author: Mr. Justice McLEAN

text:
    Samuel W. Oakey, Plaintiff in error, v. John H. Bennett, Administrator of William Hall, and Join H. Illies.
    A decree in bankruptcy passed, in 1843, by the District Court of the United States for the Eastern District of Louisiana, did'not pass to the assignee the title to a house and lot in the city of Galveston and State of Texas, which house and lot were the property of the bankrupt.
    Texas was then a foreign state, and whatever difference of opinion there may be with respect to the extra-territorial operation of a bankrupt law upon personal property, there is none as to its operation upon real estate. This court concurs with Sir William Grant, in 14 Yesey, 537, that the validity of every disposition of real estate must depend upon the law of the country in which' that estate is situated.
    Besides, the deed made by the assignee in bankruptcy to one of the parties in the present cause was not made conformably with the laws of Texas ; and letters of. administration upon the estate of the bankrupt had been taken out in Texas before the fact of the bankruptcy was known there; and the creditors of the estate in Texas had a better lien upon the property than the assignee in Louisiana.
    This cause was brought up, • by writ of error, from the District Court of the United States for the District of Texas.
    It was an ejectment, conducted by way of petition and answer, for a house and lot in the county and city of Galveston, in the State of Texas,' being lot No. 13 in block No. 681.
    The suit was brought by Oakey against Bennett; the administrator of William Hall, and John H. lilies, tenant in possession. In the bill of exceptions the suit is denominated an action of “ trespass to try titles ■”; but as the petition prayed for the restoration of the property, as well as damages, it seems more proper to call it an ejectment.
    Upon the trial, the plaintiff sought to derive his title from Hall, under whom the defendants claimed also.
    In 1842, Hall was in possession of the lot by purchase from John S. Snydor, but no deed was at that time made.
    On the 9th of February, 1843, Hall (calling himself William Hall, late of Galveston, Texas) filed a petition .in the. District Court of the United, States for the Eastern District of Louisiana, praying for the benefit of the bankrupt act of the United. States, passed August 19th, 1841. The legal notice was given,. and on the 10th of March, 1843, he was declared a bankrupt, and F. B. Conrad, of New Orleans, appointed assignee.
    On the 3d of April, 1843, Snydor executed a deed to Hall of the house' and lot in Galveston.,
    In March, 1844, Hall died, and Bennett, the defendant, was appointed administrator by the Probate Court of Galveston County in Texas.
    In May, 1845, Conrad, the assignee of Hall, petitioned the District Court for an order to sell the effects of the bankrupt, and, the usual preliminary proceedings being had, a public sale took place for cash. An article in the inventory was “ all the right, title, and interest of the bankrupt in and to a house and lot in Galveston, Texas.” Samuel W. Oakey became the purchaser of this for the price of four hundred dollars, and on the 18th of June, 1845, Conrad executed to Oakey a deed which conainedthe following recital, viz.: —
    “ And the said William Hall, bankrupt, at the time he filed-his petition in said court to be declared a bankrupt, and at the time, said 10th March, 1843, when he was declared and decreed a bankrupt, was possessed of a claim.to a house and lots in the city of Galveston’, of the exact nature of which the said Francis B. Conrad, assignee as aforesaid, could not obtain any exact knowledge or description; which claim, whether it was one or in plurality,.on a house or houses, building or buildings, more or less in number, of lots, parcel, or parcels of land, be they what they were, situated in the city of Galveston, republic of Texas, by said act of Congress, and the decrees of said court on said bankrupt’s petition, with all his property and rights of property, of every name and nature, and whether real, personal, or mixed, became, by the mere operation of said act thus made and'provided, ipso facto from the time of such decreé aforesaid, and was deemed.to be, divested out of such bankrupt, without any other act, assignment, or conveyance whatsoever, and the same became vested by force of the samé in Francis B. Conrad, assignee as aforesaid. All of which rights of property or real estate, whatever might be the nature of his. title thereto, or interest therein, which was situated in the city of Galveston, republic of Texas, it was my intention to sell, as assigneé as aforesaid, at public auction; ,and the said court, on . considering my petition to that effect; made judgm'ent thereon, and issued an order of sale under date of 23d May,. 1845 ; and by virtue of said order of sale by said court, and after due and lawful advertisement made by William F. Wagner, United States marshal for the district, and at the time and place designated in said advertisement, at the hour of 12, noon, on this 18th day of June, A. D. 1845, the. said marshatdid,.under my direction, then and there publicly cry, adjudicate, and sell to Samuel W. O.akey, the last and highest bidder, ".as follows, viz.: ‘ all the right,- title, and interest of the said bankrupt ( William Hall) in and to a house and lots in the-city of Gal- . veston, Texas, being lot 13, block 681, or lot 9, block 622, or ■ both,’ and sold without any guaranty whatever. The said ■ Samuel W. Oakey.became the purchaser for the price and sum of four hundred* dollars, the receipt of which is hereby, as it already has been, acknowledged; In consideration thereof, I, the said Francis B. Conrad, assignee as aforesaid, have bargained,. sold, conveyed, assigned, transferred, set over,” &c., &c.
    This deed was afterwards recorded in Texas. '
    On the 12th of December, 1846, Bennett settled an account with the Probate Court, showing that he was-in advance for the estate $ 1,811.03. , -
    "‘On the 25th of January, 1847, Oakey filed a petition in the District Court of the United States fe*the District of Texas, which, after having been the subject of sundry pleas and demurrers and motions, was finally withdrawn, and an amended peti-' tion filed on the 31st of May, 1848,. This was the subject of-some motions too, but at length issue was joined, on the 5th. of-June, .1848, and the cause "came on for trial. Being left to a jury, they found a verdict for the defendants.
    The bill of exceptions sets forth all the deeds offered in evidence by the plaintiff, foi the purpose of showing a title in Hall, and also the record of the proceedings in bankruptcy, to show that this title passed to-himself. This part of the bill is-not necessary to an understanding of the prayers addressed, to the court, and it is therefore omitted. Nor is it necessary to insert the evidence, as offered by the defendant, to prove interlineations and falsifications of the record. The following are the prayers addressed to the court on the part of the plaintiff.

