Lay to the Commandant of Conscripts, Macon, Georgia, May 22, 1863

Colonel Lay to the Commandant of Conscripts, Macon, Georgia.

Sir: The letter of Colonel Weems of the 24th March ultimo, to Lieutenant S. J. Perry, has been forwarded to this bureau. The opinion expressed by him that “foreigners who have purchased real estate thereby declare their domicile in the Confederate States,” and are subject to conscription, notwithstanding the protection given them in their consulate papers, is not concurred in by this bureau, and cannot be sustained upon principle and authority; nor is it in conformity with the rules laid down in General Order No. 82 of 1863.

That order does not prescribe any new rule in relation to domicile. It merely declares what is well settled and familiar law upon the subject. It mentions that “the declarations of the party, the exercise of the rights of citizenship, marriage, and the acquisition of real estate, are the principal evidences of intention to remain;” but it nowhere declares that either one of these is conclusive of the fact. Yet such is your decision. A party may have made declarations upon the subject so at variance with his acts and with the circumstance attending his residence as to require the declarations to be disregarded or respected. So marriage of itself, unless there be other proof of residence and intention to remain and abandon the former domicile, is not sufficient. Instances are not wanting of diplomatic agents intermarrying with the women of the country to which they have been accredited, and continuing for years afterwards in the discharge of their official duties. No one ever supposed that by such an act the ambassador or other diplomatic agent renounced either his domcille or nationality. A foreigner may exercise the highest act of citizenship, the right of suffrage, without changing his domicile or losing his original eitizenship. If the act be done either in ignorance or fraud of the law his status is not thereby changed. And so he may acquire and purchase real estate. In some of the States laws have been passed in pursuance of treaty stipulations which enable foreigners to purchase, hold, transmit and inherit, real estate. In most of the States a foreigner cannot hold real estate without making a declaration of his intention to become a citizen. In such States a foreigner may purchase real estate without making the required oath or declaration. The property may be liable to escheat, and upon proper proceedings had he may lose his property, but he cannot thereby be deprived of his national character, or lose his right as a citizen of a foreign country. Again, a foreigner might, in ignorance of the law forbidding him to hold real estate, become a purchaser of it; in such a case it could not with propriety be said that he intended by the act of purchase to change his domicile. The fact of such a purchase is reconcilable with the most decided purpose not to change his domicile. A man is presumed to hold his domicile of nativity until another is obtained, and to constitute this change the fact and intention must concur. It is extremely difficult, if not impossible, to prescribe the circumstances which shall in every case be taken as satisfactory proof of intention to change the domicile.

But whatever the character of the evidence may be, it must be such as to satisfy the mind fairly and reasonably that the party has not only changed his domicile in point of fact, but that he so intended.

Brigadier General Rains, superintendent of conscription, has directed me to issue the foregoing instructions for your information and guidance.

Very respectfully, &c.,