Chapter XIV principle: for somebody must decide whether any given provision of the foreign law is applicable or not, and if it is inapplicaAdaptation or omission ble, must assume the responsibility of not applying it in the face inevitable.

Examples of articles of

Civil Code referring to "Français".

of the rule which has sanctioned the continuance of that law. And if the Judge decides that this rule is paramount, the only way in which he can enforce it is by adapting it to the circumstances, and bending the terms used to suit those circumstances.

The application of the French Codes in a Colony such as Mauritius is full of difficulty, but it is only illustrative of a difficulty which exists in all parts of the Empire where a foreign law is in force. I propose however to refer only to the more simple cases in which the rule of adaptation, which I have assumed to exist, must be exercised in one form or another: that is to say, either by alteration of the terms of the law, or by its omission.

There are throughout the Codes many references to "France" and "Français". Thus in the Civil Code-

Art. 15. Un Français pourra être traduit devant un tribunal de France, pour des obligations par lui contractées en pays étranger, même avec un étranger.

and

Art. 102. Le domicile de tout Français, quant a l'exercice de ses droits civils, est au lieu où il a son principal établissement.

and again

Art. 912. On ne pourra disposer au profit d'un étranger, que dans le cas où cet étranger pourrait disposer au profit d'un Français.

Putting all questions on one side as to how far these articles may have been superseded by local legislation, the fact that they have been at one time, and may still be, in force in the Colony, allows them to be taken as examples of the question which may at any time arise before the Courts.

So far as" France" is concerned, it must clearly be rendered "Maurice." When Mauritius was a French Colony many of the French Arrêtés were promulgated in the Colonies tels quels. In the case of the Codes however "les exceptions, additions et modifications exigées par les localités "were "réunies dans un Principle of acte supplémentaire qui serait annexé au Code ". But these were only fundamental changes, and so far as minor details were concerned, they must have been left to the Courts to interpret, much in the same way as in the case of our own Colonies. Even the French Courts would have been obliged to transform “France” into "Maurice".

adaptation

necessary

even by French Colonial

Courts.

Alternatives

tion or

But what are we to do with "un Français", for of course it Chapter XIV cannot be construed to mean "a Frenchman in Mauritius "? Now, either these articles must be considered as inapplicable to are adaptathe Island, by reason of the change in the sovereignty: in which omission. case, the Court would exercise its discretion of omission, and there would be many gaps left in the legislation, in so far as they had not been covered by subsequent ordinances in the Colony: or some way out of the difficulty must be discovered. There are two possible adaptations: the first, altering "un Français" into "un Anglais "; the other, altering it into "un Mauricien Anglais". Neither alteration is very satisfactory: but though the first is almost impossible, the second is inevitable unless the articles are omitted altogether.

dix to this

But then, if some change must be made in these articles, why Application of argument may it not be made in the articles of the Civil Code‡ which deal to articles of with nationality? The result, if this is not done, would be that ing with the nationality of persons born in Mauritius would be governed nationality. by French law. The alternative must be adopted in this case: the Court must exercise its discretion of omission, and treat the arti- see Appencles as eliminated, because they are unsuited to the condition of Part.] the inhabitants of the Colony. Unsuited, for by the cession of the Island it became part of the dominions of the Crown of England, and the allegiance to the King thereupon attached to all who were, or who might be thereafter, within that part of the domi. Rule of adaptation nions. In other words, the rule of adaptation is obligatory in this requires case. It is submitted that this argument is sound: and if sound, omission of it leads inevitably to the conclusion that nationality at common cles. law extends to all the dominions.

these arti

NOTE

on the construction of the French Codes in British Colonies.

The question of adaptation in connection with the French Codes must sooner or later engage the serious attention of the Courts. The transpositions which I have suggested in the text are at the best rough and ready expedients, and proceed on the assumption that the articles are, so far as they have not been touched by local or imperial legislation, in force. But there is an underlying question, which is not lightly to be disposed of-Do any of what may be called the "national" articles of the Code apply to British subjects in the Colony? The Code is the "Code Civil

Chapter XIV

Application

The Application of the Statutory Rules to the Colonies. When we pass to the statutes dealing with nationality the of statutes of question works out in more simple fashion, for statutes apply to nationality to Colonies the Colonies when it is so expressed, or when the intention is generally clearly indicated. This is quite independent of the question whether they are among the statutes which are applied bodily to settled Colonies.

NOTE on construction

des Français" and after having disposed of a few preliminary matters, French it proclaims in art. 8-" Tout Français jouira des droits civils", and then it immediately proceeds to explain who are Frenchmen: " sont lonies, contd. Français..." The nationality articles referred to follow. ‡

Codes in

British Co

[see Appendix to this Part.]

This in itself furnishes an argument against the applicability of these articles to the nationality of persons born in a British Colony who by the fact of such birth are British subjects.

It may well be that the same considerations go to show the inapplicability of so much of the Codes which is specially designed for “les Français". The few articles given in the text are but samples of many which are scattered through the Codes, and which are radically different from the corresponding provisions of our own law, essentially a non-national law. Some of them have been superseded by local legislation: others by imperial legislation applicable to the Colonies; and in process of time all may ultimately vanish. Meanwhile many remain.

It is unnecessary to labour the point, but in order to emphasize the difficulty of the subject, two other examples may be given.

Art. 14. L'étranger, même non residant en France, pourra être cité devant les tribunaux français, pour l'exécution des obligations par lui contractées en France avec un Français: il pourra être traduit devant les tribunaux de France, pour les obligations par lui contractées en pays étrangers envers les Français.

This is typical of the articles which are superseded by local legislation this special question being now governed by the " Absent Defendants Ordinance, 1898."

