PATERSON, J., Opinion

SUPREME COURT OF THE UNITED STATES

3 U.S. 133

Talbot v. Janson

Paterson, Justice.--The libel in this cause was exhibited by Joost Jansen, master of the Vrouw Christiana Magdalena, a Dutch brigantine, owned by citizens of the United Netherlands; and its prayer is, that Edward Ballard, and all others, having claim, may be compelled to make restitution. The District Court directed restitution; the Circuit Court affirmed the decree; and the cause is now before this court for revision. The Magdalena was captured by Ballard, or by Ballard and Talbot, and brought into Charleston. The general question is, whether the decree of restitution was well awarded. In discussing the question, it will be necessary to consider the capture as made,

1. By Ballard.

2. By Ballard and Talbot.

1. By Ballard. This ground not being tenable, has been almost abandoned in argument. It is, indeed, impossible to suggest any reason in favor of the capture on the part of Ballard. Who is he? A citizen of the United States: For, although he has renounced his allegiance to Virginia, or declared an intention of expatriation, and admitting the same to have been constitutionally done, and legally proved, yet he had not emigrated to, and become the subject or citizen of any foreign kingdom or republic. He was domiciliated within the United States, from whence he had not removed and joined himself to any other country, settling there his fortune and family. [p153] From Virginia, he passed into South Carolina, where he sailed on board the armed vessel called the Ami de la Liberte. He sailed from, and returned to, the United States, without so much as touching at any foreign port, during his absence. In short, it was a temporary absence, and not an entire departure from the United States; an absence with intention to return, as has been verified by his conduct and the event, and not a departure with intention to leave this country, and settle in another. Ballard was and still is, a citizen of the United States; unless, perchance, he should be a citizen of the world. The latter is a creature of the imagination, and far too refined for any republic of ancient or modern times. If however, he be a citizen of the world, the character bespeaks universal benevolence, and breathes peace on earth and good will to man; it forbids roving on the ocean in quest of plunder, and implies amenability to every tribunal. But what is conclusive on this head is, that Ballard sailed from this country with an iniquitous purpose, cum dolo et culpa, in the capacity of a cruizer, against friendly powers. The thing itself was a crime. Now it is an obvious principle, that an act of illegality can never be construed into an act of emigration, or expatriation. At that rate, treason and emigration, or treason and expatriation, would, in certain cases, be synonymous terms. The cause of removal must be lawful; otherwise the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member? As we have no statute of the United States, on the subject of emigration, I have taken up the doctrine respecting it, as it stands on the broad basis of the law of nations, and have argued accordingly. That law is in no wise applicable to the present case: for, Ballard, the time of his taking the command of the Ami de la Liberte, and of his capturing the Magdalena, was a citizen of the United States; he was domiciliated within the same, and not elsewhere; and, besides, his cause of departure, supposing it to have been a total departure from and abandonment of his country, was unwarrantable, as he went from the United States, in the character of an illegal cruizer. The act of the legislature of Virginia, does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia affects Ballard's citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States? Allegiance to a particular state, is one thing; [p*154] allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the later? The sovereignties are different; the allegiance is different; the right to, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty. Of course there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unison and order. A slight collision may disturb the harmony of the parts, and endanger the machinery of the whole. A statute of the United States, relative to expatriation is much wanted; especially as the common law of England, is by the constitution of some of the states, expressly recognized and adopted. Besides, ascertaining by positive law the manner, in which expatriation may be effected, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.

But there is another ground, which renders the capture on the part of Ballard, altogether unjustifiable. The Ami de la Liberte was built in Virginia, and is owned by citizens of that state; she was fitted out as an armed sloop of war, in, and as such, sailed from the United States, under the command of Ballard, and cruised against, and captured vessels belonging to, the subjects of European powers, at peace with the said states. Such was her predicament, when she took the Magdalena. It is idle to talk of Ballard's commission; if he had any, it was not a commission to cruise as a privateer, and if so, it was of no validity, because granted to an American citizen, by a foreign officer, within the jurisdiction of the United States. We are not, however, to presume, that the French Admiral or Consul would have issued a commission of the latter kind, because it would have been a flagrant violation of the sovereignty of the United states; and of course incompatible with his official duty. Therefore, it was not, and, indeed, could not, have been a war commission. It is not necessary, at present, to determine, whether acting under colour of such a commission would be a piratical offence? Every illegal act, or transgression, committed on the high seas, will not amount to piracy. A capture, although not piratical, may be illegal, and of such a nature as to induced the court to award restitution.

