need not be gone into again. The issues arose in the course of ordi- Chapter XIII nary proceedings before the Courts; but it is clear that the special question involved could have formed the subject of a petition under the Legitimacy Declaration Act, for what is usually termed the question of "recognition ", is only another name for the question whether the English law will accord to the marriage and its offspring the ordinary consequences of marriage: in other words, whether the marriage is valid by English law. In fact, the expression validity of the marriage" is nearly always used in the judgments. There is one case reported in which the question was Case of marriages in raised by way of petition under the Act-Brinkley v. Attorney Japan. General. The petition was presented by the husband for a P.D. 76 [L. R. 15 declaration of the validity of his marriage with a Japanese lady, which had been celebrated according to the law of Japan. It was a simple example of case C, for no question arose as to his being a natural-born subject; though resident in Japan, his Irish domicil was proved by affidavit. Sir J. Hannen held that by the law of Japan marriage meant that one man unites himself to one woman to the exclusion of all others, and therefore that the requirement of English law was satisfied. He further pointed out that the phrase "Christian marriage "was only used for convenience to express this idea. doubts to be life-time of person chief The second part of the first section thus enables an English- Act enables man who has married in an oriental country, so long as he re- settled in main domiciled in England, to settle during his life-time any doubts which may exist as to the validity of his marriage, and con- ly interested. sequent legitimacy of his children; he may thus dispose of questions, often of great difficulty,which would probably arise after his death, to the disturbance and waste of his succession. This brings us to the conditions attached to the presenta- The condition of the petition. In all cases the petitioner must be domiciled tions. in England or Ireland, or must be a claimant real or personal estate in England. The condition of domicil defines the jurisdiction of the Court, Domicil. as to which one point must be considered. The power to hear these petitions of validity of marriage was added by the Act under consideration to the general competence of the Divorce Court after it was first created. The jurisdiction of the Court was Jurisdiction] not defined; but the Courts, so far as dissolution of marriage is Court. of Divorce [L. R. 4 P. D. 1.] Chapter XIII concerned, have worked out for themselves a rule of jurisdiction which depends not on domicil but on the matrimonial home*, a distinction which in some cases is very real, as was shown in the case of Niboyet v. Niboyet. But the construction of the words of the Act, which are precise, would seem to warrant a departure from this rule of jurisdiction: and if this is so, the Court would entertain a petition for validity of marriage if the domicil was English, though the matrimonial home was abroad and conversely, would not entertain such a petition although the matrimonial home was in England, if the domicil was abroad. The condition of domicil, so far as regards questions of legitimacy, appears to be a recognition of the rule that legitimacy depends on the law of the domicil. The extension of the jurisdiction to persons domiciled in Ireland, to the exclusion of those domiciled in Scotland, is not easy to understand. But when the condition is applied to cases where nationality is in issue, the reason for insisting on an English domicil is not apparent it seems rather to be due to a confusion between legiNationality timacy which is dependent on domicil, and nationality which is and legiti- not. The condition might exclude persons from the benefit of the macy confused. Claim to property. second section of the Act, who desire to settle doubts as to their The second condition gets rid of the question of domicil, and *see " Foreign Judgments" p. 289. 1 this alternative condition seems ill-adapted to the legal condi- Chapter XIII tions of the present day. status. The decree on the petition, whether it be of legitimacy or il- Decree a judgment of legitimacy, of validity or invalidity of marriage, of the right or absence of right to be deemed a British subject, is from its nature a judgment of status, and as such entitled to entitled to universal recognition. At the end of both the sections it is nevertheless expressly provided that the judgment shall be binding to all intents and purposes on Her Majesty and on all persons whomsoever". may petition The Act speaks of natural-born subjects: but seeing that Persons naturalization gives all the rights of natural-born subjects to naturalized persons naturalized, it follows that they also can avail them- under the selves of the provisions of the Act, in so far as they are applicable to them. Act. The procedure is now by way of petition to the Probate Di- Procedure. vision of the High Court: it is to be accompanied by an affidavit verifying the petition and of absence of collusion, copies of which are to be delivered to the Attorney General who is to be respondent. The Court may allow persons to be cited who may become parties to the proceedings and may oppose the application* : and there is a saving of the rights of certain parties not cited. The Act is made part of the Matrimonial Causes Act, 1857, and appeals 20 & 21 lie to the Court of Appeal and House of Lords in the same man- Vict. c. 85. ner as they lie under that Act. By s. 9, a person domiciled in Scotland, and claiming herit- Petitions in able or moveable property in Scotland, may insist in an action of Scotland. declarator that he is a natural-born subject, the Court of Session being granted the same jurisdiction as in declarators of legitimacy or declarators of bastardy. 