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Talbot v. Janson. 3 D.

States illegally obtained, and to place Joost Janson, the master of the Magdalena, in his former state, from whence he had been removed by the improper interference and hostile demeanor of Ballard. Besides, it is right to conduct all cases of this kind in such a manner as that the persons guilty of fraud should not gain by it. Hence the efficacy of the legal principle, that no man shall set up his own fraud or iniquity as a ground of action or defence. This maxim applies forcibly to the present case, which, in my apprehension, is a fraud upon the principles of neutrality, a fraud upon the law of nations, and an insult as well as a fraud against the United States and the Republic of France.

I am, therefore, of opinion that the decree of the circuit court ought to be affirmed. Being clear on the preceding points, it supersedes the necessity of deciding upon other great questions in the cause ; such as, whether Redick and Talbot were French citizens, whether the bill of sale was colorable and fraudulent; whether Redick, if a French citizen, did not lend his name as a cover; and whether the property did not continue in Sinclair and Wilson, citizens of the United States.

IREDELL, J. 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 primâ 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 primâ 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 inquiry is — Whether the district court had jurisdiction primâ 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 Liberté, 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.

Talbot v. Janson. 3 D. [159] *That there was fraud and collusion between Talbot and

Ballard, both vessels being in fact the property of the same owners, 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 allege they acted; and it is contended that the capture in question being of 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 inquiry into the circumstances of the capture.

But this exemption from inquiry 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 inquiry 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 color of that kind, might capture with impunity and defy all inquiry, 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 inquiry being thus proper to be made, if upon the inquiry it shall appear, that the vessel pretending to be a lawful privateer is really not such, but uses a colorable 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.

Talbot v. Janson. 3 D. 3. That primâ facie all piracies and trespasses committed * against the general law of nations, are inquirable, and [ * 160 ] 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, and the ship is brought into a port in 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 committed, 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 practised 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 honor on both sides, though different and irreconcilable 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 color of justification for any Talbot v. Janson. 3 D. 1 * 161 ) offensive hostile act, unless it be authorized 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 show, 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 indivi. dual 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 inquiry, which affects only the conduct of our own citizens in our own vessels, attacking and taking, under color 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 com. mon 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, primâ facie, the district court had jurisdiction.

2. The next inquiry 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, namely, the property of Samuel Redick, a French citizen at Point-a-Petre in Guadaloupe.

2. That he had a lawful commission to cruise from the French republic.

3. That whether Ballard had a lawful commission or not, he him. self 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 neces. Talbot v. Janson. 3 D. sary it should be explicitly decided on this occasion, but I shall freely express my sentiments on the subject.

* That a man ought not to be a slave, that he should not [ * 162] 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 accociated. 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, showing 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

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