tions of Act may be which it provides for carrying the convention into effect is con- Chapter XVI ceived on the same principle. The Act has been careful to provide that the declaration of alienage may be made as well in the DeclaraColonies as in the United Kingdom. This recognises the fact that alienaage some persons desirous of availing themselves of the convention under U.K. may be resident in the Colonies: and the whole theory on which made in the Act is based, points to the conclusion that these would be persons naturalized in the Colony in which they are resident. The English section therefore covers the whole ground, and it is submitted that the Canadian section, from this point of view also, is unnecessary. The fifth section of the Canadian Act is still more difficult to understand. It allows the declaration of alienage to be made in the United Kingdom, in a Colony or abroad, in the same terms as in the second part of s. 3 of the English Act. Quite apart from the question whether the section itself is necessary, this provision would seem to be in excess of the territorial legislative powers of a Colony. Declaration of alienage in Canada by natural-born This section, which reproduces textually s. 4 [U.K.], in no way deals with the privileges of naturalization. It is more than doubtful whether it does not fall outside the general powers of a Colonial Legislature. The question involved is, whether the fact that colonial naturalization may create a limited British nationality makes an alienage limited to the Colony possible. Colonies. double na cannot be What the section professes to do is to give relief against the Relief double nationality created by the common law, in so far as Ca- against nada is concerned, in the same way as relief is given under simi- tionality relar circumstances by the Imperial Act. But what it actually does common law sulting from is to alter the law of British nationality in its application to Ca- granted by nada. The effect of the section is to allow the British subject to Colony. elect between his two allegiances, and to withdraw from his British allegiance only so far as Canada is concerned. It is more than doubtful whether a Colony can do this, even supposing the effect could be limited to the Colony itself. An incidental consequence would be that he would withdraw himself from the operation of those general extra-territorial laws of the United Kingdom which, though not extended to the Colonies, apply to Chapter XVI British subjects beyond the United Kingdom. Alienage would therefore seem from its nature to be incapable of intermittent application. But apart from what appear to be the two inherent vices of the section, these other grounds militate against it: the question is fully dealt with by the English Act: alienage is not a subject for colonial legislation. of common In the consideration of s. 4 [U. K.], birth within the United Kingdom was alone taken account of: but now that the question of nationality by birth in the dominions has been settled, the full effect of that section may be considered. It is based on the broad English Act fact that birth within the dominions makes a person a naturalcontemplates the case born British subject: therefore a person who is natural-born owing to birth in Canada comes within the section, and he may lity result- make the declaration "in manner aforesaid": that is, as provided ing from birth in in s. 3 [U. K.]. The Imperial Act has recognised that the condiColony. tions of the question with which the section is dealing are such, that it is necessary to provide means for persons to avail themselves of it in the Colonies: it has therefore provided that in this case also, the declaration of aliena ge may be made in the Colonies Therefore, not only is the case contemplated by the Canadian Act already provided for, but also the machinery for giving effect to the provision. declaration The Canadian section in like manner refers to the provisions Confusion of s. 5 [C] for making the declaration out of Canada. This is resulting from Cana- still more difficult to understand than in former case, and leads to dian provision that this strange result: the consequence of a declaration of alienage made in Canada under the Imperial Act is, that the person ceases to be a British subject generally whereas the intended conseKingdom. quence of a declaration made in the United Kingdom under the Canadian Act is, that the person should cease to be a British subject only in Canada. may be made in United The second part of s. 6 [C] reproduces the second part of s. 4 [U. K.), which deals with the relief from double nationality caused by the statute law. It is difficult enough to understand in the English Act, and it would profit little to add to the existing complexity by a further discussion as to its possible effect in the Canadian Act. Alienage in Canada of British subject naturalised Chapter XVI in a foreign State [Canadian Act, s. 7]. the domi This section corresponds with s. 6 [U. K.], but it is very difficult to follow. Every British subject who becomes naturalized Ex-patriain a foreign State is deemed by the Imperial Act to have become tion under English Act ex-patriated, for it is expressly provided that he has ceased to be takes effect a British subject: which must mean that he is not a British sub- throughout ject in any part of the dominions. It is difficult therefore to find nions. the reason for the provision in the Canadian Act that "within Canada" he shall be deemed "to have ceased to be a British subject, and shall be regarded as an alien ". It is the same question which has arisen under the other sections, in yet another form and, as in those sections, it would appear that the matter is fully dealt with by the English Act. : Canadian Act treats The second part of the Canadian section, as the alteration of the sectional heading from “Ex-patriation " to "Re-patriation” shows, misses entirely the meaning and object of the proviso to s. 6 [U. K.], on which it is modelled. There had been a complete change effected in the meaning of naturalization in a foreign State. Ex-patriation had never been possible in English law till it was introduced by the Act of 1870, and a provision was insert- proviso of s. 6 [U.K.] ed dealing with existing