| Talbot v. Janson
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100 U.S. 1
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| Syllabus
| Opinion
[ Paterson ] | Opinion
[ Iredell ] | Opinion
[ Wilson ] | Opinion
[ Cushing ] | Opinion
[ Rutledge ] |
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Talbot v. Janson
This was a Writ of Error, in the nature of an Appeal, from the Circuit Court for the district of South Carolina; and the following circumstances appeared upon the pleadings:--A Libel was filed against Edward Ballard, Captain of an armed vessel, called L'Ami de la Liberte, on the Admiralty side of the District Court of South Carolina, in June, 1794, by Joost Janson, late master of the Brigantine Magdalena (then lying at Charleston. within the jurisdiction of the Court) in which it was set forth, that the Brigantine and her cargo were the property of Citizens of the United Netherlands, a nation at peace, and in treaty with the United States of America; that the Brigantine sailed from Curacoa, on a voyage to Amsterdam; but, on the 16th of May, 1794, being about fifteen miles N. W. of the Havanna, on the west side of Cuba, she was taken possession of by L'Ami de la Point at Petre, commanded by Captain Wm. Talbot, on board of which the mate and four of the crew of the Brigantine Magdalena were placed; and that the two schooners together with the Brigantine, sailed for Charleston, where the last arrived on the 25th of May, 1794. The Libellant proceeds to aver, that Edward Ballard, was a native of Virginia, a citizen and inhabitant of the United States, and a Branch Pilot of the Chesapeake and Port Hampton; that L'Ami de la Liberte is an American built vessel, owned by citizens of the United States (particularly by John Sinclair, Solomon Wilson, &c.) and was armed and equipped in Chesapeake-Bay and Charleston, by Edward Ballard, and others, contrary to the President's Proclamation, as well as the general law of neutrality, and the law of nations; that Edward Ballard had not, and could not legally have, any commission to capture, Dutch vessels, or property; that the capture was in direct violation of the 13th and 19th articles of the Treaty between [p*134] America and Holland; and that a capture without a commission, or with a void commission, or as pirates, could not divest the property of the original, bona fide, owners, in whose favour, therefore, a decree of restitution was prayed.
On the 27th of June, 1794, William Talbot, filed a claim in this cause; and, thereupon set forth, that he was admitted a Citizen of the French Republic, on the 28th December, 1793, by the Municipality of Point a Petre, at Guadaloupe; and on the 2nd of January following, received a commission from the Governor of that island, as Captain of the schooner L'Ami de la Point Petre, which was owned by Samuel Redick, a French citizen, resident at Point a Petre, since the 31st Dec. 1793, and had been armed and equipped at that place, as a privateer under the authority of the French Republic. That the claimant being on a cruise, boarded and took the Brigantine, being the property of subjects 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 Liberte, on board the Brigantine, yet as they produced no commission, or authority, for taking possession of her, the Claimant sent her as his prize into Charleston, having put on board several of his crew to take charge of her, and particularly John Remsen, in the character of Prize Master, to whom he gave a copy of his commission. The Claimant, therefore, prayed, that the Libel should be dismissed with Costs.
On the 3d of July, 1794, the libellant filed a Replication, in which he set forth, that Wm. talbot, the claimant, is an American citizen, a native and inhabitant of Virginia; that his vessel (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 Wilson, American citizens, and Samuel Redick, also an American citizen, though fraudulently removed to Point a Petre, for the purpose of privateering. That J. Sinclair had received large sums as his share of prizes, and Captain Talbot had remitted to the other owners, their respective shares. That there is a collusion between Captains Talbot and Ballard, whose vessels are owned by the same persons, and sailed in company from Charleston, on the 5th of May, 1794.
On the 5th July, 1794, William Talbot added a duplicate to his claim, in which he protested against the jurisdiction of the court; insisted that even if there had been a collusion between him and Capt. Ballard, it was lawful as a stratagem of war; and averred that John Sinclair was not the owner of the privateer, that Samuel Redick was sole owner, and that he never had paid any prize money to John Sinclair.
On the 6th of August, 1794, the district court decided in favor of its jurisdiction, dismissed the claim of Captain [p*135] Talbot, and decreed restitution of the brigantine and her cargo to the libellant for the use of the Dutch owners. An appeal was instituted, but in October "Term, 1794, the Circuit Court affirmed the decree of the District Court; and allowed two guineas per diem for damages, and 7 per cent on the proceeds of the cargo (which had been sold under an order of the court) from the 6th of August, 1794, with 82 dollars costs. Upon this affirmance of the decree of the District Court, the present writ of error was founded. It may be proper to add, that Captain Ballard had been indicted in the district of Charleston, on a charge of piracy; but was acquitted agreeably to the directions given to the jury by Mr. Justice Wilson, who presided at the trial.
