Letter Addressed to Hon. Wm. C. Rives,
by John H. Gilmer,
on the Existing Status of the Revolution, &c.:
Electronic Edition.
Gilmer, John H. (John Harmer), b. 1812
Funding from the Institute of Museum and Library
Services
supported the electronic publication of this title.
Text scanned (OCR) by
Gretchen Fricke
Text encoded by
Jill Kuhn and Natalia Smith
First edition, 1999
ca. 80K
Academic Affairs Library, UNC-CH
University of North Carolina at Chapel Hill, 1999.
Call number 2752 Conf.
(Rare Book Collection, UNC-CH)
Any hyphens occurring in line breaks have been
removed, and the trailing part of a word has been joined to
the preceding line.
All quotation marks, em dashes and ampersand have been transcribed as
entity references.
All double right and left quotation marks are encoded as " and "
respectively.
All single right and left quotation marks are encoded as ' and ' respectively.
All em dashes are encoded as --
Indentation in lines has not been preserved.
Spell-check and verification made against printed text using Author/Editor (SoftQuad) and Microsoft Word spell check programs.
Library of Congress Subject Headings, 21st edition, 1998
LC Subject Headings:
Confederate States of America. Army. Maryland Artillery Battery,
1st.
Military discharge -- Confederate States of America.
Military law -- Confederate States of America.
Civil rights -- Confederate States of America.
Virgnia -- History -- Civil War, 1861-1865.
Confederate States of America -- Politics and government.
2000-06-26,
Celine Noel and Wanda Gunther
revised TEIHeader and created catalog
record for the electronic edition.
1999-10-04, Jill Kuhn
finished TEI-conformant encoding and final proofing.
1999-10-04, Jill Kuhn
finished TEI/SGML encoding
1999-09-24,
Gretchen Fricke
finished scanning (OCR) and proofing.
LETTER ADDRESSED TO HON. WM. C. RIVES,
BY
JOHN H. GILMER,
ON THE
EXISTING STATUS OF THE REVOLUTION, &C.
RICHMOND, NOVEMBER 1, 1864.
Honorable William C. Rives:
SIR,--You have the honor to represent the Albemarle district in the Congress of
the Confederate States. That body is about to meet under the most appalling
circumstances. The period has now arrived in Virginia which challenges the
honest and fearless efforts of her ablest and best men to prevent the most
calamitous results to her people. Her destiny, as a sovereign State, hangs suspended
between two conflicting governments, whose rulers seem actuated more by blind
passion than influenced by enlightened reason; who seem to have grasped and
held the reins of power that they might oppress the people, destroy the individuality
of the States, and crush individual rights under the iron heel of a military despotism,
to the utter subversion of constitutional law and the extinction of all true manhood.
These are strong terms. But are they not true? As to the Federal government
there can be no question; it stands outlawed before the civilized world;
stereotyped in its own self-pollution. Let us review the brief history in a few
prominent points of the Confederate government, and test it by the guage of the
laws, and weigh it in "the balances of the constitution." Empty words and vague
implications are now useless. History is her own best expounder. We live in
the burning light of historic despotism, while we profess to worship at the "altar
of freedom." Deeds speak out, and will not yield to soft appliances, or be glossed
over by hollow pretensions. The representative who now allows himself to be
hoodwinked and muzzled is worthy of the fate which awaits him, and must soon
overtake the people and States if "a bit is not put in the mouth of tyranny."
I will not, sir, disguise the fact that I thus address you because of your recognized
ability, your ripe statesmanship, your enlarged experience, your advanced age
and your personal familiarity with those great men of the past who tutored
you in "the science of free government;" because you are the representative of
the Albemarle district, and reside in that noble old county where lie the bones
of my revered ancestors, and where I first learned the lessons taught by the
"great apostles of liberty." You know me, sir; you knew my ancestors. With
that knowledge you will at least do me the justice to admit that my motives are
pure, as my object is honorable. No true son of Albemarle can ever fear to
plead the cause of constitutional freedom and true manhood even before a nation
in arms.
We are in a death struggle for liberty, and shall we be slaves to the agent
which we delegated to hold the reins and guide us in the storm of revolution?
Shall we not protect the constitution from the vandal hands of those who seek
its destruction? Are we to barter all for the poor privilege of choosing masters?
Are the laws to prevail, or are we pliable minions of executive and ministerial
self-will? Is Virginia a sovereign State or a vassal of Confederate dominion?
Is the military or civil law to prevail? Are all courts to be closed, all remedies
annulled, and every vested right placed at the disposal of the executive and his
ministers?
These are not idle questions, as I shall show before I close this letter. I shall take
care to "speak by the card," nor will I write a word which cannot be "vouched by the
record." The naked truth is far too appalling to need the slightest embellishment. It
stands forth recognized by all men who are not blinded by passion or swayed by self-interest. It hangs "like the pall of death on the warrior's shield." It colors every view
and disfigures every aspect of the "political horoscope." It has no parallel, save in the
Lincoln dynasty, from which we are seeking to escape.
There is, sir, one other reason which induces me to address you this letter.
You, unfortunately for the country, I will not say for your own great fame, advocated,
at the last session of Congress, the suspension of the writ of habeas corpus. In that
position I fear you inflicted a severe blow on the main pillar of
all constitutional government. The case which I shall furnish you with is an
unanswerable fact, which no eloquence can dislodge; a conclusive deduction, which
no sophistry can weaken. It will disclose the vital importance of always preserving
sacred that shield to personal liberty without which civil liberty is a
mere shadow. It is not to be disguised that this grand bulwark of civil liberty
has been sported with in this revolution as though it were an ordinary and unimportant
remedy--to be allowed or denied with as little regard to consequences
as though it were a worthless garment, to be thrown off and resumed with as
little concern as a thoughtless lad would his threadbare overcoat.
The case to which I refer is given in full at the close of this letter. As a
Virginian, it challenges your profound consideration. As a statesman, it merits
your deep solicitude. As a patriot, it appeals to your highest impulses. As a
representative, it addresses itself to your enlarged experience. Ponder over it,
sir, in its ample developments, and tell me if it does not indicate a sad state of
ministerial oppression and executive neglect? Where is the patriot who will
oppress or neglect the veteran and war-worn soldier? Where the statesman
who will countenance the deliberate violation of the laws? Where the representative
who will allow the sanction of his own legislation to be sported with
as a worthless injunction? Where the Virginian untutored in the art of tyranny
or unschooled in the appliances of fraud who will recognize the right of any
power to violate the solemn compacts of Virginia? What does this case (consider
it closely) disclose? Does it or not establish the fact that the Secretary at
War has accomplished all this? Does it or not show that Mr. Seddon has assumed
to violate this compact of Virginia? That he deliberately refused to
appeal, as directed by the President, to the law of the case? Does it or not
show that in this high neglect of an imposed duty the Secretary at War has been
sustained by the President, whose directions he disobeyed?
But you may ask why I thus publicly bring this case before you at this time? I
assure you, sir, I do so for no idle or improper purpose. The motives which actuate
me are pure, however unpleasant the subject matter. You are a ripe statesman, and
familiar with the thoughts and writings of that great man, Edmund Burke. In his letter
to "a member of the National Assembly " he uses these words: "there is no safety for
honest men but by believing all possible evil of evil men, and by acting with
promptitude, decision and steadiness on that belief." Again, in his "Reflections on the
Revolution in France," "Better be despised for too anxious apprehensions than ruined
by too confident security." And those beautiful words and noble thoughts which I
heard you recite in your masterly style in your unfortunate advocacy of the repeal of
the writ of habeas corpus last session.
"But what is liberty without wisdom and without virtue? It is the greatest of all
possible evils, for it is folly, vice and madness, without tuition or restraint. To make a
government requires no great prudence. Settle the seat of power; teach obedience, and
the work is done. To give freedom is still more easy. It is not necessary to guide. It
only requires to let go the rein. But to form a free government--that is, to temper
together these opposite elements of liberty
and restraint, in one consistent work, requires much thought, deep reflection, a
sagacious, powerful, combining mind." " Rage and phrensy will pull
more in half an hour than prudence, deliberation and forethought can build up
in an hundred years."
I design no flattery, sir, when I appeal to your "reflecting, sagacious, powerful,
combining mind." We are in a deadly strife, with an unscrupulous and revengeful foe.
We are in war, a fearful and bloody war, fighting for constitutional liberty as states,
and vested rights as individuals. Executive and ministerial oppression, in violation of
chartered franchises, caused this war, and justifies this revolution. To escape official
and governmental oppression, we can well afford to bequeathe this war, with its
sacred trusts, to our posterity. But if we are to be oppressed without law and against
law, then, of all things imaginable, this war is the most needless occurrence of the nineteenth
century. It is not only needless, but it is cruel and sacriligious. This, sir, is a sentiment
deeply rooted in the hearts of the people; it is ineradicable, pervasive--stronger
than the love of life. We fight for state independence and individual vested rights.
Deprive us of those inestimable blessings, and we are the slaves of an irresponsible
power, as hateful as it is despicable.
To quote once more from Burke--"In all mutations (if mutations must be)
the circumstance which serves most to blunt the edge of their mischief and to
promote what good may be in them, is, that they should find us with our minds
tenacious of justice and tender of property." What maxim could be more
applicable, more instructive, more admonitory?
In this spirit, and under such lofty sentiments, I ask you to consider the case now
brought to your notice at the end of this letter. What "property" is more valuable or
more sacred than the vested right of the freeman, under a specific contract, to
exemption from military or ministerial oppression? What oppression more galling to
the freeman than to be denied his legal franchises, without the semblance of law to
sustain the denial? And yet, when you come to read this case, and comprehend all
of the facts and circumstances attending it, you will discover that, in the face of the
solemn judgement of the court the adjudicating principle, each of these veteran,
war-worn soldiers, whose character, worth and position are not over-drawn in my
argument, was required to sue out his individual writ in order to avail himself of
the operation of the adjudication. And yet we profess to be waging this war for the
protection and enforcement of individual vested rights?
But you may ask why again agitate this question? The answer is at hand. Because
this flagitious violator of the adjudicated rights of the soldier is still in office,
unrebuked, unchecked, and as avaricious of the illegal exercise of unauthorized power
to the oppression of the soldier as ever. This fact stands out prominent, and is
suggestive of reflections which must press themselves
with great force upon every sound thinker and true lover of constitutional liberty. Of
all men, the soldier who fights for liberty is entitled to the blessings of legal protection.
It is with this view that I have addressed you, sir, this letter, and with it
communicated the entire case. It is proper that the case, as it rests on the
adjudication of the Confederate court, should pass into the hands of Congress.
And in thus communicating it, it is pertinent to enquire, whether the judgment
of a Confederate court, upon a Confederate law, is inferior to the mere official
whims and ministerial pertinacity of the Secretary at War? Is the Judiciary to be
subordinated to the mere volition of the Secretary at War? If not, are the parties,
benefitted by the principle thus adjudicated, only to derive the benefit of the
adjudication through the mandates of the court, at ruinous expense, in each case? Is
not the Secretary at War as much bound by the adjudication as the soldier? If so, by
what authority, and under what color of right, is the soldier to be held until released,
by judgment, in personam? These are enquiries which I shall not undertake to answer.
I respectfully submit them for your enlightened consideration, as an experienced,
patriotic, ust legislator. The question is not, how many soldiers we shall have? but
whether all the adjudicated rights of the soldier shall be respected? and if not, what is
the proper remedy against the officer who disregards them? The strictest discipline
in the army is absolutely necessary. The soldier must obey the orders of his superior,
implicitly and without qualification. But must not the
Secretary at War obey the law? respect adjudicated rights? The higher the officer, the
more sacred the imposed duty of obedience to the law. The member of the Cabinet
who seeks to extinguish the light of the law, is indeed a poor and dangerous worshiper
"at the shrine of liberty." The Secretary at War who disobeys the injunctions of the
President, and neglects the mandates of the Judiciary, is setting an unworthy example
to Generals under his authority. EX PEDE HERCULEM.
But there is yet another and higher view of this case, which merits your
consideration. It points to the "inner temple of the altar," and is suggested by the
inquiry, "What, in these cases, would have become of the rights of these soldiers, but
for the writ of habeas corpus?" This renders necessary a brief review of the position
occupied by the Administration on this important and vital question. I respectfully
direct your attention to it. It is admonitory and suggestive. It is important and
instructive, even to you, sir, to review the acts of the authorities, as well as the
deliberations of Congress, on this question. None of us are too old to learn, and none so
wise that we may not derive edification even from our own reflections, when
conducted in the proper spirit. It is only by degrees that the atmosphere becomes
impregnated, particle by particle, with the poisonous malaria: so it is by
degrees--here a slight move, and there a cautious and stealthy step--that the
goal of tyranny is reached. "Eternal vigilance is the price of liberty."
Now, sir, with your accustomed sagacity, read General Orders, (army) current
series, 1862, Nos. nine, eleven, fifteen, eighteen, twenty-one, thirty-three,
thirty-five, forty-two, fifty-five, fifty-six and sixty-six. Read them,
consecutively, and your mind will stand aghast at the concrete evidence of absolute,
arbitrary, irresponsible, tyrannizing dominion over the civil rights of the people,
the courts, and personal franchises. No darker page rests, in its muffled gloom,
on the history of the French revolution. You will discover all civil remedies
suppressed, the courts closed, except in such cases as they are "permitted" to
sit by military orders.