:

Again

Art. 999. Un Français qui se trouvera en pays étranger, pourra faire ses dispositions testamentaires par acte sous signature privée, ainsi qu'il est prescrit en l'article 970, ou par acte authentique, avec les formes usitées dans le licu ou cet acte sera passé.

The question how far this article is applicable to Mauritian subjects would be further complicated by the question whether the Wills Act, 1861, extends to the Colonies.

The nationality statutes refer to persons "born out of the Chapter XIV ligeance of England ", and "without the ligeance of the King" Expressions [25 Edw. III]: " born out of the ligeance of Her Majesty, Her used indicating applicaHeirs and Successors" [7 Anne c. 6] :“ born out of the ligeance on to the of the Crown of England or of Great Britain " [4 Geo. II, c. 21, Colonies. and 13 Geo. III, c. 21].

Result of

The Colonies are within the ligeance; and therefore, both expressly, as well as by manifest intention, all these statutes apply to the Colonies, in the same way as they do to the United Kingdom: that is to say, persons born out of the dominions of fathers who are natural-born subjects by the common law, or under 4 Geo. II, c. 21, are British subjects throughout the domi- application. nions. Birth in a Colony gives British nationality by birthright, and not under the statutes. There is express legislation applicable to all Colonies; the statutes therefore repeal or override any local law of nationality which may be in existence in a conquered or ceded Colony. This must in no way however be taken as an admission that the principle which governs the common law rule does not also apply to these statutes. If that rule is sound, it seems abundantly clear that, quite apart from any question of express application, these statutes, attaching as they do to the Sovereign, apply of their own force throughout the whole of the dominions, whether settled. ceded, or conquered.*

power to

It follows inevitably from what has been said, that the Co- Colonies lonies can have no power of legislation with reference to nation- have no ality. They cannot alter the common law rule, nor can they legislate on nationality. extend or curtail nationality by statute, even though such legislation professed to be limited in its effect to the Colony in which it was passedt.

*The practical consequence of this extension of the rules of nationality to the Colonies is apt to be overlooked by the persons interested. A Chinaman born in Hong Kong, though of Cantonese parents, is a British subject throughout the Empire, and would not, for the sake of any privileges which the status might confer upon him, require to be naturalized in the Straits Settlements or Mauritius. But their Chinese parentage is apt to make such persons forget the place of their birth, and the privileges which it gives them; for applications by such "Chinamen " to be naturalized in Mauritius are occasionally made. And there must be many others, born in Canton of fathers born in Hong Kong, who might claim to be British subjects in the Colonies under the statute of George II: and others, again, who would come within the statute of George III.

In the New South Wales Election Law, 56 Vict. No. 38, s. 4, there is the following definition-"Natural-born subject", means a male person born in His Majesty's dominions, as well as the son of a father or mother so born. This definition is not only limited to men, but ignores the statute of George III; it clearly cannot apply beyond the purpose of the Act in which it is introduced, and cannot be called a nationality statute.

Chapter XIV

persons born

rates;

"Ligeance" having been so much referred to, use of the word "dominions" in the definition, instead of " ligeance ", requires explanation. Its introduction is necessary, in order to show that the law of nationality does not apply to countries under British Rule as to protection. A Protectorate, if it is a foreign country such as in Protecto- Zanzibar, does not lose its national character by putting itself under British protection and neither the common law nor the statutes apply to make persons born there British subjects. Such countries, for the purposes of the statutes, would be deemed in territory to be abroad. Where a tract of country is governed by charter, owned by Chartered and is the property of a company, the sovereignty is vested in Companies: the Crown, and persons born within the Chartered Company's territoritory are British subjects.‡

in territory held by

So, in the case of territory belonging to a private individual, private indi- he holds subject to the sovereignty of the King, and therefore persons born in the territory are British subjects.

vidual;

There is not much difficulty in appreciating the law so far as these tracts of country are concerned, but the importance of not using the term “ligeance" in the definition is very marked when we come to deal with the countries in which the King exin countries ercises foreign jurisdiction: for here, in some sense, it might be foreign juris- argued that British subjects being under the protection of their own Sovereign are also within his ligeances. They are however only under his protection as expressly defined. Foreign jurisdiction is, as its name professes, essentially a question of exercising jurisdiction. It is the jurisdiction which is defined in the Order in

where

diction is exercised.

[1 Mo. P. C. 175J

The position of the East India Company with regard, first to the established native Government, and afterwards to the Crown of England, is thus stated in the judgment in Mayor of Lyons v. East India Company:

Enough has been said to show that the settlement of the Company in Bengal was effected by leave of a regularly established Government, in possession of the country, invested with the rights of sovereignty, and exercising its powers: that by permission of that Government Calcutta was founded, and the factory fortified, in a di trict purchased from the owners of the soil, by permission of that Government, as subjects owing obedience, as tenants rendering rent, and even as officers exercising, by delegation, a part of the administrative authority. At what precise time, and by what steps, they exchanged the character of subjects for that of Sovereign, or rather acquired by themselves, or with the help of the Crown, and for the Crown, the rights of sovereignty, cannot be ascertained: the sovereignty has long since been vested in the Crown, and though it was (at) first recognised in terms by the Legislature in 1643, the statute 53 Geo. III, c. 155, s. 95, is declaratory, and refers to the sovereignty as undoubted ", and as residing in the Crown ".

A curious question arises in connection with this subject, as to the proper form of the indictment in prosecutions before the Consular Courts: whether the offence is accurately described as being "against the peace of our Sovereign Lord the King ". The offender has surely broken the "peace" of the Emperor of China; the power of punishing such offence, when committed by British subjects, being under the treaty ceded bythe Emperor to the King, (see “Exterritoriality ", p. 19).