Ex parte Blumer

• Decision Date: 01 January 1865
• Citation: 27 Tex. 734
• Parties: EX PARTE SAMUEL BLUMER.
• Court: Texas Supreme Court

27 Tex. 734

EX PARTE SAMUEL BLUMER.

Supreme Court of Texas.

1865.

The word resident is ordinarily used to designate persons in a particular locality, as of a city, town or county.

The word “residents,” in the conscript laws, is used to designate a class within the whole limits of the government.

The term “residents,” as used in the conscript laws, includes not only citizens, native and naturalized, but also foreigners whose residence in this country has been such as to attach to them a national character as members of society.

The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country--bound by their residence to the society; they are subject to the laws of the state while they reside here, and they are obliged to defend it. Such are the foreigners intended to be embraced by the term “residents,” used in the conscript laws.

Such a residence, it is believed, will generally be found to correspond with what is meant by domicile, as it is now understood and adjudged by the courts of England and America.

An act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.

The rule adopted by the president, that foreigners not domiciled in the Confederate States are not liable to enrollment, is in harmony with the law of nations; is based upon an undoubted and recognized right, and is one of certainty and safety.

The domicile of birth remains a party's domicile until a new one is acquired.

A person being at a place is prima facie evidence that he is domiciled there, and it lies upon him to rebut that presumption when the place of his domicile is brought in question.

This presumption may be rebutted by the party showing that the facts connected with his residence are not inconsistent with a bona fide intention, on his part, of not making the place of residence his domicile, or of retaining his former domicile.

Declarations of a party's intention in relation to his domicile are admissible as part of the res gestæ.

Such declarations are to be credited when not unreasonable in themselves, not inconsistent with other facts, and not under circumstances creating suspicion of insincerity.

In most cases of domicile, the question of intention is made to depend upon declarations, in proportion as they tend to explain, and are not inconsistent with the other facts.

When it is once established that a foreigner has finally abandoned his domicile of origin for the purpose of settling here, and does arrive and fix his abode here, his frequent removals from one place to another would not prevent his domiciliation in this country; and any declarations that he might make afterwards of his intention to return to his native home would amount to nothing, unless accompanied by the act of returning, or something tantamount thereto.

Sickness and pecuniary destitution may assist other facts in rebutting the prima facie evidence arising from a party's being in a country, in a question of domicile.

A general residence might be acquired by lapse of time, from an accidental detention, continued by the misfortunes and necessities of a party.

APPEAL from the judgment of Hon. James H. Bell, associate justice of the supreme court, sitting in chambers at Austin.

On habeas corpus. The applicant appealed from the order of the judge at chambers, remanding him to the custody of his commanding officer.

The facts appear fully in the opinion of the court.

M. H. Bowers, for the appellant.

C. L. Robards and J. B. Morris, contra.

ROBERTS, J.

The question in this case is, whether or not the appellant, Samuel Blumer, a native of Switzerland, is liable to enrollment as a conscript, after a residence or sojourning of three years in the Confederate States, as exhibited in the statement of facts as follows, to wit:

“The applicant, Samuel Blumer, is a native of Glarus, in the republic of Switzerland. He came to Texas on business in 1854, and remained here a few months, when he returned to his native home in Switzerland. A portion of the time he was in Texas, he worked as a day laborer for R. H. Peck, at the butcher business. In December, 1858, he again left home to come to Texas, traveling by way of Paris, Havre (passing through New York on the 7th day of June, 1859), and New Orleans, stopping at these and other places, and arriving in Texas on the 24th day of June, 1861. He was sick when he reached here, and remained in bad health for about two years--able to work a month or two, and then sick for a month or two, and did work when able to do so. Since he recovered his health, he has performed manual labor for different persons for pay, such as splitting rails, butchering and working on a farm, and following the ordinary avocations of the country, and was so employed at the time of his enrollment. On his arrival in Texas, he said he had not come to make this his home, and declared his intention not to remain in Texas, but to return again to Switzerland as soon as he recovered his health sufficiently to travel, and got money enough. That since he recovered his health in 1863, he has been destitute of means, and has continuously and often expressed his determination to leave Texas, and to return to his native home to live as soon as he earned money enough to defray his expenses in traveling from here there; but never stated any particular time when he would start, nor has he, since his return to Texas, ever put himself in motion to leave the state, or manifested, by any act done, an immediate intention to start at any time during that time. That he has never declared his intention to become a citizen of the Confederate States; has never voted at any election, but has, at all times, refused to take any part in elections, alleging, as a reason therefor, that he was not a citizen of the country. He has never purchased property here, or invested money in business. He is a single man, and is thirty-two years old.

He was enrolled as a conscript on the 2d day of July, 1864, by Capt. John Rapp, enrolling officer of Travis county, and by him assigned to the respondent officer (Lieut. E. M. Green, recruiting officer for Waterhouse's brigade) for service in the army of the Confederate States.”

The laws of conscription embrace all white men of his age who are “ residents of the Confederate States.” A resident is “one who resides or dwells in a place for some time.” To reside is, to “dwell permanently or for a length of time, to have a settled abode for a time.” To dwell is, “to abide as a permanent resident, or to inhabit for a time, to live in a place, to have a habitation for some time or permanence.” It invariably involves the idea of the present home of the person, whether it is designed to be permanent or temporary, or for general or special purposes. In view of the different significations which may attach to it, from the various circumstances which may be connected with and qualify this central idea of present home, its true meaning, in this or any other case, must be arrived at by considering the manner or mode in which it is used, and the subject matter to which it is applied. Here it is used by the congress of the Confederate States in a general law; the object of which is to compel persons to render military service in defense of the organized government. The government could hardly be presumed to intend to compel a person to render military service, who is not under obligation, as a duty, to serve the country when called upon. Compulsion, in a just and enlightened government, implies duty on the part of the one compelled. Congress supposed that there might be some “white men between the ages of seventeen and fifty,” who might not be under such obligation, although they might be found within the territory of the Confederate States--such as foreigners, sojourning here on temporary or transient business, or visiting the country for health or pleasure; which is indicated by adding a limiting qualification, the terms “residents of the Confederate States.” The word residents is ordinarily used to designate persons in a particular locality, as of a city, town or county, and not, as in this case, to designate a class within the whole limits of the government.

Congress designed that this term should include more than citizens, native and naturalized, otherwise the word citizen would have been used. It includes also foreigners, not naturalized, whose residence here has been such as to attach to them a national character as members of society, and who are thereby under obligations to defend the country.

Vattel says: “The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state whilst they reside there; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens.” Such are the foreigners intended to be embraced by the term “residents.” They are strangers who settle and stay in the country. After they shall have settled, made it their home, their place of abode, the time they shall have stayed, or intended to stay, is not defined; but while they do reside there, they are bound to defend it. (Vattel, p. 160.)

Such a residence, it is believed, will generally be found to correspond with what is meant by domicile, as it is now understood and adjudged, by the courts of England and America. Descriptions of domicile are more easy and not less intelligible than efforts at a definition of it. In the case of Bruce v. Bruce, in the House of Lords, the chancellor, Lord Thurlow, said: “But what will make a person's domicile or home, must occur to every one. A British man settles as a merchant abroad; he enjoys the privileges of the place; he may mean to return when he has made his fortune; but he dies in the interval; will it be maintained that he had his...