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CHAPTER II.

OF NATIONAL CHARACTER.

NATIONAL character may be considered in respect of, first, Personal domicil, or national character acquired by residence. Secondly, Commercial domicil or national character acquired by trade. Thirdly, The national character of ships. Fourthly, The national character of goods. Fifthly, The national character of the produce of landed property. Sixthly, The national character of countries.

First, National character by residence, or personal domicil is a matter depending upon facts and intention (a). The domicil of a person is, where he has taken up his abode with the intention of permanent residence (b). In the language of the Roman lawyers it is, ubi quis larem ac fortunarum summam constituit, unde non sit discessurus, si nil avocet; unde quum profectus sit peregrinari videtur. Those who are domiciled in a country acquire its national character, no less than native subjects (c). They are entitled to carry on trade to the same extent as native subjects, provided it be not inconsistent with their native allegiance (d). But this disability is personal; where a contract illegal in the hands of a subject is transferred to foreigners, the illegality does not

(a) Pothier, xvi. 4.

(b) Grot. iii. 2, vii. 2.—iii. 4, viii.—iii. 4, vii.

(c) Grot. ibid.

(d) The Emanuel, 1 Rob. 302; The Neptunus, 6 Rob. 408; The Ann, 1 Dod. 223; The Etrusco, 4 Rob. 262, (n); The Dos Hermanos, 2 Wheaton, 76; Kent Comm. i. 72.

run with the contract, nor affect them as a contract made or executed in breach of allegiance (e).

Where a shipment from the enemy's country was made on account of a house of trade in a neutral country, consisting of partners domiciled, some in a neutral and some in the enemy's country. The shares of the former were restored, and the shares of the latter were condemned (f). As to captors, partners are presumed to take in equal proportions, unless on the face of the original papers a different apportionment appears. The reason of this rule is manifest, for were it otherwise, as the evidence to change the proportions must come from the enemy, whose interest it must be to diminish his own share as much as possible, the Court would, by admitting further proof, be exposed to every species of belligerent fraud (g). Mere intention to settle, or a mere nominal residence, will not constitute domicil; for that purpose there must be residence taken up honestly, with a bonâ fide intention of making it the place of habitation (h). Residence or domicil is a question of considerable difficulty, depending upon a great variety of circumstances, hardly capable of being defined by general precise rules. The active spirit of commerce, now abroad in the world, still farther increases this difficulty by increasing the variety of local situations, in which the same. individual is to be found at no great distance of time, and by that sort of extended circulation, by which the same transaction communicates with different countries; in which the same trading adventures have their origin perhaps in America, travel to France, from France to England, from England back to America again, without enabling us to assign accurately the exact legal effect of the local character of every particular portion of this divided transaction. In deciding such cases

(e) The Anna Catharina, 4 Rob. 112.

(ƒ) San Jose Indiano, 2 Gallison, 268. 293, et seq.

(g) Ibid. 303.

(h) The Endraught, 1 Rob. 24; The Falcon, 6 Rob. 198.

the necessary freedom of commerce imposes the duty of a particular attention and delicacy, and strict principle of law must not be pressed too eagerly against it. The particular situation of merchants in America seems still more particularly to entitle them to some favourable distinctions. They have not the same open and ready and constant correspondence with individuals of the several nations of Europe, that these persons have with each other; they are on that account more liable to have their mercantile confidence in Europe abused, and, therefore, to have more frequent calls for a personal attendance upon their own concerns; and it is to be expected, that when the necessity of their affairs calls them across the Atlantic, they should make rather a longer stay in the country where they are called, than foreign merchants, who step from a neighbouring country in Europe, to which every day offers a convenient opportunity of return.

One of the few principles that can be laid down generally is, that time is the grand ingredient in constituting domicil. Hardly enough is attributed to its effect. 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 such a nature as may probably, or does actually detain a person for a great length of time, a general residence may 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 lawsuit, it may happen, that it may last as long as himself; some suits are famous in our history for having outlived generations of suitors. Against such a long residence the plea of an original special purpose could not be averred; it must be inferred from 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 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 a good part of the war, contributing by payment of taxes and other means to the strength of the country, he could not plead his special purpose with any effect against the rights of hostilities (i). If he could, there would be no sufficient guard against the fraud and abuses of masked, original, and sole purposes of a long continued residence. There is a time, which will estop such a plea; no rule can fix the time à 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 space of time. Suppose an American comes to Europe with six contemporary cargoes, of which he has the present care and management, meaning to return to America immediately, that would be a different case from that of the same American coming to any particular country of Europe with one cargo and fixing himself there to receive five remaining cargoes, one in each year successively. Time is a great agent in the matter, it is to be taken in a compound ratio of the time and the occupation with a great preponderance on the article of time; be the occupation what it may, it cannot happen, but with few exceptions, that mere length of time shall not fix a domicil.

Where an American resided for a year in France for mercantile purposes, and then returned to America, and afterwards came back to France and resided there for four years, it was held that he was domiciled in France; and that supposing him to have returned for the purpose of collecting

(1) Cf. Grot. iii. 4, vi. vii.; Heinecc. Comm. in loc.

debts, it would be difficult to say, that the original purpose could privilege a residence of four years (k). But mere recency of arrival is immaterial where an intention of permanent residence is proved. An English merchant had arrived at St. Eustatius, only a day or two before the arrival of the British forces, to which the island surrendered; but it was proved that he had gone to establish himself there, and his property was condemned (1). Where a neutral resorts to an enemy's country to recover debts, and makes exportations therefrom merely for the purpose of withdrawing his funds, although such pretences are at all times to be watched with considerable jealousy, yet when the transaction appears to have been conducted bonâ fide with that view, and to be directed only to the removal of property, which the accident of war may have lodged in a belligerent country, cases of this description are entitled to be treated with some indulgence. Thus, where a neutral continued in the enemy's country from February to July, and succeeded in the recovery of some part of his money, which having no opportunity of remitting it directly, he invested in the purchase of several prize vessels, which he sent to England, some in ballast and some loaded with provisions. Two of the latter description were captured, brought to adjudication and restored (m).

Domicil is presumed to be where a party resides. The presumption arising from his residence is, that he is there animo manendi, and it lies on him to explain it. The presumption is not rebutted by the residence of his wife and family in his own country (n). If a person goes into another country and resides there and engages in trade, he is by the law of nations to be considered as a merchant of that

(k) The Harmony, 2 Rob. 322.

(1) Whitehill's case, cited Diana, 5 Rob. 60; The Boedes Lust, 5 Rob. 233.

(m) The Dree Gebroeders, 4 Rob. 232.

(n) The Ann, 1 Dod. 221; The Bernon, 1 Rob. 103.