27 Tex. 734 | Tex. | 1865
The question in this case, is whether* or not the appellant, Samuel Blumer, a native of Switzerland, is liable to enrollment as a conscript, after a residence or sojourning of three years in the Confederate States, as exhibited in the statement of facts as follows, to-wit:
“ The applicant, Samuel Blumer, is a native of Glarus, in the Republic of Switzerland. He came to Texas on business in 1854and remained here a few months, when he returned to his native home in Switzerland. A portion of the time he was in Texas, he worked as a day-laborer for R. H. Peck, at the butcher business In December, 1858, he again left home to come to Texas, traveling by way of Paris, Havre (passing through New York on the 7th day of June, 1859,) and New Orleans,' stopping at these and other places, and arriving in Texas on the 24th day of June, 1861. He was sick when he reached here, and remained in bad health
“ He was enrolled as a conscript on the 2d day of July, 1864, by Capt. John Rapp, enrolling officer of Travis county, and by him assigned to the respondent officer , Lieut. E. M. Green, recruiting officer for Waterhouse’s Brigade,) for service in the army of the Confederate States.”
The laws of conscription embrace all white men of his age, who are “ residents of the Confederate States.” A resident is “one who resides or dwells in a place for some time.” To reside, is to “ dwell permanently or for a length of time, to have a settled abode for a time.” To dwell, is “ to abide as a permanent resident, or to inhabit for a time, to live in a place, to have a habitation for some time or permanence.” It invariably involves the idea of .the present home of the person, whether it is designed to be per
Congress designed that this term should include more than citizens, native and naturalized, otherwise the word citizen would have been used. It includes also foreigners, not naturalized, whose residence here has been such as to attach to them a national character as members of society, and who are thereby under obligations to defend the country.
Vattel says, “The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound., by their residence to the society, they are subject to the laws of the State whilst they reside there; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens.” Such are the foreigners intended to be embraced by the term “residents.” They
Such a residence, it is believed, will generally be found to correspond with what is meant by domicil, as it is now understood and adjudged, by the courts of England and America. Descriptions of domicil are more easy and not less intelligible than efforts at a definition of it. In the case of Bruce v. Bruce, in the House of Lords, the Chancellor, Lord Thurlow, said, “ But what will make a person’s domicil or home—must occur to every one. A British man settles as a merchant abroad; he enjoys the privileges of the place; he may mean to return when he has made his fortune; but he dies in the interval; will it be maintained that he had his domicil at home? ” (Bosanquet & Puller’s R., 229 and note.)
Justice Washington in the Venus case, says, “ If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicil is acquired by a residence even of a few days.” (8 Crunch R., 279.)
Story says, “In a strict and legal sense that is properly the domicil of a person where he has his true, fixed and permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.” (Story Conf. of Laws, 49.) Again he says, “ Two things must concur to constitute domicil; first residence, and secondly the intention of making ithe home of the party.” (Id., 53.) And again he says, “ Vattel has defined domicil to be a fixed residence in any place, with an intention of always staying there. But this is not an accurate statement. It would be more correct to say, that that place is properly the domicil of a person in which his habitation is fixed, without any present intention of removing therefrom.” (Id., 52.)
This view of Vattel, as to the intention of always remaining, which is alleged by Justice Story to be - erroneous, accounts for his considering only perpetual inhabitants to be domiciliated, and not inhabitants simply “ who are permited to settle and stay in the
This will suffice for the affirmative view of the descriptions and definitions of domicil. It must be considered in connection with the facts and presumptions, which may prevent a place from being one’s domicil. In the leading case of Bruce v. Bruce, it is said, “ A person being at a place is prima fade evidence that he is domiciled at that place; and it lies on those who say otherwise, to rebut that evidence. It may be rebutted no doubt. A person traveling—on a visit—he may be there some time on account of his health, or business; a soldier may be ordered to Flanders, and: be detained there for many months; the case of an ambassador,’* &c. See also 1 Burney’s Penn. Rep., 350 and note.
Justice Catron, in speaking of the domicil of Kosciusko; a native of Poland, and afterwards a resident of France, says, “ a removal which does not contemplate an absence from the former domicil, for an indefinite and uncertain time, is not a change of it. But when there is a removal, unless it can be shown or inferred from circumstances, that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office or calling, it does change the domicil. The result is, that the place of residence is prima fade the domicil, unless there be some motive for that residence not inconsistent with a clearly established intention, to retain a permanent residence in another place.” (Ennis v. Smith, 14 Howard U. S. Rep., 428.)
