The United States v. Guillem. in his claim and examination as a witness, he admits that he knew of it; yet, with full knowledge of its existence, and as if in defiance and derision of it, he embarked his property on board. He was, therefore, by his own admission, guilty, and his property is good prize. "A breach of blockade subjects the property of all those concerned in it to confiscation. The penalty attaches to all those who are privy to the fraud, by themselves or their agents. 2 Wildman, 203, referring to the case of the Wasser Hundt, Dodson, 27. But it is said that this money is not good prize, because it was not shipped as cargo. In maritime warfare, private property taken at sea, or afloat in port, is indiscriminately liable to capture and confiscation. Wheaton's Elements, 405. Besides, money has been recognized by Congress as good prize of war. By the eighth article of the rules and regulations of the navy, (2 Stat. at Large, 46), it is declared: "That no person shall take out of a prize, or vessel seized as prize, any money, plate, goods, or any part of her rigging, unless it be for the better preservation thereof, or absolutely necessary for the use of any of the vessels of the United States, before the same shall be adjudged lawful prize by a competent court; but the whole, without fraud, concealment, or embezzlement, shall be brought in, and judgment passed thereon, upon pain that every person offending herein shall forfeit his share of the capture, and suffer such further punishment as a court-martial, or the court of admiralty in which the prize is adjudged, shall impose." And by the ninth article it is declared: "That no person in the navy shall strip off their clothes, or pillage, or in any manner maltreat persons taken on board a prize, on pain of such punishment as a court-martial shall adjudge." It has been before remarked, that Lieutenant McLaughlin must have been misinformed as to the money being taken from the persons of the people found on board the Jeune Neily. Guillem himself admits that, with the exception of the ninetyseven and a half doubloons, it was taken by the boats of the Mississippi from the wreck to that vessel, in buckets, the bags containing it having burst. As to the imputation cast upon an officer who is not named, as to the ninety-seven ard a half doubloons, there is not a particle of evidence in the case to sustain it. 2. That no permission had been given either by General Scott or Commodore Perry, at the time Guillem left Vera Cruz, allowing neutrals to leave that port with their property. By the letters of General Scott and Commodore Perry before referred to, all the permission allowed to neutrals was to. The United States v. Guillem. have intercourse with the vessels of war of their respective countries, and even that permission was withdrawn on the 22d of March. General Scott, in his letter of that date to Commodore Perry, says: "I have this moment received your note of this date, inquiring whether, in my opinion, it may not be a necessary measure of expediency to stop, for the present, the intercourse heretofore allowed between the neutral vessels of war, off this coast, and the city and castle of Vera Cruz." General Scott approved of the course suggested. Commodore Perry, in his letters to the commanders of the foreign vessels of war, on the same day, says: "The city and castle of Vera Cruz being now closely besieged and blockaded by the military and naval forces of the United States, it has become necessary to prevent all communication from outside, unless under a flag of truce. I am, therefore, constrained to inform you, that all intercourse between the vessels and boats under your command, and that part of the Mexican coast encompassed by the United States forces, must for the present cease." General Scott, in his letter to Secretary Marcy under date of the 25th of March, says: "That, although on the 13th of March I had already refused to allow any persons whatever to pass the line of investment either way, yet the blockade had been left open to the consuls and other neutrals, to pass out to their respective ships of war, up to the 22d instant," and that this intercourse was then stopped. General Scott's letter to the consuls is to the same effect, speaking only of communication between the neutrals in the city and the ships of war of their respective nations. There is not one word in these letters which affords a pretence to say that neutrals were allowed to ship their property. This case has been presented as one of hardship. On this subject the court said, in the case of the Joseph, 8 Cranch, 454: "Although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision." Mr. Soulé, for the claimant, made the following points: 1st. Guillem was a native of France not naturalized, had resided in Mexico only three years, was not a merchant or trader, but only a cook. The money carried by him was not shipped as cargo, did not appear on any manifest, and was his necessary means of support; and was no more to be interfered with than if it had been a bill of exchange or bank-notes. The United States v. Guillem. 2d. As soon as neutrals who reside in an enemy's country turn their back on the enemy's country, they resume their neutral character. Wheaton on Int. Law, 371, 374, 375, 378; 1 Kent's Com. 75, 77, 78. 3d. Any one has a right to embark, even in a vessel guilty of the violation of the blockade, as a passenger, and himself and his personal effects are not to be interfered with. The guilt of the vessel does not attach to the passenger and his effects. By personal effects are meant his baggage, wearing apparel, and other property attached to his person, in contradistinction to goods and merchandise. 