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United States v. Peters. 3 D.

Again, it is objected, that the decree being for restoration, damages could not be awarded. The decree was not complied with — the thing was gone. How then could justice be done without giving damages?

Then the question is, how are we to understand the decree, as joint upon all the libellants for the whole, Mr. George Wentworth included, or as decreeing the owners to restore one half, and Mr. George Wentworth, agent for the captors, the other half ?

If the latter, which perhaps may be a reasonable and just construction, conformable to the spirit of the original libel, then the decree of the circuit court is in that respect erroneous.

* Also as to damages, I suppose, interest ought not to [ * 120 ] have been allowed farther back then the decree. The only question that remains, is, whether this court can rectify those errors, consistently with the judicial act. And I think it may, as there is sufficient matter, apparent upon the record, to do it by.

I agree that each party bear their own costs of this court.

BY THE Court. Ordered, That against all the plaintiffs in error, except George Wentworth, sixteen thousand three hundred and sixty dollars and sixty-eight cents, be recovered by the defendants in error, and the same sum against George Wentworth; and that against the plaintiffs in error the costs of the circuit court be recovered, one half against George Wentworth, and the other half against the other plaintiffs in error; and that in this court the parties pay their own costs.

3 D. 19, 302; 4 C. 2; 8 C. 110; 7 H. 833.

* AUGUST TERM, 1795.

[ *121 ]

A commission, bearing date the 1st of July, 1795, was read, by which, during the recess of congress, John Rutledge, Esq. was appointed Chief Justice, till the end of the next session of the senate.

The UNITED STATES v. RICHARD PETERS, District Judge.

3 D. 121.

The district court cannot take jurisdiction of a libel for damages, in case of a capture as Talbot v. Janson. 3 D. JAMES YARD filed a libel in the district court for Pennsylvania, against the Cassius, and Samuel Davis, her commander, claiming damages by reason of the capture of his schooner, the William Lindsey, a vessel of the United States, and her cargo. The libel stated that the William Lindsey was captured as prize of war by the Cassius, claiming to be commissioned by the French republic; that Davis was a citizen of the United States, and the Cassius was illegally fitted out in Philadelphia; and that the William Lindsey had been carried into Port de Paix, and was there illegally held. The libel prayed process against the Cassius, and against Davis, and process of attachment issued. Davis applied to this court for a writ of prohibition, and the motion having been supported by Ingersoll, Du Ponceau, and Dallas, and opposed by Tilghman and Lewis, the chief justice delivered the opinion of the court.

prize, by a foreign belligerent power on the high seas, the captured vessel not being within

the United States, but infra præsidia of the captors. A writ of prohibition issued.

[ * 129 ] * BY THE COURT. — We have consulted together on this

motion; and, though a difference of sentiment exists, a majority of the court are clearly of opinion that the motion ought to be granted. Therefore let a prohibition issue.

1 W. 238; 7 W. 283.

[*133 ] * Talbot, Appellant, v. Janson, Appellee, et al.

3 D. 133.

The capture of a vessel of a country at peace with the United States, made by a vessel fitted out in one of our ports, and commanded by one of our citizens, is illegal, and if the captured vessel is brought within our jurisdiction, the district courts, upon a libel for a tortious seizure, may inquire into the facts, and decree restitution. If a privateer, duly commissioned by a belligerent, collude with a vessel so fitted out and commanded, to cover her prizes and share with her their proceeds, such collusion is a fraud on the law of

nations, and the claim of the belligerent will be rejected. Whether a right of expatriation exists under our constitution and laws, quære. But if it does,

not only a renunciation of citizenship of the United States, but actual removal, for some

lawful purpose, and the acquisition of a domicil elsewhere, are necessary to effect it. Damages for the tortious seizure, as well as restitution, decreed.

[ * 133 ] *This was a writ of error, in the nature of an appeal, from

the circuit court for the district of South Carolina ; and the

1 The writ of prohibition, as well as the libel in the district court, and the motion for the writ, are set out at length in 3 D. 121.

The proceedings on the libel for damages in the district court were accordingly Talbot v. Janson. 3 D. following facts appeared upon the pleadings: A libel was filed against Edward Ballard, captain of an armed vessel called L'Ami de la Liberté, 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 Curaçoa, 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 Liberté ; that on the next day the libellant met another armed schooner called L'Ami de la Point-à-Petre, commanded by Captain William 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 Liberté 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 America and [ * 134 ] 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 favor therefore a decree of restitution was prayed.

On the 27th of June, 1794, William Talbot filed a claim in this

superseded; but an information, Ketland, qui tam, &c., was immediately afterwards filed in the circuit court against the corvette, for the illegal outfit in violation of the act of congress, and the vessel being thereupon attached, an application was made to Judge Peters to discharge her, on giving security; but the judge was of opinion that he had no power, as district judge, to make such an order in a cause depending in the circuit court. The French minister then deeming, as I have been informed, this prosecution to be a violation of the rights and property of the republic, delivered a remonstrance to our government; and, converting the judicial inquiry into a matter of state, abandoned the corvette, and discharged the officers and crew. Note by Mr. Dallas. 3 D. 132. See Ketland et al. v. The Cassius, 2 D. 365.

Talbot v. Janson. 3 D. 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-à-Petre, at Guadaloupe ; and on the 2d of January following received a commission from the governor of that island, as captain of the schooner L'Ami de la Point-à-Petre, which was owned by Samuel Redick, a French citizen, resident at Point-à-Petre, since 31st December, 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 cruize, 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 Liberté 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 William Talbot, the claimant, is an American citizen, a native and inhabitant of Virginia ; that his vessel, formerly called “ The Fair Play," 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-à-Petre, for the purpose of privateering. That John 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 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 amended his claim, and protested against the jurisdiction of the court. He insisted that even if there had been collusion between him and Captain 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 [ * 135 ) favor of its jurisdiction, dismissed the claim of Captain * Tal

bot, 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

Talbot v. Janson. 3 D.

damages, and seven 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 eighty-two 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.

The facts upon which the judges proceeded, being detailed in their opinions, it is unnecessary to recapitulate the facts shown by the record.

* On the 22d of August, 1795, the judges delivered their [ * 152 1 opinions seriatim.

PATERSON, J. The libel in this cause was exhibited by Joost Janson, 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 citi. zen of the United States; for although he had 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. * From Virginia, he passed into South Carolina, where he * 153 1 sailed on board the armed vessel called the Ami de la Liberté. 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 in

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