negative can be grounded as a general proposition only on the assumption that the intention necessary for the acquisition of domicile implies such feelings towards the adopted country that, by a presumption juris et de jure, holding them towards a foreign country cannot be imputed to a person still remaining in British service. What has been said under § 273 about the diplomatic and consular services may here be compared. Certainly the diplomatic service presents a much stronger case than any other against the acquisition of a foreign domicile. The fiction. that the hotel of an embassy is a part of the soil of the ambassador's country would formerly, no doubt, have been used as an argument against the existence of the fact which is no less. necessary than the intention; but if the question should now arise, it will probably be discussed on real and not on fictitious grounds.

In Hodgson v. De Beauchesne (1858), 12 Mo. P. C. 319, Lushington said: "We do not think it necessary for the decision of this case that we should lay down as an absolute rule that no person, being colonel of a regiment in the service of the East India Company and a general in the service of her majesty, can legally acquire a domicile in a foreign country. It is not necessary for the decision of this case to go so far; but we do say that there is a strong presumption of law against a person so circumstanced abandoning an English domicile and becoming the domiciled subject of a foreign power."

A peer of the United Kingdom is not prevented by his parliamentary or other political duties from acquiring a domicile in a country politically foreign: Hamilton v. Dallas (1875), 1 Ch. D. 257, Bacon.

§ 278. When a person whose domicile is non-British enters the service of the British crown, he does not thereby necessarily change his domicile, but he may acquire a domicile in that part of the British dominions in which his duties oblige him to reside, if he displays the intention which is necessary for that purpose. This will be the case if the service is likely to be permanent, and he displays the intention of remaining in it.

Urquhart v. Butterfield (1887), 37 Ch. D. 357, 377, Cotton, Lindley, Lopes.

As to the case of military or naval service, in Ex parte Cunningham, Re Mitchell (1884), 13 Q. B. D. 418, Cotton cautiously said: "No doubt, if a foreigner enters the British army and resides in England his domicile will be in England": p. 423, which does not conflict with the doctrine laid down in the §. In the same case Baggallay delivered as a "rule of law," that a subject of her majesty entering into the military or naval service of a foreign power acquires a domicile in the country of that power" p. 421. No authority was cited for this, and to apply to converse would require a rule as to the particular British domicile which a foreigner entering British military or naval service would acquire inde

pendent of intention. It would be difficult to say that that domicile was in England, if his duties called him to another part of the British dominions. In President of the United States of America v. Drummond (1864), 33 Beav. 449, Romilly said with reference to a person about whose origin and antecedents nothing was known: "He obtained a commission in the English army, which would give him an English domicile." This may be admitted in the circumstances, and probably was not meant to be applied further.

§ 279. A political refugee retains his domicile, unless he settles in a new country abandoning the hope of return.

De Bonneval v. De Bonneval (1838), 1 Curt. 856, Jenner; Re D'Orléans (1859), 1 S. & T. 253, Cresswell. And see § 272a.

Trade domicile in Time of War.

As

The student must be cautioned against confounding the trade domicile, by which the belligerent or neutral character of property is determined for the purposes of war, with the subject. of this chapter. The two are distinguished by Dr. Lushington in Hodgson v. De Beauchesne (1858), 12 Mo. P. C. 313. illustrations of the difference it may be mentioned that "a man may have mercantile concerns in two countries, and if he acts as a merchant of both he must be liable to be considered as a subject of both, with regard to the transactions originating respectively in those countries": Sir W. Scott, in The Jonge Klassina (1804), 5 C. Rob. 302. Also that Also that "the party becomes clothed with a new character from the period when he first takes steps animo removendi to abandon his former domicile, and animo manendi to acquire a new one": Lushington in The Baltica (1855), Spinks, Adm. 267. The distinction was recognized by Lord Lindley in Janson v. Driefontein Consolidated Mines, [1902] A. C., at pp. 505, 506. "The subject," he said, "of a state at war with this country, but who is carrying on business here or in a foreign neutral country, is not treated as an alien enemy; the validity of his contracts does not depend on his nationality, nor even on what is his real domicile, but on the place or places in which he carries on his business or businesses." And for this he referred to Wells v. Williams, 1 Raym. 282, 1 Salk. 46. The same rule was affirmed in a number of decisions upon enemy character given at the outbreak of the war with Germany, 1914-1918. See especially Porter v. Freudenberg, [1915] 1 K. B. 857, C. A. (Reading, C. J., Cozens-Hardy, Buckley, Kennedy, Swinfen Eady, Phillimore, Pickford), and The Hypatia, [1916] 116 L. T. R. 25.

The subject of this kind of domicile will not be pursued further here, because it belongs to public international law, and enough has been shown to enforce the impropriety of arguing from the one domicile to the other on any point.

W.I.L.

23

CHAPTER XV.

BRITISH NATIONALITY.

ALTHOUGH political nationality is of little importance to private international law as professed and applied in England, the rules on which it depends are of interest in connection with our subject, in view of the growing tendency on the continent to substitute it for domicile as the criterion of the personal statute and jurisdiction.

Unfortunately those rules are far from being the same in all countries. They result almost everywhere from a conflict between the feudal principle of allegiance determined by birth on the soil, and the Roman principle of citizenship determined by descent; but the respective proportions in which those principles are combined, and the methods used for combining them, differ widely. All that will be done here will be to exhibit the rules now in force as to the British character and its loss. It will be superfluous constantly to repeat the word "political": if nationality" or "character" could leave a doubt, “British " would prevent it, since the civil character may be English Scotch or other, but not British, the empire having no common civil law.

66

The law concerning British nationality has been greatly modified by two Statutes that came into operation during the war: (1) the British Nationality and Status of Aliens Act, 1914 (4 & 5 George V., c. 17); and (2) an Act to amend that Statute passed in 1918 (8 & 9 George V., c. 38). The principal Act professes to be a consolidating statute, and repeals a number of former enactments, including the British Nationality Acts of 1730 and 1772 and the Naturalization Acts of 1870 and 1895, which modified the fundamental principle of the Common Law that every person who was born within the King's dominions was a British subject. The new Statute, however, does not embody altogether or expressly eliminate the rules of the Common Law, nor does the section defining natural-born subjects affect the status of any person born before January 1st, 1915; so that rights of British

nationality acquired before that date under the old law still hold good. It is necessary, therefore, to consider the question of nationality not only under the more recent statutes but also under the Common Law and former statutes.

Natural-born Subjects at Common Law.

§ 280. British nationality results from birth in the British dominions, except in the case of a child born to an enemy father at a place in the British dominions then in hostile occupation, or a child born to a foreign sovereign or foreign ambassador or diplomatic agent.

At common law the British character was imposed, and not merely offered for acceptance. Eneas Macdonald's Case (1747), 18 State Trials 857, Lee; where the prisoner, who was carried to France in his early infancy, and had resided there till he came over and took part in the rebellion of 1745 under a French commission, the two countries being then at war, was convicted of high treason but pardoned on conditions.

"But if enemies should come into any of the king's dominions, and surprise any castle or fort, and possess the same by hostility and have issue there, that issue is no subject to the king though he was born within his dominions, for that he was not born under the king's ligeance or obedience." In Calvin's Case, 7 Coke 18 a

§ 281. "If any of the king's ambassadors in foreign nations have children there of their wives, being Englishwomen, by the common laws of England they are natural-born subjects: in Calvin's Case, 7 Coke 18 a. The condition that the wives are to be English women is certainly now superfluous: see § 294. And it is doubtful whether it was necessary even in Coke's time: Bacon v. Bacon (1641), Cro. Car. 601, Brampston, Croke and Berkley. The principle does not extend at common law to children born abroad to soldiers or sailors on service: De Geer v. Stone (1882), 22 Ch. D. 243, Kay.

I

It is stated by Dyer, in a note on p. 224a of his Reports, that it was adjudged in Tr. 7 E. 3 that children of subjects born beyond the sea in the service of the king shall be inheritable. But this is a mistake. searched the roll with the kind assistance of Mr. Selby, and we found that Dyer misread or misunderstood the words prædicto Johanne filio ipsius Edwardi antenato in partibus marinis tunc existente, which mean that a certain John le Botiller, an elder son of Edward, was then living beyond sea, not that he had been born beyond sea.

Natural-born Subjects by Statute.

§ 282. Section 1 of the Act of 1914, as amended by the provisions of the Act of 1918, attempts to give a comprehensive definition of the class of natural-born British subjects as follows: