« PreviousContinue »
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.”1
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 emi. grating 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 not necessarily attach on foreigners, locally resident there. This objection was thus disposed of by Lord Stowell:
i The Virginie, 5 Rob., 98.
• The Dos Hermanos, 2 Wheat., 76; The Ann Greene, 1 Gall.,
* Th Indian Chief, 3 Rob., 12.
“ 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 es. tablishments, 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 general 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 Turkey, 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 decluring 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
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 inapplicable 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 al. . lowed to import goods and commodities into, and export the same from, the British territories in In.. dia. 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. • The Nereide, 9 Cranch, 388.