(2) Their effect upon land in England, whether the owner or occupier of the land is or is not domiciled in England; (3) Their effect on the persons of foreigners; (4) Their effect on the property of foreigners out of British jurisdiction; (5) Their effect in parts of the British Islands other than England; (6) Their effect in the colonies and India; and (7) The territorial effect of colonial Acts. F. may bind within or with out realm. 2. The general rule as to the effect of a British Act of British statutes Parliament upon a British subject was stated by Sir T. British subject Wilde arguendo in the Sussex Peerage case (1844), 11 Cl. & 95, to be that "the British Parliament possesses the power to impose restrictions and disabilities and incapacities upon any British subject, which shall operate upon him anywhere." This general rule was accepted by the House of Lords, and it was held by them on this ground that the Royal Marriages Act, 1772 (12 Geo. 3, c. 11), which enacted, in s. 1, that "no descendant of the body of George II. shall be capable of contracting matrimony without the previous consent of his Majesty ... and that every marriage of any such descendant without such consent first had and obtained shall be null and void," operated to render void a marriage contracted by a descendant of George II. in Rome. X It had been argued on behalf of the claimant of the peerage that this Act only applied to marriages contracted in England; but the judges who were consulted gave it as their opinion (at p. 144) that the intention of the Act was clearly to create "an incapacity attaching itself to the person of A. B. [i.e., the Duke of Sussex] which he carried with him wherever he went, for," they added, "it is clear that an Act of the Legislature will bind the subjects of this realm, both within the kingdom and without, if such is its intention." But whether any particular Act of Parliament, purports to bind British subjects abroad will always depend upon the intention of the Legislature, which must be gathered from the language of the Act in question; there is no presumption either one way or the other, although British statute does not bind ୮ from time to time judges utter dicta expressing a prepossession for or against the presumption that Parliament intends to legislate for British subjects wherever found.() "Service out of the jurisdiction is an interference with the ordinary course of the law, for generally Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. If an Act of Parliament gives them jurisdiction over British subjects wherever they may be, such jurisdiction is valid; but, apart from statutes, a Court has no power to exercise jurisdiction over any one beyond its limits."(c) With respect to statutes creating crimes the rule has been thus stated: "All crime is local.(d) The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, her Majesty and the imperial Legislature have no power whatever.”(e) This statement is, however, subject to certain exceptions— e.g., piracy jure gentium, and cases within the Foreign Jurisdiction Acts. And in a Government Bill in Parliament in 1890 it was proposed to take a very large jurisdiction in some cases over foreigners in respect of offences committed abroad. But no independent foreign State recognises the liability of its subjects to punishment in a foreign State for offences committed within the borders of the State to which the offender belongs; and in the Explosives Act of 1883 (46 Vict. c. 3) Parliament was careful to exclude aliens from the extra-territorial operation of the statute, and in the Official Secrets Act, 1889, aliens not in the service of the British or a colonial Government are not brought within the penalties of the statute.(f) "When we speak of the right of a State to bind its own (b) See, however, a dictum of Pollock, C.B., in Rosseter v. Cahlmann (1853), 22 L. J. Ex. 129. Per Cotton, L.J., in Re Busfield (1886), 32 Ch. D. 131. (d) Contra, see Wharton, Conflict of Laws (2nd ed.), ch. xiii., and the remarkable decision in Ex parte Nillins (1884), 53 L. J. M. C. 157; Clarke on Extradition (3rd ed.), p. 225. (e) Per Halsbury, L.C., in Macleod v. Att.-Gen, of N. S. W. (1891), A. C. at p. 458. (f) The Territorial Waters Act, 1878 (41 & 42 Vict. c. 73), is based on a claim of territorial jurisdiction over the waters referred to in the Act. dominions. native subjects everywhere, we speak only of its claim real property of British subject and exercise of sovereignty over them when they return which is withwithin its own territorial jurisdiction, and not of its right out H.M.'s to compel or require obedience to such laws on the part of the other nations within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate persons and things within its own territory, according to its own sovereign will and policy."(g) All the authorities in England and the United States recognise the principle in its fullest import, that real estate or immovable property is exclusively subject to the laws of the Government within whose territory it is situate.(h)"So firmly is this principle established, that in cases of bankruptcy the real estate of the bankrupt, situate in foreign countries, is universally admitted not to pass under the assignment."(i) This rule does not, however, apply as between the United Kingdom and the colonies,(k) inasmuch as the British Parliament is constitutionally capable of legislating for the whole empire. It has more than once been contended in Canada that the British North America Act, 1867, amounted to an abdication by the imperial Parliament of all legislative authority in Canada in respect of the matters dealt with by that Act. But this contention appears to have been based on reasoning from the Constitution of the United States, and has been rejected by the Canadian Courts. In 1879 it was contended that the imperial Medical Acts of 1858 and 1868 were overridden by the British North America Act of 1867, and by an Ontario Act of 1874 passed in execution of the legislative authority given by the Act of 1867. But it was held that the imperial Acts overrode the colonial Act, and were not impliedly repealed by the Act of 1867.(1) X N With regard to personal property the maxim of law is, But British (g) Story, Conflict of Laws (8th ed.), s. 22. (k) See Williams v. Davies (1891), A. C. 460; infra, p. 449. (1) R. v. College of Physicians and Surgeons (1879), 44 Upp. Can. Q. B. statutes may property of British sub abroad. bind personal Mobilia sequuntur personam. "The right and disposition of movables is to be governed by the law of the domicile jects which is of the owner, and not by the law of their local situation."(m) Consequently, a British statute can bind the personal property of a British subject wherever situate. "Personal property," said Lord Loughborough in Sill v. Worswick (1791), 1 H. Bl. 690, "has no visible locality, but is subject to that law which governs the person of the owner. With regard to the disposition of it, it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he is a subject, that will regulate the succession. And . . . . if a bankrupt [in England] happens to have property which lies out of the jurisdiction of the law of England, if the country in which it lies proceeds according to the principles of well-regulated justice, there is no doubt but that it will give effect to the title of the assignees." Thus, in Colquhoun v. Brooks (1889), 15 App. Cas. 493, the House of Lords were prepared to hold that property in a colony could be made subject to the British Income Tax Acts.(n) English land is lish Acts the holder. 3. Lord Selborne said in Freke v. Lord Carbery (1873), bound by Eng- L. R. 16 Eq. 466,(o) that "the territory and soil of regardless of England England. . . . is governed by all statutes which are in force in England," and it makes no difference whether the owner of the soil be domiciled in England or elsewhere.(p) Thus, in Birtwhistle v. Vardill (1840), 7 Cl. & F. 895, the question was whether a child born of domiciled Scotch parents who did not intermarry until after that child's birth could inherit land in England. It was admitted that by the law of Scotland the child was legitimate, but by the Statute of Merton (20 Hen. 3), c. 9, it was enacted (m) Story, lib. cit. s. 376. (n) See also Colquhoun v. Heddon (1890), 25 Q. B. D. 129; and vide infra, P. 449. (0) Cf. Duncan v. Lawson (1889), 41 Ch. D. 398. (p) This principle applies even when land is held in England by a foreign Sovereign or diplomatist. Royal and diplomatic privilege do not extend to real property. that "they would not change the laws of the realm" with regard to children before matrimony not being entitled to inherit land. Consequently, it was held that such a child could not take lands in England as the heir of his father. In the case of personal estate the child would have been entitled as next of kin under the Statute of Distributions.) So, also, in Curtis v. Hutton (1808), 14 Ves. 537, it was held that, although the Mortmain Act does not extend to Scotland, still that land in England can no more be devised for the benefit of a Scotch charity than of an English charity. "The subject of the Statute of Mortmain," said the Court, "is real estate in England, and the owners of such property are disabled by the statute from disposing of it to any charitable use except in a particular way. It would be somewhat incongruous to refuse to permit such a disposition for the most laudable charitable institution in England, but if the party chose to carry his benevolent intention beyond England, to permit him to do so." So, also, in Freke v. Lord Carbery (1873), L. R. 16 Eq. 463, it was argued that a leasehold property situate in London was not subject to the limitations of the Thellusson Act if the testator was domiciled in Ireland. "This leasehold property," said Lord Selborne, "is part of the territory and soil of England, and the fact that the testator has a chattel, and not a freehold, interest in it makes it in no way whatever less so." The maxim Mobilia sequuntur personam is inapplicable to a bequest of an interest in land, because land, whether held for a chattel or freehold interest, is in nature, as a matter of fact, immovable and not movable."() Real property is in all cases governed by the lex rei sita and English Courts have no jurisdiction to adjudicate with reference to land out of England, nor will they recognise any foreign adjudication as to land in England.(s) It may appear at first sight to militate against this Exception as doctrine that not only is a chattel interest in land in (1) Re Goodman's Trusts (1881), 17 Ch. D. 290. (s) Moçambique Co. v. British South Africa Co. (1892), 8 Times L. R. to legacy duty. |