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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."
Mr. Justice Paterson expressed no opinion on the question whether Talbot and Redick were citizens of France, it appearing that in the capture in question Talbot, with his vessel, played the part of an accomplice or conspirator with Ballard, who was a citizen of the United States and not of France.
The question of Talbot's citizenship was discussed by Mr. Justice Iredell. “This involves," said Mr. Justice Iredell," the great question as to the right of expatriation.” He concurred in the view that a man “ should not be confined against his will to a particular spot because he happened to draw his first breath upon it.” But there was a difference of opinion “as to the proper manner of executing this right.” Some held it to be “a natural, unalienable right in each individual,” not subject to legislative restraint, but exercisable by every man at his “ will and pleasure.” From this opinion he must presume to differ. Expatriation was not“ a natural right, in which the individual is to be considered as alone concerned." Every man had, as a member of society, duties as well as rights. If he had been in the exercise of a public trust, for which he had not fully accounted, he ought not to leave the society until he had done so. It was sometimes said that a man should not expatriate himself in time of war, so as to do a prejudice to his country. How could this be so, if expatriation was “a natural, unalienable right, upon the footing of mere private will ?” The very statement of an exception in time of war plainly meant that it was not an absolute right, but “ 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." But, who is to regulate the matter? “ The legislature surely.” And if it may exercise the power in time of war because the public safety may require it, it may do so in other instances on the same ground. The supposition that the power might be abused was of no importance, any more than the supposition that the taxing power might be abused. The assembly of Virginia had shown judicious foresight in attempting to regulate the matter. If the Virginia statute was still in force—a question he would not unnecessarily decide-he had no doubt that a citizen of that State could not expatriate himself in any other manner. It was probable from the record, but not certain, that Talbot was still a citizen of Virginia. But, however this might be, he was "undoubtedly . a citizen of the United States.” In the absence of any law prescribing the method of expatriating himself as such, there must be some evidence thåt he had actually done it. His going to the West Indies and being admitted a citizen there, did not in itself constitute expatriation or discharge him from. his obligations to his own country. If the laws of the United States had imposed restrictions on his leaving the country, no act of a foreign country could operate to repeal them. The act was complete, if he had legally quitted his own country; if not, it was subordinate to his original allegiance. The rights of citizenship bestowed by the United States on Lafayette, or by France on certain illustrious characters in the United States, did not absolve them from their original allegiance. Talbot's going to the West Indies and taking an oath of allegiance there was in itself an equivocal act. It might have been done with or without a view to relinquish his own country forever. "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." By the treaty between the United States and Holland a citizen of either country cruising under a foreign privateer commission against the citizens of the other was to be deemed a pirate. If he left America and became a French citizen in order to have a color for so cruising, his acceptance of a French commission would in itself involve the perpetration of a crime. If he went to the West Indies intending to reside there for a time, and to act under a commission, believing that this would justify him, such a course, though it might excuse him from the guilt of piracy, would not make his 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 prima facie as much indicates a crime as anything else.” The evidence therefore did not show that Talbot had ceased to be an American citizen, so as to be absolved from the duties he owed to his country, and among others that “ of not cruising against the Dutch, in violation of the law of nations generally, and of the treaty with Holland in particular."
On the same grounds Judge Iredell considered Redick still a citizen of the United States, there being nothing to show his expatriation “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.”
As to Ballard, Mr. Justice Iredell said: “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 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.”
Mr. Justice Cushing said:
“ Even supposing that Talbot was, bona fide, a French citizen, the other circumstances of the case are sufficient to render the capture void. It was, in truth, a capture by Ballard, who had no authority, or color of authority, for his conduct. He was an American citizen; he had never left the United States; his vessel was owned by American citizens; and the commission, which he held by assignment, was granted by a French admiral, within the United States, to another person, for a particular purpose, but not for the purpose of capture.
On the important right of expatriation, I do not think it necessary to give an opinion; but the doctrine mentioned by Heineccius seems to furnish a reasonable and satisfactory rule. The act of expatriation should be bona fide, and manifested, at least, by the emigrant's removal, with his family and effects, 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."
Rutledge, Chief Justice, said that it was not necessary to give an opinion upon the “ doctrine of expatriation," there“ being no proof that Captain Talbot's admission as a citizen of the French Republic was with a view to relinquish his native country; and a man may, at the same time, enjoy the rights of citizenship under two governments."
