Chapter I

Tacit consent does

"De la part du national, le consentement peut être exprès ou tacite, soit qu'il ait sollicité ou tout au moins accepté le droit de cité, soit que le tenant du bienfait de la loi ou d'un traité, il n'ait rien fait pour acquérir une nationalité nouvelle ".

Yet even tacit consent does not clear away all the difficulties not get over which beset him. He is forced to pray in aid of the completion of the difficulty his theory, the absence of contractual power in a minor.

M. Weiss'

"Toute personne, avons-nous dit, doit avoir une patrie. Il est donc nécessaire, au moment où l'enfant voit le jour, de lui attribuer une nationalité à laquelle il demeurera attaché, jusqu'à ce que, devenu juridiquement capable d'avoir et d'exprimer une volonté, il puisse désigner la patrie à laquelle il entend définitivement appartenir ".

Fantastic as the theory is, it does not want for elaboration, and other propositions are built upon it. The first proposition is "La nationalité ne s'impose pas "; and there are two corollaries: subordinate (a).-Toute personne doit avoir une nationalité: (b)-"Nul ne peut avoir deux nationalités."

propositions.

lité ne s'impose pas.

66

The first somewhat alarming proposition, which is contrary La nationa- to all recognised notions, is, after the plain meaning is taken away from it, declared only to mean something quite differentQuelle est donc la portée vraie de notre règle? En deux mots, la voici si l'Etat peut, en principe, attribuer sa nationalité à toute personne qui est placée sous l'action de ses lois, il ne lui est pas permis de la retenir à toujours dans son allégeance, de lui interdire de changer de patrie".

But even thus whittled away, the proposition will only hold water from one point of view-- that of modern legislation. The fundamental theory of nationality is precisely the opposite : and the difficulty which troubles the reader of M. Weiss' introductory chapters, is to realize what is the author's point of view. Is it a study of the inherent qualities of nationality? as one might be led to suppose from the title : or is it a digest of the principles of French legislation ? I doubt, even if it be only the second, whether it is accurate. Certainly the form of the proposition-"il ne lui est pas permis ", seems hardly applicable to the State: but as M. Weiss himself says, “aujourd'hui la nationalité ne s'impose pas”. Toute per- And the same confusion is traceable in the corollaries. "Toute personne doit avoir une nationalité" - as a general proposition. nationalité. this is true, the verb leaving it sufficiently vague: but as a modern fact it is unfortunately untrue, for the lack of uniformity in the rules which have been adopted by different States does every

sonne doit

avoir une

now and again leave men stranded without a country, and with- Chapter I out a Consulate in which to seek refuge, as M. Weiss himsel

shows for in dealing with the minor proposition, he refers to the

class of "heimathlosen ", persons" sans domicile ". His explanation of their peculiar position demonstrates the unsoundness of his proposition.

Nul ne peut

And it is the same with his second corollary, "nul ne peut avoir deux avoir deux nationalités". From no point of view is this sound, nationalités. The mere fact that there exists a want of agreement among different nations on the fundamental question whether nationality should be determined by the birth-place or by parentage, is sufficient to show that double nationality is inevitable.The Royal Commission in 1868 was specially charged with devising means for doing away with it ; but, short of our abandonment of the ancient principle of jus soli, it is difficult to see what remedy there is.

So much for M. Weiss' theory. A criticism of it was inevitable, as his work is looked upon as a standard authority in France. The defect of the imaginary contractual system is that it does not keep clear the essential qualities which are involved in nationality in general, from those which have been imposed in particular cases by legislation. And in the quotations which are given from J. J. Rousseau and Vattel, there is unfortunately a further Confusion confusion between the right to withdraw from the State for the right to reside abroad, purpose of residence, which must exist unless provision is made and right to to the contrary, and the right to withdraw from the allegiance of withdraw the Sovereign, which cannot exist unless provision is made in the giance. law to allow it.

between

from alle

Theoretical

These disquisitions lead to no practical result. So long as we have a sound proposition on which to base nationality, we need disquisitions go no further in the search for a definition of the term "nation". lead to no practical reThe English definition of " nationality" is all-sufficient. If we go sult. behind that definition and analyse the expressions used, the question resolves itself into a practical one, the mutual recognition of the limits which nations set for themselves. It is not of much use for one nation to insist that such are its limits, if other nations decline to recognise them, or will challenge them by war. So far as the present subject is concerned, the question Limits of a is the same; for though we have not to deal with its warlike pend on aspect, the actual limits of the nation enter into the application recognition : of the law of any country where jus soli is the rule of nationality.

