The libel in this cause was exhibited by Foost Fansen, matter 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,
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 citizen of the United States : For, although he had renounced his allegiance to Virginia, or declared an intention of expatriation, and admitting the fame 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. *153 From Virginia, he passed into South Carolina, where he failed on board the armed vessel called the Ami de la Liberte. He failed 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 intention 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 failed from this country with iniquitous purpose, cum dolo ct culpa, in the capacity of a cruizer, against friendly powers. The thing itself was a crime. Now it is an obvious 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 synonimous 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 wife applicable fo the present case : for, Ballard, at the time of his taking the command of the Ami de la Liberte, and of his capturing the Magdalena, was a citizen of the United States; he was domiciliated within the fame, and not elsewhere ; and, besides, his cause of departure, supposing it to have been a tota1 departure from and abandonment of his country, was unwarantable, as he went from the United States, in the character of an illegal cruizer. 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 ? Allegiance to a particular state, is one thing; *154 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 there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unifon and order. A flight 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 dates, expressly recognized and adopted. Besides, ascertaining by positive law the manner, in which expatriation may be elicited, 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 Liberte was built in Virginia, and is owned by citizens of that state; she was sitted but as an armed floop of war, in, and, as such, failed 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 Hates. 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 colour 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 hot 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 Liberte 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, *155 and still continues to be so. 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 Liberte be the property of the French Republic, it might admit of a doubt, whether it would be available, so as to legalise her captures and prevent restoration ; because she was, after the sale (if any took place) to the republic, and before her departure from, and while she remained in, the United States, sitted out as an armed vessel of war ; from whence in such capacity, and commanded by Ballard, an American citizen, she set fail, 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 favour one to the injury of the other, it would be a departure from pacific principles, and indicative of an 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 a Pirre. 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 fort of joint possession, whether Talbot can detain her as prize by virtue of his French commission ? To support the validity of Talbot’s claim 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 to 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; t hat the Ami de la Liberte, of which he had the command, was fitted out and armed as a vessel of war in the United States; that as such she failed from the United States, and cruised against *156 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 active ? What was his knowledge, his agency, his participation, his conduct in the business ? It appears in evidence, that Talbot expected 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 Lib erte, in Savannah river, and consessedly within the jurisdiction of the United States, four cannon, which he had brought for the purpose. Were these guns furnished by 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 Ballard’s situation, and in particular aided in fitting out the Ami de la Liberte 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 thus completed, the two privateers Went to sea. When on the ocean, they acted in concert; they cruize 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 statement; 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 legalise 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 co-operating 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 deducing 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 Liberte. Shall he then reap any benefit from her captures, when brought within *157 the United States ? Besides, 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 board a prize-matter, and other men. The possession in the first instance was Ballard’s ; he was not ousted of it; they 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 cooperation 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 commission, 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 feizures were so. But then what effect has this upon Talbot ? Does it make his case better or worse f 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 Liberte ; to whom, she belonged, where sitted out, and for what purpose. Talbot gave Ballard guns within the jurisdiction of the United States, and thus aided in making him an illegal cruizer; 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 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 nation's, 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 ; whole 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 the legality *158 of restitution. It is an act of justice, resulting from the law of nations, to restore to the friendly power the possession of his vessel, which a citizen of the United States illegally obtained, and to place Foost Fansen, 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 colourable 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.
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 prima 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 prima 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 controul of the District Court.
Í. The first enquiry is,
Whether the district Court had jurisdiction prima 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 Liberte, 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 alledged 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.
*159 That there was fraud and collusion between Talbot and Ballard, both vessels being in fact the property of the same owners, Wilson and Sincliar, 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 of no prize, and whether the ship was lawfully a prize, or not, is for some court of the French Republic alone to determine, under wholauthority Ballard and Talbot alledge 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 oh the high seas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumstances of the capture.
But this exemption from enquiry, by our courts of :uftice, in this refpefi, only belongs to a French privateer, lawfully com-miffioned, and, therefore, if a veffel claims that exemption, but does not appear to be duly-entitled to it, it is the éxprefs duty of the court, upon application, to make enquiry, 'whether fin is the vessel fie pretends, to be, lince her title to fuch exemption, depends on that very fact.
