Letter addresse 
 Conf Pam #624 
 
 DTTObEEMS 
 
LETTER ADDRESSED TO HON. WM. C. RIVES, 
 
 r.Y 
 
 TOHlSr II. OILMEIi, 
 
 ON THE 
 
 EXISTirsC STATUS OF THE REVOLUTION, &c, 
 
 RICHMOND, November 1, 180?. 
 ITonnrahh WVll.nn C\ Rivrx : 
 
 Sir, — You have tlic honor (o rcprc>=cnt the Aibcmarle district in the 
 Qougjf^H of the Confederate States. That body is about to meet under the 
 most appalling; circunistancos. The period has now arrived in VircriniA which 
 challenj::cs the honest and fearless effortg 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 conflictin<i jrovernments, whose rulers seem actu- 
 ated more by blind pa.«sion thnn inP -need by enlightened reason; who seen 
 to have grasped and held the reins "i [..iwcrthat they might oppress the people, 
 destroy the individuality of the States, and crush individual rights undtr the 
 iron heel of a military despcti^m. to the utter subversion of constitutional law 
 and the extinction of all true uKinhood. 
 
 These are strong t^rnis. But are they not true ? As to the Federal govern- 
 ment there can bono <iuestion; it stands outlawed before the civilized world; 
 stereotyped in its own scll-pullutiou. Let us review the b.ief history in « few 
 prominent points of the ConfederatL- government, and test it by the guage ot 
 the law?, and weigh it in " the balances (>!' the constitution." Empty words and 
 ▼ague implications are now useless. History is her own best expounder. We 
 live in the burning light of historic despotism, while we profess to wor.-hip at 
 the " altar of freedom."' Deeds speak out, and will not yield to soft appliances, 
 or be glosi<cd over by hollow pretensions. The representative who now allows 
 himself to be biv-dwinkcd and muzzlod is worthy of the fate which awaits him, 
 and must soon overtake the people and States it '-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 recog- 
 niaed 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 sci ;nce of free government;" because you are the representative ot 
 the AIb^m"r/r district, and reside in that noble old county where lie the bone« 
 of my revered ancestors, and where I first learned the lessons taught by the 
 "great appstlcs of liberty." You know me, sir; you knew my ancestors. Witk 
 that knowledge you will at least do me the justice to admit thot my motives ar« 
 pure, as my object is honorable. No true son of Albemdrlc can ever fear to 
 plead the caui^e of constitutional freedom and true manhood even before a nation 
 inanng. 
 
 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 cot protect the constitution from the vandal handi of those who seek 
 its destruction? Are wc to barter all for the poor privilege of choosing mas- 
 ters ? Are the laws to prevail, or arc we pliable minions of executive and minis- 
 terial self-will? Is Mrginia a sovereign State or a vas-al of Confederate- dominion ? 
 Is the militnry or civil law to prevail :' Arc all courts to be closed, al! i'^imedie^ 
 
annalled, and every vested right placed at the disposal of the executive and liia- 
 
 ministers ? 
 
 These are not idle questions, as I shall show before I close this letter. I 
 ehall take care to '* speak by the card," nor will I write a word which cannot be 
 "vouched by the record." The naked truth is lar too appalling to need the 
 slightest cmbelli.«hiuent. It stands forth recognized by all men who are not 
 blinded by jiassion 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 uther rea.son which induces me to address you this letter. 
 You, unfortunately for the country, I will not say for your own great fame, ad- 
 vocated, at the la.'^t ses.sion of Congress, the suspension of the writ oi' Imheux cor- 
 pus. In that position I fear you inflicted a severe blow on the main pillar of 
 all constitutional government. The case which I shall furnish y<'U with is an un- 
 answcrablcf fact, which no eloquence can dislodge; a conclusive deduction, which 
 DO sophistry can weakon. It will disclose the vital importance of always pre- 
 serving sacred that shield to jicrsonal liberty withoiit which civil liberty is a 
 mere shadow. It is not to be disirui.^ed that this erand bulwark of civil liberty 
 has been sported with in this revolution ju; though it were an ordinary :ind un- 
 important remedy — to be allowed or denied with as little regard to consci|Uences 
 as though it wore 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 lull at the doso 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. I'ouder over it,, 
 sir, in its ample developments, and tell me if it does not indicate a sad state of 
 ministerial oppression and executive neglect '/ AVhere is the patriot who will 
 oppress or neglect the veteran and war-worn soldier"' Whore the statesman 
 who *ill countenance the deliberate violation of the laws'/ Where the reprc- 
 eentative wlio will allow the sanction of his own legislation to bo sported with 
 as a worthless injunction '! Wiiere the Mrgiuian untutored in the art of tyranny 
 or unschooled in the appliances of fraud who will recognize the right of any 
 power to violate the solenm com]»act3 of A'irginia 'r* What^docs this case (con- 
 sider it closely I disclose 'f I Joes it or not establish the fact that the Secretary at 
 War has accomplished all this'i' Does it or not show thai Mr. Seddon has as- 
 sumed to violate this compact of Virginia? That he deliberately refused to 
 appeal, as directed by the I'rcsident, to the law of the case 'r* I>oes it or not 
 show that in thi< high neglect of an imposed duty the Secretary at ^Var has been 
 sustained by the President, whose directions he disobeyed';' 
 
 Hut 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 arc pure, however unpleasant the subject matter. Vou are a ripe 
 statesman, and familiar with the thoughts and writings of that v:reat man, iOd- 
 round Hurke. In his letter to " a member of the National Assembly " he uses 
 these words : " there is no safety fur honest men but by bi;iieving a^i possible 
 evil of evil men, and Ity acting with promptitude, deci.sion and steadiness on 
 that belief.'' Again, in his " Jteflections on the Kcvolivtion in France," " IJet- 
 ter be despised for too anxious apprehensions than ruined by too conlident secu- 
 rity." And tho.se beautiful words and noble thoughts wliich 1 heard you recite 
 in your masterly style in your unfortunate advocacy of the repeal of the writ of 
 hahrtix rnrjiiin iust session. 
 
