a&ing without any authority at all.-ift, The commifion which Ballard held, was, at leaff, fufficiently colourable to juftify Talbot the commander of a French privateer, in affociating with him againft the enemies of France. A general order, indeed, is a fufficient commiflion, intended to a& under it. 2 where there is evidence a perfon PJatt.f 224. 5. 6. But he not only held a commifflon, but he was employed by the French government itfelf, failed under in the charaaer of a Frencb veffel had French colours, and been permitted freely to leave and enter the American ports. It is true, that it is eventually difcovered that he had clandeftine- ly fitted out his veffel, in violation of the laws of the United States ; but Talbot had no right to queftion the validity of the commiflion, nor the legality of the outfit; and even fuppofing Talbot did affift in the outfit of Ballard's veffel, that, as a fub- Rantive offence, might render him amenable to puniihmnent in our courts, but it could not vacatehis French commiflion, nor render him, as a French citizen, a pirate throughout the world.

The

148

CASES ruled and adjudged in the

1795. The validity of the commiffion and the legality of the outfit are queftioned, however, by a Dutch fubje&, before an American tribunal ; and yet, fuch a plea would not be fuftained in France, and could not be allowed even in Holland. With refpe& to fhe, denounces, for a America herfelf, whatever punifhmnent violation of her neutrality, {he may infli&; but on principles of, juftice fhe cannot convert one crime into another, an ille- gal outfit into piracy; he cannot punifh for holding a comnif- fion, recognized by the authority that iffued it; fie cannot make an innocent man (for inflance, Redick, the owner of the privateer) refponfible for a guilty one; the cannot impair the right, or confifcate the property, of a man aaing under a due au- thority, in order to punifh a man ading without due authority; and fhe cannot punifh a man for affociating out of her jurif- dilion, with another, contrary to her laws, but confiftently with the laws of the country to which he belongs. But What more did Talbot do, than is juftiflable on the principle of ltra- tagern by the laws of war ? It is illegal to outfit a veffel of war within the United States under colour of a French commif- the veffel is outfitted, and on the high lion; and, yet, after feas, may not an officer of France, without vacating his com- miflion, employ her? Foreigners are often retained as fpies, and fornetimes prefled into the fervice of a belligerent power.

Yatt, B. c. f P. 593, 557. Grot. Puff. Heinec. i7o.

Why may they not be employed as conforts in criizing ? A colourable commiffion was deemed fufficient to refcue Captain Ballard from a convilion for piracy ; and if for that purpofe, it ought furely to be fifficient to fave Talbot, or rather, indeed, Redick, the party really interefted, from a charge of piracy, the the commiffion, prize. Where there is a cornmiffion, there can be no piracy.

2 Sir L. 7enk. 754. Moll. 64. and cap- 2 Woodes. 4:5. ture by deputation under colour of a commiflion is no piracy, is carried into the port of a friend.-2 though

9. p. 65. The cafe in 2

11/oodes. 426. Mol. B. I. c. 4 -f Fern. 592, quoted for the Appellee, is the cafe of Englijbmen, a6ting ais fuch, though under a Savoy commiflion, againfl friends of England; whereas the prefent cafe is that of an American, lawfully expatriated himfelf, and after becoming a having French citizer, receiving as fuch a commifflion, and making prize, in a French vcffel, of the property of the enemies of France. But even on the point of the. commiflion, it is faid in the cafe th-it the prize might enure as a droit of Admiralty, on the principle of capture from an enemy, by an uncommif- ',oodes. 433. And there are fome authorities fione, vefflhl. that go the kcngth of faying that capture by a neutral, where there" is'a commillion, Js good. Lex Merc. .227. Com. Dig. .269,

foifeiture of his lofs of ihip and the the

2 

SUPREME COURT of the United Stats.

2d. But let it be fuppofed, in the fecond place, that cap- 1795.

m69. tain Ballard had no authority at all, this will not deftroy captain Talbot's right of capture. A piratical capture does not, it is agreed, alter the property; 2 Wood. 428 to 43T. and as Bal- lard, in that cafe, had no right to feize the veffel, it ffill re- mained the property of the Dutch owners, liable to be feized any where by the French, their public enemies.

JVatt, B. c.

f. p. Burl. 29', 222, 225. Lee on Capt. 206. 2 Val.

261. If, indeed, a friend's property is retaken from a pijate,

the friend fhall only pay falvage; but if an enemy's property is fo retaken, the right becomes entire and abfolute in the re-captor.

It would be war in a neutral country, fay the authorities, to fecure within her territory the fpoils of one of the Belligerent parties ; and is it not a greater partiality, a more firiking ag- greflion, to attempt to do fo on the high feas ? It can only be by an extenfion of her neutral jurifdi&ion, that the United States can pretend to invalidate the capture, becaufe the pro- perty was in the poffeflion of Ballard, an 4merican citizen; and furely, the unlawful a& of her own citizen can give no right or 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 commiflion, it juftified Talbot; if he had no commiflion, his mifcondut on the high feas, cannot add to the fafety of the property of the Dutch, nor enlarge the ju- rifdi6tion and power of the United States; and even if Tabot had conforted with Ballard, an avowed pirate, the prize would be good as adroit of the French Admiralty, though perhaps neither of the captors. acquired a property in it. Lex Mere.

246, Moll. b. x, fi 1o. The fa&s, then, are briefly, that the two cruizers were in company when they firfl faw the Iagda- lena ; that, for their mutual intereff, they afterwards feparated to puifue feparare veflels, that both were again in fight, how- ever, When the prize was captured, that both took poffeflion of her, and that both were in poffeflion on her arrival in the port of Gharlefon. The force of one joint cruizer is the force of both ; and, like joint tenants, the poffefflon of one It cannot be faid, that fhe was firff is the poffeffion of both. captured by Ba/lard; for, when two (hips are in fight, both are confidered as captors ; both entitled to fhare in the prize. ! Leon. iS2, Doug.

2

324, 328, and, therefore, on that footing, if Ballard was not entitled, either the whole prize veffed in Talbot, or Ballard's. fhare was a droit of the Admiralty of France; but America could have no pretence to hold, or releafe, any part of it. 2 Wood. 43.. 3. 441. 456. 2 Fern. 592.

lood. 447, Moll. b. x, C. 2, f 22.

The Counfel for the Appellees infiffed upon the following points: ifl. That the capturing veffels were dnerican proper- ty.

1795. %.v r5 7 CASES ruled and adjudged in the ty.

!zd. That even if the veffels were Frencb property, the j inifruments, or agents, ufed to effe& the capture, were Ameri- 3 d. That both veffels were of American outfit, can citizens. and, therefore, the capture was illegal.

4 th. That,. at all events, Ballard acquired no right by the capture, and that Talbot, coming in under him, could have no higher pretenfions than Ballard hirnfelf.

From this view,, it will be perceived that the courfe of their argument led principally to an invef- tigation of the fadts ; whence concluding, that the whole tranf-' adion was collufive and fraudulent, on the part of the owners 2nd captains' of the veffels, they cited authorities to fhew, that fraud vitiates every adt, and that although fraud cannot be-pie- fumed, it may be proved by circumfances.

