
    DESMARE’S CASE.
    (10 Court of Claims R., p. 385; 93 U. S. R., p. 603.)
    Alphonse Desmare, appellant, v. The United States, appellees.
    
      On the claimant's Appeal.
    
    
      Before the rebellion the claimant is domiciled in New Orleans, and a partner in a house doing business there. After the capture of New Orleans he is acting as a Confederate financial agent within their lines, having an official office or place of business there. Tie then buys the cotton in suit. On the trial he does not show a change of domicile, nor of dissolution of the partnership, nor where he was when New Orleans toas captured, nor that he had, previously left the city. The court below holds, that he was still domiciled in New Orleans when he bought the cotton within the enemy’s lines, and that he therefore came within the restriction of the non-intercourse act and acquired no valid title. Judgment for the defendants ; the claimant appeals.
    
    I. Upon the issuing of General Butler’s proclamation, 6th May, 1862, the legal status of New Orleans and its inhabitants became changed. Before the proclamation it was enemy’s territory; after the proclamation the hostile character of the territory ceased. The proclamation was proof of the subjugation of the city and the re-establishment of the national authority.
    II. On the re-establishment of the national authority in an insurrectionary place, evidenced by the proclamation of the commanding general, it became the duty of the inhabitants to obey the inhibition of trade with places still under ban as completely as though they were inhabitants of loyal territory; and this duty extended to those domiciled in the place though actually absent and within the Confederate lines.
    III. A Confederate agent, if domiciled in New Orleans after its capture, could not hold commercial intercourse with persons within the Confederate lines in the place where his official residence was. Such intercourse came within the prohibition of the Non-intercourse Act, (12 Stat. L., 257.) No title was acquired to personal property thus bought which can be asserted in a suit for its proceeds under the Abandoned or captured property Ad. {Id., 820.)
    
      The Reporter if statement of the case :
    The court below found the following facts:
    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, under 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 Treasury agent and sold, and the net proceeds thereof, to the amount of $16,128, are in the Uuited States Treasury.
    The claimant has failed to prove that any other cotton owned by him was seized by officers or agents of the defendants.
    And the court decided as conclusions of law:
    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.
    The claimant’s domicile being in the city of New Orleans, be is presumed to have been there personally until be is proved to be elsewhere; and the claimant not showing that he was absent from the place of his domicile when the city was captured, April 27,1862, it is presumed 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.
    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. Thomas J. Durant for the claimant, appellant:
    It being established that before the war Desmare was a rebel, and a rebel still on January 19,1866, it is a presumption of law that during all the intermediate time he was a rebel.
    
      Frobatis extremis prwsumuntur media. Domicile is a question both of law and fact. Desmare was, in October, 1862, in the parish of Saint Landry, “purchasing cotton and acting as agent of the rebel government.” As such an officer, it is undeniable, he could have no domicile within the Union lines. “ The voluntary residence of the petitioner in New Orleans after the war began would have been a crime, and statute evidence of it.” The moment he took the oath and assumed the duties of an agent of the Confederate government in Saint Landry, his domicile, both political and civil, in that parish, became fixed eo instanti.
    
    This is a presumptio juris et de jure. It is as conclusive as the bar of a statute of limitation, (prescription,) or the estoppel by an adjudication of a matter in a court of competent jurisdiction, (res judicata.) No court will allow the contrary proof to be made. In the case of a public officer, neither the fact nor the intent of a domicile elsewhere could prevail over this' presumption, which differs radically from the presumptions invoked, against us in the opinion of the court below. (1 Evans’s Poth-ier, 414; Louisiana Code, 1870, art. 45; Phillimore on Domicile, 61; Murray v. The Charming Betsy, 2 Oranch, 64; The Venus, 8 Oranch, 280, et seq.; The Frances, 8 Oranch, 363; Merlin Rep., verbo Domicile; Boileux’s Commentaries Code Nap., Yol. 1, 220, art. 107.)
    “ It cannot be doubted that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties.” (The Vrow Anna Catharina, 5 C. Rob., *167.)
    We-have showr^that the petitioner was involved in the universal disloyalty of the South from the beginning of the war up to 19th January, 1866, and had his domicile, political and civil, in rebel territory during all that time, except for the interval between April 27, 1862, and October, 1862. In the absence of any proof of the fact that Desmare was domiciled in New Orleans during this period, the lower court presumes, because he was there domiciled before the war, and because this domicile was not proved to have been changed, it must be presumed to have continued; and hence Alphonse Desmare was domiciled in New Orleans when the purchases were made by him within the rebel lines.
    We understand this presumption, which the lower court applies to claimant’s domicile, to be applicable to ordinary times and not to the exceptional state of war. In a prize court it cannot be doubted that in an investigation into the legality or illegality of a trade carried on in an alleged violation of the laws of war, and where the proceedings were in rem against cotton, as in this case, Desmare’s domicile would be found to be in rebeldom, and not under the flag of the Union. Politically, he would be decreed a Confederate by the courts of the Confederate States; and the idea that the Confederacy could have confiscated this cotton before its capture by the United States forces, because Desmare was presumably a loyal man, because he had crossed the lines from New Orleans, and because he had renewed his allegiance to the Union, is purely illusory. And yet this result flows as naturally from the facts found as the legal conclusions drawn by the court below; and both are contradictory and untrue.
    We understand that the question is, what is the political rather than what is the civil domicile of Desmare when residing in Saint Landry Parish? It seems to our minds that the simple test, did Desmare abandon the Union and cast his lot with the rebels, if applied in this case, would be quite conclusive. His acts and doings manifest a clear intent in him quatemis in illo exuere patriam. (Whicker v. Hume, 7 H. L. C., 169 ; Moor-house v. Lord, 10 H. L. O., 282; Holdqne v. Helcford,, L. R., 8 Eq., 631; Woolsey’s Inter. Law, § 168.)
    
      “For the purpose of capture, property fouud in enemy territory is enemy property, without regard to the status of the owner. In war, all residents of enemy country are enemies." The time is not so essential as the intent. (J¿amar v. Broion, 92 U. S. R,, 187; Scholefield v. Fichelberger, 7 Peters, 593; Johnson v. Merchandise, G Hall’s Am. L. I., 68; The United States x. Penelope, 2 Peters’s Adm. Dec., 438.)
    The Court of Claims first presumes that New Orleans, being Desmare’s domicile prior to its capture, Desmare remained so domiciled afterward; and from this presumption draws a consequent presumption that Desmare must have crossed the line to buy the cotton.
    But no presumption can be safely drawn from a presumption. (Douglass v. Mitchell's Ex., 35 Pa., 440.)
    War made all the inhabitants of Louisiana enemies of the Union. To this rule there were no exceptions in law, and very few, indeed, in fact. As fast as the territory was reconquered the inhabitants of this reconquered portion did not legally become loyal and friends of the Union, and vested with the capacity to stand in judgment in the Court of Claims or any other national court. Until pardoned and their allegiance renewed they were enemies. Generally they could not sustain personam standi in judicio until “ within two years after the suppression of the rebellion,” i. e., within two years from August 20, 1806, although in special cases Executive pardon and" amnesty might have conferred the ability to sue at a somewhat earlier period. Now the essential elements of illegal traffic in time of war are: 1st. That it takes place between “members of the two nations respectively in hostility to each other.” 2d. And that it counteracts the operations of war. (1 Kent, 60.) Both of these elements must concur. In Griswold v. Waddington, (15 Johns., 57,) the dealing was between an American citizen and a British subject. In The United States v. Grossmeyer, (9 Wall., 72,) the dealing was between a citizen of New York and a citizen of Georgia. Montgomery v. The United States, (15 Wall., 395,) the dealing was between a neutral British subject, domiciled in New Orleans within the Union lines, and a rebel and his property, both within the Confederate lines. (Ooppell v. Hall, 7 Wall., 542; The United States v. Lapene & Ferró, 17 Wall., 601; Mitchell v. The United States, 21 Wall., 350.)
    
      An examination of all tbe cases will show that the parties claiming had in view the introduction of the rebel 'property into and within the lines of the Union army, while in Des-mare’s case neither such a fact nor such an intent is found by the lower court, and, indeed, cannot be reasonably ascribed to him.
    
