in a continuous length of twenty miles of the | the Act of Congress of June 2, 1864, amendaroad, might be sold; and when the Governor of tory of the original Act of 1856, 13 Stat. at L., the State should certify to the Secretary of the 95. By its 4th section it was expressly proInterior that any continuous twenty miles of the vided that nothing in the Act should be conroad were completed, then another like quan- strued to interfere with or in any manner imtity of the land granted might be sold, and so, pair any rights acquired by any railroad comfrom time to time, until the road was completed; pany named in the original Act, or the rights and that if the road was not completed within of any corporation, person or persons acquired ten years, no further sales should be made, and through any such company, nor be construed the lands unsold should revert to the United to impair any vested rights of property, but States. that such rights should be reserved and confirmed. The new Company afterwards transferred all its interest in the lands to the defendant, the Iowa Railroad Land Company.

The question for determination is, whether the plaintiff took a good title to the lands in controversy under the conveyance from the first Company, or whether that title is vested in this last Company.

The State of Iowa, by Act of its Legislature, passed on the 14th of July, 1856, accepted the grant thus made and provided for the execution of the trust. Laws of 1856 of Iowa, p. 1. By that Act, the State granted to the Iowa Central Air Line Railroad Company, a Corporation created by its Legislature for the construction of the railroad, the lands, interests, rights, powers and privileges" conferred by the Act of It is contended by the defendants, first, that Congress, upon the express condition, however, under the Act of Congress, 11 Stat. at L., 9, no that in case the Company should fail to have lands could be sold by the State until twenty completed and equipped seventy-five miles of continuous miles of the road were constructed; the road within three years from the first day second, that if one hundred and twenty sections of December then next following, and thirty could be sold in advance of such construction, miles in addition in each year thereafter for five they could only be taken from lands adjoining years, and the remainder of its whole line in the line of the road from its commencement on one year thereafter, or on the first of December, the east; and third, that the grant by the State to 1865, then it should be competent for the State the first Company was upon conditions precedto resume all rights to the lands remaining un-ent, which, not having been complied with, the disposed of by the Company, and all other rights conferred by the Act.

The Company accepted the grant from the State, with its conditions, and immediately thereafter caused a survey and location of the line of the road to be made, a map of which was filed in the proper offices in the State and at Washington. During the years 1857 and 1858, the Company performed a large amount of grading upon the road, principally between Lyons and Maquoketa.

The plaintiff was one of the contractors who did the grading, and he received, in payment for his work, construction bonds and land scrip of the Company. These were afterwards surrendered and, in consideration thereof, the land in controversy was sold and conveyed by the Company to him. The land thus conveyed was a part of the first and only one hundred and twenty sections sold by the Company, and these sections were selected within a continuous twenty miles of the line of the road.

The selections were approved by the Secretary of the Interior, and the sections were certified by him to the State. Those, however, selected were not from lands lying along the eastern end of the road, as they might have been, but from lands lying further west.

title did not pass. Neither of these positions can, in our judgment, be maintained. The Act of Congress by its express language authorized a sale of one hundred and twenty sections in advance of the construction of any part of the road. It was only as to the sale of the remaining sections that the provision requiring a previous completion of twenty miles applied. It is true it was the sole object of the grant to aid in the con struction of the railroad, and for that purpose the sale of the land was only allowed, as the road was completed in divisions, except as to one hundred and twenty sections.

The evident intention of Congress in making this exception was to furnish aid for such preliminary work as would be required before the construction of any part of the road. No conditions, therefore, of any kind were imposed upon the State in the disposition of this quantity. Congress relying upon the good faith of the State to see that its proceeds were applied for the purposes contemplated by the Act.

Nor was there any restriction upon the State as to the place where the one hundred and twenty sections should be selected along the line of the road, except that they should be included within a continuous length of twenty miles on each side. They might be selected from lands adjoining the eastern end of the road or the western end, or along the central portion.