      '“ The plaintiff requests the court to charge the jury,.—
    “ 1st. That if the jury find, from the evidence, that at the date of Hall’s bankruptcy he was seized and possessed of the premises in question, and that, being so possessed, he, Hall, voluntarily applied to the honorable United States District Court of Louisiana to be declared a bankrupt, and was, in accordance with the act of Congress of the 19th of August, 1841, adjudged and decreed by the court to be a bankrupt, such voluntary petition and decree operated to divest and pass Hall’s estate in the premises, and vested the property as absolutely in Hall’s assignee as he,. Hall, might have done by his own voluntary conveyance.
    “ (Which instruction the court gave.)
    “ 2d. That if the said assignee, Conrad, so appointed by said court, in execution of the order of said court sold said property to plaintiff for a valuable consideration, such bankruptcy, decree, order, sale, and purchase passed the right of property as effectually to plaintiff as Hall might have done by his voluntary' deed of conveyance.
    “ (Which second instruction the court refused to give.)
    “3d. That if Hall did petition, and at the time of his petition in bankruptcy surrendered the premises in question as part of his assets, although he only had possession thereof under a purchase by inchoate title, which was afterwards perfected by full grant, such subsequently acquired title enured to the benefit of plaintiff.
    “ (Which third instruction the court refused.) ■
    “ 4th. That if the jury find from the evidence that Hall applied to the proper court, by his own .voluntary petition, for the ■ benefit of the act of Congress of the United States of the 19th of August, 1841, and obtained a decree of bankruptcy on said voluntary application, then all the property of said Hall, of every kind and nature whatever, real, personal, Or mixed, was thereby divested out of said Hall, and vested as fully and effectually in his proper assignee, duly appointed, as the same was previously vésted in Hall.
    “ (Which instruction the court gave.)
    “ 5th. That the act of the United States Congress of the 19th of August, 1841, was recognized and adopted by the laws of Texas as part of the law of the republic of Texas.
    “ (And this fifth instruction the cqurt refused to give, saying, that 4he law of the republic of Texas referred to recognized the bankrupt’s discharge, but did not affect his real estate, and here directs the clerk to insert the law referred to, which is an act of the republic of Texas, approved February, 1841, laws of that year, p. 143, entitled “An Act for the relief of those who have taken the benefit of the insolvent laws of other countries.”
    •“ 6th. That if Hall made a voluntary assignment in Louisiana of the premises in question, in order to obtain the benefit of the said act of the 19th of August, 1841, such assignment was, and is, in point of law, equivalent to a voluntary conveyance made by Hall of said premises to the. plaintiff.

      “ (Which instruction the court refused.)
    “ 7th. That the transcript of the record, marked A,, from the United States District Court of Louisiana, is competent and conclusive evidence of what it purports to contain, arid what is recited therein; and that under law said transcript of record is entitled to full faith and credit.
    “ 8th. That Bennett is in no better condition in relation to the property in controversy than Hall himself would have been had he been living and the defendant in this suit.
    • “ (This charge, the eighth, the court gave.)

      “ As to the seventh instruction asked, the court charged the jury that full faith and credit should be given to the transcript of the record of the court in Louisiana; that is, that it is entitled to the same force and efficacy here that it would be entitled to in the court where the transaction was had, and of which it purports to.be the record; that in this dOurt, as in' that, parol testimony is competent to show that that which claims to be a record is void for forgery.
    “ 9th. That if the jury believe from the evidence, that after Hall’s act of bankruptcy he became a citizen of Texas, Oakey being and remaining a citizen of the United States until the annexation of Texas to the United States,, then, by the act of annexation, the property in question became as absolutely Oakey’s as though Texas hád been one of the United States at the date of the bankruptcy, the act of. annexation having, by relation, removed every disability growing out of the laws of the place where the land is situated, and of Oakey’s personal right to hold.
    “ (Ninth refused by the coiirt.)
    “ 10th. That if the jury believe from the pleadings and evidence that Oakey has derived his title from or through Hall’s . voluntary abi, either of record or by conveyance, and that the defendant. Bennett only clairris as Hall’s administrator, and lilies as his tenanb then Bennett is orily the personal-representative of Hall, and, as such, a proxy, and as fully, and effectually estopped from denying Oakey’s title as Hall himself would have been, and that/ Hall would have been absolutely estopped.
    “ (Refused by the' court.).

      “ 11th. That, if the jury find for the plaintiff, they may find the rents as damages.
    “ (Which the court gave.)
    “ 12-th. That the act for the relief of persons who have taken the benefit of foreign insolvent laws of Texas, passed February, 1841, (before referred to,) recognizes a surrender under a foreign bankrupt law, if honestly made, as a valid and legal mode of transferring the bankrupt’s real estate lying in Texas.
    “ (Which the. court refused.)
    “ 12th.- That Oakey is vested with all the rights that were vested in Conrad by virtue of his due appointment as assignee of Hall. '
    “ (And this twelfth instruction the court refused to give.)
    “ And to the failure and refusal of the court to give the instructions hereinbefore asked, and by the court refused as noted, and to the giving, the said several instructions, not asked, which by the court were given as hereinbefore set forth, the said plaintiff at the time excepted.
    “ And now, for the purpose of saving the said several exceptions taken, as well as to set forth the whole facts of the case, the court seals this bill of exceptions, and orders the same to be filed and made a part of the record, which is done 5th June, 1848. John C. Watrous, [l. s*]

      U. S. Judge”

    The case came up to this court upon all these points.
    It was argued by Mr. Hall, for the plaintiff in error, and Mr. Rogers and Mr. Howard, for the defendants in error, with whom were Mr: Ovid F. Johnson and Mr. Harris.