Otherwise, any vessel whatever, under a colour of that kind, might capture with impunity, and defy all enquiry, 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 honour 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 if is tempus eget.
2. That such, an enquiry being thus proper to be made, if upon the enquiry it shall appear, that the vessel pretending to be a lawful privateer, is really not such, but uses a colourable commission for the purposes of plunder, she is to be considered by the law of nations, so far at least as a transfer of properly is concerned, or a title to hold it infilled upon, in the same light as having no commission at all.
3. That prima facie all piracies and trespasses committed *160 against the general law of nations, are enquirable, and maybe 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 I Lex Mercatoria 252. “ That if a Spaniard robs a Frenchman on the high “ feas, 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 Span i ard, to punish him, and civiliter, to have restitution of his “vessel.” The authorities referred to are, Selden mare claus. Lib. I chap. 27. Grotius de Jure Belli et Pacis, b. 3. c. 9. f. 16. both books of very high authority.
What is called robbery on the land, is piracy if committed at fea. 3 In ft. 113. 1 Com. Dig. 269. And as every robbery oh land includes a trespass, so does every piracy at fea. 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, hut 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 tyger upon bis prey, the moment he sees an individual of his enemy before him. Such savage nations, I believe, obtained formerly. Thank God, more rational ones have succeeded, and a liberal man can frequently fee great integrity and honor on both sides, though different and irreconcileable 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 colour of justification for; any offensive hostile act, unless it be authorised *161 by some act of the government giving the public constitutional function to it.
5. That nowithstanding an apparent contrariety of opinions on this subject, it would be easy to shew, upon principle, if not by authority, that such hostility committed without public authority on the high feas, is not merely an offence against the nation of the individual committing the injury, but also against the law of nations, and, of course, cognizable in either countries : But that is not material in the present stage of the enquiry, which affects only the conduct of our own citizens in our own vessels, attacking and taking, under colour of a foreign commission, on the high feas, goods of our friends.
This is so palpable a violation of our own law (I mean the common 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 flighted: doubt, but that upon the case of the libel, prima facie, the District Court had jurisdiction.
2. The next enquiry 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, viz. the property of Samuel Redick, a French citizen at Point-a-Pitre- in Guadaloupe.
2. That he had a lawful commiflion to cruize from the French Republic.
3. That whether Ballard had a lawful commission or not, he himself was lawfully entitled: 1. To part, if Ballard had a lawful commission, as having been in fight 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 feize 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 necessary it should be explicitly decided on this occasion; but I shall freely express my sentiments on the subject.
*162 That a man ought not to be a slave; that he should not 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 associated. 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, shewing 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 aid 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 private will, who can say this shall not be exerciled in time of war, as well as in time of peace, since the *163 individual, Upon that principle, is to think of himfelf Only ? I therefore, think, with one of the gentlemen for the defendant that the principle goes to a {late of war, as well as peace, and it mufir involve a time of the greateft public calamity, as well as the profoundeft tranquillity.
3. The very statement of an exception in time of war, shews 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 leaft 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 balls of equal rights, to be perfectly enjoyed in every instance, where the public good does not require a restraint.
4. In fome inftances, even in time of war, expatriation may fairly be permitted. It ought not then to be. retrained. But who is to permit it ? The Legiflature furely; the conftant guardian of the public intereft, where a new law is to be made, or an old one difpeufed with, If they may take cognizance in One inftance, (as for example, in time of war) becaufe the public fafety may require it, why not in any other inftance, where the public fafety, for fome unknown caufe, may equally require it ? _ Upon the eve of a war, it may be ftill more important to exercife it, as we often fee in cafe of embargoes.
