Talbot v. Janson. 3 D. private will, who can say this shall not be exercised in time [* 163] of war as well as in time of peace, since the *individual, upon that principle, is to think of himself only? I therefore think, with one of the gentlemen for the defendant, that the principle goes to a state of war, as well as peace, and it must involve a time of the greatest public calamity, as well as the profoundest tranquillity. 3. The very statement of an exception in time of war, shows that the writers on the law of nations, upon the subject in general, plainly mean, not that it is a right to be always exercised without the least restraint of his own will and pleasure, but that it is a reasonable and moral right which every man ought to be allowed to exercise, with no other limitation than such as the public safety or interest requires, to which all private rights ought and must forever give way. And if in any government, principles of patriotism and public good ought to predominate over mere private inclination, surely they ought to do so in a republic founded on the very basis of equal rights, to be perfectly enjoyed in every instance where the public good does not require a restraint. 4. In some instances, even in time of war, expatriation may fairly be permitted. It ought not then to be restrained. But who is to permit it? The legislature surely; the constant guardian of the public interest, where a new law is to be made or an old one dispensed with. If they may take cognizance in one instance, as for example in time of war, because the public safety may require it, why not in any other instance where the public safety, for some unknown cause, may equally require it? Upon the eve of a war it may be still more important to exercise it, as we often see in case of embargoes. 5. The supposition that the power may be abused, is of no importance if the public good requires its exercise. This feverish jealousy is a passion that can never be satisfied. No man denies the propriety of the legislature having a taxative power. Suppose it should be seriously objected to, because the legislature might tax to the amount of 19s. in the pound? They have the power, but does any man fear the exercise of it? A legislature must possess every power necessary to the making of laws. When constructed as ours is, there is no danger of any material abuse. But a legislature must be weak, to the extremest verge of folly, to wish to retain any man as a citizen whose heart and affections are fixed on a foreign country, in preference to his own. They would naturally wish to get rid of him as soon as they could, and therefore perhaps the proper precaution would be to restrain acts of banishment, if such could be at all permitted, rather than to limit the legislative control over expatria tion. Talbot v. Janson. 3 D. But is there no danger of abuse on the other side? Have not all the contentions about expatriation in the courts, arisen from a want of the exercise of this very authority? For, [164] if the legislature had prescribed a mode, every one would know whether it had or had not been pursued, and all rights, private as well as public, would be equally guarded; but upon the present doctrine no rights are secured but those of the expatriator himself. I, therefore, have no doubt, that when the question is in regard to a citizen of any country, whose constitution has not prohibited the exercise of the legislative power in this instance, it not only is a proper instance in which it may be exercised, but it is the duty of the legislature to make such provision, and for my part I have always thought the Virginia assembly showed a very judicious foresight in this particular. Whether the Virginia act of expatriation be now in force, is a question so important that I would not wish unnecessarily to decide it. If it be, I have no doubt that a citizen of that State can not expatriate himself in any other manner. It seems most probable, (but I think not certain) from this record, that Talbot was a citizen of Virginia. We are, however, undoubtedly to consider him as a citizen of the United States. Admitting he had a right to expatriate himself, without any law prescribing the method of his doing so, we surely must have some evidence that he had done it. There is none, but that he went to the West Indies, and took an oath to the French republic, and became a citizen there. I do not think that merely taking such an oath, and being admitted a citizen there, in itself, is evidence of a bona fide expatriation, or completely discharges the obligations he owes to his own country. Had there been any restrictions by our own law on his quitting this country, could any act of a foreign country operate as a repeal of these? Certainly not. When he goes there they know nothing of him, perhaps, but from his own representation. He becomes a citizen of the new country at his peril. The act is complete, if he has legally quitted his own; if not, it is subordinate to the allegiance he originally owed. By allegiance, I mean that tie by which a citizen of the United States is bound as a member of the society. Did any man suppose, when the rights of citizenship were so freely and honorably bestowed on the unfortunate Marquis de la Fayette, that that absolved him, as a subject or citizen of his own country? It had only this effect, that whenever he came into this country, and chose to reside here, he was ipso facto to be deemed a citizen, without any thing farther. The same conse quence, I think, would follow in respect to rights of citizenship conferred by the French republic, upon some illustrious characters in Talbot v. Janson. 3 D. our own and other countries. If merely intended, as ingeniously suggested at the bar, that upon going to France, and performing the usual requisites, they should be then French citizens, [* 165] where is the honor of it? - since any man may avail himself of an indiscriminate indulgence granted by law. Some disagreeable dilemmas may be occasioned by this double citizenship, but the principles, as I have stated them, appear to me to be warranted by law and reason; and if any difficulties arise, they show more strongly the importance of a law regulating the exercise of the right in question. His going to the West Indies, and taking an oath of allegiance there, considering it in itself, is an equivocal act. It might be done, with a view to relinquish his own country for ever. It might be done, with a view to relinquish it for a time, in order to gain some temporary benefit by it. If the former, and this was clearly proved, it possibly might have the effect contended for. If the latter, it would show that he voluntarily submitted to the embarrassments of two distinct allegiances. He must make them as consistent as he can. By our treaty with Holland, any American citizen, cruising upon Dutch subjects, as commander of a privateer under a foreign commission, is to be deemed a pirate. If he left America for the very purpose of doing this, and became a French citizen that he might have a color for doing so, then his taking a French commission could not absolve him from a crime which he was committing in the very act of taking it, and of which the French government might not be aware, as they are not bound to take notice of any other treaties but their own. If he went, intending to reside there for a time and to act under a commission, which he believed would, for the present, justify him, though this might excuse him from the guilt of piracy, it would not make such a contract lawful, because in this case, even his intention was not to expatriate himself forever; and, consequently, he still remained an American citizen, and had no authority to take a commission at all. It surely is impossible for us to say he meant a real expatriation, when his conduct primâ facie, as much indicates a crime as any thing else. If he had such an intention before he left this country, why not mention it? If a citizen of Virginia, and their act of expatriation was not in force, yet surely it prescribed as good a method of effecting it as any other, and his not pursuing this method, if he really meant an expatriation, can be accounted for in no other manner but that he was conscious the vessel he was fitting out was for the purpose of cruising, and would have been stopped by the government, had his design of expatriation so plainly evinced it. Talbot v. Janson. 3 D. I therefore must say, there is no evidence to satisfy me that he ceased to be an American citizen, so as to be absolved from the duties he owed to his own country; and, among others, that duty of not cruising against the Dutch, in violation of the law of nations generally, and of the treaty with Holland in particular. My observations as to Talbot will, in a great measure, [*166] apply to Redick, who appears to have been a citizen of Virginia. There is no evidence to satisfy me that he ceased to be an American citizen and became a French citizen, absolved from the duty he owed, as a citizen, to his own country. There is nothing to show this, but a residence of no long duration in a French island, his taking an oath to the French Republic, and being admitted a French citizen, which, for the reasons I have given, I do not think sufficient. In addition to my other observations, I may add, how is it possible, upon this principle, for the public to know in what situation they stand, as to any one of these persons? It is not impossible, (I believe instances indeed have already happened of it,) that an American citizen may go to some of the dominions of the French, become a French citizen for a time, enjoy all the benefits of such, and afterwards return to his own country, and claim and enjoy all the privileges of a citizen there, without the least possibility of the public knowing, otherwise than from accident, whether he has become a citizen of another government or not. Suppose one of them was to insist on holding an estate in land, devised to him after his new citizenship, how could it be proved he was an alien? Whether, therefore, the property of the privateer was in Redick, or in Wilson and Sinclair, I think it was equally American property, though, I confess, the weight of the evidence impresses me strongly with a belief, that the property was Wilson and Sinclair's. And, in regard to the objection, that nothing they could say or do, or Talbot either, could affect Redick, I think, as Talbot appears as the agent of Redick, of whom we know nothing but through him, his declarations are to be regarded as Redick's own, and any declarations of Wilson or Sinclair, in his presence, and any of the conduct of either of them, sanctioned by him, must have the same effect as if the declarations had been made in the presence of Redick, and such conduct sanctioned by himself. I consider the proof of the commission sufficient, but deny its operation, as I consider the vessel to have been an American vessel, owned by an American or Americans, and with an American captain on board. I now proceed to inquire into the consequences of Ballard's capture, 13 VOL. I. Talbot v. Janson. 3 D. and Talbot's coöperation with him, though perhaps, upon my principles, it is not absolutely necessary. 1. Ballard's capture, I think, is clearly insupportable. Admitting him to have been expatriated, (which, if the Virginia law was in force, I think he was,) he did not become a French citizen at all. Only one of the crew was a Frenchman. I think all the [167] rest were proved to be Americans or English. She was fitted out in the United States. The commission, if good at all, was of a temporary and secret nature, and seems to have been confined to a special purpose, to be executed within the United States. She certainly had no authority to cruise, that being specified in every commission of that nature. Whoever were her owners she does not appear to have been French property. On the contrary, there is the highest possibility that Talbot's and Ballard's vessels had the same owners. So conscious was he of the illegality of his conduct that he even preferred no claim for the captured property. 2. Talbot, considering himself as master of a lawful privateer, claims upon two grounds: 1. Upon supposition of Ballard's being a lawful commission, he claims as being in sight at the time of the capture. To this it is sufficient to say, that it was not a lawful commission. 2. If Ballard had no lawful commission, he claims upon his independent right, alleging that if Ballard had no lawful commission, the property was not changed to Ballard, and therefore he had a right to take. This claim, if Talbot's was a lawful privateer, would undoubtedly be good, if he was not a confederate with Ballard. But it is clear that he was, that he cruised before and after, in company with him; that he put guns on board of his vessel; and there is the strongest reason to believe that they both belonged to the same owners. It is true, if Talbot had come up, ignorant of Ballard's authority, and inadvertently put men on board the prize in conjunction with Ballard, supposing he had a lawful commission, when in reality he had not, it might with some reason be contended that Talbot should hold the prize. But wilful ignorance is never excusable; when there is time to inquire inquiry ought to be made. There is not, however, the least reason for supposing any ignorance in the case. He abetted Ballard's authority such as it was. He acted in support of it, not in opposition to it. It does not appear that he ever questioned it until after his arrival in Charleston. It was, therefore, a mere afterthought. A man having a commission, is authorized, but not compelled, to exercise it. His will must concur to make a capture under it. It does not appear that he relied, at sea, upon his own force, but upon Ballard's; at least, in this instance, upon his own and Ballard's in |