What, sir, would WASHINGTON have thought of such orders? What, sir,
would Wythe and Pendleton, Marshall and Carr, Barbour and Daniel have
thought of such meagre "permissions?" What would Henry and Lee, Bland
and Madison, Jefferson and Randolph, Monroe and Taylor, have felt under such
mandates? Where is the spirit of our ancestors? Where the genius of our
ancient institutions? You form, as it were, a link, a precious and cherished
link, between those great men and the present generation. It is a link of
"choice gold"--let it not be alloyed, in the furnace of heated passions, which
should but heighten its quality and purify its materials. Look back upon the
past. Cast a hopeful glance at the future, and ponder these weighty words of
your favorite author, Burke: "A spirit of innovation is generally the result of
a selfish temper and confined views. People will not look forward
to posterity, who never look back to their ancestors." Let not Achilles retire
to his tent. The battle is at hand, in which reason
must overcome passion, wisdom must subdue phrensy, sanity must be restored, or
all is lost. The people mourn, the State trembles to her foundation. The sentiment of a
lofty patriotism burns in every bosom as brightly as ever; but the mad rule of red
republicanism at the South, and black republicanism at the North, like the "daughters
of the horse leach," cry out for dominion, for absolute sway, over constitution, laws
and people. Is there no remedy? Are the States doomed? the people enslaved?
Look now, sir, at General Order No. thirty-one, current series, 1864. What a
lesson that teaches to Virginia? Ponder well its provisions, its mandates, its chains,
forged by hasty legislation, to fetter the will and manacle the action of a proud, high-souled, brave people, who prefer death to dishonor, the grave to political serfdom!
Are we fighting to sustain one tyrant against another? Are
sovereign States to bow down, in the dust, to the imperial will of their agent--created, endowed with a borrowed life, that it might impart fresh vigor to confederated
vitality? Is there no "breathing time to reason," in which the darker
passions shall be subdued? Surely not, if the reign of terror is to be protracted, the
one-man-power still enlarged, extended, individualized. Is all social
existence to be merged into camp life, and the very graves of our ancestors to
be the battle-ground for power, and not for right? for absolutism in government,
and not constitutional restraints upon government? Are we a betrayed
people? enslaved States? Is the will of the Secretary at War to be the law of
the land? Is his mere volition to silence the laws, fetter the courts, enslave the
citizen? These questions arise from the case reported, and the orders quoted,
and must be answered. If any one is so lost to a sense of the existing exigences
of the country, as to answer them in the affirmative--and the past is to
be re-enacted, in the re-adoption of similar acts and orders--he who will consult
the "oracles of the dead" will read this significant question--" Is it not time
for Virginia to look to her colors and close her columns?"
But, sir, your enlarged experience, your ripe statesmanship, your profound
sagacity, will discover the remedy. It is in Congress. It is at hand. Curb
executive power; restrain it within its constitutional limits; rebuke ministerial
presumption; manifest the power of the law, and re-kindle, by legislative
energy its well nigh extinguished spirit, in the confidence of the people. Let
them feel assured that the laws are wise, just, constitutional, and that they shall
be fairly and scrupulously executed; that the Confederacy is not a grand prison-house, over which the Secretary at War presides, in the gloom of an intellect
obscured by an official idiosyncracy, equalled only by the selfishness of his policy.
Teach him to realize that the War Department is under Congressional supervision,
and held in trust for the benefit, not the oppression, of the people and
States. Teach him that law is over him, and not he over the law. Teach him
that the army needs moral as well as physical power; and that when a petty
tyrant, like him, seeks to rule against law, the "spirit and genius of the law"
will rebuke him, and check him, and subdue him. Teach him that the Judicial
and Legislative Departments are real existences in the Government, and not the
mere shadow of a withered substance. In a word, sir, restore the spirit of the
Constitution; re-invigorate the genius of the revolution, by shielding the liberty of
the citizen, and protecting the vested rights and adjudicated status of the soldier, and
he will protect and save STATE SOVEREIGNTY.
This revolution does not move in a circle, of which the Secretary at War is the
centre. It is deep-laid in its foundations, pervasive in its spirit, widening and
strengthening in its influence. It rests on proud, sovereign, independent
States, who "are masters of the position." No puny arm can control it. Its
motive power is the will of the people; its true test, the innate power of the
States; its object, anything but man-worship and the one-man power; and woe
betide the functionary who grasps at arbitrary power.
You are thoroughly versed in the "philosophy of history." Its teachings are
familiar to your well-stored mind. It would be mere pedantry for me to recite
illustrations. I may however, ask you one question, in conclusion. If our
forefathers, situated as they were, could erect a new temple of liberty in the
wilderness, cemented with their blood, and consecrated by the god-like spirit of
WASHINGTON--why shall Virginia bend the knee and bow the head to any
earthly authority, North or South, which seeks the demolition of her "ancient
prerogatives," more sacred than the glittering diadem in any kingly crown?
I now, sir, call your attention to the cases refered to, and commend them to
your consideration.
RICHMOND, AUGUST 25, 1864.
To His Excellency President Davis:
SIR:--I have the honor to address you, as counsel for twenty-nine members of the
First Maryland Artillery, Capt. Wm. F. Dement.
These men enlisted, as citizens of Maryland, for a specified and agreed period.
They have faithfully performed their respective engagements, as I am informed
and respectfully asked their discharge. The matter was referred, in the regular way, to
the Honorable, the Secretary at War, for instructions. He, I am informed, refused to
discharge these men, and directed that they should be retained in military service,
under his orders.
From this ruling, I am informed, Capt. Dement respectfully appealed to your
Excellency, some time since, enclosing the original papers, with the endorsement of
the officers in command and the Honorable, the Secretary at War, from which, as
yet, nothing has been heard.
In this position of the matter, I am retained as their counsel. Under which
circumstances it is made my duty, as a preliminary step, to possess myself of the
papers placed in your hands.
May I be allowed, most respectfully, to suggest that, if not, in your opinion,
directly adverse to sound policy or accredited administrative will, it would be
advisable to discharge these men, without a resort to their ascertained legal remedies?
It will not, I hope, be regarded as psesumptuous in me, to express the opinion that
they are, in law, entitled to a discharge; nor will this respectful expression of opinion,
it is hoped, be deemed in the light of any reflection on the ruling of the Honorable, the
Secretary at War.
There are, however, I respectfully suggest, certain legal features involved in
this subject-matter of investigation, from the court discussion of which I would,
at this particular period, be most gladly relieved by your ordering the discharge
of my clients.
If, in your wisdom, you sustain the ruling of the Honorable, the Secretary at
War, in this matter, I very respectfully ask that you will, at your early convenience,
enclose the original papers to
Very respectfully, your obedient servant,
JOHN H. GILMER.
To this letter no reply was received. And the writs were issued, and the following
proceedings had:
To the Editor of the Examiner:
SIR,--In the local reports in the Examiner of the Maryland cases which I argued
in Judge Halyburton's court, it has been stated that my clients were discharged
because they were Marylanders. This is a mistake. It should be
corrected to prevent serious misapprehension. I send you a copy of the points
of my argument, with the opinion of the learned judge who adjudicated the cases.