 " IJut Avhat is lihrrti/ without wisdom and without virtue '::' It is the greatest 
 of all possible evili?, for it is I'olly, 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. Hut to form a 
 frc>: yoiernmtnt — that i.s, to temper together these opposite elements of liberty 
 
and restraint, in one consistent work, requires mueli thought, deep reflection, a 
 sagacious, powerful, combining mind." " llage and phrensy will pull* down 
 more in half an hour than prudence, deliberation and forethought can build up 
 in au. hundred years." 
 
 T design no flattery, sir, when I appeal to your '■'■ reflecting, sagacious, power- 
 ful, combining mind." We arc in a deadly strife, with an unscrupulous and 
 revengeful foe. We are in war, a fearful and blood}' war, fighting for constitu- 
 tional liberty as states, and vested rights as individuals. Executive and minis- 
 terial oppression, in violation of chartered franchises, caused this war, and jus- 
 tifies this revolution. To escape official and governmental oppression, we can 
 well afford to bc(}ucathe this war, with its sacred trusts, to our posterity. Eut 
 if we arc to be oppressed without law and against law, then, of all things im- 
 aginable, 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 licartsof the people; it is ineradicable, pervasive — stronger 
 thau the love of life. We fight for state independence and individuui vested 
 rights. Deprive us of those inestimable blessings, and we arc the slaves of an 
 irresponsible power, as hateful as it is despicable. 
 
 To quote once more from IJurke — " lu all mutations (if mutations must bo) 
 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 ef properti/." What maxim could be more ap- 
 plicable, more instructive, more admonitory ? 
 
 In this spirit, and under .^uch lofty sentiments, I ask you to con.sider 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 't What 
 oppression more galling to tho freeman than to be denied hi,'- legal franchises, 
 without the semblance of law to snstain the denial i* And yet, when you come 
 to read this case, and eomprehend all of the facts and circumstances attending 
 it, you will discover that, in the face of the solemn judgement of the court ad- 
 judicating the principle, each of these veteran, war-worn soldiers, whose charac- 
 ter, worth and positiun are not over-drawn in ui}- argument, was recjuired to sue 
 out his individual writ in order to avail himself of the operation of the adjudi- 
 cation. And yet wo profess to be waging this war for the protection and en- 
 forcement of Individual ve^ted rights ? 
 
 But you may ask why agaiu agitate this question ? The answer is at hand. 
 Because this flagitious violator of the adjudicated rights of the sn/difr is still 
 in office, unrebuked, unchecked, and as avaricious of the illegal exercise of un- 
 authorized 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 rclio jhjlits for liherti/ is entitled t<> thf hlex^inij& 
 of h</(il jirote<-ti'in. 
 
 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 p;iss into the hands of Congress. 
 And in thus communicating it, it is pertinent to enquire, vhether the. Jiidfjment 
 of n L^onfederale, court ^ upon d (Jonfediwote Jov:, is inferior to the mere official 
 whims and ministerial pertinacity of the Secretary at War? Is the Judiciary 
 to be subordinated to the mQrcroli/ion of the Secretary at War? If not, arc 
 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 av.thorili/, and under what color of 
 right, is the soldier to be hold until i*eleascd, 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, hew many soldiers we shall have? but 
 
 14-1^5111 
 
•whether all the adjudicated rijh(.< of the soldier shall be respected? and if not, 
 what is the proper rcnjedy against the officer who disregards them? The 
 strictest discipline in the army is absolutely necessary. TJir .voW«Vr must ohey 
 the nrdi rs <•/ his superior, implii-i!l>/ tnul irithout f/ita!ij}rii(in)t. But must not 
 the Secretary at War obey the law/ respect adjudicated rights? The higher 
 the officer, the more sacred the imposed duty of ohxlitiirr to tJie Imr. The 
 member of the ''abinct who seeks to extinguish the light of the law, is indeed 
 a poor and dangerous worshiper *• at the shrine of liberty." Th.- Secretary at 
 War who disobeys the injunctions of the President, and neglect.-- the mandates 
 of the Judiciary,' is setting an unworthy example to«M^norals under his authority. 
 Kx l*KiiK Heucilem. 
 
 But there is yi-t another and higher view of this <:.sr, which merits j'our 
 eonsidcration. It points to the " inner temple of the altar," and is suggested 
 by the inquiry, " What, in these eases, would haw become of the rights of 
 fhese soldiers, but for the writ of /K///r«.s ror/x/v.^" This renders necessary a 
 i>rief review of the jH>silion occupied by the Adminisiiation on this important 
 :ind vital qnciStion. I respectfully direct your attention to it. It is admonitory 
 and suggo.-tive. It is inip-r/tant 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 wo niay not derive edifi- 
 cation even Irom our own reflections, when conducted in the proper spirit. It 
 L? only by degrees that the atmosphere become- impregnated, jiarticle by 
 rarticlc, with the poisonous malaria : so it is by degrees — liorc a slight move, 
 and there a cautious and stealthy step — that the goal of tyranny is reached. 
 " Pltcrnal vigilance is the j>rirr nf liberty." 
 
 Now, sir, with your accustomed sagacity, read General Orders, (anry) cur- 
 rent series, 1S()2, Nos. Ji/rtr, t/rri'u. ji/trcp, ei(jh''rn, tvi')ift/-nii<\ thirti/-thre«. 
 (hirti/'firc, f'lTtij'txvn, fifli/'jii-f, f/iij-si.r and sixtij->-ly. Read them, «ronsecu- 
 tively, and your mind will stand aghast at the concrete evidence of absolute, 
 arbitrary, irresftoiisible, 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 di^cover all civil remedies 
 (suppressed, t\\^ courts elo.'jed, except in such cases us thoy are ^' jtrrmittrd" to 
 s-if h}i milit'ir;/ f/r'/rrs. 
 