4th. The permission of General Scott to leave Vera Cruz, and repair on board of national vessels, justifies Guillem in going on board of the Jeune Nelly; and his having taken his passport to go by the British steamer in February, 1847, shows that it was not his intention to violate the blockade; and his embarking in the Jeune Nelly must be considered as an act of necessity and distress, there being no other means of leaving Vera Cruz. First Point. The nationality of Guillem is proved by his own oath, by the testimony of Cassalet, and the passport of the French consul; and the same evidence proves that he was not naturalized, and that his residence had been only three years. Sir William Scott lays it down that the shortest period of time to establish a residence is four years; and all the authorities seem to consider that the rule of residence and identification with the enemy attaches more particularly to the commercial character, and the property captured is always spoken of as cargo or merchandise. In the present case Guillem was a cook; what he had with him was money, which is a personal effect. In countries where no banks exist, a man travels with gold and silver. The most extraordinary part of this transaction was, that Guillem had ninety-seven and a half doubloons in his pocket; and when invited to change his clothes, which were wet, and he was emptying his pockets for that purpose, an American officer who had proffered him the change of clothes laid his hand upon the money. A cook, no more than any other person, can travel with a wife and children without money. The present case bears not the slightest analogy to the case of Henry Rogers et al. and United States v. The American Schooner Amado. In that case, Rogers had resided thirteen years in Mexico, and still remained there. The cargo was taken in a vessel sailing under Mexican colors, which was owned by Rogers, who was a merchant. His residence, the nature of the cargo, and the circumstances under which it was captured, all stamped the The United States v. Guillem. vessel and cargo as Mexican. It has been said by an able writer, that truth depends upon distinction, and that law is the science of distinction. It is impossible for a mind accustomed to discrimination not to perceive the most manifest distinction between the two cases. Second Point. The second point is fully sustained by the authorities cited; and we have only to inquire whether the facts of the case bring Guillem within the exception laid down in the law. Sir William Scott, in the case of the Harmony (2 Rob. Adm. 324), says: "Time is the grand ingredient in constituting domicile." In most cases it is unavoidably conclusive; and in that case that eminent person decided that four years were sufficient, to fix the domicile of the party. In the case of the Indian Chief, determined in 1800, Sir William Scott said (Wheaton on Int. Law, 371): “ Taking it to be clear that the national character of Mr. Johnson, as a British merchant, was founded in residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held that, from the moment he turned his back on the country where he had resided, on his way to his own country, he was in the act of resuming his original character, and must be considered as an American. The character that is gained by residence ceases by non-residence. It is an adventitious character, and no longer adheres to him from the moment that he puts himself in motion, bonâ fide, to quit the country, sine animo revertendi." In the case of the Ocean, determined in 1804, Sir William Scott says (Wheaton on Int. Law, 375): "It would, I think, be going further than the law requires, to conclude this person by his former occupation, and by his constrained residence in France, so as not to admit him to have taken himself out of the effect of supervening hostilities, by the means which he had used for his removal. On sufficient proof being made of the property, I shall be disposed to hold him entitled to restitution." Again, in the case of the Drie Gebroeders (Wheaton on Int. Law, 375), Sir William Scott observes, that "pretences of withdrawing funds are, at all times, to be watched with considerable jealousy; but when the transaction appears to have been conducted bona fide with that view, and to be directed only to the removal of property which the accidents of war may have lodged in the belligerent country, cases of this kind are entitled to be treated with some indulgence." Wheaton, Int. Law, 378, says: "But this national character which a man acquires by residence may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he resided, on his way to another. The reasonableness of this rule can hardly be disputed. The United States v. Guillem. Having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it until he has thrown it off, either by an actual return to his native country, or to that where he was naturalized, or by commencing his removal, bona fide, and without an intention of returning. If any thing short of actual removal be admitted to work a change in the national character acquired by residence, it seems perfectly reasonable that the evidence of a boná fide intention should be such as to leave no doubt of its sincerity." The same doctrine is recognized by Kent, as being the rule of decision in the courts of the United States. See Kent's Com. 75, 77, 78, and the authorities there cited. Guillem comes completely within the rule. The war between Mexico and the United States broke out very unexpectedly in May or June, 1846, without formal declaration, and more resembled the incursions of our aborigines than the usual mode of making war adopted in a civilized country. Commissioners to make peace accompanied our invading army, and no one could realize that there was to be any permanent war between the United States and Mexico, and proposals of peace were expected to accompany every despatch. It was fully expected that, when the Northern army should reach Monterey, the war would certainly come to a close. These circumstances fully explain and account for the stay of Guillem from June 1846, to February, 1847. Some time might be necessary to collect what was due to him; his term of contract might not have expired, and the blockade itself interposed a difficulty against leaving Vera Cruz, for it was not possible to leave Mexico and go to a neutral country otherwise than by sea. But as soon as it was found that the war had assumed a permanent character, that an army had been sent to invade Mexico, Guillem resolved to leave with his wife and children, and the result of their industry and economy, and accordingly prepared to embark in February in the British steamer. The wreck of that vessel on the island of Cuba defeated his intention. His own statement and that of Cassalet of the manner in which La Jeune Nelly entered Vera Cruz, in open day in fine weather, on the 13th of March, might well induce him to believe that she had entered by permission. This was the very day on which, according to General Scott's despatch, he had given permission to neutrals to withdraw. This communication had doubtless been made known to the French naval authorities. It does not appear that La Jeune Nelly took in cargo; and for aught we know she might have considered herself within the permission granted by General Scott, with the consent of Commodore Perry, to leave the blockade open to the consuls and other neutrals, to pass out to their respective |