come of the decision in that case. Assuming the very doubtful proposition that this part of the sea is British territory to be correct, a distinction may possibly be drawn between a ship that is either entering or leaving a British port and a ship which is merely passing through British waters. Every ship, it is admitted, has a right to navigate peaceably on any part of the high seas; and it may therefore be argued that those on board a passing ship have not placed themselves within the allegiance of the Crown. But if the waters in question are truly part of the British dominions, I find it difficult to resist the conclusion that every one born in them on a ship over which British jurisdiction can be exercised is a British subject. Whatever the law may be, there will probably be a consensus of opinion that the child of an alien born on a foreign ship should have no right to claim British nationality because the ship was at the time of the child's birth sailing within three miles of the British coast.

There are three exceptional cases in which persons born in British territory are not natural-born subjects. One is that of the children of foreign sovereigns. A foreign sovereign owes no obedience to the Crown. "Though the king be in a foreign kingdom, yet he is in law a king there."1 His child therefore is not deemed to be born in the allegiance of the Crown. Some writers on International Law do not allow that a foreign sovereign can claim immunity from the local jurisdiction when he is travelling incognito; but there is no English authority for this distinction, which would have very inconvenient results. A sovereign's suite share his immunities. Therefore, although the point is nowhere referred to, it seems clear that the child of an alien member of the suite, born on British soil while the parents are attached to the sovereign's person, is not a British subject.

The second case is that of the children of foreign ambassadors or other diplomatic agents accredited to the Crown. They are excepted, says Sir Alexander Cockburn,2 because their fathers carry their own nationality with them. It would be better to say "because the ambassador who represents his sovereign does not (like other aliens when in the realm) owe obedience to the Crown." The attaches and other members of a foreign mission share the ambassador's privileges, as perhaps also do the servants of the embassy. The child of an alien member of an embassy ought, therefore, clearly to be considered an alien.

The immunities of a diplomatic agent, it is said, are extended to his family living with him. When the wife of an ambassador is living apart from her husband, she may be said to be living in the obedience and protection of the Crown; and her child born under these circumstances is perhaps a British subject.

There is no reason to suppose that the exception would apply to the child of a British subject who is a member of a foreign legation. Even if

' 7 Co. 156.

2

Nationality, P. 7.

Hall, International Law, p. 184.

the Courts in certain cases decline to exercise jurisdiction over the parent, he still owes allegiance to the Crown. Nor does the exception seem applicable to the child, born here, of a diplomatic agent accredited to a foreign State. The father does not represent his sovereign in this country, and consequently does owe temporary allegiance to the Crown."

The third case is that of the children of alien enemies born during a hostile occupation of British territory:

If enemies should come into any of the king's dominions and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is no subject to the king, though he be born within his dominions, for that he was not born under the king's legiance or obedience.3

By parity of reason the child of an alien enemy, born on a captured British ship in the possession of a prize crew, would not be born in the allegiance of the Crown.

I apprehend that the rule can be stated more widely than on the authority of the dictum in Calvin's case it is usually stated. Presumably an alien friend does not, on coming into British territory during its hostile occupation, owe temporary allegiance to the Crown, and his child born there is not, it is submitted, a British subject. To take an example suggested by recent events if a German had gone to Glencoe during its occupation by the Boers, his child born at Glencoe would not be a British subject, though Glencoe is in Natal.

Some of the vague expressions used by writers on International Law as to the exterritoriality of ships of war suggest the conclusion that a person born on a foreign public vessel in a British port is not born in the allegiance of the Crown. There is much uncertainty with regard to jurisdiction over a ship of war. The ship itself, notwithstanding a dictum of Sir Robert Phillimore's in the Charkieh,5 is probably not liable to an action in rem. And, speaking generally, a ship of war is by the practice of nations exempt from the local jurisdiction, but it is at the same time under an obligation to respect the local laws. Three of the Royal Commissioners of 1876, Sir Robert Phillimore, Sir M. Bernard, and Sir Henry Maine, considered that the captain of a foreign ship of war and those under his command are not amenable to the local jurisdiction. Sir Alexander Cockburn rigorously maintained the contrary. There is no decision on the point; and it is with much doubt that I have formed the opinion that a person born on a foreign public vessel may at Common Law be a natural-born English subject.

'Wheaton, International Law, 3rd English ed., p. 223.

2 Dicey, Conflict of Laws, p. 177.

3 Calvin's Case, 7 Co. 18.

'See the Report of the Royal Commission of 1876 on Fugitive Slaves, in which the matter is discussed.

5 L.R. 4 A. & E., at p. 93.

6 See the American case, Schooner Exchange v. M'Fadden, 7 Cranch 116.

The general rule of the Common Law is that persons born out of the dominions of the Crown are born out of its allegiance.

"This maxim of the law," says Blackstone, "proceeded upon the general principle that every man owes natural allegiance where he is born, and cannot owe two such allegiances or serve two masters at once. Yet children of ambassadors born abroad were always held to be natural-born subjects, for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent, so with regard to the son also, he was held by a kind of postliminium to be born under the King of England's allegiance, represented by his father the ambassador." 1

The statement in Calvin's case,2 that this rule only applied to the children of ambassadors whose wives were Englishwomen, may be disregarded. Even if correct it is immaterial, now that by Statute the national character of a husband determines that of his wife. The children of attachés and other members of British legations (themselves British subjects) are no doubt in the same position as the children of the ambassadors. The child is probably not a natural-born subject under this rule when born in a State other than that to which the ambassador is accredited.

The children of the king have always been considered an exception to the rule. An ambassador's privileges are possessed by him as the representative of his sovereign, and the rule as to an ambassador's children applies à fortiori to those of the sovereign himself. In 1343 the well-known declaration of the Parliament was made, that the children of the king born abroad could bear the inheritance.3 The declaration was repeated in the recital of the Act 25 Edw. III., St. 1.

4

In De Geer v. Stone Mr. Justice Kay held that the rule as to the nationality of the children of British ambassadors abroad does not extend to the children born in foreign parts of military officers in the service of the Crown. The cases are not analogous, for the rule in the case of an ambassador's children depends probably on the fact that the father represents the sovereign. In De Geer v. Stone the child was born in the territory of an ally, and it may be asked whether, if it had been born during a hostile occupation of the enemy's territory, the result would not have been different. The answer is, I think, that the only distinction known to the Common Law is between British and foreign territory, and that a mere military occupation of the latter does not change its character. The question has but little practical importance, in consequence of legislation which now will be noticed. Cases in which British nationality will be claimed, as in De Geer v. Stone, for three generations born abroad, are not likely to occur often.

3 Parliament Roll, 17th Edw. III., set out in Mr. Abbot's Memorandum annexed to the Report of the Royal Commission of 1868; also cited 22 Ch. D. 245.

122 Ch. D. 243.

See per Sir Robert Phillimore in the Charkich, L.R. 4 A. & E., at p. 88.

Natural-born Subjects by Statute. The Statutes which have conferred the status of a natural-born subject upon persons born out of the territory can be briefly mentioned. 25 Edw. III., St. 1, made all children born beyond the sea whose fathers and mothers were at the time of their birth "at the faith and legiance" of the king capable of inheriting. This Statute was construed to confer this right on the children of English fathers and foreign mothers. By 7 Anne, c. 5, the children of natural-born subjects born out of the allegiance of the Crown are made natural-born subjects for all purposes whatever. This Statute was explained by 4 Geo. II., c. 21, to relate to children whose fathers are, at the time of the children's birth, natural-born subjects of the Crown. The Act of Geo. II. (s. 2), expressly withholds the right of British nationality from the child when the father has been attainted of treason, or cannot return to the United Kingdom except by license without incurring the penalties of treason or felony, or is at the time of the child's birth in the actual service of a foreign enemy. Attainders were abolished in 1870, and the first and second exceptions have now no importance. By 13 Geo. III., c. 21, s. 1, all persons born out of the legiance of the Crown are natural-born subjects, whose fathers are by virtue of 4 Geo. II., c. 21, natural-born subjects. In 4 Geo. II., c. 21, it is stated that the father must be a natural-born subject at the time of the child's birth. Clearly, if at this time the father has ceased to be a British subject the child is not a natural-born subject. This was expressly decided in Doe d. Thomas v. Acklam. Therefore, as a British subject who becomes naturalised in a foreign country now loses his British nationality, a child of his born abroad after such naturalisation is not a natural-born subject.

