# Juando v. Taylor

> District Court, S.D. New York · August 15, 1818 · 13 F. Cas. 1179

URL: https://www.frixlaw.com/law-library/cases/8633207

## Case

- **Full name:** JUANDO v. TAYLOR (two cases)
- **Court:** District Court, S.D. New York
- **Decided:** August 15, 1818
- **Citations:** 13 F. Cas. 1179; 2 Paine 652
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Ness
- **Judges:** Ness
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8633207

## Opinion text

VAN NESS, District Judge.
The orders to hold the defendant to bail in these cases, were granted on the exhibition of several affidavits, stating the defendant to be an American citizen, and to have been concerned, some time in the year 1816, in fitting out and arming' a brig, or vessel, called the Fourth of July, or El Patriota, within the limits of the United States; to have proceeded in her to sea, and, under the flag of the government of Buenos Ayres, to have cruised against the property of the subjects of the king of Spain, and to have captured merchandise to a large amount, belonging to 'the individuals in whose behalf these suits have been instituted by the consul of his Catholic majesty. At a subsequent day, the defendant, by his counsel, applied for, and obtained an order directing the plaintiff to show cause why he should not be discharged from custody on filing common bail. The application was founded on and supported by the defendant's affidavit, stating that he was born a subject of the king of Great Britain, but was now, and had ever since the year 1813. been a naturalized citizen of the united provinces of South America. In support of this last fact, he produced his certificate of naturalization. He further stated, that at the time he took the command of the aforesaid vessel, he was, and still is, an officer in the naval service of that government, and verified that fact by the. production of his commissions; one of which' bears date so early as the year 1811. He denied, also, all participation in fitting out or arming the said vessel; and alleged, that in his public capacity, as. an officer of the government of Buenos Ayres, he had purchased and contracted for the delivery of the said vessel at some place beyond the limits of the United States. That she was accordingly delivered to him more than a marine league from the coast of the United States, and produced a bill of sale dated at sea to verify the fact. The counsel for the plaintiff strenuously opposed the reading of this affidavit, on the ground that according to the practice of the supreme court of this state, where the debt is positively sworn to, no • counter affidavit can be received. This, to be sure, appears to be the practice of our supreme court, derived from the king's bench. In the' common pleas of England it is not so. There, counter and contradictory affidavits are received, and the matter of bail held examinable in that way. But whatever may be the practice of these courts, this is a case to which the rule does not and cannot apply. This is not an action of debt, or of assumpsit: it is founded on an alleged trespass: the acts complained of are not denied, but justified;- and whether the defendant is at all liable to arrest for having committed them, is purely a question of law — a question depending not on the laws of any particular country, but on the public law of nations; and on which I think the party is entitled to a decision in this stage of the proceedings; the more So, because in this action bail is not a matter of course, and it lies with the plaintiff to show himself en-' titled to hold the defendant in custody. This affidavit being received, further time is asked to show, by supplementary affidavits, that although the defendant, as he has stated, may be a native of the island of Bermuda, and may have been thus bom a subject of the king of Great Britain, yet he is a citizen of the United States by naturalization. The time required to substantiate this fact having been allowed, further affidavits have been produced by both sides in relation to this point; I shall not examine them minutely, because, on further reflection, I do not consider the fact material. If- the defendant was ever a citizen of these states, he is no longer so. If the right of expatriation was ever exercised by any individual, it certainly has been by him. If the exercise of that right can ever be effectual, it must be so in this case.
The occasion will not permit me to go into a full examination of the principles of public law in reference to this right of- expatriation. I think, however, that it can be maintained under the established law of nations, and even by the laws and the practice of those who have become the most strenuous advocates for what may be termed the modern doctrine of perpetual allegiance — a doctrine which grew out of the feudal system, and was supported upon a principle which became imperative with the obligations on which it was founded. In this country, expatriation is conceiv.ed to b.e a fundamental right. As far as the principles maintained, and the practice adopted by the government of the United States is evidence of its existence, it is fully recognized. It is constantly exercised, and has never in any way been restrained. The general evidence of expatriation is actual emigration, with other concurrent acts showing a determination and intention to transfer his allegiance.
