
    DESMARE’S CASE.
    Alphonse Desmare v. The United States.
    
      On the Proofs.
    
    
      It appears from the claimant’s evidence that before the rebellion he toas domiciled in New Orleans, and a partner in a commercial house. There is no evidence of a change of domicile nor of a dissolution of the partnership ; nor is there evidence as to where he toas when New Orleans was captured, nor to shoiv that he had previously left the city. It appears that in October, 1862, he was within the enemy’s lines and acting as a Confederate agent, and having an office for the transaction of his official business, but there is no evidence as to his residence. He then bought cotton for himself, subsequently captured, and for the proceeds thereof this suit is brought.
    
    I. The presumption of] aw is that a domicile, once acquired, continues until it is shown to have been changed; and the burden of proof is upon him who relies upon such change. Therefore, where it appears that the claimant' was domiciled and doing business in New Orleans before the war, and that after the capture of the city he was acting as a Confederate financial agent within the enemy’s lines, haying an office or place for his official business there, but it not appearing where his residence was, nor that his partnership in New Orleans had been dissolved, it must be held that his domicile in New Orleans remained unchanged.
    II. Where it appears that a claimant’s domicile, residence, and commercial business were in New Orleans before the war, but that in October, 1862, he was acting as a Confederate agent within the enemy’s lines, the presumption, in the absence of evidence, is that he remained personally in New Orleans until after its capture; and the burden is upon him to overcome that presumption.
    III. A person whose domicile was in New Orleans during the rebellion, but who left the city after its capture, and without change of domicile acted as a Confederate financial agent within the rebel lines, could not acquire a legal title to cotton which he bought there. He remained under the restriction of non-intercourse so long as his domicile continued in New Orleans.
    1Y. The distinction between Mitchell’s Case (ante, p. 120) and Haler’s Case (5 C. Cls. E., 708) is that in the one a citizen domiciled in loyal territory voluntarily went through the lines, without change of domicile, to carry on commercial intercourse with the enemy, while in the other a citizen likewise domiciled in loyal territory was involuntarily detained in the insurrectionary district, where he was legally engaged at the beginning of hostilities.
    
      V. Prom the 1st May, 1862, to the close of the rebellion the citizens of New Orleans, to all intents and purposes, were, in law, inhabitants of loyal territory, with no more right to hold commercial intercourse with ■ persons in the insurrectionary States than had the citizens of New York.
    
      The Reporters’ statement of the case :
    The claimant, before the war, had his domicile in the city of New Orleans, La., where he resided and was a partner with one Laforest, tinder the style of Laforest & Desmare, commission-merchants, and he was residing there also on the 19th of January, 1866. There is no evidence of any change of said domicile, or of a dissolution of said partnership, nor is there any evidence as to where the claimant was on the 27th of April, 1862, when the United States military forces took possession of New Orleans, or before that date, during the war, or afterward, until October, 1862, when it is proved he was in the parish of Saint Landry, La., purchasing cotton, which is the subject of this action, and acting as agent of the rebel government for the exchange of Confederate bonds for Confederate notes, for which latter purpose he.had an office at Opelousas, in said parish. Said parish was within the rebel lines until April, 1863, when it was taken possession of by United States forces under General Banks.
    Between the 1st of October, 1862, and the month of April, 1863, the claimant, in person, purchased within said parish, of different persons, two hundred and sixty-eight bales of cotton, and paid for the same in Confederate money. All of said cotton -was seized by officers of the United States upon the entry of their military forces into said parish, was turned over to agents of the Treasury Department, sold, and the net proceeds, to the aggregate amount of §51,456, are now in the United States Treasury.
    Said claimant and one Dupré, jointly and personally, purchased within said parish, March 3, 1863, eighty-four bales of cotton, for which they gave their notes, with security. These notes were paid after the war, one-half by the claimant and one-half by said Dupré. This cotton was seized by officers of the United States in April, 1863, was turned over to the Treasury agent and sold, and the net proceeds thereof, to the amount of §16,128, are in the United States Treasury.
    
      1. The claimant’s domicile, found to have been in the city of New Orleans before the war, and not proved to have been changed, is presumed to have continued and been in that city when the purchases of cotton were made by. him within the rebel lines, as set forth in the findings.
    2. The claimant’s domicile being in the city of New Orleans, he is presumed to have been there personally until he is proved to be elsewhere$ and the claimant not showing that he was absent from the place of his domicile when that city was captured, April 27,1862, it is presuméd that he was there at that time, and subsequently crossed the Federal lines about the time he is proved to be in the parish of Saint Landry,
    3. The purchases of cotton by the claimant under the circumstances set forth in the findings were void, as against the law and public policy of the United States, and he acquired no title to the cotton thereby.
    
      Mr. O. W. Honor for the claimant.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Bichaedson, J.,

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 tbe rebel lines, in tbe parish of Saint Landry, where be was then acting as agent of tbe rebel government for tbe exchange of Confederate bonds for Confederate notes, and bad an office for that purpose at Opelousas, and at tbe same time was purchasing, on bis own account, the cotton claimed in bis petition. This is not inconsistent with bis still maintaining bis domicile in New Orleans, especially as it does not appear that be bad a fixed borne or residence of any kind or a place of general commercial business in tbe parish of Saint Landry or elsewhere within tbe rebel lines. In January, 1866, be is found again residing in New Orleans, and in May, 1867, according1 to bis petition, duly sworn to, he was a resident of that city, and then claimed that be bad at all times borne true faith and allegiance to tbe United States. In all tbe proceedings, from tbe original petition to the findings of fact, there is no claim set up that be ever bad a fixed residence or domicile in any other place than New Orleans. That being tbe case, tbe main question of law presented for our determination is whether or not the purchases of cotton made by tbe claimant personally within tbe rebel lines, while bis legal domicile was in New Orleans, were valid and not in violation of public policy. If they were valid, then tbe claimant is entitled to recover; otherwise, judgment must be for tbe defendants.

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 time to timé, occupied and controlled Toy forces of the United States engaged in the dispersion of the insurgents,) were in a state of insurrection, and all intercourse between tlie same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of the other States and other parts of the United States was unlawful and would remain unlawful until such insurrection should cease or be suppressed. The Supreme Court has held that military occupation, to work this exception, must be actual; that is to say, not illusory, not imperfect, not transient, but substantial, complete, and permanent;” and that “ the military occupation of the city of New Orleans may be considered as substantially complete from the date of” the proclamation of General Butler of May 1, 1862, which was issued on the Gth of May, and which “declared the city to be under martial law, and announced the principles by which ttíe commanding general would be guided in its administration.” (The Venice, 2 Wall., 258.) On the 12th of May, 1862, the President, by proclamation, (12 Stat. L., 1263,) declared that the blockade of the ports of Beaufort, Port Boyal, and New Orleans should cease and determine from and after the 1st day of June then next, and that commercial intercourse, with some exceptions as to articles contraband of war and other matters, might be carried on with those ports under certain specified limitations. On the 2d of April, 1863, the President revoked the exceptions contained in his proclamation of August 16,1862, but declared the same States therein mentioned to be in insurrection, “ except the forty-eight counties in Virginia' designated as West Virginia, and except also the ports of New Orleans, Key West, Port Boyal, and Beaufort in North Carolina.” This did not alter, but confirmed, the previous status of New Orleans. Thus the citizens of New Orleans were from the 1st of May, 1862, to the close of the rebellion, to all intents and purposes, in law, inhabitants of loyal territory, with no more right to have commercial intercourse with the public enemies in insurrectionary States and parts of States than had the inhabitants of New York, Boston, or Philadelphia.

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 law; and as be might have different rights, and be subject to different obligations to some extent, if he went before or after that date, we will consider his claim under each of those aspects of the case.

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 iii that city. This presumption is greatly strengthened by the fact that it does not appear that he was in that parish until six months after the capture of New Orleans, or that he had any place of business there except an office for the exchange of Confederate bonds for Confederate notes. Where was he during those six months % And where was he when the city of his domicile was captured'? These were facts within his own knowledge and his own means of clear and unquestionable proof. As he offered no evidence to the contrary, we are led to the conclusion that he was in the place of his domicile when it was taken possession of by the Federal Army ; that he subsequently crossed the military lines and went into the territory •of the insurgents, where he made the purchase as set forth in the findings. And that brings his case directly within the principles laid down by the Supreme Court in Lapéne & Ferré’s Case, (17 Wall, 602, 9 C. Cls. B., 31.)

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 armies, and was an enemy’s country. While the city of New Orleans was under such control it was a portion of an enemy’s country. When that city was captured by the forces of the United States, the line of non-intercourse was changed, and traffic before legal became illegal. The line was that of military occupation or control by the forces of the different governments, and not that of State lines. This principle was expressly decided in Montgomery’s Case, above cited.”

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. Cls. R., 197; Millar’s Case, 8 C. Cls. R., 407; Montgomery’s Case, 15 Wall., 395, 8 C. Cls. R., 82; Coppell v. Hall, 7 Wall., 542.)

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.

Loeing-, J.,

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 presumed from a fact which is not a crime; and he who alleges a crime must prove it. '

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.  