41 & 42 Vict c. 67.

vicy

Extra-territorial laws

where no op

posing Sove reignty.

Extension of Colonial jurisdiction.

Offences on

committed within the territory of the State from which the request emanates. Therefore, even if the law of England had made forgery abroad an offence cognisable in England, France would refuse extradition, and would deal with the offence under her own laws: and if the forger were found at Bilbao, Spain would refuse extradition to any country except France.

In parts of the world where there is no opposing sovereignty, Parliament has a freer hand in dealing with British subjects. It can not only legislate for them, but can also enforce its laws. This principle was first recognised by the Foreign Jurisdiction Act of 1878, which provided that the Sovereign shall have power and jurisdiction over her subjects for the time being resident in, or resorting to, any country or place out of her dominions which is not subject to any regular Government with which an exterritorial Treaty might be concluded.

Prior to this general Act, however, tracts of country on the confines of several of the Colonies had already been brought by various special statutes within the jurisdiction of the adjoining Colonies, so far as relates to the punishment of crimes and offences.

The law of the high seas is in part territorial, in part extrathe high seas. territorial. Ships are deemed to be part of the territory of

c. 73.

their flag. British captains are made pro tanto part of the Executive, having power to deprive offenders on board ship of their liberty and bring them to be tried in England or the Colonies. British subjects on foreign ships to which they do not belong are dealt with by laws which are extra-territorial in their nature.

41 & 424 Vict. Within the territorial waters, as defined by the Act of 1878, foreigners and British subjects alike, on foreign or British ships, are declared to be subject to the Queen's Courts.*

1

*And curiously enough "always to have been subject to them," in spite of the decision of the majority of the Court of Crown Cases Reserved in R. v. Keyn (Law Reports, 2 Exchequer Division)—Cockburn, C. J., delivering perhaps the most learned and exhaustive judgment ever written by an English judge that such jurisdiction did not exist, and that the "threemile limit" was a fiction of writers on International Law.

(9)

II.

Allegiance.

THE principles laid down in the preceding section conflict with Popular ideas of allegiance. certain expressions of opinion which have at different times fallen from the Bench, and notably also with many statements in the text-books. The popular idea, for example, that "wherever an Englishman goes he carries with him as much of English law and liberty as the nature of his situation will allow," must not be taken too seriously, though it finds a place in many books as a fundamental precept.

Many of the opinions to be found in the text-books have originated in an endeavour to explain the doctrine of allegiance

to the Sovereign.

There are some, indeed, who, in spite of the Naturalization 33 Vict. c. 14. Act of 1870, still quote the maxim Nemo potest exuere patriam as the rule of allegiance established by the Common Law.

The enquiry whether exterritoriality has anything to do with allegiance, or with this transportation of "law and liberty," is very material to the subject. It is necessary therefore to answer these questions:

What is "allegiance"? What are its practical consequences? The meaning of allegiance. Is Civis Britannicus sum mere rhetoric, or is it a constitutional maxim expressive of legal and constitutional rights and duties? I find in a book which treats of the maxims of the law this sentence:

"Although a British subject may, in certain cases, forfeit his [Broom's 'Le rights as such by adhering to a foreign Power, he yet remains at 6th ed., p. 73.1 gal Maxims,' Common Law always liable to his duties; and if, in the course of such employment, he violates the laws of his native country, he will be exposed to punishment when he comes within reach of her tribunals."

Always this reference to the mysterious sword of the Common Law: always these vague sentences enveloping in a cloud of

words the smallest possible particle of accurate statement. The only laws which affect him are those which profess to guide his conduct out of the realm of England, and these are very few: they are the exception, and not the rule. And punishment imposed by these exceptional laws may be evaded so long as he keeps out of the country. If what he has done amounts to a violation of the laws of the country in which he resides, he is amenable to the Courts there; but then cadit quæstio.

In spite of such comprehensive statements as that of Dr. Lushington in "the Griefswald," * that “Parliament may legislate for British subjects anywhere," I take it, however, that there is no shadow of question about this side of the matter; the real point arises about "his duties," which seem to be treated as distinct from the supposed duty of obedience to the law, and which possibly refer to something which is involved in allegiance. Even Calvin's case, (7 Co: 1) which is said to contain an exposition of the whole law of allegiance, does not supply us with a practical answer to the question, what are the duties which allegiance involves? The case defines ligeance as "the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. Therefore, it is truly said that protectio trahit subjectionem, et subjectio protectionem." The case divides allegiance into alta ligeantia, he who owes it being subditus natus: ligeantia acquisita, he who owes it being subditus datus: ligeantia localis, that which is "wrought by the law" and "suit royal," the ligeance which is called legal, because the municipal laws of the realm have prescribed the order and form of it. The case establishes that an indictment against a Frenchman in England for treason truly concludes "contra ligeant' sua debitum," for he owed the King a local obedience: that children born of enemies within the realm are not born under the ligeance of a subject, nor under the protection of the King: that subjects are bound by their ligeance to go with the King on his wars as well within the realm as without,

Swabey, p. 430. A case in which exterritoriality was in question.

:

the statement

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

Assistance of subjects by Consuls.

Consular fees.

[6 Geo. iv. c. 87.]

Effect of ab

sence in connection with the Revenue.

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