Although the Company did a large amount of grading, as already mentioned, it never completed any part of the road, and in March, 1860, The Act of Congress of May 15, 1856, was the Legislature of Iowa resumed the lands, in- a grant to the State in præsenti; it passed a title terests, rights, powers and privileges conferred to the odd sections designated, to be afterwards upon the Company, and repealed the clauses of located. When the line of the road was fixed, the Act granting them. Subsequently, during and the location of the odd sections thus bethe same month, it conferred the same lands, came certain, the title of the State acquired prerights, powers and privileges upon the Cedar cision, and at once attached to the land. And Rapids and Missouri River Railroad Company, the Act of the State, of July 14, 1856, was alanother Corporation created under its laws, de- so a grant in præsenti to the first Railroad Comclaring, however, that the right, title and in-pany. That Company took the title and interterest held by the State in the lands, and noth-ests of the State upon the terms, conditions and ing more, was conferred. restrictions expressed in the Act of Congress. This grant by the State was recognized by The further conditions as to the completion of

Thereupon the petitioner took an appeal to this court.

The case is fully stated by the court. Messrs. John M. Harlan and B. H. Bristow, for appellant:

the road imposed by the State were conditions | quired a valid title to the cotton by his purchase subsequent and not conditions precedent, as of it within the Confederate lines did, for the contended by the defendants. The terms in purposes of an appeal, decide that the petition which the right is reserved by the Act of the should be dismissed. State to resume the lands granted, imply what the previous language of the Act declares, that a present transfer was made and not one dependent upon conditions to be previously performed. The right is by them restricted to such lands as at the time of the resumption had not Had Mitchell upon his entering the Confedbeen previously disposed of. The resumption, erate lines in July, 1861, joined the rebel army therefore, of the grant by the failure of the first and become the owner of this identical cotton, Company to complete the road did not impair while he was endeavoring to overturn the Govthe title to the lands, which the Act of Congress ernment of the Union, it could scarcely be authorized to be sold in advance of such com-doubted that under the present course of decispletion, and which were sold by that Company. We are of opinion, therefore, that the plaint iff took a good title to the premises in controversy by his conveyance from that Company. The judgment of the court below is, therefore, affirmed.

Cited-110 U. S., 29.

WARREN MITCHELL, Appt.,

v.

UNITED STATES.

(See 8. C., 21 Wall., 350-353.)

Contracts with enemy-between inhabitants of rebel States-domicil-change of domicil-what constitutes-void purchase of cotton.

1. During the late civil war, all contracts of the inhabitants of the loyal with the inhabitants of the disloyal States were illegal and void.

2. Contracts between the inhabitants of the rebel States, not in aid of the rebellion, were valid.

3. By the term "domicil," in its ordinary acceptation, is meant the place where a person lives and has his home.

4. A domicil, once acquired, is presumed to continue until it is shown to have been changed.

5. To constitute a new domicil, two things are indispensable: first, residence in the new locality; and, second, the intention to remain there. Mere absence from a fixed home, however long continued, cannot work the change.

6. That one who lived in a loyal State and went into a disloyal one during the late war, went there to take up his abode, is not to be presumed; the presumption is the other way.

ions, his right to recover the proceeds of the cotton could not be questioned.

Since the decisions in Armstrong v. U. S. 13 Wall., 154 (80 U. S., XX, 614); Pargoud v. S. v. Klein, 13 Wall., 128 (80 U. S., XX., 519), U. S., 13 Wall.,156 (80 U. S.. XX, 646). and U. neither proof of loyalty nor of special executive pardon is necessary on behalf of claimant of the proceeds of captured and abandoned prop. erty. The Amnesty Proclamation of December 25, 1868, has wholly removed the obstacle of disloyalty, placed in the way of claimants of captured and abandoned property, by the Act of March 12, 1863. 12 Stat. at L., 820.