    The points made in the arguments of counsel which are not touched upon in the opinion of the court are omitted in this ^report.

      Mr: Hall, for plaintiff in error.
    Third Point. There was error in the court below in refusing ta charge that the plaintiff became vested- with the rights of property, which had been vested in Conrad by Hall’s bankruptcy. (Charge asked for in Nos. 2 and 12.)-
    1. The. court had charged, that the decree which discharged Hall divested him of his property, and vested it in Conrad. And therein it was correct. ¡General Bankrupt Law, § 3.
    2. That the vested property in Conrad, when deeded to the plaintiff, passed Hall’s rights, is a sequitur of the charge given. The assignee had power to deed. General Bankrupt Law, §.15.
    3. The surrender and conveyance in Louisiana passed the property in Texas. This while she was yet a republic. Proviso in Act, 5 Texas Laws, p. 44; Dallam’s Digest, pp. 94, 95; Carr’s Guardian v. Wellborn, Dallam’s Digest, p. 624, and 1 Texas Reports, 463.

    4. This was not a compulsory, but a voluntary transfer. A bankrupt’s property out of the jurisdiction of the tribunal passing it may not be transferred as against creditors of- the locus rei sita, when compulsory or scheduled in general terms; - but if he voluntarily surrenders it,''it passes. Selkrig v. Davies, 2 Rose, B. C. 291; Story, Conflict of Laws, § 38; Bank of Augusta v. Earle, 13 Pet. 519; 16 Pet. 57.
    ,. Fourth Point. Had Hall been defendant in this suit, he would have been estopped from resisting plaintiff; and there was error in the refusing so to charge by the court. He had voluntarily surrendered property. It had vested in an assignee. That assignee had deeded it to plaintiff. Hall and the plaintiff were privies in the successive relationship of the latter to the former as to the same rights of property. 1 Greenleafon Evidence, § 189.
    The effect of Hall’s- surrender was to Vest' his property in his assignee, and in whomever the assignee might sell to. He is presumed to have known this, for it was the effect of his own deed. Even if in law his surrender in Louisiana did not pass Texas property, he could not set it up. Nullus commodum capere potest de injuria suá propria. And surely either Hall or his privy in representation cannot now deny the title of plain-. tiff, who, a bona, fide purchaser, by reason of their own act, will else be prejudiced by their taking advantage of Hall’s wrong (assuming that' any existed).
    Fifth Point. If Hall was thus estopped, Bennett, the defendant, was also estopped. (Error in charging to contrary.) That he was in the same condition in which Hall, if defendant, would have been, was charged by the court. And this was so. ‘Bennett was Hall’s administrator, and his privy in representation. 1 Greenleaf on Evidence, § 189. The admissions of an. intestate bind his administrator. Smith v. Smith, 3 Bing. N. C. 29; Ivat v. Finch, 1 Taunt. 141.
    The record of bankruptcy was in evidence, which- would have bound Hall, and also Bennett, his administrator. 1 Green-leaf On Evidence, §§ 522,523. There was no evidence to show that Bennett was holding for creditors. He was Hall’s :admin-istrator in a personal capacity only. -

      Sixth Point. The title to the property in controversy (lot 13, block No. 681, city of Galveston) was in Hall when he was decreed bankrupt, —the time-at which his property vested in the assignee. General Bankrupt Law, § 3.
    Hall bought from Snydor, in the autumn of 1842, by parol agreement; went into occupation, and made improvements. Snydor testifies, that he considered Hall owner all this time; “ he would have made the.deed at any time after the bargain and sale.” The deed was made April 3d, 1843; discharge by decree, June 16th, 1843.
    ■ “ In the case of a parol contract for the sale of lands, if after-wards carried into effect by a conveyance, the deed will; relate back to the date of the contract,” &c. 4-Kent’s Com. 451, note, last edition; Clary v. Marshall, 5 B. Monroe, 266.
    By the Texas statute of "frauds, estate, for less than five years could be made by parol. Dallam’s Digest, 61.
    There was part-performance of the parol sale; —
    1. By occupation. Wilber v. Paine, 1 Ham. Ohio, 251; Gregory v. Mitchell, 1 Hoff. 470.
    2. By improvements. Parkhurst v. Van Cortlandt, 1 Johns. •Ch. 274.
    ' Part-performance of parol contract for lands saves the statute of' frauds. 4 Kent’s Com. 451.
    There was error in the face of these matters of fact and law, in refusing to charge !as asked for. . (Charge 3.)
    Seventh Point. If Hall had possessed any creditors' in ' Texas at the time he surrendered his Texas property, (which does not appear so to be,) and who were thereby prejudiced, Hall could have pleaded his discharge in Louisiana against •their demands.
    . This by statute of Texas. It would be a legal mocitery, in construing this statute, to say that, while it recognized the validity of. a' foreign discharge, it did not recognize the effect of that discharge. There was error in charging the latter. (Charge 12.)
    Eighth Point. As against, every person but the Stats', the assignee, although not a citizen of Texas, as well as plaintiff, could succeed to Hall’s rights, and hold land.
    Aliens may take by purchase, and hold land, until office found. Fairfax v. Hunter, 7 Cranch, 603.
    This is so well established, said a distinguished justice of this court, thát the reason is only a search for the antiquary.
    And until land is seized by the State, aliens may convey or maintain action. 13 Wend. 546.
    Naturalization relates back, and confirms- title' to land purchased during alienage. Jackson v. Beach, 1 Johns. Cas. 399.

