Chapter XIV provide the seaman with a passage home as soon as possible in any ship, British or foreign, bound as aforesaid. Expenses of burial of In Mauritius the provisions of the articles of the Poor Law already set out as to payment of charges, are extended* to this provision of the Merchant Shipping Act. The term used in the Act is "belongs ": and it is used in connection with sending the sailors "home". It is possible that this question is to be decided irrespective of nationality or colonial origin: but I do not venture to make any suggestion, as both with regard to paupers and sailors, even the simpler issues of the subject are, as we have seen, complicated. Similar questions arise in connection with the burial of British sub- pauper British subjects, and the expenses incurred by British Conjects abroad; suls in that behalf; and also in connection with the expenses of tenance and maintenance and re-patriation of pauper lunatics. and of main re-patriation of lunatics. Chapter XV Chapter XV. Of Colonial Naturalization and Colonial The question discussed in the last chapter leads naturally to the consideration of the power of Colonial Legislatures to deal with naturalization. The Report of the Inter-departmental Committee gives the 35th year of Charles II as a known date for Earliest ex- such a colonial ordinance, and suggests the possibility of even Naturaliza- earlier legislation. It must therefore have been assumed, during a very long period, that laws dealing with naturalization fell within the meaning of the words "peace, order, and good government", by which legislative authority is vested in Colonial Legislatures. tant colonial tion Ordinance. In many Colonies the early legislation would appear to have been special to the individuals naturalized. But this cannot have been the general rule, for the law of Jamaica, the earliest extant law above referred to, passed in 1683, "for encouraging the settlement of the Island ", gave general powers to the Governor to issue instruments of naturalization under the broad seal of the Colony. * Colonial naturalization was not however touched by Parlia- ment till 1847, when an Act for the naturalization of aliens " Chapter XV was passed, with the express object of settling doubts which had Imperial arisen as to the validity of these Colonial laws. It provided also Act of 1847, for the due exercise of the power of naturalizing for the future, and further declared that the Act of 1844 did not apply to the Colonies. The preamble recites that provision had been made by the Legislatures of divers Colonies "for imparting to divers aliens there resident the privileges or some of the privileges of naturalization to be exercised and enjoyed within the limits of such Colonies", and that doubts had arisen as to the competency of the Legislatures to pass such laws; s. I then validates them in general terms as follows: 10 & 11 Vict. c. 83, s. I. All Acts, statutes, and ordinances heretofore made and enacted by validating the Legislatures of any of Her Majesty's Colonies and Possessions abroad existing for imparting to any person or persons the privileges or any of the pri- colonial vileges of naturalization, to be by such person or persons exercised and ordinances. enjoyed within the respective limits of such Colonies or Possessions respectively, shall within such limits have and be taken and reputed to have had from the time of the enactment thereof respectively, all such and the same force and effect as doth by law belong to any other law, statute, or ordinance made or enacted by any such respective Legislatures. There is an initial difficulty in understanding this section. It refers to colonial ordinances passed for imparting the privileges of naturalization "to any person or persons". This would appear at first sight to relate only to special naturalization ordinances: but as general ordinances were in existence at the time, and as Section must the same doubts must have arisen as to their validity, they must apply to have been included in the scope of the validation contemplated well as by this Act. The words "for imparting to any person" must there- ordinances. fore be understood to mean "for regulating the grant to any person". The point is of importance, because, prior to 1844, there was no general legislation in the United Kingdom. Although the Act was, as it professed to be, a validating Act, and was couched in very broad terms, yet it was so drawn as to be at the same time an invalidating Act. It laid down expressly what the provisions of the colonial ordinances must be in order that the validation should apply to them : if there were any which did not satisfy this test, they were outside the Act, and must have been invalidated. The test was, that the privileges of naturalization should general as special Chapter XV profess to have been granted for exercise and enjoyment within the limits of the Colony alone. It is not clear what the doubts Nature of were which led to the passing of the Act: they may have been, examined. as the preamble recites, merely as to whether Colonial Legisla doubts Rule 1847 tures had any power of naturalization at all-if so, it had taken a long time for the doubts to arise: or, it may be, that some Colonies had assumed a wider power, and had granted or professed to grant an unrestricted naturalization, conferring British nationality generally-though of this there do not appear to be any traces: or, it may be, that as in later times, the limited effect of the grants which had been made were not understood by the grantees, and claims to be British subjects beyond, the granting Colony were made, which it was thought advisable to stop for the future by express declaration of Parliament. Nevertheless it is important to realise what the doubt really was; why legislation, which appears to be essentially local, should have been thought to be ultra vires the Colonial Parliaments for on this depends the understanding of the real meaning of the provision of the law, which was not only applied in 1847 to the validation of then existing colonial legislation, but was enacted in identical terms for the future, and was repeated, with verbal alterations only, in 1870. The recital in the preamble shows that the colonial legislation had apparently kept within the principle which the Imperial Parliament sanctioned for the future. There does not appear to have been any patent evasion of constitutional principles; the doubt which existed, and which was resolved in 1847, must