High Treason.

ON Wednesday last the German Consul at Sunderland was found guilty by the jury of high treason and sentenced to death, the sole punishment that the court has power to inflict. Several interesting questions of law arose in the course of the trial, which will, no doubt, be considered by the Court of Criminal Appeal in due course, but, even should the conviction be upheld, in all probability the extreme penalty will not be carried out. On the question of fact the jury have found that the accused, being a naturalised British subject, with the knowledge that war had broken out, incited and assisted German reservists to join their army, Mr. Justice Shearman having ruled in the prisoner's favour that proof of knowledge was necessary. The Treason Act 1351, under which the indictment was framed, is silent as to the proof of knowledge of war existing, and no case is to be found which shows the necessity of proving such knowledge. There is one matter which this case has brought into strong relief-namely, the inconvenience, to use no stronger term, of consular officers being of different nationality, whether by birth or by naturalisation, from the country which they represent. Many members of the British consular service abroad are of foreign birth, and it is difficult to see why the official business representative of any country should be an alien so far as that country is concerned.

NATURALISATION.

ON New Year's Day the Naturalisation Act of 1870 will be replaced by the British Nationality and Status of Aliens Act 1914. The new Act received the Royal Assent three days after the outbreak of the present war. Although dealing with a matter rendered topical by present circumstances, it is not a part of the emergency legislation promulgated because of the war. In general it is a consolidating Act, but it contains some new features. Having regard to the importance of the subject at the present juncture, it is proposed to review briefly the law of naturalisation in this article, so that the reader may appreciate the significance of the features of the new Act. The subject-matter of this article is one of much importance at the present time, for a great number of persons in this country are seriously affected by the question of nationality. Cases of considerable hardship are apt to arise from a failure to treat the British law of nationality with the respect is deserves. Instances have been common of late of persons who believed themselves to be British subjects receiving unpleasant reminders that their status is not such as they believed.

In the first place, we must dispose of certain terms which somewhat obscure the subject. The expressions "British. subject," "alien," "denizen," "allegiance," and so forth, are all expressions of a somewhat ambiguous nature, and their true legal meanings ought to be clearly borne in mind. Who is a British subject? A British subject is either a person born in British territory within the King's allegiance, or a person who has been legally naturalised. British subjects may therefore be conveniently subdivided into British subjects, (a) natural born and (b) naturalised. The term "alien " may be properly applied This definition to any person who is not a British subject. necessarily includes alien friends as well as alien enemies. A "denizen " is an alien to whom letters of denization have been granted by the Crown under the Royal Prerogative. The grant of denization involves the taking of the oath of allegiance to the King. What is the true legal meaning of the term “allegiance"? Allegiance is in the nature of a personal bond and obligation between the King and his subject. It may be defined as the relationship between Sovereign and subject-a relationship which involves mutual obligations and privileges. Natural-born subjects are not required to take the oath of allegiance except on certain occasions and in certain circumstances. Their

The Naturalisation Act 1870 was passed for the purpose of removing certain doubts and difficulties with regard to the law of nationality as existing in this country, and for the purpose of putting that law on a more satisfactory footing. Prior to that time the common law rules on the subject had been varied and amplified by several statutes, notably Acts passed in the reigns of Queen Anne and of George II. and George III. The Act of 1870 saved the power of the Crown to grant letters of denization. It provided for the acquisition of British nationality by aliens, by a process defined in the Act. It provided for the loss of British nationality, and for its resumption. It also improved the status of aliens as regards their power of acquiring, holding, and disposing of real and personal property.