3 Cha. Ca. lWils. 230. 3 Co. 778. 8i. i Burr. 391. 396, 4 T. ReP. 39.

On the points of law, the Counfel for the Appellee, held the

i. That Ballard and Talbot were A'nericans 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 pleafes, provided it is done bona fide, with good caufe, and under the regulations prefcribed by law. I att. B. i c. I9.f 220. 221. 223. 221. Grot. B. 2. c. 5.f 24.

Puff B. 8. c. I I-p. 872, and provided, alfo, that he goes to another country, and takes up his refidence there, under an open and avowed declaration of his intention. Thus, the rule is fairly laid down in 2 Heinec. B. 2. C. 10. f 230. p. 220; re- quiring from the emigrant not only an adt of departure, with the defign to expatriate, but the ad of joining himfelf to ano- ther flate. But a man may be entitled to the right of citizen- fhip in two countries; and proving that he is received by a new country, is not fufficient to prove that his own country has fur- rendered him.

If, indeed, it is lawful for one individual, any number of individuals, may exercife the right of expa- triation under the circumiftances contended for; and, then, we might behold a political monher, all the citizens of a country at, war, itfelf is at peace.

There muft, therefore, from the nature of the cafe, be fome reftraint on this loco-motive right : and it is a reafonable reftraint, recognized by the beft writers, that it fhall not corn- be exercifed either pad, fuch as the American treaty with Holland, which de- clares that the citizens of either party fhall not take com- Iniflions as privateers againll the other. Art. 19. or tO the injury of the emigrant's country. Yatt. b. 2. c. 6.f 7t to 76.

Privateering by the fubje&s of a neutral nation, is confidered as Ibid. b. 3. c. i5. f 229. and if -an a& an infamous pradice. committed

in contravention of a national the country though SUPREME COURT of the United States.

committed by a citizen is approved and ratified by his-coun- I795.

Ibid. b.' 2. r. 6. f. try, they adopt the offence as their own.

74. The power of regulating emigration, is an incident to

It is veiled exclufive- the power of regulating naturalization. ly in Congrefs; 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 refpect to Talbot, his pre:ended expatriation was in itfeif an offence, and, there- fore, tannot sbe a juflification: be failed from America, in an illegally fitted out, with the defign of becoming armed veffel, a privateer, againft a nation in peace and.treaty with theUnited to Redick, was merely a co- 'States; and the fale of his vefFel lour to the general fcheme of plunder and depredation, in which If, then, Tqlbot is to be iftill confider- Redick was a partaker. ed as an American citizen, a'-ing under a French commiftion, in capturing a Dutch prize, refiitution hufft be awarded upon ern. 592. Holland being the principle of the decifion in 2 at peace with America, though {he is at war with France.

2. That even fuppofing Talbot's expatriation, and the own-

erfhip of his veffel, to be fufficient to authorize his own pri- vateering, the circumiances ofc oforting with Ballard, know- ing the American character of Ballard and his veff l, were fuificient to invalidate the capture. Can it be reafonable, or juff, that a Frenc'h privateer fhould affociate with a pirate, or avail himfelf of the power of Amcrica, to feize the property of her allies, bring that property into an American port, and, yet, that an American court of juitice fhould be incompetent to re- the grievance ? But the a&ual capture was made by drefs Ballard, whofe right of capture. is abandoned. The tortious af had been compleated before Talbot was admitted by a frau- dulent concert, into a fhare of the poffeflion of the veflel; and even When admitted, he does not pretend to defeat. the previ- ous occupancy, or to controvert Ballard's claim of prize.

Ballard, (pofleffed by aflignment of a commiffion, which did not authorife capture, and which was not, in its nature affigna- ble) had wrongfully feized the veffel of an American friend; and, furely, if at the time of fuch feizure, and before Talbot the Dutch owners bad a right to demand boarded juffice fro6i the United States, as againfi Ballard, that right could not be deftroyed by any immediate confequence of the wrong on which it was founded; fuch as Talbot's being od- mitted by the agreffor to a joint poffefflon. Befides, Talbot affifted in arming Ballard's veffel within the neutraljurifdiion of the United States ; and this, together with the concert in cap- turing the il3agdaleia, amounted to a relinquifhmcnt, or for- feiture, of his commiflion.

the veffel,

3. That ricithQr the law of nations, nor the treaty between

,mIerica

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CASEs ruled and adjudged in the

1795. America and France, prevents the interference of the judicial .1..y... ) authority of the United States, in this cafe ; and it has already been adjudged, that the Diftri& Court has Admiralty jurifdic- tion, both as a Prize and Inftance Court. At. p. 6. It is enough to repel the arg~ument founded on the law of nations, to tate, that the queftion is not, whether the court will take cognizance of a capture, made on the high fkas, by the citizens of France, of the property of the enemies of that Republic, which is a queftion that can only be decided by the courts of the captor: but the gift of the controverfy is-whether Ame- rican citizens flhall be permitted, under the colour of a foreign commiflion, to make prize of the property of the friends of A!- merica, either by their own independent a&, or in collufion and concert with a real French privateer ? As'to the 17th arti- cle of the treaty with France, giving it a fair and rational ex- pofition, it cannot include prizes taken by privateers unlawfully equipped in the American ports; and the veffels taken as prize, muff not only belong to the enemies of France, but be fuch as are taken bonafide by the citizens of France; which was not the fad in the prefent inftance. ,

On the 22d of Auguft, I7)5, the Judges delivered their opi- nions feriatim.

PAi'ERSON, jtftice.-The libel in this caufe was exhibited by YoofI JanJfn, mafter of the Jrouw Ghri/liana Magdalena, a Dutch brigantine, owned by citizens of the United Nether- lands; and its prayer is, that Edward Ballard, and all others, having claim, may be compelled to make reftitution. The Diftridt Court direded reftitution; the Circuit Court affirmed the decree; and the caufe is now before this court for revifion.

The Magdalena was captured by Ballard, or by Ballard and Talbot, and brought into Charleton. The general queftion is, In difcuf- whether the decree of reftitution was well awarded. fing the queftion, it will be neceffary to confider the capture as made,

i. By Ballard.

2. By Ballard and Talbot.

i. By Ballard. This ground not being tenable, has been

almoft abandoned in argument. It is, indeed, impoflible to fug- geft any reafon 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 V/irginia, or declared an in- tention of expatriation, and admitting the fame to have been conftitutionally done, and legally proved, yet he had not emi- grated to, and become the fubje& or citizen of, any foreign kingdom or republic. He was domiciliated within the United States, trom whence he had not removed and joined himfelf fortune, and family. to any other country, fettling there his From

1795.

SUPREMEi COURT of the United States.

From Virginia, he paffed into South Carolina, where he failed on board the armed vef&ll called the fini de la Liberte. He failed from, and returned to, the United States, without fo much In fhort, as touching at any foreign port, during his abfence. .it was a temporary abfence, and not an entire departure from the United States ; an abfence with intention to return, as has been verified by his condud and the event, and nota departure with intention to leave this country, and fettle in another.

Ballard was, and ftill is, a citizen of the United States ; unlefs, ,perchance, he fhould be a citizen of the world. The latter is a creature of the imagination, and far too refined for any If however, he be a republic of ancient or modern times. citizen of the world, the character befpeaks univerfal benevo- lence, and breathes peace on earth and good will to man ; it in queft of plunder, and implies forbids roving on the ocean amenability to every tribunal. But what is conclufive on this head is, that Ballardfailed from this country with an iniquitous purpofe, cum dolo et culpa, in the capacity of a cruizer, againft friendly powers. The thing itfelf was a crime. Now it is an obvious principle, that an ad of illegality can never be con- -tirued into an a. of emigration, or expatriation. At that rate, treafon and emigration, or treafon and expatriation, would, il certain cafes, be fynonimous terms. The caufe of removal muff be lawful ; otherwife the emigrant ads contrary to his duty, and is jufily charged with a crime. Can that emigration be ,legal and juffifiable, which commits or endangers the neutrali -" xy, peace, or fafety of the nation of which the emigrant is a *member ? As we have no ftatute of the United States, on the fubjed of emigration, I have taken up the do&rine refpeding it, as it flands on the broad bafis, of the law of nations, and in no wife applicable have argued accordingly. That law is to the prefent cafe : 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 domi- ciliated within the fame, and not elfewhere ; and, befides, his caufe of departure, fuppofing it to have been a total departure from and'abandonment of his country, was unwarantable, as he went from the United States, in the chara&er of an illegal cruizer. The adq of the legiflature of Virginia, does not ap- ply. Ballard was a citizen of Virginia, and alfo of the United States. If the legiflature of Virginia pafs an ad fpecifying the caufes of expatriation, and prefcribing the manner in which it is to be effeded by the citizens of ihat fPlte, what can be its operation on the citizens of the United States? If the ad of lirginia affecqs Ballard's citizenfhip, fo far as refpe&s that flate, can it touch his citizenfhip fo far as it regards the Uni- ted Stares ? Allegiance to a particular ffzte, is one thing-; allcgianca

VOL. IlI.

1795. k CASEs ruled and adjudged in the

allegiance to the United States is another. Will it be aid, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter ? The fovereignties are different; the allegiance is different; the right too, may be different. Our fituation being new, una- voidably creates new and intricate queflions. We have fo- vereignties moving within a fovereignty. Of courfe there is complexity and difficulty in the fyftem, which requires a pene- trating eye fully to explore, and fteady and maflerly hands to keep in unifon and order. A flight collifien may difturb the haruiony of the parts, and endanger the machinery of the whole. A ftatute of the United States, relative to expatriation is much wanted ; efpecially as the common law of England, is, by the con- flitution of fome of the ftates, exprefsly recognized and adopted.

Befides, afcertaining by pofitive law the manner, in which expa- triation may be effeded, would obviate doubts, render the fub- jed notorious and eafy of apprehenfion, and furnifh the rule of civil condu& on . very intereffing point.

But there is another ground, which renders the capture on the part of Ballard, altogether unjuftifiable. The Ami de la Liberte was built in Virginia, and is owned by citizens of that flate; fhe was fitted out as an armed floop of war, in, and, as fuch, failed from, the United States, under the command of Bal- lard, and cruifed againif, and captured veffels belonging to, the Such fubje&s of European powers, at peace with the faid ftates. was her predicament, when flie took the Magdalena. It is idle to talk of Ballard's commiffion ; if he had any, it was not a com- miffion to cruife as a privateer, and if fo, it was of no validity, becaufe granted to an American citizen, by a foreign officer, within the jurifdidtion of the United States. We are not, how- ever, to prefume, that the French Admiral or Conful would have .iflied a comiiiflion of the latter kind, becaufe it would have been a flagrant violation of the fovereignty of the United States; and of courfe incompatible with his official duty. Therefore, it was It nor, and, indeed, could not, have been a war commiffion.

is not neceflary, at prefent, to determine, whether ading, under colour of fuch acommiffion would be apiratical offence ? Eve- ry illegal af, or tranfgreffion, committed on the high feas, will not amount to piracy. A capture, although not piratical, may 'be illegal, and of fuch a nature as to induce the court to awaid refituton.

It has been urged in argument, that the Ami de la Liberte is the pr6perty of the French republic. The aflertion is not war- ranted by the evidence ; and if it was, would not, perhaps, be of any avail, fo as to prevent reftitution by the competenft au- thority. The proof is clear and fatiffadory, that fle was an American veffel, owned by citizenls of the United States, and frill

SUPREME COURT of the United &ates.

ftill continues to be fo. The evidence in fipport of her being 1795. ,French property is extremely weak and futile ; it makes no im- preflion, 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, fo as to legalife her captures and prevent re~foration ; becaufe fhe was, after the fale (if any took place) to the republic, and before her departure from, and while (he remained in, the United States, fitted out as an armed veffel of war ; from whence in fuch capacity, and commanded by Ballard, an limerican citizen, (he fet fail, and made capture of veffels belonging to citizens of the United Netherlands. The United States would, perhaps, be bound, both by the law of na- tions and an exprefs flipulation in their treaty with the Dutoh, to reftore fuch captured veffels, when brought within their ju- rifdi&ion, efpecially if they had not been proceeded upon tocon- demnation in the Admiralty of France. On this, however, I give no opinion. The United States are neutral in the prefent war ; they take no part in it ; they remain common friends to 211 the belligerent powers, not favoring the arms of one to the detriment of the others. An exaa impartiality muff mark thair condu& towards the parties at war; for, if they favour one to the injury of the other, it would be a departure from pacific-princi- It would be a frau- pies, and indicative of an hoftile difpofition.

dulent neutrality. To this rule there is no exception, but what arifes from the obligation of antecedent treaties, which! ought If, therefore, thecapture of the A/fag- to be religioufly obferved. dalena was effected by Ballard alone, it muff be pronounced to be illegal, and of courfe the decree of reftitution is j uft and pro- per. This leads us,

and Talbot. Talbot commanded the privateer L' di dla Point a Pirre. The queftion is,as the Magdalena ftruck to and was made prize of by Ballard, and as Talbot, who knew his fituation, aided in his equipment, and acted in confederacy with him, afterwards had a fort of joint poffeffion, whether Talbot can detain her as prize by virtue of his Fr ench commifflon ? To fupport the validi- ty of Talbot's claim it is contended, that Ballard had nocommif- fion or an inadequate one, and therefore his capture was illegal: That it was lawful for Talbot to take poffeflion of the (hip fo 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, afting under a regular commiffion from the Governor of Guadaloupe. It has been al- ready obfervedi 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 veffel of war in the United States; that as- fuch fhe failed from the United States, and cruifed againit nations

x56 CASES tuled and adjudged in the

1795. nations at peace and in amity with the faid Rlates. Thefe adlg Swere dire& and daring violations of the principles of neutrality, In effeaing this and highly ciininal by the law of nations. ifate of things, how far was Talbot inftrumental and aaive ?

