8 Vict. c. 80 and c. 94, and on account of the British Treaties with China and Japan, a British Order in Council was issued on March 9, establishing a Supreme Court of Justice at Shanghai, and Provincial Courts in China and in Japan, and directing that all British jurisdiction exercisable in China or in Japan for the judicial hearing and determination of matters in difference between British subjects, or between foreigners (including Chinese and Japanese) and British subjects, or for the administration or control of the property or persons of British subjects, or for the repression or punishment of offences committed by British subjects, or for the maintenance of order among British subjects, should thenceforth be exercised under and according to that Order, and not otherwise (4).

The principal rules are as follows:-The jurisdiction to be in conformity with the Common law, the rules of Equity, the Statute law, and other law in force in England, and the practice observed by Courts of Justices, and Justices of the Peace in England (5).

Every Consul-General, Consul and Vice-Consul in China or in Japan (with some few exceptions), to hold in his own consular district a Provincial Court (25).

The personal property of every British subject, having at the time of death his fixed place of abode in China or Japan, and dying intestate, is to vest in the Judge of the Supreme Court until administration, as in the Court of Probate (59).

Every court may cause to be apprehended and brought before it, any British subject, being within the district of the court, and charged with having committed an offence in China or in Japan, and may deal with the accused according to the Order, or where the offence is triable in British dominions, may take the preliminary examination and commit the accused for trial (64).

If a person charged with having committed a crime or offence in the district of one court, is found within the district of another court, the court within the district of which he is found, may proceed in the case in the same manner as if the offence had been committed in its own district; or may, on the requisition of the court of the district in which the offence was committed, send him in custody to that court, or require him to give security for his surrender to that court (65).

Where a warrant or order of arrest is issued in British dominions for the apprehension of a British subject, and is produced to any court, that court may back the warrant or order; and it shall be sufficient authority to any person to whom the warrant or order was originally directed, and also to any officer of the court by which it is backed, to apprehend the accused at any place where the court, by which the warrant or order is backed, has jurisdiction, and to carry him to, and deliver him up, in British dominions (66).

If any British subject commits any of the following offences, viz.:— Ist. În China, while Her Majesty is at peace with the Emperor of China, levies war or takes part in any operation of war against the Emperor of China, or aids or abets any person in carrying on war, insurrection or rebellion against the Emperor of China.

2nd. In Japan, while Her Majesty is at peace with the [Mikado] of Japan (see Order in Council, May 13, 1869), levies war or takes part in any operation of war against the [Mikado] of Japan, or aids or abets any person in carrying on war, insurrection or rebellion against the [Mikado] of Japan:

He shall be guilty of a misdemeanour and liable to imprisonment for any term not exceeding two years, with or without hard labour, and with or without a fine not exceeding 5,000 dollars, or by a fine not exceeding 5,000 dollars, without imprisonment and in addition he shall be liable to deportation (81).

If any British subject, without British license, takes part in any operation of war in the service of the Emperor of China against any persons engaged in carrying on war, insurrection or rebellion against the Emperor of China, he shall be guilty of a misdemeanour (82).

If any British subject in China or in Japan violates or fails to observe any stipulation of any treaty between Great Britain and China or Japan, in respect of the violation whereof any penalty is stipulated for in the treaty, he shall be punished accordingly (84).

All British trade in, to, or from any part of Japan, except such ports and towns as are opened to British subjects by treaty, is unlawful (92).

The officer commanding any British vessel of war may seize any British vessel engaged, or reasonably suspected of being, or having been, engaged in any trade by this order declared unlawful, and may either detain the vessel with the master and crew, or may take it and them to some place in Japan convenient for prosecution, and such vessel, master and crew may be detained (at the place of seizure or to which taken) by such officer or a British Consular Officer in China or Japan until the conclusion of any proceedings (94).

If any British subject publicly insults any religion observed in China or in Japan,—or any religious service, tomb, or sanctuary, he shall be liable to fine and imprisonment (100).

Where a British subject in China or in Japan, commits any offence within a British vessel at a distance of not more than a hundred miles from the coast of China, or within a Chinese or Japanese vessel at such distance as aforesaid, or within a vessel not lawfully entitled to claim the protection of the flag of any State at such distance as aforesaid, any British courts in China or in Japan, within the jurisdiction whereof he is found, may commit him for trial (101).

Every British subject resident in China or Japan-being of the age of twenty-one years or upwards-or being married, or a widower or widow, though under that age, shall in the month of January in the year 1866 and every subsequent year register himself or herself at the Consulate of the district in which he or she resides. The registration of a man includes the registration of his wife (unless she is living apart from him), and the registration of the head of a family, male or female, includes all females being relatives of the head of the family (in whatever degree of relationship) and living under the same roof.

Every British subject, non-resident, arriving at any place in China or Japan where there is a Consular Office shall, unless on the muster roll of a British vessel, register himself or herself within a month.

Any person failing to register shall not be recognised as a British subject in China or Japan, and shall be liable to a fine (114).

By the treaty of 1856, between the United States and Persia, all suits arising in Persia between Persians and Americans are to be decided by a Persian tribunal in the presence of an employé of the Consul or agent of the United States; suits between Americans to be decided by their Consul or Agent, according to the laws of the United States; suits between Americans and the subjects of other foreign powers, to be adjudicated by the intermediation of their respective Consuls and Agents.

In the United States, Persian subjects, in all disputes arising between themselves, or between them and Americans or foreigners, are to be judged according to the rules adopted in the United States, respecting the subjects of the most favoured nation.

The treaty of March 4, 1857, between Great Britain and Persia, makes certain reservations in favour of British subjects, and the priviliges of the most favoured nation are accorded to them.

348

CHAPTER XII.

DETERMINATION OF NATIONAL CHARACTER.

1. National character, how determined-2. Rights of allegiance and naturalisation-3. Municipal laws relating to these rights—4. Apparent conflict of these laws-5. National character changed by personal domicil-6. By a new commercial domicil-7. Domicil defined-8. Different kinds of domicil-9. Intention the controlling principle-10. Necessity of some overt act-11. Circumstances of residence-12. Effect of domestic ties, etc.-13. Investment of capital and exercise of political rights-14. Character and extent of business-15. Length of residence-16. Distinctions in favour of American merchants-17. Presumption arising from foreign residence-18. Evidence to repel this presumption-19. Ministers and Consuls-20. Other public officers21. A wife, minor, student and servant-22. A soldier, prisoner, exile and fugitive-23. Effect of municipal laws on domicil-24. Of treaties and customary law-25. Temporary residence for collection of debts-26. A merchant may have several national characters-27. Native character easily reverts-28. Leaving and returning to native country29. Belligerent subjects during war-30. Effect of military occupation -31. Of complete conquest-32. Of cession without occupation-33. Of revolution and insurrection-34. Of a particular trade-35. This differs from domicil—36. Habitual employment—37. National character of ships and goods.

§ 1. NATIONAL CHARACTER may be determined from origin, naturalisation, domicil, residence, trade, or other circumstances. That which results from birth or parentage, follows the individual wherever he may be, till it is changed in one of the modes established or recognised by law: such as expatriation, naturalisation, domiciliation, etc. Native allegiance is a legal incident of birth, and is the implied fidelity and obedience due from every person to the political sovereignty under which he is born. This is a principle of universal law, and is sanctioned alike by international jurisprudence and by the municipal codes of all countries. How far, and in what manner, this primitive allegiance may be dissolved or transferred, are questions which, perhaps, belong rather to municipal than to general public law, for the international status of the individual may be determined, at least in many cases, without regard to his allegiance, whether native or acquired. In others, how

ever, this question must be considered in connection with the right of expatriation and naturalisation. It may be proper to remark in this place that, inasmuch as the national character, which results from origin, continues till legally changed, the onus of proving such change usually rests upon the party alleging it.'

§ 2. It has already been remarked, that every independent State has, as one of the incidents of its sovereignty, the right of municipal legislation and jurisdiction over all persons within its territory, whether its own subjects or foreigners, commorant in the land. With respect to its own subjects, this right, it is claimed, includes not only the power to prohibit their egress from its territory, but also to recall them from other countries; and, with respect to commorant foreigners, not only to regulate their local obligations, but to confer upon them such privileges and immunities as it may deem proper. It may therefore change their nationality, by what is called naturalisation. It is believed that every State in Christendom accords to foreigners, with more or less restrictions, the right of naturalisation, and that each has some positive law or mode of its own for naturalising the native-born subjects of

1 Westlake, Private International Law, §§ 7 et seq.; Phillimore, On Int. Law, vol. i. §§ 315 et seq.; Reg. v. Arnaud, 9, Q. B. 817.

