57 & 58 Vict. c. 60, s. 1.

Qualification for own ing British ship.

Chapter VII A ship shall not be deemed to be a British ship unless owned wholly by persons of the following description (in this Ownership Act referred to as persons qualified to be owners of British of British ships), namely,

*

(b) persons naturalized by or in pursuance of an Act of Parliament of the United Kingdom, or by or in pursuance of an Act or Ordinance of the proper legislative authority in a British possession :

(ii) has been naturalized...as aforesaid :

shall not be qualified to be owner of a British ship unless,...on or after being naturalized...as aforesaid, he has taken the oath of allegiance to His Majesty the King, and is during the time he is owner of the ship either resident in His Majesty's dominions, or partner in a firm actually carrying on business in His Majesty's dominions.

ships by persons naturalized,

by M.S.Act.

In such a case as I have supposed therefore, the fulfilment of dealt with the fraudulent intention not to reside if carried out, would defeat the very object of the fraud, for the ownership would come to an end, and sections 28 and 29 of the same Act provide an effective means for stiking off the register names of persons not properly entitled to be owners.

tion of the

of ces of fraud

ob

from the

point of view of Law.

of Courts

But there are other privileges limited to British subjects. It is quite conceivable that the question should arise in connection with the right to vote, as, for example, on the trial of an election Examinapetition that one of the voters was an alien who had obtained consequena certificate of naturalization by means of fraud. In support the petition evidence is adduced to show that the object of taining the naturalization was merely to gain the right to vote that the intention to reside never in reality existed: that the statements in the declarations of the householders were false, that (to take an extreme case) they were not themselves British subjects, but that the whole proceedings were part of a scheme of disloyalty. It is not unreasonable to suppose that in such a case, the fraud being established, the Court would extend to If fraud in administrative acts that wide doctrine which Lord de Grey laid obtaining down in the Duchess of Kingston's case,-" Fraud vitiates even proved, the most solemn proceedings of Courts of Justice."

certificate

Courts might possiand bly ignore it. Act (20 St. Tr.:

2 Sm. L. C.

The omission of the subject from the first Act of 1870, the fact that fraud is expressly dealt with in the amending of the same year, may be conclusive to prove that there is no 770.] power of cancellation: that is, as between the State and the

Where

Chapter VII person to whom the certificate has been granted. But it is submitted that the question is not precisely the same when the rights of rights of third persons are concerned. I do not propose to argue third parties intervene the the point at length, but merely to draw attention to a specific question is case of fraud in order to show that a question may be involved in not precisely which parties, other than those immediately concerned, may be interested.

the same.

Power to

cancel certi

In some Colonies express power of cancellation is taken in the local legislation. But the whole question of colonial naturaficate in Co-lization stands upon a different footing to that of the United lonial laws. Kingdom, and the question must be reserved till we come to the [see Chapter chapter dealing with that subject.

XV.]

Historical aspect of the

NOTE.

The Report of the Inter-departmental Committee contains some question of interesting information on this subject, which I venture quote

cancellation for fraud. Inter- departmental Report.

Cutler on Naturalization.

[p. 8.].

[p. 28.1

The Act [of 1844] made it the duty of the Secretary of State to inquire into the circumstances of each case, to consider the memorial, and the grant or refusal of the certificate was in his discretion. In 1856 the Secretary of State was advised that it would be lawful to insert in certificates of naturalization a clause to the effect that such certificates were granted upon condition that the grantees should continue to reside permanently in the United Kingdom, and that the certificates should be determinable on the grantee ceasing so to reside This advice was acted on, but the practice of granting conditional certificates of naturalization was disapproved by the Royal Commissioners of 1869, and ceased upon the repeal of the Act of 1844 by the Act of 1870.

The Secretary of State has been advised that a certificate under the latter Act is not revocable on the ground of having been obtainded by fraud, and that is not competent for him to annex any condition, as to residence or otherwise, providing for the avoidance of the certificate for breach of the condition."

I take also the following from Mr. Cutler's little book, published shortly after the Act of 1870 was passed.

In the certificate granted under the Act of 1844, the condition as to permanent residence was thus expressed-that the grantee "should continue to reside permanently within the United Kingdom, and that if at any time thereafter he should voluntarily be absent for a period of six months, without licence in writing under the hand of one of Her Majesty's Principal Secretaries of State, he should be deemed to have ceased to reside permanently within the United Kingdom and then and in such cases the certificate and all the rights and capacities thereby granted should cease and determine ".

This condition was inserted in virtue of the large powers with which the Secretary of State was invested as to imposing conditions in granting the certificate.

"In the bill as read a second time last session, there was a section

The third paragraph of s. 7 imposes a limitation on the effect Chapter VII of the cert ficate when granted the matter is very important, and it must form the subject of a separate chapter.

VIII.

certificate to

[see Chapter The fourth paragraph deals with quite a different subject Grant of from those which precede it: the settlement of doubts as to na- remove tiona'ity. This, together with the Legitimacy Declaration Act doubts. 1858, will also be considered in a special chapter.

The fifth and last paragraph reverts to the simple certificate of naturalization, allowing it to be granted to aliens who had already been naturalized prior to the coming into force of the Act.

€3 & 34 Vict. c. 14, s. 7: [5th. para.]

[see Chapter

XIII.

turalized be

An alien who has been naturalized previously to the passing of this Grant of Act may apply to the Secretary of State for a certificate of naturaliza- certificate to tion under this Act, and it shall be lawful for the said Secretary of State Persons de to grant such certificate to such naturalized alien upon the same terms, fore the Act. and subject to the same conditions, in and upon which such certificate might have been granted if such alien had not been previously naturalized in the United Kingdom.

XI-Re

certificate

The object of this provision was to enable persons who possessed the limited certificate allowed by the Act of 1844, to obtain the new certificate authorised by the Act of 1870. It deals with a case which is the converse of that dealt with in s. 6(1), that of British subjects already naturalized in foreign countries who [see Chapter were nevertheless desirous of remaining British subjects. In patriation.] that case the limit of time for making the necessary declaration was two years, whereas under this paragraph there is no such limit within which the application has to be made. The application for the new certificate was therefore optional, and as the Application repeal of the Act of 1844 was made subject to the usual condi- for new tiɔn, that it did not affect any right previously acquired, and as optional. there is no other provision dealing with the old certificates, the result must have been that for many years after 1870, both kinds of certificates must have been in existence-perhaps are so still. A question arises as to whether children born abroad of persons empowering a Secretary of State to revoke a certificate of naturali- NOTE on zation on its appearing to him that the grantee thereof has resided cancellation out of Her Majesty's dominions for a term exceeding two years, and that for fraud, he intends permanently so to reside; or on its appearing to him that the contd. grantee of such certificate has acted in a manner inconsistent with his allegiance as a British subject'. This section, in consequence of the objections made to it, was struck out during the passage of the bill through Parliament, and therefore a certificate of naturalization granted under the Act is irrevocable."

Children of persons na

turalized.

Chapter VII naturalized are entitled to the benefit of the statutes of George II and George III. If they are so entitled, we shall have to consider whether the same principle applies to the children of persons possessed of certificates under the Act of 1844, which were not exchanged for the new certificates of 1870. But it is necessary first to study the words of s. 7 very carefully, and this I propose to do in the next chapter: a comparison of the two certificates is involved in the enquiry.

Statutory references

to persons

naturalized.

There are occasional references to naturalized persons in Acts of Parliament in conjunction with natural-born subjects, similar to these already mentioned as to denizens. Thus, in the Constitution Acts of New South Wales and Victoria, which are embodied in the schedules to 18 & 19 Vict. cc. 54 and 55 respectively, the qualification of persons entitled who may be summoned to the Legislative Councils of the Colonies is limited to those who are natural-born subjects or naturalized "by Imperial or Colonial Act" in the first case, "by law" in the second and this is still the law, as the Constitutions of the States are preSched. s. 106,Served by the Commonwealth Act, 1900.

63 & 64 Vict. c. 12:

24 & 25 Vict.

C. 121.

Oath of allegiance

complete naturalization.

The provisions of the Merchant Shipping Act 1894, with regard to the ownership of British ships by naturalized persons, have already been set out.

There is a provision in s. 3 of the Domicile Act of 1851, to the effect that the Act is not to apply to foreigners who have been naturalized in any part of the dominions. The meaning of the section is far from clear, and will be discussed at a later stage. I do not think that there are any other references to naturalized subjects in the English statutes.

THE OATH OF ALLEGIANCE.

Naturalization is not complete until the oath of allegiance to necessary to the King has been taken. Under the Act of 1844, the oath was to be taken within 60 days of the date of the certificate, failing which it was, presumably, not issued and cancelled. The 2nd. para. of s. 7 of the Act of 1870 provides that the certificate "shall not take effect until the applicant has taken the oath of allegiance ", the form of which is prescribed in s. 9.

Form of oath.

33 & 34 Vict. c. 14, s. 9.

The oath in this Act referred to as the oath of allegiance shall be in the form following: that is to say,

"I. do swear that I will be faithful and bear true al'e- Chapter VII giance to His Majesty King Edward VII, His Heirs and Successors, according to law.

So help me God ".

By the Naturalization Oaths Act 1870, power is conferred on the Secretary of State to make regulations with regard to oaths, under the conditions prescribed for other regulations by s. II.

33 & 34 Vict. c. 102, s. 1.

as to oaths.

The power of making regulations vested in one of Her Majesty's Regulations Principal Secretaries of State by the Naturalization Act, 1870, shall extend to prescribing as follows:

(1) The persons by whom the oaths of allegiance may be administered under the Act:

(2) Whether or not such oaths are to be subscribed as well as taken, and the form in which such taking and subscription are to be attested: (3) The registration of such oaths:

(4) The persons by whom certified copies of such oaths may be given:

(5) The transmission to the United Kingdom for the purpose of registration or safe keeping or of being produced as evidence of any oaths taken in pursuance of the said Act out of the United Kingdom, or of any copies of such oaths, also of copies of entries of such oaths contained in any register kept out of the United Kingdom in pursuance of this Act:

(6) The proof in any legal proceeding of such oaths:

(7) With the consent of the Treasury, the imposition and application of fees in respect of the administration or registration of any such oath.

The two last paragraphs in the eleventh section of the Naturalization Act, 1870, shall apply to regulations made under this Act.

[see Chapter

The last paragraph of the section refers to the effect and XVII.] operation of these regulations in the Colonies: a subject which will be considered presently.

affirmation

c. 72.

By s. 3 of the Interpretation Act, 1889, the word " oath ", in Solemn the case of persons for the time being allowed by law to affirm or in lieu of declare instead of swearing, includes affirmation or declaration, oath. and "swear" includes affirm and declare. An affirmation of allegeance may therefore be substituted by such persons for the oath 31&32 Vict. of allegiance. Although the Promissory Oaths Acts, 1868, expressly provides that nothing in the Act shall affect "the oath taken by aliens on being naturalized," [s. 14 (8)] the form of affirmation for allegiance may be borrowed from s. 11 of that Act: that is to say, the words "solemnly, sincerely, and truly declare and affirm" will be substituted for the word swear", and the words " So help me God" will be omitted.