What was his knowledge, his agency, his participation, hiS that Talbot condu& in thebufinefs ? It appears in evidence, expe6{ed Ballard at Tybee ; that he waited for him there feve- ral days; that he fet fail without him, and in a fhort time re turned to his former fRation. This indicates contrivance and a previous communication of defigns. At length Ballard ap- peared. On his arrival, Talbot put on board the Ami de la Li- berte, in Savannah river, land confeflfidly within the jurifdic-i tion of the United States, four cann6n, which he had'brought for the purpofe. Were thefe guns furnifhied by order of the French Conful ? The infinuation is equally unfounded and difhonorable. They alfo fired a falute, and hailed Sinclair, a. citizen of the United States, as an owner. An incident of this kind, at fuch a moment, has the effea of illumination.

Talbot knew Ballard's fituation, and in particular aided in fit- tipg out the Ami de la Liberte by furnifhing her with guns.

Without this affiftance fhe would not have been in a fRate for war. An effential part of the outfit, therefore, was provided by Talbot. The equipment being thus completed, the tw6 privateers went to fea. When on the ocean, they aaed in con- cert; they cruize together, they fought together, they captur- Vd together. Talbot knew-that Ballard had no commillion j be fo Rtates it in his claim: the fa~ts confirm the fRatement ;' for, about an hour after Ballard had captured the Magdalena, he came up, and took a joint poffeflion, hoping to cover the capture by his commifflon, and thus to legalife Ballard's fpoli- ation. !w filly and contemptible is cunning-how vilk and debafingy is fraud.

In furniflhing Ballard with guts, in aiding hini to arm and outfit, in co-operating with hit-on the high feaq, and tifing him as the inftrumeat and means of. capturing veffels, Talbot affumed a new charaler, and inifead of purfu- ing his commiffion a6ted in oppofition to it, If he was a French .itizen, duly naturalized, and if, as fuchi lie had a 6 ommiffionj fairly obtained, he was authorized to capture fhips belonging to the enemies of the French Republic, but not warranted, ii feducing the citizens of neutral nations from their duty, and' affifli ng them in conimitting depredations upon friendly pow- ers. His commiflion did not authorize him to abet the preda- illegal cruifer on the high feas ; and if he, tory fehemes of an undertook to do fo, he unqueffionably deviated froti the path of duty. Talbot was an original trefpaffier, for he was con- cerned in the illegal outfit of the Ami de la Liberte. Shall he then reap any benefit from her captures, when brought within the

SU REM COUPt of the United Stdtes.

',...,.

the* United States ? Befides, it is in evidence, that Ballard 1795. took poffefflion firfi of the Magdalena, and put on board of he a prize-mailer and rome hinds ; Talbot, in about an hour af- ter, came up, and alfo put on board a prize-mailer, and other men. The poffetilon in the firfi inflance was Pallard's; he was not oufted of it; they prey was not taken from him; in- (eed, it was never intended to deprive him of it. So far from it, that it was an artifice to cover the booty. Talbot's poffef-- fion was gained by a fraudulent cooperation with Ballard, a citi- zen of the United States, and was a mere fetch or contrivance in order to fecure the capture. Ballard ftill continued in pof- fflion. The Magdalena thus taken and poffeffed, was carried into Charlefon. Can there be a doubt with refpe& to reftora- tion ? Statingthe cafe anfwers the queftion.

It has been faid that Ballard had a commiflon, and aded under it, The point has already been confidered, and indeed is not worth debating; the commiffion, if any, was illegal, and of courfe the feizures were fo. But then what effe& has this upon Talbot ? Does it make his cafe better Or worfe ? The truth is, that Talbot knew that Ballard had. no commiffion, and he alfo knew the precife cafe and fituation of the-Ami de la Liberte ; to whom fhe belonged, where fitted out, and for what purpofe.

Talbot gave Ballard guns within the jurifdiaion of the United States, and thus aided in making him an illegal cruizer ; he conforted and afted with him, and was a participant in the iniquity and fraud.

In fhort, Ballard took the Magdalena, had the poffef- fion of her, and ke-pt it; Talbot was in under.Ballardby con-: nivance and fraud, rot with a view to ouft him of the prize, but to cover and fkeure it ; not with a view to bring him into. judgment as a tranfgreffor againfi the law of nations, but to intercept the firoke of j uilice and prevent his being punilhed.

If Talbot procured poffieflion of the Magdalena through the medium of allard a citizen of the United States, and then brought her within the jurifdi&ion of the faid States, would it not be the duty of the competent authority to order her to be reftored ? The principle deducible -from the law of nations,- is plain ;-.you fhall not make ufe of our neutral arm, to capture veffels of your enemies, but of our friends.

If you do, and bring the captured veffels within our jurifdiion, reflitution will be awarded. Both the powers, in the prefent inflance, though enemies toeachother, are friends of the United States ; whofe citizens ought to preferve a neutral attitude; and (hould riot affift either party in their hoftile operations. But if, as is agreed on all han~ds, Ballard firif took poffeffion of the Mag- dlena, and if he continued in poffeffion, and brought her within the jurifdi&ion of the United States, which I take to be the cafe, then no queftion can arife with refpe& to the legality

5-8 "CASEs ruled and adjudged in the 1795. of reftitution.

It is an a& of juftice, refulting from the law Sof nations, to reftore to the friendly power the poffeffion of his veffel, which a citizen of the United States illegally obtained, and to place Joofl 7anfen, the mafler of the Magdalena, in his former fiate, from whence he had been removed by the impro- per interference, and hoftile demeanor of Ballard. Befides, it is right to condu& all cafes of this kind, in fuch a manner, as that the perfons guilty of fraud, fhould not gain by it. Hence the efficacy of the legal principle, that no man ffiall fet up his .own fraud or iniquity, as a ground of aaion or defence. This maxim applies forcibly to the prefent cafe, which, in my ap-. is a fraud upon the principles of neutrality, a prehenfion, fraud upon the law of nations, and an infult, as well as a fraud, again(t 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 fuperfedes the neceffity of deciding upon other great queftions in the caufe ; fuch as, whether Redick and Talbot were French citizens ; whether the bill of fale was colourable and fraudulent; whether Redick, if a French citizen, did not lend his. name as a cover ; and whether the property did not conti- nue in Sinclair and Wifan, citizens of -the United States.

IREDELL, yuftice.-.In delivering my opinion on the great points arifing in this cafe, I fhall divide the confideration of it

i. Whether the Diftri& Court hadjurifdi&iou prima facie

upon the fubje& matter of the libel, taking for granted that the allegations in it were true.

. hdmitting that the court had jurifdiaion prima facie, whether W'illiam Talbot had ilated and fupported a cafe fufficient to entitle him to hold the property as prize, exempt from the jurifdieaion and controul of the Diftriak Court.

i. 'I'he firft enquiry is,

Whether the diftri& Court had jurifdiaion primafacie up- on the fubjecq matter of the libel, taking for granttd that the allegations in it were true.

Thefe allegations in fubftance are, That the fhip was taken on the high feas, by a fchooner cal- led L'./Ini de la Liberte, commanded by Edward Ballard who had no lawful comrmiffimn, to take her as the property of an en- emy of the French Republic, under whofe authority the cap- ture was alledged to be made.