      Mr. Solicitor-General Phillips for the United States, appellees :
    It is elementary law that the original domicile remains until changed animo et facto. The case, upon analysis, seems to be one in which the appellant has been called upon (by the presumption of law that his original domicile at New Orleans continued to exist in October, 1802) to introduce rebutting testimony. The effect of such testimony is matter exclusively for the court below. That court has pronounced, substantially, that it is not sufficient to enable them to find the fact otherwise than as presumed by law. If they have erred in this, it is an error of fact, not of law.
    It seems evident that the law presumes that the app ellant went from New Orleans to Saint Landry immediately before the time at which he was first found there, i. e., that he arrived at Saint Landry in October, 1862, having left New Orleans a few days before, or at soonest in September, 1862. If the appellant could have produced proof to the contrary of this presumption he would have done so.
    He left New Orleans, therefore, after the Federal lines had inclosed it, for the purpose (as would in any case be presumed, and as here he instructs his counsel to say) of pursuing his bent as a rebel.
    Upon this it is to be remarked that change of domicile is a' lawful transaction. It seems, then, that migration for an unlawful end will not, for the purpose of relieving the party from a penalty, be regarded as involving change of domicile, before tribunals administering the law so broken. At least that such must be the case where such unlawful element is of so grave a character as here, where the migration was for the purpose of facilitating treason, and to overturn the law now appealed to, in the place so left. In order to a change of domicile, the act relied upon for such effect must be consistent with the law of the place abandoned; not a mere physical change of abode, but a change accompanied by a state of mind that such law respects. That is not the case here. The act of departure involved fraud, and the law will attribute thereto the consequences of fraud, i. e., will treat it as null whenever advantage thereof is sought before its tribunals.
    Inasmuch as he left New Orleans in September, 1862, after it had reverted to the United States, and for the purpose of taking part in a rebellion then flagrant, the case, according to the hypothesis of the appellant, is the same as if in time of war between the United States and Mexico he had to the same end left New Orleans for Vera Cruz. The parallel seems (as against the appellant) to be exact, for it is conceded that if he had stayed in New Orleans he would be presumed, conclusively for every purpose of this cotton transaction, to have been loyal, and could not have unveiled the secrets of his heart to show the contrary. How, then, is it that he acquired the right of being presumed, for his own advantage, to have been disloyal 1 The answer must be, by some act which changed a presumed state of .loyalty into a presumed state of disloyalty. To which the fatal objection lies, that no such act can confer any right that a court of the United States is bound to respect.
    But this does not present the whole strength of the case against the appellant.
    The evidence of fact and intention relied upon by the appellant to rebut (1 Taylor Ev., 208) the presumption that his domicile was still at New Orleans in October, 1862, must show something more than that by the change he had cast in his lot with the rebellion, i. e., with a cause as passing and unstable as clouds at sunset. He who has taken an oath of office to Great Britain has given evidence of his union with a society that is permanent. The courts of the United States cannot, for his advantage, admit this to have been the case with a former citizen of theirs who took office under the Confederate States, for that was a government of mere force, and therefore, in the nature of things, transitory. The connection with it, therefore, which the appellant had at Saint Landry, in October, 1862, is, in the words of Lord Thurlow, to be u referred to that occasional and temporary purpose ” which prevents mere change of place from affecting a pre-existing domicile. (Bsmpde v. Jo hi-stone, 3 Vesey, 198.) This consideration is one entirel y aside from the guilt or innocence of the change, proceeding solely upon an absence of all evidence that such change was for a purpose not occasional and temporary.
   Mr. Justice Swayne

delivered the opinion of the court:

The judgment of this court in Mitchell v. The United States, (21 Wall., 353,) is decisive of this case. It is unnecessary to repeat what was there said. The subject of domicile in some of its aspects was carefully considered. We shall avail ourselves of its rulings without again ' specially referring to it. The findings of the Court of Claims furnish the facts we are to consider, and we can not look beyond them. For the purposes of this case they import absolute verity and conclude both parties.