Talbot 1. Janson (1795), 3 Dallas, 133.
ment for the appellees, cited 2 Heineccius, B. II. c. 10, f. 230, p. 220,
In April, 1800, the American schooner Jame, four-laden, sailed from Baltimore for St. Bartholomew's, where both vessel and cargo were to be sold. The cargo having been disposed of at St. Bartholomew's, the master, being unable to sell the vessel there, proceeded with her to St. Thomas, where he sold her to Jared Shattuck, who changed her name to the Charming Betsy and, having loaded her with American produce, cleared her as a Danish vessel for the French island of Guadaloupe. On this voyage she was captured by a French privateer and sent to Guadaloupe as a prize; but on the way
thither she was recaptured by Captain Murray, of the U. S. frigate Constellation, and carried into Martinique, where the master claimed both vessel and cargo as the property of Jared Shattuck, a Danish burgher. It appeared that Shattuck was born in Connecticut before the American Revolution, but was removed while an infant to St. Thomas, where he had continued to reside since about 1789, having married there, established himself in trade, and acquired vessels and real property. About 1796 he took an oath of allegiance to the Danish Crown, and became a Danish burgher, invested with the privileges of a Danish subject. Captain Murray, however, considering him as still an American citizen, sold the cargo at Martinique and brought the vessel to Philadelphia, where he libelled her under the act of February 27, 1800, entitled "An act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof." (2 Stats. at L. 7.) This act provided that from and after March 2, 1800, "all commercial intercourse between any person
resident within the United States or under their protection,” and any person resident in France or any of her dependencies, should be suspended; and that any vessel owned or employed" by any person
resident within the United States, or any citizen
. thereof resident elsewhere," and sailing therefrom after that day, which, “contrary to the intent" of the statute, should be “ voluntarily carried, . destined, or permitted to proceed, or
be sold, bartered, entrusted, or transferred for the purpose that she may proceed, whether directly or from any intermediate port or place,” to France or any of her dependencies, and also any cargo which should be found on board of such vessel “ when detected and interrupted in such unlawful purpose,” should be wholly forfeited.
The act thus forba de commercial intercourse with France or her dependencies“ by any person resident within the United States or under their protection," and made the vessel and cargo subject to forfeiture (1) if the vessel was owned or employed in intercourse with a French port or place by any person resident within the United States or any citizen thereof resident elsewhere," or (2) if she was sold or transferred for the purpose that she might proceed to such port or place.
The court, Marshall, C. J., delivering the opinion, held:
1. That the building of vessels in the United States “ for sale to neutrals " was a profitable business which Congress could not be supposed to have prohibited, unless the intent was plain.
2. That an act of Congress ought never to be construed to violate the law of nations if any other construction were possible, and consequently should not be construed to violate neutral rights or commerce.
3. That the Jane, “ having been completely transferred in the
island of St. Thomas by a bona fide sale to Jared Shattuck, and the forfeiture alleged to have accrued on a fact subsequent to that transfer," the liability of the vessel to forfeiture must depend upon the inquiry whether the purchaser came within the description of the act,
citizen " of the United States “resident elsewhere." 4. That, whether a citizen of the United States could divest himself absolutely of that character, except in some manner prescribed by law, was a question not necessary to be decided; that it appeared by the precedents that an American citizen might “ acquire in a foreign country the commercial privileges attached to his domicil, and be exempted from the operation of an act expressed in such general terms " as that under consideration; that Shattuck, having become * the subject of a foreign power," this fact, though it might not suffice “ to rescue him from punishment for any crime committed against the United States, a point not intended to be decided,” yet placed him “out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance," and took him “ out of the description of the act.”
5. That “the Charming Betsy, with her cargo, being at the time of her recapture the bona fide property of a Danish burgher," was not forfeitable for being employed in trade with a French island.
Murray 1". Schooner (harming Betsy (1804), 2 Cranch, 64.
as extracted by Judge Tucker from The National Magazine, No. 3, p. 251. As stated, this opinion was delivered in the case of Isaac Williams, who was under trial in 1797 in the United States circuit court in ('onnecticut for accepting a French commission. In his defense he offered to prove that he had, prior to the war between Eng. land and France, expatriated himself and become a French citizen. Chief Justice Ellsworth is reported to have held (1) “that all the members of a civil community are bound to each other by compact,” and (2) that one of the parties to this compact can not dissolve it by his own act.” A member of the community could not dissolve his compact with it without its consent or default. In the present case there had been no default, nor had there been any consent. The act of the Government in naturalizing foreigners did not imply such consent. No inquiry wils made as to the applicant's relations to his own original country. If he embarrassed himself “ by contracting contradictory obligations” the “fault and folly” were his own; but this implied no consent of the Government to the expatriation of its citi
The evidence was therefore rejected, and the prisoner was found guilty, fined, and imprisoned. Jared Shattuck, the owner of the Charming Betsy, claimed damages
from Lieutenant Maley, commander of the U. S. vessel Erperiment, for the capture of the schooner Mercator which, though built in the United States, belonged to Shattuck. It was held that the claim for damages was well founded. Marshall, C. J., delivering the opinion of the court, said that it had been shown that Shattuck had, though be was born in the United States, removed to St. Thomas and “ac