From the material facts, which appeared upon the depositions and exhibits accompanying the record, the following circumstances were ascertained:
1st. in relation to the citizenship of Captain Talbot and the property of the vessel which he commanded, it appeared, that he was a native of Virginia, that he sailed from America in the close of November, 1793, and arrived soon afterwards at Point-a-Petre, in the island of Gaudaloupe; that having taken an oath of allegiance to the French Republic, he was there naturalized by the municipality as a French citizen, on the 28th of December, 1793; and that on the 2d of January, 1794, authority was given by the Governor of Gaudaloupe to Samuel Redick, to fit out the schooner, L'Ami de la Point-a Petre, under Captain Talbot's command, Redick having entered into the usual security, as owner of the privateer. The schooner was built in America, called the "Fairplay," and had been owned by John Sinclair, and Solomon Wilson, American citizens; but she was carried to Point-a-Petre, by Captain Talbot, and there, on the 31st December, 1793, by virtue of a power of attorney from Sinclair & Wilson, dated the 24th of November, 1793, he sold her for 26,400 livres, as the bill of sale set forth, to S. Redick, who was a native of the United States, but had, also, been naturalized, (after an occasional residence for some time) as a citizen of the French Republic, on the same 28th of December, 1793. The bill of sale, also, stated that certain cannon and ammunition on board the vessel were included in the sale. The schooner, commanded by Captain Talbot, sailed immediately after this transaction, on a cruise, and had taken several prizes previously to the capture of the Magdalena. There was some slight evidence, also, to sanction an allegation, that of these prizes, taken subsequent to the sale of the vessel to Redick, a part of the proceeds had been paid by Talbot to the original owners, Sinclair & Wilson.
2d. In relation to the citizenship of Captain Ballard, and the [p*136] property of the vessel, which he commanded, it appeared, that he was a native of Virginia; but that in the court of Isle of Wight county, of April Term, 1794, he had renounced, upon record his allegiance to that State, and to the United States, agreeably to the provisions of a law of Virginia; [n1] though previously to the capture of the Magdalena he had not been naturalized in, (nor, indeed, had he visited) any other country. L'ami de la Liberte had been employed, but not armed, by the French Admiral, Vanstable, then lying with a fleet in the Chesapeake; and on the 13th Germinal, 1794, ( 1794,) he had given Sinclair a general commission to command her, as an advice or packet boat. This commission, however, was assigned by indorsement from Sinclair to Capt. Ballard, the assignment was recognized by the French Consul at Charleston, on the 11th of Floreal (the of ) following; and a copy of it had been certified and delivered by Capt. Ballard to the prize master of one of his prizes. There was full proof that L'Ami de la Liberte had received some guns from 'Ami de la Point-a-Petre, when they first met, by appointment, in Savannah river, and that she had been supplied with ammunition, &c. within the jurisdiction of the United States. It did not appear, that she had gone into any other than an American port, though she had made repeated cruizes, before the capture of the Magdalena; and there were strong circumstances to shew, that she was still owned by Sinclair, though she had been employed by Admiral Vanstable.
3d. In relation to the concert of the two schooners, and the capture of the Magdalena, it appeared, that before Capt. Ballard's vessel was fit for sea, it had been generally reported, and believed, and there was some evidence that Sinclair had declared, that she was destined as a concert, to cruise with Capt. Talbot; that Capt. Talbot had received a letter from Sinclair, directing him to proceed to Savannah river, and there wait for Capt. Ballard, in whose vessel Sinclair meant to sail; that accordingly, some days afterwards Capt. Ballard's vessel hove in sight of Savannah, when Capt. Talbot said, "there is our owner, let us give him three cheers;" that both vessels went [p137] to Tybee Bar, and sailed more than a mile above the light house, where four cannon and some swivels were taken from on board of Capt. Talbot's vessel, and mounted on board L'Ami de la Liberte; that Sinclair left the vessels in the river, and they soon after sailed together as concerts, upon a cruize; and that, accordingly, before the capture of the Magdalena, they had jointly taken several prizes, and, particularly, the Greenock, which was taken by them on the 15th of May, only two days before the capture of the Magdalena, and the Fortune der Zee, which was taken the very day after her capture. It appeared, that the Magdalena was first taken possession of by Capt. Ballard, who left a part of his crew on board of her; but Capt. Talbot was then in sight, and, coming up in about an hour afterwards, he also took possession of the brigantine, and placed a prize master and some of his men on board. the two privateers continued together for several days, making signals occasionally to each other; and, finally, Capt. Ballard alone accompanied the prize into Charleston.
1. The words of the law of these: "Whensoever any citizen of this Commonwealth, shall "by deed in writing, under his hand and seal, executed in the presence of, and subscribed by, "three witnesses, and by them, or two of them proved in the General Court, any District Court, or the court of the County or Corporation where he resides, or by open verbal declaration made in either of the said courts, to be by them entered of record, declare that he relinquishes the character of a citizen, and shall depart out of this Commonwealth, such person shall, from the time of his departure, be considered as having exercised his right of expatriation, and shall thenceforth be deemed no citizen." Passed 23d Dec. 1792.
The cause was argued by Ingersoll, Dallas and Du Ponceau, for the Appellant; and by E. Tilghman, Lewis and Reed (of South-Carolina) for the Appellee.
