Chapter VI Aliens cannot take oath of allegiance except to The law of England does not contemplate, except, I believe, in one case, the possibility of an alien taking the oath of allegiance for any other purpose than that of becoming naturalized: s. 9 of the Promissory Oaths Act expressly provides that no persons shall be required or authorised to take the oath of allegiance turalized. except the officers specified in the Act*: and it may be assumed that when the taking of the oath is required on assumption of office, this in itself precludes foreigners from being appointed to the office. become na 44 & 45 The exception above referred to is contained in the Army Vict. c. 58. Act. By s. 95, an alien may, by consent of the King, serve in the army, so long as the number of aliens serving together in any corps does not exceed one in fifty British subjects; though he cannot hold higher rank than that of a warrant or non-commissioned officer. An alien on enlistment would take the oath of allegiance under s. 8o (4). If he is a "negro or person of colour" he is deemed, by s. 95 (2), while serving, to be entitled to all the privileges of a natural-born British subject. The proportion of one in fifty is not observed in the case of negroes or persons of colour. Aliens serving in the army. The law does however contemplate the converse case of a British subject taking the oath of allegiance to a foreign Sovereign without becoming naturalized in the foreign State, and imsee Chapter poses certain penalties for so doing this will be considered in X, connection with the larger question of Ex-patriation. Chapter VIII Does natu alien into a Chapter VIII. Of the Consequences of Naturalisation. The last chapter, dealing more especially with the details of naturalization, proceeded on the usual assumption that naturaliralization zation transformed an alien into a British subject. The reason for transform an this must now be examined, not, it is needless to say, with the subject? object of throwing any doubt upon the question, but because it has an important bearing on the subject of colonial naturalization hereafter to be considered. The word "naturalization" itself gives no clue to its accurate meaning, for, though it has an obvious * and the persons specified in the Clerical Subscription Act, 1865, and the Parliamentary Oaths Act, 1866, or the other Acts mentione 1 in the saving clause, s. 14. reference to the status of the natural-born, it covers the mere Chapter VIII grant to an alien of the rights and duties of a natural-born subject, he remaining an alien, as well as the transformation of an alien into a natural-born subject. ion in Act of Of the many curious points which arise in connexion with Naturalization Act, perhaps the most curious is that it does not No definitcontain any definite statement that naturalization is the process by which an alien becomes a subject. Nor can the word be said to have a well-defined meaning like "denization"; its only meaning is that which the law under which it is granted gives to it in England its meaning has not been constant, and it still varies in each Colony. The Civil Code of France contains this express provision:- Sont Français : 5o. Les étrangers naturalisés. The article then proceeds to declare who can be naturalized. It is this express statement of the prime result of naturalition which is missing from the English statute, so far as s. 7 is concerned. as in the French Civil Code. The intention of the Act is indicated in other sections. Thus, s. 3 deals with the ex-patriation of naturalized aliens, and refers to them as subjects of a State "who have been naturalized as British subjects"; they may "divest themselves of their status as such subjects", and thenceforward are regarded as aliens. And the certificate declares that the person to whom it is granted "is hereby naturalized a British subject ". But this does not carry us any further, for the certificate cannot go beyond the section on which it is based : and "British subject" in s. 3, must be read by the light of s. 7. The child of a father who has been naturalized, who has fulfilled certain conditions, is described in s. 10 (5) naturalized British subject": and it may be that this term is a necessary one to describe the result of naturalization. The first part of the third paragraph of s. 7 merely confers on an alien the rights, powers, and privileges,and imposes the obli- Analysis of gations, of a natural-born British subject. The section does not even begin with the form, " an alien desirous of becoming a British subject may apply for a certificate of naturalization". It is drawn on precisely the same lines as s. 2, which confers on aliens the right to take, acquire, hold, and dispose of real property "in as a s. 7. Chapter VIII the same manner in all respects as a natural-born British subject ". Now, just as this grant does not confer citizenship on the alien, so the grant of further privileges on the alien under s. 7 does not, so far as the actual words used are concerned, of necessity confer complete citizenship. Grant of rights of not necessa The position of an alien enjoying full rights of citizenship subjects does and still remaing an alien, is no more impossible than that of an rily make a alien enjoying some of those rights. Even the addition of the oath subject. of allegiance would not necessarily complete the status of subject, although the presumption is that an alien can only take the oath of allegiance for the purpose of becoming naturalized. But it is not a fundamental principle; and there is an examCase of alien ple of an alien enjoying full rights in the case of negroes enlisting. and persons of colour enlisting in the army, who, as we have [cf. p. 108.] seen, are to be deemed entitled, whilst serving, to all the privileges of a natural-born subject: and the oath of allegiance has to be taken on enlistment. negroes What is wanted is the express enactment in the law that the grant of the certificate and the taking of the oath of allegiance combine to make the alien a British subject. It is only inferentially that the Act says that he is made a “naturalized British subject. The old authorities it is true, always attached this meaning to