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Talbot v. Janson. 3 D. tention to leave this country, and settle in another. Ballard was, and still is a citizen of the United States, unless perchance he should be a citizen of the world. The latter is a creature of the imagination, and far too refined for any republic of ancient or modern times. If however he be a citizen of the world, the character bespeaks universal benevolence, and breathes peace on earth and good will to man; it forbids roving on the ocean in quest of plunder, and implies amenability to every tribunal. But what is conclusive on this head is, that Ballard sailed from this country with an iniquitous purpose, cum dolo et culpa, in the capacity of a cruiser, against friendly powers. The thing itself was a crime. Now it is an obvions principle, that an act of illegality can never be construed into an act of emigration, or expatriation. At that rate treason and emigration, or treason and expatriation would, in certain cases, be synonymous terms. The cause of removal must be lawful; otherwise the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member? As we have no statute of the United States on the subject of emigration, I have taken up the doctrine respecting it, as it stands on the broad basis of the law of nations, and have argued accordingly. That law is in no wise applicable to the present case ; for Ballard, at the time of his taking the command of the Ami de la Liberté, and of his capturing the Magdalena, was a citizen of the United States, he was domiciliated within the same, and not elsewhere; and, besides, his cause of departure, supposing it to have been a total departure from and abandonment of his country, was unwarrantable, as he went from the United States in the character of an illegal cruiser. The act of the legislature of Virginia, does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia pass an act specifying the causes of expatriation, and prescribing the manner in which it is to be effected by the citizens of that State, what can be its operation on the citizens of the United States? If the act of Virginia affects Ballard's citizenship, so far as respects that State, can it touch his
citizenship so far as it regards the United States ? Alle[ * 154 ] giance to a particular State is one thing, * allegiance to the
United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter? The sovereignties are different, the allegiance is different, the right too may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty. Of course
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there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unison and order. A slight collision may disturb the harmony of the parts, and endanger the machinery of the whole. A statute of the United States, relative to expatriation is much wanted, especially as the common law of England is, by the constitution of some of the States, expressly recognized and adopted. Besides, ascertaining by positive law the manner in which expatriation may be effected, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.
But there is another ground which renders the capture, on the part of Ballard, altogether unjustifiable. The Ami de la Liberté was built in Virginia, and is owned by citizens of that State; she was fitted out as an armed sloop of war, in, and as such, sailed from the United States, under the command of Ballard, and cruised against and captured vessels belonging to the subjects of European powers at peace with the said States. Such was her predicament, when she took the Magdalena. It is idle to talk of Ballard's commission; if he had any it was not a commission to cruise as a privateer, and if so it was of no validity, because granted to an American citizen by a foreign officer within the jurisdiction of the United States. We are not however to presume that the French admiral or consul would have issued a commission of the latter kind, because it would have been a flagrant violation of the sovereignty of the United States, and of course incompatible with his official duty. Therefore it was not, and indeed could not have been, a war commission. It is not necessary at present to determine whether acting under color of such a commission would be a piratical offence. Every illegal act or transgression, committed on the high seas, will not amount to piracy. A capture, although not piratical, may be illegal, and of such a nature as to induce the court to award restitution.
It has been urged, in argument, that the Ami de la Liberté is the property of the French republic. The assertion is not warranted by the evidence; and if it was, would not perhaps be of any avail so as to prevent restitution by the competent authority. The proof is clear and satisfactory that she was an American vessel, owned by citizens of the United States, and * still continues to be so. [ *1 The evidence in support of her being French property is extremely weak and futile, it makes no impression, it merits no attention. But if the Ami de la Liberté be the property of the French republic, it might admit of a doubt, whether it would be available so as to legalize her captures and prevent restoration; because she VOL. I.
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was, after the sale, if any took place to the republic, and before her departure from, and while she remained in the United States, fitted out as an armed vessel of war; from whence in such capacity, and commanded by Ballard, an American citizen, she set sail, and made capture of vessels belonging to citizens of the United Netherlands. The United States would perhaps be bound, both by the law of nations and an express stipulation in their treaty with the Dutch, to restore such captured vessels when brought within their jurisdiction, especially if they had not been proceeded upon to condemnation in the admiralty of France. On this, however, I give no opinion. The United States are neutral in the present war; they take no part in it; they remain common friends to all the belligerent powers, not favoring the arms of one to the detriment of the others. An exact impartiality must mark their conduct towards the parties at war, for if they favor one, to the injury of the other, it would be a departure from pacific principles, and indicative of a hostile disposition. It would be a fraudulent neutrality. To this rule there is no exception but what arises from the obligation of antecedent treaties, which ought to be religiously observed. If therefore the capture of the Magdalena was effected by Ballard alone, it must be pronounced to be illegal, and of course the decree of restitution is just and proper. This leads us,
II. To consider the capture as having been made by Ballard and Talbot. Talbot commanded the privateer L'Ami de la Point-à-Petre. The question is, as the Magdalena struck to and was made prize of by Ballard, and as Talbot, who knew his situation, aided in his equipment, and acted in confederacy with him, afterwards had a sort of joint possession, whether Talbot can detain her as prize by virtue of his French commission. To support the validity of Talbot's claiın it is contended that Ballard had no commission, or an inadequate one, and therefore his capture was illegal. That it was lawful for Talbot to take possession of the ship so captured, being a Dutch bottom, as the United Netherlands were at open war and enmity with the French republic, and Talbot was a naturalized French citizen, acting under a regular commission from the governor of Guadaloupe. It has been already observed that Ballard was a citizen of the United States; that the Ami de la Liberté, of which he had the command, was fitted out and armed as a vessel of war in the United States ;
that as such she sailed from the United States and cruised 1 * 156 | against * nations at peace and in amity with the said States.
