Effects of marriage upon alienage.

Naturalization.

Naturalization in the Colonies.

who shall have declared on oath their intention to become citizens:" United States Laws, xii. 731.

During the Canadian rebellion in 1838, Lord (then Sir John) Campbell, A.G., gave an opinion, which was acted upon, that an armed band of American citizens who invaded our territory without the authority of their Government were liable to be treated as traitors: see Lives of the Chief Justices, i. 197; and OPINION, p. 199, ante.

In Craw v. Ramsay (Vaugh. 281), Vaughan, C.J., said: "If the King of England enter with his army hostilely the territories of another prince, and any be born within the places possessed by the King's army, and consequently within his protection, such person is a subject born to the King of England, if from parents subjects and not hostile."

Where a British subject married a Frenchwoman and became domiciled in France, where they resided until the outbreak of the Revolution, and the wife died in her husband's lifetime never having come into British territory, it was held that by the common law she was not a British subject: De Wall's Case, 12 Jur. (P.C.) 145. In the Countess of Conway's Case, 2 Knapp, 368, the Court said: "A Frenchwoman becomes in no way a British subject by marrying an Englishman; she continues an alien, and is not entitled to dower:" Co. Litt. 31 b. But by virtue of statute 7 & 8 Vict. c. 66, an alien woman who marries a British subject is now naturalized, and is not entitled to a jury de medietate linguæ: R. v Manning, 1 Den. C. C. 467. In Derry v. Duchess of Mazarine, 1 Raym. 147, it was held that if a husband is an alien enemy, he has no legal existence in this country; and his wife, resident here, so long as he remains such, is looked upon as a femme sole, and may be sued on contracts made by her as if she were a widow.

Naturalization in this country is now regulated by statute 7 & 8 Vict. c. 66, and it may be effected by a certificate issued by the Secretary of State for the Home Department, which has the effect of granting to the alien all the rights and capacities of a natural-born British subject, except the capacity of being a Privy Councillor, or a member of either House of Parliament.

By the Constitution of the United States the power of naturalization is vested exclusively in Congress, and the State Governments have not the power: Kent's Com. i. 467, 8th edit. But no naturalized citizen of the United States is capable of being elected President.

The statute 10 & 11 Vict. c. 83, enacts that all Acts, statutes, and ordinances theretofore passed by the legislatures of any of Her Majesty's colonies and possessions abroad, for naturalizing persons within the respective limits of such colonies and possessions, shall within such limits be valid, and that all such Acts, statutes, and ordinances passed in future shall within such limits be valid, subject to confirmation or disallowance by Her Majesty. And the same Act enacts and declares that the Act 7 & 8 Vict. c. 66, "An Act to Amend the Laws relating to Aliens," does not extend to any British colonies or possessions abroad.

341

CHAPTER X.

ON EXTRADITION.

(1.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, as to the Detention and Extradition of Spanish Convicts wrecked on the Bahama Islands while proceeding under sentence of transportation from the Havannah to Cadiz.

Temple, September 15, 1836.

MY LORD,-We have to acknowledge the receipt of your Lordship's letter of the 31st ultimo, enclosing copies of despatches from the Governor of the Bahamas, and of enclosures therein contained, relating to certain Spanish convicts wrecked on the Bahama Islands while proceeding under sentence of transportation from the Havannah to Cadiz, in which letter your Lordship requests that we would report our opinion how far the proceedings of the Lieutenant-Governor were consistent with the law of nations and with the municipal law of England.

We beg leave to state to your Lordship that the LieutenantGovernor has no right by the law of England to detain in custody any persons merely on the ground of their having been guilty of offences against the laws of Spain. The convicts in question, having been wrecked on an island forming part of the territories of his Majesty, are entitled to be dealt with as free agents so long as they conduct themselves in conformity to the laws in force in the Bahama Islands. However reasonable the course recommended by the Attorney General of the island might be—namely, to deliver up to the Spanish authorities such of the convicts as had been convicted of the graver offences constituting mala in se, and to set at liberty those convicted of what were only mala prohibita—we are not aware of any law warranting such a course, or justifying a

British Governor in treating as criminals persons who have not violated the laws of the colony over which he presides.

The Lord Glenelg,

&c. &c. &c.

J. CAMPBELL.

R. M. ROLFE.

(2.) OPINION of the United States Attorney General, MR. LEGARE, on the Extradition of Criminals (1).

Attorney General's Office, October 11, 1841.

SIR, I find among the papers left in this office by my predecessor a letter from his Excellency Governor Seward, consulting you upon the course which ought to be pursued in the matter of one Dewit, a fugitive from justice demanded of the Governor of New York by the Governor-General of Canada, together with a request from yourself that it be considered by the Attorney General. I have accordingly turned my attention to the subject as soon as other pressing avocations would permit me to do so, and now have the honour to give you an opinion upon it.

I think from the whole argument of the Bench in the case of Holmes v. Jennison, 14 Peters, 540, we may consider it as law: First, that no State can without the consent of Congress enter into any agreement or compact, expressed or implied, to deliver up fugitives from justice from a foreign State who may be found within its limits: secondly, that according to the practice of the executive department, as appears from the official correspondence both of Mr. Jefferson and Mr. Clay, your predecessors in office, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice. In the absence, therefore, of such treaty stipulations, I am of opinion that it is necessary to refer the whole matter to Congress, and submit to its wisdom the propriety of passing an Act to authorize such of the States as may choose to make arrangements with the Government of Canada or any other foreign State for the the mutual extradition of fugitives, to enact laws to that effect, or Acts approving such laws as may already have been passed in the several States to that effect.

(1) 3 Attorney Generals' Opinions, 661.

Whatever I might think of the power of the Federal Executive in the premises, were this a new question, I consider the rules laid down by Mr. Jefferson, and sanctioned after the lapse of thirty years by another administration, as too solemnly settled to be now departed from.

Hon. D. Webster, Sec. of State.

H. S. LEGARE.

(3.) CASE and JOINT OPINION of the Attorney and Solicitor General, SIR JOHN ROMILLY and SIR A. E. COCKBURN, on the Act 6 & 7 Vict. c. 79 (an Act to carry into effect a Convention concerning the Fisheries in the Seas between the British Islands and France); and the Jurisdiction of the Royal Court of Jersey.

1851.

Case. Some British fishing-boats, including one from Jersey, were found fishing off the coast of France, within the French limits; and the French authorities being desirous that proceedings should be taken against the Jersey boat for an infraction of the Fishery Laws, the Lieutenant-Governor of Jersey referred the question to the Attorney General of the island, for his opinion as to whether the Royal Court there had jurisdiction in the case. The Attorney General said, in his Opinion: "I doubt if the Royal Court of this island has jurisdiction in the case, inasmuch as the occurrence took place within the limits within which the general right of fishing is stated to be exclusively reserved to the French. The jurisdiction in such cases appears to me to belong altogether to the French tribunal, under the 89th section of the Fishery Regulations, agreed upon by the two countries on the 23rd of June, 1843." A further question arose, as to whether the conduct of the crews of the other boats, in endeavouring to rescue her from the hands of the French, who had seized her, was punishable in Jersey, and on this point the Attorney General said: "As regards the second offence, neither the Act 6 & 7 Vict. c. 75 (to carry into effect the Extradition Treaty between Great Britain and France), nor the regulations abovementioned, provide specifically for the case of a British fisherman resisting or obstructing a French officer or functionary; nor have we any other law under which such an offence could be tried in the Royal Court, nor is that Court empowered to send the supposed offenders to a French court for trial."

The case was then submitted to the Law Officers of the Crown, Sir John Romilly and Sir A. E. Cockburn, and they were asked whether, under the Act 6 & 7 Vict. c. 79, the Royal Court of Jersey had jurisdiction to try the parties for either, and which, of the alleged offences?

Opinion. We think that the present case is one omitted in the provisions of the Act. The 11th section states that the magistrate to hear the charge is to be one having jurisdiction in the country or place in which, or in the waters adjacent to which, the offence shall be committed, or to which the offenders shall be brought. Here the offence was committed in French waters, and not in the waters adjacent to Jersey, and the offenders were not brought to Jersey, although they escaped thither. In these circumstances we are compelled to agree with the Attorney General of Jersey, and are of opinion that, under the Act 6 & 7 Vict. c. 79, the Royal Court of Jersey has no jurisdiction to try the parties for any one of the alleged offences mentioned in the above correspondence.

Lincoln's Inn, March 22, 1851.

JOHN ROMILLY.
A. E. COCKBURN.

(4.) OPINION of the United States Attorney General, Mr. CUSHING, on the Extradition of Criminals (1).

Attorney General's Office, August 19, 1853.

SIR, I have examined the papers which you were pleased to submit to me in the case of The People of New York v. Anson Wing, from which it appears that the said Wing is under indictment for larceny alleged to have been committed by him in violation of the law of the State of New York, and is now a fugitive from justice in the British provinces; and application is made to you for process to obtain the extradition of said Wing.

Larceny is not among the cases provided for by any convention between the United States and Great Britain. The crimes enumerated in the treaty of 1842, which now governs the question, are murder, or assault with intent to commit murder, or piracy, or

(1) 6 Attorney Generals' Opinions, 85.