|Talbot v. Janson
100 U.S. 1
[ Paterson ]
[ Iredell ]
[ Wilson ]
[ Cushing ]
[ Rutledge ]
Talbot v. Janson
Iredell, Justice.--In delivering my opinion on the great points arising in this case, I shall divide the consideration of it under the following heads:
1. Whether the District Court had jurisdiction prima facie upon the subject matter of the libel, taking for granted that the allegations in it were true.
2. Admitting that the court had jurisdiction prima facie, whether William Talbot had stated and supported a case sufficient to entitle him to hold the property as prize, exempt from the jurisdiction and control of the District Court.
1. The first enquiry is,
Whether the district Court had jurisdiction prima facie upon the subject matter of the libel, taking for granted that the allegations in it were true.
These allegations in substance are,
That the ship was taken on the high seas, by a schooner called L'Ami de la Liberte, commanded by Edward Ballard, who had no lawful commission, to take her as the property of an enemy of the French Republic, under whose authority the capture was alleged to be made.
That William Talbot, who came up after the surrender, and put some men on board, when the prize was in possession of Ballard, had also no lawful commission for the purpose of such a capture, being an American citizen, and his owners American citizens likewise.
[p*159] That there was fraud and collusion between Talbot and Ballard, both vessels being in fact the property of the same owner, Wilson and Sinclair who were American citizens.
Such, substantially, are the allegations of the libel, and admitting them to be true, nothing is more clear than that the capture was unlawful.
But it is objected that this is a question of prize or no prize, and whether the ship was lawfully a prize, or not, is for some court of the French Republic alone to determine, under whose authority Ballard and Talbot alledge they acted; and it is contended, that the capture in question being a Dutch ship, and not an American, the United States have no right to decide a dispute between the Dutch and the French, in regard to a capture on the high seas, claimed as lawful by one party and denied to be such by the other, since such an interposition would be equally a violation of the law of nations, and of the 17th article of the treaty with France.
To this objection, the following answers appear to me to be satisfactory:
1. That it is true, both by the law of nations, and the treaty with France, if a French privateer brings an enemy's ship into our ports, which she has taken as prize on the high seas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumstances of the capture.
But this exemption from enquiry, by our courts of justice, in this respect, only belongs to a French privateer, lawfully commissioned, and, therefore, if a vessel claims that exemption, but does not appear to be duly entitled to it, it is the express duty of the court, upon application to make enquiry, whether she is the vessel she pretends to be, since her title to such exemption depends on that very fact.
Otherwise, any vessel whatever under a colour of that kind, might capture with impunity, and defy all enquiry, if she kept out of a French port, equally in violation of the law of nations, and insulting to the French Republic, which, from a regard to its own honor and a principle of justice, would undoubtedly disdain all piratical assistance. She might say, now, I trust, with as much truth as dignity, Non tali auxilio, nec Defensoribus istis tempus eget.
2. That such an enquiry being thus proper to be made, if upon the enquiry it shall appear, that the vessel pretending to be a lawful privateer, is really not such, but uses a colourable commission for the purposes of plunder, she is to be considered by the law of nations, so far at least as a transfer of property is concerned, or a title to hold it insisted upon, in the same light as having no commission at all.
3. That prima facie all piracies and trespasses committed [p*160] against the general law of nations, are enquirable, and may be proceeded against, in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it.
It is expressly held, in an authority quoted, 1 Lex Mercatoria 252. "That if a Spaniard robs a Frenchman on the high seas, their princes being both then in amity with the crown of England, the Frenchman may proceed criminaliter against the Spaniard, to punish him, and civiliter, to have restitution of his vessel." The authorities referred to are Selden mare claus. Lib. 1 chap. 27. Grotius de Jure Belli et Pacis, b.3.c.9. s.16. both books of very high authority.