have been latent, and it evidently corresponds with the necessity, since and still recognised, for the Parliamentary sanction to colonial naturalization, even hedged in with limitations as it is. ges The sections of the two Acts are as follows: 10 & 11 Vict. c. 83, s. 2. All laws, statutes, and ordinances which shall hereafter be made by the established Legislatures of any of Her Majesty's Colonies or Possessions abroad for by Act of imparting to any person or persons the privileges or any of the privileof naturalization, to be by any such person or persons exercised or enjoyed within the limits of any such Colonies and Possessions respec tively, shall within such limits have the force and authority of law, any law, statute, or usage to the contrary in anywise notwithstanding: provided nevertheless, that all such laws, statutes, and ordinances shall be made and enacted in such manner and form, and subject to and in conformity with all such rules as now are or hereafter may be in force in respect of other laws, statutes, or ordinances enacted by any such Legis- Chapter XV latures respectively, and shall and may be confirmed or disallowed by Her Majesty in such and the same manner, and subject to the same rules and regulations as extend or as shall hereafter extend to the confirmation or disallowance of any other such laws, statutes, or ordinances. 33 & 34 Vict. c. 14, s. 16. All laws, statutes, and ordinances which may be duly made by the by Act of Legislature of any British Possession for imparting to any person the pri- 1870. vileges 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, but shall be subject to be confirmed or disallowed by Her Majesty in the same manner and subject to the same rules in and subject to which Her Majesty has power to confirm or disallow any other laws, statutes, or ordinances in that Possession. There is in the first place, a meaning which lies on the surface of these words, which is not only their commonly accepted mean- Commonly accepted ing, but which also accurately represents the law as it applies to meaning. the most frequently recurring incidents resulting from colonial naturalization. The privileges conferred by it are to be enjoyed only when the person is within the limits of the Colony: when he is beyond the limits of the Colony he ceases to enjoy them. This corresponds with what has been called the narrow construction of s. 7 of the Act of 1870, which limits the effect of the British certificate granted under it to the United Kingdom. Office dix to this Circular despatches have been issued from time to time, lay- Colonial ing down this principle in unmistakeable terms. They deal with despatches. the very practical question of the "good offices and assistance of [see AppenHis Majesty's Representatives abroad ", and point out that per- Part.] sons naturalized in the Colonies are British colonial subjects within that Colony, and are only entitled to those good offices beyond the limits of the Colony "as a matter of courtesy ". This is inserted in the passports; special instructions are also given. that care is to be exercised, "to avoid any appearance of claiming to protect such persons as against the laws of their country of origin". tion of Limiting the enquiry for the moment to what way be called Examinathe superficial meaning of the section, it appears to be no more superficial than an application to naturalization of the constitutional prin- meaning of ciples which govern colonial legislation generally. If however we assume that "naturalization" connotes the granting of the status of "British subject" on the person naturalized, the result of colonial naturalization would be to confer S. 16. Chapter XV on the person the status of "subject" for which he would claim universal recognition wherever he might be. Territorial nature of colonial legislation. Examples of colonial provisions. Law of Jamaica, 1638. Law of Ba But the powers of Colonial Legislatures are strictly territorial: not only can they not legislate for persons not within their limits, but they cannot confer rights to be exercised, nor impose duties to be performed, outside those limits. It follows therefore that they cannot invest a person with a status which would inevitably carry with it rights and duties beyond the Colony: such a status as that of British subject is. If therefore they have any right to naturalize at all, the grant of the privilege must be couched in such language as to leave no doubt that it is subject to this fundamental principle. Yet if any colonial ordinance had done more than this, had professed to give an effect to its certificate beyond the limits of the Colony, there could have been no doubt at all, but only certainty, that the ordinance was ultra vires. The doubt seems now to be taking definite shape: Is it possible that the status of subject can be limited strictly to one part of the dominions? It will be convenient now to see how Colonial Legislatures have dealt with the subject. By the law of Jamaica*, foreigners who were already settled in the island, or who intended to settle and plant in it, might be to all intents and purposes fully and completely naturalized"; and they were to have and enjoy to them and their heirs the same immunities and rights of and unto the laws and privileges of this Island, in as full and ample manner as any of His Majesty's natural-born subjects have or enjoy within the same, or as if they themselves had been born within any of His Majesty's realms or dominions. The law of Bahamas, passed in 1848, immediately after the hamas, 1848. Act of 11 & 12 Victoria, provided that on obtaining the certificate and taking the oath of allegiance. every alien now residing in, or who shall hereafter come to reside in any part of this Colony, shall enjoy within the Colony, all the rights and capacities which a natural-born subject of the United Kingdom can enjoy, or transmit within the said Colony. * For the purpose of illustrating this chapter by references to colonial legislation I have availed myself of the collection given in the Appendix to the Report of the Inter-departmental Committee. I had already obtained through the courtesy of many Law Officers copies of colonial ordinances, but the collection I had thus made was unfortunately not complete. I have therefore been compelled to have recourse to what has been published by the Committee : but to as limited an extent as possible; for, although it is published in a Blue Book, and therefore for the use of the public, |