 What, sir. would W.\suiN(.tun have thought of such orders? What, sir, 
 would Wythe and Pendleton, Marshall and ('arr, ]{;irbour and Daniel have 
 thought of sucli meagre "■prrm/.^aiotin?^' What would Henry and Lee, Bland 
 and iMadison, Jellerson and Randolph, Monroe and Taylor, have y"'-^^ under such 
 mandates? W/irrc is the ajtirif <>/ our ancestors;" Where the genius of our 
 ancient institutions? You form, as it were, a link, a precious nnd cherished 
 link, between tliose great men and the present gf^noration. It is a link of 
 "choice gold" — let it not be alloyed, in the furnace of he.nted passions, which 
 should but heighten its (juality and purify its materials. Look back upon the 
 past. Cast a hopeful glance at the luture, 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 I'orward 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 sub- 
 due phrensy, sanity-must be restored, or all is ,lost. The people mourn, the 
 State tremble,-^ to her ibundation. The sentiment of a lofty patriotism burns in 
 every bosom as briglitly as ever; but the mad rule of red republicanism at the 
 South, and black republicanism at the North, lil^e the ''daughters of the horse 
 Icaeh," cry out for dominion, for absolute swny, over constitution, laws and 
 people. Is there no remedy? Are the States doomed? the people enslaved? 
 
 Look now, sir, at General Order No. thirtj/-onr, current scries, 1804. What 
 •a lesson fhaf teaches to Virginia? Ponder well its provisions, its mandates, its 
 chains, forged by hasty Icgi.slation, to fetter the will and manacle tlic action of 
 a proud, liigh-souled, brave people, who prefer death to dishonor, the grave to 
 political serfdom I Are we fighting to sustain one tyrant against another ? Arc 
 
sovereign States to bow down, in the dust, to the imperial will of thoir agent — 
 created, endowed with a burrowed life, that it nHi;;ht impart fresh vigor to con- 
 federated vitality ? Is there no " breathing time to reason," in which the darker 
 passions shall be subdued i* Surely not, if the reign of terror is to be pro- 
 tracted, 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 jioircr, and not for ri;//it f for absoiutit^m in govern- 
 ment, and not rvnslliulinnal rfstrainfa vpon (jocernmcnf ? Are we a betrayed 
 people? enslaved States? Is the will of the Secretary at War /o he the law of 
 the land ? Js his merr rolitldv to si/cnce the laws, fdlcr the courts, oD^lave. the 
 citizen? These (juestions arise from the ease reported, and the orders quoted, 
 and wH.sV be an>;v:ercd. If any one is so lost to a sense of the existing exi- 
 gences of the country, as to answer them in the alRrmative — and the past is to 
 be re-enacted, iu the re-adoption of similar acts and orders — he who will consult 
 the " oracles of the dead" will read this siguilicaut question — *'Is it not time 
 for Virginia to look to her colors and close her columns'/"' 
 
 But, sir, your enlarged experience, your ripe statesmanship, yoiir proi'ound 
 sagacity, will discover the remedy. It is in Congress. It is at hand. Curb 
 executive power; restrain it within its eoiutitxdional limits ; rebuke ministerial 
 presumptioa ; manifest the power of the law, and re-kindle, by legislative 
 energy, its well nigh extingnished spirit, in the coufidence of the people. Let 
 them feel a.-<.<ur<:(l that the lavrs are wise, just, constitutional, and that ihey shall 
 be fairly and scrupulously executed ; that tlic Confederacy is not a grand prison- 
 house, over which the Secretary at ViiiY preside;-:, in the gloom of an intellect 
 obscured by an official i(iio.\//tiriaii/,v<im\led only i.y the selfishness of his policy. 
 Teach him to realize that the War Department is under Congreiu-ioual super- 
 vision, and he'd in trust for the be/ujit, not the opprcssiun, of the people and 
 States. Teach him that law is over him, and not lie 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 
 inere shadow of a withered substance. In a word, sir, restore the i^pirit of the 
 Coni>ti/ufi(>n ; re-invigorate tiie genius of the revolution, by shielding the liberty 
 of the citizen, and protecting the vested rights and adjudicated status of the 
 soldier, and ha iriU protcci and save Staxk^ovkrkignty. 
 
 This revolution does not move iu a circle, of which the Secretary at War ia 
 the centre. It is dcop-laid in its f-»nndntionp, pervasive in its spirit, wideninc" 
 and strengthening in its infiuencc. It rests on proud, sovereign, iiidependeni. 
 States, who '*'arc masters of the position." Xo puny arm can control it. Its 
 motive power is the v:ill of the people; its true test, the innate power of the 
 States; its object, anything but man-v.or-ihip 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 wcll-.'-fored 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 Vinjinia bend the knee and bow the head to any 
 earthly authorit}'. North or South, which seeks the demolitior. of her "ancient 
 prerogatives," more sacred than the glittering diadem in any kingly crown ? 
 
 I now, sir, cull your attentioa to the cases refcred to, and commend them to 
 your consideration. 
 
 UK^IIMOXP, August 25, 18G4. 
 To Tfis Ex^'iJleury Prrsidcnt Diiei.i: 
 
 Sir : — I have tho honor to address you, as counsel for twenty-nine members 
 of the First Maryland Artillery, (';ipt. Wm. F. Dement. 
 
 These men enlisted, as citizens of Maryl:;nd, for a specified and agreed period 
 They have faithfully performed their respective engagements, as I am informed 
 
6 
 
 and respectfully asked their discharge. The matter was referred, in the regular 
 way, to the Ilonorable, the Secretary at "War, for iustructious. He, I am in- 
 formed, refused to disehar^'e the?c men, and directed that they should be re- 
 tained in military service, under his orders. 
 
 From this ruling, I am informed, ('apt. Dement respectfully appealed to your 
 Excellency, some time since, enclosing the original papers, with the endorse- 
 ment 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 whicli 
 circumstances it is made my duty, as a preliminary step, to possess myself of 
 the papers placed in your haud.s. 
 
 M:iy I be allowed, most re.>pectfully, Ui suggest that, if not, in your opinion, 
 directly adverse to sound polity or accredited administrative will, it woulo be 
 advisable to discbarge these nicn, without a resort to their ascertained legal 
 remedies? It will not, I hope, be regarded as psesumpluous iu nie, to express 
 the opinicfti that they arc. in law, entitled to a discharge; nor will this respectful 
 expression of opinion, it is hojicd, be deemed in the light of any reflectiou on 
 the ruling of the Honorable, the SecreUiry at AVar. 
 
