# Desmare v. United States

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United States Supreme Court
93 U.S. 605
Desmare v. United States
APPEAL from the Court of Claims.
On the 26th of June, 1867, Alphonse Desmare, of New Orleans, La., filed his petition in the Court of Claims to recover the value of five hundred and fifty-six bales of cotton, alleging that, in the year 1863, he was the owner of that number of bales, then at Opelousas, in the parish of St. Landry, La.; that, in April, 1863, said cotton was taken and captured by officers of the United States army, by whom, under the orders of General N. P. Banks, commanding the Department of the Gulf, it was shipped to New Orleans, sold, and the proceeds placed in the treasury of the United States.
The court below found, as matters of fact,--
1. 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 c aimant 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, of afterward, until October, 1862, when it is proved he was in the parish of St. Landry, La., purchasing the 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.
2. 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.
3. Said claimant and one Dupr e, 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 Dupr e. 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 United States treasury.
4. The claimant has failed to prove that any other cotton owned by him was seized by officers or agents of the defendants.
The court thereupon concluded, as matters of law,--
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 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 St. 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.
The plaintiff's petition having been dismissed, he appealed to this court.
Mr. Thomas J. Durant and Mr. C. W. Hornor, for the appellant.
Because the claimant's domicile was in the city of New Orleans before the war, and was not shown by proof to have been changed, the presumption of the court below, that his domicile continued and was 'in that city when the purchases of cotton were made by him within the rebel lines,' &c., is contrary to both the facts and the law. He had his domicile in the parish of St. Landry when he bought the cotton there. It being established that before the war he was a rebel, and still one on Jan. 19, 1866, it is a presumption of law, that during all the intermediate time he remained one.
Probatis extremis praesumuntur media. Domicile is a question both of law and fact. Claimant was, in October, 1862, in the parish of St. 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 St. 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, or the estoppel by an adjudication of a matter in a court of competent, jurisdiction. 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 of the court below. 1 Evans's Pothier, 414; La. Code, 1870, art. 45; Phillimore on Domicile, 61; Murray v. Charming Betsy, 2 Cranch, 64; The Vanus, 8 id. 280 et seq.; The Frances, id. 363; Merlin, Rep., verbo Domicile; Boileux Commentaries Code Nap., vol. i. p. 220, on Code Nap. 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 Rob. A. 167.
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 and October, 1862. In the absence of any proof of the fact that he 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 he was domiciled in New Orleans when the purchases were made by him within the rebel lines.
Such a presumption is certainly not applicable 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 not be found to be 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, on the ground that he was presumably a loyal man, because he had crossed the lines from New Orleans, and 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.
The question is, what is the political, rather than what is the civil, domicile of the claimant when residing in St Landry parish. The simple test, did he 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 quatenus in illo exuere patriam. Whicker v. Hume, 7 H. L. C. 159; Moorhouse v. Lord, 10 id. 282; Holdane v. Eckford, L. R. 8 Eq. 631; Woolsey's Intern. Law, § 168.
For the purpose of capture, property found 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. Lamar, Executor, v. Brown et al., 92 U.S. 187; Scholefield v. Eichelberger, 7 Pet. 593; Johnson v. Merchandise, 6 Hall's Am. L. I. 68; United States v. Penelope, 2 Pet. Adm. 438.
The Court of Claims first presumes, that New Orleans being Desmare's domicile prior to his capture, he remained so domiciled afterwards; and from this presumption draws a consequent presumption, that he must have crossed the line to buy the cotton. But no presumption can be safely drawn from a presumption. Douglass v. Mitchell's Executor, 35 Penn. 440.
War made all the inhabitants of Louisiana enemies of the Union. To this rule there were no exceptions in law, and few in fact. As fast as the territory was reconquered, its inhabitants did not lega ly become loyal, and vested with the capacity to stand in judgment in the Court of Claims, or any other national court. Until pardoned, and their allegiance was renewed, they were enemies. 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, That it counteracts the operations of war. 1 Kent, 66. Both of these elements must concur. Griswold v. Waddington, 15 Johns. 57; United States v. Grossmayer, 9 Wall. 72; Montgomery v. United States, 15 id. 395; Coppell v. Hall, 7 id. 542; United States v. Lap ene, 17 id. 601; Mitchell v. United States, 21 id. 350.
Neither of these elements involved in this case.
Mr. Solicitor-General Phillips, contra.
MR. JUSTICE SWAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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