That TWilliam Talbot, who came up after the furrender, and put fome men on board, when the prize was in poffeffion of Ballard, had alfo no lawful commiffion for the purpofe of fuch a capture, being an American citizen, and his owners Ameri- can citizens likewife.

That SUPREME COURT of the United States.

That there was fraud and collufion between Talbot and Bal- •795-

lard, both veffels being in fa& the property of the fame owners, 1i/'on and Sincliar, who were American citizens.

Suchl, fubftantially, are the allegations of the libel, and ad- mitting them to be true, nothing is more clear than that the capture was unlawful.

But it is obje&ed that this is a quePrion of prize or no prize, and whether the [hip was lawfully a prize, or not, is for omne court of the French Republic alone to determine, under whofe authority Ballard and Talhot alledge they a&ed; and it is con- tended, that the capture in queftion being of a Dutch [hip, and not an American, the United States have no right to decide a difpute between the Dutch and the French, in regard to a captureon the high feas,claimedas lawful by one party, anddeni- ed to be fuch by the other, fince fuch an interpofition would be equally a violation of the law of nations, and of the i 7 th article of the treaty with France.

To this obje&ion, the following anfwers appear to me to be'

i. That it is true, both by the law of nations, and the trea-

ty with France, if a French privateer brings an enemy's [hip into our porvs, which [he has taken as prize on the high feas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumffances of the capture.

But this exemption from enquiry,'by our courts of jufcice, in this refpe&, only belongs to a French privateer, lawfully com- mifjioned, and, therefore, if a veffel claims that exemption, but does not appear to be duly entitled to it, it is the exprefs duty of the court, upon application, to make enquiry, whether Ihe is the velfelhe pretends to be, fince her title to fuch exemption depends on that very fJa.

Otherwife, any vetfel whatever, under a colour of that kind, might capture with impunity, and defy all enquiry, if fhe kept out of a French port, equally in violation of the law of nations, and infulting to the French Republic, which, from a regard to its own honour and a principle ofjuftice, would undoubtedly difdain all piratical affiflance. She might fay, now, I truff, with as much truth as dignity, Non tali auxilio, nec Defenfori- bus I/is tempus eget.

if

2. That fich an enquiry being thus proper to be made,

upon the enquiry it [hall appear, that the veffel pretending to be a lawful privateer, is really not fuch, but ufes a colourable commiffion for the purpofes of plunder, [he is to be confider- ed by the law of nations, fo far at leaft as a transfer of proper- ty is concerned, or a title tohold it infifted upon, in the flame light as having no commiffion at all.

3. That prima facie all piracies and trefpaffies committed

againif i6o CASES ruled and adjudged in thd

1795. againfl: the general law of nations, are enquirable, and maybe' i.. v / proceeded againft, in any nation where no fpecial exemption law of nations, or

can be maintained, either by the general by fome treaty which forbids or reifrains it.

Jt is exprefsly held, in an authority quoted What is called robbery on

i Lex Merca- toria 252. " That if a Spaniard robs a Frenchman on the high "feas, their princes being both then in amity with the crowni "of England, and the (hip is brought into a port in England, "the Frenchman may proceed criminaliter againft the Spani- " ard, to punifh him, and,civiliter, to have reftitution of his CC veffel." The authorities referred to are, Selden mare claus.

Lib. z chap. 27. Grotius de )ure Bielli et Pacis, b. 3. c. 9. f I6. both books of very high authority. the land,

is piracy if committed at fea. 3 In/l. 113. 1 Com. Dig. 269. And as every robbery on land includes a trefpafs, fo does every pilacy at fea. i Com.

Dig. 268. Confequently, if there be an unlawful taking, it may be piracy or trcfpafs according to the circumfirances of the cafe, both being equally unlawful, though one a higher fpecies of offence than the other, which cannot alter tbe intrin- fic illegality of the fa& c(,mmon to both, but only occafion a greater or lefs degree of puniffbment proportioned to the nature of the offence.

It is, therefore, no anfwer to fay, in bar of reflitution, that no piracy has been committed, and therefore no reffitution is to folloW, fince, if a trefpafs has been com- mitted, though not a piracy, reftitution is equally proper as if the offence had amounted to piracy itfelf.

4. That by a due confideration of the law of nations, what-

ever opinions may have prevailed formerly to the contrary, no hoffilities of any kind, except in necefiiry felf-defence, can lawfully be praaifed by one individual of a nation, againft an individual of any other nation at enmity with it, but in vir- tue of fome public authority. War can alone be entered into by national authority ; it is inifituted for national purpofes, and direded to national objeds ; and each individual on both fides is engaged in it as a member of the fociety to which he belongs, not from motives of perfonal malignity and ill will.

He is not to fly like a tyger upon his prey, the moment he fees an individual of his enemy before him. Such favage nations, I believe, obtained formerly. Thank God, more rational ones have fucceeded, and a liberal man can frequently 1,e great in- tegrity and honor on both fides, though different and irrecon- cileable views of national intereftr or principles may unfortu- natelf engage two nations in hoffility. Even in the cafe of one enemy againft another enemy, therefore, there is no colour of jufcification for any offenfive hoftile ad, unlefs it be authorifed by

SUPREME COURT of the United States.

by fome a& of the government giving the public conflitutional 1795. ftn&ion to it.

the high

on this fubjed, it would be eafy to flhew, upon principle, if not by authority, that fuch hoftility committed without pub- feas, i; not merely an offence lic authority on againft the nation of the individual committing the injury, but the law of nations, and, of c3urfe, cognizable in alfo againf' in the prefent Rlage other countries : But that is not material of the enquiry, which affeds only the condu61 of our own citi- zens in our own vrffcls, attacking and taking, under colour of a foreign corrmiffion, on the high feas, goods of our friends.

This is fo palpable a violation of our own law (I mean the common law, of which the law of nations is a part, as it fub- fifted either before the ad of Congrefs on the fubje&, or fisce that has provided a particular manner of enforcing it,) as well as of the law of nations generally ; that I cannot entertain the flighteft doubt, but that upon the cafe of the libel, prima facie, the Diftrid Court had jurifdiaion.

Whether William Talbot has tated and fupported a cafe fuficient to entitle him to bold the property as prize, exempt from the jurifdidion of the Diftrict Court.

This claim is grounded as follows

i. That at the time of his receiving the commiffion, and at

the time of the capture,, he was a real French citizen, and his veffel was French property, viz. the property of Samuel Re. dick, a French citizen at Point-a-Pitre in Guadaloupe.

2. That he had a lawful commiffion to cruize from the French

Republic.

3. That whether Ballard had a lawful commiflion or not,

he himfelf was lawfully entitled: i. To part, if Balla-d had *a lawful commiflion, as having been in fight at the time of the therefoi!e contributing to intimidate the enemy capture, and

into a furreuder upon tVoe common principle. had no lawful counmiffion, and'is to be confidcred as a pirate, his capture did not change the property; of courfe, it remain- ed Dutch, and he, as captain of a French privateer, had a right to feize and tetain it.

"l'he firift point to be confidered i.,

Whether Talbot at the time of his receiving the commiflion, and at the time of the capture, was a French citizen.

