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any guardian, appointed in the State of the domicil of the ward, has been generally held to have the power of changing the ward's domicil from one county to another within the same State and under the same law.. But it is very doubtful, to say the least, whether even a guardian appointed in the State of the domicil of the ward (not being the natural guardian or a testamentary guardian) can remove the ward's domicil beyond the limits of the State in which the guardian is appointed and to which his legal authority is confined
And it is quite clear that a guardian appointed in a State in which the ward is temporarily residing can not change the ward's permanent domicil from one State to another."
Lamar v. Micou, 112 U. S. 452, 471, 472.
Estate, 128 Cal. 214; Peacock 1. Collins, 110 Ga. 281.
II. BELLIGERENT DOMICIL.
“A person found residing in a foreign country is presumed to be there animo manendi, or with the purpose of remaining; and to relieve himself of the character which this presumption fixes upon him, he must show that his residence was only temporary, and accompanied all the while with a fixed and definite intention of returning. If in that country he engages in trade and business, he is considered by the law of nations as a merchant of that country; nor is the presumption rebutted by the residence of his wife and family in the country from which he came. This is the doctrine as laid down by the United States courts. And it has been decided that a Spanish merchant, who came to the United States and continued to reside here and carry on trade after the breaking out of war between Spain and Great Britain, is to be considered an American merchant, altho the trade could be lawfully carried on by a Spanish subject only."
Report of Mr. Webster, Sec. of State, to the President, in Thrasher's case,.
Dec. 23, 1851, 6 Webster's Works, 521, 524; S. Ex. Doc. 5, 32 Cong.
1 sess.; H. Ex. Docs. 10, 14, 32 Cong. 1 sess.
III. 138 ; Moore, Int. Arbitrations, III. 2701-2703.
“ The highest judicial tribunals of this country, as well as those of the principal powers of Europe, have deliberately decided, after elaborate argument, that merchants domiciled and carrying on business in a country at war with another must be regarded as enemies. This rule has even been applied [by the courts of the United States]
to citizens of the United States engaged in commerce in an enemy's country.”
Mr. Marcy, Sec. of State, to Baron Gerolt, Prussian min., Feb. 15, 1854,
MS. Notes to Prussian Leg. VII. 10.
III. THRASHER'S CASE.
Two cases have been cited as the ground of intimations now and then made that domicil may or should, even apart from matters of prize, to some extent, not definitely expressed, supplement, and indeed supplant, allegiance as the test of national character, and thus serve as the basis of diplomatic intervention. One of these cases is that of John S. Thrasher, the other that of Martin Koszta. In regard to both, grave misapprehensions have at times prevailed. These misapprehensions, in Thrasher's case, have been due not only to the fact that Mr. Webster's famous report of December 23,1851, written in response to a resolution of Congress and embodying a hypothetical opinion, was immediately published, while a later paper, in which, upon
fuller information, he reached a different conclusion, remained for many years unknown, but also to the failure to observe either the exact purport of Mr. Webster's reasoning or the circumstance that, when he spoke of domiciliation, he referred to something which, although it did not necessarily presuppose the existence of domicil, went in some respects beyond it. In Koszta's case the misapprehensions seem in great part to have been due to a want of familiarity with the circumstances of the transaction, as well as with the text of Mr. Marcy's celebrated paper, except, perhaps, as it may be found in extracts which, when torn from the context, serve chiefly to mislead.
The early published report in Thrasher's case related to the question whether he was entitled to the intervention of the United States, in respect of his arrest, sentence, and imprisonment in Cuba on a charge of complicity in the Lopez expedition of 1850. It appeared that he had taken out letters of domiciliation in Cuba, and there was reason to believe that he was also domiciled in the island. The process of obtaining such letters involved the taking of an oath of allegiance, which it was thought might have had the effect of making him a Spanish subject and dissolving his allegiance to the United States. But, even assuming that this was not the case, Mr. Webster argued that if he was domiciled in Cuba he was, as a permanent resident, peculiarly subject to the operation of the laws there, and could not ask the United States to intervene to prevent the imposition of any penalties which he might justly have incurred by the violation of those laws. In this relation Mr. Webster said:
H. Doc. 551-Vol 3—-52
The general rule of the public law is, that every person of full age has a right to change his domicil; and it follows, that when he removes to another place, with an intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicil; and this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period. The Supreme Court of the United States has decided that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidences of an intention permanently to reside in that country, as to stamp him with its national character;' and this undoubtedly is in full accordance with the sentiments of the most eminent writers, as well as with those of other high judicial tribunals on the subject. No government has carried this general presumption farther than that of the United States, since it is well known that hundreds of thousands of persons are now living in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this Government, nor been domiciled amongst us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men, actually living amongst us as inhabitants of the United States, to learn that, by removing to this country, they have not transferred their allegiance from the governments of which they were originally subjects to this government? And, on the other hand, what would be the condition of this country and its government, if the sovereigns of Europe, from whose dominions they have emigrated, were supposed to have still a right to interpose to protect such inhabitants against the penalties which might be justly incurred by them in consequence of their violation of the laws of the United States? In questions on this subject, the chief point to be considered is the animus manendi, or intention of continued residence; and this must be decided by reasonable rules and the general principles of evidence. If it sufficiently appear that the intention of removing was to make a permanent settlement, or a settlement for an indefinite time, the right of domicil is acquired by a residence even of a few days.”