State de

Chapter I

be pratical

ed by an at

Recognition

The answer to the question, what are the limits of any given and are to State, appertains to geography rather than to law: and an atlas ly ascertain- brought up to date is our only text-book on the subject. The las brought geological construction of the world, the islands and the conup to date. tinents, mountain ranges and broad rivers, have sketched out its nation-making potentialities; but long-accepted tradition in the middle period, and treaties in the later period, have set their seal upon the delimitation of the States: a seal which no power but conquest or cession can ever rupture. If a question should arise in the Courts which depended on an accurate knowledge of frontier lines, neither Mancini's rhetoric, nor Weiss' juridical system would avail us much: but only, so far as Europe is concerned, the last edition of such a book as Sir Edward Hertslet's " Map of Europe by Treaty ". The " Map of Africa by Treaty ", where war has not left its mark, is being drawn to-day before our eyes. The recognition of nations by the Courts depends entirely the Courts on the recognition of nations among themselves: and wherever there is the clear text of a treaty, or the practical limit of a wellmarked boundary line acquiesced in by the contiguous States, no difficulties arise. But on the sea-board there is no text of treaty themselves. nor well-marked line, to point out the limits between a nation and the sea, the common highway of all people. The water-marks of the tides vary, but may serve as a basis: and a rough and ready rule,that the realm ends at low-water mark, is sufficient for most purposes; but it is unscientific and insufficient, and there are too many practical objections for this to be taken as the absolute rule. The variations of the tides is not perhaps of much moment so far as other nations are concerned,but even these may have an important effect on the working of the internal laws of a kingdom. The Difficulties difficulties arise from the bays and creeks which indent the coast, the sand-banks an 1 islands which lie out to sea, and the water tion with a sea-board. which flows between.

of nations by

depen Is

upon recognition by

nations

among

in connec

Importance

tion as it

Seeing, therefore, that the principle of English law is, that of the ques- those who are born within the ligeance of the King are the King's subjects, it becomes of great importance to determine where the realm of England ends, where its setting of sea begins.

affects

England.

Chapter II.

Of the Realm and its Waters.

fined by

In determining what are the limits of the realm of England Chapter II from a practical standpoint, which to be practical for the purpo-The practical ses of the Courts of Law, must be as accurate as a survey would limits of the delimit them, we get no help from the definition given of the realm unde"British Islands" in the Interpretation Act, 1889; it declares statute. Statutory merely that in Acts passed subsequently to that Act the term definitions. means the United Kingdom, the Channel Islands and the Isle of Man." The absence of any reference to the outlying islands, rocks and banks, or of any mention of the interflowing waters, [52 & 53 leaves the actual limits of the realm to be determined as occasion requires, by the help of certain principles to be derived from the decisions of the Courts, in the few cases in which the question has arisen.

s. 18 (

In s. 9 of Territorial Waters Act, 1877, there is a wider [41 & 42 definition of the "United Kingdom": it includes "the Isle Vict. c. 73.] of Man, the Channel Islands and other adjacent islands." Even assuming that the word "islands" could be construed to include sand-banks out at sea, the limited operation of the Act inevitably confines this definition to the purposes of the Act, and it therefore does not remove even the simplest of the questions involved, from the domain of judge-made law.

In the Sea Fisheries Acts of 1868 and 1883, the expression (31 & 32 Vict. c. 45; British Islands" is defined to include "the United Kingdom 46 & 47 of Great Britain and Ireland, the Isle of Man, the Islands of Vict. c. 23.] Guernsey, Jersey, Alderney and Sark, and their dependencies. But this again is only for the purposes of the Acts.

It is curious to note, that although the Territorial Waters Act applies to the whole of the dominions, there is no corresponding definition of the word "Colony": that it should also include the adjacent islands. It is, therefore, essential to point out at once that the principles to be presently discussed are appli- General cable to all parts of the Empire. And in this connection, it must principles applicable also be pointed out that the inter-national rule of recognition of to limits of the limits of States referred to in the preceding chapter, applies Colonies. equally to the Colonies of States: and that other nations are

Chapter II bound to accept the express or implied delimitations of a Colony; and also to recognise the powers of government, whether limited or otherwise, with which those Colonies have been invested by the supreme authority.

[3 Rob. Adm. 338]

General

The question of the limits of empire have arisen in Courts sometimes in connection with the administration of the munici pal law, and sometimes in connection with actual claims to parts of the sea or large rivers, and occasionally to outlying land. The broad principles were laid down by Lord Stowell in the case of the Twee Gebroeders.

The title is a matter to be established on the part of those claimprinciples as ing it, in the same manner as all other legal demands are to be substanblishing title tiated, by clear and competent evidence. The usual manner of establishto territory. ing such a claim is, either by the express recorded acknowledgment.

to Acts esta

[Vol. I P. 157.J

Claims to

of the coterminous States, or by an ancient exercise of executive jurisdiction, founded presumptively on an admission of prior settlement, or of subsequent cession. One hardly sees a third species of evidence, unless it be, what this case professes to exhibit, the decision of some common superior, in the case of contested rivers."

And Phillimore, in his work on International Law, speaking also of claims to parts of the sea, says

This claim is rested upon immemorial usage, upon national records, upon concessions of other States, upon the language of treaties;" a principle which naturally is equally applicable to claims to territory.

We shall deal first with the question as it arises in connection waters along with the waters along the coasts: and the statement of a case, not so hypothetical but it might happen any day, will serve to show the nature and importance of the questions involved.

the coast.

Nature of

volved illus

A Frenchman and an Englishman are bathing in the Solent below low-water mark: the Frenchman murders the Englishman. The questions raised by these facts would be-Was the crime comquestions in-mitted within the realm: or without the realm on the high seas;or within the territorial waters? On the answer depend the followtrated by hypothetical ing important consequences. If the murder was committed within the realm it will be dealt with by the ordinary law of the land: If it was committed without the realm on the high seas, it will be triable in England if the case falls within the English high-sea legislation: If it was committed within the territorial waters, the ordinary criminal law will apply by statute, but the prose cution cannot be commenced without the consent of one of Her

case.