But it is advisable for persons so situated, on their intended removal, to make application to Government for a special pass, rather than to trust valuable property to the effect of a mere intention to remove, dubious as that intention may frequently appear, under the circumstances that prevent that act from being carried into execution.
But, as we have before observed, general principles on this subject are scarcely sufficient; the right of domicile must depend on each individual case. If no express declaration has been made, and the secret intention has yet to be discovered, it can be evidenced by the acts of the party. In the first instance, these acts are removal to a foreign country, settlement there, and engagement in the trade of the country: and if a state of war brings his national character into question, it lies on him to explain the circumstances of his residence.
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[Sidenote: Domicile in Eastern Countries.]
A singular exception exists in reference to the rule of domicile. In the Western parts of Europe, alien merchants mix in the society of the natives; but in the East, from almost the oldest times, an immixable character has been kept up; foreigners continue strangers and sojourners, as all their fathers were. Merchants residing in these countries are hence still considered British subjects.
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[Sidenote: Hostile character acquired by Trade.]
Again, a National Character may be acquire by Trade, or, as it is called, by commercial domicile. In general, the national character of a person, as neutral or enemy, is determined by that of his domicile; but the property of a person may acquire a hostile character independently of his personal national character derived from personal domicile. A person carrying on trade habitually in the country of the enemy, though not personally resident there, should have time given him to withdraw from that commerce; it would press too heavily on neutrals to say, that immediately on the first breaking out of a war, their goods should become subject to confiscation. But if a person enters into a house of trade in the enemy's country, in time of war, or continued that connexion during the war, he cannot protect himself by mere residence in a neutral country. "It is a doctrine supported by strong principles and equity," says Sir William Scott, "that there is a traffic which stamps a National Character on the individual, independent of that Character which mere personal residence may give him."[70] The principle does not go to the extent of saying that a man, having a house of trade in the enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belong to his belligerent domicile.[71]
His lawful trade is exonerated from the operation of his unlawful trade, in all cases, and under all phases. All trade that does not originate from the belligerent country is protected, but not so, if it can be traced so to arise in not too remote a degree.
The same protection however is not extended to the case of a merchant residing in the hostile country, and having a share of a house of trade in an enemy's country. Residence in a neutral country will not protect his share in a house established in the enemy's country, though residence in the enemy's country will condemn his share in a house established in a neutral country.[72]