« ПретходнаНастави »
engages in trade, and resides there, he is, by the law of nations, to be considered as a member of that country.”
In the case of M'Connel v. Hector (3 Bos. & Pul. 113), Lord Alvanley said, “While an Englishman resides in a hostile country, he is a subject of the country.” So, in De Laneville v. Phillips (2 New Rep. 97), the Court, on discovering that the plaintiff was resident in an enemy's country, refused to afford her relief. Upon the same principle, a foreigner lawfully residing within the British dominions has been held to be, for various commercial purposes, a British subject. In the case of The Indian Chief (3 Rob. 12), 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 engaged in illegal commerce. “It is said to be hard," observed Lord Stowell, “ that Mr. Millar should incur the disabilities of a British subject, at the same time that he receives no advantage from that character; but I cannot accede 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 amongst those duties, the duty of not trading with the enemies of this country.”
Chancellor Kent states (i. 83), that 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 resides in a belligerent country, his property is 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 bonâ 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. (Lord Stowell, The Emanuel, 1 Rob. 296.) The same doctrine seems to have been decided, even beyond the reservation of native allegiance, in the case of The Danous (4 Rob. 255), which was determined before the Lords, 1802. In this case, a British born subject, resident at the English factory at Lisbon, was allowed the benefit of a Portuguese character, so far as to render his trade with Holland, (then at war with England, but not with Portugal,) not impeachable as an illegal trade. It is true, that in the case of De Metton v. De Mello (2 East, 234; 2 Camp. 420), Lord Ellenborough does not notice these decisions; but the observations of his Lordship in that case, particularly when coupled with the concluding part of his judgment, which advised that the plaintiff should go back to the Court of Admiralty, and have the matter set right there, appear to amount to nothing like a denial of the above doctrine. The same rule was afterwards applied to a natural born British subject domiciled in the United States, and it was held that he might lawfully trade to a country at war with England, but at peace with the United States. (Bell v. Reid, M. & S. 726.)
A British born subject may, by his employment and residence in a foreign country, acquire a new national character for commercial purposes; but he cannot shake off his allegiance to his native country, or divest himself altogether of his British character by a voluntary transfer of himself to another country. For the mere purposes of trade, he
may, indeed, transfer himself to another state, and may acquire a new national character. An English subject, resident in a neutral state, is at liberty to trade with the enemy of this country in all articles, with the exception of those which are of a contraband nature; but a trade in such articles would be contrary to his allegiance. (The Ann, Dodson, 222.)
As to the question what constitutes residence to hostile purpose, within the meaning of the laws of war, the intention of remaining, animus manendi, appears to be the chief point that must be determined by the tribunals. “I do not,” said Lord Stowell, in The Bernon (1 Robinson, 102), “ 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 residence, also, with an intention of remaining." From the whole of that case, it appears that the intention of remaining, the animus manendi, is the chief point to be considered by the Court in determining what shall be deemed a residence."
“Of the few principles," says Lord Stowell, in The
Harmony (2 Rob. 324)," 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 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 even 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 time 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 space of time. Suppose an American comes to Europe with six contemporary cargoes, of which he had the present care and management, meaning to return to America immediately; they would form 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. I repeat, that time is the great agent in this 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 constitute a domicil.” (See also The Ann Greene and Cargo, 1 Gallison, 284.)
So, in The Diana (5 Rob. 60), Lord Stowell decided “that mere recency of establishment would not avail, if the intention of making a perinanent residence there was fully fixed upon the party.” In The Venus (8 Cranch, 253), the decisions of the English courts on the subject of national character acquired by residence are fully confirmed by the American judges.