naturalization, that it was the admission of an alien into the society of the State as a subject: but such a broad definition Variations takes no account of the various degrees of naturalization, and in meaning the existence of these variations makes it a not very useful defi of natura lization. nition for the term as used in the Act. Now that naturalization has been dealt with by statute generally instead of specially, we may reasonably expect to find some indication of intention in the section itself which deals with the certificate. The second part of the third paragraph of s. 7 contains this qualification that the naturalized alien shall not, when within the limits of the foreign State of which he was a subject previously to being naturalized, be deemed to be a British subject unless he had ceased to be a subject of that State in accordance with its laws, or in pursuance of a treaty. In this qualification it seems clearly indicated that in granting naturalization to the subject of a foreign State, it was intended that he should become a British subject: for if it is expressly alien a sub enacted that, under certain conditions, he is not to be deemed a Chapter VIII British subject in a certain State, it follows that if those condi- Intention to tions do not exist, he is to be deemed a British subject in that make the State: and therefore in all other States: and therefore in the United Kingdom. Whether it follows further that he is to be from second part of s. 7. deemed a British subject in the Empire is one of the problems with which the chapter deals. It would therefore seem to be clear that by naturalization into the United Kingdom an alien not only obtains all the rights of, but becomes to all intents and purposes, a natural-born British subject. This is perhaps not exactly the manner in which we should expect to find so important an intention declared. It has more. the appearance of being based on the assumption that the meaning of naturalization is well-known, and that it is that which is in common use. It might possibly be said that it is an incorporation of the common interpretation which is given to the word, just as in the converse case of a British subject being naturalized into a foreign State, it is assumed in s. 6 that naturalization implies becoming a subject of that State : though there, as under English law, the admission of the alien by naturalization may be to some only of the rights of citizenship. If our law were as simple as the French Code, such a discussion as the present would be impossible. But, although we have not yet approached them, we know that there are difficulties connected with the interpretation of s. 7; it is sufficient to mention one-that it is more than doubtful whether the grant of citizenship in the United Kingdom carries with it citizenship throughout the Empire. The mere existence of such a doubt must make us pause before we apply to the term naturalization, as used in the Act, that old meaning which the Judges gave to it at a time when, although the King had many dominions beyond the sea, yet the constitutional and legal relationship between the The interColonies and the Mother Country had hardly begun to attract State beattention. mediate persons tween aliens and subjects The point which it is difficult to grasp is that there should occupied by be some intermediate status between subject and alien: such a person as a subject having only qualified rights of a subject. The argument, based on the construction of s. 7, used above, to show that naturalization does mean that the alien ceases to be Chapter VIII an alien, and becomes a subject, is only the argument lying on the surface of the words. We have yet to see to what degree he becomes a subject, what is meant by a "naturalized British subject"; and in order to do this, the section requires much fuller analysis. How far he becomes a subject under s. 7 needs further examination. Different cases examined question arises. It may be assumed that since 1870, the desire of a foreigner when he applies for a certificate of naturalization is to change his national status, and, by taking the oath of allegiance to the English King, to throw off his allegiance to his former King or State. Presumably familiar with the laws of his own country, he knows whether he will be able to achieve the last part of his desire; but his thoughts being set towards the country of his proposed adoption, it is naturally of importance for him to know what the consequences of his naturalization in the United Kingdom will be whether he will be received a British subject to all intents and purposes. For if the result of naturalization is that his own country casts him off: and if there are limitations to his rights. in his new country after he has become naturalized, what is his position likely to be in a third country, should his business or pleasure take him there? There are three eventualities which will present themselves to his mind what will his position be in the United Kingdom, or in which the the British dominions? What will it be if he finds himself again in his own country? What will it be if he finds himself in other countries? In other words, the result of his becoming a naturalized British subject may vary according as it is to be considered or determined by the authorities, legal or other, of the United Kingdom, or the British dominions of his own country: or of other countries. residence The old national prejudice which prevented naturalized subject accepting any office of trust or profit under the Crown, and forbad the grant to them by the Crown of lands, tenements, and hereditaments, has not yet died away; it still subsists, as we Condition of have seen, in the m atter of their tenure of shares of British ships and law as compelling residence during ownership. Without going deeper to tenure of into the section than the condition of residence which the Act ships shows. that there is imposes, there is in this another important qualification of rights. a difference Assuming these to be the only differences, yet they are important in United not only from the fact of there being differences, but from their Kingdom. nature, which seems to point to some underlying fundamental even |