CHAP. I. to reside in the United Kingdom or to serve under the PART II. Crown may, at the discretion of a Secretary of State, be granted a certificate of naturalization which carries with it all the rights and obligations of a British subject within the United Kingdom. The intention of the Act, no doubt, is to invest him with like rights and obligations when within the jurisdiction of foreign powers, subject to the important qualification that within the limits of his state of origin he is not to be deemed a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty to that effect. The actual words of the section, however, do not go to this length. The United Kingdom, and the state of which the naturalized alien was previously a subject,' are the only states mentioned. His position in all other countries is left open. At the same time, as these other countries are not expressly excluded, the presumption is that he remains clothed with all the rights of a subject that he has been given in the country of his adoption. It is at least tolerably clear that the executive government may assert for him this position as between itself and foreign governments. A state, as a general rule, must take its information upon the law of a foreign country from the organ which is duly charged with the conduct of external relations; and even if there be a difficulty in the terms of the Act, it is certainly permissible for a British government, in dealing with foreign powers, to take up its ground upon the unquestionable intention. Hitherto the practice has been in accordance with this view, and naturalized persons have been invariably regarded as occupying a position identical with that of natural born subjects of the Crown in all states other than their state of origin 1. 1 The instances would no doubt be extremely rare, if indeed they ever occurred, in which a person after being naturalized in a country PART II. Infant children alized aliens. § 19. The position of the infant children of aliens who become British subjects is another point which is not free from difficulty. Those who become resident in the United of natur- Kingdom with their father, or with their mother if she is a widow at the time of her naturalization, are themselves naturalized British subjects, and no minimum period of residence is prescribed. A like uncertainty therefore presents itself to that which has been seen to envelop the situation of children of British subjects who have been naturalized abroad. But though the uncertainty is similar, the results in practice, and no doubt in law, are unlike. Every country proceeds on the assumption, however illfounded the assumption may be, that in giving its nationality it confers a benefit; and a law conferring a benefit must be interpreted in a sense favourable to the person benefited. A law therefore which grants British national character must be so read as rather to include than to exclude. The period of residence which is wholly insufficient to imprint a foreign character on a child, may be amply long enough to justify him in claiming to be British, or to warrant Great Britain in taking for granted that he is a subject of her own. It is the practice to regard every child, living in the United Kingdom with the father at the date of his naturalization, as being resident; his name is inserted in the father's certificate, and no subsequent question has probably ever been raised as to his naturalization, although he may have ceased, while still an infant, to be resident with the father in the United Kingdom. The Courts not having had an opportunity of settling the other than his own and other than Great Britain, became by a second change of nationality a subject of the latter state; but such cases are possible; it is therefore worth noting that the Act speaks only of 'the foreign state of which' a person 'was a subject previously to obtaining his certificate of naturalization,' so that, upon its bare terms, it would be open to the British government to protect a naturalized subject in his country of origin if he had passed through an intermediate naturalization. CHAP. I. question definitively, the conformity of practice to law is PART II. not of course beyond the reach of question; but there cannot be much room for doubt as to the spirit by which a decision, if one be ever made, will be inspired. The Act is silent as to children, whether born before or after naturalization, who are not, or at least have not been, resident with the father or mother in the United Kingdom. It is to be presumed that they remain aliens. In the case of children of a father or mother residing in the United Kingdom, who have been born abroad before naturalization of the parent, this may not be unreasonable; if a father has not chosen to have his children to live with him during a sufficient part of the five years residence which necessarily precedes British naturalization, it would in the majority of instances be fair to assume that he does not wish them to follow his change of nationality. But when children are born after naturalization there are many probable circumstances in which an assumption to this effect would be manifestly unfair. If, for example, a Frenchman joins an English house of business, is naturalized in Great Britain, goes out to a British colony in charge of a branch of his ́house, has children there, and remains for many years, it is not to be supposed that he wishes to saddle his children. with an exclusive French nationality; and an indubitable hardship is inflicted upon them, if they wish to be British subjects, when they are compelled to come to England for five years after attaining their majority before they are permitted to acquire the status of Englishmen. Cases of like kind might easily be multiplied. It would almost seem as if, by a reaction of timidity from the anterior habit of casting too wide the net of British nationality, the framers of the Act had been not disinclined in this, as in other directions, to relieve the British Crown to as large an extent as possible from the burdensome duty of protection. PART II. Naturali zation in The silence of the Naturalization Act of 1870 gains in significance when the previous state of the law is remembered. The statutes of George II and of George III1 which conferred British nationality upon children and grandchildren born abroad of British subjects, restricted the boon to the issue of natural born subjects; and the Act of 7 and 8 Victoria 2 did not enlarge the scope of the former enactments. The grant, therefore, of a certificate of naturalization, under the Act of 1844, was considered to be personal, and those children only were British who, by being born in the British dominions, were natural born subjects in any case. The Act, moreover, gave to a Secretary of State issuing a certificate of naturalization, the power of imposing restrictions by it; and after 1850 a clause was always inserted excepting any rights and capacities of a natural born British subject, out of and beyond the dominions of the British Crown and the limits thereof.' All children and grandchildren consequently born abroad of persons naturalized before 1870 are aliens. § 20. By the Act of 1870 it is provided that 'all laws, Colonies. statutes, and ordinances which may be duly made by the legislature of any British possession for imparting to any person the privileges, or any of the privileges, of naturalization, to be enjoyed by such person within the limits of such possession, shall within such limits have the authority of law 3. No language follows such as that which in the seventh section leads to the inference that a naturalized British subject must be intended to keep his British character in countries other than that of which he was a subject previously to his naturalization, and in it, also, if he has ceased to own its allegiance. A Colonial Act would seem therefore, on the terms of the Act of 1870, to be operative only within the particular colony in which it has been 1 4 Geo. II, cap. 21; 13 Geo. III, cap. 21. CHAP. I. with protecting natur enacted, and to be incapable of investing a naturalized PART 11. person with the quality of a British subject in foreign states. The Naturalization Act does not however appear Practice to have been read quite in this sense; and it has been the regard to practice to issue passports to the holders of colonial cer- colonially tificates of naturalization, and to protect them in all foreign alized countries other than their country of origin, on the ground, persons in foreign it must be supposed, that when a person is treated as states. a subject for all purposes in any part of the British dominions, it is impossible for the state entirely to wash its hands of him and his affairs the moment that he oversteps the boundary of the empire. as to the may be The feeling is natural; it is even inevitable. At the same time it may well be that foreign tribunals, if called upon to weigh the effect of colonial naturalization, might refuse to regard it as possessing any international value1; and though, as has been already mentioned, when a question Questions arises diplomatically, a government, as between itself and view another government, must generally take its information which concerning the law upon a given point from the organ of taken of a state which is entrusted with the conduct of foreign naturalirelations, there are many contentious matters in which the zation by foreign Courts are first called upon to speak, and their mature governjudgement, save in very exceptional cases, must be supported. It is unfortunate that the Act of 1870 should have been so drawn, either from carelessness or timidity, that foreign tribunals may entertain a very legitimate doubt as to its intention. 1 In a case arising in France it has already been held by the Cour de Cassation (Feb. 14, 1890) that naturalization in a British colony 'ne constitue pas une véritable naturalisation, au sens de l'Article 17, sec. 1, du Code Civil, et ne peut dès lors faire perdre à l'impétrant sa qualité de Français.' The case was one in which the appellant wished to secure advantages from the possession of a French national character; there is no reason to suppose that the decision would have been different if it had been sought to burden him with obligations. colonial ments. |