 There are, however, I resjicctfuUy 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, 1 very respectfully ask that yon will, at your early conve- 
 nience, enclose the original papers to 
 
 "Very respectfully, your obedient servaut, 
 
 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. Examinrr : 
 
 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 Urame tJiei/ were Man/lawhrs. This is a mistake. It should be 
 corrected to prevent serious misapprclicnsion. I send you a copy of the j'oints 
 of mi/ <u-ij)uneut, icith the opinion of the Icurned Juihjeirho adjudieotrd the cases. 
 You will please publish them, and send your bill to me. Judge Ilalyburton is 
 perhaps the most learned and accouiplished Confederate, judge on the bench. — 
 For patriotism, lofty iutogrity and sterling merit, he has not his superior on the 
 coatinent. Pure as lie is learned, patriotic as be is firm and conscientious, his 
 julgmcnt in tlu-S'.> cases is a full guarantee to the country that my t-licnts are 
 clearly entitled to their ilischarge on legal and constitutional grounds; and this 
 fact should not be misappreheuded or misapplied. 
 
 llespectl'ully, 
 
 .]. 11. (ilLMEll. 
 
 Notes of Ai-i/iinient Delivered in Jadije Jhdijhurtons Court hi/ John JI. Gil- 
 mer, in U< /dij to the An/nnifnt of Mr. Sandft, in the Cases of J. 11. Bris- 
 coe and OiJiers, Miiri/lonilers. 
 
 Ifai/ it jiirasr the Court : Before I proceed to answer the very ingenious, 
 able and eloquent argument, of niy learned friend, it is proper that I should no- 
 tice particularly one remark whicli fell from his lips, 1 hope, inadvertently. — 
 TUc learned attorney said, in his concluding remark.s, that •' any other govern- 
 ment but ours would have nsis/nl these ojiplieations." 
 
 Sir, these were strong, siguilicaut 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 frej that I stand in the presence 
 of, and before, an august tribunal, where all passions are silenced, all prejudice 
 hushed, all porcer subdwd, by the "still sraall voice" of justice, emanating from 
 that source which aws into suhjcction 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 treasou 
 against the constitution and open rebellion against the laws. When your judg- 
 ment in these cases shall have been announced, it will be the law of the laud ; 
 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 authoi'itative than " an army with banners," more conclusive than all 
 other orders combined ; am/ it cannot he rcsistn/. 
 
 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 
 «very conceivable means at his disposal, up to this point, rrs/.s7al these applica- 
 tions. Yea, sir, he has gone farther — he has disregarded the expressed wishes, 
 put aside the written directions of the President as to the disposition and con- 
 trol of these cases. This I say ''more in sorrow than in anger." His state- 
 ment 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 reason- 
 ing and authorities which I might, in my poor way, adduce and ofi'er 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 oj)inio7is, 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, 
 a* if ffands expounded, declared, illustrofed and enforced, on the jyafjes of 
 reported cases, bindimj even on, this court, because they arc adjudicated. 
 
 You and I, sir, here at least, know the value of the written law; declared 
 princijiles, adjudicated cases. The judgment of a competent court — well-pro- 
 nounced and recognized as authority — is as permanent as it is pervasive, as uni- 
 form 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 
 j^djudicated 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 govern- 
 ment may indicate. It is, then, to that tribunal I address nij-self If my cli- 
 ents 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 cli- 
 ents 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 dis- 
 charged at the expiration of the three years. These were the stipulated, exe- 
 cuted terms of their enlistment. Virginia assented to these terras. She after- 
 wards turned these men, u-ith this contract, over to the Confederate States. — 
 The Secretary at War accepted them, and, along with them, this written agree- 
 m.nt. Here is the whole case. And yet these men, after the expiration of the 
 period of their enlistment, arc still claimed by the Secretary at War as soldiers 
 for the war. Can this asserted claim be sustained ? 
 
 X, 
 
8 
 
 First, as to the facts. What I have just slated is in full proof. But this is 
 not all. It i.s proved that when tliasc citizens of Maryland volunteered in the 
 service of Virgiaia, they then, and have always since, intoudcd to return to 
 Maryland at the expiration ol" the periud of their enlistment. The act and 
 teriiis of enlistment jjrovc this. Their uniform declarations hincc prove it — 
 their r.ppl'uation lor a dischar-c coulirms it. Uut this is nut all. It ig io 
 proof, by their couiinandcr, that tlicy have ail been true to their contract; that 
 they have performed their whole duty, at all times, under all circunistances, and i 
 under every tri;d. They have been brave, obedient, -allant 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 fuithlul, brave, efficient soldiers. Yea, 
 more: that they arc now true, loyal, hifjjh-toncd, devoted friends ol" the Confede- 
 rate cause, and would have, Io a man, rc-ciih'st^d, ij the i^itxrclnri/ tit War lnui 
 usknl t/teir imi<rs,/or fhr hatancr of thii rtnnpuiijn. Such are the facts at 
 to the petitioncrH. ilow do they stand as to the .Secretary at War? 
 
 On the J^lh July last, Captnin Dement addressed this note to the proper 
 authorities : 
 
 "('AMI' I'liisT Mauvi,ani> Battkry, ^ 
 
 "McImoSH's JiATTALJON AhTU.LLHV, V 
 
 '•■July Mh, 18()4. ) 
 " Col. ^y. H. Tai/lur, Assin/ant Adjutant General: 
 
 "Sir: I respectfully ask for the proper authority to discharge certain 
 members of my company, i First .Maryland Jiattcry), whose term of service will 
 expire on the loth July, 18()4." 
 
 This letter was, by order of General Lee, referred to the Secretary at "War, 
 who returned it with this endorsement: "lloturncd through General R. E. 
 Lee. The Secretary of War has decided that Marylanders in service may 
 justly be considered as iStayin;:; in the Confederacy for an indefinite period as 
 residents; that they have east their lots with us, and arc liable to like duties, 
 in resisting a common enemy, -with our own citizens. Thc.<c men will be re- 
 tained in service^" 
 
 Captain Dement, not precisely compreheuding this novel mode of constituting 
 Marylanders in the service, under a special contract, and for a limited period, as 
 "residents," appealed to the l*rcsident. No reply being received from the Pre- 
 sident, my services were retained. These petitions were filed, after an effort on 
 my part, in the m«st respectful manner, to prevent litigation, without success. 
 Now, these parties are here before this court, with one other singular fact oil 
 the record, which it is proper to comment on as an important branch of the his- 
 tory of these cases. It seems that the letter of Captain Dement, addressed to 
 the President, was, on the lijjd 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 i'ouuded on a construction of laws ap- 
 plicable to the case, I suggest that the record be presented, with these letters, 
 and referred to the Attorney General ibr an opinion. 
 
 jEFlr'ER.SON DaVIS." 
 