On the facts the controversy was--Whether the two schooners were or were not owned by American citizens? and were, or were not, illegally outfitted in the United States? the question of ownership turned upon the fairness and reality of the sale of L'Ami de la Point a Petre to Samuel Redick; and the truth of the allegation, that L'Ami de la Liberte, had been purchased and commissioned by Admiral Vanstable for the service of the French Republic: And the question of illegal outfit, being conceded as to Captain Ballard's vessel, depended as to Captain Talbot's vessel, upon the circumstances, which have been recapitulated. On the law, the following positions were taken in favour of the Appellant. [n1]
[p139] be a prize, according to the law of nations, excluding captures within a neutral boundary, &c. That question, however, when the capture is made on the high seas, 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 French republic to issue a commission within her own dominions, to a person recognised and claimed by her as a citizen, is a direct attack upon the sovereignty and independence of France. It is urged, however, that Capt. Talbot's vessel was, in fact, an American privateer, illegally fitted out in an American port; the facts do not support either branch of the allegation; but even in that point of view, if there was a commission from the French Republic, the capture cannot be deemed piracy; and since passing the act of the 5th of June, 1794, (3 Vol. p. 88.) there is a provision for punishing illegal outfits; but not for restitution of their prizes, taken under a foreign commission, by foreign subjects. Upon a capture under a commission, to a French citizen, indeed, whether he is a native citizen or naturalized, the thing must be the same in effect, to foreign neutral powers. Every writer supports this opinion, where the prize is carried infra presidia; and the American ports are infra presidia (a place of asylum and safety) for French prizes, by virtue of the treaty. But even if the commission had been given to an American citizen, it would have been consistent with the usage of nations;--every nation, (for instance, Russia and England) employing foreign officers and seamen in their privateers and ships of war; and America herself, it will be remembered, employed La Fayette, and a train of French officers, previous to her alliance with France. See 13 Geo. 2. c. 3. s. 1. 17 vol. Stat. at large 358. Lex. Mer. 318. Citizenship de facto, is enough for the object contemplated; and England provides that she herself may navigate her privateers with three fourths foreign seamen. 13 Geo. 2. c. 3.
II. That Samuel Redick and Captain Talbot had expatriated themselves, and become French citizens; so that the former might lawfully own, and the later might lawfully command, a French, privateer, for the purpose, of making prize of ships belong to the enemies of France. The right of expatriation is antecedent and superior to the law of society. It is implied, likewise, in the nature and object of the social compact, which was formed to shield the weakness, and to supply the wants of individuals--to protect the acquisitions of human industry, and to promote the means of human happiness. Whenever these purposes fail, either the whole society is dissolved, or the suffering individuals are permitted to withdraw from it. There are two memorable instances of the expatriation of entire nations (independent of the general course of the patriarchal, or [p140] pastoral life) the one in ancient, and the other in modern story. When the Persians approached Athens, the whole Athenian nation embarked in the fleet of Themistocles, and left Attica, for a time, in possession of the Persians. Plut. in vit. Themist, Trav. of Anachar. 1 vol. p. 268. In the year 1771, a whole nation of Tartars, called "Tourgouths," making 50,000 families, or 300,000 souls, emigrated from the banks of the Wolga, in Russia, and, after a progress of inconceivable difficulty, settled in the dominions of the Emperor of China, who hospitably received them, and erected a monument on the spot, to commemorate the event. Col. Mag. for Feb. 1788. But the abstract right of individuals to withdraw from the society of which they are members, is recognized by an uncommon coincidence of opinion;--by every writer, ancient and modern; by the civilian as well as by the common-law lawyer; by the philosopher, 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 chuse our place of rest, and Providence our guide." 2 Bynk. 125. Wickefort, b. 1. c. 2. p. 116. Grot. b. 2. 5. s.24. par. 2. 3. Dig. de cap. ex post. Law. 12. 8. 9. Wick. b. 1. 8. 11. p. 244. Puff. b. 8. 1. c. 11. s.3. p. 862. 1 Fred. Code. 34. 5. 2. vol. 10. 1 Gill. Hist. Greece. With this law, however, human institutions have often been at variance; and no institutions more than the feudal system, which made the tyranny of arms, the basis of society; chained men to the soil on which they were born; and converted the bulk of mankind into the villeins, or slaves of a lord, or superior. From the feudal system, sprung the law of allegiance; which pursuing the nature of its origin, rests on lands; for, when lands were all held of the Crown, then the oath of allegiance became appropriate: It was the tenure of the tenant, or vassal. Blac. Com. 366. The oath of fealty, and the ancient oath of allegiance, were, almost the same; both resting on lands; both designating the person to whom service should be rendered; though the one makes an exception as to the superior lord, while the other is an obligation of fidelity against all men. 2 Bl. Com. 53. Pal. 140. Service, therefore, was also an inseparable concomitant of fealty, as well as of allegiance. The oath of fealty could not be violated without loss of lands; and as all lands were held mediately, or immediately, of the sovereign, a violation of the oath of allegiance, was, in fact a voluntary submission to a state of outlawry. Hence arose the doctrine of perpetual and universal allegiance. When, however, the light of reason was shed upon the human mind, the intercourse of man became more general and more liberal: the military was gradually changed for the commercial state; and the laws were found a better protection for persons and property, than arms. But [p141] even while the practical administration of government was thus reformed, some portion of the ancient theory was preserved; and among other things, the doctrine of perpetual allegiance remained, with the fictitious tenure of all lands from the Crown to support it. Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as well as fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen from the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it can neither serve to controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there are striking deviations that demonstrate the invincible power of truth, and the homage, which, under every modification of government, must be paid to the inherent rights of man. In Russia, the volunteers who supply the fleet with officers, or literary institutions with professors, are naturalized. In Poland, an American citizen has been made Chancellor to the Crown. In France, Mr. Colbert, who was Minister of Marine, and Mr. Necker, who was Minister of Finances, were adopted, not native, subjects. In England, two years service in the navy, ipso facto, endows an alien with all the rights of a native. These are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they are instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of expatriation to be superior to the Empress's right of allegiance. But it is not only in a negative way, that these deviations in support of the general right appear. The doctrine is, that allegiance cannot be due to two sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing allegiance from a previous, sovereign. Thus, Louis XIV, received his own quondam subjects, the two Fidlers as Ambassadors. Dr. Story, an Englishman, was sent to England as the Minister of Spain. And in many nations the conditions [p142] on which an expatriation may be affected (such as paying a tax, or leaving a portion of property behind) are actually prescribed. Independent, however, of these instances, in countries bound by the law of allegiance, it is to be considered, what are the rights of citizenship on the subject; and like every other question of citizenship, it depends on the terms and spirit of our social compact. The American Confederation is a complex machine, and sui generis. It creates joint federal powers; but it recognizes separate state powers: It is confederate to some purposes; but consolidated to other purposes. The formation of every social compact is presumed, however, by elementary writers, to be a surrender of so much, and no more, of private rights, as are necessary to the preservation and operation of the government; but this principle is not left with us to mere implication; it is formally declared in many state constitutions in favor of the people; and in the Federal Constitution, it is declared in favor of the States, as well as of the people. With respect, then, to the right of emigration, it has been under the consideration of the people and government of the Union, from the moment of their birth, as an independent nation; insomuch, that the refusal to pass laws for the encouragement of emigration to America, is charged as a proof of tyranny and oppression, in the enumeration of the grievances, which produced and justified the revolution. The articles of Confederation contain not any clauses, expressly granting or restraining, the power and right of naturalization and emigration; but they contain an express reservation of all powers in favor of the States individually, which are not, in terms, transferred to the Union. An inspection of the several state constitutions will prove, that, in some form or other, the principle has been recognized by every member of the Confederation; and the Constitution of Pennsylvania explicitly provides, that no law shall be passed prohibiting emigration from the state. This is, perhaps, the only direct expression of the public sentiment on the subject; but the very silence that prevails strengths the argument. The power of naturalizing has been vested in several of the state governments, and it now exists in the general government; but the power to restrain or regulate the right of emigration, is no where surrendered by the people; and it must be repeated, that, what has not been given, ought not to be assumed. It may be said, however, that such a power is necessary to the government, and that it is implied in the authority to regulate the business of naturalization. In considering these positions, it must be admitted, that although an individual has a right to expatriate himself, he has not a right to seduce others from their country. Hence, those who forcibly, or seductively, take away a citizen, commit an act, which [p143] forms a fair object of municipal police; and a conspiracy or combination, to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction of the natural right of individuals; for, the natural rights of man are personal; he has no right to will for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, by fraud, or by persuasion. The English law and the law of Pennsylvania, therefore, punish kidnapping, and transporting, or seducing, artists, to settle abroad as crimes. 4 Bl. Com. 219, 160. Penn. Laws 2 Vol. Dall. Edit. But this is all the power on the subject, which a government ought to possess for its preservation. The depopulation of a country by the spontaneous co-operating will of numbers, proves nothing more than that a bad government exists, or a bad soil is inhabited. Such an event, however, is too remote a possibility, to be any where a subject of apprehension; and, with respect to America, it is visionary indeed! If then, the power of restraining emigration is not necessary to the existence of government, much may be urged to shew, that it is a power of too delicate a nature to be trusted by the people to the integrity of any government; since, by legislative regulations, the exercise of the right might be rendered so difficult, that the right itself would be put in everlasting abeyance. Nor is there any essential coincidence in a power to regulate naturalization, and in a power to regulate emigration; so that the grant of the former shall be deemed to include the latter. The idea of admitting, and the idea of excluding, are not analogous. As to the point of policy, if a man wishes to leave a country, he is not likely to remain in it, by force, beneficially to the state. The character of the migrating individual can have no influence on the right; his private motives of interest, or of pleasure, do not affect the community; and it is of no importance to what country he goes. The moment he has expatriated himself, the state is no longer interested, no longer responsible for his conduct; the ligature, which bound them, is severed, and can never again be united, without their mutual consent: The emigrant has become an alien. But in the act of naturalization, every community has a right totally to reject applications for admission; or to prescribe the terms; and then