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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 hinself 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.”
But if the animus manendi he proved aliunde, the time of the residence becomes of no moment in the determination of the question of hostile character.
In another case,' Lord Stowell observed: “Proof of mere recency of establishment, will avail nothing, if the intention of making a permanent residence there, was fully fixed upon the party.”
In cases where it is shown that there was really no intention of remaining, but on the contrary a frustrated intention of departing, the abode is not considered as a residence to any hostile purpose.
A British-born subject had been settled as a merchant at Flushing, in Holland, but upon the apparent approach of hostilities between that country and Great Britain, he adopted measures for his removal and return to England. In July, 1803, as it appeared in proof, he actually effected his escape and returned to England. He had dissolved his
The Diana, 5 Rob., 60.
commercial partnership in Holland, and had in truth only continued to reside there after the war, by reason of the unwarrantable detention by the government of Holland, of Englishmen found there at the breaking out of hostilities." “ Under these circumstances,” says Lord Stowell, “it would, I think, be going farther than the principle of law requires, to conclude this person by his former occupation, and by his constrained residence, so as not to admit him to have taken himself out of the effect of intervening hostilities by the means which he had used for his removal.”
This doctrine is very clearly recognized, though incidentally passed upon, by Lord Ellenborough, in two cases subsequently decided by him.”
It is obvious that it should require fewer circumstances to constitute the domicil or residence of which we are treating, in the case of a native citi zen, than to impress the national character, by that means, upon one who is originally of another country.
M. Lappiere was by birth a Frenchman, and present in a French colony where he shipped goods for France. The goods were captured, and he made claim as a merchant of America, where he had a permanent residence before his coming to the French colony. Lord Stowell said: "If it could be inferred that he had been originally a French merchant, and was, at the time of his shipment, resident in St. Domingo, and shipping to old France, I should have hesitation in considering him a Frenchman. Had · The Ocean, 5 Rob., 90.
Bromley vs. Hazeltine, 1 Camp., 6; O'Mealy vs. Wilson, ib.,
the shipment been made from America, his asserted place of abode, it might have been a circumstance to set in opposition to his present residence, and might afford a presumption that he was in St. Domingo only for temporary purposes. But this is a shipment to France from a French colony, and, if the person is to be taken as a native of France, the presumption would be that he had returned to his native character of a French merchant."
A native-born citizen of the United States, before a declaration of war, emigrated to a neutral country, and there acquired a domicil. Afterwards, and during the continuance of the war, he returned to the United States and reacquired his native domicil. It was held that he had become a redintegrated American citizen, and could not afterwards, flagrante bello, acquire a neutral domicil by again emigrating to his adopted country.”
Where the residence is a voluntary one, and en tirely unrestrained, whether it be literal and actual, or only a residence by implication, it is considered, ordinarily, as a complete commercial residence. In the celebrated case already cited, it was objected against the right of the captors that the residence of an American in Calcutta was not a residence among British belligerents; that the Mogul, having the imperial rights of Bengal, the king of Great Britain does not hold the British possessions in the East Indies in the right of the sovereignty, and that therefore the character of British merchants does
The Virginie, 5 Rob., 98. ? The Dos Hermanos, 2 Wheat., 76; The Ann Greene, 1 Gall., 284.
* Th Indian Chief, 3 Rob., 12.
not necessarily attach on foreigners, locally resident there. This objection was thus disposed of by Lord Stowell:
“ Taking it that such a paramount sovereignty on the part of the Mogul princes really and solidly exists, and that Great Britain cannot be deemed to possess a sovereign right there, still it is to be remembered that, wherever a mere factory is founded in the eastern part of the world, European persons, trading under the shade and protection of those establishments, are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries, and is different from what prevails ordinarily in Europe, and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident, and this distinction arises from the nature and habits of the countries. In the western parts of the world, alien merchants mix in the society of the natives, access and intermixture are permitted, and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up, foreigners are not admitted into the general body and mass of the nation. They con. tinue strangers and sojourners, as their fathers were, not acquiring any national character under the gen
: eral sovereignty of the country, and not trading under any recognized authority of their own origi. nal country, they have been held to derive their present character from that of the association or factory under whose protection they live and carry on
their trade. With respect to establishments in Tur. key, it was declared in the case of Mr. Fremeaux, in the last war, that a merchant carrying on trade at Smyrna, under the protection of the Dutch consul at Smyrna, was to be considered as a Dutchman, and in that case the ship and goods belonging to Mr. Fremeaux, being taken after the order of reprisals against Holland, were condemned as Dutch property. So in China, and I may say generally throughout the East, persons admitted into a factory, are not known in their own peculiar national character, and not being admitted to assume the character of the country, they are considered only in the character of that association or factory.
“I remember perfectly well, in the case of Mr. Constant de Rubecque, it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortunately quitted before the time of capture, he would have been liable to be considered as a Frenchman.
“I am, however, inclined to think that these considerations are unnecessary, because, though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists, otherwise than as a phantom. It is not applied in any way for the actual regulation of our establishments. This country exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty; and if the high, or, as I might almost say, this empyrean sovereignty of the Mogul, is sometimes brought down from the clouds, as it were, for purposes of policy, it by no means interferes with that actual authority