This involves the great queftion as to the right of expatria- tion, upon which fo much has been faid in this caufe. Per- haps it is not neceffary it flould be explicitly decided on this occafion ; but I thall frcely cxprefs my fentiments on the fub- That ject.

VOL. il.

1795. i CAsvs ruled and adjudged in the

That a man ought not to be a flave; that he fliould not be confined againif: his will to a particular fpot, beeaufe he hap- pened to draw his firfl: breath upon it ; that he fhould not be compelled to continue in a fociety to which he is accidentally attached, when he can better his fituation elfewhere, much le.s when he muff ftarve in one country, and may live comfortably in another; are pofitions which I hold as fltrongly as any man, and they are fuch as moft nations in the world appear clearly to recognize/'

The only difference of opinipn is, as to the proper mamner of executing this right.

Some hold, that it is a naturJ unalieliable right in each indi- vidual ; that it is a right upon which no aa of legiflation can lawfully be exercifed, inafinuch as a legiflature might impofe dangerous reflraints upon it ; and, of courfe, it muff be left to every man's will and pleafure, to go off; when, and in what manner, he pleafes.

This opinion is deferving of more deference, becaufe it ap- pears to have the fanaion of the Conflitution of this ftate, if not of fome other flates in the Union.

I muft, however, prefume to differ from it,* for the following

i. It is not the exercife of a natural ric-ht, in which the in-

dividual is to be confidered as alone concerned. As every man is entitled to claim rights in fuciety, which it is the duty of the fociety to prote6f; he, in his turn, is under a folemn obliga- tion to difcharge all thofe duties faithfully, which he owes, as a citizen, to the fociety of which he is a member, and as a man to the feveral members of the foiety individually with whom he is affociated. Therefore, if he has been in the exercife of any public truff, for which he has not fully accounted, he ought not to leave the fociety until he has accounted for it.

If he 6wes money, he ought not t9 quit the country, and carry all his property with him, without Icave of his creditors. Ma- ny other cafes might be put, fliew'ing the importa!,ce of the public having fome hold of him, until he heis fairly performed Pll thofe duties which remain unperformed, before he can ho- neflly abandon the lbciety forevei. But it is faid, his ceafing to be a citizen, does not deprive the public, or any individual of it. of remedies in thefe rct'pe&s : Yet the right of emigra- .tion isf aid to carry with it the right of removing his fa-mnily, and effets. What hold have they of him afterwards ?

2. Some writers on the fubjc6St of expatriation fay, a man

flial not exp~atrite in a time of war, fo as to do a prejudice to his country. But if it be a natuoral, unalienatle, ria1ht, upon the footing of mere priVate wll, who can fav this fhall not be exertifed in time of war, as well as in time of peace, fince the individual"

SUPR M E CouRT of. the United Statss.

163

individual, upon that principle, is to think of himfelf only ? I 1795. therefore, think, with one of the gentlemen for the defendant,- t.N-.d that the principle goes to a 1ate of war, as well as peace, and it muff involve a time of the greateft public calamity, as well as the profoundeft tranquillity.

3. The very fiatement of an exception in time .f -,ar, f(hews

that the writers on the law of nations, upon the fubje& in ge- neral, plainly mean, not that it is a iight to be always exer- cifed without the leaft reftraint of his own will and pileafire, but that it is a reafonable and moral right which every man ought to be allowed to exercife, with no other limitation than fuch as the public fafety or intereft requires, to which all pri- vate rights ought and rouff forever give-way. And if in any government, principles of patriotifmrw and publi good ought to predominate over mere private inclination, furely they ought to do fo in a Republic founded on the very bafis of equal rights, to be perfeffly enjoyed in every inflance, where the public good does not require a retfraint.

4. In fome inflances, even in tine of war, expatriltion may

It ought not then to be refirained. But fairly be permitted. who is to permit it ? The Legiflature furely ; the conftant guardian of the public intereft, where a new law is io be made, If they may take cognizance in or an old one difperifcd with. one inftance,'(as for example, in time of war) becaufe the' public fafety may require it, why not in any other inflance, where the public fafety, for fome unknown caufe, may equally require it ? Upon the eve of a war, it may be ftill more it;- portant to exercife it, as we often fee in cafe of embargoes.

5. The fuppofition; that the power may be abufed, is of no

importance, if the public good requires its exercife. This fe- verifh jealouy', is a paffion that can never be fatisfied. No man denies the propriety of the Legiflature having a taxative power. Suppofe it flhould be ferioufly obj'Cted to, becaufe the Legiflature might tax to the amount of 19f in tha pound ?

They have the power, but does any man fear the exercife of ii ? A Legiflature muft poflefs every power neceffary to the inak- ing of laws.. When confiruied as ours is, there is no danger of any material abufe. But a I,egiflature nmft be weak to the extremeft verge of folly, to wifh to retain any man as a citi- zen, whofe heart and affetions are fixc-d on a foreign country, in preference to his own. They woild naturally wifh to get rid of him as foon as they could, and, therefore, perhaps, the proper precaution would be, to reftrain affs of baniflhment, (if fuch could be at all permitted) rather than to limit the legifla- tive controul over expatriation. But is there no daggee of abufe on the other fide ? Have not all the contentions abnut in the courts, arifen from a -,.nt of the exerefe expatriation

164

CASES ruled and adjudged in the

7795. of this very authority ? For, if the Legiflature 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 dodrine, no rights are fecured, but thofe of the expatriator himfelf.

I, therefore, have no doubt, that when the queftion is in re- gard to a citizen of any country, whofe conffitution has nbt prohibited the exercife of the legiflative power in this inifance, it not only is a proper iiftance in which it may be exercifed, but it is the duty of the Legiflature to make fuch provifion, and for my part, I have always thought the Virginia affembly fliew- ed a very judicious forefight in this particular.

Whether the Virginia ad of expatriation be now in force, is a quefion fo important, that I would not wifh unneceffarily todecide it, If it be, I have no doubt that a citizen of that State, cannot expatriate himfelf in any other manner. It feems moft probable (but I think not certain) from this record, that Talbot was a citizen of Virginia. We are, however, undoubt- edly to confider him as a citizen of the United States. Admit- ting he had a right to expatriate him felf, without any law pre- fcribing tl'e method of his doing fo, we furely muft have fome evidence that he had done it. There is none, but that he went to the T.,~ Inrdies, and took an oath to the Frnch Republic, and I do not think that merely taking fuch became a citizen there. an oath, and being admnitted a citizen there, in itfelf, is evidence of a bonafide expatriation, or completely difcharges the obliga- tionshe owes to his own conntry. Had there been any refic- tions by our own law on his quitting this country, could apy ad of a foreign country, operate as a repeal of thefe ? Cer.- tainly not. When he goes'there, they know nothing of him, perhaps, but from his own reprefentation. He becomes a citi- zen of the new country, at his peril. The a& is complete, if if not, it is fubordinate to the he has legally quitted his own allegiance he originally owed. By allegiance, I mean, that tie by which a citizen of the United States is bound as a member pf the focicty. Did any man fuppofe, when the rights of ci- tizenfhip were fo freely and honorably beftowed on the urnf'r-, tiunate Marquis de la Fayette, that tl.at abfolved him, as a fub-r je6 or citizen of his own country ? It had only this effed, that whenever he came into this country, and chofe to refide here, h w;s ipfo faRin to be deemed a citizen, without any thinZ farther. The fiirme confequence, I thilik, would follow in relpea to rights of ci t inf:,ip, conferred by the French Republic, tpoO forme illufirious chara&ers, in our own, and othec countries, if mnerely intctnded, as ingenioufly fuggefled at the nm-, that upon going to France, and performing the ufual then French citizens, where is the 1honotir

quiftes, they fhould be SUPREME COURT of the United States.

hanour of it ?-Since any man may avail himfelf of an indif- 1795." criminate indulgence granted by law. Some difagreeable di- lemmas, may be occafioned by this double citizenfhip, but the principles, as I have ftatedthem, appear to me to be warrant- ed by law and reafon, and if aly difficulties arife, they (hew more ftrongly the importance of a law, regulating the exercife of the right in queflion.

contended for.

it in itfelf, is an cquivocal acd.