21 & 22 Vict. c. 93, s. 9. Ireland. Action of Any person domiciled in Scotland, or claiming any herit- Petitions in declarator able or moveable property situate in Scotland, may raise and by person insist in an action of declarator before the Court of Session, Scotland. for the purpose of having it found and declared that he is entitled to be deemed a natural-born subject of Her Majesty: domiciled in *The question whether any other persons than the Attorney General are to be cited is to be decided by the Registrar, all the facts of the case being put before him L.R. 14 by affidavit: an appeal lying from his decision, or he referring difficult cases to the P. D. 83.] Court: Brinkley v. Attorney General. Chapter XIII and the said Court shall have jurisdiction to hear and determine such action of declarator, in the same manner and to the same effect, and with the same power to award expenses, as they have in declarators of legitimacy and declarators of bastardy. 31 & 32 The Irish Act, the Legitimacy Declaration Act (Ireland) 1868-is a reproduction of the English Act; the jurisdiction of Vict. c. 20. the Irish Court being extended to persons domiciled in Ireland or England. The Act contains an interpretation clause which must be noticed, defining the terms "person" and "subject ". General rule 31 & 32 Vict. c. 20, s. 10. person and “ Definition of In the construction of this Act the words "person" and subject" shall include parties cited as respondents as well as petititioners, and shall comprise all of a class claiming or deriving in the same right, who would as children or grand-children or in their own persons be comprehended within the term" issue ". The rule of jurisdiction under the Acts for the different parts of the United Kingdom is the following: Persons domiciled in England or Ireland may petition in of jurisdic- either country; but if they are domiciled in Scotland they must petition in that country. If the ground of the petition is a claim to property only, irrespective of domicil, the petition must be presented in the country in which the property is situate. tion for the United Kingdom. [for ss. 1, 2, The sections of the Act which have not already been printed do not call for any special remark. They are as follows— 21 & 22 Vict. c. 93:-An Act to enable persons to established Legitimacy and Validity of Marriages, and the right to be deemed Natural-born Subjects. [2nd. August, 1858.] WHEREAS it is expedient to enable persons to establish their legitimacy, and the marriage of parents and others from whom they may be descended, and also to enable persons to establish their right to be deemed natural-born subject : ** * 3.-Every petition under this Act shall be accompanied by such affisee p. 194. davit verifying the same, and of the absence of collusion, as the Court may by any general rule direct. *[Matrimo- 4. All the provisions of the Act 20 & 21 Vict. c. 85,* so far as the nial Causes same may be applicable, and the powers and provisions therein containAct, 1857.] ed in relation to the making and laying before Parliament of rules and regulations concerning the practice and procedure under that Act, and fixing the fees payable upon proceedings before the Court, shall extend to applications and proceedings in the said Court under this Act as if the same had been authorized by the said Act 20 & 21 Vict. c. 85. 5-In all proceedings under this Act the Court shall have full power to award and enforce payment of costs to any persons cited, whether such Chapter XIII persons shall or shall not oppose the declaration applied for, in case the said Court shall deem it reasonable that such costs should be paid. 6. A copy of every petition under this Act, and of the affidavit accompanying the same, shall, one month at least previously to the presentation or filing of such petition, be delivered to Her Majesty's Attorney General, who shall be a respondent upon the hearing of such petition and upon every subsequent proceeding relating thereto. 7.—Where any application is made under this Act to the said Court, such person or persons (if any) besides the said Attorney General as the Court shall think fit shall, subject to the rules made under this Act, be cited to see proceedings or otherwise summoned in such manner as the Court shall direct, and may be permitted to become parties to the proceedings, and oppose the application. 8. The decree of the said Court shall not in any case prejudice any person, unless such person has been cited or made a party to the proceedings or is the heir-at-law or next of kin, or other real or personal representative of or derives title under or through a person so cited or made a party; nor shall such sentence or decree of the Court prejudice any person if subsequently proved to have been obtained by fraud or collusion. [for s. 9, see 10.- No proceeding to be had under this Act shall affect any final p. 203.1 judgment or decree already pronounced or made by any Court of competent jurisdiction. 11. The said Act 20 & 21 together as one Act; and this "The Legitimacy Declaration Vict. c. 85 and this Act shall be construed Chapter XIV. Of Nationality in the Colonies; and of Colonial Nationality. law and sta Up to the present it has been assumed with regard to natio- Chapter XIV nality at common law, that the doctrine of the birthright was not limited to the United Kingdom, but extended to the whole of the King's dominions. The doctrine as originally formulated was probably limited to the kingdom, or the realm: but even as early Common as the statute of Edward III, it took the more expanded form tutes as to "birth within the ligeance", and it was on this basis that it was nationality expounded in Calvin's case. From this it should follow that it is now correct to say that "birth within the dominions" makes a person a British subject by the common law. So as to the statutes, it has been assumed that they also apply to the dominions: that is to say, that "birth abroad", or "birth assumed to extend to Colonies. |