Again, in the same paper, Mr. Webster said: “No man can carry the ægis of his national American liberty into a foreign country, and expect to hold it up for his exemption from the dominion and authority of the laws and the sovereign power of that country, unless he be authorized to do so by virtue of treaty stipulations."
These passages certainly involve no new doctrine. They merely lay down the familiar and fundamental rule of the supremacy of the territorial jurisdiction, with an accentuated affirmation of its peculiar applicability to permanent dwellers.
As to the other question, Mr. Webster, on fuller information, decided that the taking out of letters of domiciliation did not involve expatriation nor deprive Mr. Thrasher of the right to claim the privileges secured to citizens of the United States by the treaty of 1795.
See, supra, $ 468; Webster's Works, VI. 521, 523, 528; S. Ex. Doc. 5, 32
Cong. 1 sess. ; II. Ex. Docs. 10, 14, 32 Cong. 1 sess. ; Mr. Webster, Sec. of State, to Mr. Sharkey, consul at Ilavana, No. 16, July 5, 1852, 14 MS. Desp. to Consuls, 346; Moore, Int. Arbitrations, III. 2701, where Mr. Webster's instruction to Mr. Sharkey, of July 5, 1852, conveying his final opinion on the question of domiciliation, is given in a summary of the great argument on domicil, by J. Hubley Ashton, esq., before
the Mexican Claims Commission under the treaty of July 4, 1868. “I am directed to inform you that, agreeably to your wishes, the U. S.
consul-general in Cuba has been instructed to renew the request heretofore made by his predecessor for copies of certain papers relating to your trial and imprisonment in Cuba by the Spanish authorities.” (Mr. Appleton, Assist. Sec. of State, to Mr. Thrasher, Jan. 21, 1859, 50 MS. Dom. Let. 9.)
In 1866 the Colombian Congress undertook by statute to define the rights and duties of aliens. By the second section, it was declared that aliens domiciled, and not merely transient, in the country should “enjoy the same civil rights and guarantees and be subject to the same obligations as to person and property as Colombians.” To the general principle thus laid down, Mr. Seward perceived no objection, in view of the right of jurisdiction possessed by states over all persons within their territory, except where such jurisdiction is relinquished, as in the case of Mohammedan countries. The act also provided, however, that domiciled aliens should enjoy the exemptions to which they might be entitled by public treaties; and in this relation Mr. Seward called attention to Art. XIII. of the treaty of 1816, which, although it did not provide for any exemptions from the local law, stipulated that the contracting parties should each extend to the citizens of the other within its territories “special protection," whether they were "transient or dwelling therein." Mr. Seward intimated that this stipulation precluded the Colombian Government from drawing“ a distinction between our citizens who are commorant and those who are only transiently in that country.”
Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, No. 155, Sept.
27, 1866, MS. Inst. Colombia, XVI. 200.
Where a British subject, for whose killing by a local officer in New Mexico a diplomatic claim for damages had been made, appeared to have been domiciled in that Territory, it was suggested that as he was not, so far as concerned “the administration of the judicial function there, a foreigner,” and as his personal estate, if he died intestate, would be distributed in accordance with local law, his “
representatives” had “no title to the intervention of a foreign sovereign.”
Mr. Bayard, Sec. of State, to Mr. West, Brit. min., June 1, 1885, For.
Rel. 1885, 450, 459.
1885, 156 MS. Dom. Let. 232.
IV. THE KOSZTA CASE.
1. MARCY-HÜLSEMANN CORRESPONDENCE.
“ The undersigned, chargé d'affaires of his Majesty the Emperor
of Austria, has been instructed to address this official Mr. Hülsemann's
note to the honorable Secretary of State, in relation note, Aug. 29, 1853.
'to the difficulties which have oecurred between the agents of the two Governments at the port of Smyrna.
“ The facts which came to pass on that occasion are of public notoriety, and the undersigned thinks he may confine himself in his comments thereon to the most prominent points. Our consul-general, Mr. de Weckbecker, exercising the right of jurisdiction which has been guaranteed by treaties to the consular agents of Austria in the East relative to their countrymen, had caused to be arrested, and conveyed on board the Austrian brig-of-war · Huszar,' the Hungarian refugee, Martin Koszta ; who, residing at one time in the interior at Kutahia, had left Turkey, in company with Kossuth, and who, after having pledged himself in writing not to set foot again on Ottoman territory, broke that pledge by returning some months since to Smyrna. This arrest gave cause to some reclamations which Mr. Offey, United States consul, conjointly with the commander of the American sloop-of-war · St. Louis,' anchored in the roads before Smyrna, deemed it incumbent upon themselves to address to Mr. de Weckbecker, basing their demands upon the fact that the aforesaid Koszta, having, according to them, caused himself to be naturalized in the United States, was entitled to the protection of the American authorities. Upon this, the consul-general of the Emperor, accompanied by the American consul and the American commander, repaired on board the ' Huszar, and these two functionaries had it in their power to convince themselves, from the declarations of the prisoner himself, that the latter had not acquired the quality of citizen of the United States, and that he was not even provided with an American passport.
“ On his own part, the chargé d'affaires ad interim of the United States at Constantinople addressed a communication, on the 27th of June, to the Imperial Internuncio (minister), the object of which was