A resident of a loyal state, who, after the 17th of July, 1861,
and just after the late civil war had become flagrant, went, under
a military pass of a federal officer into the rebel states, and in
November and December, 1864, bought a large quantity of cotton
there (724 bales), and never returned to the loyal states until
just after that and when the war was not far from its close -- when
he did return to his old domicile, having, during the time that he
was in the rebel states transacted business, collected debts, and
purchased the cotton,
held, on a question whether he had
been trading with the enemy, not to have lost his original
domicile, and accordingly to have been so trading.
At the beginning of the late rebellion, Mitchell, the claimant
and appellant, lived in Louisville, Kentucky. He was engaged in
business there. In July, 1861, and after the 17th of that month, he
procured from the proper military authority of the United States in
Kentucky a pass permitting him to go through the army lines into
the insurrectionary territory. He thereupon went into the insurgent
states and remained there until the latter part of the year 1864.
He then returned to Louisville. While in the Confederate states, he
transacted business, collected debts, and purchased from different
parties 724 bales of cotton. He took possession of the cotton and
stored it in Savannah. Upon the capture of that place by General
Sherman, the cotton was
Page 88 U. S. 351
seized by the military authorities. It was subsequently sold by
the agents of the government. The proceeds, amounting to the sum of
$128,692.22, were now in the Treasury. Mitchell bought the cotton
in November and December, 1864. He remained within the
insurrectionary lines from July, 1861, until after the capture of
Savannah by the arms of the United States.
The Court of Claims was equally divided in opinion as to whether
the claim of Mitchell could be sustained, and accordingly dismissed
his petition. Mitchell then removed the case to this Court by
appeal, assigning for error that on the facts found, the Court of
Claims should not have dismissed the petition, but should have
decided that he acquired a valid title to the cotton.
MR. JUSTICE SWAYNE, having stated the case, delivered the
opinion of the Court as follows:
At the time when Mitchell passed within the rebel lines, the war
between the loyal and the disloyal states was flagrant. It speedily
assumed the largest proportions. Important belligerent rights were
conceded by the United States to the insurgents. Their soldiers
when captured were treated as prisoners of war, and were exchanged
and not held for treason. Their vessels when captured were dealt
with by our prize courts. Their ports were blockaded and the
blockades proclaimed to neutral nations. Property taken at sea,
belonging to persons domiciled in the insurgent states, was
uniformly held to be confiscable as enemy property. All these
things were done as if the war had been a public one with a foreign
nation. [
Footnote 1] The laws
of war were applied in like manner to intercourse on land between
the inhabitants of the loyal and the disloyal states. It was
adjudged that all
Page 88 U. S. 352
contracts of the inhabitants of the former with the inhabitants
of the latter were illegal and void. It was held that they
conferred no rights which could be recognized. Such is the law of
nations,
flagrante bello, as administered by courts of
justice. [
Footnote 2]
While such was the law as to dealings between the inhabitants of
the respective territories, contracts between the inhabitants of
the rebel states not in aid of the rebellion were as valid as those
between themselves of the inhabitants of the loyal states. Hence
this case turns upon the point whether the appellant was domiciled
in the Confederate states when he bought the cotton in
question.
When he took his departure for the South, he lived and was in
business at Louisville. He returned thither when Savannah was
captured and his cotton was seized. It is to the intervening tract
of time we must look for the means of solving the question before
us. There is nothing in the record which tends to show that when he
left Louisville, he did not intend to return, or that while in the
South, he had any purpose to remain, or that when he returned to
Louisville, he had any intent other than to live there as he had
done before his departure. Domicile has been thus defined: "A
residence at a particular place accompanied with positive or
presumptive proof of an intention to remain there for an unlimited
time." [
Footnote 3] This
definition is approved by Phillimore in his work on the subject.
[
Footnote 4] By the term
domicile, in its ordinary acceptation, is meant the place where a
person lives and has his home. [
Footnote 5] The place where a person lives is taken to be
his domicile until facts adduced establish the contrary. [
Footnote 6]
Page 88 U. S. 353
The proof of the domicile of the claimant at Louisville is
sufficient. There is no controversy between the parties on that
proposition. We need not, therefore, further consider the
subject.
A domicile once acquired is presumed to continue until it is
shown to have been changed. [
Footnote 7] Where a change of domicile is alleged, the
burden of proving it rests upon the person making the allegation.
[
Footnote 8] To constitute the
new domicile, two things are indispensable: first, residence in the
new locality, and second the intention to remain there. The change
cannot be made except
facto et animo. Both are alike
necessary. Either without the other is insufficient. Mere absence
from a fixed home, however long continued, cannot work the change.
There must be the animus to change the prior domicile for another.
Until the new one is acquired, the old one remains. [
Footnote 9] These principles are axiomatic in
the law upon the subject.
When the claimant left Louisville it would have been illegal to
take up his abode in the territory whither he was going. Such a
purpose is not to be presumed. The presumption is the other way. To
be established it must be proved. [
Footnote 10] Among the circumstances usually relied upon
to establish the
animus manendi are: declarations of the
party; the exercise of political rights; the payment of personal
taxes; a house of residence, and a place of business. [
Footnote 11] All these indicia are
wanting in the case of the claimant.
The rules of law applied to the affirmative facts, without the
aid of the negative considerations to which we have adverted, are
conclusive against him. 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.
Judgment affirmed.
[
Footnote 1]
The Prize
Cases, 2 Black 687;
Mrs.
Alexander's Cotton, 2 Wall. 417;
Mauran v.
The Insurance Company, 6 Wall. 1.
[
Footnote 2]
Vattel § 220;
Griswold v. Waddington, 16 Johnson 438;
Cooledge v. Guthrie, 8 American Law Register N.S. 20;
Coppel v.
Hall, 7 Wall. 542;
United
States v. Grossmayer, 9 Wall. 72;
Montgomery v. United
States, 15 Wall. 400;
United
States v. Lapene, 17 Wall. 602;
Cutner
v. United States, 17 Wall. 516.
[
Footnote 3]
Guyer v. Daniel, 1 Binney 349, note.
[
Footnote 4]
Page 13.
[
Footnote 5]
Story's Conflict of Laws § 41.
[
Footnote 6]
Bruce v. Bruce, 2 Bosanquet & Puller 228, note;
Bampde v. Johnstone, 3 Vesey 201;
Stanley v.
Bernes, 3 Haggard's Ecclesiastical Reports 374, 437; Best on
Presumptions 235.
[
Footnote 7]
Somerville v. Somerville, 5 Vesey 787;
Harvard
Coll. v. Gore, 5 Pickering 370; Wharton's Conflict of Laws §
55.
[
Footnote 8]
Crookenden v. Fuller, 1 Swabey & Tristam 441;
Hodgson v. De Buchesne, 12 Moore's Privy Council
288(1858).
[
Footnote 9]
Wharton's Conflict of Laws § 55 and the authorities there
cited.
[
Footnote 10]
12 Moore's Privy Council,
supra.
[
Footnote 11]
Phillimore 100; Wharton § 62 and
post.