You will please publish them and send your bill to me. Judge Halyburton is
perhaps the most learned and accomplished Confederate judge on the bench.--For patriotism, lofty integrity and sterling merit, he has not his superior on the
continent. Pure as he is learned, patriotic as he is firm and conscientious, his
judgment in these cases is a full guarantee to the country that my clients are
clearly entitled to their discharge on legal and constitutional grounds; and this
fact should not be misapprehended or misapplied.
Respectfully,
J. H. GILMER.
Notes of Argument Delivered in Judge Halyburton's Court by John H.
Gilmer, in Reply to the Argument of Mr. Sands, in the Cases of J. H. Briscoe
and Others, Marylanders.
May it please the Court: Before I proceed to answer the very ingenious, able
and eloquent argument of my learned friend, it is proper that I should notice
particularly one remark which fell from his lips, I hope, inadvertently.--The learned
attorney said, in his concluding remarks, that "any other government but ours would have
resisted these applications."
Sir, these were strong, significant words, coming from the legal adviser of
this court, with his official robes around him. They awakened feelings in my
bosom which I find it difficult to suppress. I feel that I stand in the presence of,
and before, an august tribunal, where all passions are silenced, all prejudice
hushed, all power
subdued, by the "still small voice" of justice, emanating from that source
which awes into subjection every authority not derived from the law and
sanctioned by the constitution. There is no power on earth which can
rightfully silence the mandates of this court, and to RESIST them is treason
against the constitution and open rebellion against the laws. When your
judgment in these cases shall have been announced, it will be the law of the
land; and there is no power which can resist it. Though it falls in the mild and
modest tones of enlightened wisdom, soft and pure as the dew of heaven, it is,
sir, more authoritative than "an army with banners," more conclusive than all other
orders combined; and it cannot be resisted.
But, sir, it is a melancholy fact, made manifest in the evidence before this court, that
the Secretary at War has, at every point, in every aspect, and with every conceivable
means at his disposal, up to this point, resisted these applications. Yea , sir, he has
gone father--he has disregarded the expressed wishes, put aside the written directions
of the President as to the disposition and control of these cases. This I say "more in
sorrow than in anger." His statement here in court in explanation of his failure to adopt
the suggestions and act in accordance with the directions of the President, I regret as
much as I do the non-compliance itself. I am sure the honorable Secretary did not
intend what might be inferred from his explanation--to put the weight of his and Judge
Campbell's opinion as to the law in opposition to any anticipated reasoning and
authorities which I might, in my poor way, adduce and offer for your consideration;
much less could he have designed to forestall the judgment of this honorable court.
Be that as it may, I can only say that, however learned in the law, high in
official position, and infallible in military literature, those eminent gentlemen
may be, their opinions, as now made known, are only persuasive; they have no
binding effect; they possess no inherent virtues which entitle them to that high
consideration and ascertained legal measurement to which the law is entitled,
as it stands expounded, declared, illustrated and enforced, on the pages of
reported cases, binding even on this court, because they are adjudicated.
You and I, sir, here at least, know the value of the written law; declared principles,
adjudicated cases. The judgment of a competent court--well-pronounced and
recognized as authority--is as permanent as it is pervasive, as uniform as it is universal.
It yields to no logic; it gives way before no rhetoric; it stands firm against every outside
pressure. Once recognized as a settled and
adjudicated principle, it sheds its light over every other luminary, and rebukes
self-interest with as much severity as it tames assumed authority with its self-sustaining vigor. Here, at least, the voice of law is potent, even to controlling
this court, no matter what the views, the feelings, or the policy of the government
may indicate. It is, then, to that tribunal I address myself. If my clients
are sustained in their applications by the law, it matters not what may be
the opinions of "all comers," however exalted in their station and unerring in
their convictions.
The facts of these cases--indeed, all thirty-four--are plain and few. They need but a
simple statement to render them clear and beyond doubt. My clients are Marylanders.
They enlisted in the military service of Virginia under a special, written, agreed
contract, in 1861, for three years, if the war should last so long; but to be discharged
sooner, if the war should be closed before the expiration of the period of their
enlistment; but at all events, to be discharged at the expiration of the three years. These
were the stipulated, executed terms of their enlistment. Virginia assented to these
terms. She afterwards turned these men, with this contract, over to the Confederate
States.--The Secretary at War accepted them, and, along with them, this written
agreement. Here is the whole case. And yet these men, after the expiration of the
period of their enlistment, are still claimed by the Secretary at War as soldiers for the
war. Can this asserted claim be sustained?
First, as to the facts. What I have just stated is in full proof. But this is
not all. It is proved that when these citizens of Maryland volunteered in the
service of Virginia, they then, and have always since, intended to return to
Maryland at the expiration of the period of their enlistment.
The act and terms of enlistment prove this. Their uniform declarations since prove it--their application for a discharge confirms it. But this is not all. It is in
proof, by their commander, that they have all been true to their contract; that
they have performed their whole duty, at all times, under all circumstances, and
under every trial. They have been brave, obedient, gallant and steady. In
storm and in repose, on the battle-field and in the camp, on picket and in the
trenches, everywhere, they have all been faithful, brave, efficient soldiers. Yea,
more: that they are now true, loyal, high-toned, devoted friends of the Confederate
cause, and would have, to a man, re-enlisted, if the Secretary at War had
asked their services, for the balance of this campaign. Such are the facts as
to the petitioners. How do they stand as to the Secretary at War?
On the 8th July last, Captain Dement addressed this note to the proper authorities:
"SIR: I respectfully ask for the proper authority to discharge certain
members of my company, (First Maryland Battery), whose term of service will
expire on the 13th July, 1864."
This letter was, by order of General Lee, referred to the Secretary at War, who
returned it with this endorsement: "Returned through General R. E. Lee. The
Secretary of War has decided that Marylanders in service may justly be considered as
staying in the Confederacy for an indefinite period as residents; that they have cast
their lots with us, and are liable to like duties, in resisting a common enemy, with our
own citizens. These men will be retained in service."
Captain Dement, not precisely comprehending this novel mode of constituting
Marylanders in the service, under a special contract, and for a limited period, as
"residents," appealed to the President. No reply being received from the President,
my services were retained. These petitions were filed, after an effort on my part, in the
most respectful manner, to prevent litigation, without success. Now, these parties
are here before this court, with one other singular fact on the record, which it is
proper to comment on as an important branch of the history of these cases. It seems
that the letter of Captain Dement, addressed to the President, was, on the 22d of
July, by that high and respected functionary, regularly referred to the Secretary at
War, with this endorsement:
"Secretary of War: As this appeal is founded on a construction of laws applicable
to the case, I suggest that the record be presented, with these letters, and referred to
the Attorney General for an opinion.