 The Honorable Secretary at War inforius us that reference was never Lad. 
 The Attorney (ieucral was never consulted, because, says the Secretary, he and 
 Judge Campbell concurred in the opinion that tlic law was against the appeal, 
 and it wasj not necessary. This is to be regretted. IJut, sir, the opinion of the 
 Attorney General, had it been given, would not have been conclusive in this 
 oourt 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 1 ht:lircr it tu cxitft, with the remark that the Presideafe 
 has, in this matter, done his whole duty to the.<-e men. 
 
 liy what authority the Secretary at War arrives at the singular decision an- 
 nounced, I am at a loss to know. It is not only, in my opinion, against all Liw 
 in all civiUzied countries, but it has not (I say it with all due r<spout) the sem^ 
 blancc of law to stand on or under. Not an elementary writer, or an adjudi- 
 
cated case, that I am faiiiiliar with, coun'.enanccs such a conchision. They all 
 repudiate it. TLcy all establish, or teud to establisl), precisely the reverse. 
 The very authors rcicrred to by uiy learned friend establish the converse of his 
 proposition. I iictsd not cite them. They arc too ianiiliar to your mind to 
 need special citation here. I'hilliniore, Bduvier, Doniat, Story on Conflict of 
 Laws, Kent — all refer to the general principle as to (Inmldlc. They all treat 
 thid question with learned refinement, and from them all the grand criterion is 
 / the intention, the ijud (ininin, of the party. Rcsideuce is but one of the indiria, 
 an elemental ingredient among various other factx and cimtrnsfanres. But, 
 after all, then; must hf a domicile, acconijncuicd uith thr formed, ascertained, 
 estab/ig/ied intention of remaining, or rather of not returniug to the fornn r domi- 
 cile. Here is the grand test fact on which the entire structure must rest. 
 
 Indeed, sir, I need no I'urther or other anthoritij against the Secretary at 
 War than his own published orders. They estop hiia iu the.sc cases. They 
 must have been drawn by a liarnrd laici/tr — perhaps the eminent gentleman, 
 Judge Campbell, v.hose <ij>iui(>n is now invoked in this court by luy learned 
 friend and the Secretary at War. General Order No. Sli, current series, 1802, 
 paragraph IV, treats of the.^e very cases : 
 
 "1. Foreigners not dumiriled in the Confederate States aic not liable to en- 
 rollment. Domicile in the (yonfedcrate States consists in residence loilh inten- 
 tention jurmanentlj/ to remain in those States, and to abandon domicdc else- 
 where. Long residence of itself docs not constitute doviicib:. A j^erson may 
 acquire domicile in less than, one year, and he may not acquire it in twenty 
 I years' residence. If there is a determination to return to the notice eountri/, and 
 to retain the domlile ther.; ^0 LENGTH OF EESIDENCE CAN 'CON- 
 FER DOMICILE." 
 
 This is sound law, deduced by a skilled and learned mind from the very 
 authors now cited by my learned friend. IJy this rule, are the petitioners resi- 
 dents/ Are they within the scope, object, or purview of the act of Congress ? 
 Where have they domirilrd 7 \n what house have they resided? Their resi- 
 f^ dene has been on the tented lield, in the thickest of the fight — many of them, 
 gallant, heroic men, in the grave — leaving a few only to claim the resulting 
 bendits of the original contract. 
 
 But iiiy learned friend sjys they intended to remain in the (^'onfederate 
 States il Marjlaud east her4ot with the Lincoln dynasty. Indeed ? AV'here 
 is the ] nuf of this? It is not to be presumed. JJut they were '-traitors to 
 their Si re" if they came here intending to return under such cii-cumstances, 
 says thf attorney. Indeed? And who declares them traitors cxcpt my 
 learned iiiend? Traitors, sir? I respectfully repel the imputation. They are 
 brave, v ultivated, patriotic Marylnndi rs, who came ioVirginia, under a contract 
 with her to iiglit the battles of Maryland and Virginia — twin sisters in all the 
 past; in^:eparable iu 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 weop over her down-trodden posture. But, sir, the time is not 
 far distant when Maryland will rise 0(jual tu the occasion. The grasp of ty- 
 ranny is not perpetual. The tread of the tyrant is not as measureless as the 
 monotonous step of the AVandcring 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 sous, panting to grasp the weapon of ven- 
 geance on their beloved native soil, and thus aid in hor redemption. 
 
 Tlie petitioners, traitors ? Sir, such treason is holy devotion to constitutional 
 liberty and eternal hatred to usurped powers of abitrary government. 'J'raitors ! 
 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 aud around the altar of liberty ! And is that treason to 
 Marylan>i? • 
 
 Traitors I When aud how has the Secretary at War arrived at the opinion 
 
10 
 
 that Maryland is doomed and lost to A'irginia? (Jod joined fh^.tc States by the 
 indis.-oluble ties of territory, inland and ocean links. Separate as States, their 
 people are homogenous — their destiny is on<- un<l the mmr. 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 ytt draw them 
 together. Maryland will never turn her back, on Virginia and wed herself to 
 the black hearted people of N«w England. No, sir, Maryland is yet a sovereign 
 State, and as such, these petitioners — her citizens — are no traitors in fighting 
 under A'irgiuia'." banner for Maryland's redemption. 
 
 But, says my Karned friend, these men are *' not traitors." They left Mary- 
 land with no intention of ever returning if she should not become one of the Con- 
 federate States. Where is there any evidence of this ? Non*-, 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 s'j(i<f /nris in tht aue. 
 
