The questions which concern territory, whether it be cession Chapter V or merger, union or dismemberment, are not complicated, for this Change in division of the persons affected indicates with precision the inci- sovereignty resulting dence of the respective national laws. They give rise however to from union special considerations incident to the time of the actual transfer, or disunion the performance of certain formalities, or the consequences of ries: omitting to perform them, which are not free from difficulty.

of territo

and from

Crowns.

The special complications of the subject arise in connection union or with the union of Crowns on one head by descent, and the sever- disunion of ance of united Crowns by interposition of a prohibitory law: in connection, that is to say, with the personal aspect of the ques

tion.

The learning on the subject is contained in two cases: one -Calvin's case-deals with the time between the accession of King James to the English throne and the passing of the Act of Union the other-the Stepney Election Petition-with the time when Queen Victoria could not assume the Crown of Hanover.

The rule laid down in Calvin's case is usually stated as Rule in follows:

Calvin, born in Scotland when the King of Scotland was also King of England, but before the Act of Union, that is to say, at a time when there were still two separate Kingdoms, was a "natural-born subject having the capacity at common law to hold lands in England ".

Calvin's

case. Rul. Ca. II, 575.]

and conse

sound.

The inference from this is that where two Crowns are united Inference in one Sovereign, persons born in either kingdom after the union quence if of Crowns and irrespective of the union of kingdoms, are natural- this rule is born as regards both countries: with the consequence that they enjoy in both countries the rights which the laws of those countries respectively confer on natural-born subjects: such rights, for example, as are conferred by the law of inheritance or the law of elections.

the rule

We shall have to enquire whether this inference and this con- The scope of sequence are sound: or rather whether the proposition itself is defined. sound. It cannot be professed that the principle is an easy one to grasp, or is other than elusive. The subsequent union of the countries makes it easier to understand in the case of England and Scotland but it is by no means easy in the case of England and Hanover, to realise how a Hanoverian, not being an Englishman, nor even a denizen, may have had the rights of a natural

Chapter V born subject in England. It is hardly necessary for the present to add the further complication that these rights possessed one day may have vanished on the next: the result of this has however an important bearing on the rule itself, and will be considered. in due course.

Merger of kingdoms by union.

lities may

still be pre

Before we examine the details of the rule, it is important to realise that whether it be as has been stated above, or whether it is found necessary to modify it, it concerns itself exclusively with the merger of sovereignty, and does not relate in any way to the merger of nationality. Further it does not require, nor even concern itself with, a merger of laws.

When however we leave the question of the merger of sovereignty, and come to the question of merger of kingdoms by Act of Union, the questions become less complicated,and turn on the more or less complete manner in which the merger has been carried out. If there has been no merger of laws, which, as we may judge from our own case, is not at all necessary to the arrange‐ ment, curious questions arise: although, so far as the outer nations are concerned,the divergent nationalities have disappeared, yet they are preserved for internal purposes, and so far as the law has not dealt with them specially, they are still governed by The differ- the fundamental principle of nationality. If for example there ent nationa- were still any rights belonging to Scotchmen, or any duties imposed on Scotchmen, as distinct from those imposed on persons in Scotland, the jus soli, being the fundamental law of nationality would probably determine who were Scotchmen. But it is by no means clear that the statutes, which are based on the jus sanguinis, would in like manner determine the part of the kingdom to which any given person belonged. So far as the United Kingdom is concerned this question has not, I believe, any practical importance: but it is an integral part of the question we are now considering, and therefore must be stated here : for it has, as [see Chapter we shall presently see, an importance when we come to consider XVI, 2nd. nationality from the point of view of the Colonial Empire. part.] Merger of territories

served for internal purposes.

by absorp

tion.

Lastly, the merger may be of actual territory, involving the obliteration of the ancient landmarks and of the ancient laws of the territory absorbed then the subjects of the two countries are not only under the same Sovereign, but also under the same laws. In this case we come back to the point from which we started, and few, if any, difficulties arise.

Alsace and Lorraine are merged into the German Empire, Chapter V and so also is Heligoland; they are as much part of the territory of Germany as the Isle of Wight is part of the territory of England. But, to instance the case of non-merger of territory, the Isle of Man-that "little but yet ancient and absolute kingdom" -like Scotland and Ireland, is not within the normal application of Acts of the English Parliament, and is out of the jurisdiction of the English Courts. The same principle applies to the Channel Islands.

merger

express

The extent of union or merger depends therefore entirely on Extent of the terms of the constitutive Act. But, to repeat what has already depends on been said, it is essential to bear in mind that the fact that inter- terms of nal limits of jurisdiction, whether of the Parliament or of the constitutive Act. Courts, are still preserved, does not in any way affect the essential condition of sovereignty over the whole; it only points to the fact that different consequences attach to the sovereignty and consequently to the status of subject, in the different parts of the Sovereign's empire.

historical

case.

I now propose to refer as briefly as possible to the historical Analysis of portion of the judgment in Calvin's case, in which was amassed a precedents wealth of historical incident, cases in which the consequences of in Calvin's union and severance were facts well-known and ascertained, by authority in some cases, and beyond dispute in all. This historical aspect of the case apart from its interest, and apart from its great value as helping the understanding by illustration, forms a series of legal precedents which are likely to be sufficient guides for the decision of questions arising out of new unions and new severances in time to come. It was in fact described in the report itself, as rather "a renovation of the judgments... in so many ages past, than any innovation."

issue.

The question before the Court in its concrete form was The point in whether Calvin, born in Scotland after the union of the Crowns, could hold lands in England. If he were a Scotchman simply he was an alien and could not hold: but on the contrary he could, if, being a Scotchman, he yet had the rights of a natural-born subject in England.

The as to aliens

"An alien friend... may by the common law have, acquire, and get [p. 608.*] within this realm by gift trade or other lawful means, any treasure or common law *The marginal references are to the pages of the report of the case in "Ruling holding Cases," Vol. I,

property.

[p. 611.]
The reasons
therefor.

Chapter V goods personal whatsoever, as well as au Englishman, and may main-
tain any action for the same but lands within this realm, or houses
(but for their necessary habitation only) alien friends cannot acquire,
or get, nor maintain any action, real or personal, for any land or house,
unless the house be for their necessary habitation".... "It followeth next
in course to set down the reasons wherefore an alien born is not capable
of inheritance within England: and that he is not for three reasons.
i. the secrets of the realm might thereby be discovered: ii. the reve-
nues of the realm (the sinews of war, and ornament of peace) should be
taken and enjoyed by strangers born: iii. It should tend to the destruc-
tion of the realm. Which three reasons do appear in the Statute of 2
Henry V cap. and 4 Henry V cap. ultimo.”

where persons born

The case of the Prior of Chelsea is cited as a precedent. His [p. 612.] Precedents, possessions were seized in time of war, it being alleged that he was an alien born. The Prior by petition of right showed that he had been Prior of Andover, and that his possessions had once before been seized for the same reason; he had then

abroad

under the

same

Sovereign adjudged not aliens.

[p. 613.]

Gascony.

[p. 614.] Guienne.

"alleged that he was born in Gascoin within the ligeance of the
King: which point being put in issue and found by the jury to be true,
it was adjudged that he should have restitution of his possessions."
And in the case of the Earl of Arundel-

"amongst many notable points, this one appeareth to be adjudged anp
resolved, that a man born in Gascoin under the King's ligeance was no
alien born, as to lands and possessions within the realm of England and
yet England and Gascoin were several and distinct countries... for then
such a conceit was not hatched that a King having several domi-
nions should have several ligeances of his subjects."

As to the King's possessions in France

"Guienne was another part of Aquitain, and came by the same title and those of Guienne were by Act of Parliament, in 31 Henry IV adjudged and declared to be no aliens, but able to possess and purchase &c. lands within this realm.

[p. 615.] "The Kings of England had sometimes Normandy under actual li-
Normandy. geance and obedience. The question is then whether men born in Nor-
mandy, after one King had them both, were inheritable to lands in En-
gland, and it is evident by our books that they were: for so it ap-
peareth by the declaratory Act of 17 Edward II de praerog. Reg. c. 12,
that they were inheritable to, and capable of lands in England.”
And so as to the

[p. 615.] Guernsey

"Isles of Guernsey and Jersey, part and parcels of the Dukedom of Normandy, yet remaining under the actual ligeance and obedience of and Jersey. the King,... no man will doubt but those that are born in Guernsey and

Jersey (though those Isles are no parcel of the realm of England, but sever- Chapter V al dominions enjoyed by several titles, governed by several laws) are inheritable, and capable of any lands within the realm of England,

'

So as to the Isle of Man, which, like Normandy and Gascoin

were out of the power of the Chancery, and governed by several Isle of Man. laws and yet none will doubt that those who are born within that Isle [P.617.] are capable and inheritable of lands within the realm of England.”

:

And so, the judgment continues, as to

"those that were born in Wales before 12 Edward I, whilst it was only holden of England"; and in

[p. 617.] Wales.

"France and the members thereof, as Calice, Guynes, Tournay &c. [p. 618.] which descended to King Edward III, as son and heir to Isabel daughter and heir to Philip le Beau, King of France"; and in Ireland while it was

Parts of
France.

"a dominion separate and divided from England... and he that was

[p. 619.] Ireland.

in Ireland was out of this land";

and in Scotland,

though it were under the King of England's ligeance and obedience, yet governed by the laws of Scotland";

and so back to the Heptarchy, when there were

seven several crowned Kings of seven several and distinct kingdoms but in the end the West Saxons got the monarchy, and all the other Kings melted (as it were) the Crowns to make one imperial diadem for the King of the West Saxons over all. Now, when the whole was under the actual and real ligeance and obedience of one King, were any that were born in any of those several and distinct kingdoms aliens one to another? Certainly they being born under the obedience of one King and Sovereign were all natural-born subjects, and capable of and inheritable unto any lands in any of the said kingdoms. "

The unions which the law. works in consequence of the two kingdoms being under one Sovereign are - i. The union of fact of the two Kingships in the person of one King : ii. A union of ligeance and obedience: for the people of two kingdoms owe allegiance to one King. iii. Correlatively, a union of protection for the same King owes protection to the people of two king. doms iv. The outward and visible symbol of the united kingships in the standard of the King: in the instance," the three lions of England and that one of Scotland united and quartered in one escutcheon.

Yet, in spite of these unions, the law also made four separations: thus

[p. 621.] Scotland.

[p.622.] The Heptarchy.