10 Ct. Cl. 385 | Ct. Cl. | 1874
Lead Opinion
delivered the opinion of the court:
The facts proved in this case, as found by the court, leave no doubt that, at the time of making the purchases within the rebel lines during the rebellion, the claimant’s domicile was in the city of New Orleans,' then and ever after during the war held by the military forces of the United States. Before the war his domicile was in that city, and he resided and carried on there a commercial business, as a partner in a commission-house. There is no evidence of any change of domicile or of a dissolution of his partnership. According to well-settled principles, the presumption of law is that a domicile, once acquired, continues until it is proved to be changed, and that the burden of proof is upon him who relies upon such change. It was not until October, 1862, that the claimant is proved to be within
When tbe Federal forces obtained complete control of New Orleans, soon after tbe 27th of April, 1862, tbe inhabitants were no longer held to be in insurrection, and commercial intercourse between them and tbe inhabitants of other parts of tbe United States not in rebellion was permitted, while between them and tbe inhabitants of such portions of Louisiana and other States as remained in control of the insurgents such intercourse was strictly prohibited. , The President, in pursuance of authority conferred upon him by the Non-intercourse Act July 13,1861, (12 Stat. L., 257,) on the 16th of August of that year issued his proclamation (12 Stat. L., 1262) declaring that the inhabitants of the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, (except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States before named as might maintain a loyal adhesion to the Union and the Constitution, or might he, from
The time of the claimant’s going from New Orleans into the parish of Saint Landry, whether before or after the 27th of April, 1862, when the United States forces took possession of that city, and it ceased to be insurrectionary territory, is not expressly proved, but must be determined by the presumption of
In the case of The William Bagley, (5 Wall., 408,) Mr. Justice Clifford, in the opinion of the court, which was delivered by him, says : u The duty of a citizen, when war breaks out, if it be a foreign war, and he is abroad, is to return home without delay; and if it be a civil war, and he is resident in the rebellious section, he should leave it as soon as practicable, and adhere to the regularly established government.” Applying this rule to the present case, if the claimant were in the parish of Saint Landry when the city of his domicile was taken possession of by the Federal Army, and became loyal territory by virtue of the exception in the proclamation which we have cited, it was his duty to leave as soon as practicable-, return to his home, give in his adhesion to the established government, and transact no further business with the public enemies beyond the Federal lines.
In Ealer v. The United States (5 C. Cls. R., 708) this court held that a “ citizen of a loyal State, involuntarily detained during the rebellion within the Confederate lines, may, with his earning's, buy and sell, acquire and dispose of property, so long as he gives neither aid nor comfort to the rebellion, and so long as he brings nothing within and carries nothing without the Confederate lines.”
It does not appear that the claimant involuntarily remained within the rebel lines, or that it was not practicable for him to return to New Orleans at any time within the six months which preceded his purchases, after the capture of that city. Voluntarily remaining in the territory of the enemy, in violation of his duty to his country, conferred upon the claimant no rights of commercial intercourse with the disloyal inhabitants of that territory.
, But the proof being that the claimant’s domicile, residence, and commercial business were in New Orleans before the war, we think the presumption of law is that he remained there personally until about the time he is proved to be in the parish of Saint Landry. The burden of proof is upon him to overcome that presumption, as it is to overcome the presumption that his domicile, once proved to have been there, continued
The learned judge who delivered the opinion of the court in that case says:
“All commercial contracts with the subjects or in the territory of the enemy, whether made directly by one in person, or indirectly through an agent, who is neutral, are illegal and void. This principle is now too well settled to justify discussion. (Woolsey’s Int. Law, § 117 ; Montgomery v. The United States, 15 Wall., 395, 8 C. Cls. R., 82.) No property passes and no rights are acquired under such contracts.
“In Ma'rch, 1862, the whole of the State of Louisiana was in the military possession of the Confederate forces. Intercourse between the inhabitants of the different portions thereof was legal, and contracts made between them were legal.
“ On the 27th of April, in the same year, the city of New Orleans was captured by the military forces of the United States, and thereafter remained under their control. From that time commercial intercourse between the inhabitants of that city and the inhabitants of other portions of the State of Louisiana which remained under the Confederate rule became illegal. Ordinarily the line of non-intercourse is the boundary-line between the territories of contending nations. The recent war in the United States was a civil war, in which portions of the same nation were engaged in hostile strife with each other. The State of Louisiana, although one of the United States, was under the control of the Confederate government and their
This review of legal principles by the learned judge applies with much force to the case now under consideration, and, upon those principles of law, the facts in this case are more decidedly against the claimant’s right to recover than were those in Lapéne & Ferré. In that case the claimants in New Orleans, when the whole State of Louisiana was rebel territory, sent their clerk into the interior with money wherewith to purchase for them sugar and cotton, and afterward, but while the rebels still held New Orleans, forwarded by a messenger other money to be used by him for the same purpose. After the capture of that city the clerk purchased the cotton which was the subject of suit. While the court held that the agency was terminated by the.hostile position of the parties, it did not rest the decision upon that point alone, but held also that the u purchase gave effectual aid to the enemy by furnishing to them the sinews of war. It was forbidden by the soundest principles of’public law. The purchaser obtained no title to the cotton, and has no claim against the Government for its capture.” And yet.the clerk was within rebel territory before and after the time of the capture of New Orleans, received no money thereafter, but made-the purchases with money which was delivered to him when such delivery was legal and valid. In the present case the claimant, in like manner a citizen of New Orleans, either remained within the rebel lines where he was at the time of the capture of that city, as did the agent of Lapéne & Ferré, or went there subsequently, and made his purchases with money which it does not appear that he obtained by the collection of debts or the sale of property. If the hostile position of the parties, caused by the capture of New Orleans, terminated the-agency of Lapéne & Ferré’s clerk, so it terminated the right of the claimant in this case to have commercial intercourse with the inhabitants of the parish of Saint Landry. (Grossmeyer’s Case, 7 C. Cls. R., 129, 9 Wall., 72 ; Ensley’s Case, 6 C. Cls. R., 282, 9 C. Cls. R., 11; Lane’s Case, 8 Wall., 185, 7 C.
