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of the Crown abroad, do not fall within the application of the Chapter IV common law rule, but are British subjects. There seems to be a doubt however whether this exception depends on the common law or on the statute of 25 Edward III.

All the argument in Calvin's case tends to show that it is Rul. Ca. II.} part of the common law. Stated shortly that argument is, that subjects who go abroad with the King in his wars are still within the ligeance of the King: that as they remain under their King's ligeance, his protection goes with them, for allegiance and protection go hand in hand, and where one exists, even though it be beyond the realm, the other under normal circumstances exists also. There may possibly be some question whether this old doctrine, which comes from the time when Kings themselves went to the wars, applies in modern times, but is submitted that the whole drift of the argument tends to show that it does. In De Geer v. Stone however, Kay, J., denied the existence of the principle. The learned Judge based himself on the Parliament Roll 17 Edward III, which he seems to have considered as an exhaustive statement of the common law. He said with regard to it—

"It is not alleged that this has the force of an Act of Parliament, but it is cited as an authoritative statement of the law which, from its antiquity is worthy of respect. But it must be observed that the statement though emphatic as to the children of the King of Great Britain, is by no means so as to the children born of persons in the service of the King. The great doubt and difficulty which are said to have existed must be as to these latter, because it is stated that there is no manner of doubt as to the children of the King born abroad."

L.R. 22 Ch.

D. 243.]

There is it is true a reference to the children of certain nobles in the statute of 25 Edward III;* but it was not in- *[see p. 47.] tended to settle the question only for the soldiers, who had been in the King's service in the wars, but also for the common profit of the people, many of whom had begun to trade abroad. The fact that a general law was passed does not preclude the possibility of part of it being based on the common law.

of soldiers

It might appear at first sight, and it was in fact suggested The case by Kay, J., that the statutes are sufficient for all the purposes of of children children born abroad, whose fathers are on military service: but born abroad bearing in mind that subsequent residence in England does not covered by convert the statutory nationality into common law nationality, the statutes.

seems to be

Chapter IV and further that the nationality of the third generation may depend on the merest accident, it is of importance that the question should be put on its proper basis: and it is submitted that the learned Judge's denial of the principle was obiter, and not warranted by the legitimate deduction from Calvin's case.

rule in Calvin's case.

The facts in the case of De Geer v. Stone raised an entirely different question, in connection with the nationality of a certain family, the Mackays, the service abroad not having been the service The case of of the King. Æneas Mackay served in Holland in the "Scotch the Mackays did not fall Brigade" in the war between England and Holland and their within the allies against France at the close of the 17th century but after 1697, the Brigade ceased to be on the establishment of the British army, though officered by British subjects. From that time the service abroad of the Mackays was not even as soldiers of an ally, when possibly the rule we are considering would apply and therefore the status of British subject would not be acquired by a child of a person in such service unless he fell within the operation of the statutes. From these facts it will be seen that the case did not fall within the principle of Calvin's

Service

abroad with an ally.

Children of enemies

the time of

war.

case.

When we come to consider the converse case, that of foreign born within children born of alien enemies in time of the war within the realm the realm in of the King of England, the importance of admitting the exception to the common law rule because apparent : for, as in the previous cases, a rule which depends on the common law must be equally applicable to the two aspects of the question, and this converse case is not governed by statute. This is expressly dealt with in the argument in Calvin's case:

[Rul. Ca.

"For if enemies should come into the realm, and possess town or II, p. 607.] fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, for that he was not born under the ligeance of a subject, nor under the protection of the King" The rule in Calvin's case would not apply to prisoners of to prisoners War, for in their case though the allegiance remains, the protection has ceased, and the twofold condition of allegiance and protection is therefore wanting.

Rule not applicable

of war.

[blocks in formation]

(iv)-Persons born under the Flag

It is further stated that a person born on board a British ship the high seas, in the allegiance of the Crown, is at common law

L. R. 6 Q. B. 31.

British subject. It is needless to say that such a question could Chapter IV not arise under the jus sanguinis, but owes its origin entirely to the jus soli. The case of Marshall v. Murgatroid is an express authority for this proposition. A bastard child had been born on a British ship on the high seas, and the question was whether an order could be made by the Justices on the putative father in England, under a statute which only applied to England and Wales. The Court held that the English ship being part of En- decided to gland by the common law and the law of nations, the order could be made. It must be presumed that the decision would have been the same if the point had arisen under a statute applicable only to Scotland, or to Ireland.

be British

subjects.

C. R. 161.]

B. D. 76.]

not to be in

criminal

cases.

L. R. 2 Ex.

D. at p. 161]

This proposition is also sometimes inferred from criminal. R.1 C. cases such as R. v. Anderson, and R. v. Carr, in which the jurisdietion over persons in British ships at sea was in issue, and in which L. R. 10 Q. the Judges held that there was jurisdiction to try 'offences irrespective of express legislation. Their judgments were based on the territory or "floating island " theory; as to which it may be here Proposition observed that, in referring to it in R. v. Keyn, Cockburn C. J. did ferred from not go further then to say that a ship "had been likened to a floating portion of the national territory ". The law as to British ships on the high sea will be discussed at length hereafter; it is however possible to determine the question of the nationality of persons born thereon from another standpoint. Though ships are not within the inherent jurisdiction of the Courts, they are within the jurisdiction of the King in his office of Admiralty, of which the Nationality flag is the symbol. Protection follows the flag at sea just as much as it follows the flag on land abroad: and therefore, without of the flag: going into the complicated question whether a ship is actually a floating island, it seems possible to say that the same reason which makes children born abroad British when the father is in the military service of the King, would make children also British as in the when they are born under the flag at sea. For, according to the Case of soltheory of the law, the allegiance of the child when born is claimed tive service by reason of the protection with which he is enveloped. And it may be observed that in the "floating island" cases the protection of the flag is always referred to.

follows the

protection of

diers on ac

abroad.

Different

ces under

There are many variations in the circumstances on which circumstanthe question of nationality may depend. Thus the ship may be a which the man-of war or a merchant ship: she may be on the high seas or

question

may arise.

Chapter IV in British territorial waters, or in foreign territorial waters, or in a foreign harbour or tidal river, or in the dominion waters of a foreign State-the decision as to the nationality of persons born abroad depends on whether the law of the flag prevails in any of these circumstances, which itself depends on other circumstances to be presently considered.

Registration of births at sea.

It may be observed that the registration of births on board British ships at sea is provided for by 37 & 38 Vict c 88, s 37, and also by s. 254 of the Merchant Shipping Act, 1894.

It would serve no practical purpose here to compare the respective merits of the jus soli and the jus sanguinis as the guiding spirit for a national law of nationality. Force of circumstances, isolation from or contiguity to other nations being one of the most forcible, has led one nation to adopt one principle, another to adopt the other, and some modified forms of both. The jus soli was the most natural for the old common law of suited to the England to have adopted. As Sir A. Cockburn, says in his book cumstances, on Nationality

Jus soli

adopted as

national cir

[at p. 7.]

"This rule, when originally established, was not unsuited to the isolated position of this island and the absence of intercourse with foreign nations in Saxon times. No children of English parents being born abroad, or children of foreign parents being born within the realm, the simple rule that to be born within the dominions of the Crown constituted an Englishman answered every purpose."

But there is hardly a fundamental rule of law which commerce has not bent to its necessities, and this rule of nationality among the first: Sir A. Cockburn continues

"But when the foreign possessions of our Kings and the increase of commerce had led to greater intercourse with the continent, and children of English parents were sometimes born abroad, the inconvenience of the rule which made the place of birth the sole criterion of nationality soon became felt.

"It appears from the Parliamentary Rolls of the reign of Edward III; that as early as the 17th. of that King (1343), doubts having arisen whether even the King's sons born without the realm could inherit, the Archbishop of Canterbury brought the question before the Lords. The Lords replied unanimously that the King's sons could inherit; wherever born, but that with regard to children of other persons there were great difficulties in deciding the question."

The doubts as to the nationality of the King's sons are

surprising, for it was in Edward III's reign that the prac- Chapter IV tical necessities of our invasion of France called into being

the rule as to the exterritoriality even of soldiers. But the doubts

nience of the

as to the children of other persons seem to have been hardly In conve doubts, but a protest against the stringency of the old rule old rule, of the common law, and a demand for its modification, caused by the commerce which followed on the conquests of the Kings. So we find that

"the matter was again brought before the Lords and Commons led to the subject jointly, who concurred in the opinion previously given by the Lords, and being dealt recommended that a law should be passed on the subject, but, as Par- by statute. liament was about to be prorogued, 'et ceste besoigne demand grant avisement et bone deliberation coment ele se purra mieltz faire, et plus surement,' the further consideration of it was deferred."

Owing to the plague, legislation on this and other subjects was not resumed till the year 1350, when the Act 25 Edward III, stat. 2 was passed, entitled "A Statute for those that be born beyond sea".

B

NATIONALITY BY STATUTE.

This statute of Edward III still remains on the statute book, Nationality by statute. though it has now little more than a historic interest. Lord Bacon, arguing in Calvin's case, advanced the theory that the statute was only declaratory of the common law :

25 Edw. III

not declaratory of the

"but this view is hardly consistent with its language, which is prospective, and it has been pertinently observed that if the Statute had only common been declaratory of the common law, the subsequent legislation on this subject would have been wholly unnecessary."

law.

*[Sir A. Cockburn,

As has been already pointed out, this comment must relate "Nationalito that part of it which deals with the doubts as to the inhe- ty" at p. 9.] ritance of the children of other persons, and not of the children of the King, or, as we have seen, of the King's soldiers. The Statute runs thus

25 Ed. III, stat. I.

Our Lord the King... considering the great mischiefs and damages Statute of 25 which have happened to the people of His realm of England, as well Edw. III. because that the statutes ordained before this time have not been holden and kept as they ought to be, as because of the mortal pestilence that late reigned, and willing to provide for the quietness and common profit of his said people convenient remedy therefore by the assent of the prelates, earls, barons, and other great men, and all the commons of his

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