 Eut, says my learned friend, the Secretary at "War complimented, ami was 
 anxious to protect these men in his retaining order. I can only say save me and 
 my clients from such complimentary protection. As Marylandcrs, they enlisted; 
 as Marylandcrs, they served out the period of their enlistment; and now claim 
 their discharge. Shall they be denied ? What ."oys tJu hur : Are thoj resi- 
 dents within the terms of the law y 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 Mdn/lamhrs. That 
 is not the ground. Suppose they were all J-Jit<jlish subjects, enlisted as now for 
 three years, what court would refuse their discharge ? Sir, these men stand be- 
 fore you to-day as though they were Italians, domiciled in Home; or Irishmen, 
 domiciled in Ireland; or Massachusetts men, domiciled in Boston — that hot-bed 
 of hellish propensities. And shall they be treated by u different rule of law 
 from what would apply to their ca.se.s if they were Italians, Irishmen, English- 
 men or Yankees ? The law books say not. 
 
 But, say.i my learned friend, these men are only restive under military re- 
 straint; they want a holiday. 
 
 Indeed I 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 ball.s flew thick and fast, and death 
 claimed almost every third man t When were they, or any of them, restive, or 
 absent, or derelcct in duty, while the battled hosts of the enemy hurled their 
 missiles of death around them swift and thick as hail? 
 
 R<:»t!ip I 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 a.s firm as the soil on whiih they stood, their resolution as im- 
 penetrable as the metal of which their cannon was formed ; their eyes uublanchcd, 
 theii- hearts proudly beating in hijjh 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 I sir, the word will 
 out — thcac ;/':n(/rm< /t and patriots — have pcrl'ormcd their whole duty, discharged 
 their entire obligation, and tliey 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 arc 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 can- 
 not be held — so has the War Department, under precisely similar facts, ruled 
 and ordrrcd, in (jtcneral Orders Nos. 44 and 4G, current series, 1862 ; so has 
 Virginia declared, in her legislative acts, paseed in.j)ari materia. Why re-en- 
 list at all, if by joining the army they *' may justly be considered as staying in 
 
 ""■^Wr?".^ ■ 
 
Jl 
 
 the Confederacy for an indefinite period ?" Is the term "rc-enlistment" mean- 
 ingless ? 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 irhat the Inw /s, and am not uneasy as to the 
 result. I may have spoken with too much zeal, and manifested too much feel- 
 ing in what I have said. If so, I humbly ask pardon. My whole heart has 
 been enlisted. I feel for the peerless honor of Viiylnln. These men enlisted 
 under her Jiwj. \\\ 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 irt its dimauds 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 pa.ssion and turgid commotion. I have no fear of failure in this grand 
 revolution so long as wc 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 
 the healthful and natural channels; seek not to chill, or pervert, or deplete it 
 by untoward innovations. Virginia is an empire within herself llcspect 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 ac(|uiescence ? 
 
 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 ICth August, 1S61, 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 Con- 
 federacy. 
 
 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, be- 
 tween 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 lor the defendant. Captain 
 Dement. 
 
 The act of Congress, it is true, u.ses 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 
 
[2 
 
 or two, or a month or two — may be, in one sense of the word, a "resident" 
 there. *• When the word ia applied to strangers or travellers," sa^'s Webster, 
 '* wo do not say a man resides in an inn for a ni^ht; but he resided in London 
 or Oxford for a month or a year; or he may reside in a foreign eountry a great 
 part of his life. A man lodjres, stays, remains, abides, for a day, or very short 
 time ; but n^^i'Ir implies a lonscr time, though nut tlrfmiU:.'' 
 
 *' The original national character is not changed," says the learned couDsel, 
 T. A. l^mmctt. in the ciise of Klbtrs and Krafts r.s. the United States Insurance 
 Company, 1(» Johnson, 12S, '-by an O'caxionnf rrsiilrwe in another county for 
 a liinpornri/ purpose. It must be a residence there unimo muratull" 
 
 The Judiie, sj)eaking of the criteria of domicile, in the case of Statiley vf. 
 Bernes, (Jj Ilairgard's l^-jlosia^tical Reports, ) remarks that time alone is not 
 conclusive; for where is the line to be drawn? Will the rtsiiUifc uf u month, 
 or a yrtir, OT flit i/ears, or Ji/'J/ //•'nr.'i, 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 j or to purchase certain commodoties for 
 exportation ; or to study medicine ; or to ob.servc the progress of the war and 
 acquire military information ; or merely to see the country and become ac- 
 quainted 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 con- 
 Bul or commercial agent, or even a minister sent to treat with us on the subject 
 ef recognition. We cannot suppose that (Congress intended any such cxdu.'-ion 
 of foreigners from our shores, nr any sui:h violation of all the rules of interna- 
 tional comity and international law, as this would amount to. 
 
 Besides, the term "resident" has, heretofore, been unilormly interpret-cd by 
 our courts of justice to mean domiciled inhabitant, if I mistake liot ; and if 
 Congress had intended to give it a more extensive significatiun they would pro- 
 bably have said so, or used some other expression. 
 
 Some line of demarkation it is necessary to draw between that cl.tfis of resi- 
 dents who are liable to militiry service and those who are not so liable; and if 
 we stop short of domicile, where shall the line be drawn/ It would be ex- 
 tremely dilficult, if not impossible, for any court or judge to lix upon any other 
 limit satisfactory to liimseli', ;ind 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 satisfact<iry deli ni lion of 
 it has ever yet been givet. 
 
 ]iynkershock, we arc tohl, would not attempt it. 
 
 According to Vattel, "domicile is an hubitation fixed in some ]tlarc wirii an 
 intention of rrmdining thru nhnn/a " \\'ildman (International Lnvr, page 3G), 
 tells u^s that " the domicile of a person is wliere he has taken up his ab')d(' with 
 the intention of permanent residi-nce;" a very unsatisfactory defiintion indeed. 
 