.5. The fuppóíítiori, that the power may be abufed, is. of no importance, if the public good requires its exercife. This fe.ver'Hh jealoufy, is a paflion that can never, be fatisfied. No man denies the propriety of the Legiflature having a taxative power. Suppofe it íhould be ferioufly objidled to, becaufe the Legiflature might tax to the amount of tqf. in the pound ? They have the power, bur does any man fear theexe.rcifeof ic ? A Legiflature mull pofiefs'every power necefiary to the making of laws. When conftrudted as ours is, there is no danger of any material abufe. But a Legiflature mifft be weak to the extremeft verge of folly, to wifli to retain any iban as a citizen, whofe heart and affedtións áre fixed on a foreign country, in preference to his-own. They would naturally wifli to get rid of him as foon as they could, and, therefore, perhaps, the proper precaution would be, to reftrain adts of ■ baniihment, (if fach could be at all permitted) rather than to limit the legifla-tivecontroul over expatriation. But .is there no danger of abufe on the other fide ? Have not all the contentions about, expatriation "in the courts, arifen from a want of the exercife *164 of this very authority ? For, if-the Legiilature had prefcribed a mode, every one would know, whether it had or had not been purfued. and all rights, private as well as public, would be equally guarded; but upon the prefent doctrine, no rights are fecured, but thofe of the expatriator himfelf..
I, therefore, have no doubt, that when-the queftion is in regard to a citizen of any country, whofe conftitution has not prohibited the exercife óf the legiflative power in this inftance, it not, only is a proper inftance in which it may be exercifed, but it is the duty of the Legiilature to make fuch provifion, and for my part, I have always thought thé Virginia afíembly ihew-ed a very judicious foreiight in this particular»
Whether the' Virginia a<ft of expatriation be now in force, is a.queftion fo important, that I would not wiíh unneceilarily to decide it. If it be, I have no doubt that a citizen of that State, cannot expatriate himfelf in any other manner. It feems tnoft probable (but I think not certain) from this record,- that Talbot "was a citizen of Virginia. We are, however, undoubtedly to coniider him as a citizen of' the United States. Admitting he had a right to expatriate himfelf, without any law- pre-fcribing tbe method of his doing fo, we furely muft have feme evidence that he 1 ad done it. There is none, but that he went to the Weft Indies, and took an oath to the French Republic, and became a citizen.there. I do not think that merely taking fuch an oath, and being admitted a citizen there, initfelf, is evidence of a bona fide expatriation, or completely difeharges the obliga-tionshe owes to his own conntry. Had there been any reftric-tions by our own law on his quitting this country, could any a ¿i of a foreign country, operate as a repeal of thefe ? Certainly not, When he goes there, they know nothing of him, perhaps, but from his own reprefentation. He becomes a citizen of the new country, at his peril,- The a£t is complete, if he has legally quitted his own: if not, it is fubbrdinate 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 fociety. Did any man fuppofe, when tbe rights of ci-tizenihip were fo freely and honorably Bellowed on the unfortunate Marquis de la Fayette, that that abfolved him, as a fub-je£t or citizen of his own country ? It had only'this effl-ét, that whenever he came into this conntry, and chofe to refide here, he was ipfo fia/rto to be deemed a citizen, without any thing farther. The fame confcqúence, I think, would follow in'refpeS to rights of eifizenihip, conferred by the French Republic, upon fome iiluftjious cbaraclers, in our own, and other countries, if merely intended, as ingeniouily fuggefted at the bar, that upon going to France, and performing the ufual requifites, they ihould be then French' citizens, where is the *165 honour of it:—'Since any man may avail himfelf of‘an indif-criminate indulgence granted by law. Some difagreeable diJe.nmas, may be occafioned by this double citizenfhip, but the principles, as I have Rated them, appear to me to be warranted by law and rea fon, and if any difficulties arife, they fliew more ftrongly the importance of a law, regulating the cxercife of the right in queftion.
