13

liquor, to which the description "port" or "madeira” should be applied, other than wine the produce of Portugal and of the island of Madeira, respectively. The treaty by express terms was not to come into force until the sanction of Parliament as to the provisions of this article had been obtained.12a The articles in the treaties of 1854 and 1871, as to fisheries and commercial reciprocity between the United States and British dominions in North America, were, by express reservations, to take effect only after the laws required to carry them into operation had been passed by the Imperial Parliament and the local parliaments concerned. Similar reservation was made in the treaty with France of January 14, 1857, concerning fishery rights on the coast of Newfoundland. In the usual treaty of general amity, commerce, and navigation, which stipulates on the part of Great Britain for mostfavored-nation treatment and not for special concessions, and which requires no modification of existing legislation, no such reservation is made. With respect to the convention signed at Brussels March 5, 1902, for the abolition of bounties and the limitation of the surtax on sugar, the House of Commons, by a resolution adopted November 24, 1902, approved the policy embodied in the convention, and declared that, in the event of its receiving the ratifications required to make it binding, the House was prepared to adopt the necessary measures to enable His Majesty to carry out its provisions.15 The House thus pledged itself to give effect to the convention. The act of August 11, 1903 was passed for this purpose.

16

§118. General Legislation to Give Effect to Treaties. Naturalization. In matters usually subject to uniform international regulation, provision is often made by a general law for giving effect to treaties thereafter to be concluded. More than a century and a half ago, Blackstone wrote: "Natural allegiance is therefore a debt of gratitude, which cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance,

122 The act of November 27, 1914 was passed for this purpose. 5 Geo. 5 c. I.

13 Art. XX. Brit. and For. State Papers, XLVII, 23.

14 For a return of most-favored-nation clauses in treaties of commerce between Great Britain and foreign powers in force on January 1, 1907, see Parl. Pap. Cd. 3395.

15 Parliamentary Debates (4th series), CXV, 271, 371.

16 3 Edw. 7 c. 21.

nor by anything but the united concurrence of the legislature."" In the negotiations with the United States, which ultimately resulted in the naturalization convention of May 13, 1870, the British government maintained that either legislation by Parliament should precede the signing of any convention by which the loss of British nationality by naturalization in the United States should be recognized, or the validity of the convention should by express provision be made dependent upon such legislation. No act for this purpose having been passed by Parliament when the protocol of October 9, 1868, which substantially contained the provisions afterwards incorporated in the convention, was signed, a clause was inserted in which it was expressly declared that, since it would not be practicable for Her Majesty's Government to carry into operation the principles laid down in the protocol until provision had been made by Parliament for a revision of the laws, the protocol should not take effect until such legislation had been accomplished.18 The convention, as signed May 13, 1870, contained no such reservation, since an act of Parliament of May 12, recognized the principles of the convention and enacted them into law.19 A supplemental convention was signed February 23, 1871; and to remove all doubts as to whether its stipulations fell within the terms of the act of 1870, the additional act of July 25, 1872, was passed.20 By the British nationality and status of aliens act of 1914, a "British subject who, when in any foreign state and not under disability, by obtaining a certificate of naturalization, or by any other voluntary and formal act, becomes naturalized therein, shall thenceforth be deemed to have ceased to be a British subject."20 The act further provides that where "His Majesty has entered into a convention with any foreign state to the effect that the subjects or citizens of that state to whom certificates of naturalization have been granted may divest themselves of their status as such subjects, it shall be lawful for His Majesty, by order in council, to declare that the convention has been entered into by His Majesty; and from and after the date of the order any person having been originally a subject or citizen of the state therein referred to, who has been naturalized as a British subject, 17 Commentaries (Sharswood ed.), I, 369.

18 Brit. and For. State Papers, LIX, 29, 30, 32.

19 33 & 34 Vict. c. 14.

20 35 & 36 Vict. c. 39.

20a Sec. 13. 4 & 5 Geo. 5 c. 17.

may, within the limit of time provided in the convention, make a declaration of alienage, and on his making the declaration he shall be regarded as an alien and as a subject of the state to which he originally belonged as aforesaid."20b 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 naturalborn British subject; and 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 British subject." The act is not to be construed, however, as conferring any right on an alien to hold real property situate out of the United Kingdom, or as qualifying an alien to be the owner of a British ship.20c

§119. Extradition.-A person, not a violator of the law of the land, has at common law a personal right to liberty, which cannot be abridged by act of the Crown. Accordingly, legislation by Parliament is necessary to authorize the apprehension and surrender of fugitive criminals under extradition conventions. The general extradition act of August 9, 1870, provides that "where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by order in council, direct that this act shall apply in the case of such foreign state," subject to such conditions, exceptions and qualifications as may be deemed expedient; and that an order in council for applying the act in the case of any foreign state cannot be made unless the agreement may be terminated on a notice not exceeding one year and is in conformity with the provisions of the act.21 Prior to the passage of this act special legislation was required to give effect to extradition conventions. Article X of the treaty with the United States of August 9, 1842 was not effective as a law of the land until the passage, August 22, 1843, of an act for that purpose.22 Another act of the same date, for carrying into effect the convention of extradition with France, concluded February 13, 1843, failed to give full effect to that convention. During the period between 1843 and 1852, of fourteen fugitives requested by France only one was returned under the

20b Sec. 15.

20c Sec. 17.

21 33 & 34 Vict. c. 52, secs. 2, 4, 5, 21. This act, with the exception of section 19, relates to the surrender of the fugitive by Great Britain.

22 6 & 7 Vict. c. 76.

24

convention.23 In each of the extradition conventions concluded May 28, 1852 with France, April 15, 1862 with Denmark, and March 5, 1864 with Prussia, a clause was inserted, by which the operation of the convention was expressly made dependent upon the passage by Parliament of the legislation necessary to carry it into effect. In the first named of these conventions the Crown engaged only to recommend to Parliament the passage of an appropriate act; and, Parliament having failed to make such provision, the convention remained inoperative, although the ratifications were exchanged.25 Since the passage of the act of 1870, extradition conventions are given effect by orders in council for applying the extradition acts in favor of the country with which the convention has been concluded.26 In case the convention provides for the surrender of a fugitive for an offense not included in the extradition acts as an extraditable offense, a special act of Parliament is necessary. Thus the act of August 4, 1906, including bribery as an extraditable crime, was passed to enable His Majesty to carry into effect the supplementary extradition convention concluded with the United States, April 12, 1905, the ratifications of which were not exchanged until December 31, 1906.27

23 6 & 7 Vict. c. 75. Clarke, Extradition (3d ed.), 131; Edmonds, J., In re Metzger, 1 Barb. 253.

24 Art. XV, Art. IV and Art. III, respectively. Brit. and For. State Papers, XLI, 20; LII, 30; LIV, 20.

25 Hansard's Debates, CXXI, 1370; CXXII, 192, 561, 1278.

26 See for instances, orders in council of February 22, 1896, November 27, 1896, August 9, 1898, October 20, 1898, June 15, 1901, June 26, 1901, March 6, 1902, September 15, 1902, May 10, 1905, May 29, 1905, May 11, 1906, February 11, 1907, May 7, 1907, July 6, 1907, July 6, 1907, August 12, 1907, August 12, 1907, July 5, 1911, August 8, 1911, November 10, 1911, and February 13, 1912, to make effective, respectively, the extradition conventions concluded February 13, 1896 with France, August 27, 1896 with Belgium, January 26, 1897 with Chile, February 22, 1892 with Bolivia, December 6, 1900 with Servia, December 13, 1900 with the United States, October 29, 1901 with Belgium, June 26, 1901 with Austria-Hungary, October 3, 1904 with Cuba, June 29, 1904 with Switzerland, April 19, 1905 with Nicaragua, April 12, 1905 with the United States, January 26, 1904 with Peru, February 18, 1907 with Norway, March 5, 1907 with Belgium, August 25, 1906 with Panama, July 2, 1907 with Sweden, September 12, 1908 with Paraguay, March 3, 1911 with Belgium, March 4, 1911 with Siam, and September 24, 1910 with Greece. Brit. and For. State Papers, LXXXVIII, 179, 180; XC, 231, 235; XCIV, 138, 139; XCV, 129, 665; XCVIII, 183, 189; XCIX, 457; C, 57, 88, 91, 92, 109, 113; Hertslet's Commercial Treaties, XXVI, 810, 32, 939, 688.

27 6 Edw. 7 c. 15.

By section 6 of the extradition act of 1870, it is provided that, where the act applies in the case of any foreign state, “every” fugitive criminal of that state, who is in Her Majesty's dominions, shall be liable to be apprehended and surrendered in the manner as prescribed in the act. A convention was concluded with Switzerland, which provided that "subjects" should not be surrendered; and an order in council was made, which directed that the act should apply in the case of the convention. It was held in Queen v. Wilson (1877) that the convention must be taken to have been incorporated with, and to limit the operation of the act, and that, accordingly, a British subject could not be surrendered to Switzerland.28

§120. Apprehension of Deserting Seamen.-Section 238 of the general merchant shipping act of August 25, 1894 authorizes the Crown to apply by order in council the provisions thereof for the surrender of deserting seamen to any foreign country that guarantees similar facilities for the recovery of deserters from British merchant vessels.29 These provisions were, for instance, made applicable to Japan by orders in council of February 3, 1898, and October 3, 1911;30 to Honduras by an order in council of September 26, 1901;31 to Nicaragua by an order in council of March 1, 1907;32 and to Roumania by an order in council of November 2, 1907.33

$121. Patents, Trade-Marks, Copyright and Posts.-Section 91 of the patents and designs act of August 28, 1907, substan

84

28 3 Q. B. D. 42. Sir Francis Piggott says, of this case, that "it settles, if there were any doubt on the matter, that treaties made by the Sovereign are part of the law of the land, and, being duly notified [by order in council], will be enforced by the courts so long as they do not interfere with, or infringe the common law." Extradition, 44. See also In re Bluhm (1901), I Q. B. 764. Lord Russell of Killowen, in In re Arton (1896), I Q. B. 108, 112, however, said: "It is to the expression of the legislature in acts of Parliament, and to that alone, that judicial tribunals can refer." See also In re Galwey (1896), 1 Q. B. 230.

29 57 & 58 Vict. c. 60, sec. 238.

30 Hertslet's Commercial Treaties, XXVI, 751; Brit. and For. State Papers, XC, 201.

31 Id., XCIV, 1046.

32 Id., C, 58.

33 Id., C, 123. See similar provision in the foreign deserters act of 1852, Id., XLI, 680.

34 7 Edw. 7 c. 29. By the act of August 7, 1914, this section was amended for the purpose of giving effect to the convention concluded at Washington in 1911. 4 & 5 Geo. 5 c. 18.