What is called robbery on the land, is piracy if committed at sea. 3 Inst. 113. 1 Com. Dig. 269. And as every robbery on land includes a trespass, so does every piracy at sea. 1 Com. Dig. 268. Consequently, if there be an unlawful taking, it may be piracy or trespass according to the circumstances of the case, both being equally unlawful, though one a higher species of offence than the other, which cannot alter the intrinsic illegality of the fact common to both, but only occasion a greater or less degree of punishment proportioned to the nature of the offence. It is, therefore, no answer to say, in bar of restitution, that no piracy has been comitted, and therefore no restitution is to follow, since, if a trespass has been committed, though not a piracy, restitution is equally proper as if the offence had amounted to piracy itself.
4. That by a due consideration of the law of nations, whatever opinions may have prevailed formerly to the contrary, no hostilities of any kind, except in necessary self-defence, can lawfully be practiced by one individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority; it is instituted for national purposes, and directed to national objects; and each individual on both sides is engaged in it as a member of the society to which he belongs, not from motives of personal malignity and ill will. He is not to fly like a tiger upon his prey, the moment he sees an individual of his enemy before him. Such savage notions, I believe, obtained formerly. Thank God, more rational ones have succeeded, and a liberal man can frequently see great integrity and honour on both sides, though different and irreconcileable views of national interest or principles may unfortunately engage two nations in hostility. Even in the case of one enemy against another enemy, therefore, there is no colour of justification for any offensive hostile act, unless it be authorized [p161] by some act of the government giving the public constitutional sanction to it.
5. That notwithstanding an apparent contrariety of opinions on this subject, it would be easy to shew, upon principle, if not by authority, that such hostility committed without public authority on the high seas, is not merely an offence against the nation of the individual committing the injury, but also against the law of nations, and, of course, cognizable in other countries: But that is not material in the present stage of the enquiry, which affects only the conduct of our own citizens in our own vessels, attacking and taking, under colour of a foreign commission, on the high seas, goods of our friends.
This is so palpable a violation of our own law (I mean the common law, of which the law of nations is a part, as it subsisted either before the act of Congress on the subject, or since that has provided a particular manner of enforcing it,) as well as of the law of nations generally; that I cannot entertain the slightest doubt, but that upon the case of the libel, prima facie, the District Court had jurisdiction.
2. The next enquiry is,
Whether William Talbot has stated and supported a case sufficient to entitle him to hold the property as prize, exempt from the jurisdiction of the District Court.
This claim is grounded as follows:
1. That at the time of his receiving the commission, and at the time of the capture, he was a real French citizen, and his vessel was French property, viz. the property of Samuel Redick, a French citizen at Point-a Pitre in Guadaloupe.
2. That he had a lawful commission to cruize from the French Republic.
3. That whether Ballard had a lawful commission or not, he himself was lawfully entitled: 1. To part, if Ballard had a lawful commission, as having been in sight at the time of the capture, and therefore contributing to intimidate the enemy into a surrender upon the common principle. 2. If Ballard had no lawful commission, and is to be considered as a pirate, his capture did not change the property; of course, it remained Dutch, and he, as captain of a French privateer, had a right to seize and retain it.
The first point to be considered is.
Whether Talbot at the time of his receiving the commission, and at the time of the capture, was a French citizen.
This involves the great question as to the right of expatriation, upon which so much has been said in this cause. Perhaps it is not necessary it should be explicitly decided on this occasion; but I shall freely express my sentiments on the subject. [p162] That a man ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another: are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.
The only difference of opinion is, as to the proper manner of executing this right.
Some hold, that it is a natural unalienable right in each individual; that it is a right upon which no act of legislation can lawfully be exercised, inasmuch as a legislature might impose dangerous restraints upon it; and, of course, it must be left to every man's will and pleasure, to go off, when, and in what manner, he pleases.
This opinion is deserving of more deference, because it appears to have the sanction of the Constitution of this state, if not of some other states in the Union.
I must, however, presume to differ from it, for the following reasons:
1. It is not the exercise of a natural right, in which the individual is to be considered as alone concerned. As every man is entitled to claim rights in society, which it is the duty of the society to protect; he, in his turn, is under a solemn obligation to discharge all those duties faithfully, which he owes, as a citizen, to the society of which he is a member, and as a man to the several members of the society individually with whom he is associated. Therefore, if he has been in the exercise of any public trust, for which he has not fully accounted, he ought not to leave the society until he has accounted for it. If he owes money, he ought not to quit the country, and carry all his property with him, without leave of his creditors. Many other cases might be put, shewing the importance of the public having some hold of him, until he has fairly performed all those duties which remain unperformed, before he can honestly abandon the society forever. But it is said, his ceasing to be a citizen, does not deprive the public, or any individual of it, of remedies in these respects: Yet the right of emigration is said to carry with it the right of removing his family, and effects. What hold have they of him afterwards?
