The United States, Appellants v. Baptiste Guillem, Claimant of One Box of Specie

• Decision Date: 01 December 1850
• Citation: 11 How. 47,13 L.Ed. 599,52 U.S. 47
• Parties: THE UNITED STATES, APPELLANTS, v. BAPTISTE GUILLEM, CLAIMANT OF ONE BOX OF SPECIE
• Court: U.S. Supreme Court

52 U.S. 47

11 How. 47

13 L.Ed. 599

THE UNITED STATES, APPELLANTS, v. BAPTISTE GUILLEM, CLAIMANT OF ONE BOX OF SPECIE.

December Term, 1850

THIS was an appeal from the decree of the Circuit Court of the United States for the District of Louisiana, sitting as a prize court.

Baptiste Guillem, a French citizen, was domiciled in Mexico, and had resided there about three years before the war with the United States was declared. His occupation was that of cook in a hotel, and he was engaged in it in Vera Cruz when hostilities with this country commenced. He was not naturalized and had taken no steps to become a citizen of Mexico. He continued in Vera Cruz, pursuing his ordinary business, until he learned that an attack was about to be made on the city, by sea and land, by the forces of the United States. He immediately prepared to leave the country and return to France, with his family, carrying with him all the money he had saved. He intended to embark in the British steamer, which was expected to arrive at Vera Cruz early in March, 1847, and obtained a passport from the French consul for that purpose. But the steamship was wrecked on the island of Cuba, and did not reach Vera Cruz, and Guillem was still in that city when General Scott landed and closely besieged it.

The port of Vera Cruz had been blockaded by the naval

forces of the United States from the commencement of the war. When the land forces arrived, and the siege was about to commence, General Scott and Commodore Perry (who commanded the blockading squadron) agreed to leave the blockade open to the consuls and other neutrals, to pass out to their respective ships of war, until the 22d of March, after which all communication with the besieged city was interdicted.

On the 13th of March, a French vessel called La Jeune Nelly came into the port, having run the blockade. She came in in the daytime, with her colors flying, nor is there any evidence in the record to show that it was known in Vera Cruz that she had come into port without permission from the blockading ships. She sailed again on the 19th of March, bound for Havre, in open day, and without manifesting any desire for concealment, but yet in breach of the blockade. But there was no evidence that Guillem knew she came in or was sailing out in breach of the blockade. Guillem took passage on board of this vessel with his family, and took with him in gold and silver two thousand eight hundred and sixty dollars, the whole amount of his three years' earnings in Mexico. The Jeune Nelly had no cargo and sailed in ballast. The money of Guillem was not shipped as cargo, nor invoiced, but was taken with him as a part of his personal effects. The money was chiefly in two bags, which were kept in his state-room, but a part of it was in a belt about his person.

The Jeune Nelly was captured by the blockading squadron a few hours after she sailed; and on the night following was wrecked and totally lost on one of the islands near the port; but the passengers, crew, and all the money and property on board, were saved. The passengers and crew were immediately released, and the money of Guillem and other property on board were taken possession of by the orders of Commodore Perry, and sent to New Orleans for adjudication. It was libelled in the District Court, and condemned, as lawfully seized. Guillem appealed from this decree to the Circuit Court, where it was reversed, and the money in question directed to be restored and refunded to him. The captors appealed from this last-mentioned decree to the Supreme Court.

It was argued by Mr. Crittenden (Attorney-General), for the appellants, and Mr. Soul e, for the claimant.

Mr. Crittenden, for the appellants.

As it has been set up and insisted on that Guillem, in embarking on board the Jeune Nelly, acted under permission of General Scott, it is necessary to ascertain what actually took