His going to the Weft Indies, and taking an oath of alle- giance there, confidering It might be done, with a view to relinquifh his own country for- ever.

It might he done, with a view to relinquifli 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 effde If the hitter, it would (hew, that he vo- luntarily fubmitted to the embarraffments of t'wo diflind alle- giances. He muft make them as confiftent as he can. By our treaty with Holland, any American citizen, cruifing upon Dutch fubjedts, as commander of a privateer, under a foreign commiflion, is to be deemed a pirate.

If heleft 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 commifflon could not abfolve him from a crime which' he 'as committing in the very adf of taking it, and of which the French goverimient might siot 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 a& under a c6mmiflion, which he believed would, for the prefent, juflify him, tho' this might excufe him from the guilt of piracy, It would not make fuch a contrad in this cafe, even his intention was notj to expatriate himfrlfforcver ; and, confequently, he fill remained an American citizen, and had no authority to take a commiflion at all.

It furely is impoffible for us'to fay, he meant a real expatriation, when his condu& primafacie, as much indicates a crime, as any thing elfe.

If he had fuch an intention before he left this country, why not men- If a citizen of IFirginia, and their adt of expatriation tion it ? was not in force, yet, furely, it prefcribed as good a method of effefingit as any other, and his not purfuing this method, (if he really meant anexpatriation) can be accounted for in no other manner, but that he was confcious, theveffel he was fittingr out, was for the purpofe of cruifing, and would havebeenftopt by the government, had his defign of expatriation fo plainly evinced it. fay, there is no evidence to fatisfy me, that he ceafed 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 againff the Dutch, in violation of the law of nations, generally, and of the treaty with Holland, in parti- My cular.

lawful, becaulfe, I therefore, mujf 1t66 CASEs ruled and adjudged in the

- I795. Myobfervations, as to Talbot, will,

in a great meafurc, Pp- ply to Redick, who appears to have been a citizen of Virginia.

There is no evidence to fatisfy me, that he ceafed to be an Ame- rican citizen, and became a French citizen, abfolved from the duty he owed, as a citizen, to his own country. There is no- thing to fhew this, but a refidence of no long duration, in a French Ifland, his takino- an oath to the French Republic, and beinz admitted a French citizcn, which, for the reafons I have given, I do riot think ftLfficient.

I h addition to my other obtervations, I. may add, how is it poffible, upon this principle, for the public to know in what fitua- tion theyffand, as to anyoneof thef perfons? It is not impoffible, (I believe inflances indeed have already happened of it) that an American citizen may go to fomeof the dominions of the French, become a French'citizen for a time, enjoy all the be- nefits of fich, and afterwards return to his own country, and claim, and enjoy, all the privileges of a citizen there, without the leaft poflibilty of the public knowjing, otherwife than from* accident, whether he has become a citizen of another govern- ment, or not. Suppofe one of them was to infift on holding an eflate'in land, devifed to him after his new citizenihip, how could it be proved he was an alien ?

in Whether,

therefore, the property of the privateer, was in Redick, or in- Wioin and Sinclair, I think it was equally Ame-. rican property, tho' T confefs, the weight of the evidence, prefls me ftrongly with a belief, that the property wis Wrilfon and Sinclair's. -And, in regard to the. objeaion, that nothing they could fay or do, or Talbot either, could affel Redick, I think, as Talb,,t appears as the agent of Redick, of whom we know nothiiog but through him, his declarations are to be re, garded' as R dick's own, and any declarations of fTfi/fn or $in- clair, in hIk prcfence, and any of the condua of either of them, 61n1qioncd bY him, muff have the fame eff :i, as if the declara- tions had been made in the prefence of Redick, and fuch conduL fanLiioncd by himrfbf.

I confider .he proof of the commiffion fufficient, butdeny its o peration, as I confider the veffel to have been an American vef- feli owned by an American or Americans, and with an Anmerican Captain on board.

I now proceed to enquire into the confequences of Ballard''s.

capture, and Talbot's co-operation with him, tho' perhaps, up- on my nrinciples, it is not abhflutely neceffary.

mitting him to have been expatriated, (which, if the Fin'ginia law was in force, I think he was) he did not become a French citizen at all. Only one of the crew was a Frenchman. T thiak, .A! the .reft wci'e proved to be 4 neericans, or EInglih. She was

SUPREF CouR-T of the United States.

was fitted out in the United States. The commiflion, if good 1795" at all, was of a temporary and fecret nature, and feems to have been confined to a fpecial purpofe, to be executed within the United States. She certainly had no authority to cruize, that being fpecified in every commiffionof that nature. Who- ever were her owners, ie does not appear to have been French property. On the contrary, there is the higheff poffibility, that "albhot's'and Ballard's vefils had the fame owners.

So eon- fcious w-s he of the illegality of his condu&l, that he even pre- ferred no' claim for the captured property.

2. Talbot (confidering himfelf as maffer of a lawful priva-

i. Upon fuppofition of

Ballard's being a lawful commiffion, he claims, as being in fight at the time o( the capture. To thi-, it isihfficient to -. If Ballard had fay, that it was not a lawful' commiffion. right, no lawful commillion, h'c ekcnis upon his ip.dtt that if Balla -d.'had no alledging, 'vas not changed to Ballard, and therefore he had property a riarht to take.

lawful cu.r'amiflio i, tha.

This claim (if Talbot's was a lawful privateer) would un- doubtedly be good, if he .was not a confederate with Ballard.

But it is clearthat he was, that he cruized before and. after, in company with him, that he put guns on board of his vefill and there is the iirongeff reafon to believe, that they both be- It is true, if Talbot had con' e up, longed to the ffme owners. ignorant of Ballard's authority, and inadvertently put men on board the prize in conjunS'lon with Ballard, fuppofing he had a lawful commifiion, when in reality he had not, it mightwith that -Talbot thould hold the prize. frme reafon be contended, But, wilful ignorance, is never excufeable ; whtn there is time to enquire, enquiry ought to be made. There is not, how- ever, the leaff reafotn for fuppofing any ignorance in the cafe. it was. He aered in He abetted Ballard's authority, fuch as It does not appear that fupport of it, not in oppofition to it. he ever queftioned it, until after his arrival in Char,'/io :.