'Local allegiance is such as is due from an alien or stranger born, for so long a time as he continues within the King's dominion and protection; and it ceases the instant such stranger transfers himself from this kingdom to another.'-Blackst. Comm., vol. i. 457.

'Natural allegiance is perpetual, local allegiance is only temporary; and for this reason, evidently founded upon the nature of government, that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long will the other demean himself faithfully.'-Ibid.

'A denizen,' said Lord Bacon in his speech as counsel in Calvin's case, 'is one that is but subditus insitivus, or adoptivus, a subject engrafted or adopted, and is never by birth, but only by the King's charter, and by no other means, come he never so young into the realm or stay he never so long. Mansion or habitation will not indenize him; no, nor swearing obedience to the king in a leet, which doth in law the subject, but only as I said, by the king's grace and gift. To this person the law giveth an ability and capacity abridged, not in matter but in time. And as there was a time when he was not subject, so the law doth not acknowledge him before that time. For if he purchase freehold after his denization he may take it, but if he have purchased any before he shall not hold it; so if he have children after, they shall inherit it; but if he have any before they shall not inherit.' A denizen, therefore, may be considered to be a person on whom the king, by his own authority, was empowered to bestow certain of the privileges of a British subject. Letters of denization are still granted.

other States, without reference to the consent of the latter for the release or transfer of the allegiance of such subjects. It seems, therefore, that, so far as the practice of nations is concerned, the right of naturalisation is universally claimed and exercised, without any regard to the municipal laws of the States whose subjects are so naturalised. It may also be remarked that this right, as a general proposition, is admitted and affirmed by most writers of acknowledged authority on international law. From the generality and extent of this right of naturalisation, it has been inferred that the right of expatriation is equally broad and comprehensive. And this inference is undoubtedly correct, so far as the rules of general public law are applicable; or, in other words, so far as they do not conflict with the proper exercise of the municipal power of particular States, within the limits of their own territory. But it is claimed that each State has the exclusive power to permit or deny the exercise of this right to its own citizens, within the orbit of its own jurisdiction. At any rate, this right of municipal legislation is exercised almost as generally as that of naturalisation.1

1 Foelix, Droit International Privé, §§ 27-55; Cushing, Opinions U. S. Att'ys Genl., vol. viii. pp. 125 et seq.; Dou, Derecho Publico, t. i. cap. xvii.; Riquelme, Derecho Internacional, t. i. p. 319; Heffter, Droit International, § 59; Bello, Derecho Internacional, pt. ii. cap. v. § i.

By the common law of England, all persons above the age of twelve years were required to take the oath of allegiance in courts leet.

There are several statutes requiring the oath of allegiance and supremacy to be taken under penalties: justices of the peace might summon persons above the age of eighteen years to take these oaths.—1 Eliz. C. I; I W. and M. c. 18; I A. st. 1. c. 22.

By British proclamation of Feb. 19, 1793, it was declared that all seafaring men, being natural born subjects, in the pay of any foreign State or service of any foreign vessel, were ordered, according to their known and bounden duty and allegiance,' to quit such foreign service and return home; that no seamen were to engage themselves to any State or vessel without a license; that any offenders would be proceeded against for their contempt, and if taken by the Turks, Algerines, or any others, would not be reclaimed as subjects of Great Britain. A similar proclamation was issued in 1807, further declaring that no letters of naturalisation or certificates of citizenship could divest natural-born subjects of their allegiance or duty.

In 1863 the British Government considered that it was not unreasonable for the United States to require military service from those British subjects who had become owners of land by virtue of their declared intention to become American citizens.-Parl. Papers, No. 455, 1863.

On May 9, 1864, certain instructions were issued by the United States' Secretary of the Navy respecting persons taken in blockade runners, which provided that 'when there is no reason to doubt that those who claim to be foreign subjects are in reality such, they will be