      Texas, as a republic, having slept on her rights to escheat the land vested by Hall in his assignee, (conceding, argumenti gratia, such right to have existed,) when admitted as a State, the disability of the assignee was removed; and the annexation operated to confirm his title in the same manner as naturalization. There was error in refusing so to charge, as at charge 9.
    The points made by the counsel for the defendant were the following: —
    1. This is an action of trespass to try title .under the statutory regulation of Texas, which declares that the trial shall be regulated by the principles of ejectment. Hartley’s Digest of Texas Laws, p. 969. It requires a legal title to sustain the action in this court.

      2. The transfer of land by a foreign bankruptcy is not such a title. Whatever may be doubtful as to the effect of a foreign assignment in bankruptcy upon personal estate, it is universally admitted that it cannot convey real property, which is regulated by the law of the situs. Story, Conflict of Laws, §§ 422 a, 428, 591.
    3. The record shows that Oakey was a citizen of Louisiana at the date of the sale to him. He was therefore an alien, and the tenth section of the general provisions of the constitution of the republic forbids aliens to hold land except by titles emanating from the government. Hartley’s Dig. 38; Story, Confl; § 429. At common law a party may take by purchase, and hold until office found; but he cannot take by operation of law, or by descent, or by bankruptcy. As he cannot hold, the law will not cast the title upon him. •
    4. The act of the Texas Congress does not recognize conveyances by foreign bankrupt assignments. It is confined to the effect of the discharge. The discharge is one thing, the assignment another, and they are quite different in their effects. The Texas bankrupt law required a regular deed of assignment from, the debtor. Hartley’s Dig. 114,115.
    5. The bankrupt law of the United States of 1841 does not provide for an assignment. . It requires the applicant to present a petition, with a list of his creditors and their places of residence, together with a schedule of his property, &c., and when declared a bankrupt, the third section provides that title to all his property, real and personal, shall -be vested in assignees “ by operation of law,” without any other assignment or transfer. Such an act can have no extra-territorial force on real property, for the obvious reason, that there would be. a defect of jurisdiction. The authority of the court could not extend to lands beyond the United States.

      The title to lands must be passed according to the law of the site. The pretended transfer of the assignee,' Conrad, could not pass title to lands in Texas, because it was not a deed at common law, nor according to the provisions of the laws of Texas. It had neither a seal, nor the scroll recognized by the statutes of Texas. It had no subscribing witness, nor was it acknowledged before any judge or other officer,-as' required .by the statutes of Texas. If the judgment of the court of bankruptcy- could have had any extra-territorial force Or authority to transfer real estate, the instrument of the commissioner Conrad cannot operate as a bleed to pass the fee. Hartley’s Dig. 128. Under any. aspect of the case, it could not support ejectment. More especially when it was shown that there were Texas creditors at the time Hall was- declared a bankrupt.
    6. The registered copy of the conveyances was not competent evidence, because not legally admitted to record. The originals were not. acknowledged and proved, as required by the Texas registry act, and were not, therefore, evidence under; her judiciary act. Hartley, 839; lb. 255.
    7. The description in the transfer of the commissioner, of a “ house and lot in Galveston,” was not sufficient without the interlineation of the number and block, which was proved by the marshal to have been made after the sale, and in the handwriting of the vendee. This of itself was sufficient to avoid the deed unless explained, and the onus of the explanation was oh the vendee.
    The following authorities were cited in addition, to show that title to land in Texas did not pass to the assignee of- a bankrupt under the laws of a foreign country: — Kirby, 313 ; 1 Har. . & McHenry, 236; 2 lb. 463; 2 Hayw. 24;' 4 McCord, 519; 1 Rep. Con. Ct. 283; 6 Binney, 353; 6 Pick. 286 ; Bee, 244; 5 Cranch, 302; 12 Wheaton, 361; 3 Wendell, 538 ; 2 ■ Kent’s Com., 1st edition, 330 ; 20 Johnson, 254 ; 4 Wheaton, 213; 2 Story, 360 and 630; 1 Metcalf and Perkins’s Dig. 400,-pi. 123, 124; 1 U. States Dig. (Supplement), 270, pi. 93, 94.

       Texas had recognized and applied the force of the common law of England, as her rule of jurisprudence, whenever not in conflict with her own laws. By the common law of England the title of foreign assignees was recognized. Sill v. Worswick, 1 Hen. Bl. 691.

   Mr. Justice McLEAN

delivered the opinion of the court.

A writ of error to the District Court of the United States for Texas brings this case before us.

Under the forms of procedure in Texas,- an action was commenced by petition, on the 25th of January, 1847, by the plaintiff, for the recovery of a house and lot in the city of Galveston, Texas, described in the plan of said city, number thirteen, in block six hundred and eighty-one. The plaintiff gave in evidence a deed from the proprietors of the city for the lot in controversy to James S. Holman, dated 1st June, 1840. The same lot, on the 3d of April, 1843, was conveyed to William Hall, by Snydor, the attorney of Holman. The purchase was made by Hall, some time before the deed was executed, and he entered into the possession of the lot, made improvements thereon, and continued to occupy it until his death. The defendant lilies has been in possession of the lot since the death of Hall.

On the 9th of February, 1843, William Hall (“ late of Galveston, Texas ”) filed his petition for the benefit of the bankrupt law, in the District Court of the United States for the Eastern District of Louisiana, and on the 10th of March following he was declared a bankrupt. A schedule of his assets was filed, among which was the lot now in controversy. Francis B. Conrad, of the city of New Orleans, was appointed. his assignee, who gave bond as required. The assignee, on application to the District Court, obtained an order for the sale of the house and lot, and they were sold, in pursuance of such order, to Oakey, the plaintiff, on the 18th of June, 1845, to whom a deed was executed on the same day by the assignee.

Before the commencement of the suit, in 1844, Hall died, and Bennett, the defendant, was appointed his administrator . in Texas. Process was issued against him, and also against ■ lilies, the person in possession, Who refused to recognize the right of the plaintiff.