It therefore, a mere after-thought. A man having a corn- was, milion, is authorized, but not compelled, to exercife it. His It does not ap- will muft concur to make a capture under it. pear, that he relied, at fea, upon his own force, but upon Bal- lard's; at leaff, in this inflance, upon his own and Ballard's is autho- in conjun1ion. A man having a lawful commiffion, rifcd to Ctuize himfelf, and to eruize in company with others, It does not authori ie him to afficiate having lawful authoritv. with pirr tes, or any unlawful depredators, on the high feas. If he does fo, he departs from his cotimif.on, -efT-mes a new cha- and rifques all the con- ra&ter, which that does not authorift, It is impolibl( that Ballard can be guilty (if 1uquences of it. a crime,

x68' CASEs ruled ard adjudged in the 1795.

a crime, and Tabot, who afinociated with him, in the wilful e--_1 commifiion of it, can be wholly innocent of it. - A man can fie, be guilty of no crime, in obeying a lawful commiffion. therefore, in this inifance, if guilty of a crime, muff be confi- dered altogether detached from a rightful authority, which he abandoned, in fearch of the profit of an illegal adventure. If, at faa, he aaed in fupport of Ballard's claim, how can he claim now, on the principle of that being infupportable ? At fea, 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 fipported Ballard's claim, whereas I I will " ouht to have oppofed it, and flood upon my own. " now take this Dutch .hip as a prize, by my own authority."

For fuch, in effea, I take to be the fubftance of any clain, fuggefted after his arrival in port.

I therefore think, upon this ground, even admitting, that Talbot's was a rightful privateer, his claim is infupportable.

WILSON, JuJlice.-As I decided this caufe in the Circuit Court, it gives me plcafure to be relieved from the necefity of giving any opinion on the appeal, by the unanimity of fentiment 'that prevails among the judges.

Yuflice.-The CUsH-ING,

fa6ts in this cafe, fo fat as they appear to me to be effential for forming an opinion, may be reduced to a very narrow com pafs. Ballard, the commander illegall , fitted out in the United States, of a veffel, which was * cruizes in company with Ta/bht, who alledges that he is a French citizen, and produces a French conimiflion. Ballard captures the Magdalern, a Dutch prize; then Talhot joins him ; and both, having put prize-malters on board, bring the prize into the harbour of CharlejLon. The queftions arifing on this fQatement are, fimplv, whether the capture, under fuch is a violation of our treaty with Holland ? And circumf-fances, Whether it is fuch a cafe of prize, at the courts of the United treaty States can take cognizance of, conififtently with the between America and France f Now, the wh'ile tranfa6tion at Gaudaloupe, as well as here, prefents itfelf to my mind as fraudulent and collufive. But even fuppofing that Talbot was, bonafide, a French citizen, the other circumfiances of the cafe .are fufficient to render the capture void. It was, in truth, a capture by Ballard, who had no authority, or colour of autho- -He was an American citizen; he had rity, for his condu&.

never left the United States ; his veffel was owned by American citizens; and the commiffion, which he held by affignment, was granted by a French admiral, within the United States, to another perfon, for a particular purpofc, but not for the pur- pofe of capture. Then, fhall not the property, which he has thus taken from a nation at peace with the United States, and brought

SUPREME COURT of the United States.

to its owners? 175.'

1

brouglt within our jurifdi6tion, be reftored Every principle of juftice, law 'rnd policy, unite in decreeing the affirmative; and there is no pufitive compac with any power to prevent it.

On the important right of expatriation, I do not think it ne- ceffary to give an opinion; but the docrine mentioned by Hid- to furnifh a reafonable and.-ftisfacory rule, neccius, feems The ad of expatriation fhould be bonafide, and manifeffed, at leaff, by the emigrant's aftlal removal, with his family rnd effeds, 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 7tojice.-The merits of the caufe are fo obvious, that I do not conceive there is much difficulty in pro-., nouncing a fair and prompt decifion, for affirming the decree. of the Circuit Court.

The dodtrine of expatriation is certiAnly of great magnitude; but it is-not neceffary to give an opinion upon it, in the pre- fent caufe, there being no proof, that Captain Talbot's admif- fion 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 citizenfhip under two governments.

It appears, upon the whole, that Ballard's veffel was ille- gally fitted out in the United States ; and the weight of evi- dence fatisfies my mind, that Talbot's veffel, which was orizi- nally Anerican property, continued fo at the time of the cap- ture, notwithifanding all the fraudulent attempts to give it a therefore, was a viola" different complexion. The capture, tion of ihe law of nations, and of the treaty with Holland. The court has a clear jurifditon of the caufe, upon the exprefs au-

4. ,Ini. And every motive of

thority of Pelaches's Cafe. good faith and juftice muff induce us .to concur with the Cir. cit Court, in awarding reftitution.

The Decree of the Circuit. Court affirmed.

The Counfel for the Appellees, then moved the court to affefs additional damages, which was oppofed by Dallas, for the Appellant; and, after, argument, the following order was

BY THE COURT: Ordered, that the decree of the Circuit Court of South Carolina diftri&, pronounced on the 5 th day of November, in the year of our Lord one thoufand feven hun- dred and ninety-four, affirming the decree of the Diftti&'Court of the fame diftrit, pronounced on the fixth day of 4ugujI, in the year of our Lord one thoufandfeven hundred and ninety- ty-four, be in all its parts eftibliflied and affirmed. And it is further confidered, ordered, adjudged and decreed, that the faid TUilliam Talbot, the Plaintiff in error, do pay to the faid 7o0/1 j ?tanfen,

170

CAsEs ruled and adjudged in the .

'thoufand

1795., Janfen, the Defendant in error, in addition to th6 fum of one feven hundred and fifty .five dollirs fifty-three cents, for demurrage and intereft, and eighty-two dollars for coffs, in the decree of the faid Circut Court mentioned, demurrage- for the detention and delay,* of the faid brigantine !rou.w Chrf- tina Maigdalena, at the rate of nine dollars and thirty-three cents, lawful money of the United States, per diem, to be ac-' counted fiom the fifth day of November laft paff, till the fixth day of June laft, the day of the adual fale of the faid brigan-' tine, under the interlocutory order of this court, of the third day of March laff paft, to wit, for two hundred and thirteen days, a fum of nineteen hundred and eighty-feven dollars and twenty-nine cents ; and alfo inter'eft 't 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 fales of the cargo of the faid brigantine heretofore fo!J, by order and periniffion of the faid Diftrid Court, and makinz 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 Yrouw Clhrljfina 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 the whole of which intereft to be ac- and eighty-feven cents, counted to this day, and making together the fuin of two thou- fand :nine hundred and 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 hun- dred and ninety-feven dollars fifty-eight cents, in addition to and exclufive of the demurrage intereft and coifs adjudged in the faid Circuit Court of the United States, fo South Carolina difridt; alfo rine-one dollars and ninety-three cents, for his coifs and charges : and that the faid Yoof/ Janfen have execu- tion of this judgment and decree by fpecial mandate to the faid Circuit Court, and procefs agreeable to the ad cf the Congrefs of the United States, in that cafe made and provided.

February