2. Some writers on the subject of expatriation say, a man shall not expatriate in a time of war, so as to do a prejudice to his country. But if it be a natural, unalienable, right, upon the footing of mere private will, who can say this shall not exercised in time of war, as well as in time of peace, since the [p163] individual upon that principle, is to think of himself only? I therefore, think, with one of the gentlemen for the defendant, that the principle goes to a state of war, as well as peace, and it must involve a time of the greatest public calamity, as well as the profoundest tranquillity.
3. The very statement of an exception in time of war, shews that the writers on the law of nations, upon the subject in general, plainly mean, not that it is a right to be always exercised without the least restraint of his own will and pleasure, but that it is a reasonable and moral right which every man ought to be allowed to exercise, with no other limitation than such as the public safety or interest requires, to which all private rights ought and must forever give way. And if in any government, principles of patriotism and public good ought to predominate over mere private inclination, surely they ought to do so in a Republic founded on the very basis of equal rights, to be perfectly enjoyed in every instance, where the public good does not require a restraint.
4. In some instances, even in time of war, expatriation may fairly be permitted. It ought not then to be restrained. But who is to permit it? The Legislature surely; the constant guardian of the public interest, where a new law is to be made, or an old one dispensed with. If they may take cognizance in one instance, (as for example, in time of war) because the public safety may require it; why not in any other instance, where the public safety, for some unknown cause, may equally require it? Upon the eve of a war, it may be still more important to exercise it, as we often see in case of embargoes.
5. The supposition, that the power may be abused, is of no importance, if the public good requires its exercise. This feverish jealousy, is a passion that can never be satisfied. No man denies the propriety of the Legislature having a taxative power. Suppose it should be seriously objected to, because the Legislature might tax to the amount of 19s. in the pound? They have the power, but does any man fear the exercise of it? A Legislature must possess every power necessary to the making of laws. When constructed as ours is, there is a no danger of any material abuse. But a Legislature must be weak to the extremest verge of folly, to wish to retain any man as a citizen whose heart and affections are fixed on a foreign country, in preference to his own. They would naturally wish to get rid of him as soon as they could, and, therefore, perhaps, the proper precaution would be, to restrain acts of banishment, (if such could be at all permitted) rather than to limit the legislative control over expatriation. But is there no danger of abuse on the other side? Have not all the contentions about expatriation in the courts, arisen from a want of the exercise [p164] of this very authority? For, if the Legislature had prescribed a mode, every one would know, whether it had or had not been pursued, and all rights, private as well as public, would be equally guarded; but upon the present doctrine, no rights are secured, but those of the expatriator himself.
I, therefore, have no doubt, that when the question is in regard to a citizen of any country, whose constitution has not prohibited the exercise of the legislative power in this instance, it not only is a proper instance in which it may be exercised, but it is the duty of the Legislature to make such provision, and for my part I have always thought the Virginia assembly shewed a very judicious foresight in this particular.