The words at the time of the birth of such children" are not to be found in 13 Geo. III., c. 21. The Act requires that the father shall be "entitled to all the rights and privileges of natural-born subjects." It can scarcely be doubted that this proviso relates to the time of the child's birth, so that no one born abroad can be a natural-born subject by virtue of either of these Acts, unless the father is still a British subject when the child is born. A posthumous child will, no doubt, be deemed to have been born at the time of the father's death.

Under these Acts the status of a natural-born subject cannot be obtained through the mother. Their effect is, shortly, that the children and the grandchildren on the son's side of every man who by the Common Law is a natural-born subject are themselves natural-born subjects, wherever they may have been born. The status of a natural-born British subject conferred by these Acts is merely a personal one; it is not made transmissible to descendants. Therefore, in general, when three generations have been A posthumous child is, no doubt, in the same position as if it had been born during the life of the father.

22 B. & C. 779.

3 De Geer v. Stone, 22 C.D. 243.

born abroad, the third generation cannot be natural-born subjects. As an illegitimate child is in law nullius filius, he is not within 4 Geo. II., c. 2, or 13 Geo. III., c. 21. Even his legitimation by the subsequent marriage of his parents does not bring him within these Acts.1

Many foreign countries deal more generously with illegitimate children. Thus the illegitimate child of a Portuguese mother, born abroad, may elect for Portuguese nationality; and by the French law such a child may, if recognised by either parent, acquire his or her national status.

The Naturalisation Act, 1870, s. 7, gives to a naturalised British subject all the rights and privileges in the United Kingdom of a natural-born subject. The question has arisen whether by reason of this enactment the children and grandchildren, born abroad, of a naturalised subject are naturalborn subjects under the Acts of 4 Geo. II. and 13 Geo. III.2 In the Court of Appeal two of the judges gave no opinion on the point. Lord Justice Cotton thought, but did not find it necessary to decide, that the child of a naturalised subject, born abroad, is not a natural-born subject. His reason was that the privilege given by the Acts of Geo. II. and 13 Geo. III. is the privilege of the child, not the privilege of the father. This is the construction of these Acts adopted in Fitch v. Weber,3 though the point decided in that case was a different one. It follows that if a naturalised British subject goes to live abroad, and there has children, though he may remain a British subject, these children will not be British subjects unless they afterwards during infancy reside with him in the United Kingdom.1

Expatriation. By the Common Law no British subject could voluntarily renounce his allegiance and nationality. In this sense British nationality was, as it has been expressed, indelible. But by the Common Law a native of British territory which has received a grant of independence, or has been ceded to a foreign power, does in general lose his British nationality if he remains domiciled in the territory when it ceases to be part of the dominions of the Crown. There may, however, be a treaty stipulation that he can elect to retain his British status, as was agreed when Heligoland was ceded to Germany in 1890. Mr. Westlake states the rule widely, as applying to all British subjects domiciled in the ceded territory, but it may be doubted whether the status of British subjects who are not natives is affected by a cession. Generally speaking, a native of ceded territory can by leaving it with the intention of remaining a British subject retain his national status. On the dissolution of the personal union which existed between the United Kingdom and Hanover when the Crowns of both were held by the

Shedden v. Patrick, 1 Macq. 535.

2 In re Bourgeoise, 41 Ch. D. 210.

3 6 Hare 51.

Naturalisation Act, 1870, s. 10 (5).

Doe d. Thomas v. Acklam, 2 B. & C. 779; Jephson v. Reira, 3 Knapp 130.

6 Private International Law, s. 298.

? Doe d. Auchmunty v. Mulcaster, 5 B. & C. 771; and sce In re Bruce, 2 C. & J. 436.