 Judge St'>ry says that the definition givi n by Vattel is not accii'ate, 1( 
 would be mure correct, he thit:ks, to say that "that place is properly the domi- 
 cile of a i)er8on, in which his habitatii>u is fixed, with no present intrntinn of 
 removing thcrei'rom." Conflict of Laws, section 43. " If a person," he ob- 
 Bcrvcs, " has arttually rcmovJ to another place with an intention of remaining 
 there for an iadefinite time, (ind as a place of final present domicile it is to be 
 deemed his place of domicile; notwithstanding he may entertain a jloatintj in- 
 tention to return at some future period." Jdrm, section 40. " Perhaps," saye 
 PhillimDre, (Law of Domicile, page 14), "the American judges have be«n the 
 most successful in their attempts, and, from a combination of their </irfa 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." lie cites Guier 
 
13 
 
 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 /inu'tal period only, he does not aa- 
 quire a new domicile by such removal and residence. In order to constitute 
 domicile there must be animas if factum; the fact of residence must be con- 
 nected with an intention to remain such a Icnj^th of time as the law requires to 
 constitute domicile; or at least there must be no intention to return, no animus 
 revertendij 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 re- 
 turn. <It has been t-aid by some civilians that when a person retained the /«- 
 i^intion of rrturnin;j to his former domicile, a thousiiid y-^nrs would not be suflS- 
 cient to establish a new one." Phillimore uu 1>omici;c', page 14>'. "All jurist* 
 agree," esys this author, ''that there nui«t be //oih iutrnfion and fart to consti- 
 tute a domicile. The French jurists seem to have rather leant to the extrcnif 
 doctrine of the Civil and Canon T^aw, that without intention no length of time 
 can constitute a domicile, to which 1 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 univcrsall}' admitted by all jurists, that the 
 fact is admitted, onh/ as proof of thr intoition, but then there are certain facts 
 which the law considers as uudcnibtcd rridcnrr of that intent ion — tacts which 
 may be regarded as speaking a language on this point, at least equally entitled 
 to belief, with an}' declarations, oral or written, even of the person himself." — 
 Law of Domicile, page 14. 
 
 "There must be miivius ef factum," said the court in Craigie vs. Lewis, .'» 
 Custer's Ecclesiastical Reports, page 485 ; " that is the result ot all the ca.ses." 
 
 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, U> 
 ascertain domicile, another principle is laid down by the authorities quoted, as 
 well as by practice: it depends upon the intention, upon the qnn animo — that in 
 the true basis and foundation of domicile ; it must be a residence sine aniitif 
 revertendi, in order to change the domieiliam arijinis : a tcmporari/ resirjence, 
 for the purpose of health, or travel, or business, has not that effect; it must be 
 u fixed, permanent residence, adandnnin^/, fnait_;/ and forever, the domicilr of 
 origin ; yet liahh atill, to a- xnb^cqit^nt chamje 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. Wv 
 came to Virginia in June, 1S61, soon after the pre?eut war broke out. He then 
 had a mother, who must be presumed to be still living there, as we have no evi- 
 dence to the contrary, and two or three brother.';, land owners, and a sister, wh<t 
 are still residing there. He did not leave Maryland, so far as the evidence 
 shows, or there is any reason to believe, icith- anij inf'-ntinn vhatrrer never to re- 
 turn ; or for any purpose, or to engage in any business which might probably 
 last as long as he lived, or for an unlimited time* lie left there in consequenc- 
 of the disturbed state of the country and his sympathies with the South, which 
 rendered it unsafe, or dangerous and uncomfortable fur him to remain there 
 under the circumstances then existing. He often declared that he meant to re- 
 turn to Maryland when he was discharged ; though it docs not distinctly appear 
 whether he intended to return for the purpose of residing, or ou a temporary 
 visit. 
 
 He came btre, according to the testimony of the witness Browne, for the 
 iiurpose of avoiding danger at home, and for the purpose ot aiding the Coufe- 
 leracy in this war ; and he seems to have come with no other view. 
 
 Captain Dement says that the attachment of Briccoe' and all the other Mary- 
 landers 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, 1801, and 
 ha.s remained in the service ever since. 
 
14 
 
 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 fur 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 figlit against the existing government of that country. 
 
 He is to be regarded, I think, as an emigrant or fugitive from liis native 
 land, on account of civil war: and Phillinioro, in the 11th section of the Sth 
 chapter of his work on domicile, headed " The Emigrant,'' states, in the first 
 paragraph of that section, (he Jaw to be. " that the fugitive from his country, 
 on account of civil war, is liclJ 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 authorifH"^, Mascardus, a»id the case of PeBonncval <-.s. De- 
 Bonneval, 1 Custer's F]cclesi;istical Kcports, ^50. 
 
 The case before n)e due.- not diiier at ail, iu principle, so far as I can discern, 
 from the case of DeBonneval, who, having emigrated from France during the 
 French revolution in 17lt:'>, to Knglaud, was held not to have lost his native 
 domicile thereby The I'-'arncd judge said, iu that case, that there was no 
 doubt that the domicile of origin of tho deceased was j'rauee : for there he was 
 born and continued to reside ironi 17()5 to 171I2, and that "lie left that country 
 only in conseciuence of the disturbances that broke out there." " lie came 
 here," said the judge, "in ITit-*; but he came in the character of a French- 
 man, and retained that character till he left this country in 1S14 ; for he re- 
 ceived an allowance from our Government as a French emigrant, ('oming 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 
 ca.se of the exile, the ab.sence of a person from his own country, will not ope- 
 rate as a change of domicile ; so where a party removes to another country to 
 avoid the iiiruiu'iiirncr attending a residence in his own, he does not intnul to 
 ahanJoii /t/s oriyinal domirile, or to acquire a new one in the country to which 
 he comes, to moid snc/i iiirohvan'rnccx. 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 1^14. Had his residcnee here been in the 
 nrf-t instance voluntary; had he come here to take up a permanent abode in this 
 country, and to (dxiudon his domirilr i>f oriijia, that is to disunlfc himself from 
 his nativf, coitntr//, the result might have been different. It is true that he 
 made a long and continued r<:<ii(< wc in this country; but I am of opinion that 
 a continued rcsidenrc in this country is not sullicient to jjroducc a change of 
 domicile; for he came here avowedly as an emigrant, with an intention of re- 
 turning to his own country as soon as the aiuscs ceased to operate which had 
 driven him from his native liome." 
 
 In this case of DelJoniieval the time of residence was at least as indefinite 
 and unlimited as in the ca?e before nie, and very much longer. 
 
