CUSHING, J., Opinion

SUPREME COURT OF THE UNITED STATES

3 U.S. 133

Talbot v. Janson

Cushing, Justice.--The facts in this case, so far as they appear to me to be essential for forming an opinion, may be reduced to a very narrow compass. Ballard, the commander of a vessel, which was illegally fitted out in the United States, cruizes in company with Talbot, who alledges that he is a French citizen, and produces a French commission. Ballard captures the Magdalena, a Dutch prize; then Talbot joins him; and both, having put prize-masters on board, bring the prize into the harbour of Charleston. The questions arising on this statement are, simply, whether the capture, under such circumstances, is a violation of our treaty with Holland? And whether it is such a case of prize, as the Courts of the United States can take cognizance of, consistently with the treaty between America and France? Now, the whole transaction at Gaudaloupe, as well as here, presents itself to my mind as fraudulent and collusive. But even supposing that Talbot was, bona fide, a French citizen, the other circumstances of the case are sufficient to render the capture void. It was, in truth, a capture by Ballard, who had no authority, or colour of authority, for his conduct. He was an American citizen; he had never left the United States; his vessel was owned by American citizens; and the commission, which he held by assignment, was granted by a French admiral, within the United States, to another person, for a particular purpose, but not for the purpose of capture. Then, shall not the property, which he has thus taken from a nation at peace with the United States, and [p169] brought within our jurisdiction, be restored to its owners? Every principle of justice, law and policy, unite in decreeing the affirmative; and there is no positive compact with any power to prevent it.

On the important right of expatriation, I do not think it necessary to give an opinion; but the doctrine mentioned by Heineccius, seems to furnish a reasonable and satisfactory rule. The act of expatriation should be bona fide, and manifested, at least, by the emigrant's actual removal, with his family and effects, 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.