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as incorporated into that society, so as, immediately on: VENUS, a declaration of war, to become the enemy of his own.
RAE, “ His property," says Vattel, " is still a part of the totaMASTER. "lity of the wealth of his nation.” « The citizen or sub
66 ject of a state, who absents himself for a time, without
The subject of one power inhabiting the country of another, ought not to be considered as a member of the nation in which he resides, even by foreigners; nor ought he, on the first commencement of hostilities, to be treated as an enemy by the enemies of that nation.
Burlamaqui says, “as to strangers, those who settle in
the enemy's country after a war is begun, of which “ they had previous notice, may justly be looked upon si as enemies and treated as such. But in regard to such “ as went thither before the war, justice and humanity
require that we should give them a reasonable time to (retire; and if they neglect that opportunity, they are 6accounted enemies."
If this rule be obligatory on foreign nations, much more ought it to bind that of which the individual is a member.
I think I cannot be mistaken when I say that, in all the views taken of this subject by the most approved writers on the law of nations, the citizen of one country residing in another, is not considered as incorporated in that other, but is still considered as belonging to that society of which he was originally a member. And if war break out between the two nations, he is to be permitted, and is expected, to return to his own. I do not perceive in those writers any exception with regard to merchants.
Įt must, however, be acknowledged that the great ex
tension of commerce has had considerable influence on national law. Rules have been adopted, perhaps by VENUS, general consent, principles have been engrafted on the RAE, original stalk of public law, by which merchants, while MASTER. belonging politically to one society, are considered commercially as the members of another. For commercial purposes the merchant is considered as a member of that society in which he has his domicil; and less conclusive evidence than would seem to be required in general cases, by the law of nations, has been allowed to fix the domicil for commercial purposes. But I cannot admit that the original meaning of the term is to be entirely disregarded, or the true nature of this domicil to be overlooked. The effects of the rule ought to be regulated by the motives which are presumed to have induced its establishment, and by the convenience it was intended to promote.
The policy of commercial nations receives foreign merchants into their bosom; and permits their own citizens to reside abroad for the purposes of trade without injury to their rights or character as citizens. This free intercommunication must certainly be believed, by the nations who allow it, to be promotive of their interests. Nor is this opinion ill founded. Nothing can be more obvious than that the affairs of a commercial company will be transacted to most advantage by being conducted, as it respects both pui'chase and sale, under the eye of a person interested in the result. The nation which takes an interest in the prosperity of its commerce, can feel no inclination to restrain its citizens from residence abroad for the purposes of commerce; nor will it hastily construe such residence into a change of national character, to the injury of the individual. It is not the policy of such a nation, nor can it be its wish, to restrain its citizens from pursuing abroad a business which tends to enrich itself. It ought not, then, to consider them as enemies in consequence of their having engaged in such pursuit in the country of a friend, who, before their removal, becomes an enemy.
If, indeed, it be the real intention of the citizen permanently to change his national character, if it be his choice to remain in the country of the enemy during
war, there can be no harshnessno injustice in treatVENUS, ing him as an enemy. But if, while prosecuting his
RAE, business in a foreign country, he contemplates a return MASTER. to his own ; if, in the prosecution of that business, he
is promoting rather than counteracting the interests and policy of the country of which he is a member, it would seem to me to be pressing the principle too far, and to be drawing conclusions which the premises will not warrant, to infer, conclusively, an intention to continue in a country which has become hostil , from a residence and trading in that country while it was friendly; and to punish bim by the confiscation of his goods, as if he was fully convicted of that intention.
It is admitted to be a general rule, that, while the state of things remains unaltered, while the motives which carried the citizen abroad continue, while he still prosecutes a business of uncertain duration, his capacity to prosecute which is not impaired, his mercantile character is confounded with that of the country in which he resides, and his trade is considered as the trade of that country.
It will require but a slight examination of the subject to perceive the reason of this rule; and that, to a certain extent, it is convenient without being unjust.
In times of universal peace, the question of national character can arise only when some privilege or some disability is attached to it, or in cases of insurance. А particular trade may be allowed or be prohibited to the merchants of a particular nation, or property may be warranted to be of a particular nation. If, in such cases, the residence of the individual be received as evidence of his national mercantile character, the subjects of enquiry are simplified, the questions are reduced to a plain one, and the various complex enquiries, which might otherwise arise, are avoided. There is, therefore, much convenience in adopting this principle in such a state of things, and it is not perceived that any injustice can grow out of it; since the individual to whom the rule is applied is not surprised by any new or unlooked for event.
So if war exists between two nations. Each bellige
rent having a right to capture the property of the other THE found on the ocean, each being intent on destroying the VENUS, commerce of the other, and on depriving it of every RAE, cover under which it may seek to shelter itself, will cer- MASTER. tainly not allow the advantages of neutrality to a merchant residing in the country of his enemy. Were this permitted, the whole trade of the enemy could assume, and would assume, a neutral garb.
There is, in general, no reason for supposing that a merchant residing in a foreign country, and carrying on trade, means to withdraw from it, on its engaging in war with any other country to which he is bound by no obligation. By continuing, during war, the domicil acquired in peace, he violates no duty, offends against no generally acknowledged principle, and retains all his rights of residence and commerce. The war, then, furnishes no motive for presuming that he is about to change his situation, and to resume his original national character.
These reasons appear to me to require the rule as a general one, and to justify its application to general cases. But they do not, in my opinion, justify its application to the case of a merchant whom war finds engaged in trade in a country which becomes the enemy of his own.
His country ouglit not, I think, to bind him by his residence during peace; nor to consider him as precluded by it from showing an intention that it should terminate with the relations of peace.
When it is considered that his right to remain and prosecute that trade in which he had been engaged during peace, is forfeited ; that his duty, and most probably bis inclinations, call him home; that he has be- . come the enemy of the country in which he resides ; that his continuance in it exposes him to many and serious inconveniences; that his person and property are in danger; it is not, I think, going too far to say that this change in his situation may be considered as changing his intention on the subject of residence, and as affording a presumption of intending to return.
Let it be remembered that, according to the law of nations, domicil depends on the intention to reside per
manently in the country to which the individual has reVENUS, moved; and that a change of this intention is, at any RAE,
time, allowable. If, upon grounds of general policy MASTER. and general convenience, while the circumstances under
which the residence commenced, continue the same, residence and employment in permanent trade be considered as evidence of an intention to continue permanently in the country, and as giving a commercial national character, may not a total change in circumstances—a loss of the capacity to carry on the trade, be received, in the absence of all conflicting proof, as presumptive evidence of an intention to leave the country, and as extricating the trade, carried on in the time of supposed peace, from the national character, so far as to protect it from the perils of war? At any rate, do not reason and justice require that this change of circumstances should leave the question open to be decided on such other evidence as the war must produce ?
The great object for which an American merchant fixes himself in a foreign country, is, most generally, to carry on trade between that country and his own. In almost every case of this description before the Court, the Claimant is a member of a house established in the United States; and his business abroad is subservient to the business at home. This trade is annihilated by
If, while peace subsists between the United States and Great Britain, while the American merchant possesses there all the commercial rights allowed to the citizens of a friendly nation, and may carry on uninterruptedly his trade to his own country, he is presumed, his intentions being unexplained, to intend remaining there always, and may, for general convenience, be clothed with the commercial character of the nation in which he resides, ought this presumption to be extended, by his own government, beyond the facts out of which it grows, if the interest of the individual be materially affected by that extension ? Do not reason and justice require that we should consider his original intention as being only co-extensive with the causes which carried him to and detained him in the country, as being, in its nature, conditional, and dependent on the continuance of those causes ?