the character of the applicant, the motives of emigration from his old country, and the evidences of his attachment to his new one, are all to be considered. Let it, however, be supposed, for a moment, that the grant of the naturalization power embraces a power of regulating emigration; the question still remains, has the power of regulating emigration been exercised by Congress? And if it has not been exercised by the department of government, to which alone even by implication, it is granted, what authority has the [p144] court to interfere upon the subject? That the power has not been exercised by Congress is conceded; and if the court interferes, it will be a legislative, not a judicial, act: For, although it is contended, that the law of nations furnishes rules to supply the silence of the legislature, there is scarcely a subject, to which the jurisdiction of Congress extends, that might not, on the same doctrine, be regulated, without the interposition of that body. Thus, Congress has power to define and punish piracies, felonies committed on the high seas, and offences against the law of nations; and yet, without the exercise of that power, the law of nations would supply rules as applicable to those cases, as to the case of expatriation. But naturalization and expatriation are matters of internal police; and must depend upon the municipal law, though they may be illustrated and explained by the principles of general jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Court is only a branch of that power; and depends on Congress for what portion it shall have, except in the cases of ambassadors, &c. particularly designated in the constitution. The power of declaring whether a citizen shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, is not given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decide against the expatriation of Captain Talbot. Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen, is independent of every social obligation. In time of war, it would be treason to migrate to any enemy's country and join his forces, under the pretext of expatriation. 1 Dall. Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers on the law of nature and nations) to desert a country labouring under great calamities. So, if a man acting under the obligations of an oath of office, withdraws to elude his responsibility, he changes his habitation, but not his citizenship. It is not, however, private relations, but public relations; private responsibility, but public responsibility; that can affect the right: for, where the reason of the law ceases, the law itself must, also, cease. There is not a private relation, for which a man is not as liable by local, as by natural, allegiance;--after, as well as before, his expatriation: He must take care of his family, he must pay his debts, wherever he resides; and there is no security in restraining emigration, as to those objects, since, with respect to them, withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of expatriation, that other nations are at war; it must be the country of the emigrant. No nation has a right to interfere in the interior police of another: the rights and duties of citizenship, to be conferred, or released, are matter of interior police; and yet, if a foreign war could affect [p145] the question, every time that a fresh power entered into a war, a new restraint would be imposed upon the natural rights of the citizens of a neutral country; which, considering the constant warfare that afflicts the world, would amount to a perpetual controul. But the true distinction appears to be this:--The citizens of the neutral country may still exercise the right of expatriation, but the belligerent power is entitled to say, "the act of joining our enemies, flagrante bello, shall not be a valid act of expatriation." By this construction, the duty a nation owes to itself, the sacred rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct and separate courses. To pursue the subject one step further: A man cannot owe allegiance to two sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and another nation has a right and disposition to adopt him, it is a compact between the two parties, consummated by the oath of allegiance. A man's last will, as to his citizenship, may be likened to his last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party, in one case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good Christians and good republicans, it must be presumed that he rises to another, if not to a better, life and country. An act of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one, when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or the most conclusive that the case admits. It may be done obscurely in a distant county court; and even after the emigrant is released from Virginia, to what nation does he belong? He may have entered no other country, nor incurred any obligation to any other sovereign. 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, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, is unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of the adopted, country. Sir William Blackstone, therefore, considers it as the strongest, though an ineffectual, effort to emancipate a British subject from his natural allegiance; and the existing constitution of France declares it expressly to be a criterion of expatriation. The same principle operates, when the naturalization law of the United States provides, that the whole ceremony of initiation shall be performed in the American courts; and if it is here considered as the proof of adoption, shall it not be considered, also, as the test of expatriation? If America [p146] makes citizens in that way, shall we not allow to other nations, the privilege of the same process? In short, to admit that Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After this discussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That Talbot was a naturalized citizen of the French Republic at the time of receiving a commission to command the privateer, and of capturing the Magdalena. He left this country with the design to emigrate; and the act of expatriation must be presumed to be regular, according to the laws of France, since it is certified by the municipality of Point a Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick was also, a naturalized citizen of the French Republic, when he purchased the vessel, and received a commission to employ her as a privateer. 3d, That Ballard's expatriation and commission, however doubtful, cannot affect Talbot and Redick. But still, it is objected, that these acts of expatriation, these commissions, are all fraudulent and void. In private contracts, in subjects of municipal regulation, in matters of Meum et tuum, the rule is clear, that fraud vitiates everything, and the fraud may be collected from circumstances. But is fraud to be presumed in a conflict of national rights? It is said that a nation cannot be considered in the light of pirates; 1 Wood. so a nation cannot commit frauds. Let the matter be turned as it may, it will rest on this ground,--had France any authority to naturalize, or to commission, Talbot and Redick? America is deeply interested, at least, in withholding a concession, that any other nation, but France, can decide that question. The validity of her own naturalizations, the authenticity of her own commissions, and the claims of her impressed seamen, are all involved. France, then, is exclusively to judge; she granted the authority, she can rescind it; she can punish any abuse of it; and to her government must be the appeal, if America, or any other nation, has sustained an injury by it. If, indeed, on the pretext of fraud in the persons who obtain a French commission, our courts may annul them, where will the inquisitorial censorship terminate? British patents of denization, as well as French acts of naturalization; and every commission of the officers of a public ship of war, as well as of a privateer, will be alike subject to our supreme controul. But even the allegation of fraud, is unsupported by any reasonable degree of evidence. The first circumstance relied on, is, that the acts of naturalization, bill of sale, and commission to cruize, were in the custody of Capt. Talbot on board the privateer, and not held by Redick, at Point a Pitre. But, surely, every privateer must be always ready to prove her ownership and authority, [p*147] to rescue her from the imputation of piracy, and to entitle her to sell her prizes. Again, it is said, that Redick had no agent in America. But it is sufficient to answer, that the Captain of a privateer is the natural agent for the owner: that it is idle to expect that the owner of a cruizing vessel shall have an agent in every port, at which she may touch; and that, in fact, Redick had several agents in Charleston. It is added, as circumstances for suspicion, that Talbot has not proved that his vessel was not fitted out in the United States, whereas the proof of the affirmative lay with Appellee; the articles on board Talbot's vessel, if not put on board at Guadaloupe might have been for trade; and Redick, a bona fide purchaser, ought not be affected by an illegal outfit. 2 Esp. 282. 3 Wood. 213. Bl. C. 262. 1 T. Rep. 260. 3 T. Rep. 437. 2 Wood. 412. 431. Hard. 349. Cowp. 341. 2 T. Rep. 750. that proof is not made of notice of the sale to Redick, whereas it appears that Sinclair and Wilson were actually informed of the transaction; and that Sinclair and Wilson have not been produced as witnesses by the Appellant, whereas it was the duty of the Appellee, if he thought their testimony material, to examine them, and he had the same means to compel their attendance.
III. That the capture being made by Captain Talbot, notwithstanding the participation of Captain Ballard, the vessel is a lawful prize. If, indeed, Talbot and Redick were regularly naturalized by France, if the vessel was regularly sold to Redick, and commissioned by the French government, it is obvious that the validity of the capture can only be impeached, by the circumstances of Capt. Talbot's consorting with Capt. Ballard. That point may be considered in two ways: 1st, Considering Captain Ballard as acting under colour of a commission; 2d, Considering Captain Ballard as acting without any authority at all.--1st, The commission which Ballard held, was, at least, sufficient colourable to justify Talbot the commander of a French privateer, in associating with him against the enemies of France. A general order, indeed, is a sufficient commission, where there is evidence a person intended to act under it. 2 Vatt. s. 224. 5. 6. But he not only held a commission, but he was employed by the French government itself, sailed under French colours, and in the character of a French vessel had been permitted freely to leave and enter the American ports. It is true, that it is eventually discovered that he had clandestinely fitted out his vessel, in violation of the laws of the United States; but Talbot had no right to question the validity of the commission, nor the legality of the outfit; and even supposing Talbot did assist in the outfit of Ballard's vessel, that, as a substantive offence, might render him amenable to punishment in our courts, but it could not vacate his French commission, nor render him, as a French citizen, a pirate throughout the world. [p148] The validity of the commission and the legality of the outfit are questioned, however, by a Dutch subject, before an American tribunal; and yet, such a plea would not be sustained in France, and could not be allowed even in Holland. With respect to America herself, whatever punishment she denounces, for a violation of her neutrality, she may inflict; but on principles of justice, she cannot convert one crime into another, an illegal outfit into piracy; she cannot punish for holding a commission, recognized by the authority that issued it; she cannot make an innocent man (for instance, Redick, the owner of the privateer) responsible for a guilty one; she cannot impair the right, or confiscate the property, of a man acting under a due authority, in order to punish a man acting without due authority, contrary to her laws, but consistently with the laws of the country to which he belongs. But what more did Talbot do, than is justifiable on the principle of stratagem by the laws of war? It is illegal to outfit a vessel of war within the United States under colour of a French commission; and, yet, after the vessel is outfitted, and on the high sea, may not an officer of France, without vacating his commission, employ her? Foreigners are often retained as spies, and sometimes pressed into service as a belligerent power. Vatt. B. c. s. p. 593, 557. Grot. Puff. Heinec. 170. Why may they not be employed as consorts in cruizing? A colourable commission was deemed sufficient to rescue Captain Ballard from a conviction for piracy; and if for that purpose, it ought surely to be sufficient to save Talbot, or rather, indeed, Redick, the party really interested, from a charge of piracy, the forfeiture of his commission, and the loss of the prize. Where there is a commission, there can be no piracy. 2 Woodes. 425. 2 Sir L. Jenk. 754. Moll. 64. and capture by deputation under colour of a commission is no piracy, though the ship is carried into the port of a friend.--2 Woodes. 426. Moll. B. 1. c. 4. s. 19. p. 65. The case in 2 Vern. 592, quoted for the Appellee, is the case of Englishmen, acting as such, though under a Savoy commission, against friends of England; whereas the present case is that of an American, having lawfully expatriated himself, and after becoming a French citizen, receiving as such a commission, and making prize, in a French vessel, of the property of the enemies of France. But even on the point of the commission, it is said in the case that the prize might enure as a droit of Admiralty, on the principle of capture from an enemy, by an uncommissioned vessel. 2 Woodes. 433. And there are some authorities that go the length of saying that capture by a neutral, where there is a commission, is good. Lex Merc. 227. Com. Dig. [p*149] 269. 2d. but let it be supposed, in the second place, that captain Ballard had no authority at all, this will not destroy captain Talbot's right of capture. A piratical capture does not, it is agreed, alter the property; 2 Wood. 428 to 431. and as Ballard, in that case, had no right to seize the vessel, it still remained the property of the Dutch owners, liable to be seized any where by the French, their public enemies. Vatt. B. c. s. p. Burl. 219, 229, 235. Lee on Capt. 206. 2 Val. If indeed, a friend's property is retaken from a pirate, the friend shall only pay salvage; but if an enemy's property is so retaken, the right becomes entire and absolute in the re-captor. It would be war in a neutral country, say the authorities, to secure within her territory the spoils of one of the Belligerent parties; and is it not a greater partiality, a more striking aggression, to attempt to do so on the high seas? It can only be by an extension of her neutral jurisdiction, that the United States can pretend to invalidate the capture, because the property was in the possession of Ballard, an American citizen; and surely, the unlawful act of her own citizen can give no right or authority to the United States, at the expense of the right and authority of a foreign nation. If, upon the whole, Ballard had a colorable commission, it justified Talbot; if he had no commission, his misconduct on the high seas, cannot add to the safety of the property of the Dutch, nor enlarge the jurisdiction and power of the United States; and even if Talbot had consorted with Ballard, an avowed pirate, the prize would be good as a droit of the French Admiralty, though perhaps neither of the captors acquired a property in it. Lex Merc. 246, Moll. b. I. s. 10. The facts, then, are briefly, that the two cruizers were in company when they first saw the Magdalena; that, for their mutual interest, they afterwards separated to pursue separate vessels, that both were again in sight, however, when the prize was captured, that both took possession of her, and that both were in possession on her arrival in the port of Charleston. The force of one joint cruiser is the force of both; and, like joint tenants, the possession of one is the possession of both. It cannot be said, that she was first captured by Ballard; for, when two ships are in sight, both are considered as captors; both entitled to share in the prize. 2 Wood. 447, Moll. b. 1, c.2. s. 22. 2 Leon. 182, Doug. 324, 328, and, therefore, on that footing, if Ballard was not entitled, either the whole prize vested in Talbot, or Ballard's share was a droit of the Admiralty of France; but America could have no pretence to hold, or release, any part of it. 2 Wood. 432. 3 441. 456. 2 Vern. 592.
1. Before the principal argument commenced, the two following points occurred:
I. The counsel for the appellee, offered to give in evidence, a certificate of the collector of the customs of the port of Charleston, stating, that it appeared by his official books, that the duties on the cargo of the Magdalena, had been paid by the Appellee. but it was objected, for the appellant, that the Collector's certificate could not be admitted to prove the fact; the entry itself from the record, must be exemplified. Besides, the Collector is not an officer appointed to certify a record; and as a witness, the opposite party should have had an opportunity to cross examine him. Independent, therefore, of any question, whether new evidence can be received on an appeal in this court, the certificate is inadmissible.
The Court rejected the certificate, on the general ground; and Wilson, Justice, added, that he thought, at all events, it was premature to offer the evidence in this stage of the cause. The motion was renewed after the court had affirmed the decree of the court below, but with no greater success.
II. It was objected by Dallas, for the Appellant, that the record was not transmitted, agreeably to the directions of the judicial act, the 19th section providing, that "it shall be the duty of Circuit Courts, in causes in equity and of admiralty and maritime jurisdiction, to cause the facts, on which they found their sentence, or decree, fully to appear upon the record, &c." which had not been done. It is true, that the pleadings, exhibits, and sentences are certified by the clerk, not by the judges; and there may have been oral testimony in the inferior courts. Reed answered, that every thing that had appeared below, now appeared here, under the seal of the Circuit Court.
After some discussion, however, the desire of the parties to obtain a decision on the merits, prevailed, and the objection was waved. The point has been since argued and decided, in the case of Wiscart et al. v. Dauchy, post.
The Counsel for the Appellees insisted upon the following points: 1st. That the capturing vessels were American property. [p*150] 2d. That even if the vessels were French property, the instruments, or agents, used to effect the capture, were American citizens. 3d. That both vessels were of American outfit, and, therefore, the capture was illegal. 4th. That, at all events, Ballard acquired no right by the capture, and that Talbot, coming in under him, could have no higher pretensions than Ballard himself. From this view, it will be perceived that the course of their argument led principally to an investigation of the facts; whence concluding, that the whole transaction was collusive and fraudulent, on the part of the owners and captains of the vessels, the cited authorities to shew, that fraud vitiates every act, and that although fraud cannot be presumed, it may be proved by circumstances. 3 Cha. Ca. Wils. 230. 3 Co. 778. 81. 1 Burr. 391. 396, 4 T. Rep. 39.