Whether the Virginia act of expatriation be now in force, is a question so important, that I would not wish unnecessarily to decide it. If it be, I have no doubt that a citizen of that State, cannot expatriate himself in any other manner. It seems most probable (but I think not certain) from this record, that Talbot was a citizen of Virginia. We are, however, undoubtedly to consider him as a citizen of the United States. Admitting he had a right to expatriate himself, without any law prescribing the method of his doing so, we surely must have some evidence that he had done it. There is none, but that he went to the West Indies, and took an oath to the French Republic, and became a citizen there. I do not think that merely taking such an oath, and being admitted a citizen there, in itself, is evidence of a bona fide expatriation, or completely discharges the obligations he owes to his own country. Had there been any restrictions by our own law on his quitting this country, could any act of a foreign country, operate as a repeal of these? Certainly not. When he goes there, they know nothing of him, perhaps, but from his own representation. He becomes a citizen of the new country, at his peril. The act is complete, if he has legally quitted his own; if not, it is subordinate to the allegiance he originally owed. By allegiance, I mean, that tie by which a citizen of the United States is bound as a member of the society. Did any man suppose, when the rights of citizenship were so freely and honorably bestowed on the unfortunate Marquis de la Fayette, that that absolved him, as a subject or citizen of his country? It had only this effect, that whenever he came into this country, and chose to reside here, he was ipso facto to be deemed a citizen, without any thing farther. The same consequence, I think, would follow in respect to rights of citizenship, conferred by the French Republic, upon some illustrious characters, in our own, and other countries. If merely intended, as ingeniously suggested at the bar, that upon going to France, and performing the usual requisites, they should be then French citizens, where is the [p165] honour of it?--Since any man may avail himself of an indiscriminate indulgence granted by law. Some disagreeable dilemmas, may be occasioned by this double citizenship, but the principles, as I have stated them, appear to me to be warranted by law and reason, and if any difficulties arise, they shew more strongly the importance of a law, regulating the exercise of the right in question.
His going to the West Indies, and taking an oath of allegiance there, considering it in itself, is an equivocal act. It might be done with a view to relinquish his own country forever. It might be done, with a view to relinquish it for a time, in order to gain some temporary benefit by it. If the former, and this was clearly proved, it possibly might have the effect contended for. If the latter, it would shew, that he voluntarily submitted to the embarrassments of two distinct allegiances. He must make them as consistent as he can. By our treaty with Holland, any American citizen, cruising upon Dutch subjects, as commander of a privateer, under a foreign commission, is to be deemed a pirate. If he left America, for the very purpose of doing this, and became a French citizen, that he might have a colour for doing so, then his taking a French commission could not absolve him from a crime which he was committing in the very act of taking it, and of which the French government might not be aware, as they are not bound to take notice of any other treaties but their own. If he went, intending to reside there for a time, and to act under a commission, which he believed would, for the present, justify him, tho' this might excuse him from the guilt of piracy, it would not make such a contract lawful, because, in this case, even his intention was not to expatriate himself forever; and, consequently, he still remained an American citizen, and had no authority to take a commission at all. It surely is impossible for us to say, he meant a real expatriation, when his conduct prima facie, as much indicates a crime, as any thing else. If he had such an intention before he left this country, why not mention it? If a citizen of Virginia, and their act of expatriation was not in force, yet, surely, it prescribed as good a method of effecting it as any other, and his not pursuing this method, (if he really meant an expatriation) can be accounted for in no other manner, but that he was conscious, the vessel he was fitting out, was for the purpose of cruising, and would have been stopped by the government, had his design of expatriation so plainly evinced it.
I therefore, must say, there is no evidence to satisfy me, that he ceased to be an American citizen, so as to be absolved from the duties he owed to his own country; and among others, that duty of not cruising against the Dutch, in violation of the law of nations, generally, and of the treaty with Holland, in particular.
[p*166] My observations, as to Talbot, will in a great measure, apply to Redick, who appears to have ben a citizen of Virginia. There is no evidence to satisfy me, that he ceased to be an American citizen, and became a French citizen, absolved from the duty he owed, as a citizen, to his own country. There is nothing to shew this, but a residence of no long duration, in a French Island, his taking an oath to the French Republic, and being admitted a French citizen, which, for the reasons I have given, I do not think sufficient.
In addition to my other observations, I may add, how is it possible, upon this principle, for the public to know in what situation they stand, as to any one of these persons? It is not impossible, (I believe instances indeed have already happened of it) that an American citizen may go to some of the dominions of the French, become a French citizen for a time, enjoy all the benefits of such, and afterwards return to his own country, and claim, and enjoy, all the privileges of a citizen there, without the least possibility of the public knowing, otherwise than from accident, whether he has become a citizen of another government, or not. Suppose one of them was to insist on holding an estate in land, devised to him after his new citizenship, how could it be proved he was an alien?
Whether, therefore, the property of the privateer was in Redick, or in Wilson and Sinclair, I think it was equally American property, tho' I confess, the weight of the evidence, impresses me strongly with a belief, that the property was Wilson and Sinclair's. And, in regard to the objection, that nothing they could say or do, or Talbot appears as the agent of Redick, I think, as Talbot either, could affect Redick, of whom we know nothing but through him, his declarations are to be regarded as Redick's own, and any declarations of Wilson or Sinclair, him, his presence, and any of the conduct of either of them, sanctioned by him, must have the same effect, as if the declarations had been made in the presence of Redick, and such conduct sanctioned by himself.
I consider the proof of the commission sufficient, but deny its operation, as I consider the vessel to have been an American vessel, owned by an American or Americans, and with an American Captain on board.
I now proceed to enquire into the consequences of Ballard's capture, and Talbot's co-operation with him, tho' perhaps, upon my principles, it is not absolutely necessary.
1. Ballard's capture, I think, is clearly insupportable. Admitting him to have been expatriated, (which, if the Virginia 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. I think, all the rest were proved to be American or English. She [p167] was fitted out in the United States. The commission, if good at all, was of a temporary and secret nature, and seems to have been confined to a special purpose, to be executed within the United States. She certainly had no authority to cruise, that being specified in every commission of that nature. Whoever were her owners, she does not appear to have been French property. On the contrary, there is the highest possibility, that Talbot's and Ballard's vessels had the same owners. So conscious was he of the illegality of his conduct, that he even preferred no claim for the captured property.
2. Talbot (considering himself as master of a lawful privateer) claims upon two grounds: 1. Upon supposition of Ballard's being a lawful commission, he claims as being in sight at the time of the capture. To this, it is sufficient to say, that it was not a lawful commission. 2. If Ballard had no lawful commission, he claims upon his independent right, alledging that if Ballard had no lawful commission the property was not changed to Ballard, and therefore he had a right to take.
This claim (if Talbot's was a lawful privateer) would undoubtedly be good, if he was not a confederate with Ballard. But it is clear that he was, that he cruized before and after, in company with him, that he put guns on board of his vessel; and there is the strongest reason to believe, that they both belonged to the same owners. It is true, if Talbot had come up, ignorant of Ballard's authority, and inadvertently put men on board the prize in conjunction with Ballard, supposing he had a lawful commission, when in reality he had not, it might with some reason be contended, that Talbot should hold the prize. But, wilful ignorance is never excusable; when there is time to enquire, enquiry ought to be made. There is not, however, the least reason for supposing any ignorance in the case. He abetted Ballard's authority, such as it was. He acted in support of it, not in opposition to it. It does not appear that he ever questioned it, until after his arrival in Charleston. It was, therefore, a mere afterthought. A man having a commission, is authorized, but not compelled, to exercise it. His will must concur to make a capture under it. It does not appear, that he relied, at sea, upon his own force, but upon Ballard's; at least in this instance, upon his own and Ballard's in conjunction. A man having a lawful commission, is authorized to cruize himself, and to cruize in company with others, having lawful authority. It does not authorize him to associate with pirates, or any unlawful depredators, on the high seas. If he does so, he departs from his commission, assumes a new character, which that does not authorize, and risques all the consequences of it. It is impossible that Ballard can be guilty of [p168] a crime, and Talbot, who associated with him, in the wilful commission of it, can be wholly innocent of it. A man can be guilty of no crime, in obeying a lawful commission. He, therefore, in this instance, if guilty of a crime, must be considered altogether detached from a rightful authority, which he abandoned, in search of the profit of an illegal adventure. If, at sea, he acted in support of Ballard's claim, how can he claim now, on the principle of that being insupportable? At sea, was the place for him to make his option. He has no right, after the prize is brought into port, to say--"I made a bad option there: I supported Ballard's claim, whereas I ought to have opposed it, and stood upon my own. I will now taken this Dutch ship as a prize, by my own authority." For such, in effect, I take to be the substance of any claim, suggested after his arrival in port.
I therefore think, upon this ground, even admitting, that Talbot's was a rightful privateer, his claim is insupportable.