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HON. OLIVER WENDELL HOLMES,

CHIEF JUSTICE OF THE SUPREME COURT OF MASSACHUSETTS.

WE are indebted to Sir Frederick Pollock for the portrait of the distinguished judge and author Chief Justice Holmes, of Massachusetts. Sir Frederick Pollock writes thus with respect to his friend:

"The following statement of facts is authorised by Chief Justice Holmes, and may therefore be taken as accurate. My learned friends, the Editors, have asked me to add a few remarks of my own. As a friendship extending over a quarter of century, and intimate ever since its first few years, disqualifies me from assuming an impartial attitude, I will merely speak for myself, and say that, among men of anything near my own standing, Chief Justice Holmes is one of the two from whom I have learnt most. The other, about as much junior to me as Chief Justice Holmes is senior, is my friend Mr. F. W. Maitland.

"F. POLLOCK."

Oliver Wendell Holmes, the son of the well-known novelist and poet, was born in Boston, March 8th, 1841. At the outbreak of the Civil War he joined the 4th Battalion of Infantry, then at Fort Independence, Boston Harbour, where he wrote the poem which he delivered on class day. In the Battle of Ball's Bluff, October 21st, he was wounded in the breast, and was also struck in the abdomen by a spent ball. On March 23rd, 1862, he was commissioned captain. He received a wound in the neck at Antietam, September 17th. In February, 1863, he was Provost-Marshal of Falmouth, Virginia. At Marye's Hill, near Fredericksburg, he received a third wound, in the heel. He was commissioned lieutenant-colonel, 20th Massachusetts, July 5th, 1863, and in 1864 he was appointed A.D.C. on the Staff of Brigadier-General H. G. Wright, and served during General Grant's campaign, down to Petersburg, returning to Washington with the Sixth Corps when the capital was threatened.

In September he entered the Harvard Law School, and received his LL.B. in 1866. In December, 1865, he entered the law office of Hon. R. M. Morse, Boston. He was admitted to the Suffolk Bar, March 4th, 1867, and subsequently was admitted to practise before the United States. Supreme Court. He practised his profession first in partnership with his brother, afterward in the firm of Shattuck, Holmes & Munroe. In 1870-1

he taught Constitutional Law in Harvard College, and in 1871-2 was University Lecturer on Jurisprudence. He married Miss Fanny Dixwell, daughter of Epes Sargent Dixwell, Esq., of Cambridge, Massachusetts, 1872.

In 1873 he published in four volumes the twelfth edition of Kent's Commentaries, with elaborate notes. From 1870 to 1873 he was editor of The American Law Review, Vols. V., VI., and VII., and wrote for this review the following articles: (1) "Codes, and the Arrangement of the Law"; (2) "Ultra Vires"; (3) "Misunderstandings of the Civil Law"; (4) "Grain Elevators"; (5) “Arrangements of the Law: II., Privity"; (6) "The Theory of Torts"; (7) "Primitive Notions in Modern Law" (two articles); (8) "Possession"; (9) "Common Carriers and the Common Law"; (10) "Trespass and Negligence"; and many shorter articles. An essay by him on "Early English Equity" may be found in The English Law Quarterly Review, April, 1885; two articles on "Agency in The Harvard Law Review, March and April, 1891; “Privilege, Malice, and Intent," Harvard Law Review, May, 1894; "Executors," Harvard Law Review, May, 1895; address by, on "Boston Law School," Harvard Law Review and Scotch Juridical Review, April, 1897; "The Theory of Legal Interpretation," Harvard Law Review, February, 1899; "Law in Science and Science in Law," address before New York State Bar Association, Harvard Law Review, March, 1899. A volume of his speeches was published by Little, Brown & Co. in 1891. In the winter of 1880 he delivered a series of lectures on the Common Law, in Boston-one of the Lowell Institute courses. He published a volume upon the same subject, 1881, which was characterised as "the most original work of legal speculation which has appeared in English since the publication of Sir Henry Maine's Ancient Law." It has been translated into Italian.

Mr. Holmes was appointed to a new professorship in the Harvard Law School in 1882, but he had barely entered upon his duties there when (December 8th) Governor Long appointed him an associate justice of the Supreme Court, in place of Judge Otis P. Lord. He was appointed Chief Justice of the same Court, August 2nd, 1899. He is a member of the Massachusetts Historical Society, and was a Fellow of the American Academy. It may be mentioned that at the same time that his father was receiving D.C.L. from Oxford (in 1886) he was receiving the degree of LL.D. from Yale.