His going to the Wejl Indies, and taking an oath of allegiance there, coniidering it in itfelf, is an equivocal act. It might be done, with a view to relinquiih his own country forever. It might be done, with a view to relinquiih it for a time, in order to gain fome temporary benefit by it. If the former, and this was clearly proved, it poffibly might have'the ciFeft contended for. If the latter, it would fliew, that he voluntarily fubm.itted to the émbarraflments of two diftinft allegiances. He muft make them as confiftcnt as he can. By our treaty with Holland, any American citizen, cruifing. upon Dutch fubjefts, as commander of a privateer, under a foreign' commiffion, is to be deemed a pirate. If he left America, for the very purpofe of doing this, and became a French citizen, that'he might have a colour for doing fo, then his taking a French commiffion could not abfolve him from a crime .which he was committing in the very aft 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 refide there for a-time, and to aóí under a commiffion, which he believed would, for the prefentj juftify him, tho’ this might excufe him from the guilt of piracy, it would not make i'uch a contradi lawful, becaufe, in this cafe, even his intention Was not] to expatriate himfelf forever ; and, confequently, he Hill remained an American citizen, and had no authority to take a commiffion at all. It furely is impoffible for us to fay, he meant a real expatriation, when his conduft prima facie, as much indicates a crime, as any thing elie. If he had fuch an intention before he left this country, why not mention it If a citizen of Virginia, andtheir-aft of expatriation was not in force, yet, furely, it preferibed as good a method of eftefting'it as any other, andhisnot purfuingthis method, (if he really meant an expatriation) can be accounted for in no other manner, but that he was confcious, the vsflel he was fitting out, was for the purjiofe of cruifing, and would havebeer.ftopt by the government, had his delign of expatriation fo plainly evinced it.. •
I therefore, muft fay, there is no evidence to fatisfy me, that, he ceafe'd to be an American citizen, fo as to be abfolved from the duties he owed' to his own country;. and, among others, that duty of not cruifing againft the Dutch, in violation of the law of nations, generally, andcf the treaty , with Flolland, in particular.
*166 My obfervations, as to Talbot, will, in a great meafure, apply to Redick, who appears to have been a citizen of Virginia. There is no evidence to fatisfy me, that he ceafed to be an American ziix’Ltn, and became a French citizen, afcfolvcd from the duty he owed, as a citizen, to his own country. There is nothing to ihaw this, but a refidence of no long duration, in a French Ifland, his taking an oath to the French Republic, and being admitted a French citizen, which, for the reafons I have given, I do not think fufficient.
In addition to my other obfervations, I may add, how is it poffible, upon this principle, for the public to know in.what lit nation they Hand, as to any one of thefeperfons? Itisnotimpoffible, (I believe inftances indeed have already happened of it) that an American citizen may go to fome of the dominions of the French, become a French citizen for a time, enjoy all the benefits of fuch, and afterwards, return to his .own country, and claim, and enjoy, all the privileges of a citizen there, without the leaf!: poffibility of the public knowing, otherwife than from accident, whether he has become a citizen of another government, or not. S.uppofe one of them was to infift on hplding an eftate in land, devifed to him after his new citizen&ip, how could it be proved he was an alien ?
Whether, therefore, the property of the privateer, was in-Redick, or in Wilfon and Sinclair, I think it was equally Ame-., rican property, tho’ I cenfefs, the weight of the evidence, im preffes.me ftrongly with a belief, that the property was Wilfon and Sinclair1 s. ■ And, in regard to the objedtion, that nothing they could fay 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 Wilfon or Sinclair, in his prefence, and any of the conduit: of either of them, fan&ioned by him, muft have the fame effeit, as if the declarations had been made in the prefence of Redick, and fuch conduit fanitioned by himfelf.
I confider the proof of the commiffion fufficient, but deny its operation, as I confider the veffel to have been an American vef-fel, owned by an American or Americans, and with an American Captain on board.
I now proceed to enquire into the confequences of Bailar As capture, and Talbot's co-operation with him, tho’ perhaps, up-en my principles, it is'not absolutely neceffary.
