24

bridge v. The Post-Master General, furnish instances of where the heads of Departments of State, which are but corporate Government agencies with powers and duties which originally were limited to private enterprise, are protected by the "shield of the Crown" to use an expression of Lord Cranworth in Mersey Dock Trustees v. Cameron.25 In the case first in this list, Whitfield v. Lord De Spencer, an action in case was brought against the Post-MasterGeneral for a bank note stolen by one of the sorters out of a letter delivered into the post office, it was held, per Lord Mansfield, that the action did not lie, although an action on the case lay without doubt against the party really offending. The position of the post-master was considered by him as being in no circumstance similar to that of the common carrier; but he is like all other public officers, such as the "Lord Commissioners of the Treasury, the Commissioners of the Customs and Excise, the Auditor of the Exchequer, &c., who were never thought liable for any negligence or misconduct of the inferior officers in their several departments."

In Kinloch v. Secretary of State for India, it was held that the defendant was merely the agent of the Sovereign to distribute certain booty of war among persons found to be entitled to a share of the same, himself being authorized to finally determine doubts unless Her Majesty should otherwise order, and that he was not liable to account to any of the parties found entitled. The defendant's accountability for the discharge of his duty was to Parliament and to the Sovereign.

In Raleigh v. Goschen, which was an action of trespass against the defendant and five other persons named in the writ and described as the Lords Commissioners of the Admiralty, and Major E. Raban, the Director-General of Naval Works, for the purpose of establishing that the Lords of the Admiralty were not entitled to enter upon certain property of the plaintiff or acquire it by way of compulsory purchase, for the purpose of erecting thereon a training college for naval cadets, and claiming damages and an injunction to restrain further trespass, it was held that the action against such an official body was misconceived and would not lie.

Romer, J., in stating principles applicable to the case said at p. 77:

"I think it is clear that the head of a Government Department is not liable for the neglect or torts of olicials in the Department, unless it can be shown that the act complained of was substantially the act of the head himself, in which case he would be liable as an individual just as a stranger committing the same act would be."

On the same page he previously instances what would make the act complained of substantially the act of the head himself, by remarking that if the act had been committed by a subordinate officer of a Government Department of the Crown, by the order of a superior official, that Superior even if he were the head of the department in which the subordinate official was employed, could be sued.

In Bainbridge v. The Post-Master General 26 the same rule was followed, it being held in that case that the PostMaster-General is not liable in his official capacity, as head of a telegraph department of the Post Office for wrongful acts done by his subordinates in carrying on the business of the department.

In Roper v. Public Works Commissioners 27 it was argued that inasmuch as corporations can act only by their agents they are liable for the acts of their agents within the scope of their agency, but Shearman, J., held that the rule that servants of the Crown are not liable to be sued in their official capacity for torts committed by them is unaffected by the fact that they are incorporated, following the judgment of Collins, M.R., in Bainbridge v. The Post-Master General, who after carefully considering the authorities came to the conclusion that the presence or absence of incorporation made no difference to the proposition that the heads of Government departments are not responsible for the acts of subordinates.

Needless to say that the immunities or privileges enjoyed by the Crown and its Government officers in England are also enjoyed by the Crown and its Government agencies in the colonies so far as the same are not controlled or regulated by colonial statutes.

20 [1906] 1 K. B. 178. " [1915] 1 K. B. 45.

As to contracts made by a public servant on behalf of the Crown the rule is that he is not personally liable: Macbeath v. Haldimand 28; Palmer v. Hutchison 20; Dunn v. Macdonald.30 Chitty on Contracts, 16th ed., at p. 345, states the general rule to be that a public officer, acting on behalf of a known department of the State and in discharge of duties incident to his public employment is not liable personally upon contracts made by him in that capacity. Redress for breach of such contracts and damages therefor lies by petition of right the procedure in which is now regulated both in England and the colonies by statute.

28 1 T. R. 176.

29 (1881) 6 App. Cas. 619.

30 [1897] 1 Q. B. 555.

LEX.

MARRIAGE AND NATIONALITY.1

The present disastrous war has brought to the fore many questions connected with nationality; of these probably none is so full of interest and often so awkward in its consequences as, the now almost universal rule that (although marriage in no case affects the nationality of a man) a wife upon marriage takes the nationality of her husband. This rule has in many cases undoubtedly operated harshly where British women married to Germans have found the result to be that their husbands have been interned while they themselves have been subjected to the stringent regulations issued under the Defence of the Realm Acts and other British and Colonial laws affecting alien enemies. It is proposed in the following pages to give an account of British law on the effect of marriage on Nationality, premising it by saying that since both the Naturalization Act, 1870, and the British Nationality and Status of Aliens Act, 1914, are Imperial statutes, applying not only to the United Kingdom but also to all the Colonies, such subject is of as much interest to British subjects beyond the seas as to those born within the kingdom. Following this account, the law of the United States on the subject will be briefly noticed.

I. BRITISH LAW.

(a)-Marriage.-By the common law of England no person was a British subject except he or she were born on British soil, so that by old English law, which in this respect followed Roman law, marriage had no effect on the nationality of the wife, either to make a foreign woman English or an English woman foreign. An English woman could not put off her allegiance by becoming the wife of an alien, for nemo potest exuere patriam was a hard-and-fast rule. The common law on the subject is well expressed in the Countess of Conway's case2 by Baron Parke when he says: "A French woman becomes in no way a British subject by marrying an Englishman; she continues an alien and is not entitled to dower": (see also Piggott, Nationality I., p. 57; Cockburn, Nationality, p. 11). This state of things continued until the year 1844 when by the Aliens Act of that

Written specially for the Canadian Law Times. 2 2 Knapp 368.

year (7 & 8 Vict,, ch. 66, sec. 16) a partial alteration in the law was effected by the provision that any woman married to a natural-born British subject or person naturalized should be deemed to be herself naturalized and to have all the rights and privileges of a natural-born British subject. It will be remembered that at this time there was no means by which a British subject could expatriate himself by becoming naturalized in a foreign country, so that it is not extraordinary that the Act of 1844 contained no provision for the case of a woman (being a British subject) marrying an alien. Therefore her status remained governed by the common law and whatever may have been the effect of her marriage according to the law of her husband's 'state,' she did not lose her British nationality.

The Naturalization Act, 1870, entirely abrogated the common law rule and brought English law into line with that of most other countries which long before had ascribed to a wife the nationality of her husband. It was provided by sec. 10 that a married woman should be deemed to be a subject of the State of which her husband is for the time being a subject. It should be noted that this provision was only an extension of the rule first recognized by the Act that British subjects could by becoming naturalized in a foreign State shake off their British nationality and with it their allegiance; and the acquisition ipso facto by marriage of the husband's nationality by the wife is after all a species of naturalization. Prior to this enactment, the result of a British born woman marrying an alien by the law of whose State she acquired his nationality was to endow her with double nationality since she did not lose her British nationality.

The Naturalization Act of 1870 was repealed by the British Nationality and Status of Aliens Act, 1914, and sec. 10 of the latter Act (replacing sec. 10 of the Act of 1870) provides that the wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien.' There then follows a very important proviso and one which may be of great benefit to the wife; for under the Act of 1870 a wife not only took her husband's nationality at the time of marriage, but her nationality also could be changed by him after marriage simply by his changing his own. Her wishes could have been overruled. Now, however, sec. 10 provides that