Was there anything in the conduct of Mitchell, as described in the findings of fact, or is there any principle announced in former decisions, which will preclude this court from granting to Mitchell what it would be constrained, under its former decisions, to grant him, had he joined the Confederate Army and become the owner of the cotton while he was seeking the destruction of the Union?

His military pass could not protect him in unlawful trading between the belligerent sections; but it did "protect him in going into the lines of the enemy."

McKee v. U. S., 8 Wall., 166 (75 U. S., XIX., 331).

It seems difficult to establish the absence of such authority in General Anderson, as the commander of a department; but whether he had or not such authority is, we think, wholly immaterial in this case. If he transcended his authority as department commander, that would only prove that Mitchell violated his duty in Confederate lines. For that violation of duty accepting the military pass and going into the he may have been punished if any punishment had been prescribed by law for such an offense. Clearly, however, that violation of duty did not, in its consequences, extend to and vitiate the various business transactions which he may 8. All these indicia are wanting in the case of the have had, or the various purchases of property claimant, who went, during the war, from a loyal which he may have made, within the ConfederState into a disloyal one, and there purchased cot-ate lines after taking up his residence there; ton. His purchase was void, and gave him no title transactions wholly within enemy's territory and against the United States who seized and confis- exclusively with residents of that territory, in[No. 404.] volving in no way commercial intercourse or communciation, by letter or otherwise, with the Decided Feb. 8, 1875. territory occupied by the Federal forces, and

7. Among the circumstances usually relied upon of the party; the exercise of political rights, the payment of personal taxes; a house of residence and a place of business.

to establish the animus manendi are: declarations

cated it.

Argued Jan. 26, 1875.

APPEAL from the Court of Claims.

The petition in this case was filed in the court below by the appellant, to recover the value of certain cotton.

The Court of Claims, being equally divided upon the question whether the claimant ac

purchases so remote in time from the date of his entrance into Confederate territory that it is impossible to establish any necessary or direct connection between those purchases and the alleged violation of duty in going into the insurrection. ary district as far back as July, 1861. Armstrong v. Toler, 11 Wheat., 258; Brooks

v. Martin, 2 Wall., 70 (69 U. S., XVII., 732). | prohibited by statute or public law, but the When Mitchell left Kentucky and went into right to do so has been too often upheld by the the Confederate lines, taking up his residence courts to admit of question. there, transacting business, collecting debts and making purchases during the period of more than three years, he took the chances of war from that side.

continued to be a resident of Louisville, but | continued in business there; and that he carried with him into the insurgent lines the means with which to purchase the cotton for which he makes claim. We cannot presume that he was ever before in the State of Georgia; much less, that during the time he was there, he acquired, from nothing, means sufficient to purchase 724 bales of cotton. That he collected debts, with in the insurrectionary districts, as the Court of Claims find, does not imply that the debts were due him before he went there; for, preliminary to this finding, the court finds that he transacted

business there.

But whether Mitchell did or did not take anything with him, is not material. His residence, his home, his domicil, was Louisville, in the State of Kentucky. The purchase of cotton was in the State of Georgia, from persons resident there. This brings the case within the ruling of this court in the cases of Grossmayer, 9 Wall., 72 (76 U. S., XIX., 627); of Montgomery, 15 Wall., 400 (82 U. S., XXI., 97); of Lapene, 17 Wall., 602 (84 U. S., XXI., 693); and of Cutner, 17 Wall., 517 (84 U. S., XXI., 656).

In the case of Lapene this court briefly and clearly states the law as follows:

"All commercial contracts with the subjects or in the territory of the enemy, whether made directly by one in person, or indirectly through an agent who is neutral, are illegal and void. This principle is now too well settled to justify discussion.'

The case of Kershaw v. Kelsey, 100 Mass.,561, is cited and relied upon by the counsel for the appellant. There is nothing contended for herein that is not sustained by the opinion of the court in that case. In that case it did not appear whether Kelsey went to Mississippi before or after the beginning of the war; and the subject of the contract, so far as it was considered, in the opinion of the court, was real property.

