Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1864-01-01

Such has been tie civil policy Q! the Govern
met ct Washington for the last three years.
Upon another occasion we viii show that It's
military policy ias becn made TO destroy aid
net 10 reconstruct, the un;ol
>1.a>-,-,----
Commonwealth of virginia
for William "A. sa9d'fsr, ,,..
Major j. K. Lewelicn, En-
rolling Officer. -
Il, liz Ciye,ui Court Of Petcrsbary, December
I'm, 1863; 6eEre Judge Nm. T Joynes.--
collier and Donnan .tor petitioner; Jo""
Lyoa for defendant.
OPINION or THE COURT.
The octitioner, who is held by the defend:
ant AS Il conscript, claims to be discharged
upon tho ground that he has furnished sub
ssitutc, in accordance with the not OF Con-
gress and the regulations made in pursuance
Of it by the Secretary of War. ne rr0auccs
certificate OF Captain Camp, OF CompanF Z;
4lst Va. Regiment approved by the Colonel
of the regiment from which it appears that
he did, on tho l4th day of May, 1867 tur-
Fish in said company IN able-bodicd man,
named Henry Conrad, y nonresident of the
State Of Virginia, rs his substitute, who was
accented as such. The petitioner was, Mt
that time. o member 81 Company Z, To Wnlcil
he had been assigned as couscrirt on the
ODD day of April. 1862, from, the militia as
sembled in Norfolk under the proclamation
Of the Governor.
The counsel for the government makes two
INFECTIONS TO the validity Oh the petitioner
substitution
not
who is asserting special privilege, to prove
| that the r,nn Furnished by him as subHti-
! ,4tc was. il, tho language OF the conscripi
net, mot liable for duty" and that he ho.
; failed 70 DO 60. And
! ., That Captain Camp had 10 authority.
under the regulations prescribed by the Be-
eretary Of War, to receive substitute tor tie
petiticner on the 18th Miy, 1892, having al
ready received one for another ils:aber O. his
company during the sam, m"nt!;.
| The petitioner has produced satisfactory
e,idcnce that Hc"tJ Conrad, tic ni"a iur'
nisheI by him As his substitute, vs. u native
F; cf the Kingdom of Prussia; and his counsel
argued that 1t is incumbent On tho de'ehdant
70 prove hy affirmative evidence, that Conrad
had acquired domicll IN the Confederate
! S.otes. So hs 10 be Liable for duty. And one
in lis knowledge, the Bureau of Consumption
Get upon the rule that when substitute Is
shown to be = foreigner by birth, the burden
j. cast upon the government 10 prove that ne
vas dornicled in the Confederate States.
is obvious that, if the Court was bound
r. aG,nt The rules of the Bureau of COnsariE-
ton unon this subject, or was at liberty to do
~ without regard TO its own opinion, the
mere statement of counsel, however respccta-
lie md however entitled to the confidence Of
:ha Cont, could not be re, eired IA evidence
Of those rules. But while the practice of the
Bureau is entitled to great respect, it cannot
! he nernitte.l to control the judgment ct the
/! Court upon n question of Law. L. States vs..
Dickson. l5Ieters, al. The question now
| bef,rc the Court is one Of legal risht---thc
citizen On tie one hand and the government on
the other, insisting on rights under the law,
| ,:1ljch must be ascertained hy the Court from
| the law itself. Besides, the rules of the bu-
roam may be founded on views of policy, or
convenience, or justice. and NOT merely upon
,ie legal rights Of the parties, which can
| aicne he considered by the Court.
/ NAV remark harc, before | proceed with
| rio DISCUSSION Of the question heicre me, that
/ tho conscript act embraces "all white men
| Who arc residents of the Confederate States"
{ n-,d between tho designated uSc,. Is is only
! ueh rs arc not residents who ere exempt from
| ,;,e operation OF the act. The regulations Of
| ,he War Department, however, regard me
! nJcstlon in reference to persons OF t'relgn
! t,irth. found within the Confederate States, as
ere Il dnmicH. upon the idoa as it would
! seem. that residence and d0DiicH are eIulva-
! len: icrms: o., in other words, that 20 person
can 10 properly considered q resident OF the
! Confederate Slater who has not n dorhlr!! IN
those States If pcrson may he resident
| nf the Confederate States who has no cGmicll
here. then, obviously, the question Of dcmicii
is not the proper test of liability tor duty nn'
der the. act of Congress And, rs only such
2erscns rs are not liable for duty under tue
| act can lawfully be received as Substitutes Tor
| those who are, the true inquiry, in order t"
| determine whether person OF foreign b!rth
car he Il lawful substitute, is, not whether nc
IS domic;iel, hu: whether he is resident, IN the
Confederate States; provided, there is any o'i-
! ference between residence ana domic!l.
| il will not be necessary to consider thnt
| ,acs ION in the present case: for the Secretary
! ~ Wur. by ihe construction placed upon the
! act of Congress, restricts the claim oi tho
! l:ayernmsnt upon persons of foreign birth t.
! sul is lave acquired domiril, aud'cnHccd"s
! ,%ot I'll others aGo mot liable for duty
! I'D, even il this could he regarded as y re-
! laz.,;5r Of tie provision Of the act ot Con-
! .".ys, the pc:itinnnr caaros complain Of it
! t.,.- the ,n5st favorable view Of the case for
| HIM is, 20 consider That only SUCH f"rsjGncr5
g, hsvn Grg1irc1 dnuicii are "liable iO' duty,
% that ali Others we're good substitutes under
! f. regulations il torco on the llth May,
1862. >,
II the officer who had received Conrad rs
| fnisstute. had certified that he was q person
! ef foreign birth. who had not acquired
! dou,icil in tic Confederate States it nigh be
insisted. with grea: force, that the f'cts cerli-
lid crsht to te presumed prima .fdc'e to be
! ;,uc, 50 "a to throw upon the Government the
burden os disproriag them. But the cr:'ii-
Get, is silent as to the place ct COrrads birt3,
and a. IL the question Of domicil in the Con-
/ csjcra,s States All that is certified is, that
Conrad is can able bodied man" and TN n
resident CT the State of Virginia" ltis only
from he proof in the cause that Conrad up.
ocars to have been man Of foreign birth;
| aud tie real question is, whether the law will
nTa.ume-in the absence OF other EVIDENCE
;hat O. nerscn Of foreign birth, fuutd in tn"
Confederate States, has q doruieil here, or the
| contrary. it is, thcrsfvre, not so much
orcs,;on 20 (, The burden cf p:o?., aS IL = .
question IS to tho effect CT evidence. The
Evidence is that Conrad was person Of FIR
| e!sn birth, anal that he was in the Contada-
rate States; md the question is, whether from
.hcgc factt, without more, the laH will pre-
sumo that he bad his dnnaicil here.
| K seems 10 me that this question IL settled
hv authority.
, In Bruce vs.. Bruce, in the House of Lords,
reported in 4 note to Bos & Pull .29, Lord
! rhurow, in egp0mnd;ng the law Of donic's,
uses tEis Language: a man being at 4 place
Is primo .tdcis evidence CT his being dom'c'cd
az .hat place, and il lies Oh Those "no sag
o.reryse 70 reb;,t this evidence" And tits
wa; sid il. rosncct 10 2 natiYe Of. Sc3t!and,
who VA, Linda n tl1e tir,s q Is A.ath. 70