In his answer Bennett avers, that the petition and the matters and things therein set forth are not sufficient in law, &c., and he prays judgment, &c. And for further answer he states, that Hall departed -this life before the annexation of. Texas to the- United States, and that administration of his estate was duly granted to the defendant. That he proceeded in the discharge of his duties, and he exhibits accounts against the estate of Hall, by himself and other citizens of Texas, which were allowed by the Probate Court, amounting to-the sum of $ 1,811, before any conveyance of the'house and lobby the assignee of Hall was set. up ov registered in Galveston County, as the law required. And he'avers that there is no property to satisfy the debts of the estate, except the house and lot in controversy.

Many points were raised, on which bills of exception were taken to the rulings of the court, in the progress of the trial, but the validity of the deed of the assignee to the plaintiff is the great question in the case.

There can be no doubt, the proceedings in bankruptcy being regular and bona fide, that the property of the bankrupt, within the appropriate jurisdiction, became, vested by the act of Congress in his assignee. At the time of the decree of bankruptcy, and until a short time before the sale and conveyance of the property in question to the plaintiff, Texas was an independent republic, and in every respect a foreign state to the government of the United States.

In this country there is some diversity of opinion among the State courts, whether a bankrupt law, in regard to personal property, has an extra-territorial operation. That it has such operation is a doctrine which seems to be well settled in England by numerous decisions, and particularly in the Royal Bank of Scotland v. Cuthbert, (1 Rose’s Bankrupt Cases, Appendix, 462, and 2 Rose’s Cases, 291)) in which Lord Eldon said: One thing is quite clear, that there is not in any book any dictum or authority that would authorize me to deny, at least in this place, that an English commission passes, as with respect to the bankrupt and his creditors in England, the personal property he has in Scotland or in any foreign country.”

It is held in England, that an assignment of personal property under the bankrupt law of a foreign country passes all such property and debts owing in England; that an attachment of such property by an English creditor, with or without notice, after such an assignment, is invalid. And the doctrine is there established, that an assignment Under the English bankrupt law transfers the personal effects of the bankrupt in foreign countries. But an attachment by a foreign creditor, not subject to British laws, under the local laws of a foreign country, is held valid. The principle on which this doctrine rests is, that the personal estate is held as. situate in that country where the bankrupt has his domicile.

A statutable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect Which may be given to it beyond this does not depend upon international law, but ■ the principle of comity; and national comity does not require any government to give effect to such assignment, when it shall impair the remedies or lessen the securities of its. own citizens. And this is the prevailing doctrine in’ this country. A proceeding in rem against the property of a foreign bankrupt, under our local laws, may be maintained by creditors,, notwithstanding the foreign assignment.

But .it is an admitted principle in all countries whére the common law prevails, whatever views may be entertained in regard to personal property, that- real estate can be tionveyed only under the territorial Jaw. The rule is laid down clearly and concisely by Sir William Grant, in Curtis v. Hutton,: 14, Yes. 537,541, where he says, The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated.” The samé rule prevails generally in the civil law. Boullenois, John Voet, Christinseus, and others, (cited in Story, Conflict of Laws, 359, 360,) say, “ As a general rule, movable property is governed by the law of the domicile, and real property by the law of the situs rei.” .

This doctrine has been uniformly recognized by the cqurts of the United States, and by the courts of the respective States. The form of conveyance adopted by each State for the transfer of real property must be observed. This is a regulation which belongs to the local sovereignty.

It is 'argued that the entire interest in the property in dispute passed, under the bankruptcy, to the assignee- of Hall; and that, it being sold under the order of the District Court to the plaintiff, the title is vested in him, the same as if the conveyance had been executed by Hall.

. On the appointment and qualification of the assignee, the property of the bankrupt, under the act of Congress, became vested in him, for the benefit of the creditors of the bankrupt. But there was' no assignment in fact made by Hall. He made application for relief under the law, and may be said to be a voluntary bankrupt; but there was no other assignment of his effects than that which resulted fiom the operation of the law. As, under the Constitution, Congress exercised an exclusive jurisdiction over the subject of bankruptcy, the same rule of procedure extended throughout the TJnion. But the act of Congress could have no extra-territorial effect. Texas was an independent republic at the time of the decree in bankruptcy, and consequently no claim under it, even as regards personal property, in that republic, could be made, except on the ground of comity. And on our own principles this could not be done, to the injury of local creditors.

Hall in his lifetime might have conveyed this property by observing the forms adopted by Texas. But the assignee took no legal estate in the. premises under the bankrupt law; and consequently he could not convey such axi estate to-the plaintiff. No proposition would seem to be clearer of doubt than this. It is believed that no sovereignty has, at any time, assumed the power, by legislation or otherwise, to regulate the distribution or conveyance' of real estate in a foreign government. There is no pretence that this government, through the agency,.of a bankrupt law, could subject the real property in Texas, or in any other foreign government, to the payment of debts. This can only be done by the laws of the sovereignty where'such property may be situated.

It is said that Texas, by an act of the 17th of March, 1841, has recognized the validity of foreign bankrupt laws. There is nothing in that act which can affect the question now under consideration. It merely provides, that where relief has been given under any foreign bankrupt or insolvent law to an individual who has surrendered his property, and who afterwards shall become a citizen of Texas, he shall be considered as discharged from his debts,, unless fraud be shown.