On the points of law, the Counsel for the Appellee held the following doctrines:
1. That Ballard and Talbot were Americans by birth, and had done nothing which could work a lawful expatriation. It is conceded that birth gives no property in the man; but, on the principles of the American government, he may leave his country when he pleases, provided it is done bona fide, with good cause, and under the regulations prescribed by law. 1 Vatt. B. 1 c. 19. s. 220. 221. 223. 224. Grot. B. 2. c. 5. s. 24. Puff. B.8. c. 11. p. 872, and provided, also, that he goes to another country, and takes up his residence there under an open and avowed declaration of his intention. Thus, the rule is fairly laid down in 2 Heinec. B. 2. c. 10. s. 230. p. 220; requiring from the emigrant not only an act of departure, with the design to expatriate, but the act of joining himself to another state. But a man may be entitled to the right of citizenship in two countries; and proving that he is received by a new country, is not sufficient to prove that his own country has surrendered him. If, indeed, it is lawful for one individual, any number of individuals, may exercise the right of expatriation under the circumstances contended for; and, then, we might behold a political monster, all the citizens of a country at war, though the country itself is at peace. There must, therefore, from the nature of the case, be some restraint on this loco-motive right: and it is a reasonable restraint, recognized by the best writers, that it shall not be exercised either in contravention of a national compact, such as the American treaty with Holland, which declares that the citizens of either party shall not take commissions as privateers against the other. Art. 19. or to the injury of the emigrant's country. Vatt. b.2.c.6. s.71 to 76. Privateering by the subjects of a neutral nation, is considered as an infamous practice. Ibid. b.3 c.15. s.229. and if an act [p151] committed by a citizen is approved and ratified by his country, they adopt the offence as their own. Ibid. b. 2. c. 6. s.74. The power of regulating emigration, is an incident to the power of regulating naturalization. It is vested exclusively in Congress; and the Virginia Act, under which Ballard pretends to have renounced his allegiance, can have no effect on the political rights of the Union. With respect to Talbot, his pretended expatiation was in itself an offence, and, therefore, cannot be a justification: he sailed from America in an armed vessel, illegally fitted out, with the design of becoming a privateer, against a nation in peace and treaty with the United States; and the sale of his vessel to Redick, was merely a colour to the general scheme of plunder and depredation, in which Redick was a partaker. If, then, Talbot is to be still considered as an American citizen, acting under a French commission, in capturing a Dutch prize, restitution must be awarded upon the principle of the decision in 2 Vern. 592. Holland being at peace with America, though she is at war with France.
2. That even supposing Talbot's expatriation, and the ownership of his vessel, to be sufficient to authorize his own privateering, the circumstances of consorting with Ballard, knowing the American character of Ballard and his vessel, were sufficient to invalidate the capture. Can it be reasonable, or just, that a French privateer should associate with a pirate, or avail himself of the power of America, to seize the property of her allies, bring that property into an American port, and, yet, that an American court of justice should be incompetent to redress the grievance? But the actual capture was made by Ballard, whose right of capture is abandoned. The tortious act had been completed before Talbot was admitted by a fraudulent concert, into a share of the possession of the vessel; and even when admitted, he does not pretend to defeat the previous occupancy, or to controvert Ballard's claim of prize. Ballard, (possessed by assignment of a commission, which did not authorize capture, and which was not, in its nature assignable) had wrongfully seized the vessel of an American friend; and surely, if at the time of such seizure, and before Talbot boarded the vessel, the Dutch owners had a right to demand justice from the United States, as against Ballard, that right could not be destroyed by any immediate consequence of the wrong on which it was founded; such as Talbot's being admitted by the aggressor to a joint possession. Besides, Talbot assisted in arming Ballard's vessel within the neutral jurisdiction of the United States; and this, together with the concert in capturing the Magdalena, amounted to a relinquishment, or forfeiture, of his commission.
3. That neither the law of nations, nor the treaty between [p*152] America and France, prevents the interference of the judicial authority of the United States, in this case; and it has already been adjudged, that the District Court has Admiralty jurisdiction, both as a Prize and Instance Court. Ant. p. 6. It is enough to repel the argument founded on the law of nations, to state, that the question is not, whether the court will take cognizance of a capture, made on the high seas, by the citizens of France, of the property of the enemies of that Republic, which is a question that can only be decided by the courts of the captor; but the gist of the controversy is-- whether American citizens shall be permitted, under the colour of a foreign commission, to make prize of the property of the friends of America, either by their own independent act, or in collusion and concert with a real French privateer? As to the 17th article of the treaty with France, giving it a fair and rational exposition, it cannot include prizes taken by privateers unlawfully equipped in the American ports; and the vessels taken as prize, must not only belong to the enemies of France, but be such as are taken bona fide by the citizens of France; which was not the fact in the present instance.
On the 22nd of August, 1795, the Judges delivered their opinions seriatim.