The evidence in this case is emigration more than twelve years since — swearing allegiance to another government eight years ago — enter *1182 ing into its service, and continuing in it uni-i'ormly from that time to this. On this evidence, I cannot hesitate to say, that the defendant has lost his character as a citizen of the United States; he has abandoned his rights as such; he cannot now claim them, and cannot be called on to perform any of the duties incident to that character. It may, perhaps, be said that the government to which he has sworn allegiance is not independent, and that the act is, therefore, inoperative and void. If that were so, yet the fact of emigration, and the evidence of the animus manendi —the intention to remain abroad and to abandon his citizenship here, as manifested by his oath of allegiance to another government, claiming to be independent, are sufficient to sustain his expatriation. In whatever light the government to which he professes to belong may be viewed by other nations, it is independent in fact, and may forever remain so, although not recognized in form. The obligation, therefore, which the defendant has •contracted, I conceive to be binding on him, and utterly incompatible' with allegiance or citizenship elsewhere.
Although I am satisfied with this view of the subject, there is another circumstance well worthy of consideration: It appears that the defendant was in the naval service of Great Britain immediately antecedent to his becoming a resident in Buenos Ayres, and assuming allegiance to the government of that country. It is well known, that upon the principles maintained by the British government, the native character, if, under any circumstances, it can temporarily be lost, easily reverts. A return to the country, or into its military or naval service, restores it. In the view of that government, therefore, the defendant was completely a Biitish subject prior to his becoming a citizen of the united provinces of South America. I am inclined to think, that even here this return to the service of his native country must be considered an abandonment and forfeiture of his citizenship.
Under all the circumstances of the case, I am clearly of opinion that the defendant is no longer a citizen of this country. Not being a citizen of the United States, the question is presented broadly, whether this court will take cognizance of this case? or rather, whether it will order the defendant to be arrested and held to bail for acts committed against the subjects of the royal government of Spain, in his capacity of a citizen and pub- i lie officer of the government of the united provinces of Bio de la Plata, claiming to be independent? Our own citizens can at all times appeal to the tribunals of their own country to enforce their rights, and through the intervention of the same means, they can be coerced to a performance of their duties. In the application, moreover, of our own laws to their conduct, or to questions growing out of a war between a foreign prince and his subjects, this court may find it necessary to decide upon the political independence of a foreign people; but I know of no principle of the law of nations, and certainly there is no municipal law, that authorizes, or at least requires it to take cognizance of questions arising between a foreign monarch and a portion of his subjects. The law of nations, as promulgated by the most respectable authorities, and as illustrated by the usages and practice of modern times, affords, I think, a sufficient and distinct rule for our government in cases of this sort. It is well settled, that when one portion of an empire rises up against another, no longer obeys the sovereign, but, by force of arms, throws off his authority, and is of sufficient strength to compel him to resort to regular hostilities against it, a state of civil war exists, as distinguished from rebellion. It is equally well settled, that in the prosecution of a civil war, all the maxims of humanity and moderation inculcated by the common laws of war, should be observed. The same case in which these principles are found, points out the course to be pursued by foreign nations in such a crisis. It expressly requires that they consider the conflicting parties as two distinct powers, each independent of all foreign authority, contending for rights and for a dominion which no foreign government can justly give or take away; and, therefore, in the words of this great authority, “nobody has a righfto judge them.” It is said that this government of Buenos Ayres, not having been recognized by our own as free and independent, it cannot be recognized as such by this court; and its decision in the case of The American Eagle is cited to show that this position was adopted in that case. Certainly it was, and so it will be here, without affording any aid to the plaintiff’s case, for it will be sufficiently shown in the progress of this investigation, that such recognition, either by the government or this court, is not necessary to entitle the defendant to his discharge. Most assuredly I am not now to determine what would be the operation of a municipal law interdicting trade and intercourse with a foreign prince or state. If that were necessary, I should decide now. as I did then, that it did: not prohibit trade with a power not recognized by our government as independent. But, with great respect to the dicta of learned men, very learned, no doubt, in equity and common law, I maintain that it is a question which has nothing to do with that now before the court; and no claim to infallibility, however vainly and presumptuously upheld, can obliterate the distinctions between the operation of a local act, intended to regulate our own trade, and the conduct of our own citizens, and the great principles of public law, whose coercive efficacy pervades the civilized world.
