Sivut kuvina

Personal resi- In order to clothe a person with a national chardence not requisite.: acter, for commercial purposes, an actual personal

residence in the hostile or neutral country, is by no

means an overruling necessity. Established. It is undoubtedly true, that a merchant, engaged agency sufficient.

in trade with a foreign country, and while residing in his own, carries on his transactions by means of a resident agent in the foreign country, does not thereby, necessarily, and as a rule, acquire the char. acter of the nation of his agent's residence. But where the employment of the agent is in that peculiar service, as to imply that the employer considers himself as virtually a resident of the country, in other words, where the agent, instead of acting as the mere business representative, the factor or attorney of his employer, acts as his deputy, in such cases the employer would undoubtedly be consid. ered as having taken upon himself the national character of the country of such an agent's resi

dence. Hostile char- A contract was made with a hostile government, acter impressed by character and one which was endowed with such peculiar of the trade.

privileges as to give to the contractors, who were neutrals, even greater advantages than they would have enjoyed had they been Spanish merchantsSpain being the hostile contracting government. For the purpose of executing this contract, the merchant contractors thought fit to commission a spe. cial agent to reside in the hostile territory. The question was, the effect of such residence by such an agent, upon the national character of the princi. pals; and upon this question Lord Stowell thus speaks in his judgment:

" It is not indeed held, in general cases, that a

neutral merchant, trading in an ordinary manner to the country of a belligerent, does contract the character of a person domiciled there, by the mere residence of a stationed agent, because, in general cases, the effect of such a residence is counteracted by the nature of the trade and the neutral character of the British merchant himself.

“But it may be very different where the principal is not trading on the ordinary footing of a foreign merchant, but as a privileged trader of the enemy. There, the nature of his trade does not protect him; on the contrary, the trade itself is the privileged trade of the enemy, putting him on the same foot. ing as their own subjects, and even above it."'1 This same principle is fully recognized by the Doctrine of

the United decisions of the courts of the United States. And States Courts without resort to a solution of the question of na. tional domicil, if one embarks in the ordinary or extraordinary commerce of an enemy's country, upon the same footing and with like advantages as a native resident citizenthe property employed by him in that commerce is held to be incorporated into the general commerce of the enemy's country, and subject to confiscation as lawful prize—be the resi. dence of the merchant actual or implied, where it may. In the same case, it was determined, that a shipment made by a house in the enemy's country on account and risk of an exclusively neutral partner or house, there being every evidence of good faith in the transaction, was not subject to confiscation as prize of war, and equally correct would be

The Anna Catherina, 4 Rob., 107.
San Jose Indiano, 2 Gall., 268.

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the application of the principle under converse circumstances—that is, a shipment made by a partner or agent domiciled in a foreign country, to a bona fide neutral house or principal, on the exclusive ac

count of the latter. Residence by implication

oy A person holding the office of consul in a foreign from nature of state, as we have seen in the case of The Indian the office.

Chief, before cited, is deemed a resident of that state where his official commission implies a residence. This has been held to be true even where there is no actual residence there by the consul, but his duties are performed there by deputies of his appointment—the appointment of deputies being considered proof that he regards himself as retaining the office to which this implied residence attaches, though he may have found it convenient to avoid the personal burden of its functions. In a case before cited, in another connection, the claimant represented himself as an American, but in his affidavit stated that the United States government had appointed him consul-general to Scotland, al. though he had acted no farther in that capacity than to appoint deputies.

Lord Stowell said: “It will be a strong circumstance to affect him with a British residence, as long as there are persons acting in an official station here,

and deriving their authority from him.” nce of But, as has been repeatedly affirmed, the animus the animųs manendi in de- manendi is the decisive proof of residence. To es. termining resi

tablish this intention of the mind, the circumstances in evidence need not be numerous, nor of a public


The Dree Gebroeders, 4 Rob., 232; Vide The Endraught, 1 Rob., 21.

or notorious character. In one case, the claimant
urged against the presumption by the proof of his
residence in a hostile country, that he had no fixed
counting-house there. But Lord Stowell said, “that
he had no fixed counting-house in the enemy's coun-
try, will not be decisive. How much of the great
mercantile concerns of this country is carried on in
coffee-houses? A very considerable portion of the
great insurance business is so conducted. It is, in-
deed, a vain idea, that a counting-house or fixed es-
tablishment is necessary to make a man a merchant
of any place. If he is there himself, and acts as a
merchant of that place, it is sufficient, and the mere
want of a fixed counting-house there, will be no:
breach in the mercantile character, which may well
exist without it."1


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Another principle upon the subject of hostile Hostile charcharacter for commercial purposes has been estab- ed by peculiar

til acter impresslished by numerous authorities. It is nearly connected with the question of residence, but results from the peculiar character of the commerce or traf. fic engaged in. In an early case, it was declared by Lord Stowell, to be “a doctrine supported by strong principles of equity and propriety, that there is a traffic which stamps a national character in the individual, independent of that character which mere personal residence may give-and it was laid down in the case of the 'Nancy and other ships, which was heard before the Lords, on the 9th of April, 1798, that if a person entered into a house of trade in the enemy's country, in time of war, or

" The Jonge Klassina, 5 Rob., 297.

continued that connection during the war, he should not protect himself by mere residence in a neutral country.”

The maintenance of a commercial house or establishment in a hostile country, either pers or by agent, impresses the person with a hostile character, with reference to so much of the commerce as is connected with that establishment.

The citizen or subject of a belligerent, residing or maintaining a commercial house in the country of the adverse belligerent, is deemed as possessed of a hostile character, so far as to subject to seizure such of his property as is concerned in the commerce of his foreign establishment.

So, too, the citizen of a neutral nation, residing or maintaining a commercial establishment in the territory of a belligerent, is deemed as possessed of a hostile character towards the other belligerent, so far as to justify the seizure of his property that is connected with his commerce in the belligerent nation. And a citizen of a belligerent state, resid. ing or maintaining a commercial establishment in a neutral state—is deemed a neutral, both by his native country and by the adverse belligerent—and with reference alike to the trade carried on by him with the adverse belligerent, and with all the rest of the world.

The residence only affects the particular trade. As was said by Lord Stowell in a case before cited :: “A man having mercantile concerns in two countries, and acting as a merchant of both, must

1 The Vigilantia, 1 Rob., 13.
· The Jonge Klassina, 5 Rob., 297.

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