But if the assignee had power to. convey the property, there would be two fatal objections to the title of the plaintiff. The deed is not executed according to the form required by the laws of Texas for the conveyance of real estate. Under such an instrument the fee does not pass. And in the second place, if the deed were operative to convey the fee, the property would be. subject to satisfy the claims of the Texas creditors of Hall. Administration of his estate was granted -to Bennett, whc took upon himself the trust, and made returns to the court of the debts of Hall, amounting, as above stated, to the sum of eighteen hundred dollars, before he had any notice of the bankrupt proceeding. And it is averred that these creditors trusted Hall, knowing he possessed the property in controversy. Ben? nett, it is insisted, represents only the rights of thq deceased, and, the right to this property having become dives.ted by the decree in bankruptcy, he can set up no objection to the plaintiff’s title; This position is not sustainable. The- administrator represents the rights of creditors, and as regards this controversy must be considered as standing in their stead. He is responsible to the court for the faithful administration of all the assets of the deceased within - the jurisdiction under which he acts. The creditors who have substantiated their claims were not subject to the decree of bankruptcy. From, the property which Hall was known to possess in Texas, it -is alleged they gave hi® credit, and a conveyance of the property, under the circumstances, could only be held valid by a disregard of the rights of the Texas creditors. This, we suppose, could not receive the sanction of the courts of that State. Whether advantage could - be taken of this in the present procedure, if the deed to the plaintiff conveyed the fee, it is unnecessary to determine.

The annexation of Texas to the United States long after the decree of bankruptcy, and a short time before the deed by the assignee was made to the plaintiff, does not affect the question. At the time the decree in bankruptcy was pronounced, there was no jurisdiction over this property;. and the subsequent annexation cannot enlarge that jurisdiction. The rights of creditors were fixed by the decree.

We deem it unnecessary to examine the other exceptions, as we are all of the opinion, that the title to the property in controversy did not pass to the assignee, under the decree in bankruptcy. The judgment of the District Court is, therefore, affirmed.

Order.

This cause came on to be heard'on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby; affirmed, with costs.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    The United States, Appellants, v. Baptiste Guillem, Claimant of One Box of Specie.
    A neutral leaving a belligerent country, in wbicíi he was domiciled at the commencement of the war; is entitled to the rights of a neutral in his person and property, as soon as he Sails from the hostile port.
    The property he takes with him is not liable to condemnation for a breach of blockade by the vessel in which he embarks, when entering or departing from the port, unless he knew of the intention of the vessel to break it in going out.
    . 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 leav'e 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, añd 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 v/ere 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. Soule, for the claimant.

      Mr. Crittenden, for the appellants.
    As it has béen 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, el 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 añd the persons and property of the enemy; he couldj 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 á 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 25bh, 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 ar, 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 any 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 wpmen and children, before oné 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 hé 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 wsas 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. Ill, note. The cases of the' Juffrow Maria Sehrceder, 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 grilty is subject to capture by any cruiser of the blockading power.
    There are exceptions in the case of egress. “ A ship that has entered previous to the blockade may retire in ballast, or taking a cargo that has been put on board before the .blockade.” The Juno, 2 Bob. 118. That a belligerent may lawfully blockade-the port of-his enemy is admitted; but it'is also admitted that this blockade does not, according to modern usage, extend to a neutral vessel found in port, nor prevent her coming out with the cargo which was on board when the blockade was-instituted. Olivera v. Union Insurance Company, 3 Wheat. 194; 1 Kent, 147. The Jeune Nelly does not come within either of these exceptions. There are other exceptions, for which see Wheaton’s Elements, 548, and 2 Wildman, 201, but which have no bearing in this case.
    But to come to the question in the case, Were the property and effects of the neutral Guillem, on board the Jeune Nelly when she broke the blockade outward, liable to capture ? The court below has decided they were not, on the ground that Guillem had left Mexico with an intention to return to France, and therefore was no longer a resident of the power with whom the United States were at war. It is a well-known law, that, if a neutral reside in the country of one of the belligerents, his property and effects sent from that country are liable to capture by the other, as enemy’s property, wherever found on the ocean. 1 Kent’s Com. 75. A national character, however acquired by residence, may be thrown off at pleasure by a return to the native country. It is an adventitious character, and ceases by non-residence, or when a party • puts himself in motion, boná fide, to quit the country, sine animo revertendi, and such, an intention is essential to enable him to resume his native character. 1 Kent’s Com. 78.
    But with all due deference it is submitted that these doc-', trines have no application in a case of capture for breach of blockade. A blockade has the effect to seal and shut up'tlie blockaded port against all trade whatsoever. Sir William Scott says it would not properly be a blockade unless neutrals were restricted.
    “ A -blockade may .be more or less rigorous, either for the single purpose of watching the military operations of the enemy, and preventing the egress of their fleet, as at Cadiz; or on a more extended scale, to cut off all access of neutral vessels to that interdicted place, which is strictly and properly a blockade; for the other is, in truth, no blockade at all, as far as neutrals are concerned. , It is an undoubted right of belligerents to impose such a blockade, though a severe right, and as such not to be extended by construction ; it may operate as a grievance on .neutrals," but it is one to which, by the law of nations, they are bound 'to submit.” The Juffrow Maria Sehroeder, 3 Rob. 154..
    The decision in the case of the Yrouw Judith, 1 Rob. 151, which was a case of violation of blockade outward by a neutral, says : “ Now, with, respect to the matter of. blockade,, I must observe that a blockade is just as much violated by a vessel passing outwards as inwards. A blockade is a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human, force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of the place, and a neutral is no more at liberty to assist'the traffic of'exportation than of importation.”
    . “ To shut up the ports of a country, and exclude neutrals from all commerce, is a, great inconvenience upon them, although it is one to'which they are bound; to submit; for there is no principle of the law of nations better established, than that a belligerent has a right to impose a blockade on the ports of his enemy.” The Juno, 2 Rob: 117. '
    On the part of the United States it will therefore be contended : — .
    1. That' the money of Guillem was liable to capture.
    The consequence of a breach of blockade is the confiscation of the ship, and. the cargo is alwaysprima facie-implicated in the guilt of the owner and master of the ship. ■ 1 Kent’s Com. 151.
    In the case of the Mercurius,-1 Rob. 84, it is decided that, to make the conduct of the ship affect the cargo, it is necessary to show that the owners of the cargo were conusant of the blockade before the cargo was shipped; or to show that the ■ act of the master binds them.
    The blockade of Vera Cruz was established shortly after the declaration of War, in May, 1846. Now Guillem was at tfiat. time, and up to the day of his'departure, living in the city, and must have daily seen the blockading squadron cruising off the port, and could not pretend ignorance of the blockade. Both 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 a.float 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 á 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 Nelly. Guillem himself admits that, with the exception of the ninety-seven 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 and a half doubloo'nsf 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, 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 noté 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 blockadeid 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 en-compassed by the United States forces, inust for the present cease.”
    General Scott, in his letter to Secretary Marcy under date of the 25th of March, says: “ That, although on the 18th 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, Soule, 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.

