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.

broad cannot

Nor, although the parens patriæ, 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

to subjects

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 of the British dominions. The writ runs in the name of the Queen, and begins with a command: "To -, We command you that within . . days after service of this writ upon you . . you cause an appearance to be entered for you

"

But

Treason is dealt with by statute.

Regulations as to foreign orders and medals.

Mandatory

writs.

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 Parliament.

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,

p. 21.]

*

* 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 ExterritoriLegislature: 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 give Executive profess to give executive force to the extra-territorial laws of the force to extraState to which the privilege is granted; as if, for example, a laws. 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.

territorial

Extra-terri

torial legisla

Of allegiance, the unwritten bond which tied the subject to his Sovereign, there is nothing practical left in these modern days. Statutory obedience has taken its place: the clauses of the old bond are supplanted by neatly engrossed and somewhat quaintly expressed sections of Acts of Parliament. Yet the name remains, and there is still attached to it the personal feeling of respect and devotion to the Sovereign which is the modern substitute for knightly service.

NOTE. The directions to Ambassadors and Consuls contained in the tion affecting Foreign Marriage Acts, to which reference has been made in this section, Ambassadors raise an important question in connection with the validity of extra-terriand Consuls. torial laws: how far legislation is permissible with regard to diplomatic and consular officers in foreign countries. Although ambassadorial privileges are not extended to Consuls, a sanction from the foreign Sovereign is necessary for Consuls as well as Ambassadors before they can assume their official duties in his country. In both cases there must further be implied a permission to regulate those duties by law the right of making extra-territorial laws imposing duties on these officers must be admitted. Whether the right be exercised by the Sovereign or the Parliament would be determined by the Constitution of the country to which the officers belong.

Thus, in connection with the exterritorial privilege of Ambassadors and their suites, it would seem legitimate for the Queen by Order in Council to regulate the punishment abroad by the Ambassador of offences committed by his suite. And so it would seem legitimate for Parliament to pass extra-territorial statutes regulating the duties of Consuls abroad, within the recognised limits of the duties of such officers.

On the other hand, the foreign Sovereign would legitimately protest against an Order in Council empowering Ambassadors to punish, for example, British subjects for offences committed within the grounds of the Embassy or against an Act of Parliament empowering Consuls to perform some act which is not only not within their usual duties, but is also contrary to the law of the foreign country. A fortiori would such a protest be legitimate if a statute were passed empowering persons who belong neither to the diplomatic nor consular services to do some act which the foreign law forbids.

The chief enactments affecting Consuls are of three kinds. First, the Consular Act, 6 Geo. IV. c. 87, regulating salaries, and the fees to be collected for services rendered to British subjects; secondly, the Commissioners for Oaths Act, 52 Vict. c. 10, empowering Consuls to administer oaths, take affidavits, and do other notarial acts; thirdly, the Foreign Marriage Acts, from 1849 to 1891.

With regard to the first, it is to be observed that the fees are made payable by contract for services rendered. But it would seem probable that, even if the contract forms given at the end of the Tables of Fees were not used, the Consul could recover the fees in the foreign Court, judicial notice being taken, if not of the English statute, at least of the principle of contract which it lays down.

But both with regard to the administration of oaths and the solemnization of marriages, it may well be that the Consul's duties may lead to a violation of the law in some foreign countries, and it could not well be argued that such duties fall within the recognised routine of Consular work.

There is a mysterious provision in the Foreign Marriage Act of 1891 54 & 55 Vict. (section 8), by which a marriage officer is not required to solemnize a c. 74. marriage, or to allow a marriage to be solemnized in his presence, "if in his opinion the solemnization thereof would be inconsistent with international law or the comity of nations ;" an appeal against his refusal being allowed to the Secretary of State, "who shall thereupon either confirm the refusal or direct the solemnization of the marriage."

How the solemnization of a marriage can be inconsistent with international law or with the comity of nations it is difficult to imagine. Presumably the section was inserted to meet the case, suggested above, of the solemnization violating the law of the country where it is proposed that the marriage should take place; instead of "international law or the comity of nations" we may read, if this assumption is correct, "the lex loci." Were it not for the draughtsman's blunder, it would have been unnecessary to point out that the recognition of the existence of the sovereign rights of other nations does not depend upon comity; and that the territorial limit of sovereignty is a question more appertaining to geography than to law.

The validity of extra-territorial laws when they come to be examined post, p. 44. by the Courts of law will be considered in a subsequent note.

III.

Extension of Principles to Uncivilised Countries.

General Theory of Exterritoriality.

laid down in

cation.

I MAY now proceed with greater confidence to apply the two The principles fundamental propositions advanced in the first section to the I. are of unisubject in hand. The Foreign Jurisdiction Act of 1878, which versal appligave the Queen power over her subjects in countries without regular forms of government,* very distinctly recognised the application of these two fundamental principles to all governed territories, irrespective of the form which the government takes,

* Sect. 5.—In any country or place out of Her Majesty's dominions, in or to which any of Her Majesty's subjects are for the time being resident or resorting, and which is not subject to any Government from whom Her Majesty might obtain power and jurisdiction by Treaty or any of the other

с