The question is, not whether the government of Buenos Ayres be a foreign prince or state, but whether a civil war is raging between that colony and the government to which it once professed allegiance; and if there be, in what light the parties are to be *1183 viewed by foreign and neutral nations. The solution of this question will scarcely be found in Haddock or in Blake; but that they are to be considered as nations at war, and on an equal. footing, as to all the purposes of the war in which they are engaged, is the clear and explicit law of nations. ■“When a party is formed in a state, .which no longer obeys the sovereign, and is of strength sufficient to make head against him, this is called a civil war.” “A civil war breaks the bands of society and government; or, at least, it suspends their force and effect.” “When a nation becomes divided into two parties, absolutely independent, and no longer acknowledging a common superior, the state is dissolved, and the war between the two parties stands on the same .ground in every respect as a public war between two different nations.” “This being the case, it is very evident that the common laws of war, those maxims of humanity, moderation and honor, which we have already detailed in the course of this work, ought to be observed by both parties in every civil war.” 3 That the present contest between Spain and her colonies is distinguished by all the features of a civil war, will not be denied. The provinces are not contending for a redress of grievances, or to limit the authority of an acknowledged sovereign. They have rejected all authority but that which emanates from themselves — they have proclaimed their independence, and are in arms to support it. It is a great convulsion of a mighty empire. There is no tribunal on earth to decide between them. The contest must be settled by their own swords.
. What I have stated is conceived to be the law applicable to this subject; the law not only as written, but as founded on the great and general principles of justice, and consonant to the reason of mankind. The obligations it imposes were claimed by us during cur own Revolution, and almost uniformly recognized, not only by other nations, but by the mother country. Although sometimes violated to soothe the wounded pride of power, its force and efficacy have partially, at least, pervaded all similar contests. Whatever, therefore, the courts of the United States might be bound to do, in cases involving the rights of citizens of their own country, I apprehend that they cannot be required, by one of the parties in this war, to decide on the rights or powers of the other. Another view may be taken of this subject I think it follows from the law, and the reasoning upon it which have been brought to the consideration of this case, that whether the country to which the defendant claims to belong, has been recognized by the United States as independent, or not; or whether this court is bound to entertain and decide that question, or not; or whether the defendant be a citizen of this country, or not; yet that, in no event, can be held liable in the way now proposed, and that this proceeding must eventually fail.
If the law to which I have referred, must govern the ease, of which I think there is no doubt, the parties in this war must be considered as regularly at war under the government and protection of the common laws of war; to be treated as prisoners of war; and on the ocean not pirates. If not pirates, then, of course, acting under an authority that .justifies their acts; and thus, individuals not liable as such. Whether or not, then, the independence of these provinces was recognized by the government or this court, the principles of this law, which places the parties on an equal footing in the view of foreign powers, and considers them as regular combatants, would still operate, and exclude the idea of individual responsibility in damages. If this be so, and I am not aware of any authority or principle that can in any way invalidate the position, then whether the defendant be a citizen of the United States or not is immaterial. Quoad this transaction, he is a party to the war, standing, as regards the contending powers, on the footing of every other individual engaged in it; entitled to the same immunities, and not liable, in a civil suit, for damages that may arise to his adversary from acts committed in the prosecution of his employment. If it be objected that he is violating the laws of his own country in entering into this war, the answer is, that then, if there be such laws, he is liable, criminaliter, for their violation. But while a party in the war, acting under the authority of a power, which, for the purpose of this war, must be consid>-ered on an equality with its opponents, I think he cannot be prosecuted in a civil suit. Nothing is more common in Europe than for the subjects of one government to enter the military service of another — and they certainly incur none but the common hazards of war. It has never been pretended that they were subject to any personal liabilities not common to the original parties in the war; it is a matter of state, and the authority or government under which they act is alone responsible for their conduct. This remark is particularly applicable to this instance. If this be a public vessel, the property of the nation, then, most especially, the acts of her commander, pronounced valid by her tribunals, are the acts of the nation. A further objection to taking jurisdiction of these cases is, that the property has already been condemned by the sentence of a foreign tribunal, acting as a court of admiralty. It is no objection to the validity of the condemnation that the proceedings were had in a part of Venezuela, if, as I understand the fact to be, Venezuela is an ally in the war. A condemnation in the port of an ally is good. It would be an anomaly in the law to entertain in one country an action for *1184 personal damages against the captor, when | his prize had been legally condemned in the courts of another. The courts of the belligerents hare exclusive Jurisdiction of the prizes made by their armaments. They have jurisdiction, not only of the question of-prize, but of all its consequences. This, as a court of a neutral nation, cannot take cognizance of prizes made by either. If the jurisdiction of the -principal matter be exclusive, must it not be so in all matters necessarily j incidental? That this country, in a legal ¡ point of view, is to be considered neutral, is j very clear — not only under the law of na- j tions; but this government, although it has ¡ not recognized the independence of the prov- j inces in question, has officially assumed a j neutral attitude. As far as any decision has have treated of the rights and duties of neutrality. I shall cite a few authorities that are very explicit on this point: “The neutral ought to consider as lawful whatever either of the belligerents may do to the other; and should regard no act of warfare as unjust. Those who are not judges between the contending nations, and who are no parties in the war, have no right to take cognizance of their acts, or to decide on the justice of their cause: it is necessary, therefore, that every act done by either of them, during the war, should be regarded by all neutral powers as lawfully done.” 2 Az. 64. “As between the belligerents the neutral is bound to see right; whenever he sees possession of a right unaccompanied by possession, he cannot take notice.” Byn. 118. In this case the prize is in possession of the sovereign of the captor, and we. as neutral, are bound to consider that possession right *1190 ful. “When a nation remains neutral in war, she is bound to consider it equally just on both sides, as relates to its effects, and, consequently, to look upon every capture made by either party as a lawful acquisition. To allow one of the parties to enjoy in her dominion the right of claiming things taken by the other, would be declaring in favor of the former, and departing from the line of neutrality.” Chit. Law Nat 94. These, principles are laid down by Yattel, in different places. C. 2,3,4. I shall cite but one case, from Robinson, out of many that lie before me. In The Henriek and Maria, 4 C. Rob. Adm. 46, 47, Sir "William Scott says: “The neutral state has nothing to do with the rights of force possessed by the one belligerent against the other; it has nothing to do with the enforcement or consummation of such rights: it owes to buth parties the simple rights of hospitality — and even these are very limited in the practice of most civilized states.” “The neutral state can have no compulsory jurisdiction to exercise upon either party upon questions of war depending between them; nor can any such jurisdiction be conveyed to it by the authority of one of them.” These are the principles that prevail in the courts of Europe, and they have been recognized by our own. In the case of U. S. v. Palmer, 3 Wheat. [ 10 U. S. 610 ], the supreme court says: “If the government of the Union remains neutral, but recognizes the existence of a civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy.” These principles are derived from elementary writers of established reputation, and adopted as rules of decision, as well in foreign as domestic tribunals, instituted for the administration of public law. They are founded in good sense, and seem to have anticipated the absurd consequences that would necessarily flow from permitting belligerents to pursue each other into neutral countries, and there seek civil remedies for acts of Avar.
It seems unnecessary to pursue any branch of this inquiry further. Unless my view of the law, and the authorities I have submitted. are imperfect or fallacious, every position I have assumed has been supported by authorities alone binding and conclusive. Although the blind zeal and hardihood of the partisan may resist conviction, unprejudiced reason and common sense must be satisfied. There is now no ground left on which this proceeding can be sustained, and the defendant must be discharged on common bail.
Vatt. Law Nat. 244, 626; and to the same effect, Id. 630.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8633207. Public record. Not legal advice.