[93]. It is worth notice that an action may be purely penal even though the penalty is payable to the person injured. It is enough in such a case that the receipt of the penalty should not be reckoned as or towards the compensation of the recipient. A good example of this is the Roman actio furti by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice nevertheless to a further action for the recovery of the goods themselves or their value.
[94]. I. Samuel, viii. 20.
[95]. English Works, II. 76: “Both swords, therefore, as well this of war as that of justice, ... essentially do belong to the chief command.”
[96]. “The primary function of the state,” says Herbert Spencer (Principles of Ethics II. 204. 208. 214) “or of that agency in which the powers of the state are centralised, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is national defence. What we may consider as measures to maintain inter-tribal justice, are more imperative, and come earlier, than measures to maintain justice among individuals.... Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the function of protecting against external enemies.... With the progress of civilisation the administration of justice continues to extend and to become more efficient.... Between these essential functions and all other functions there is a division, which, though it cannot in all cases be drawn with precision, is yet broadly marked.”
[97]. It is to be noted that the term war is commonly applied only to the more extreme forms of extrajudicial force. Rioting would not be termed civil war, although the difference between them is merely one of degree. Nor would the punitive expedition of an armed cruiser against a village in the South Sea Islands be dignified with the name of war, though it differs only in degree from the blockade or bombardment of the ports of a civilised state. To be perfectly accurate, therefore, we should oppose the administration of justice not to war, but to the extrajudicial use of force, counting war as the most important species of the latter. War, however, so greatly overshadows in importance all other forms of such force, that it is more convenient to take it as representing the genus, and to disregard the others.
[98]. The prohibition of the use of extrajudicial force by the King against his subjects is one of the main provisions of Magna Carta (sec. 39): “No free man shall be taken or imprisoned or disseized or outlawed or exiled or anyways destroyed, nor will we go against him, nor will we send against him, save by the lawful judgment of his peers, or by the law of the land.” It is submitted that, subject only to the jus necessitatis, this is still the law of England, notwithstanding the doctrine of military absolutism laid down by Lord Halsbury, in the name of the Privy Council, in the case of Ex parte Marais, (1902) A. C, 109.
[99]. On the original identity and gradual differentiation of the two functions of the state, see Spencer’s Sociology, II. pp. 493 sqq. “The sword of justice,” he says at p. 494, “is a phrase sufficiently indicating the truth that action against the public enemy and action against the private enemy are in the last resort the same.”
[100]. Speaking generally, we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalence, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturalisation a citizen of the United States of America or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than its correlative obligations, while the reverse is the case with the term subject. Finally it is to be noticed that the term subject is capable of a different and wider application, in which it includes all members of the body politic, whether they are citizens (i.e. subjects stricto sensu) or resident aliens. All such persons are subjects, as being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience. Thus it has been said that: “Every alien coming into a British colony becomes temporarily a subject of the Crown—bound by, subject to, and entitled to the benefit of the laws which affect all British subjects.” Low v. Routledge, 1 Ch. App. at p. 47. See also Jeffreys v. Boosey, 4 H. L. C. 815. So in Hale’s Pleas of the Crown, I. 542, it is said: “Though the statute speaks of the king’s subjects, it extends to aliens, ... for though they are not the king’s natural born subjects, they are the king’s subjects when in England by a local allegiance.”
[101]. The possession of political rights is so characteristic and important a feature of citizenship, that some may be tempted to regard it as the essence of the matter. This, however, is not so. Women have no political rights, yet a wife is as much a British subject as her husband is. The distinction between subject and alien may exist under a despotic government, neither class possessing any political rights at all.
[102]. British nationality is acquired in the following ways:—