While in the Confederate States, he transacted business, collected debts and purchased from different parties, seven hundred and twentyfour bales of cotton. He took possession of the cotton and stored it in Savannah. Upon the capture of that place by General Sherman, the cotton was seized by the military authorities. It was subsequently sold by the agents of the Government. The proceeds, amounting to the sum of $128,692.22, are in the Treasury. Mitchell bought the cotton in November and December, 1864. He remained within the insurrectionary lines from July, 1861, until after the capture of Savannah by the arms of the United States.

The Court of Claims was equally divided in opinion and dismissed the petition. The claimant has removed the case to this court by ap peal.

When Mitchell passed within the rebel lines the war between the loyal and the disloyal States was flagrant. It speedily assumed the largest proportions. Important belligerent rights were conceded by the United States to the insurgents. Their soldiers when captured were treated as prisoners of war, and were exchanged and not held for treason. Their vessels when captured were dealt with by our prize courts. Their ports were blockaded and the blockades proclaimed to neutral nations. Property taken at sea, belonging to persons domiciled in the insurgent States, was uniformly held to be confiscable as enemy property. All these things were done as if the war had been a public one with a foreign nation. The Prize cases, 2 Black, 687 [67 U. S., XVII., 483]; Mrs. Alexander's Cotton, 2 Wall., 417 [69 U. S., XVII, 919]; Mauran v. Ins. Co.,6 Wall.,1 [73 U. S., XVIII., 836]. The laws of war were applied in like manner to intercourse on land between the inhabitants of the loyal and the disloyal States. It was adjudged that all contracts of the inhabitants of the former with the inhabitants of Some stress is laid upon the fact found by the latter were illegal and void. It was held the court below, that Mitchell "procured from that they conferred no rights which could be the commanding general in Kentucky, a mili- recognized. Such is the law of nations, flatary pass permitting him to go through the mili-grante bello,as administered by courts of justice. tary lines into the insurrectionary district.' Vattel, sec. 220: Griswold v. Waddington, 16 The pass itself is not produced, and we do not Johns., 438; Coolidge v. Guthrie, 8 Am. L. Reg., know its purport; but whatever it was, it was N. S., 22; Coppell v. Hall, 7 Wall., 542 [74 U. merely a military pass. It derived all its S., XIX., 244]; U. S. v. Grossmayer, 9 Wall., force from the hand that wrote it. It would 72 [76 U. S., XIX., 627]; Montgomery v. U. S., give Mitchell safe conduct through the "mili 15 Wall., 400[82 U. S., XXI.,97]; U. S. v. Latary line" of the Government, but would not pene, 17 Wall., 602 [84 U. S., XXI.. 693]; Cuthelp him in getting within the insurgent line. ner v. U. S.,17 Wall.,517 [84 Ú. S., XIX., 656]. The power of General Anderson extended to his pickets, but no further.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal from the Court of Claims.
That court found the following facts:

At the beginning of the late rebellion, Mitchell, the claimant and appellant, lived in Louisville, Kentucky. He was engaged in business there in July, 1861, and after the 17th of that month he procured from the proper military authority of the United States, in Kentucky, a pass permitting him to go through the army lines into the insurrectionary territory. He thereupon went into the insurgent States, and remained there until the latter part of the year 1864. He then returned to Louisville.

While such was the law as to dealings between the inhabitants of the respective territories, contracts between the inhabitants of the rebel States not in aid of the rebellion were as valid as those between themselves of the inhabitants of the loyal States. Hence this case turns upon the point whether the appellant was domiciled in the Confederate States when he bought the cotton in question.

When he took his departure for the South he lived and was in business at Louisville. He returned thither when Savannah was captured and his cotton was seized. It is to the intervening tract of time we must look for the means of solving the question before us. There is nothing in the record which tends to show that when he left Louisville he did not intend to return, or that while in the South he had any