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The Correlation of Allegiance and Protection

Published online by Cambridge University Press:  16 January 2009

Glanville L. Williams
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Extract

In the last number of the Cambridge Law Journal Professor Lauterpacht made the decision in R. v. Joyce the occasion of a lucid discussion of the topics of allegiance and protection, including the correlation of allegiance and protection, the diplomatic protection of non-nationals and the duty of allegiance of protected persons. He came out in support of the decision in Joyce, though he was cautious in assessing its implications outside the actual facts of the case. Since the argument for the decision has been put so fully it is perhaps as well that the legal aspect of the case for the other side should also be stated, particularly as it does not completely appear from the judgments and speeches.

Type
Research Article
Information
The Cambridge Law Journal , Volume 10 , Issue 1 , March 1948 , pp. 54 - 76
Copyright
Copyright © Cambridge Law Journal and Contributors 1948

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References

1 (1947), 9 C.L.J. 330.

2 [1946] A.C. 347.

3 For a published criticism see Walker, W. L. in Cobbett's Cases on International Law, 6th ed., i, pp. 199–201.Google Scholar

4 The same conclusion is reached by Mr. Hall, J. W. (himself a member of the Bar) in his work Trial of William Joyce (Notable British Trials Series), pp. 35–6.Google Scholar

5 Lauterpacht (op. cit., 338, n. 25) assumes that the passport was obtained fraudulently, and this view is borne out by the fact that Joyce untruly stated in his application for the passport that he was born in Ireland. But the House of Lords left the question open as being irrelevant. J. W. Hall points out (Trial of William Joyce, 22, n. 9) that if Joyce honestly believed himself to be British that made his conduct in adhering to the Germans all the worse.

6 (1608), 7 Co.Rep. 2a at 5a, approved in Isaacson v. Durant (1886), 17 Q.B.D. 54 at 62. Cf. Broom, Legal Maxims, 10th ed., 42. Co.Litt. 65a explains the ceremony of homage, in which the tenant places his hands between those of his lord (a ceremony that is still preserved in the conferring of degrees in some of our universities) as symbolising this relationship of reverence and defence.

7 Cf. Calvin's Case, loc. cit.: ‘Ligcance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; he is called their liege lord, because he should maintain and defend them’ [italics mine].

8 [1907] A.C. 326; Lauterpacht, op. cit. 335.

9 Bl. Comm, i, 370.

10 [1921] 2 A.C. 262; Lauterpacht, loc. cit.

11 Cp. Winfield, Text-Book of the Law of Tort, 3rd ed., 86: ‘It may be inferred from their [Lordships’] decision that even where a resident alien flagrantly violates his local allegiance to the Crown, as Pedlar had done, yet he still retains his rights until the Crown withdraws its protection’ [italics mine]. So also Wade and Phillips, Constitutional Law, 3rd ed., 178.

12 [1925] A.C. 270.

13 [1932] 2 K.B. 197

14 Bl. Comm. i, 370; De Jager v. Att. Gen. of Natal, [1907] A.C. 326.

15 Thomas and Hood Phillips, Leading Cases in Constitutional Law, 8th ed., 197.

16 19 St.Tr. 1071.

17 7 St.Tr. 929, 1127.

18 [1946] A.C. at 368–9.

19 (1848), 2 Ex. 167. ‘Act of state’ is frequently employed in another sense to refer to the rules that no action can be brought in English courts on a treaty, and that when the Crown annexes a foreign state it does not, in English municipal law, succeed to the obligations of the former government. These doctrines are irrelevant to the present discussion.

20 History of the Criminal Law (1883), ii, 65.

21 [1925] 1 K.B. 271 at 290, 297. Cp. Winfield, Textbook of the Law of Tort, 3rd ed., 87.

22 R. v. Bottrill, ex p. Kucchenmeister, [1947] 1 K.B. 41.

23 Re Ferdinand, ex-Tsar of Bulgaria, [1920] 1 Ch. 107; McNair, Legal Effects of War, 2nd ed., 125.

24 Although all the cases on act of state were actions in tort, it seems clear that the defence, so far as it applies, avails equally a person charged with crime. See Stephen, History of the Criminal Law (1883), ii, 61.

25 This is always assumed (e.g., by Wade and Phillips, Constitutional Law, 3rd ed., 309), though it seems not to have been expressly decided. The case usually cited is R. v. Earl Crewe, ex p. Sekgome, [1910] 2 K.B. 576, which turned not on the defence of act of state but on the Foreign Jurisdiction Act, 1890. The fact is that the powers given by that Act are so wide that the Crown does not need to rely on the common-law defence of act of state; but if the question ever arose it seems very likely that the defence would be sustained.

