US SUPREME COURT DECISIONS

A capture upon the high seas was made by a vessel illegally fitted out in the United States by citizens of the United States and carrying the flag of the French Republic, being commissioned as a privateer, of the Magdalena, a vessel and cargo bound from Curacoa to Amsterdam, the vessel and cargo being the property of citizens of the United Netherlands. The vessel captured was brought into Charleston, and proceedings were instituted in the District Court of the District of South Carolina, to obtain a restitution of the vessel and cargo and damages from the captors. Held that the capture was illegal and that the vessel and cargo be restored to the owners with damages.

A capture by a citizen of a neutral state who sets up an act of expatriation to justify it is unlawful where the removal from his own country was by sailing, contrary to the laws of his country, in the capacity of a cruiser against friendly powers.

A capture by a vessel built, owned, and equipped as a vessel of war in a neutral country is unlawful, and the courts of the neutral country will decree restitution of the captured property.

Every illegal act committed on the high seas is not piracy, and a capture may be illegal without being piratical.

A capture made by a lawfully commissioned belligerent cruiser with the aid and by the means of a neutral who had no right to cruise is unlawful, and the captured property will be restored by the neutral if brought within the jurisdiction of its court. Captures by belligerent vessels lawfully commissioned are alone exempt from inquiry by neutral courts, and if the capturing vessel claims to be so exempted, the court should inquire whether and have proof that she is entitled to the same.

This was a writ of error in the nature of an appeal from the Circuit Court for the District of South Carolina, and the following circumstances appeared upon the pleadings:

A Libel was filed against Edward Ballard, Captain of an armed vessel called L'Ami de la Liberte, on the admiralty side of the District Court of South Carolina in June, 1794, by Joost Jansen, late master of the brigantine Magdalena (then lying at Charleston, within the jurisdiction of the court), in which it was set forth that the brigantine and her cargo were the property of citizens of the United Netherlands, a nation at peace and in treaty with the United States of America; that the brigantine sailed from Curacoa, on a voyage to Amsterdam, but, on 16 May, 1794, being about fifteen miles N.W. of Havana, on the west side of Cuba, she was taken possession of by L'Ami de la Liberte; that on the next day the libellant met another armed schooner called L'Ami de la Point-a-Petre, commanded by Captain Wm. Talbot, on board of which the mate and four of the crew of the brigantine Magdalena were placed, and that the two schooners, together with the brigantine, sailed for Charleston, where the last arrived on 25 May, 1794. The libellant proceeds to aver that Edward Ballard was a native of Virginia, a citizen and inhabitant of the United States, and a branch pilot of the Chesapeake & Port Hampton; that L'Ami de la Liberte is an American built vessel, owned by citizens of the United States (particularly by John Sinclair, Solomon Wilson, etc.), and was armed and equipped in Chesapeake Bay and Charleston by Edward Ballard and others, contrary to the President's proclamation as well as the general law of neutrality and the law of nations; that Edward Ballard had not and could not legally have any commission to capture Dutch vessels or property; that the capture was in direct violation of the thirteenth and nineteenth articles of the treaty between chanrobles.com-red

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America and Holland, and that a capture without a commission or with a void commission or as pirates could not divest the property of the original bona fide owners, in whose favor, therefore, a decree of restitution was prayed.

On 27 June 1794, William Talbot filed a claim in this cause, and thereupon set forth that he was admitted a citizen of the French Republic on 28 December 1793, by the Municipality of Point-a-Petre at Guadaloupe, and on the 2 January following received a commission from the governor of that island as captain of the schooner L'Ami de la Point-a-Petre, which was owned by Samuel Redick, a French citizen, resident at Point-a-Petre since 31 Dec. 1793, and had been armed and equipped at that place as a privateer under the authority of the French Republic. That the claimant, being on a cruise, boarded and took the brigantine, being the property of subject of the United Netherlands, with whom the Republic of France was at war, and that although he found a party from L'Ami de la Liberte on board the brigantine, yet as they produced no commission or authority for taking possession of her, the claimant sent her as his prize into Charleston, having put on board several of his crew to take charge of her, and particularly John Remfen in the character of prize master, to whom he gave a copy of his commission. The claimant therefore prayed that the libel should be dismissed with costs.

On 3 July 1794, the libellant filed a replication in which he set forth that Wm. Talbot, the claimant, is an American citizen, a native and inhabitant of Virginia; that his vessel (formerly called The Fairplay) is American built, was armed and equipped in Virginia, and is owned in part or in whole by John Sinclair and Solomon Wilson, American citizens, and Samual Redick, also an American citizen, though fraudulently removed to Point-a-Petre for the purpose of privateering. That J. Sinclair had received large sums as his share of prizes, and Captain Talbot had remitted to the other owners their respective shares. That there is a collusion between Captains Talbot and Ballard, whose vessels are owned by the same persons and sailed in company from Charleston on 5 May, 1794.

On 5 July, 1794, William Talbot added a duplicate to his claim in which he protested against the jurisdiction of the court, insisted that even if there had been a collusion between him and Capt. Ballard, it was lawful as a stratagem of war, and averred that John Sinclair was not the owner of the privateer, that Samuel Redick was sole owner, and that he never had paid any prize money to John Sinclair.