 Jt was iQsi.ste J, however, by the counsel for the delcudant, that the petitioner, 
 by entering tlie military service here, had become domiciled here; and the case 
 of Sir C. i)oug]as, cited by I*hillimore, Law of Domicile, pages To to 75, is 
 relied on to support tliat proposition. I have always supposed, however, that 
 what is said in that case about entering the service of a foreign State was only 
 intended 1o apply to per-ons who enter such military service for life, or u-ithnut 
 any limitation of time. This. I think, is apparent from what rhillimore saya 
 in relation to the case of 31v. IJrucc, and some other cases cited by him. "These 
 cases," he says, "are founded upon the pradiar nature of the East India Com- 
 pany's service; as long as he was engaged in that service he held an im rorahlc 
 office, binding him to residence in a certain country. I'pou Oc same jtrin< iple'' 
 he continues, "it was held by the House of Lords, in Sir C I^uglas' 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 
 
15 
 
 upon his residence in India, tinder an obligation that icas to last dwing his whole 
 life." These cases arc cited by Phillimorc to illustrate the rule of law, that 
 where a person accepts an office which is coufcrred for the life of the holder, 
 and ii Irrrcocabk, 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 tanporarj/ nature and revocable nature, ^' the law does not j)r(sumc 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 I'ublic Officer of the State. The existing French court has 
 laid down the following rules respecting the domicile of the officers, civil or 
 im'/ifii)//, employed in the public service of the State. 
 
 "1. If the office be Jo?' the lifv of the holder and irrevorallr, 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 con- 
 trary 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, 02. 
 He then proceeds to illustrate these rules by decisions of the EuglLsh courts; 
 so that I presume he does not regard them as confined to France, but means to 
 lay them down at 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 gervice 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 ser\ice 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 difi"erence 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 T am entirely at a loss to dis- 
 cover by what process of reasoning we can arrive at the conclusion that a person 
 mcana and intends to reside in a country durinj his whole life, from the naked 
 fact that he agrees to serve there, or to hold an office, either civil or mil if art/, 
 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 ■'*^>< ; 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 aban- 
 doned 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 presumjption. 
 
 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 ia 
 such ca?c, <lepends upon his inf'ii(ion,ichich is to be inf.rred from arciausfanccs^ 
 as in other cases. Law of Domicile, 58. 
 
 The student who goes to a foreign T'niversity to pursue his studies thcr« for 
 a limited time, does not lose his domicile thereby. 
 
 Why then should the soldier who agrees to serve fir a year in a foreign coun- 
 try be presumed to have abandoned his domicile of origin for tliat reason, and no 
 proof be admitted to the contrary? It is certainly true that a person is j^r inter 
 farie presumed to be don)iciled where he is found "living" or ''residing.'' 
 Wildman on International Law; IJenipde i.'*. Johnson, 8 Vesey, IfiJi ; llruce v&. 
 Bruce, 2 Bos. k Pull., 2211 in note, and Ennis '•.«. Smith et <xl., 14th Howard, 428. 
 
 In the case before me, however, that presumption is, in my opinion, suffi- 
 
16 
 
 cientl}- reljutted by the circumstances of the case and the testimony in the cause. 
 I am satisfied thut 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, 1 
 apprehend, than DeJionnoval wa.v ; Avho left his country amidst the storms of 
 the French revolution in 179*5, and did not go back to France till the restora- 
 tion of the ]?onrbni>s. 
 
 If a foreigner volunteered to serve in our army for three years only, it is not 
 possible, T think, to found, upon this voluntary act of service alone, a legal right 
 to eompol him )iy force to <ct\*: for three years or fur an iudrfinite period longer. 
 
 If so foreigners will be extremely cautious how they volunteer in our service 
 licreafter. 
 
 In accordance with these views I shall order the discharge of the prisoner — 
 John II. Briscoe. 
 
 Alter tlie judgment and discharge of a few of these men — wishing to avoid 
 further excitement and discussion — I addres.sed the following letter to the 
 I'resident : 
 
 KICIIMOXD, OcTOBEft 12th, 18C1. 
 
 To Ills Jlxrllciti)/, Prrsiihil' fJ<irt.s : 
 
 '*^IR, — I have the honor, very respeclfuliy, to enclo.se you a paper containing 
 the opinion of Judge llalyburton, on the Maryland cases, to which I respectfully 
 called your ofiieial 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 1 should do 
 SO. Your ofTicial coiirse, in this juatter, has won'tlie confidence and elicited the 
 admiration of these men; and 1 assure you th^^y arc ''true men." I have not 
 overdrawn their character. 
 
 I respectfully suggest, as a matter of poliri/ as well as Ji' <(!>■', that the judg- 
 ment of the (Confederate t'ourt be so far recognized and respected as to order 
 the discharge of those men, whose cases are not yet Bpecilically adjudicated. 
 From y<nt, swh an order will be, in mt/ opinion, worth /r ;^ fli-ouMind in^n to the 
 scrrire. Very respectfully, 
 
 J. H. GIJ.MEK. 
 
 To this letter no reply was receivol. And each of these soldiers was neces- 
 sitated to sue out his special writ. And this in the face of the established fact, 
 that thr /'lifts of his cui'' had hrrn properly certified and vouched by his com- 
 manding oflicer, which, in military practice, is regarded as ronrtunivc as to farta. 
 
 Such, sir, is the history of those 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 Vinjinia Secretary violated her pledge, stained 
 lier escutcheon, and sought to shroud the legal remedies in the folds of his own 
 perturbed will. 
 
 Vou, sir, have long known my views as to Maryland and Virginia. They are 
 candidly expressed in my argument. What 1 have there uttered will, in a few- 
 years^be hi.';tory. One nl'two results must now occur on this continent. The 
 ultimato establishment ol" a vast consolidated, absolute government — based on 
 fraud and sustained by military force : or thnr separate goveriiments — inde- 
 p';ndent, the one of the other Two rival ijorrrnmi nfs ranuot exist. 
 
 To prevent the first alternative. State sovereignty must be sustained ; and to 
 f?ecure State sovereignty, Maryland and Virginia must be re-united. This is a 
 mere qucstif)a of time. Von nor myself may' live to see it. l>ut the soonev 
 the fact is clearly disecrncd and practically developed, the better. ]iemcmber 
 
 Kcspectfully, 
 
 JOHN U.-GMLMER. 
 
pH8.5