26 Holdsworth, ‘The History of Acts of State in English Law’ (1941), 41 Col.L.Rev. at 1321. Cp. Lauterpacht, The Function of Law in the International Community (1933), 387–90; Dickinson, Administrative Justice and the Supremacy of Law (1927), 26–7.

27 Mann, F. A., ‘The Sacrosanctity of the Foreign Act of State’ (1943), 59Google Scholar L.Q.R. at 46.

28 6 B. & S. 257 at 296.

29 Of course the form of treason with which Joyce was charged presupposed a state of war. But the decision on the question of allegiance would be applicable to other forms of treason capable of being committed in time of peace.

30 [1924] A.D. 101.

31 There is a surprising dearth of judicial authority on the question whether passports are recognised by English law in the sense that a British subject who wishes to leave or enter this country must have a passport. It seems clear that he may legally enter without one (though he will find practical difficulty if he attempts to do so). As for leaving the realm, it is alleged by some writers that this was originally prohibited at common law in the absence of a royal licence, because it deprived the King of a man' military service. This statement is made by J. W. Hall, Trial of William Joyce, 27; but the only authority quoted is the Shorter Oxford Dictionary, s.v. ‘Passport’, which does not bear it out. The same statement is made by T. B. Ross in an article, ‘Passports’ in (1934), Scots L. T. 85, but again no authority is cited except a remark of Sir Leoline Jenkins in a letter to Sir William Temple (Life of Jenkins ii, 313, quoted in Phillimore, International Law, 3rd ed., (1879), 447). Ross indeed refers to an Act of 1381 (5 Ric. 2, st, 1, c. 2, s. 2), which forbade all persons with certain exceptions to leave the realm without licence; but this Act was repealed in 1606 (4 Jac. 1, c. 1, s. 22) and again, to make doubly sure, by the S.L.R.A. 1863. The rule in question thus appears to have been created not by the judges but by a statute that has long since been repealed.

A more reliable authority on the common law is Blackstone (Comm. i, 265). He states that every one may go abroad without leave of the King, but that this right may be taken away by royal writ (ne exeat regnum). He does not state whether the writ can be addressed to subjects at large or only to individuals, but in practice it seems always to have been used against named individuals only. See, e.g., the instance of the writ in 3 Co.Inst. 179. In any event the writ ne exeat regno (as it was later called) came to be used only as a judicial writ directed against absconding debtors. The Crown has not for many centuries attempted to issue a general prohibition against leaving the realm, except during war (in the late war it was done under the emergency legislation), nor even an individual prohibition except by judicial process against debtors. See now, as to the last, Crown Proceedings Act, 1947, s. 31 (2).

This view of the law is borne out by Ridges’ Constitutional Law (ed. Keith), 152, 309, 383. The Crown's power to impose a general prohibition on exit seems in this work to be confined to war-time; in peace-time the Home Secretary may restrain an individual from leaving the kingdom by the writ ne exeat regno, but this seems to be confined to individuals and to be confined now to defaulting debtors. ‘Thus, in March, 1937, the Crown had no power to forbid a number of clergymen leaving England to investigate religious conditions in Spain, though they were refused any recommendation to the good offices of the British representatives therein’.

It follows from all this that passports obtain legal notice only in connection with such matters as the forgery of passports. See Halsbury, Laws of England, Index s.v. ‘Passport’.

32 Op. cit. 341. The sentence runs: ‘In the case of “protected persons”—such as those from a protectorate or mandated territory—the diplomatic protection which they obtain is not due to any voluntary act of their own (which alone in the case of aliens is an adequate reason for bringing about a duty of individual allegiance), but to a situation which is in the nature of an internationally recognised arrangement in respect of territories which have no locus standi of their own in the international sphere’. Cf. the words of Lord Jowitt: ‘By his own act [Joyce] has maintained the bond which while he was within the realm bound him to his Sovereign’ ([1946] A.C. at 370).

33 E.g., op. cit., 335: ‘Joyce caused the continuation, in a different sphere, of the protection hitherto extended to him by the law;’ 341: ‘an alien… continues to owe allegiance if on leaving the realm he applies for and obtains the continued protection of the Crown’.

34 E.g., op. cit. 341; ‘The consequential duty of allegiance is the result of his voluntary act in asking for a continuation abroad of … protection. [The decision] was that “by the holding of a passport he asserts and maintains the relation in which he formerly stood, claiming the continued protection of the Crown and thereby pledging the continuance of his fidelity” [1946] A.C. at 371’.

35 The phrase used by Lord Jowitt is ‘open enemy’ [1946] A.C. at 368.