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which Lord Ellenborough takes no notice of the preceding decisions; but the observations of his lordship in that case, cannot be regarded as at all
equivalent to a denial of the doctrine, and the more , especially as he advises that the plaintiff go back
to the Court of Admiralty, and have the matter set right there. In a subsequent case at law, the rule was applied to a natural-born subject of Great Britain, domiciliated in the United States, and it was determined that he might lawfully trade to a coun. try at war with England but at peace with the United States."
In this connection, the most important question for determination is, what constitutes residence. This would, at first, appear to be a question of very simple solution, but it has been complicated by the subtleties of merchants, to such an extent as to have occasioned much discussion and given rise to several direct decisions.
The citizen or subject of one nation may, by his employment and residence in another, acquire a new national character for commercial purposes although he may not thereby divest himself of his national character for political purposes. His alle giance is still due to the country of his birth; such a person residing in a neutral state is at liberty to trade with the enemies of his country in all articles except such as are contraband-a trade in such
would be in violation of his allegiance. . What consti- As to the question, what constitutes such a resif dence in a hos. dence as fixes upon the party a hostile character
towards that state with which the country of his
tutes a resi
* Bell vs. Reid, M. & S., 726.
residence is at war, it appears to be conceded that tile country to
impress a hosthe first point for determination is, the true intent tile character. of the party—is it or not a residence with the intention of remaining? “I do not,” says Lord Stowell in an early case, “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 resi dence also with the intention of remaining." In that case, the animus manendi was evidently regarded by the court as the prominent point to be settled, in determining the question of residence to fix a hostile character.
In another case, the same learned judge discusses the question at much length, and says: “ Of the few principles 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.
The Bernon, 1 Rob., 162.
? The Harmony, 2 Rob., 324.
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 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 term 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 time. Suppose an American comes to Europe with six contemporary cargoes, of which he had the present care and man. agement, 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 coun. try 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
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. Do mingo, 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.,