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which this country, and the East India Company -a creature of this country-exercise there with full effect. The law of treason, I apprehend, would apply to Europeans living there, in full force. It is nothing to say that some particular parts of our civil code are not applicable to the religious or civil habits of the Mahomedan or Hindoo natives, and that they are, on that account, allowed to remain under their own laws. I say this is no exception; for with respect to internal regulations, there is, amongst ourselves in this country, a peculiar sect -the Jews—that, in matters of legitimacy, and on other important subjects, are governed by their own particular regulations, and not by all the municipal laws of this country, some of which are totally in. applicable to them. It is, besides, observable that our own acts of Parliament, and our public treaties, have been by no means scrupulous, in later times, in describing the country in question as the terri. tory of Great Britain.
"In the American treaty, the particular expression occurs, that the citizens of America shall be admitted and hospitably received in all the seaports and harbors of the British territories in India. The late case in the Court of King's Bench (Wilson vs. Marryat, 8 Term R., and 1 Bos. and Pul., 430), arising upon the interpretation of that treaty, and in which it appears to have been the inclination of that court to hold our possessions in India to come within the operation of the navigation acts, gave occasion to an act of Parliament in which the term British territory is borrowed from the treaty.
“There is, likewise, a general act of 37 Geo. III. c. 117, for the allowance of neutral traders in India, which expressly uses the same term, reciting that it is expedient that the ships and vessels of countries and states in amity with his majesty, should be allowed to import goods and commodities into, and export the same from, the British territories in India. It is, besides, an obvious question, to whom are the credentials of this gentleman, as consul, addressed? Certainly to the British government; to the East India Company, and not to the Great Mogul. What is the condition of a foreign merchant residing there? From attention to the argument of a gentleman whose researches have been particularly turned to subjects connected with the East, I have made inquiry of a person of the greatest authority on such a subject, who is just returned from the highest judicial situation in that country, and the result is, as on general principles I should certainly have expected—that a foreign merchant resident there, is just in the same situation as a British merchant, subject to the same obligations, bound to the same duties, and amenable to the same common authority of British tribunals."
Periodical absence, on professional or other avocations, will not divest a person of that national character communicated to him by his residence, if that residence be fixed, with the voluntary intention of remaining.
Nor, on the other hand, can a merchant, who has a fixed residence, and is carrying on business at the place of his birth, acquire a foreign commercial character by occasional visits to a foreign country.
The Junge Ruiter, 1 Acton, 116.
Personal residence not requisite.
In order to clothe a person with a national character, for commercial purposes, an actual personal residence in the hostile or neutral country, is by no means an overruling necessity.
It is undoubtedly true, that a merchant, engaged in trade with a foreign country, and while residing in his own, carries on his transactions by means of a resident agent in the foreign country, does not thereby, necessarily, and as a rule, acquire the character of the nation of his agent's residence. But where the employment of the agent is in that peculiar service, as to imply that the employer considers himself as virtually a resident of the country, in other words, where the agent, instead of acting as the mere business representative, the factor or attorney of his employer, acts as his deputy, in such cases the employer would undoubtedly be consid. ered as having taken upon himself the national character of the country of such an agent's residence.
A contract was made with a hostile government, acter impressed by character and one which was endowed with such peculiar of the trade.
privileges as to give to the contractors, who were neutrals, even greater advantages than they would have enjoyed had they been Spanish merchantsSpain being the hostile contracting government. For the purpose of executing this contract, the mer. chant contractors thought fit to commission a spe. cial agent to reside in the hostile territory. The question was, the effect of such residence by such
, an agent, upon the national character of the principals; and upon this question Lord Stowell thus speaks in his judgment:
“It is not indeed held, in general cases, that a
neutral merchant, trading in an ordinary manner to the country of a belligerent, does contract the character of a person domiciled there, by the mere residence of a stationed agent, because, in general cases, the effect of such a residence is counteracted by the nature of the trade and the neutral character of the British merchant himself.
. “But it
very different where the principal is not trading on the ordinary footing of a foreign merchant, but as a privileged trader of the enemy. There, the nature of his trade does not protect him; on the contrary, the trade itself is the privileged trade of the enemy, putting him on the same foot. ing as their own subjects, and even above it."
This same principle is fully recognized by the Doctrine of decisions of the courts of the United States. And States Courts without resort to a solution of the question of national domicil, if one embarks in the ordinary or extraordinary commerce of an enemy's country, upon the same footing and with like advantages as a native resident citizen—the property employed by him in that commerce is held to be incorporated into the general commerce of the enemy's country, and subject to confiscation as lawful prize—be the residence of the merchant actual or implied, where it may. In the same case, it was determined, that a shipment made by a house in the enemy's country on account and risk of an exclusively neutral partner or house, there being every evidence of good faith in the transaction, was not subject to confiscation as prize of war, and equally correct would be
The Anna Catherina, 4 Rob., 107. : Sun Jose Indiano, 2 Gall., 268.
the application of the principle under converse circumstances--that is, a shipment made by a partner or agent domiciled in a foreign country, to a bona fide neutral house or principal, on the exclusive ac.
count of the latter. Residence by implication
A person holding the office of consul in a foreign from nature of state, as we have seen in the case of The Indian
Chief, before cited, is deemed a resident of that state where his official commission implies a residence. This has been held to be true even where there is no actual residence there by the consul, but his duties are performed there by deputies of his appointment—the appointment of deputies being considered proof that he regards himself as retaining the office to which this implied residence attaches, though he may have found it convenient to avoid the personal burden of its functions. In a case before cited, in another connection, the claimant represented himself as an American, but in his affidavit stated that the United States government had appointed him consul-general to Scotland, although he had acted no farther in that capacity than to appoint deputies.
Lord Stowell said: “It will be a strong circumstance to affect him with a British residence, as long as there are persons acting in an official station here,
and deriving their authority from him.” Importance of
But, as has been repeatedly affirmed, the animus manendi in de- manendi is the decisive proof of residence. To estermining resi
tablish this intention of the mind, the circumstances in evidence need not be numerous, nor of a public
i The Dree Gebroeders, 4 Rob., 232; Vide The Endraught, 1 Rob., 21.