Although public enemies, within their own disloyal territory, have a right to make contracts among themselves, and such contracts are held valid, we do not think the claimant acquired, as against the United States, any right of commercial intercourse with such enemies by leaving the city of his domicile and residence after it had been sis months in possession of the Federal forces, and, by the President’s proclamation, was no longer held to be in insurrection, crossing into insurgent territory, and there accepting office under the Confederate government, as agent for the exchange of its bonds for currency. If thus accepting office under the Confederacy rendered his 'purchases valid, then he was in better condition than other inhabitants of New Orleans who remained loyal; and by cbmmitting two disloyal acts he gained a right of action against the United States which he would not have possessed had he committed but one of them.
Since the foregoing was written, the Supreme Court has rendered a decision in Mitchell v. The United States, (ante,) which, in connection with the case of Lapéne efe Ferré, supports the conclusions which we had reached. Mitchell lived in Louisville, Ky., where he was engaged in business. In July, 1861, he procured a pass from the military authorities and went through tbe army lines into insurrectionary territory, where he remained until the latter part of 1864. While in the Confederate States he transacted business, collected debts, and purchased cotton, which was the subject of the suit. The court held that his domicile remained in Louisville; that, as an inhabitant of a loyal State, it was unlawful for him' to make contracts with the inhabitants of disloyal States; that his purchase of the cotton involved the same legal consequences as if it had been made by an agent whom he sent to make it; and that he acquired no title to the cotton so purchased. The court say that the case turns upon the point that Mitchell had his domicile in loyal territory while his purchases were within the lines of the enemy, and they re-affirm the principles that a domicile once acquired is presumed to continue until it is shown to have been changed, and that where a change of domicile is alleged, the burden of proving it is upon the person making the allegation.
On principle and authority, we are of opinion that this claimant is not entitled to recover, and his petition is dismissed.
Dissenting Opinion
dissenting:
In this case the only objection made to the petitioner’s recovery is that the'sales of cotton to him were made, between enemies, and are therefore absolutely void. And as the purchases were made in Confederate territory and of its citizens, the only question is whether the petitioner himself was a confederate or a loyal man at the times the sales were made.
Now, the fact is found that at the times of the sales the petitioner was an officer or agent of the Confederate government for the negotiation of its bonds, and stationed at Opelousas, in Louisiana, and had an office there; so that at the times of the sales he was an active member of the rebel organization, and personally engaged in aiding it in its resistance to the Government. In the very words of the Constitution defining treason against the United States, “he was levying war against them, and adhering to their enemies, giving them aid and comfort.” And he was in disloyal territory, stationed among and dealing with its citizens in these sales. And I think these facts necessarily fix the status of the petitioner as to loyalty or disloyalty then, wherever and whatever he might have been at any previous'time. And I know of no case in this court or in the Supreme Court that has decided that an officer of the Confederate government, active in its service, and stationed in its territory, was then and there a loyal man.
And the case shows that the petitioner was a citizen of a disloyal State, and was himself personally disloyal, and it is found as a fact that there is no evidence in the case that during the war he was ever in loyal territory till nearly four years after these sales were made, viz, January 19,1866, when he was pardoned for disloyalty in the city of New Orleans, then in the military occupation of the United States. And I do not concur in the second conclusion of law, for I think the statement of facts furnishes no presumption conflicting with the petitioner’s disloyalty. It is stated in the finding of facts that the petitioner was a resident of New Orleans before the war, which began April 19, 1861, and ordinarily a residence once shown is presumed to have continued. But that presumption is precluded here, for the voluntary residence of the petitioner in New Orleans after the war began would have been in him a c me and statute evidence of it. And a crime cannot be pre
So it is stated that the petitioner was in New Orleans January 19,1866. But that date is taken from the oath on which his pardon for disloyalty was conditioned, and, when taken in connection with his oath, as it must be, it can furnish no presumption of previous loyalty.
On the whole case, I think that the sales in question are valid in law, because the petitioner and those with whom he dealt in them were Confederates in fact and name, and all alike enemies of the United States when the sales were made in October, 1862; and I think that is the time to which the question of the validity of the sales is to be referred, and the only time material to it.