I. Ballard’s capture, I think, is clearly infupportable. Admitting him to have been expatriated, (which, if the Virginia Jaw 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 reft were proved to be Americans, or BngUJh. She *167 -was fitted out in the United States. The commiffion, if good at all, was of a temporary and fecret nature, arid feems to have been confined toa fpecial purpnfe, to be executed within the United States. She certainly bad no authority to cruize, that being fpecified in every commiffion of that nature. Whoever were her owners, fire does not appear to have been French property. On the contrary, there is the higheit poffibility, that Talbot’s and. Ballard’s veffels had the fame owners. So con-fcious was hs of the illegality of his conduct,-that he even preferred no claim for the captured property. •
• 2. Talbot (confidering hirafeif as mafter-of a lawful priya-teei) claims .upon two grounds:. 1. Upon fuppofition of Ballard's being a lawful commiffi'on,. he- claim's, as being in fight at the time of the capture. To this, it' isfufficient to fay, that it was not a lawful commiffion. % If Ballard had no lawful commiffion, he claims upon his independent right, alledging, that if Ballard had no lawful commiffion, 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 cruized before and after, in company wiih him, that he put guns on board of- his veftel ; and there is the ftrongeft reafon to believe, that they both belonged to the fame 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, fuppofing he had-a lawful commiffion, when in reality he had not, it might with fome reafon be' contended, that Talbot fiiould. hold the prize. But, wilful ignorance, is never excufeable ; when there is time to enquire, enquiry ought to be made. .There is not, however, the leaft reafon for fuppofing any ignorance in the cafe. He abetted Ballard’s authority, fuch as it. was. He acted in fupport of it, not in oppofition to it. It does not appear that he ever quéftioned it, until after his arrival in Charlejton. It was, therefore, a mere after-thcüght. A man having a com- . million, is authorized, but not compelled, to exercife it His will muft concur to make a capture under it. It does not appear, that he relied, at fea, upon his own force, but upon Bal lard’s; at leaft, in this inftancc, upon his own and Ballard’s,' in conjunction1. A man having a lawful commiffion, isautho-rifecl to cruize himfelf, and to cruize in company with others, having lawful authority. It docs not authoriie him to afibciate with pirates, or any unlawful depredators, on the high feas. If he does fo, he departs from his commiffion, a (Turnes a new cha-rafter,’ which that docs not author!fc, .and rifques all the con-fequences oí it. It is/impoffible that Ballard pan be guilty of- *168 a crime, and Talbot, who aflbciated with him, in the wilful commiiiion of it, can be wholly innocent of it. A man can be guilty of no crime, in obeying a lawful commiifion. He, therefore, in this inftance, if guilty of a crime, mull be conft-dered altogether detached from a rightful authority, which he abandoned, in fearch of the profit of an illegal adventure. If, at fea, he ailed in fupport of Ballard’s claim, how can he claim now, on the principle of that being infupportahle ? At lea, was the place for him to make his option. He has no right, after the prize is brought into port, to fay—“ I made a “bad option there: I fupported Ballard’s claim, whereas! “ ought to have oppofed it, and Hood upon my own. I will “ 72ow take this Dutch J,hip as a prize, by my own authority.” For fuch, in efFedl, 1 take to be the fubitance of any claim, fuggefted after his arrival in port.
Í therefore think, upon this ground, even admitting, that Talbot’s was a rightful privateer, his claim is iiifupportable.
As I decided this caufe in the Circuit Court, it gives me pleafure to be relieved from the neceifity of giving any opinion on the appeal, by the unanimity of fentnnent that prevails among rhe judges.
The fails in this cafe, fo fat as they appear to me to be eiibntial for forming an opinion, may be reduced to a very narrow ccmpafs, Ballard, the commander of a veil'd, -which was illegally fitted-out in the United States, cruizes in company with Talbot, who alledges that he is a French citizen, and produces a French commiifion. Ballard captures the Magdalena, a Dutch p: ize; then Talbot joins him ; and both, having put prize-maírers on board, bring the prize into the harbour of Charlejlon. The questions nrifing ■ on this ftatement are, limply, whether the capture, under fuch ciicumftances, is a violation of ohr treaty with Holland ? And whether it is fuch a cafe of prize, at the courts of the United Stales can take cognizance of, conhilently with the treaty between America and France? Now, the whole traniadtion at Gaitclaloupc, as well as here, prefents itfelf to my mind as fraudulent and collufive. But even fuppofing that hlalbot was, bona fide, a French citizen, the other circumftanccs-of the cafe are iufficient to render the capture void. It was, in truth, a capture by Ballard, who had no authority, or colour of authority, for his condudl. He was an Aynerican citizen; he had never left the United'States ; his veil'd was owned by American citizens; and the commiiiion, which he held by afiignment, was granted by a French admiral, within the- United States, to another-perlón, for a particular purpofe, but not for the pttr-poie of capture. Then, ihall not the property, which he has thus taken-from-a nation at peace with'the United States, and *169 brought within our jurifdi&ion, be reftored to its owners ? Every principle of juftice, law and policy, unite in decreeing the affirmative; and there is no poiitive compadt with any power to prevent it.
On the important right of expatriation; I do not think it ne-ceiTa.ry to give an opinion; but the.docftrine mentioned by Hci- n-eccius, feems to furnifh a reafonable and fatisfaflorv rule. The adf of expatriation ihould be buna fide, and maniídíced, at leaft, by the emigrant’s aifu'al removal, with his family and effedfs, into another country. This, however, forms no part of the ground, on which I think the decree of the Circuit Court ought to be affirmed.
The merits of the caufe are fu obvious, that I do not conceive there is much difficulty in pronouncing a fair and prompt deciiion, for affirming the decree of the Circuit Court.
The dodfrine of expatriation is certainly of great magnitude; but it is not necefiary to give an opinion upon it, in the pre-fent caufe, there being no proof, that Captain Talbot's admif-iion as a citizen of the French Republic, was with a view to relinquifh his native country; and a man may, at the fame time, enjoy the rights of citizenihip under two governments.
It appears, upon the whole, that Ballard's veil'd was illegally fitted out in the United States; and the weight of evidence fa&isfies my mind, that Talbot's veil'd, which was originally American property, continued fo at the time of the capture, notwithftanding all the fraudulent attempts to give it a different complexion. The capture, therefore, was a violation of the law of nations, and of the treaty with Holland. The court has a,clear jurifdidion of the caufe, upon the exprefs authority of Pelacbes's Cafe. q. Iijl. And every motive of good faith and juftice muft induce us to concur with the Cir-cit Court, in awarding reiiitution.
The Decree of the Circuit Court affirmed.
The Counfel for the Appellees, then moved the court to ailefs additional damages, which was oppofed by Dallas, for the Appellant; and, after argument, the following order was made:
Ordered, that the decree of the Circuit Court of South Carolina diftriéf, pronounced on the 5th day of November, in the year of our Lord one thoufand feven hundred and ninety-four, affinning the decree of the Diftrici Com:: of the fame diftridt, pronounced on the fixth day of Angttjl, in the year of our Lord one thoufand feven hundred and ninelyty-four, be in all its parts eftabliíhed and affi -mcd. And it is further confidered, ordered, adjudged and decreed, that the laid William Talbot, the Plaintiff in do to the fa id *170 Janfen, the Defendant in error, in addition to the fum of one thoufand feven hundred and fifty-five dollars fifty-three cents, for demurrage and' intereft, and eighty-two dollars for coils, in the decree of the faid Circut Court mentioned, demurrage for the detention and delay, of the faid brigantine Prouw Chrif-tina Magdalena, at the rate of nine dollars and thirty-three cents, lawful money of the United States, per diem, to be accounted from the fifth day of November laft pail, till the.fixth day of June laft, the day of the actual fale of the faid brigantine, under the interlocutory order of this court, of the third day of March laft pail, to wit, for two hundred and thirteen days, a fum of nineteen hundred and eighty-fev.en dollar* and twenty-nine cents; and alfo intereft: at the rate of feven per centum per annum, for two hundred and ninety days, on the fum of fifty-one thoufand eight hundred and forty five dollars, being the amount of the falesof the cargo ofthe faid brigantine heretofore fold, by order and permiflion of the faid' Diftridt Court, and making a fum of two thoufand eight hundred and eighty-three dollars and forty-two cents; and alfo a like fum of feven per centum per annum on the amount of fales of the faid brigantine Vrouw Chriftina Magdalena, under the order of this court, that is to fay, intereft for feventy-feven days, on the fum of eighteen hundred and twenty dollars, from the faid fixth day of June laft, making the fum of twenty-fix dollars and eighty-feven cents, the whole of which inteieft to be accounted to this day, and making together the fum of two thou-fand nine hundred arid ten dollars twenty-nine cents, lawful money of the United States; and which faid intereft and de-murrage, make together the fum of four thoufand eight hundred and ninety-feven dollars fifty-eight-cents, in addition to and exclufive of the demurrage intereft and coils adjudged in the faid Circuit Court of the United States, for South Carolina diftridl; alfo nine-one dollars and ninety-three cents, for his cods and charges : and that the faid Joojl Janfen have execution of this judgment, and decree by fpecial mandate to the faid Circuit; Court, and procefs agreeable to the a£l of the Congrels of the United- States, in that cafe made and provided