It has been urged in argument, that the Ami de la Liberte is the property of the French republic. The assertion is not warranted by the evidence; and if it was, would not, perhaps, be of any avail, so as to prevent restitution by the competent authority. The proof is clear and satisfactory, that she was an American vessel, owned by citizens of the United States, and [p155] still continues to be so. The evidence in support of her being French property is extremely weak and futile; it makes no impression, it merits no attention. But if the Ami de la Liberte be the property of the French Republic, it might admit of a doubt, whether it would be available, so as to legalise her captures and prevent restoration; because she was, after the sale (if any took place) to the republic, and before her departure from, and while she remained in, the United States, fitted out as an armed vessel of war; from whence in such capacity, and commanded by Ballard, and American citizen, she set sail, and made capture of vessels belonging to citizens of the United Netherlands. The United States would, perhaps, be bound, both by the law of nations and an express stipulation in their treaty with the Dutch, to restore such captured vessels, when brought within their jurisdiction, especially if they had not been proceeded upon to condemnation in the Admiralty of France. On this, however, I give no opinion. The United States are neutral in the present war; they take no part in it; they remain common friends to all the belligerent powers, not favoring the arms of one to the detriment of the others. An exact impartiality must mark their conduct towards the parties at war; for, if they favour one to the injury of the other, it would be a departure from pacific principles, and indicative of an hostile disposition. It would be a fraudulent neutrality To this rule here is no exception, but what arises from the obligation of antecedent treaties, which ought to be religiously observed. If, therefore, the capture of the Magdalena was effected by Ballard alone, it must be pronounced to be illegal, and of course the decree of restitution is just and proper. This leads us,

