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court, was ascertained and described to be a person having a house of trade and actually residing at Curaçoa. The ship was condemned as lawful prize; -Lord Stowell declaring: “The claimant is undoubtedly to be considered an enemy at the commencement of the transaction, Holland being, at that period of time, the enemy of this country.”
“No position,” said Lord Stowell, in another case,
“is more established, than this, that if a person goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered a member of that country.”
In this last case, a cargo which belonged to Mr. Millar, an American consul resident at Calcutta, and which had been taken in trade with the enemy, was condemned as the property of a British merchant resident at Calcutta, and engaged in illegal
“It is said to be hard,” said Lord Stowell, “ that Mr. Millar should incur the disabilities of a British subject, at the same time that he receives no advantages from that character; but I cannot concede to that representation, because he is in the actual receipt of the benefit of protection for his person and commerce from British arms and British laws-under an existing British administration in the country;—he may be subject to some limitations of commerce incident to such establishments, which would not occur in Europe, but he must take his situation with all its duties, and among those, the duty of not trading with the enemies of this country."
The Anna Catherina, 4 Rob., 107. . The Indian Chief, 3 Rob., 12.
in common law courts.
The common law courts of England have recog. Rule applied nized and applied the same doctrine.
In the United States, this principle seems to have been very fully established by numerous decisions.
Chancellor Kent says: “This principle, that, for all commercial purposes, the domicil of the party, without reference to the place of birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the United States. If he reside in a belligerent country, his property is as liable to be captured as enemy's property; as, if he resides in a neutral country, he enjoys all the privileges, and is subject to all the inconveniences of the neutral trade. The general rule is, that a person living bona fide in a neutral country, is fully entitled to carry on a trade to the same extent as the native merchants of the country in which he resides, provided it is not inconsistent with his native allegiance.?
In a case which was determined in the House of Lords, in 1802, the same principle seems to have been established, even beyond the reservation of a native allegiance. In this case, a British-born subject, resident at the English factory at Lisbon, was accorded the privilege of a Portuguese character, so far as to render his trade with Holland (then at war with England, but not with Portugal) unimpeachable as illicit trade.
There is, indeed, one case at law in the English courts, in which the question was involved, and in
McConnel vs. Hector, 2 Bos. & Pul., 113; De Laneville vs. Phillips, 2 New Rep., 97.
* Kent's Com., I., 83; The Emanuel, 1 Rob., 296.
which Lord Ellenborough takes no notice of the preceding decisions; but the observations of his lordship in that case, cannot be regarded as at all equivalent to a denial of the doctrine, and the more especially as he advises that the plaintiff go back to the Court of Admiralty, and have the matter set right there. In a subsequent case at law, the rule was applied to a natural-born subject of Great Britain, domiciliated in the United States, and it was determined that he might lawfully trade to a country at war with England but at peace with the United States."
In this connection, the most important question for determination is, what constitutes residence. This would, at first, appear to be a question of very simple solution, but it has been complicated by the subtleties of merchants, to such an extent as to have occasioned much discussion and given rise to several direct decisions.
The citizen or subject of one nation may, by his employment and residence in another, acquire a new national character for commercial purposesalthough he may not thereby divest himself of his national character for political purposes. His allegiance is still due to the country of his birth; such a person residing in a neutral state is at liberty to trade with the enemies of his country in all articles except such as are contraband—a trade in such would be in violation of his allegiance.
As to the question, what constitutes such a residence in a hos. dence as fixes upon the party a hostile character
towards that state with which the country of his
What constitutes a resi
residence is at war, it appears to be conceded that wile country to the first point for determination is, the true intent tile character. of the party-is it or not a residence with the intention of remaining? “I do not,” says Lord Stow. ell in an early case, “mean to lay down so harsh a rule, as that two voyages from France should make a man a Frenchman-but the claimant appears to have had a continuous residence there during the interval of his voyages, and to have had that resi dence also with the intention of remaining." In that case, the animus manendi was evidently regarded by the court as the prominent point to be settled, in determining the question of residence to fix a hostile character.
In another case, the same learned judge discusses the question at much length, and says: “Of the few principles that can be laid down generally, I may venture to hold, that time is the grand ingredient in constituting domicil—I think that hardly enough is attributed to its effects. In most cases, it is unavoidably conclusive. It is not unfrequently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect had to the time which such a purpose may or shall occupy-for if the purpose be of a nature that may probably, or does actually, detain the person for a great length of time, I cannot but think that a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a law
1 The Bernon, 1 Rob., 162.
· The Harmony, 2 Rob., 324.
suit. It may happen, and indeed is often used, as a ground of vulgar and unfounded reproach (unfounded as matter of reproach, though the fact may be true) on the laws of this country—that it may last as long as himself. Some suits are famous in our juridical history for having outlived generations of suitors. I cannot but think, that against such a long residence, the plea of an original special purpose could not be averred. It must be inferred, in such a case, that other purposes forced themselves upon him, and mixed themselves with his original design, and impressed upon him the character of the country where he resided. Suppose a man comes into a belligerent country at or before the beginning of a war, it is certainly reasonable, not to bind him too soon, to an acquired character, and to allow him a fair time to disengage himself—but if he continues to reside during a good part of the war, contributing by payment of taxes, and other means, to the strength of that country, I am of opinion that he could not plead his special purpose, with any effect, against the rights of hostility. If he could, there would be no sufficient guard against the fraud and abuses of masked, pretended, original and sole purposes of a long continued residence. There is a time which will estop such a plea. No rule can fix the term a priori—but such a time there must be.
In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a larger time. Suppose an American comes to Europe with six contemporary