Persons removing to a place for the particular purposes and objects as above expressed, are sometimes styled residents. An example of that is found in the statutes giving attachments and other process against non-residents. Savage, Gh. J., in such case says: “The reason why this remedy is given against the property of debtors resident abroad, is equally applicable, whether the debtor is absent permanently or temporarily.” Thus we see the reason and object of the law is made to give character to, and even
Here it is used in reference to the defence of the country, by such persons as should be bound by law, to serve in the army of the Confederate States.
The President, being charged with the duty of enrolling those liable to military service, “in accordance with rules and regulations prescribed by him,” through his adjutant and inspector-general, prescribed and published as one of said rules, that “foreigners not domiciled in the Confederate States, are not liable to enrollment.” Laws in addition to and amendatory of the original conscript law have been passed, with a full knowledge, we may fairly presume, of such construction by the President; and the same designating words, “residents of the Confederate States,” have been repeated therein.
The Hon. Wm. Pinckney Hill, one of the eminent judges of the Confederate States in Texas, in a lucid and elaborate opinion, has vindicated that construction, in the case before him, of Reed v. Drake. This construction is in harmony with the law of nations. (Vattel, 160-1-2; 8 Cranch, 279; see remarks of Sec’y Marcy in the Koszta case, Message and Pub. Doc., 1835, 4 Part. 1, pp. 40, 45.) “An act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.” (Murray v. The Charming Betsy, 1 & 2 Cranch R., 148.) The Confederate government, from its first organization to the present time, has had peculiar motives for a strict observance of the laws of nations towards our enemies as well as towards neutrals. For, while it has been seeking to assert and retain the right of constitutional republican government, and when made necessary to maintain it by force of arms, so as to attain a recognized position among the family of nations, our enemies have affected to regard, and sought to treat us, as a disorganized mass of people, following a military leader—not even entitled to the rights of belligerents as long as they could prevent it; while they, being already established, and recognized by the world, could afford, as
To require the military services of domiciled foreigners, is an undoubted and recognized right. And therefore the rule adopted by the President, in relation to the enrollment of foreigners, is one of certainty and safety.
We have been shown an order from Brig. Gen. Greer, (Hd. Qtrs. Bureau of Conscription, T. M. Dept.,) prescribing a different rule. This having been issued on the 9th of April, 1864, after the passage of the law of 17th February, 1865, which retains the word “'residents,” can not be held as evidence of the construction by the President originally, or of congress at any time, however it may be thought to affect and change the duty of enrolling officers, so far as they are to be governed by mere orders irrespective of the law, which is not now before us.
The question now arises upon the statement of facts, where is Blumer’s domicil or home ? (2 Bos. & Pul. R, 231.) He is a native of Switzerland, came to Texas in 1854, on business, and after remaining a few months returned, and left there again in 1858, to come to Texas. Thus far it may be presumed that Switzerland was the place of his original domicil. For, although it is not shown that his parents were domiciled there at the time of his birth, (Story Conf. Laws 57, sec. 46,) that fact may be inferred from their being there then, in the absence of all other facts on that subject; and it is supported, also, by the fact that he came here on business and returned there, and remained several years, being then a young man without a. family, as he still is. “ Persons who are born in a country, are generally deemed to be citizens and subjects of that country.” (Story Conf. 61, sec. 48; 1 Black Com., 366.) The domicil of birth remains his domicil until another is acquired. (Story Conf. 50-1, sec. 46-7.) “In December, 1858, he again left home to come to Texas, traveling by the way of Paris, Havre, (passing through New York on the 7th day of June, 1859,) and New Orleans, stopping at these and other places, and arriving in Texas on the 7th day of June, 1861.” Tip to that time, he had not changed his domicil. The intention with
On the 2d (lay of July, 1864, a few days over three years after his arrival, he was enrolled as a conscript in Travis county. During that time he has lived here, as a laborer on hire, in the ordinary avocations of the country. These facts establish prima facie; that this is his domicil, and throws on him the burthen of showing that his original domicil has not been lost by the acquisition of a new one. Lord Thurlow says, “ a person’s being at a place is prima facie evidence, that he is domiciled at that place.” (Bos. & Pul., 231.) This is something stronger; for he has-considering only the above recited facts for the present—done just' as any immigrant, in his condition of life, would have done, who came here to settle and make Texas his home permanently or for an indefinite period. So far as. anything is shown, he would have had to labor or hire, wherever he could get employment, had he remained in Switzerland. He had no means to live in any other way. He had no family, to require any other mode of settlement. He had not left behind him any ties, either in Ms business or his family relations, to raise an expectation of his return to them. His all was here, and he was using it to make a livelihood for himself. A residence attended by such circumstances, not repelled by others, would fall directly under the definition given by
“ On his arrival in Texas, he said that he had not come to make this his home, and declared his intention not to remain in Texas, but to return again to Switzerland as soon -as he recovered his health sufficiently to travel and got money enough to defray his expenses from here there.”
This he repeated continuously and often, without stating any particular time when he would start.
“ Since he recovered his health in 1863 he has been destitute of means.”
Such declarations were properly admitted as part of the res gestee, and are to be weighed, in connection with the other facts of the case. They are to be credited as the index of his intention, when not unreasonable in themselves, not inconsistent with other facts in the case, and not under circumstances creating suspicion of insincerity. When his declarations were made, on his arrival in Texas, in June, 1861, they were not liable to any of these objections, in reference to any facts that had up to that time transpired. His leaving Switzerland to come to Texas might or might
In the case of Wilburn v. Bennett, 3 Metcalf R., 20, such declarations offered in evidence to prove the intent of a'removal from one place to another, having been rejected by the court below, were held to be admissible by the Supreme Court. (See, also, Thorndike v. City of Boston, 1 Met., 247.) As to the weight of such testimony, a few cases may be referred to with advantage. In the case of Watson v. Simpson, 8 La. An. Rep., 337, Merrick, C. J., said : “ It is evident that, in most of his conversations, and whenever he had an opportunity to manufacture evidence, Simpson pretended to be a resident of New Orleans, whilst, during the whole of three years he was absent, he was enjoying all of the advantages of a real resident in New York, except voting, and this he seemed to decline, merely because it might affect his Louisiana domicil.” “ Courts of justice must look to the real facts of the case, and where it appears that the declarations of a party are made with a reference to making testimony in his favor, they must be rejected.”
Justice Catron, in reference to Kosciusko’s domicil, after fully discussing this question as to the admissibility and weight of such evidence in France, England and America, and the practice of re
In the case of Horne v. Horne, 9 Iredell Law R., 108, it is said by Nash, J.: “ There is one circumstance which, we think, was nearly conclusive upon the question; it is that the deceased, himself, considered North Carolina his domicil. In his will he styles himself “ Joel Horne, of Anson county, North Carolina.” So the declaration of intention was taken as full proof of it in the case of Leach v. Pillsbury, 15 New Hampshire R., 138.
Justice Washington, in the Venus case, said: “If he had made no express declarations on the subject, and his secret intention is to be discovered, his acts are to be attended to as affording the most satisfactory evidence” (as to domicil.) 8 Crunch, 278. Here there is an implication that where there are such express declarations, they demand the first consideration. Indeed, in most of the cases of domicil, the question of intention is made.to depend upon declarations, in proportion as they tend to explain, and are not inconsistent with the other facts. There are many American cases relating to the settlement of paupers, and the acquisition of jurisdiction by residence and the like, which may be referred to for the purpose of explaining the migratory and unsettled state of many persons Avho are to be found in the country, and in which their residence has been so transient and unfixed for years, as to compel the alternatiAre of a resort to the original domicil, to give them a domicil at all, (2 Maine R., Turner v. Buckfield, 212, and Knox v. Waldborough, 420,) or of adjudging a domicil or residence to have been acquired upon slight grounds. (Id., Boothbay v. Wiscasset, 354 ; Putnam v. Johnson, 10 Mass. R., 499 Greene v. Windham, 13 Maine R., 228.)
In the ease last cited, it is said by Weston, C. J.: “ Whoever removes into a town for the purpose of remaining there an indefinite period, thereby establishes his domicil in that town. It is not necessary that he should go with a fixed resolution to spend his days there. He might have in contemplation many contingencies
In the case of Ex Parte John Luscher, decided at Austin, November 15, 1864, the applicant left Switzerland and came to Texas to settle and make it his home, if he liked the country. “ Soon after his arrival here, he declared that he did not like the country,that it was too dry, and he should return to Switzerland.” Still he remained in Texas, pursuing the ordinary avocations suited to his condition, within a few months of four years, and had made no ostensible demonstration to carry out any such intention. The court, without attempting any elucidation of the legal principles upon which it acted, decided against the applicant. The intention of abandoning his domicil of origin was established; his condi
We have already seen that such is not the case with Blumer as to the facts anterior to, and up to the time of his arrival in Texas, when he made the declaration óf his intention not to make Texas his home, but to return to Switzerland as soon as he got well enough to travel and made money enough to defray his expenses. How "do the facts subsequent to that time, during his three year’s residence in Texas, comport with such declaration? The ground assumed is, that he has been, prevented by sickness for two years, and since then, by a destitution of means from carrying out his intention as manifested by Ms words. We are not furnished with the information as to the necessary amount of money that would be required, either ordinarily or in the present state of difficult egress, or of what he did or could make by his work, under the circumstances. It is not improbable that, considering his sickness and the embarrassed condition of the country, he should not have made much money. It is sufficient for the present that the proof, as it stands on the record, shows him to be “ destitute of means” during all the time since he recovered his health. These facts are not important, as necessary facts in any other case. Eor a foreigner, who is here on a visit, or for travel, or on particular or special business, or without business, does not have to show that he will leave as soon as he conveniently can, nor to either intend or declare it. They derive their importance in this case simply from the fact, that their existence is necessary to sustain the truth of his declarations, by which he undertook to manifest his real intention m regard to a home, as between Switzerland and this country.
These facts being proven, Ms remaining here, as he has done, is not inconsistent with the expressed intention of not making Texas his home and of returning to Switzerland. He is detained by his physical condition and his necessities. These explain why
In the case of Hoskins v. Mathews, 35 Eng. Law & Eq. Rep., 641-2,) it is said, “ That there may be cases in which even a permanent residence in a foreign country, occasioned by the state of the health, may not operate a change of domicil, may well be admitted. Such was the case put by Lord Campbell in Beattie v. Johnstone, but such cases must not be compared with others in which the foreign residence may be determined by the preference of climate, or the hope or the opinion that the air or the habits of another country may be better suited to the health or the constition. In the one case the foreign abode is determined by necessity, in the other it is decided by choice.”
See also Beattie v. Johnstone, Clark &. Fin, 10th vol. R., 139; Elbers v. United Ins. Co., 16 John. Rep., 133 ; Brown v. Smith, 71 Eng. Com. Law & Eq. Rep., 9.
“Time,” says Sir W. Scott, “is the grand ingredient in constituting domicil.” In most cases it is unavoidably conclusive. It is not unfrequently said, that if a person comes for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect to the time which such a purpose may or shall occupy ; for if the purpose be of such a nature as may probably or does actually detain the person for a great length of time, a general residence might grow upon the special purpose. (Wheaton’s El. In. Law, 370; Story’s Conf. Laws, sec. 45, p. 54.)
The case then stands thus : Blumer being a native of Switzerland, having once been here and gone back, leaves his home to come to Texas—after two years and a half here gets sick, declaring then and continually afterwards his intention not to make Texas his home, and to return to Switzerland as soon as he. can do so, but is prevented by his sickness and destitution for three years, during which time he labors upon hire when he can in the ordinary avocations of the country.
The facts which draw him to his original domicil are not strong—far from it. But the residence here is fully explained to be not inconsistent with the declared intention to return, and not to acquire a new one. In the absence of any such declarations, his residence and conduct here might easily rebut any claim he might now make to have retained his original domicil, by the mere fact of being a foreigner. In view of the mode in which he chose to shape his declarations of intention, (not to make this his home, but to return to Switzerland as soon as he was able and got money enough to bear his expenses,) had he not shown that, from sickness and destitution he was not reasonably able to go, his declarations would have been impeached, and being found untrue in part, might have been wholly disregarded as constituting an index to his intention, and his three years’ residence and conduct here would have been left in full force to establish a domicil here, and thereby negative any claim to his foreign original domicil, founded, as it would then be, only upon the established fact of his being a foreigner.
His declarations of intention stand now unimpeached by other facts—are not unnatural or unreasonable in themselves, and must turn the scale in favor of Switzerland as his domicil.
Only such facts have been commented upon as have been deemed material to the decision of the case. Such rules of law have been referred to as would exhibit generally the relation between residence and domicil in reference to the subject under consideration,
Aided by the research and able arguments of counsel on both sides, the subject has received anxious and patient attention and consideration; and we are of opinion that, upon the facts as presented in the record, the applicant, Samuel Blumer, is not liable to military service in the Confederate States army, and that he should be discharged as “an undomiciled foreigner.”
Reversed and discharged.