JEFFERSON DAVIS ."
The Honorable Secretary at War informs us that reference was never had. The
Attorney General was never consulted, because, says the Secretary, he and Judge
Campbell concurred in the opinion that the law was against the appeal, and it was
not necessary. This is to be regretted. But, sir, the opinion of the Attorney General,
had it been given, would not have been conclusive in this court as to the law. I wish,
however, we had it. We need all the light at our command in these grave deliberations.
It is not here, however, and I proceed to consider the law as I believe it to exist,
with the remark that the President has, in this matter, done his whole duty to these
men.
By what authority the Secretary at War arrives at the singular decision announced, I
am at a loss to know. It is not only, in my opinion, against all law in all civilized
countries, but it has not (I say it with all due respect) the semblance of law to stand
on or under. Not an elementary writer, or an adjudicated
case, that I am familiar with, countenances such a conclusion. They all
repudiate it. They all establish, or tend to establish, precisely the reverse.
The very authors referred to by my learned friend establish the converse of his
proposition. I need not cite them. They are too familiar to your mind to
need special citation here. Phillimore, Bouvier, Domat, Story on Conflict of
Laws, Kent--all refer to the general principle as to domicile. They all treat
this question with learned refinement, and from them all the grand criterion is the
intention, the quo animo, of the party. Residence is but one of the indicia, an elemental
ingredient among various other facts and circumstances. But, after all, there must be
a domicile, accompanied with the formed, ascertained, established intention of
remaining, or rather of not returning to the former domicile. Here is the grand test fact
on which the entire structure must rest.
Indeed, sir, I need no further or other authority against the Secretary at War than
his own published orders. They estop him, in these cases. They must have been
drawn by a learned lawyer--perhaps the eminent gentleman, Judge Campbell, whose
opinion is now invoked in this court by my learned friend and the Secretary at War.
General Order No. 82, current series, 1862, paragraph IV, treats of these very
cases:
"1. Foreigners not domiciled in the Confederate States are not liable to enrollment.
Domicile in the Confederate States consists in residence with intention permanently to
remain in those States, and to abandon domicile elsewhere. Long residence of itself
does not constitute domicile. A person may acquire domicile in less than one year, and
he may not acquire it in twenty years' residence. If there is a determination to return to
the native country, and to retain the domicile there, NO LENGTH OF RESIDENCE
CAN CONFER DOMICILE."
This is sound law, deduced by a skilled and learned mind from the very authors
now cited by my learned friend. By this rule, are the petitioners residents? Are they
within the scope, object, or purview of the act of Congress? Where have they
domiciled? In what house have they resided? Their residence has been on the tented
field, in the thickest of the fight--many of them, gallant, heroic men,
in the grave--leaving a few only to claim the resulting benefits of the original contract.
But my learned friend says they intended to remain in the Confederate States if
Maryland cast her lot with the Lincoln dynasty. Indeed? Where is the proof of
this? It is not to be presumed. But they were "traitors to their State" if they came
here intending to return under such circumstances, says the attorney. Indeed? And
who declares them traitors except my learned friend? Traitors, sir?
I respectfully repel the imputation. They are brave, cultivated, patriotic
Marylanders, who came to Virginia under a contract with her to fight the battles of
Maryland and Virginia--twin sisters in all the past; inseparable in the future.
Maryland is a sovereign State--afflicted, oppressed, but not subdued. The
iron heel of oppression rests heavily on her proud, patriotic bosom. Her sons
and daughters weep over her down-trodden posture. But, sir, the time is not
far distant when Maryland will rise equal to the occasion. The grasp of tyranny is not
perpetual. The tread of the tyrant is not as measureless as the
monotonous step of the Wandering Jew. Time, energy, caution, love of
country, devotion to principle, will all conspire to loose the bonds by which she
is now held. Yea, sir, who shall say that the hour of deliverance is not even
now at hand, and these, her gallant sons, panting to grasp the weapon of vengeance on
their beloved native soil, and thus aid in her redemption.
The petitioners, traitors? Sir, such treason is holy devotion to constitutional
liberty and eternal hatred to usurped powers of abitrary government. Traitors! to
whom? to what government? Sir, they came here and rallied, as patriots, under
Virginia's flag--proudly waving, in token of ultimate success, over this
ocean of blood, shed on and around the altar of liberty! And is that treason to Maryland?
Traitors! When and how has the Secretary at War arrived at the opinion
that Maryland is doomed and lost to Virginia? God joined these States by the
indissoluble ties of territory, in land and ocean links. Separate as States, their people
are homogenous--their destiny is one and the same. They are now torn asunder--cut
apart by the sword; but the healing process of time--the austere and better wisdom of
solemn reflection--enlightened action--will yet draw them together. Maryland will never
turn her back on Virginia and wed herself to the black hearted people of New England.
No, sir, Maryland is yet a sovereign State, and as such, these petitioners--her citizens--are no traitors in fighting under Virginia's banner for Maryland's redemption.
But, says my learned friend, these men are "not traitors." They left Maryland with
no intention of ever returning if she should not become one of the Confederate
States. Where is there any evidence of this? None, sir, but this
voluntary contribution of my learned friend. Their contract, their acts, their
declarations, all prove the reverse. And this assumed benevolence of my learned
friend, and this asserted fact of the Secretary at War, are mere gratuities. They
cease to exist when contrasted with the solid facts in the case.
But, says my learned friend, the Secretary at War complimented, and was anxious to
protect these men in his retaining order. I can only say save me and my clients from
such complimentary protection. As Marylanders, they enlisted; as Marylanders, they
served out the period of their enlistment; and now claim their discharge. Shall they be
denied? What says the law! Are they residents within the terms of the law? Could
they be conscripted? Have they not performed their part of the contract? If so,
who has a right to hold them? I do not argue this case on the ground of my clients
being Marylanders. That is not the ground. Suppose they were all English subjects,
enlisted as now for three years, what court would refuse their discharge? Sir, these
men stand before you to-day as
though they were Italians, domiciled in Rome; or Irishmen, domiciled in Ireland; or
Massachusetts men, domiciled in Boston--that hot-bed of hellish propensities. And
shall they be treated by a different rule of law from what would apply to their cases if
they were Italians, Irishmen, Englishmen or Yankees? The law books say not.
But, says my learned friend, these men are only restive under military restraint;
they want a holiday.
Indeed! Sir, when were they restive under the fire of the enemy? When were they
eager to escape military restraint in the last three years? Where were they, or any of
them, when the cannon balls flew thick and fast, and death claimed almost every third
man? When were they, or any of them, restive, or absent, or derelect in duty, while the
battled hosts of the enemy hurled their missiles of death around them swift and thick
as hail?
