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CHAPTER XVIII.

RIGHT OF JURISDICTION OVER PERSONS.

CCCXVII. WE have now to consider the right incident to a State of absolute and uncontrolled power of jurisdiction over all Persons, and over all Things, within her territorial limits, and, as will be seen in certain specific cases, without them.

CCCXVIII. First, as to the Right of Territorial Jurisdiction over Persons: they are either

1. Subjects, or

2. Foreigners commorant in the land.

CCCXIX. 1. With regard to the jurisdiction and authority of States over their own proper subjects, no doubt can be raised; under the term subject may be included both native and naturalized citizens. With respect to native citizens, the right of which we are speaking is manifestly essential to the independence of the State. "Sanè (Grotius observes)" ex quo civiles societates institutæ sunt, "certum est rectoribus cujusque speciale quoddam in suos "jus quæsitum” (a).

The native citizens of a State are those born within its dominions (b), even including, according to the law of England (c), the children of alien friends. So are all those born on board the ships of the navy, or within the lines of the army, or in the house of the Ambassador, or of the Sove

(a) L. ii. c. xxv. 8.

(b) Günther, vol. ii. p. 261.

(c) 2 Stephen's (Blackstone's) Commentaries (ed. 1858), p. 413.
Calvin's case, 7 Coke Rep. p. 18 a.

reign (d) if he should happen to be sojourning in a foreign country.

Every State has an undoubted claim upon the services of all its citizens. Every State has, strictly speaking, a right of prohibiting their egress from their own country (e), a right still exercised by some of the continental Powers of Europe. These rights are subject to no control or directions as to their exercise from any foreign State.

CCCXX. Every State has a right of recalling (jus avocandi) its citizens from foreign countries (ƒ), especially for the purpose of performing military services to their own country, unless they have been with its permission naturalised abroad. Great difficulty, however, necessarily arises in the enforcement of this right. No foreign nation is bound to publish, much less enforce, such a decree of revocation. No foreign State can legally be invaded for the purpose of forcibly taking away subjects commorant there. The high seas, however, are not subject to the jurisdiction of any State; and a question therefore arises whether the State seeking its recalled subjects can search for them in the vessels of other nations met with on the high seas? This question, answered in the affirmative by Great Britain, and in the negative by the United States of North America, has led to very serious quarrels between the two nations (g)— quarrels which it may be safely predicted will not arise again; for I cannot think that it would be now contended

(d) Vide post.

(e) "Solet hic illud quæri, an civibus de civitate abscedere liceat, venia non impetrata. Scimus populos esse ubi id non liceat, ut apud Moschos: nec negamus talibus pactis iniri posse societatem civilem, et mores vim pacti accipere."-Grot. 1. ii. c. v. 24.

Wheaton, Elém. tom. i. p. 135.

(f) Günther, vol. ii. p. 309.

Heffter, s. 59.

(g) See correspondence between Mr. Webster and Lord Ashburton, Wheaton's Hist. p. 737, &c.

Vide post, as to jurisdiction over ships of war and merchant vessels in foreign harbours.

that the claim of Great Britain was founded upon International Law. In my opinion it was not.

CCCXXI. 2. It has been said that these rules of law (h) are applicable to naturalized as well as native citizens. But there is a class which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode (domicilium sine animo revertendi) in another (i). These are domiciled inhabitants; but they have not put on a new citizenship through some formal mode enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil (j).

CCCXXII. It was a great maxim of the constitutional policy of ancient Rome not to allow her citizenship to be shared with that of any other State (k). A different custom prevailed in Greece and in other States; but the Roman citizen who accepted another citizenship became ipso facto disfranchised of his former rights.

CCCXXIII. It is sometimes said that a different rule prevails in modern times, and that a man can be at one and the same time the citizen of two States (1). In truth, however, this must depend upon the civil policy and domestic regulations of each State. But it is true, as a general proposition, that a man can have only one allegiance (m). The State

(h) Story, Conflict of Laws, s. 48, c. iii.; ib. s. 540, c. xiv.
Fælix, l. i. t. i. s. 2, Du Changement de Nationalité.
Heffter, s. 58.

Colquhoun's Civil Law, s. 393, vol. i. p. 377; ib. s. 389, p. 373.
Günther, vol. ii. p. 267.

(i) Vide post, vol. iv. ch. iv.

Vattel, 1. i. c. xix. s. 211, &c.

(j) Vide post, vol. iv. ch. iv., for further remarks on Domicil.

(k) Vide Cicer. Orat. pro Balbo, passim, especially s. 12. See Zouche's remarks thereupon, p. 2, s. ii. xiii. De Jure Feciali.

(1) Heffter (s. 59) maintains this ground in opposition to Zouche, cited above.

Günther, vol. ii. p. 325, Einheimischen.

(m) The law is laid down with great perspicuity by Zouche. Speaking of a decision of the French tribunals on a question of Domicil, and

may, as Russia has done, forbid her subjects to be domiciled elsewhere, or may permit it as England has done; but in either case, if a collision between the two allegiances, so to speak, should arise, the latter would be obliged to yield to the former. For instance, if the two countries were at war, the citizen who was taken in arms on behalf of the country of his naturalization against the country of his birth would, unless such naturalization were authorized by the country of his birth, strictly speaking, be guilty of treason. In these times, probably, most States would take into consideration. the length of time during which the new domicil had been acquired, whether offences against the original State were to be punished, or her protection invoked by her long-absent citizen.

CCCXXIV. All strangers commorant in a land owe obedience, as subjects for the time being (subditi temporanei), to the laws of it. The limitation sometimes incident to this proposition will be stated in a subsequent section, in which the right of protecting subjects in a foreign land is discussed.

CCCXXV. Naturalized foreigners are in a very different position from merely commorant strangers (n). It has been the policy of wise States, it was especially the policy of Rome, to open wide the door for the reception and naturalization of foreigners (o).

vindicating it from the charge of private partiality, he says: "Fortassis vero id respexerunt, quod quamvis incolatus et Domicilium in externo regno sufficiunt ad constituendum aliquem subditum jurisdictioni et præstandis muneribus, obnoxium non tamen sit satis ad constituendum Civem, ut eorum privilegiorum civilium sit particeps quæ in regno natis competunt, nisi specialis allectio supervenerit."— De Judicio inter Gentes, pars ii. s. ii. 14.

(n) Günther, vol. ii. pp. 267, 316, n. e.

(0) "Illud vero sine ulla dubitatione maxime nostrum fundavit imperium, et populi Romani nomen auxit, quod princeps ille, creator hujus urbis, Romulus fœdere Sabino docuit, etiam hostibus recipiendis augeri hanc rempublicam oportere: cujus auctoritate et exemplo nunquam est intermissa a majoribus nostris largitio et communicatio civitatis."-Cic. pro L. Corn. Balbo. "Male qui peregrinos urbibus uti prohibent, eosque exterminant, ut Pennus apud patres nostros, Papius nuper."-De Off. 1. iii. c. xi.

Naturalization is usually called a change of nationality. The naturalized person is supposed, for the purposes of protection and allegiance at least, to be incorporated with the naturalizing country.

This proposition is, generally speaking, sound; but it must admit of one qualification similar to that already mentioned with respect to the domiciled subject, if the naturalised person should have been the original subject of a country which did not allow him to shake off his allegiance (exuere patriam). In this event, if he should find himself placed in a situation-the breaking out of war, for instance-in which his duties to the country of his birth and of his adoption are at variance, the former country would not regard him as a lawful enemy, but as a rebel; nor could the jus avocandi already spoken of be legally denied to her by the adopting or naturalizing country, though the enforcement of the right could not be claimed. Banishment itself does not destroy the original tie of allegiance.

The Letter of Sir L. Jenkins, from Nimeguen, to Sir William Temple, at the Hague, contains the opinion of a ⚫most careful, learned, and practical jurist upon this question :

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"To the question you were pleased to send me, about the three "Scotchmen, and the objection of the States to your memorial, that after (6 a sentence of banishment, the allegiance of a subject is extinguished; "I have this with submission to offer, that there are several things in "the Practice of Nations (which is the law in the question) that make "it impossible for subjects, in my poor opinion, to renounce or divest "themselves of the allegiance they were born under.

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"For instance, no subject of our master's (we'll put the case at home) can by the Law go out of his dominions without his leave; nor is "this leave, whether it be expressed or by implication (as in the case "of merchants and sea-faring men), granted, but there is a time always "supposed for his return; I mean when the King had need of his "service; and in the case of every man of quality it is always prefixed. "Besides there is no doubt, and we see it is a frequent practice in Eng"land, France, &c., to call back the subjects from foreign services and "residences within a time prefixed, and that upon pain of death; in "which case, if they return not, the pain is well executed upon them "(provided they lie not under any impediment), if they afterwards fall "into the hands of their master: and I think the Court of Constable

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