On 6 August, 1794, the district court decided in favor of its jurisdiction, dismissed the claim of Captain chanrobles.com-red

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Talbot, and decreed restitution of the brigantine and her cargo to the libellant for the use of the Dutch owners. An appeal was instituted, but in October Term 1794, The circuit court affirmed the decree of the district court; and allowed two guineas per diem for damages, and 7 percent on the proceeds of the cargo (which had been sold under an order of the court) from 6 August 1794, with $82 costs. Upon this affirmance of the decree of the district court the present writ of error was founded.

It may be proper to add that Captain Ballard had been indicted in the District of Charleston on a charge of piracy, but was acquitted agreeably to the directions given to the jury by Mr. Justice Wilson, who presided at the trial.

From the material facts which appeared upon the depositions and exhibits accompanying the record, the following circumstances were ascertained:

1st. In relation to the citizenship of Captain Talbot and the property of the vessel which he commanded, it appeared that he was a native of Virginia, that he sailed from America in the close of November, 1793, and arrived soon afterwards at Point-a-Petre, in the Island of Guadaloupe; that having taken an oath of allegiance to the French Republic, he was there naturalized by the municipality as a French citizen on 28 December, 1793, and that on 2 January, 1794, authority was given by the Governor of Guadaloupe to Samuel Redick to fit out the schooner, L'Ami de la Point-a-Petre, under Captain Talbot's command, Redick having entered into the usual security, as owner of the privateer. This schooner was built in America, called the Fairplay, and had been owned by John Sinclair and Solomon Wilson, American citizens, but she was carried to Point-a-Petre by Captain Talbot, and there, on 31 December, 1793, by virtue of a power of attorney from Sinclair & Wilson dated 24 November, 1793, he sold her for 26,400 livres, as the bill of sale set forth, to S. Redick, who was a native of the United States but had also been naturalized (after an occasional residence for some time) as a citizen of the French Republic on the same 28 December, 1793. The bill of sale also stated that certain cannon and ammunition on board the vessel were included in the sale. The schooner, commanded by Captain Talbot, sailed immediately after this transaction on a cruise, and had taken several prizes previously to the capture of the Magdalena. There was some slight evidence also to sanction an allegation that of these prizes, taken subsequent to the sale of the vessel to Redick, a part of the proceeds had been paid by Talbot to the original owners, Sinclair & Wilson.

2d. In relation to the citizenship of Captain Ballard and the chanrobles.com-red

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property of the vessel which he commanded, it appeared that he was a native of Virginia, but that in the court of Isle of Wight County, of April Term, 1794, he had renounced, upon record, his allegiance to that state and to the United States, agreeably to the provisions of a law of Virginia, * though previously to the capture of the Magdalena he had not been naturalized in (nor, indeed, had he visited) any other country. L'Ami de la Liberte had been employed, but not armed, by the French Admiral Vanstable, then lying with a fleet in the Chesapeake, and on 13 Germinal, 1794, he had given Sinclair a general commission to command her as an advice or packet boat. This commission, however, was assigned by endorsement from Sinclair to Capt. Ballard, the assignment was recognized by the French Consul at Charleston on 11 Floreal following, and a copy of it had been certified and delivered by Capt. Ballard to the prize master of one of his prizes. There was full proof that L'Ami de la Liberte had received some guns from L'Ami de la Point-a-Petre when they first met by appointment in Savannah River, and that she had been supplied with ammunition, etc., within the jurisdiction of the United States. It did not appear that she had gone into any other than an American port, though she had made repeated cruises before the capture of the Magdalena, and there were strong circumstances to show that she was still owned by Sinclair, though she had been employed by Admiral Vanstable.

3rd. In relation to the concert of the two schooners and the capture of the Magdalena, it appeared that before Capt. Ballard's vessel was fit for sea, it had been generally reported and believed and there was some evidence that Sinclair had declared, that she was destined as a concert to cruise with Capt. Talbot; that Capt. Talbot had received a letter from Sinclair directing him to proceed to Savannah River and there wait for Capt. Ballard, in whose vessel Sinclair meant to sail; that accordingly, some days afterwards, Capt. Ballard's vessel hove in sight off Savannah, when Capt. Talbot said, "there is our owner, let us give him three cheers;" that both vessels went chanrobles.com-red

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to Tybee Bar, and sailed more than a mile above the lighthouse, where four cannon and some swivels were taken from on board of Capt. Talbot's vessel and mounted on board L'Ami de la Liberte; that Sinclair left the vessels in the river, and they soon after sailed together, as concerts, upon a cruise; and that accordingly, before the capture of the Magdalena, they had jointly taken several prizes, and, particularly the Greenock, which was taken by them on 15 May, only two days before the capture of the Magdalena, and the Fortune der Zee, which was taken the very day after her capture. It appeared that the Magdalena was first taken possession of by Capt. Ballard, who left a part of his crew on board of her; but Capt. Talbot was then in sight, and, coming up in about an hour afterwards, he also took possession of the brigantine, and placed a prize master and some of his men on board. The two privateers continued together for several days, making signals occasionally to each other, and finally Capt. Ballard alone accompanied the prize into Charleston. chanrobles.com-red

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On 22 August, 1795, the judges delivered their opinions seriatim.