These acts were direct and daring violations of the principles of neutrality, and highly criminal by the law of nations. In effecting this state of things, how far was Talbot instrumental and
Talbot v. Janson. 3 D. active? What was his knowledge, his agency, his participation, his conduct in the business? It appears in evidence that Talbot ex. pected Ballard at Tybee; that he waited for him there several days; that he set sail without him, and in a short time returned to his former station. This indicates contrivance and a previous communication of designs. At length Ballard appeared. On his arrival, Talbot put on board the Ami de la Liberté, in Savannah river, and confessedly within the jurisdiction of the United States, four cannon which he had brought for the purpose. Were these guns furnished by the order of the French consul? The insinuation is equally unfounded and dishonorable. They also fired a salute, and hailed Sinclair, a citizen of the United States, as an owner. An incident of this kind, at such a moment, has the effect of illumination. Talbot knew Bal. lard's situation, and in particular aided in fitting out the Ami de la Liberté, by furnishing her with guns. Without this assistance she would not have been in a state for war. An essential part of the outfit therefore was provided by Talbot. The equipment being tlus completed, the two privateers went to sea. When on the ocean they acted in concert; they cruise together, they fought together, they captured together. Talbot knew that Ballard had no commission; he so states it in his claim; the facts confirm the stateinent; for about an hour after Ballard had captured the Magdalena, he came up and took a joint possession, hoping to cover the capture by his commission, and thus to legalize Ballard's spoliation. How silly and contemptible is cunning; how vile and debasing is fraud. In furnishing Ballard with guns, in aiding him to arm and outfit, in coöperating with him on the high seas, and using him as the instrument and means of capturing vessels, Talbot assumed a new character, and instead of pursuing his commission acted in opposition to it. If he was a French citizen duly naturalized, and if as such he had a commission fairly obtained, he was authorized to capture ships belonging to the enemies of the French republic, but not warranted in seducing the citizens of neutral nations from their duty, and assisting them in committing depredations upon friendly powers. His commission did not authorize him to abet the predatory schemes of an illegal cruiser on the high seas; and if he undertook to do so he unquestionably deviated from the path of duty. Talbot was an original trespasser, for he was concerned in the illegal outfit of the Ami de la Liberté. Shall he then reap any benefit from her captures, when brought within * the United States ? Besides, [ * 157 ] it is in evidence that Ballard took possession first of the Magdalena, and put on board of her a prize-master and some hands. Talbot, in about an hour after came up, and also put on
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board a prize-master and other men. The possession in the first instance was Ballard's; he was not ousted of it; the prey was not taken from him ; indeed it was never intended to deprive him of it. So far from it that it was an artifice to cover the booty. Talbot's possession was gained by a fraudulent coöperation with Ballard, a citizen of the United States, and was a mere fetch or contrivance in order to secure the capture. Ballard still continued in possession. The Magdalena thus taken and possessed, was carried into Charleston. Can there be a doubt with respect to restoration ? Stating the case answers the question. It has been said that Ballard had a com. mission and acted under it. The point has already been considered, and indeed is not worth debating; the commission, if any, was illegal, and of course the seizures were so. But then what effect has this upon Talbot? Does it make his case better or worse? The truth is that Talbot knew that Ballard had no commission, and he also knew the precise case and situation of the Ami de la Liberté ; to whom she belonged, where fitted out, and for what purpose. Talbot gave Ballard guns within the jurisdiction of the United States, and thus aided in making him an illegal cruiser; he consorted and acted with him, and was a participant in the iniquity and fraud. In short, Ballard took the Magdalena, had the possession of her, and kept it; Talbot was in under Ballard by connivance and fraud, not with a view to oust him out of the prize, but to cover and secure it; not with a view to bring him into judgment as a transgressor against the law of nations, but to intercept the stroke of justice, and prevent his being punished. If Talbot procured possession of the Magdalena through the medium of Ballard, a citizen of the United States, and then brought her within the jurisdiction of the said States, would it not be the duty of the competent authority to order her to be restored? The principle deducible from the law of nations is plain ; you shall not make use of our neutral arm to capture vessels of your enemies, but of our friends. If you do, and bring the captured vessels within our jurisdiction, restitution will be awarded. Both the powers in the present instance, though enemies to each other, are friends of the United States, whose citizens ought to preserve a neutral attitude, and should not assist either party in their hostile operations. But if, as is agreed on all hands, Ballard first took possession of the Magdalena, and if he continued in possession and brought her within the jurisdiction of the United States, which I take
to be the case, then no question can arise with respect to [ * 158 ] the legality * of restitution. It is an act of justice result
ing from the law of nations, to restore to the friendly power the possession of his vessel which a citizen of the United