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CHAPTER III.

RIGHTS AND OBLIGATIONS CONNECTED WITH JURISDICTION.

A state has jurisdiction over all persons and things within its territory, with a few exceptions.

§ 113.

THERE are two principles either of which could be made the basis of a system of rules with regard to jurisdiction. It might be held that the authority of the state should be exercised over all its citizens wherever they may be found, or that it should be exercised over all persons and all matters within its territorial limits. Modern International Law, being permeated throughout by the doctrine of territorial sovereignty, has adopted the latter principle as fundamental. But, inasmuch as it could not be applied at all in some cases and in others its strict application would be attended with grave inconvenience, various exceptions have been introduced based upon the alternative principle that a state has jurisdiction over its own subjects wherever they may be. All that we can venture to put forth in the way of a broad general proposition is that Jurisdiction is in the main territorial. In order to deal with the subject properly we must attack it in detail; and the first rule we will lay down is that A STATE HAS JURISDICTION OVER ALL PERSONS AND THINGS WITHIN ITS TERRITORY. There are a few exceptions; but we will not consider them till we have dealt with the general principles.

§ 114.

Among the persons who, being within the state's territory are subject to its jurisdiction, the first class to be considered

are its Natural-born Subjects. Each country defines for itself by its Municipal Law what circumstances Natural-born subof birth shall make a person its subject. It jects. may consider the locality of the birth to be the all-important point, making a subject of every child born within its territory no matter whether the parents are natives or foreigners; or it may regard the nationality of the parents, or one of them, as the determining circumstance, making subjects of the children of subjects, wherever born, and aliens of the children of aliens, wherever born. Both principles give the same result in the case of those born within the state of parents who are its subjects, and such persons will always form the vast majority of the inhabitants of any but a very new country. There can be no doubt that they are naturalborn subjects, whether the law of the land adopts the first or the second of the views just enunciated. But in other cases these principles lead to different results. For instance, those born outside the state's territory of parents who belong to the state are aliens according to the first principle, but subjects according to the second; and those born within the state's territory of parents who do not belong to the state are subjects according to the first principle, but aliens according to the second. States are free by virtue of their independence to adopt in these matters what principles they please, and they embody in their laws a great variety of rules. The result is that conflicting claims and difficulties of all sorts arise on the subject of nationality and citizenship. England and the United States, for instance, adopt with regard to children of their own subjects and citizens the rule of nationality. Though born abroad they are British or American subjects as the case may be.1 With regard to the children of foreigners the two countries adopt the principle of locality, and claim as their own all children born within their

17 Anne, c. 5; 4 Geo. II., c. 21; 13 Geo. III., c. 21; Revised Statutes of the United States, §§ 1993, 2172.

dominions. France on the other hand adopts for all purposes the principle of nationality, and holds children to be subjects of their parents' state, wherever they may be born.2 Thus a child born in England of French parents would be a British subject according to the law of England, and a French subject according to the law of France. In such cases there is evident danger of serious complications if each state acts upon its extremest rights. But difficulties are generally avoided by the tacit consent of each to attempt no exercise of authority over such a citizen as long as he remains outside its borders, and to make no objection to the exercise of authority over him by the other while he resides within its limits. And further, the laws of several countries give to persons of double nationality a right of choice on arriving at years of discretion. Thus in England the child of aliens may elect to possess the nationality of his parentage when he comes of age, and in France the child of aliens may in like manner choose French nationality. Illegitimate

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children are as a rule held to belong to the state of which their mother is a subject. In matters like these International Law simply recognizes as facts the results of the operations of Municipal Law. It does not define who are natural-born subjects; but it does say that all the naturalborn subjects of a state are under its jurisdiction within its territories and entitled to its protection outside them. Their privileges with respect to the state are of the widest kind, as also are their obligations towards it. The tie of allegiance between it and them is drawn very close. In most countries they are eligible for offices denied even to naturalized subjects and citizens, and their responsibilities are commensurate with their rights.

1 Constitution of the United States, 14th Amendment; Calvin's Case, for which see Howell's State Trials, Vol. II., and Broom's Constitutional Law. 2 Code Civil, I., I., i., 10.

8 33 & 34 Victoria, c. 14.

4 Code Civil, I., I., i., 9.

§ 115.

The next class in importance of those who being within the territory are under the jurisdiction of the state are Naturalized Subjects. They are persons be- Naturalized subtween whom and the state the tie of alle- jects.

giance has been artificially created by a process termed Naturalization. Sometimes naturalization takes place without any special formalities as an inseparable incident of something else. For instance, when a subject marries a foreign woman by the law of most countries the wife acquires the nationality of her husband and loses her own. The United States, however, do not look upon an American woman married to a foreigner as subject to all the disabilities of alienage, though they regard a foreign woman married to an American as an American subject.1 But naturalization is usually effected by a separate formality, which takes place when a foreigner situated in a country wishes to acquire therein the rights of citizenship. It is the policy of most states to put little difficulty in the way of the reception of new subjects under such circumstances, though many of them dislike the naturalization of their own subjects in foreign states. International Law prescribes no general formalities for use when a change of allegiance is effected; but the law of each state lays down the conditions on which it will receive foreigners into the ranks of its citizens. Thus in the United States the general rule, to which, however, there are several exceptions, is that the alien who wishes to become a citizen must make a declaration on oath to that effect before a court after three years' residence in the country; and after he has remained within the territory for two years more, making in all five years of residence, he must take an oath of fidelity to the United States and renunciation of his former allegiance.2 In Eng1 Wharton, International Law of United States, § 186. 2 Revised Statutes, Title XXX., Naturalization.

land till lately naturalization could be effected only by Act of Parliament; but under a law 1 passed in 1870 a certificate of naturalization may be granted at his discretion by the Secretary of State for the Home Department to any alien who has resided in the United Kingdom or been in the service of the Crown for five years, on condition that he continues to reside or serve as before. The applicant must take

the oath of allegiance, and when he has done so and obtained the certificate he becomes a British subject within the United Kingdom. India and the Colonies have laws of their own with regard to naturalization in them. The legal effects of naturalization, in so far as they concern the person naturalized in his relation to the state of his choice, are determined exclusively by its law. He has to fulfil all the duties of a natural-born citizen, yet some states do not grant him all the political rights of one. In England till recently he could not sit in either House of Parliament or be a member of the Privy Council; but the Naturalization Act of 1870 removed all political disabilities, and placed him on the same footing as a natural-born subject. In the United States all Federal offices, except those of President and Vice-President, are open to naturalized citizens.2

International questions connected with naturalization.

§ 116.

International questions may arise when a naturalized subject of a state returns to the country of his original allegiance and claims to be treated there as a citizen of his new country. Is he to be so regarded, or is he rightly made to perform towards the state of his birth all the obligations of a citizen while he resides within its territory? The practice of states is diverse on this point, and the most conflicting views have been enunciated. The laws of civilized coun1 The Naturalization Act, 33 & 34 Victoria, c. 14. 2 Constitution of the United States, Art. II., § 1.

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