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and that protection goes with them, and therefore also subjection, they themselves being enemies to the country in which they go that the protection and government of the King is over all his dominions and kingdoms, as well in time of peace by justice, as in time of war by the sword, and that all be at his command and under his obedience: that faith and ligeance is not limited to the kingdom, because the King's power goeth out of England, as at times indeed it has done into France; and from these and other premises the case concluded that "ligeance is not local." Yet the case did not establish that ligeance was due Meaning of from the King's subjects everywhere, but only in those places that “allegiwhere his protection followed them. And as this protection local." was not confined to England, neither was the ligeance confined to England; that is, it was not "local." The protection extended to Scotland, to Ireland, to the Colonies, and indeed, then, to France; and therefore, also, the ligeance was due in those places. Beyond this the case did not go. It certainly did not lay down any such proposition as that obedience to the laws of England was due from those beyond the sea; it is not even a sufficient authority for Nemo potest exuere patriam.
We are still, however, without an answer to the question, what are the duties involved in allegiance ?
ance is not
We have already seen that there is a very small class of statutes which deal with offences committed by British subjects out of the Queen's dominions. But, although the duties which are cast on British subjects cannot be enforced against them when they are out of the realm, the fact of their nationality as British subjects remains so long as they have not deliberately exchanged it for another. And, therefore, though their duties are unen- Rights of subject are not forceable, their rights remain intact. For example, a British lost in absubject may be the owner of shares in a British ship; his residence sence. out of the dominions will not deprive him of the right.
It is to be observed in passing that the only condition attached to expatriation by the Act of 1870 is, that the subject
be in the foreign State. He takes up his new nationality ac- Permission not cording to the foreign law: no permission to renounce his necessary for expatriation. British nationality is required, nor is there any form of renunciation. It follows ipso facto on the assumption of the new alle
the end of this
giance. Further, there are certain statutes which deal with [cf. Note at British subjects abroad, and which are in their nature permissive. section, p. 16.] Such an Act is that of 12 & 13 Victoria, cap. 68, “for facilitating the marriage of British subjects resident in foreign countries." Practically, it permits marriages to be solemnized before the British Consul. Actually, it merely declares them "to be as valid in the law" as if they "had been solemnized within Her Majesty's dominions, with a due observance of all forms required 4 G. iv. c. 67. by law"; or in the words of the statute of 1823, which dealt with
marriages solemnized at St. Petersburg, "shall be as good
and valid in law, and so deemed in the United Kingdom of Great Britain and Ireland, and in the dominions thereunto belonging."
So British subjects may, under certain circumstances, look to their Consul abroad for assistance and protection. The Consul has power to expend money out of the public funds in his hands, "towards the succour and relief of mariners shipwrecked and taken in war, or other distressed persons being subjects," and resorting to the port or place where the Consul is appointed to reside. The Consul is also authorized to advance money for the support of churches and chapels "in foreign ports and places to which British subjects may resort, and wherein they may be resident in considerable numbers, for the purposes of trade or otherwise"; or for the maintenance and support of the Chaplain to the community, or for defraying the expenses incident to the due celebration of Divine Service, or for maintaining burial grounds, or for the interment of any British subject in such burial grounds.
Consuls are also empowered to levy fees “for, or in respect of, any duties or services by such Consuls General or Consuls done." It is unnecessary to enumerate the services which Consuls are enabled to render to British subjects abroad, payment being made to the public funds in the shape of a fee leviable according to a prescribed scale.
I turn to the negative evidence which the law and the procedure of the Courts afford. The income tax is not levied on British subjects, but on persons residing in the United Kingdom, and in respect of property or professional profits existing or made
therein. Probate duty is payable only on property which is in England, or which is reduced into possession in virtue of an English grant to the personal representative of the deceased. Legacy duty expressly substitutes the test of domicil for that of nationality. Succession duty is leviable only in respect of " British settlements," which are defined to mean those settlements of which the trustees are personally subject to the jurisdiction of a Court in the United Kingdom.
are not issued
Or, to turn to those more nebulous powers of the Court of Injunctions Chancery, and of the Lord Chancellor, which may well be supposed to the absent. to have their origin in the mutual bond and obligation between the Sovereign and his subjects. The Court will never issue a command which, by reason of the person, be he subject or alien, to whom it would be addressed being out of the jurisdiction, it cannot enforce. It recognises that its fulmination would be stupid: that it could but strike blindly.
Nor, although the parens patria, the special protector of Orphans aorphans and those unable to defend themselves, might be be protected. supposed to care for such of them as were in foreign lands, no case has ever occurred in which the Lord Chancellor has appointed a guardian in England to go abroad and look after their welfare. His general authority will be vindicated by appointing guardians to foreign children within his jurisdiction: it will be guarded by insisting on a power of veto in the matter of his ward's foreign travel; but beyond this he is powerless. Nay, more: he directly recognises the authority of other Sovereigns over English orphans abroad, by expressly allowing the guardians they appoint to act, except in extreme cases, within the Queen's dominions. And in Lunacy the principles which guide him are not very different.
writ is a com
The issue of the Queen's writ for service, and the actual The Queen's service of it out of the jurisdiction, is apparently an exception. mand, and It is expressly provided in the rules of the Supreme Court that may be issued a writ may be served on British subjects, although they are out abroad. of the British dominions. The writ runs in the name of the Queen, and begins with a command: "To
you that within . . days after service of this writ upon you... you cause an appearance to be entered for you.
Treason is dealt with by
Regulations as to foreign orders and medals.
though this command is actually served on the defendant, there is no penalty attached to disobedience; the evil to which he renders himself liable in case of non-appearance is that the suit may proceed in his absence: "and take notice, that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence."
The difference between the civil and the criminal law in the case of absent defendants is to be specially noticed. In the criminal law, where a statute specially deals with an offence committed abroad, effective proceedings cannot be instituted until the accused comes within the dominions, unless outlawry were specially provided, as under the old statutes which dealt with treason. But in the Civil Courts the suit is allowed to be instituted, and to proceed to judgment, and to execution on his property within the jurisdiction, although the defendant remains abroad during the whole time.
In the command of the Queen's writ we come across the first distinct trace of a duty which has its origin in allegiance.
But in considering allegiance the mind naturally turns to military service and to high treason. In all branches of the subject we find treason to be the creature of statute: levying war against the Sovereign, inducements to mutiny, inducements to take seditious oaths, "foreign enlistment," or making war against States with which the Sovereign is at peace, are all removed from the sphere of the personal duty to the Sovereign. And in the same way if military service were due to the Crown, the penalties for refusing it would in England be regulated by Act of Parlia
Probably the only direct personal order from the Sovereign to the subject is that contained in the regulations respecting foreign orders and medals. The first regulation contains a direct command that such orders shall not be worn without Her Majesty's permission; the second, a restriction on Her Majesty herself in respect of granting such permission.
Of the old mandatory writs of the Sovereign hardly a vestige [Chitty on the is left. It is said that the King could command any of his Prerogative,
* Comyns' Digest-Prærogative (D. 35).—To recall a subject, who is out of the kingdom. So, if a subject goes out of the kingdom without the licence,
subjects residing in any foreign country to return into any of the King's own dominions. The writ forbidding him to leave them hardly remains to the Sovereign now, much less one commanding him to return.
Acts of Parlia
based on alle
From the foregoing brief survey it will be observed that certain Obedience to consequences are attached to the fact of being an Englishman ment has been abroad, and that these are altogether regulated by Act of Parlia- substituted for allegiance. ment. That of these consequences some few may be called duties, rather conveniently, however, than accurately; but that the great majority of them are rights conferred, which in the aggregate may be called protection. That beyond the two traces already indicated, nothing remains which can be called allegiance to the Sovereign, as distinct from obedience to the Acts of the Exterritori Legislature: nothing which would serve as the foundation for ality is not the complex system of government which is involved in exterri- giance. toriality. Such extra-territorial laws as exist, assuming them to be a vestige of allegiance, not only lack, but do not even claim, extraterritorial operation. The utmost that can be said for any claim to base the duties resulting from exterritoriality upon allegiance is, that the Treaty attaches to it that extra-territorial claim to recognition which is not inherent to it. The whole object of exterritoriality is entirely removed from this idea. It does not It does not profess to give executive force to the extra-territorial laws of the force to extragive Executive State to which the privilege is granted; as if, for example, a territorial Treaty were made to allow the English extra-territorial law of homicide to be enforced in Germany. But, as we shall see, it deals with the whole body of territorial laws, sanctioning their operation within the domain of the Sovereign who grants the privilege; indeed it very probably excludes extra-territorial laws cf. p. 98. from its operation. Obedience by an Englishman to the laws of England in an Oriental country is enforced there by the Sovereign of England only by the will of the Sovereign of that country, and not by any inherent right of her own.
or with the licence, of the King, and a messenger, by command under the great or privy seal, summons him to come back into the kingdom, and he does not return at the limited time, he forfeits all his goods and lands to the King for his contempt.
And this extends to every subject ecclesiastical, or lay lord, or other.