Restive! Sir, could my friend, who now applies this language to my clients,
have watched them on those terrible occasions, through which they have so often
and so gallantly passed with credit to themselves and honor to their State, when
their tread was as firm as the soil on which they stood, their resolution as impenetrable
as the metal of which their cannon was formed; their eyes unblanched,
their hearts proudly beating in high unison with the irrepressible pulsations of
liberty, he could not, here in this court room, apply such epithets to them.
Brave, without a fault; heroic, without a murmur; stern in their integrity, as
they were honorable in their deportment, these men--ah! sir, the word will
out--these gentlemen and patriots--their whole duty, discharged
their entire obligation, and they now respectfully ask at your hands that justice
which has been denied them by the Secretary at War. They are not restive,
save as brave, gallant, heroic soldiers should be restive, when their clear rights and
ascertained remedies are denied them. They feel assured of their rights and self-sustained in their consciences. They have never re-enlisted. They are under no new
contract or accruing obligations. Without re-enlistment they cannot be held--so has the
War Department, under precisely similar facts, ruled and ordered, in General Orders
Nos. 44 and 46, current series, 1862; so has Virginia declared, in her legislative acts,
paseed in pari materia. Why re-enlist at all, if by joining the army they "may justly be
considered as staying in
the Confederacy for an indefinite period?" Is the term "re-enlistment" meaningless?
If not, what is the status of the non-conscript who has not re-enlisted?
With these views, I submit these important cases, with every confidence in
the result. I feel that I know what the law is, and am not uneasy as to the
result. I may have spoken with too much zeal, and manifested too much feeling
in what I have said. If so, I humbly ask pardon. My whole heart has
been enlisted. I feel for the peerless honor of Virginia. These men enlisted
under her flag. In God's name let no stain of repudiation rest on that
escutcheon, which, up to this period, has been as pure as it is emblematic;
as stern in its demands of justice as it is ever rigid in its dispensation of right.
Let the law prevail. Shut not out the light of legal science in this period of
dark passion and turgid commotion. I have no fear of failure in this grand
revolution so long as we adhere to the ancient landmarks, and keep steady the
"balance wheels" of the constitution by the hand of experienced wisdom and
adjudicated remedies. The life blood of the country is vigorous, and flows in
healthful and natural channels; seek not to chill, or pervert, or deplete it
by untoward innovations. Virginia is an empire within herself. Respect her
rights and honor her obligations.
Whatever may be the determination and judgment of this honorable court, I
pledge my clients to a cordial submission, as soldiers, men of honor and patriots.
Will the government accord the same hearty acquiescence?
JOHN H. BRISCOE vs. CAPTAIN W. P. DEMENT.
OPINION OF THE COURT.
It appears by the return to the writ of habeas corpus in this case, that the
petitioner "volunteered on the 16th August, 1861, for three years, as a member
of the army of Virginia;" that "he has been in service ever since," and is
now held, "under orders from the Secretary of War of the Confederate States,
as a soldier in the Confederate service, and for no other cause." It further
appears by the testimony in the cause, that after his enlistment in the service
of this State the petitioner was regularly transferred to the service of the Confederacy.
The act of Congress of the 17th of February, 1864, entitled "An act to
organize forces to serve during the war," declares that from and after the passage
of this act all white men, residents of the Confederate States, between the ages of
seventeen and fifty, shall be in the military service of the Confederate States for the
war.
The second section of the act provides "that all the persons aforesaid, between the
ages of eighteen and forty-five, shall be retained during the present war with the
United States, in the same regiments, battalions and companies to which they belong at
the passage of this act, with the same organization and
officers, unless regularly transferred or discharged, in accordance with the laws and
regulations for the government of the army;" upon certain conditions, which I need
not mention.
The petitioner, who is between the ages of seventeen and forty-five years, alleges
that he is not a resident of the Confederate States, within the meaning of the act of
Congress, and is therefore not liable to be held in service under that act; his term of
enlistment having expired in August last.
The only legal question of any difficulty in this case is one of domicile, and has
been properly so treated, I think, by the counsel for the defendant, Captain Dement.
The act of Congress, it is true, uses the word "resident," and not the word "citizen,"
or the phrase "domiciled inhabitant;" but there can be very little,
or no doubt, that the word "resident" is not used here in its broadest sense.
A person who stays in a country for a brief and definite period--for a year
or two, or a month or two--may be, in one sense of the word, a "resident" there.
"When the word is applied to strangers or travellers," says Webster, "we do not say a man
resides in an inn for a night; but he resided in London
or Oxford for a month or a year; or he may reside in a foreign country a great
part of his life. A man lodges, stays, remains, abides, for a day, or very short
time; but reside implies a longer time, though not definite."
"The original national character is not changed," says the learned counsel, T. A.
Emmett, in the case of Elbers and Krafts vs. the United States Insurance
Company, 16 Johnson, 128, "by an occasional residence in another county for a
temporary purpose. It must be a residence there animo morandi."
The Judge, speaking of the criteria of domicile, in the case of Stanley vs.
Bernes, (3 Haggard's Ecclesiastical Reports,) remarks that time alone is not
conclusive; for where is the line to be drawn? Will the residence of a month
or a year, or five years, or fifty years, be conclusive?
If, therefore, we were to take the word "resident" in its widest acceptation,
it might apply to persons who came here to remain for a few months, as the
correspondents of a foreign newspaper; or to purchase certain commodoties for
exportation; or to study medicine; or to observe the progress of the war and
acquire military information; or merely to see the country and become acquainted
with its laws and institutions, and resources; or for any one of a thousand
other reasons or objects, which might induce a stranger to visit this
country for a short time, or a year or two, without the least idea of changing
his permanent residence or domicile. It might apply, indeed, to a foreign consul
or commercial agent, or even a minister sent to treat with us on the subject
of recognition. We cannot suppose that Congress intended any such exclusion
of foreigners from our shores, or any such violation of all the rules of international
comity and international law, as this would amount to.
Besides, the term "resident" has, heretofore, been uniformly interpreted by our courts of
justice to mean domiciled inhabitant, if I mistake not; and if Congress had
intended to give it a more extensive signification they would probably have said so, or
used some other expression.
Some line of demarkation it is necessary to draw between that class of residents who
are liable to military service and those who are not so liable; and if
we stop short of domicile, where shall the line be drawn? It would be extremely
difficult, if not impossible, for any court or judge to fix upon any other limit
satisfactory to himself, and no two courts or judges would probably agree about it; so
that we should have no fixed or steady rule on the subject at all.
I shall regard the legal question, then, in this case, as one of domicile; but what is
domicile? Perhaps no complete and entirely satisfactory definition of it has ever yet
been given.
Bynkershock, we are told, would not attempt it.
According to Vattel, "domicile is an habitation fixed in some place with an intention
of remaining there always." Wildman (International Law, page 36), tells us that "the
domicile of a person is where he has taken up his abode with the intention of
permanent residence;" a very unsatisfactory definition indeed.