II. To consider the capture as having been made by Ballard and Talbot. Talbot commanded the privateer L'Ami de la Point a Pitre. The question is, as the Magdalena struck to and was made prize of by Ballard, and as Talbot, who knew his situation, aided in his equipment, and acted in confederacy with him, afterwards had a sort of joint possession, whether Talbot can detain her as prize by virtue of his French commission? To support the validity of Talbot's claim it is contended, that Ballard had no commission or an inadequate one, and therefore his capture was illegal: That it was unlawful for Talbot to take possession of the ship so captured, being a Dutch bottom, as the United Netherlands were at open war and enmity with the French republic, and Talbot was a naturalized French citizen, acting under a regular commission from the Governor of Guadaloupe. It has been already observed, that Ballard was a citizen of the United States; that the Ami de la Liberte of which he had the command, was fitted out and armed as a vessel of war in the United States; that as such she sailed from the United States, and cruised against [p156] nations at peace and in amity with the said states. These acts were direct and daring violations of the principles of neutrality, and highly criminal by the law of nations. In effecting this state of things, how far was Talbot instrumental and active? What was his knowledge, his agency, his participation, his conduct in the business? It appears in evidence, that Talbot expected Ballard at Tybee; that he waited for him there several days; that he set sail without him, and in a short time returned to his former station. This indicates contrivance and a previous communication of designs. At length Ballard appeared. On his arrival, Talbot put on board the Ami de la Liberte, in Savannah river, and confessedly within the jurisdiction of the United States, four canon, which he had brought for the purpose. Were these guns furnished by order of the French Consul? The insinuation is equally unfounded and dishonorable. They also fired a salute, and hailed Sinclair, a citizen of the United States, as an owner. An incident of this kind, at such a moment, has the effect of illumination. Talbot knew Ballard's situation, and in particular aided in fitting out the Ami de la Liberte by furnishing her with guns. Without this assistance she would not have been in a state for war. An essential part of the outfit, therefore, was provided by Talbot. The equipment being thus completed, the two privateers went to sea. When on the ocean, they acted in concert; they captured together. Talbot knew that Ballard had no commission; he so states it in his claim: the facts confirm the statement; for, about an hour after Ballard had captured the Magdalena, he came up, and took a joint possession, hoping to cover the capture by his commission, and thus to legalise Ballard's spoliation. How silly and contemptible is cunning--how vile and debasing is fraud. In furnishing Ballard with guns, in aiding him to arm and outfit, in co-operating with him on the high seas, and using him as the instrument and means of capturing vessels, Talbot assumed a new character, and instead of pursuing his commission acted in opposition to it. If he was a French citizen, duly naturalized, and if, as such, he had a commission fairly obtained, he was authorized to capture ships belonging to the enemies of the French Republic, but not warranted in seducing the citizens of neutral nations from their duty, and assisting them in committing depredations upon friendly powers. His commission did not authorize him to abet the predatory schemes of capturing vessels, Talbot assumed a new character, and instead of pursuing his commission acted in opposition to it. If he was a French citizen, duly naturalized, and if, as such, he had a commission fairly obtained, he was authorized to capture ships belonging to the enemies of the French republic, but not warranted in seducing the citizens of neutral nations from their duty, and assisting them in committing depredations upon friendly powers. His commission did not authorize him to abet the predatory schemes of an illegal cruiser on the high seas; and if he undertook to do so, he unquestionably deviated from the path of duty. Talbot was an original trespasser, for he was concerned in the illegal outfit of the Ami de la Liberte. Shall he then reap any benefit from her captures, when brought within [p157] the United States? Besides, it is in evidence, that Ballard took possession first of the Magdalena, and put on board of her a prize- master and some hands; Talbot, in about an hour after, came up, and also put on board a prize- master, and other men. The possession in the first instance was Ballard's, he was not ousted of it; the prey was not taken from him; indeed, it was never intended to deprive him of it. So far from it, that it was an artifice to cover the booty. Talbot's possession was gained by a fraudulent co-operation with Ballard, a citizen of the United States, and was a mere fetch or contrivance in order to secure the capture. Ballard still continued in possession. The Magdalena thus was taken and possessed, was carried into Charleston. Can there be a doubt with respect to restoration? Stating the case answers the question. It has been said that Ballard had a commission, and acted under it. The point has already been considered, and indeed is not worth debating; the commission, if any, was illegal and of course the seizures were so. But then what effect has this upon Talbot? Does it make his case better or worse? The truth is, that Talbot knew that Ballard had no commission, and he also knew the precise case and situation of the Ami de la Liberte; to whom she belonged, where fitted out, and for what purpose. Talbot gave Ballard guns within the jurisdiction the United States, and thus aided in making him an illegal cruizer; he consorted and acted with him, and was a participant in the iniquity and fraud. In short, Ballard took the Magdalena, had the possession of her, and kept it; Talbot was in under Ballard by connivance and fraud, not with a view to oust him of he prize, but to cover and secure it; not with a view to bring him into judgment as a transgressor against the law of nations, but to intercept the stroke of justice and prevent his being punished. If Talbot procured possession of the Magdalena through the medium of Ballard, a citizen of the United States, and then brought her within the jurisdiction of the said States, would it not be the duty of the competent authority to order her to be restored? The principle deducible from the law of nations, is plain;--you shall not make use of our neutral arm, to capture vessels of your enemies, but of our friends. If you do, and bring the captured vessels within our jurisdiction, restitution will be awarded. Both the powers, in the present instance, though enemies to each other, are friends of the United States; whose citizens ought to preserve a neutral attitude; and should not assist either party in their hostile operations. But if, as is agreed on all hands, Ballard first took possession of the Magdalena, and if he continued in possession, and brought her within the jurisdiction of the United States, which I take to be the case, then no question can arise with respect to the legality [p158] of restitution. It is an act of justice, resulting from the law of nations, to restore to the friendly power the possession of his vessel, which a citizen of the United States illegally obtained, and to place Joost Jansen, the master of the Magdalena, in his former state, from whence he had been removed by the improper interference, and hostile demeanor of Ballard. Besides, it is right to conduct all cases of this kind, in such a manner, as that the persons guilty of fraud, should not gain by it. Hence the efficacy of the legal principle, that no man shall set up his own fraud or iniquity, as a ground of action or defence. This maxim applies forcibly to the present case, which, in my apprehension, is a fraud upon the principles of neutrality, a fraud upon the law of nations, and an insult, as well as a fraud, against the United States, and the Republic of France.

I am, therefore, of opinion, that the decree of the Circuit Court ought to be affirmed. Being clear on the preceding points, it supercedes the necessity of deciding upon other great questions in the cause; such as, whether Redick and Talbot were French citizens; whether the bill of sale was colourable and fraudulent; whether Redick, if a French citizen, did not lend his name as a cover; and whether the property did not continue in Sinclair and Wilson, citizens of the United States.