certificates, enabling them by a declara- as re-patriation. tion of nationality to be got rid of, the person remaining a remaining a British subject or in the absence of such a declaration, to become equivalent to the new certificates: clearly not a question of re-patriation. The effect of the proviso to s. 6 [U. K.] on the Colonies was, that persons who made the declaration of British nationality remained British subjects, while those who did not became aliens, throughout the dominions. Nothing connected with colonial naturalization was involved, but merely a special question of nationality which arose in consequence of the Act of 1870, and it is difficult to find any reason to justify a similar provision in a colonial Act. Apart from this, however, the naturalization of British subjects in foreign countries cannot concern the Colonies. To attach consequences to ex-patriation, even limited to the Colony, in no way falls within the powers of a Colonial Legislature. Naturalization of aliens in Canada. [Canadian Act, These sections deal with the grant and effect of the certifi Canadian Chapter XVI cate of naturalization. The period of prior residence required is three years. The qualification of the effect of the certificate in naturaliza- the person's former State is introduced : the meaning of this has already been considered. tion. [cf. p. 242.] Quieting of doubtful na Certificate of naturalization where nationality is doubtful. [Canadian Act, s. 16]. This section reproduces the third paragraph of s. 7 [U. K.], tionality in and it will be similarly interpreted. The certificate having no efCanada by, fect outside Canada, the doubts as to British nationality will ficate of na- only be quieted in Canada. Special certi turalization. [see Chapter XIII Doubtful whether Colonial Act to British The section as we have seen, deals with naturalization and not with nationality: it falls, therefore, within the colonial powers of legislation granted by s. 16 [U. K.]. Re-admission of statutory aliens to British nationality in Canada. [Canadian Act, ss. 18, 19.] These sections deal with re-patriation in the same way as it is dealt with in s. 8 [U. K.]: the definition of "statutory alien " can re-admit is however removed from the section, where it stands in the Ennationality, glish Act, to the definition clause; but it is doubtful whether this makes the question who are statuory aliens any clearer. But this section seems also to fall within the general rule that nationality cannot be dealt with by a Colony, except as it may result from naturalization; nor does it come within the terms of s. 16 [U.K.]. For though the conditions on which they are granted are the [see Chap- same, there is the fundamental difference which has already been explained, between the certificate of re-admission to British nationality, and a certificate of admission to the rights of a British subject, in other words, a certificate of naturalization. ter XI. Provision Conventions with foreign States requiring a special period of residence in Canada. [Canadian Act, s. 20.] This section introduces a subject which is foreign to the English Act, but does not present any difficulty. It pre-supposes a convention between Great Britain and a foreign Power" to the for modify effect that the subjects of that State who have been naturalized ing period of residence in as British subjects may divest themselves of their status as subwhere requi-jects of such foreign State. " This means a convention for the red by na mutual recognition of naturalization, and consequent expatriaconvention. tion, and differs essentially from the conventions dealt with in Canada turalization s. 4 [C] and s.3 [U.K.], which are for the mutual recognition of re patriation into the naturalized person's former State. The section Chapter XVI then proceeds: When such a convention or the laws of the foreign State require residence in Canada of more than three years as a condition precedent to such subjects divesting themselves of their status as such foreign subjects", the Canadian law, which only requires three years residence, is to be modified accordingly. Subjects of the contracting State who have already been naturalized under the three years rule, are to be allowed to come in under the convention by s. 21 [C], on fulfilling the conditions. laid down. married Status of married women. [Canadian Act, s. 22.] This section reproduces s. 10 (1) [U. K.], and lays down the Status of broad principle that married women in Canada are to be deemed women an imperial not subjects of the State to which their husbands belong. These ap- colonial pear to be three reasons which militate against the validity of question. this section: first, it deals with nationality: secondly, it certainly is not within s. 16 [U. K.] : thirdly, even assuming it to be within. the legislative powers of a Colony, it overlaps the English Act, and is therefore unnecessary. It has been pointed out that s. 10 (1) [cf. p. 57.] [U.K.] has a twofold operation: it applies to a foreign woman marrying a British subject, and also to a British woman marrying a foreigner. It is therefore declaratory both of nationality and also of alienage: and, for reasons already given, it is submitted that both the rules it establishes are applicable thoughout the dominions. as to nation widows and The provisions of s. 10 (2), (3), and (4) [U.K.], are reproduced in ss. 23, 24 and 25 [C.]. They deal with the re-admission Provisions of widows to British nationality within Canada: with the alie- of U.K. Act nage within Canada of children of British subjects who have ality of become aliens in pursuance of the Act: and with the resumption children of British nationality within Canada of the children of aliens reproduced: who have been re-admitted to British nationality within Canada, doubtful validity. The remarks which have been already made apply to all these provisions, which seem of doubtful validity. but of persons The provision as to the children of persons who are natura- Children of lized in Canada, s. 26 [C] reproducing s. 10 (5) [U.K.], that they naturalized also shall be deemed to be naturalized British subjects within in Canada Canada, falls naturally within the powers of naturalization grant-lized. ed to the Colonies. also natura |