THE ENGLISH LAW OF. NATIONALITY AND

NATURALISATION.

[Contributed by EDWARD LOUIS DE HART, ESQ., M.A., LL.B.]

Natural-Born Subjects at Common Law. The Common Law of England. under the influence of feudalism, made the national character of any person depend, generally speaking, on the place of his birth, not on his parentage, The rule of the Common Law is thus stated in the Report of the Royal Commission of 1868 on the laws of naturalisation and allegiance :

All persons, of whatever parentage, born within the dominions and allegiance of the Crown are by the Common Law natural-born British subjects; all persons, on the other hand, of whatever parentage, born beyond its dominions and out of its allegiance, were by the Common Law regarded as aliens.

This definition of natural-born subjects is correct, though incomplete, if the term "dominions and allegiance of the Crown" be understood to mean the dominions and allegiance of the Sovereign in a personal sense. Thus a Scotsman born after the accession of James VI. to the Crown of England, and before the union, was not an alien in England1; and while the Crowns of the United Kingdom and of Hanover were vested in the same person, every Hanoverian was in law a British subject.2

In the case of protected territories there may possibly be a difficulty in determining whether the territory forms part of the dominions of the Crown. The fact that a protectorate exists is perhaps not sufficient to prove that the territory is British. The question may depend on the extent of the powers and jurisdiction exercised by the Crown, whether directly or mediately through a chartered corporation. In the Jameson case it was necessary to prove that an offence under the Foreign Enlistment Act had been committed in Her Majesty's dominions. The Lord Chief Justice, after reading a number of Orders in Council and Proclamations to the jury, left to them the question whether the Crown did in fact exercise dominion and sovereignty at Pitsani, the place from which one of the expeditions started.

1 Calvin's Case, 7 Co. 1.

2 See the judgment of the Court in the Stepney Election Petition Case, Isaacson v Durant, 17 Q.B.D. 54.

Every person born on a British ship on the high seas in the allegiance of the Crown is at Common Law a British subject. A British ship on the high seas has often been described as British territory, a figure of speech which embodies the principle that "by the received law of every nation a ship on the high seas carries its nationality and the law of its own nation with it." Whether mere birth on a British ship in foreign waters confers the right of British nationality is a point on which there is no actual decision. It is, however, clear that the Admiralty jurisdiction extends over British vessels in the tidal navigable waters of foreign States below bridges,3 not only in respect of the persons belonging to the ship, but also in respect of other persons on board. A ship so situated has been likened to a floating island, where the authority and protection of the British law prevail.

"The true principle," says Lord Coleridge, "is that a person who comes on board a British ship where English law is reigning places himself under the protection of the British flag, and as a correlative, if he thus becomes entitled to our law's protection, he becomes amenable to its jurisdiction."

These cases afford strong grounds for the belief that birth on a British ship in foreign waters within the Admiralty jurisdiction confers British nationality. Where, on the other hand, the jurisdiction and the protection of the law do not extend to all persons on board a British ship, a person born on the ship cannot, it is submitted, be a British subject by virtue of the Common Law rule. A ship in foreign parts, when in dock, in a part of a harbour where the tide does not ebb and flow, or in a river above locks or bridges, is not within British jurisdiction. Nor apparently can this jurisdiction extend to an artificial channel, unless perhaps it be a tidal waterway where great ships go. Thus it may be that birth on a British ship in the Elbe and in the North Sea Canal will have opposite results as regards national

status.

A curious question might arise as to the nationality of a person born on a foreign ship on the open sea within three miles of the coasts of the British dominions. Whether these waters are actually British territory, or whether in such parts of the sea there is merely a limited right sanctioned by International Law to exercise jurisdiction for certain purposes, is a point which in one case was exhaustively discussed by fourteen learned judges.8 Unfortunately there was a hopeless conflict of opinion among them; and the point is not settled by the Territorial Waters Act, 1878, which was the out

'Marshall v. Murgatroyd, L.R. 6 Q.B. 31.

Per Cockburn, C.J., R. v. Keyn, 2 Ex. D. 63, 161.

3 R. v. Anderson, L.R. 1 C.C.R. 161.

' R. v. Carr, 10 Q.B.D. 76.

5 Per Byles, J., L.R. 1 C.C.R., at p. 168; per Blackburn, J., ibid., at pp. 163, 169.

6 10 Q.B.D., p. 85.

" Thomas v. Lane, 2 Sumner 1; per Blackburn, J., L. R. 1 C.C.R. 164.

SR. v. Keyn, L.R. 2 Ex. 63.

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