The process of acquiring British nationality under the Act is as follows: Application must be made to one of His Majesty's Principal Secretaries of State, supported by such evidence as that Secretary of State may require. The applicant must have either resided in the United Kingdom for not less than five years, or have been in the service of the Crown for a like period, and must intend, when naturalised, either to reside in the United Kingdom or to serve under the Crown. The Secretary then takes the case into consideration, and may either give or withhold a certificate of naturalisation. If the Secretary thinks fit to withhold the certificate, he need not assign any reason for so doing, and no appeal lies from his decision. If the certificate be granted, it does not take effect until the applicant has taken the oath of allegiance. In point of practice the certificate is not handed over till the oath is taken. When the certificate has been duly granted, the applicant ceases to be an alien, and acquires all the political and other rights, powers, and privileges of a natural-born British subject, except as regards his status in the foreign State of which he was previously a subject. But that exception is not material for our purposes. It may be added here that the Act empowers the Secretary of State to grant, for the purpose of quieting doubts, a special certificate of naturalisation to any person whose nationality as a British subject is

doubtful.

With regard to the provisions of the Act enabling persons to divest themselves of British nationality, the Act provides that in certain cases, where there has been a convention with a foreign State to that effect, the subjects of that State who have been naturalised as British subjects may divest themselves of their status as such subjects. Such naturalised British subjects may make a declaration of alienage, whereupon those persons are to be regarded as aliens. The Act also provides that a natural-born British subject who at the time of his birth became, under the law of any foreign State, a subject of that State, and still continues so subject, may make a similar declaration of alienage, with a similar result. The Act further provides that where a British subject, when in a foreign State, has become voluntarily naturalised in that State, he is to be deemed to have ceased to be a British subject and is to be regarded as an alien.

As to the provisions in the Act for the resumption of British nationality, a "statutory alien " may be renaturalised very much by the same process as that provided by the Act for the naturalisation of an alien. A" statutory alien" is defined in the Act as a natural-born British subject who has become an alien in pursuance of the Act. But the point to be observed here is that the readmitted subject acquires his nationality as from the time of his readmittance. He does not resume his position as a British subject as from birth.

With regard to provisions in the Act improving the status of aliens (which is, in fact, quite a separate matter from the general subject-matter of the Act), it is provided that real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and that a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born

Secretary of State enjoys. Sect. 9 provides that Part 2 of the Act may be adopted by any of the self-governing dominions, and, until adopted, certificates of naturalisation granted under the Act are not to have effect within that dominion.

Part 3 of the Act comprises eighteen sections, and deals first with the national status of married women and infant children. Sect. 10 tersely states that the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien. But if a man ceases during marriage to be a British subject, his wife may make a dec'aration that she desires to retain British nationality, and she thereby preserves her nationality. Sect. 11 also deals with married women. If a woman was a British subject before her marriage with an alien she does not regain her British nationality merely by reason of her husband's death or the dissolution of her marriage. On the other hand, if she was an alien and has married a British subject, her husband's death does not again make her an alien. Nor does the dissolution of her marriage. Sect. 12 deals with the status of children. Where a British subject ceases to be such, every infant child of that person ceases also to be a British subject, unless by the law of the foreign country the child does not become naturalised in that country. If a British subject, being a widow, marries an alien, any child of a former husband does not cease to be a British subject. Further, any child who ceases to be a British subject may within a year of attaining his or her majority declare the wish to resume British nationality, and thereupon he or she becomes British.

The Act also provides for the loss of British nationality by foreign naturalisation. It also deals (sect. 17) with the status of aliens with regard to property. In this respect it does not differ to any material extent from the Act of 1870. By sect. 19 wide powers are given to the Secretary of State to make regulations generally for carrying into effect the objects of the Act. Sect. 25 saves the right of the Crown to grant letters of denization.

On the whole, the Act is a well-drawn measure; and if that be a merit as regards statutes generally, it is particularly so in the case of a consolidating Act. With regard to the new provisions, although, as we have pointed out, the tendency of the Act is to increase the stringency of the qualifications for the admission to British nationality, it may reasonably be doubted whether the Act has not erred on the side of leniency. The Secretary of State has a wide discretion in the matter of granting certificates of nationality. Certain circumstances must exist before that discretion is exercisable. No doubt this discretion will be wisely and properly exercised. But we cannot avoid the conclusion that the exigencies of domestic politics must necessarily occasionally reflect on the exercise of discretions of this kind. If so, would it not have been better to have made the qualifications for admission to British citizenship more stringent and to have left a little less latitude for individual discretion?

We have outlived the estimable broad-mindedness of the worthies of the Victorian era, much of whose policy is reflected in the new Act; and for that reason, combined with the incidents of the present war, we should not be surprised to hear of an amending Act to the British Nationality and Status of Aliens Act 1914.

TRUSTEES ON ACTIVE SERVICE. THE Execution of Trusts (War Facilities) Act 1914, which is designed to facilitate the execution of trusts during the present war by authorising absent trustees to delegate their powers by appointing attorneys, is now in force, and a very useful measure it will no doubt prove to be. A great number of the British officers and many men serving in France and Belgium with the British Expeditionary Force at the present time are trustees under wills and family settlements, and their protracted absence from this country naturally results in a serious dislocation of trust matters and in many cases suspends the administration of trusts.

We propose in this article to show the extent to which the new Act will help in the administration of trusts. We shall give the reader an epitome of its provisions. But, before dealing with the statute itself, we must remind the reader of the rules of equity

and law which, however wise and expedient in times of peace, have been found under the present unprecedented circumstances to cause nearly as much inconvenience as good to those for whose protection these rules were gradually formulated. As we shall show, the new Act has its limitations. Many trustees at the front will not be able to avail themselves of the facilities for the convenient transaction of trust matters offered by the Act, and the administrations of many trusts will remain hopelessly dislocated through the absence of trustees. For this reason it is of the utmost importance to appreciate the nature, extent, and limitations of a trustee's powers under the rules of law and equity apart from the Act. Let us proceed, therefore, to examine the rules at length.

In the first place, it must be borne in mind that the office of a trustee is a joint one, unless, of course, he be a sole trustee. But, as a rule, there are at least two trustees. So all property vested in trustees is vested in them jointly. If the property is real estate, they are joint tenants. If the property is personalty or chattels real, they are joint owners. All powers are joint powers. All discretions are joint discretions. Consequently no title to property can be given by a trustee in the absence of his co-trustees. No power can be exercised without the concurrence of all the trustees. And the discretion of one trustee alone is of no effect whatsoever.

In this connection there are two popular notions which every lawyer who has any acquaintance with the nature of trusts well. knows to be fundamentally erroneous. The first is that one trustee may take upon himself the role of an active partner and the other trustees may allow themselves to become mere dormant partners. How often do we not hear the expression the active trustee " ? A trustee can only legitimately fill that rôle so far as it involves the initiation of the joint action. Necessarily one trustee must move first; but without the concurrence of his co-trustees he is powerless to do an effective act in the administration of the trusts. The second erroneous popular notion is that a majority of a set of trustees may act effectively without the minority. If that was the law, the war would cause little inconvenience in the conduct of the business of trusts. But it is not the law. "There is no law that I am acquainted with," said Sir George Jessel when Master of the Rolls, in the case of Luke v. South Kensington Hotel Company (40 L. T Rep. 638; 11 Ch. Div. 121, at p. 125), "which enables the majority of trustees to bind the minority."

Because of the joint nature of the office and estate of a trustee every receipt given in the administration of the trusts must be signed by all the trustees, otherwise it is not a valid discharge to the person making the payment. Thus Vice Chancellor Bacon,. speaking of a purported discharge by one or two trustees in Lee v Sankey (27 L. T. Rep. 809; L. Rep. 15 Eq. 204, at p. 210) said: "The money having been placed in the defendant's hands by the two trustees, they can only be discharged of such moneys by the joint receipt or by the joint authority of the two persons who had so entrusted the defendants." Again, every cheque drawn on the trustees' account must be signed by all the trustees. Again, every investment made on behalf of the trust estate must be made in the names of all the trustees, whose duty it is to procure a joint legal control over the investment. Even where the trustees were empowered to invest in bonds to bearer, a trustee has been held liable for allowing his co-trustee to retain one moiety of the bonds while he retained the other: (see Lewis v. Nobbs, 8 Ch. Div. 591).

The rule of law embodied in the maxim Delegatus non potest delegare is another principle which renders the protracted absence of a trustee of great inconvenience. This rule, however, does not mean, nor has it ever meant, that a trustee must do everything for himself. Indeed, it is obviously impossible to apply the maxim to its full meaning in the case of trustees Trusts would soon cease to be in vogue were every trustee required to act individually. Trust business would be impossible. A trustee's right to act through agents has long been recognised. This court," said Lord Hardwicke in Ex parte Belcher (1754, Amb. 218), "has laid down a rule with regard to the transactions of assignees, and more so of trustees, so as not to strike

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to be alternative qualifications, not qualifications which must all co-exist.

Under the new Act all jurisdiction and powers of the courts are to apply to the donee of a power of attorney given under the Act, so far as respects the execution of the trust, in the same manner as if the donee were a trustee of the trust. A statutory declaration by the donee of the power, that the donor is engaged on war service or that in any transaction the donee is acting in execution of the trust, is to be accepted as sufficient evidence of the fact by any person dealing with the donee.

Sect. 2 of the new Act provides that a power of attorney given under the Act may be deposited at the Central Office under sect. 48 of the Conveyancing Act 1881, but without the form of verification required by that Act. Apparently it is only with regard to a power of attorney so deposited that the provision in this section applies requiring every person to act on the authority of the power. This section lays it down that no person shall refuse to act on the authority of any such power of attorney, although the power is not attested by two witnesses, or fails in any other respect to comply with any formality required by law or practice. It is also provided that the donee of a power of attorney given under the new Act may, for the purpose of the transfer of any inscribed stock, himself delegate to an attorney the power to transfer. There is also a provision that the fact that it appears from the power, or from any evidence required for the purposes of the power, or otherwise, that in dealing with any stock-stock is defined here as including shares, and any fund, annuity, or security transferable in books kept by any person or by any instrument of transfer-the donee is acting in the execution of a trust shall not be deemed, for any purpose, to affect any person in whose books the stock is inscribed or registered with any notice of the trust.

The latter provision is, no doubt, aimed at facilitating the ordinary transfer of stocks and shares, but it does not seem to be very happily worded. The word "inscribed" is usually applied to stock inscribed in the books of the Bank of England. Yet possibly a mortgage of land would fall within the provision as being transferable by an instrument of transfer.

The Act is expressly stated not to apply to any trustee under an implied or constructive trust. But the powers conferred by the Act on trustees in relation to any period for which they are engaged on war service may also be exercised by any trustee not engaged on war service in relation to any period during which being abroad, he is, for any reason connected with the present war, unable to return from abroad to the United Kingdom.

The framers of the Act and, indeed, Parliament itself exhibit a lamentable ignorance of the conditions under which British prisoners of war are allowed to communicate with this country, if it is assumed, which it clearly is, that a trustee who is at present a prisoner of war can avail himself of the facilities afforded by the Act. In practice the Act can be of no benefit whatever in such a case. This, indeed, is greatly to be regretted, for there must be many cases where the administration of trusts is wholly suspended because of the internment of an unfortunate trustee.

It would not be generous to criticise the Act too severely. For an emergency statute it is well drawn, although many points of doubtful construction might be pointed out. One thing is clear, and that is that the courts will give a liberal construction to its terms. It authorises the free delegation of powers by a trustee during the war and for one month after its termination. But it postulates an opportunity to execute the power of attorney. At the front these opportunities must be very rare and difficult to find. Every officer-, soldier-, or sailor-trustee returning to this country for a few days' leave which the naval and military anthorities are finding it possible and expedient to grant ought, however, to avail themselves of the Act, although no fair-minded man could reasonably expect such a trustee, in the circumstances, to show a lively interest in such prosaic matters as trust business.

POCLING INSURANCE.-The Licenses Insurance Corporation and Guarantee Fund Limited has established an entirely new scheme of Insurance for Fire, Burglary, Workmen's Compensation, &c., by which the profits accrue to the insured. (See p. 156.)-[ADVI.]

COMMENTS ON CASES.

"Patent Agency" Person.

To drive a coach and horses through an Act of Parliament used at one time to be a common performance, if one may be permitted to judge by the frequency with which that expression was employed in former years. And allowing that the practice is not quite so customary nowadays, the recent case of Hans v. Graham (111 L. T. Rep. 551) shows that it certainly has not fallen entirely into abeyance. The appellant there, who was not registered as a patent agent, put up on the outside of his business premises the words "patent agency." By sect. 84 of the Patents and Designs Act 1907 (7 Edw. 7, c. 29) a person is thereby prohibited from describing himself as a "patent agent" unless he is registered as such. Whether as describing the work done within the appellant's premises and no more, or the place where that work was done, it was not within the Act, in the opinion of the learned judges of the Divisional Court, Justices Ridley, Rowlatt, and Shearman. The regret expressed by Mr. Justice Rowlatt"that as to Acts of Parliament of this kind, a breach of them can be so nearly approached without a breach actually happening "will be shared by most. That, however, is just where statutes are so constantly found to fall short of comprehensiveness. Even in the absence of any authority, it was practically inevitable that the appellant's contention should be sure to succeed. His argument was that there is nothing in the section which prevents a man from saying that he does such work as is generally done by patent agents, so long as he forebears to describe himself as a "patent agent." But there was authority to support that contention in the view which was taken by Mr. Justice Wills in Graham v. Eli (15 Rep. Pat. Cas. 259). That is a view which carries conviction. His Lordship there said that the section of the Patents, Designs, and Trade Marks Act 1888 (51 & 52 Vict. c. 50,-namely, sect. 1-which corresponded to sect. 84 of the Act of 1907, meant no more than it said-to prohibit a man from wrongfully calling himself a patent agent. "Distinctive" Mark or mere Laudatory Epithet.

IN our comment on the recent case of Re Sharpe's Trade Mark; W. N. Sharpe Limited v. Solomon Brothers Limited (see 137 L. T. Jour. 288), we ventured to express our doubts as to the correctness of Mr. Justice Warrington's decision there that the word "Classic was a registrable trade mark. Our anticipation that it remained to be seen whether the Court of Appeal would not be prevailed upon to adopt the view that his Lordship's conclusion was contrary to the decision of that court in Re Joseph Crosfield and Sons Limited's Trade Mark Application (101 L. T. Rep. 587; (1910) 1 Ch. 130) was well justified. For the Court of Appeal have now held (noted post, p. 139) that "Classic" is not a word capable of being "adapted to distinguish the goods of the proprietor of the trade mark from those of other persons within the meaning of sect. 9, sub-sect. 5, of the Trade Marks Act 1905 (5 Edw. 7, c. 15). It is not, therefore, a distinctive" mark, but a mere laudatory epithet such as was condemned as being unregistrable in the case above cited. Applied, as "Classic" was, to goods of a more or less artistic character-that is to say, Christmas and other greeting cards-the description " laudatory epithet " appeared to us a precisely apt and befitting one Among the dictionary meanings of the word "Classic" are those that seem to demonstrate that exactly. For it is primarily employed to denote something which relates to ancient Greek and Latin authors of the first rank or estimation. Then, "pure," "elegant," or "refined" are further meanings. They convey the notion that whatever receives the appellation "Classic" is being lauded and extolled, just in the same way as is any article designated "Perfection," which was the word objected to in the case that we have referred to. That a monopoly in the use of words that are mere laudatory epithets is what ought not to be permitted is made more than ever manifest by the decision in the present case. And infinitely to the advantage of manufacturers and traders generally this ruling undoubtedly is.