      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; Jand 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 riot 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 residehce, the nature of the cargo, and the circumstances under which it was captured, all stamped the, '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 Jour 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 consideradas 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, bona 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 bond 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. Lawp 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 hé resided, on his way to another. The reasonableness of this rule can hardly be disputed. 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, boná fide, and without ah intention of returning. If any thing short of actual removal be ádmitted 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 UAited 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 inten-tion. . 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 madé 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 ships of wat, up to the 22d of March. If the blockade was left open to neutral persons to pass out, it was surely left open for the neutral vessels which should convey them; and the guilt of La Jeune Nelly in running the blockade, if indeed she did run it, was purged by the permission thus given to neutrals to pass out in neutral vessels, and was the reason • why La Jeune Nelly left Vera Cruz on the 20th of March ill open day, with her colors flying and fearless of interruption. And ■this is the reason why the capture of that vessel and her shipwreck have been made cause of claim against the government of the United States. And surely, under these circumstances, the property, of Guillem, a neutral who left Vera Cruz with the blockade open, cannot be condemned. La Jeune Nelly was on her way from Vera Cruz to Sacrificios when she was' captured and wrecked; and if neutrals were permitted to go to Sacrificios, their movements afterwards cannot be controlled. All these circumstances should be construed very favorably towards a party so peculiarly situated.
    Third Point. But admitting that La Jeune Nelly had violated the blockade, and that the permission of General Scott and Commodore Perry to neutrals to depart did not purge the violation, and that she was a guilty vessel, and with her cargo was subject to condemnation, it is contended for the claimant, that this guilt and liability to. condemnation do not in any manner extend to a passenger and his effects. The French crew of La Jeune Nelly could not be made prisoners of war, nor punished in any other manner, nor could their personal effects be confiscated; -a fortiori could not those of a passenger. The decided cases settle beyond dispute, that the person and property of a neutral, withdrawing himself after the breaking out of war from the enemy’s country, even on board of an . enemy’s vessel, are not subject to condemnation. The flag does •not protect any enemy’s property in neutral bottom, and neutral property, if not contraband of war, is not condemned by the character of the flag or of the bottom; and if, in place of being gold and silver, the currency of the country and the personal effects of the neutral, Guillem had converted his property into any of the productions of Mexico, and sailed.in a Mexican vessel with his family, and with the undoubted purpose of withdrawing himself from the Mexican dominions, his property would not. have been liable to condemnation. This point is-fully established by the case of the Indian Chief, above referred to.;
    ' . If the argument has satisfied the court that Guillem’s three thousand dollars, the earnings of his three years’ labor, can in no proper sense of the words of the English language be called cargo, but-are', and áre to be considered as, the baggage and personal effects of Guillem, it is impossible to conceive how the conclusion is ever to be arrived at, that they are subject to condemnation because he embarked in a guilty vessel. In favor of neutrals, the laws of war are to be strictly construed. A neutral vessel, violating a blockade, and her cargo, are to be condemned as prize of war; but was it ever heard of that the neutral individuals were made prisoners, their watches taken1 from their pockets,- or their money from their purses ? No such case can be produced, and the judge would be considered as having a furor for condemnation, who should establish the1 precedent. Whether or not gold and silver are to be Considered as merchandise in regard to the laws of war, will depend on the purposes for which they ate shipped. If sent for the purpose of paying a debt, or for the purpose of purchasing merchandise, they may well be considered as cargo; but if carried by a man who is emigrating to a foreign country or returning to his own, and •used as the means of taking his property along with him, they cannot be considered as cargo. Every case, of this kind must depend on the circumstanées which surround it. Guillem leaving Mexico with his wife and children, ignorant of commerce 1 and not confiding in the engagements of merchants, and.-perhaps unable to procure them, carried with him his small fortune, in the only shape and form of money with which he was familiar. Is there no difference between money carried as the personal property of the passenger, and money shipped for the ordinary purposes of commerce ? If this distinction be made, it is impossible to understand how the three thousand dollars of gold and silver carried by Guillem, one half of it on hi's .person, can be condemned as the cargo of La Jeune Nelly.
    Fourth Point. The statement of this point carries its own argumeht with it. If the blockade was' raised for the purpose of permitting neutrals, to go on board of the neutral ships of war, it is to be supposed they would-, be permitted to carry their clothes, personal effects, baggage, and money with them. We must suppose that they could have gone .to the neutral ships of war either in cutters or other small craft of those vessels, or in Mexican craft. -It was to be supposed that General Scott and Commodore Perry were in good faith in giving this permission, and in raising the blockade for the escape of neutrals, and so long as neutrals took advantage of this permission in good faith, and did not attempt to cover Mexican property, our courts would respect and enforce thé rights thus conferred. The libel in the present case is said to be for the benefit of the officers and men of. the vessels of the squadron in the Gulf of Mexico. This squadron was commanded by Commodore Perry, and neither he, his officers, nor men will be allowed to profit by the breach of the permission thus given to neutrals to withdraw themselves, When once on board of the neutral ships of war, the neutrals are at liberty to go where they please; ’ whether the raising of the blockade extended to La Jeuné Nelly or not, is a question which remains to be settled between the governments ; but it is presumed that the courts will compel respect , to such a permission given by the commander of the naval and land forces of the United States. In every point of view,, therefore, in. which the case can be considered, it is believed that this court will affirm the judgment of the Circuit Court, and will decree that the costs be paid.out of that part of the property seized which was. condemned.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

There is no dispute about the material facts in this case. The claimant was a citizen of France who had been domiciled in Mexico about three years, following the occupation of a cook in a hotel, and was returning with his family to reside in his own country when the capture was made. They sailed from Vera Cruz in a French vessel bound to Havre. The money he had with him, and' which is now in question, was not shipped as cargo, or for the purposes of trade. It amounted to only two thousand eight hundred and sixty dollars; and was the earnings of his industry in Mexico, and taken with him for the support of himself and his family upon their return to France. The hostile character which his domicile in Mexico had impressed upon him and his property had therefore been thrown off; and as soon as he .sailed from Vera Cruz he" resumed the-character of. a French citizen, and as such was entitled to the rights and privileges of a neutral, in regard to his property, as well as in his person. The rights of the neutral in this respect have always been recognized in the prize courts of England, and were sanctioned by this court in'the case of the Venus, 8 • Cranch, 280,. 281. Indeed, we do not understand that the appellants claim to have this money condemned upon the ground that it was liable to be treated as the property of an enemy, on account of the previous,, domicile of Guillem. But it is insisted that, if it is regarded as the property of a neutral, it was shipped in violation of the blockade; and that the character of the vessel in which it 'was found' also subjects it to condemnation.

So^ far as concerns the breach of blockade, the attempt to pass out of the port with this money wqs' not of itself an offence, apart from the vessel in .which he sailed! . The blockade had been.opened for the purpose of enabling consuls and other, neutrals to pass out to their respective ships of war, soon after General Set>tt landed and invested the town. And it continued open for that purpose until the 22d .of March. It is true that the permission was confined to ships of war. But the reason is obvious. They were the only vessels that could be safely allowed to communicate with the town then closely besieged. And the permission was restricted to them, because it was believed that commanders of national .vessels' would not suffer a privilege granted to neutrals from motives of humanity to be used for improper purposes.

But the object and intention of this order were evidently, not merely to enable .the neutral to avoid the hazards of the approaching bombardment, but to afford him ,an opportunity to leave the enemy’s country, and return to his own, if he desired to do so. The neutral was not required or expected to remain on board the ship of war. The permission opened to him a path by which he might escape altogether from a country about to be Visited with the calamities of war. It therefore necessarily .carried with it the permission to take;with him the means of supporting himself and his family, on their voyage home and after their return. The order contains no restriction upon this subject, and to imply any would be inconsistent with the motive by which it was evidently dictated. The Jeuhe Nelly, in which the claimant embarked, sailed on the 19th of March, while the blockade was still open for the purposes above mentioned. It was no breach of the blockade, therefore, for the claimant to pass out of the town at that time on his voyage home, and to take with him the sum of money his industry had accumulated, and which was necessary for the support of himself and his family on their arrival in their own country. The port was not then closed against the égress of neutrals from the hostile country; nor were they forbidden to take with them the money necessary for their support. And if Guillem had gone on board a French ship of war for the purpose of returning home, and taken with him this small sum of money, his right to do so could not be questioned.

■ But it is supposed that the character of the vessel in which he embarked subjects his property to forfeiture. La Jeune Nelly had entered the port in violation of the blockade; and endeavored to break it a second time by leaving the port without permission. She was undoubtedly liable to capture and. condemnation. But it does not by any means follow, that the property of the claimant.is implicated in the guilt of the vessel, or must share in the punishment.- There is no evidence to show that he had knowledge of the previous breach of blockade, or of the intention to break it again in going out. She-was a neutral vessel belonging to his own country, and had come into the port in open day-under the French flag; and she sailed again in a manner equally open, and without any apparent design of concealing her movements from the blockading squadron. The permission granted by the American commanders had as a matter of course been made public in Vera Cruz; and Guillem must without doubt have séen citizens of neutral nations daily leaving the city for the ships of war, and taking with them the necessary means of support for themselves and their families. He appears to have done nothing more than avail himself of the most convenient opportunity that offered in order to afeeomplish the same object; and if he did not participate in the design of breaking the blockade, his property is not affected by the misconduct of the vessel in which it was shipped. Even in the case of cargo shipped as a mercantile adventure, and found on board of a vessel liable to. condemnation for a breach of blockade, although it is prima facie involved in the offence of the vessel,-yet, if the owner can show that he did not participate in the offence, his' propertj is not liable to forfeiture. This is the rule as stated by Sir William Scott in the case- of the Alexander, 4 Rob. 93, and in the case of the Exchange, 1 Edwards, 39, and recognized in 1 Kent’s Com. 151. And yet, in the case of a cargo shipped for the purposes of commerce, the breach of blockade is almost always committed by the vessel for the benefit of the cargo, and to carry out some mercantile speculation injurious to the rights of the belligerent nation whose ships are blockading the port. The, case before us is a stronger one in favor of the claimant than that of the innocent owner of a cargo. The money in question was not shipped as cargo or as a mercantile adventure. Guillem was a passenger on board, with his whole family, and the money was a part of his personal effects necessary for their support and comfort. The shipment of the money could give no aid or comfort to the enemy. And in taking his passage in the Jeune Nelly, his intention, as far as it can be ascertained from the testimony, was merely to return to his own country, in a mode better suited to his humble circumstances and more convenient to his family, than by passing through the ships of war. In the opinion of the court, the money he took with him was not liable to condemnation on account of -the guilt of the vessel, and the decree of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed.