James Jones, Charles Jones, William Gorman, Robert Lott, John Tippin, Matthew Tippin, and John Tally, Plaintiffs In Error v. Catherine Masters, By Her Next Friend, Manuel Ybarba

• Decision Date: 01 December 1857
• Parties: JAMES R. JONES, CHARLES C. JONES, WILLIAM G. GORMAN, ROBERT LOTT, JOHN TIPPIN, MATTHEW T. TIPPIN, AND JOHN R. TALLY, PLAINTIFFS IN ERROR, v. CATHERINE McMASTERS, BY HER NEXT FRIEND, MANUEL YBARBA
• Court: U.S. Supreme Court

61 U.S. 8

20 How. 8

15 L.Ed. 805

JAMES R. JONES, CHARLES C. JONES, WILLIAM G. GORMAN,

ROBERT LOTT, JOHN TIPPIN, MATTHEW T. TIPPIN, AND JOHN R.

TALLY, PLAINTIFFS IN ERROR,

v. CATHERINE McMASTERS, BY HER NEXT FRIEND, MANUEL YBARBA.

December Term, 1857

THIS case was brought up, by writ of error, from the District Court of the United States for the district of Texas.

The case is stated in the opinion of the court.

It was argued by Mr. Hale for the plaintiffs in error, and by Mr. Hughes for the defendant.

The principal question in the case was, whether Catherine McMasters was a citizen of Mexico or of Texas. The arguments of the counsel upon this point were as follows:

Mr. Hale's first point was this:

The District Court should not have sustained the demurrer to the plea to the jurisdiction pleaded by John R. Tally. It appeared by the allegations of that plea that the plaintiff was, at the time of the institution of the suit, a citizen of the State of Texas. The Constitution of the Republic of Texas declared that 'all persons (Africans, the descendants of Africans, and Indians, excepted) who were residing in Texas on the day of the declaration of independence, shall be considered citizens of the Republic, and entitled to the privileges of such.' (Const. Rep. Gen. Prov., sec. 10; Hart. Dig., p. 38.) And the incorporation of the Republic of Texas into the Union, 'on an equal footing with the original States in every respect,' necessarily onverted the citizens of the Republic of Texas into citizens of the State of Texas and of the United States. (Joint Resolution for annexing Texas to the United States, March 1, 1845, 5 Stat. at L., 797; act of Dec. 29, 1845, 6 Stat. at L., 1.) It follows, that any person who, within the meaning of the Constitution of the Republic, resided in Texas at the time of the declaration of independence, and continued thus to be a citizen of the Republic until the period of annexation to the United States, became thereby a citizen of the State of Texas, and was not competent to bring a suit, in the District Court of the United States, against other citizens of the same State. The only point which presents any difficulty is in relation to the meaning of the phrase, 'who were residing in Texas,' used in the Constitution of the Republic. There can be little doubt, however, that the framers of the Constitution intended this phrase to be equivalent to the corresponding one, 'who had their domicil in Texas,' and did not design to deprive of their citizenship those who were physically absent from the country. Many of the most respectable and deserving residents of Texas were not, personally, within the limits of the Republic at the date of the declaration of independence. They had been forced to leave the country, temporarily, by the advance of the Mexican army; they had accompanied their suffering families to the refuge offered by the United States, on the eastern bank of the Sabine; they had been sent on missions by the General Council, to arouse the sympathies of the Western States; they had returned to their former homes, to bring their wives and children, left there during hostilities, to the country now redeemed by their arms. The history and legal annals of Texas are filled with examples. (Yoakum's History of Texas, vol. II, pp. 34, 36, 118, 125, 175, 181; Ordinances of Gen. Council, pp. 52, 55, 56, 58; Republic v. Young, Dallam, 464; The State v. Skidmore, 5 Tex., 469; Russell v. Randolph, 11 Tex., 464-'6.) It could not be intended by the Constitution of the new State, then in need of citizens, and anxious to attract them, to disfranchise such persons by a rigorous and literal application of the term 'resident.' And this conclusion is confirmed by the established meaning of this term. (Lambe v. Smith, 15 Mees. and W., 434; Hylton v. Brown, 1 Wash. C. C. R., 314; Blanchard v. Stearns, 5 Met., 303; Crawford v. Wilson, 4 Barb., 522.) It is true that in some instances, especially in cases arising under attachment laws, it has been said that residence and domicil were not always equivalent terms, and that a citizen domiciliated in one State, might have a temporary residence in another. But these decisions were based entirely upon the consideration of the object and intention of the particular statutes which were then to be interpreted, and do not deny that in other statutes, having a more enlarged purpose, the two terms would be regarded as identical. Strictly speaking, the more fact of inhabitancy does not constitute a domicil; the intention of remaining must also exist; but it follows, from this very rule, that a domicil implies and presupposes a residence, and that one who had his domicil in the Republic of Texas, necessarily resided there—legally, if not physically. The position here assumed is strengthened by the fact, that at the time of the declaration of independence of Texas, the western portion of the new Republic was filled with the military forces and political adherents of the invader. It would be the height of absurdity to suppose that the framers of the Constitution designed to convert the troops and the supporters of Santa Anna, then actually within Texas, and with a literal residence in the country, into citizens of the revolutionary Government.

If, then, the Constitution of the Republic of Texas conferred citizenship upon those who had their domicil in the country at the time of the declaration of independence, it will follow that Catherine McMasters was a citizen of the Republic. It appeared by the allegations of the plea that the domicil of her birth or origin was in Texas, at the town of Goliad, and that domicil certainly continues until another is acquired. (Somerville v. Somerville, 5 Vesey, 787; Monro v. Monro, 7 Cl. and Fin., 876; Mascard de Prob. concl. 85, No. 1.) To acquire another domicil, an intention to abandon the domicil of origin must exist. (Monro v. Monro, 7 Cl. and Fin., 891.) And an absence of fifteen or twenty years is not in itself, without proof of such intention, sufficient to forfeit the original domicil. (Merlin, Repert. Domicile, § 2; Dalloz, Dict. Gen. Domicile, § 1, Nos. 9-13.) In the case of Sanint Germain, absent in India for forty-five years, it was decided that such absence, without proof of his intention to abandon his residence in France, did not divest him of his domicil. (Dalloz, Jur. Gen., vol. 6, pp. 383-'4.) The intention or animus, thus essential to the acquisition of a new domicil, must be a legal and disposing will, and the voluntary act of a mind capable in law of acting. It can only be evinced by a person sui juris. (Somerville v. Somerville, 5 Ves., 787; Guier v. O'Daniel & Young, note to 1 Binn., 349, 352.) And, a fortiori, an infant or child cannot be capable of such as intention. Nam infans, et qui infanti proximus est, non multum a furioso distat. (Inst. III, 19, 10.) A minor, without parents or legal tutor, can therefore never lose or abandon proprio marte the domicil of origin. (Story Confl. Laws, § 46, 506, note; 1 Burge Comm. Col. Law, 38, 39; Pothier, Cout. d'Orleans, Ch. 1, sec. 1, Nos. 12-18; ed. de Brugnet, vol. 1, p. 5; Desduitz de St. Pierre v. Revel, Sirey, 35, p. 2, 556.) And this principle has been repeatedly recognised in the decisions of the Supreme Court of Louisiana—a court the most conversant with such questions. (Robbins v. Weeks, 5 Mart. N. S., 379; Succession of M. J. Robert, 2 Rob. La. R., 435-'6.) It is true that the surviving father or mother, that is to say, the natural tutor, may change, at will, the domicil of the minor, and transfer it to a different country; (Potinger v. Wightman, 3 Mer., 67, 79;) but this power does not extend to a mere friend, or to a person assuming, without the direct authority of law, the custody of the minor's person. (Robbins v. Weeks, 5 Mart N. S., 379.) These rules are well explained by J. Voet, in his Commentaries on the Pandects, (Lib. V, tit. I, No. 100,) where he says, 'Ut enim haud difficiliter admittendum sit minorennem non magis posse domicilium mutare quam contrahendo se obligare; tamen quemadmodum contrahere auctore tutore permissum ei est, itaque et domicilium cum patre matreve, tanquam tutelae ejus aut saltem educationi praeposita, tutoribus caeteris non contradicentibus, mutare nihil vetat.' It is because the authority of the tutor supplies the defect of legal capacity or volition in the minor, that the latter acquires the domicil to which he accompanies the guardian; but as the authority of the delegated or appointed tutor ceases when he removes beyond the limits of the country, (Johnstone v. Beattie, 10 Cl. and Fin., 42, 87, 113, 148,) only the natural guardian—the parent of the minor, whose power remains unimpaired—can change the domicil of his ward to a new country. (School Directors v. James, 2 Watts and S., 568, 572.) These principles are substantially recognised in the case of Hardy v. De Leon. (5 Tex., 234-'8.) Sylvester De Leon resided in Texas at the date of the declaration of independence; in 1838, he was removed by the military authorities of the country to Louisiana, where his son, Francisco Santiago De Leon, was born; the wife of Sylvester died; the family then removed to Tamaulipas, and children were left in the care of their grandmother, while Sylvester returned to Texas; after a short visit, he again went to Tamaulipas, with the intention of returning to Texas with his children, but was killed on the road. Francisco, his youngest son, however, came to Texas, and lived at Goliad; and in a suit commenced in his name, it was pleaded by the defendants that he was an alien enemy. The Supreme Court of Texas held that the plaintiff's father, Sylvester De Leon, had never lost his citizenship in Texas; and if he had, or if his citizenship did not attach to his infant son, born in Louisiana, still the domicil of origin, acquired by the birth of Francisco in Louisiana, could not be forfeited by his removal, during minority, and without his own...