Before the breaking'out of the late civil war the appellant was domiciled in the city of New Orleans. He was a member of a commercial partnership there. There is no proof of any change of domicile subsequently. A domicile once existing continues until another is acquired. A person cannot be without a legal domicile somewhere. Where a change of domicile is alleged, the burden of proof rests upon the party making the allegation.

The cotton covered by the claim in the present' case was all purchased by the appellant in the parish of Saint Landry, in the State of Louisiana, between the 1st of October, 1862, and the 1st of April, 1863. That territory was then within the rebel lines. The appellant was there acting as the agent of the rebel government in exchanging its bonds for Confederate notes. His office, as such agent, was at Opelousas, in that parish.

On the 26th of April, 1862, Admiral Farragut reached New Orleans with his fleet. On the following day he demanded of the mayor the surrender of the city. No resistance was offered. On the 1st of May transports conveying the troops of General Butler arrived. On the following day their landing was completed. The military occupation of the city by the United States then began, and it continued without interruption down to the close of the war. On the 6th of May the commanding general issued h proclamation, (prepared and dated on the 1st,) whereby it was declared that “ all rights of property of whatever kind will-be held inviolate, subject only to the laws of the United States.” The Non-inter course Act, July 13, 1861, (12 Stat. L., 257,) and the President’s proclamation of the 16th of August, 1861, (12 Stat. L., 1262,) of the 12th of May, 1862, (12 Stat. L., 1262,) and of the 2d of April, 1863, (13 Stat. L., 731,) need not be particularly adverted to. They have been so often considered by this court in previous cases that the public and the profession are familiar with them. The parish of Saint Landry was also subjugated by the arms of the United States in April, 1863. The cotton in question was thereupon seized and subsequently sold, and the proceeds paid into the Treasury of the United States, where they remain. Those proceeds are the subject of this litigation.

Upon the issuing of General Butler’s proclamation the legal status of New Orleans and its inhabitants with respect to the United States became changed. Before that time the former was enemies’ territory and the latter "were enemies, in all respects as if the pending strife had been a public war between the United States and a foreign belligerent, and the city had been a part of the country of the enemy, although the conflict was, in fact, only a domestic insurrection of large proportions. The city was blockaded, and the property of its inhabitants, wherever found at sea, was seized, condemned, and confiscated as prize of war. General Butler’s proclamation was proof of the subjugation of the city and the re-establishment of the national authority. The hostile character of the territory thereupon ceased and the process of rehabilitation began. The inhabitants were at once permitted to resume, under the regulations prescribed, their wonted commerce with other places, as if the State had not belonged to the rebel organization. (The Venice, 2 Wall., 258.) But they were clothed with new duties as well as new rights. It was a corollary from the new condition of things that they should obey the inhibition of trade with the localities still under the ban of the President’s proclamation of the 16th of August, 1861. In this respect they were on the same footing with the' inhabitants of the loyal States abiding in such States, and with the citizens of such States and foreigners then sojourning in New Orleans. It was not a penal infliction, but was intended for the benefit of the nation in the prosecution of the war. It was a burden'incident to the effort the Government was taking to put down the insurrection. It was the plain duty of the appellant to obey the injunction. Instead of doing so, while'jhis domicile, in the view of the law, was and continued to be at New Orleans, he went or remained within the rebel lines, engaged actively in the service of the rebel government, and was so engaged when and where, as he alleges, he acquired the ownership of the cotton in question.

His contracts for the cotton were clearly illegal and void, and gave him no title. Such has been the ruling of this court in an unbroken series of adjudications. (Coppel v. Hall, 7 Wall., 548; United States v. Lane, 8 id., 185; United States v. Grossmeyer, 9 id., 72; United States v. Montgomery, 15 id., 395; United States v. Lapine, 17 id., 602; Mitchell v. United States, 21 id., 350.)

The result is the same as if the purchases had been made by an agent of the appellant, sent by him from New Orleans, instead of having been made by himself in person.

To hold otherwise would give a premium to a law-breaker, and involve the anomaly of conceding to the offender rights and immunities denied to all the citizens of the loyal States.-

The judgment of the Cour.t of Claims is affirmed.  