Judge Story says that the definition given by Vattel is not accurate. It
would be more correct, he thinks, to say that "that place is properly the domicile
of a person, in which his habitation is fixed, with no present intention of
removing therefrom." Conflict of Laws, section 43. "If a person," he observes,
"has actually removed to another place with an intention of remaining
there for in indefinite time, and as a place of final present domicile, it is to be
deemed his place of domicile; notwithstanding be may entertain a floating intention to
return at some future period." Idem, section 46. "Perhaps" says
Phillimore, (Law of Domicile, page 14), "the American judges have been the
most successful in their attempts, and, from a combination of their dicta upon
several occasions, we may arrive at a tolerably accurate definition in designating
it "a residence at a particular place, accompanied with positive or presumptive
proof of an intention to remain there for an unlimited time." He cites Guier
vs. Daniel, 1 Binney's Reports, 340 in note; Elbers & Kraft's vs. The United States
Insurance Company, 16 Johnson, 128; and the Francis S. Crouch.
It seems quite clear that when a person removes from one domicile to another,
with the intention of residing there for a limited period only, he does not acquire
a new domicile by such removal and residence. In order to constitute
domicile there must be animus et factum; the fact of residence must be connected
with an intention to remain such a length of time as the law requires to
constitute domicile; or at least there must be no intention to return, no animus
revertendi, at the end of any limited period. There can be no domicile without
such intention to remain, or the absence at least of any fixed intention to return.
'It has been said by some civilians that when a person retained the intention of
returning to his former domicile, a thousand years would not be sufficient
to establish a new one." Phillimore on Domicile, page 148. "All jurists
agree," says this author, "that there must be both intention and fact to constitute
a domicile. The French jurists seem to have rather leant to the extreme
doctrine of the Civil and Canon Law, that without intention no length of time
can constitute a domicile, to which I shall have occasion to show, in another
part of this treatise, the law of England has been less inclined." "It seems,
however," he continues, "to be universally admitted by all jurists, that the
fact is admitted only as proof of the intention, but then there are certain facts
which the law considers as undoubted evidence of that intention--facts which
may be regarded as speaking a language on this point, at least equally entitled
to belief, with any declarations, oral or written, even of the person himself."--Law of
Domicile, page 14.
"There must be animus et factum," said the court in Craigie vs. Lewis, 3
Custer's Ecclesiastical Reports, page 435; "that is the result of all the cases."
In another case the court, after having laid it down "that time alone is not
conclusive" as to domicile, goes on to say that, "As a criterion, therefore, to ascertain
domicile, another principle is laid down by the authorities quoted, as well
as by practice: it depends upon the intention, upon the quo animo--that is by
the true basis and foundation of domicile; it must be a residence sine animo
revertendi, in order to change the domiciliam originis: a temporary residence, for
the purpose of health, or travel, or business, has not that effect; it must be a fixed,
permanent residence, abandoning, finally and forever, the domicile of origin; yet
liable still to a snbscquent change of intention." Stanley vs. Bernes,
3 Haggard's Ecclesiastical Reports, 110.
Now, what are the facts and circumstances of the case before the court?
The petitioner is a citizen and native of a foreign State--of Maryland. He
came to Virginia in June, 1861, soon after the present war broke out. He then
had a mother, who must be presumed to be still living there, as we have no evidence
to the contrary, and two or three brothers, land owners, and a sister, who
are still residing there. He did not leave Maryland, so far as the evidence
shows, or there is any reason to believe, with any intention whatever never to return;
or for any purpose, or to engage in any business which might probably
last as long as he lived, or for an unlimited time. He left there in consequence
of the disturbed state of the country and his sympathies with the South, which
rendered it unsafe, or dangerous and uncomfortable for him to remain there
under the circumstances then existing. He often declared that he meant to return
to Maryland when he was discharged; though it does not distinctly appear
whether he intended to return for the purpose of residing, or on a temporary
visit.
He came here, according to the testimony of the witness Browne, for the purpose
of avoiding danger at home, and for the purpose of aiding the Confederacy
in this war; and he seems to have come with no other view.
Captain Dement says that the attachment of Briscoe, and all the other Marylanders
of his company, to their native State was so ardent that he is convinced they meant to
return to it when the war was over.
He entered our army as a volunteer for three years only, in August, 1861, and
has remained in the service ever since.
From all the facts and circumstances of the case, and from the whole of the
testimony, I think the inference a fair and reasonable one, that he did not come here to
reside for life, or for an unlimited, or, as some of the books express it, for an indefinite
time; but that he expected and intended to return at the end of the war, if not at the
expiration of the term of his enlistment.
He came here not at all to war against his native country; but to uphold her
rights and to fight against the existing government of that country.
He is to be regarded, I think, as an emigrant or fugitive from his native
land, on account of civil war: and Phillimore, in the 11th section of the 8th
chapter of his work on domicile, headed "The Emigrant," states, in the first
paragraph of that section, the law to be, "that the fugitive from his country,
on account of civil war, is held not to have lost his intention of returning to it;
and therefore still retains his domicile in his native land." For this he cites,
along with other authorities, Mascardus, and the case of DeBonneval vs. DeBonneval,
1 Custer's Ecclesiastical Reports, 856.
The case before me does not differ at all, in principle, so far as I can discern,
from the case of DeBonneval, who, having emigrated from France during the
French revolution in 1793, to England, was held not to have lost his native
domicile thereby. The learned judge said, in that case, that there was no
doubt that the domicile of origin of the deceased was France: for there he was
born and continued to reside, from 1765 to 1792, and that "he left that country
only in consequence of the disturbances that broke out there." "He came
here," said the judge," in 1793; but he came in the character of a Frenchman,
and retained that character till he left this country in 1814; for he received an
allowance from our Government as a French emigrant. Coming with
no intention of permanently residing here, did anything occur while he was
resident here to indicate a contrary intention? It is clear to me that, as in the
case of the exile, the absence of a person from his own country, will not operate as a
change of domicile; so where a party removes to another country to
avoid the inconvenience attending a residence in his own, he does not intend to
abandon his original domicile, or to acquire a new one in the country to which
he comes, to avoid such inconveniences. At all events it must be considered as
a compulsory residence in this country; he was forced to leave his own, and
was prevented from returning till 1814. Had his residence here been in the
first instance voluntary; had he come here to take up a permanent abode in this
country, and to abandon his domicile of origin, that is to disunite himself from
his native country, the result might have been different. It is true that he
made a long and continued residence in this country; but I am of opinion that
a continued residence in this country is not sufficient to produce a change of
domicile; for he came here avowedly as an emigrant, with an intention of returning
to his own country as soon as the causes ceased to operate which had
driven him from his native home."
In this case of DeBonneval the time of residence was at least as indefinite and
unlimited as in the case before me, and very much longer.
It was insisted, however, by the counsel for the defendant, that the petitioner, by
entering the military service here, had become domiciled here; and the case of Sir C.
Douglas, cited by Phillimore, Law of Domicile, pages 73 to 75, is relied on to
support that proposition. I have always supposed, however, that what is said in that
case about entering the service of a foreign State was only intended to apply to
persons who enter such military service for life, or without any limitation of time.
This, I think, is apparent from what Phillimore says in relation to the case of Mr.
Bruce, and some other cases cited by him. "These cases," he says, "are founded upon
the peculiar nature of the East India Company's service; as long as he was engaged in
that service he held an irrevocable office, binding him to residence in a certain
country. Upon the same principle," he continues, "it was held by the House of
Lords, in Sir C. Douglas' case, that persons who enter the military service of a foreign
State acquire the domicile of that State."
It will be seen, by an examination of the case of Mr. Bruce, that it "turned
upon his residence in India, under an obligation that was to last during his whole life."
These cases are cited by Phillimore to illustrate the rule of law, that where a person
accepts an office which is conferred for the life of the holder, and is irrevocable, the
law fixes his domicile in the place where its functions are discharged, and admits of no
proof to the contrary; but that where the office is
of a temporary nature and revocable nature, "the law does not presume that the
holder has changed his domicile; but allows the fact that he has done so to be
established by the usual proof." Phillimore on Domicile, page 61.
In treating of the public officer Phillimore says, "We have now to consider the
domicile of the Public Officer of the State. The existing French court has laid down
the following rules respecting the domicile of the officers, civil or military,
employed in the public service of the State.
"1. If the office be for the life of the holder and irrevocable, the law fixes his domicile
in the place where its functions are to be discharged, and admits of no proof to the
contrary. For the law, says Denisart, admits of no proof contrary to an indispensable
duty.
"2. If the office be of a temporary nature and revocable nature, the law does not
presume that the holder has changed his original domicile; but allows the fact to be
established by the usual proof." Law of Domicile, pages, 61, 62. He then
proceeds to illustrate these rules by decisions of the English courts; so that I
presume he does not regard them as confined to France, but means to lay them down
as general rules of law, which are established and prevail in the English courts as well
as in France. If so, I see no reason why a man who enlists in the military service of a
foreign State for a year or three years, should be deemed to have changed his
domicile thereby, any more than if he enlists in the military service of his own
country.
If a native of England, domiciled there, would not be deemed to have changed his
domicile by enlisting and binding himself to serve for three years in Ireland, why
should he be presumed to have done so, if he agrees to serve for three years in
France?
Indeed I can see no difference in this respect between an agreement to serve in the
army of a foreign country for three years, and the acceptance of a civil office there for
three years or one year.
It would depend, I suppose, upon the intention of the party, in either case,
whether he had changed his domicile or no; and I am entirely at a loss to
discover by what process of reasoning we can arrive at the conclusion that a person
means and intends to reside in a country during his whole life, from the naked fact
that he agrees to serve there, or to hold an office, either civil or military, there for
three years.
A person who is exiled to a foreign country for a term of years, is not regarded
as having changed his domicile in consequence of having been so exiled; Law
of Domicile, page 88; though if he be banished for life his domicile is thereby
changed. The reason is that, in the first case, he is not presumed to have abandoned
his intention to resume his original domicile when his banishment is at an
end; while, in the second case, there is no room for any such presumption.
The servant who contracts to serve a foreign master for a limited time, is not
deemed to have lost his native domicile by such service.
Whether he is to be considered as having abandoned his original domicile in such
case, depends upon his intention, which is to be inferred from circumstances, as in
other cases. Law of Domicile, 58.
The student who goes to a foreign University to pursue his studies there for
a limited time does not lose his domicile thereby.
Why then should the soldier who agrees to serve for a year in a foreign country
be presumed to have abandoned his domicile of origin for that reason, and no
proof be admitted to the contrary? It is certainly true that a person is prima
facie presumed to be domiciled where he is found "living" or "residing."
Wildman on International Law; Bempde vs. Johnson, 3 Vesey, 198; Bruce vs. Bruce,
2 Bos. & Pull., 229 in note, and Ennis vs. Smith et al., 14th Howard, 423.
In the case before me, however, that presumption is, in my opinion, sufficiently
rebutted by the circumstances of the case and the testimony in the cause. I am
satisfied that the petitioner only intended to stay here until the present war should be
over and he could return to his home with safety. He can no more be deemed to have
abandoned and lost his native domicile on this account, I apprehend, than
DeBonneval was; who left his country amidst the storms of the French revolution in
1793, and did not go back to France till the restoration of the Bourbons.
If a foreigner volunteered to serve in our army for three years only, it is not
possible, I think, to found, upon this voluntary act of service alone, a legal right to
compel him by force to serve for three years or for an indefinite period longer.
If so foreigners will be extremely cautious how they volunteer in our service
hereafter.
In accordance with these views I shall order the discharge of the prisoner--John H.
Briscoe.
After the judgment and discharge of a few of these men--wishing to avoid further
excitement and discussion--I addressed the following letter to the President:
RICHMOND, OCTOBER 12th, 1864.
To His Excellency, President Davis:
SIR,--I have the honor, very respectfully, to enclose you a paper containing
the opinion of Judge Halyburton, on the Maryland cases, to which I respectfully
called your official attention previous to litigation.
I send you this opinion as an act of courtesy and respect. It is proper, after
what has occurred, and is now a part of your official history, that I should do
so. Your official course, in this matter, has won the confidence and elicited the
admiration of these men; and I assure you they are "true men." I have not
overdrawn their character.
I respectfully suggest, as a matter of policy as well as justice, that the judgment
of the Confederate Court be so far recognized and respected as to order the discharge of
those men, whose cases are not yet specifically adjudicated. From you, such an
order will be, in my opinion, worth ten thousand men to the service.
Very respectfully,
J. H. GILMER.
To this letter no reply was received. And each of these soldiers was necessitated to
sue out his special writ. And this in the face of the established fact, that the facts of
his case had been properly certified and vouched by his commanding officer, which,
in military practice, is regarded as conclusive as to facts.
Such, sir, is the history of these cases. It speaks in trumpet tones, and should
awaken the dead spirit of the Constitution. Virginia's honor, plighted faith was
involved. And yet a Virginia Secretary violated her pledge, stained her escutcheon, and
sought to shroud the legal remedies in the folds of his own perturbed will.
You, sir, have long known my views as to Maryland and Virginia. They are
candidly expressed in my argument. What I have there uttered will, in a few
years, be history. One of two results must now occur on this continent. The
ultimate establishment of a vast consolidated, absolute government--based on
fraud and sustained by military force: or three separate governments--independent, the
one of the other[.] Two rival governments cannot exist.
To prevent the first alternative, State sovereignty must be sustained; and to secure
State sovereignty, Maryland and Virginia must be re-united. This is a mere question
of time. You nor myself may live to see it. But the sooner the fact is clearly discerned
and practically developed, the better. Remember sir, you deliberate for posterity.
| Buy DocSouth Books