place at the time at Vera Cruz. The correspondence of General Scott, as to the operations of the army before Vera Cruz, will be found annexed to President Polk's message to Congress of December, 1847, in 1 Senate Documents, p. 216, et seq. From this correspondence it appears that the landing of the troops was effected on the 9th of March, and that on the 13th, in answer to a request of the French and Spanish consuls that in his operations he might respect the persons and property of French and Spanish subjects, he communicated to them, that in carrying the city, whether by bombardment or assault, it would be exceedingly difficult, particularly in the night-time, for his forces to see the consular flags, or to discriminate between the persons and property of friends and the persons and property of the enemy; he could, therefore, only promise to do all that circumstances might possibly permit to cause such discrimination to be observed. He also sent them safeguards under his signature. (p. 219.) By a letter of his to Commodore Perry, of the 22d, it appears that up to that time intercourse had been allowed between the neutral vessels of war and the city and castle of Vera Cruz, but was then put an end to. (p. 228.) And a communication to that effect was made by Commodore Perry to the commanders of the neutral ships of war. (p. 228.) It was not until the 24th that the British, French, Spanish, and Prussian consuls addressed General Scott, praying him to suspend hostilities, and to grant a truce, to enable their countrymen to leave the place with their women and children. (p. 229.) In a despatch to the Secretary of War, under date of the 25th, General Scott says:—'All the batteries, Nos. 1, 2, 3, 4, and 5, are in awful activity this morning. The effect is no doubt very great, and I think the city cannot hold out beyond to-day. To-morrow morning many of the new mortars will be in a position to add their fire, when, or after the delay of some twelve hours, if no proposition to surrender should be received, I shall organize parties for carrying the city by assault. So far, the defence has been spirited and obstinate.

'I inclose a copy of a memorial received last night, signed by the consuls of Great Britain, France, Spain, and Prussia, within Vera Cruz, asking me to grant a truce to enable the neutrals, together with Mexican women and children, to withdraw from the scene of havoc about them. I shall reply, the moment that an opportunity may be taken, to say,—1st. That a truce can only be granted on the application of Governor Morales, with a view to a surrender. 2d. That in sending safeguards to the different consuls, beginning as far back as the 13th instant, I distinctly admonished them, particularly the

French and Spanish consuls, and of course through the two the other consuls, of the dangers that have followed. 3d. That although at that date I had already refused to allow and person 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, 4th. I shall inclose to the memorialists a copy of my summons to the governor, to show that I had fully considered the hardships and distresses of the place, including those of women and children, before one gun had been fired in that direction. The intercourse between the neutral ships of war and the city was stopped at the last-mentioned date, with my concurrence, which I placed on the ground that that intercourse could not fail to give to the enemy moral aid and comfort.' (pp. 225, 226.)

General Scott accordingly, on the same day, addressed a communication to the consuls of the nature above indicated, in which he says that he deeply regrets the lateness of their application, for up to the 22d instant the communication between the neutrals in Vera Cruz and the neutral ships of war lying off Sacrificio was left open, mainly to allow those neutrals an opportunity to escape from the horrors of the impending siege, of which he gave to the consuls every admonition in his power. (pp. 230, 231.) This communication was made known to the Mexican general, and led to the capitulation.

From the preceding narrative it appears that the only permission to neutrals given by General Scott or Commodore Perry, was to pass from Vera Cruz to the ships of war of their respective nations.

No treaty stipulations between the United States and France, on the subject of blockade, were in existence at the date of these occurrences. There was a convention made between them on the subject, in 1800, but which was to last only eight years. After the expiration of that time, it does not seem to have been renewed.

The cause is now to be heard in the Supreme Court, on an appeal taken by the United States from so much of the decree of the Circuit Court as is in favor of Guillem for the amount claimed by him.

There can be no question that the Jeune Nelly was liable to capture for breach of the blockade, and such was the answer of our own government to that of France, when it made reclamation on behalf of the owner for the value of the vessel. She was guilty of a violation of blockade, both in going into Vera Cruz and coming out of it.

The guilt of a breach inward is not discharged until the end

of the return voyage; and if a vessel is taken in any part of that voyage, she is taken in delicto. The Frederick Molke, 1 Rob. 87; The Lisette, 6 Rob, 395; The Joseph, 8 Cranch, 451.

The act of egress is as culpable as the act of ingress. The case of the Frederick Molke, above cited, is identical with the present. The Vrouw Judith, 1 Rob. 151; The Neptunus, 1 Rob. 171; The Adelaide, 2 Rob. 111, note. The cases of the Juffrow Maria Schroeder, 3 Rob. 153, and the Welvaart Van Pillaw, 2 Rob. 130, decide that the offence of running a blockade outward is not purged until the end of the voyage, and that until then the vessel so guilty is subject to capture by any cruiser of the blockading power.

There are exceptions in the case of...