2 Daly 525 | New York Court of Common Pleas | 1869
The applicant is a native of Holland, and is now forty-nine years of age. He came to this country thirty years ago as the steward of an American vessel, and remained residing here continuously for nine years. He then went to sea, and twenty years ago was married at Mastenbroek, in Holland, where his wife and two of her children have ever since resided. For five years thereafter he sailed in foreign vessels, chiefly from ports to and from Holland, occasionally visiting his family for short periods as his occupation would permit. About fifteen years ago he returned to the United States, and has ever since been employed as a mariner in the merchant marine of this country, sailing for the last six years exclusively in vessels belonging to the port of New York, during which time he has seen his wife and family but twice, upon leave of absence granted to him while employed on board American vessels that were temporarily at the ports of Eotterdam and Antwerp. He has had no rupture with his wife and family, but, on the contrary, has transmitted to them regularly an adequate portion of his wages for their support. He has repeatedly solicited his wife to come with her children to this country and live in the city of New York, which is now and has been practically Ms
We have repeatedly held, in . this court, that a mariner of foreign birth, who has been employed exclusively in American vessels for five years continuously prior to his application to be admitted a citizen, and who, for the last year of that term, has shipped only in vessels belonging to the port of New York, is, within the meaning of the naturalization laws, to be deemed a resident, during that term, of the Hnited States, and a resident of this State for one year, unless there are circumstances which show that he has maintained and kept up his previous residence (In the matter of Scott, 1 Daly, 534; In the matter of Hawley, Id. 531; Dunlap’s Laws of the Hnited States, pp. 307, 493,494, 1167; Story’s Conflict of Laws, secs. 42 to 48).
A foreigner, continuously and exclusively employed in the \ vessels of a nation, may, by length of time, acquire a residence in that nation as effectually as though he had remained upon the land within its boundaries; for vessels are subject to the jurisdiction of the country to which they belong, and, for certain purposes, are regarded as part of its territory; as in the case put by Yattel of a child born in the vessel of a nation upon the
Every human being has a fixed domicil. Originally it is the place where his parents lived at the time of his birth, which continues until he has acquired another ; for although there are supposed exceptional cases (Vattel, B. 1, c. 19, sec. 219; Cochin, t. 1, p. 184; Felix Droit Int. Prive, t. 1, sec. 29, n. 2), as gypsies, vagrants, or those wandering vagabonds or outcasts who do not know where or when they were born, it is not so in fact; for the place of birth when known is the domicil (1 BL Com. 366, 369; Story’s Conflict of Laws, sec. 48); or, if not known, then it is the place of which the individual has the earliest recollection, where he was first seen and known by others. Unless an individual is controlled by circumstances, his residence, using that term in the sense of domicil, is the result of his own voluntary acts, and the question whether he has or has not acquired one depends less upon the application of any general rules than upon a consideration of the circumstances of his individual case. It is, as Lord Loughborough said in Bempde v. Johnstone (3 Ves. 251), more a question of fact than of law. If he is a mariner, his calling is one that compels him, as a means of livelihood, to traverse the sea from one port or place to another, and, while the voyage continues for which he has shipped, his place of abode is the vessel to which he belongs, whether she is temporarily in port or pursuing her course over the ocean. In the short intervals that elapse, in.following such a vocation,between the termination of one voyage to the beginning of another, his place of abode is necessarily upon the land, but he does not change his domicil or acquire a new one, unless his acts clearly indicate that he has done so by making some one particular place or country his residence, with no present purpose of changing it.
If it is usual with him, when out of employment, to ship in any vessel, the master of which will engage him, wholly indifferent as to the place or country to which she belongs, or as to the part of the world in which he may find himself when the contract is at an end, then it is inferable that no intention ex
The circumstances of the present case show that the applicant, Bye, is not to be classed with those mariners who are indifferent to the nationality of the vessel they engage in; to whom any ship is acceptable when the stipulated wages are paid, wherever she is found, whatever may be the flag she bears, or whither she may be going. On the contrary, he has limited himself, for the last fifteen years, in the pursuit of his calling, to the vessels of the United States. He has done so from interest and inclination; he has resided here for nine years in the youthful part of his life, and now, after the test of fifteen years of service in the merchant marine of this country, it is Ms fixed intention to continue here for the remainder of his life,- an intention not simply gathered from his avowal now, but one repeatedly expressed heretofore to the owners of the vessel by whom he is at present employed, which he has also expressed to his wife and manifested by his efforts to induce her to come over to this country with the younger children and live with Mm here.
If, as is evidently the case, he finds it to be Ms interest to continue here in the employment in which he has been engaged for so many years, he should not be deprived of the benefits and advantages attendant upon a continuous residence in this