Chapter XVII Convention Chapter XVII. Of the Conventions with the United States. The Naturalization Act became law on 12th. May 1870, and on the 13th., a convention "Relative to Naturalization", between with United Great Britain and the United States of America, was signed in States pass-London, so bringing to a conclusion the long-standing dispute ed on the day follow between the two countries, an outline of which will be found in ing the coming into Sir Alexander Cockburn's " Nationality". force of the Act of 1870; in order to settle difficulties which had arisen in The object of this convention was to settle the troublesome questions of nationality which past emigration had produced, and to lay down principles for the future. Although the Act contemplates the settlement of many matters by treaty, this convention with the United States is the only one which has been entered into. It is important not merely because it establishes the law as between the two countries, but also because some of the provisions do not seem to be quite in harmony with the principles established by the Act. I shall however content myself with pointing out these divergencies as they arise, without pursuing the matter further. The extension of the convention to the dominions also raises very important issues. It is perhaps to be regretted that the Act of 1872, which settled doubts as to one of the articles, did not extend to the whole convention. The articles are reciprocal, being drafted in two parts. Each part however depends on a different section of the Act, according as it deals with British subjects or citizens of the States. I propose therefore to examine the two parts of each article separately. Preamble. The object of the convention is declared to be "to regulate the citizenship of British subjects who have emigrated to, or who may emigrate" to the United States: and conversely, the citiconsequence zenship of citizens of the United States who have emigrated to, or of emigra- who may emigrate to the British dominions. The settlement of the two the difficulties which had arisen from the law as it was prior to 1870 was therefore the manifest object of the convention; the Act just passed would, it was hoped, with the convention as its auxiliary, prevent similar difficulties from arising in the future. tion between countries. Article I provision as to the past. British subjects who have become and are [still] naturalized according to law within the United States, shall, subject to the provisions of article II, be held by Great Britain" to be in all respects and for all purposes citizens of the United States, and shall be treated as such by Great Britain ". Chapter XVII naturaliza This article corresponds with s. 6 of the Act, which not mere- Mutual recognition ly recognised for the first time the capacity of a British subject of existing to renounce his allegiance, but also gave effect to naturalizations tions. in the past, hitherto ignored. There was in the section a saving. clause allowing a declaration of British nationality to be made. within two years, and this is itself saved by the reference to the provisions of article II of the convention. The article does not enter into the minor details which are prescribed by the section i.e. whether the person was in the United States at the time of the naturalization, whether he was under any disability, or whether the naturalization had been voluntary. Everything was taken for granted: probably for the very practical reason that if the law had been strictly followed, endless complications, enquiries, and expense, would have been the result. The only condition was that the naturalization should have been according to the law of the United States : and this was one which the States would naturally have insisted on. This variation between the convention and the section must have been of great importance to many thousands of persons for whose benefit both the Act in part, and the convention as a whole, was intended. between The section appears to go further than the article for it Variance provides for a retroactive recognition of existing naturaliza- article and tions. The person was to be deemed to have ceased to be a Bri- s. 6. tish subject from the time of his naturalization, and, so far as Great Britain was concerned, the absence of any reference to this in the article, would probably not have prevented the statutory provision from coming into operation. So far as the United States were concerned, it would seem as if the law was sufficient for the purpose, so as to render a retroactive provision in the article unnecessary. Chapter XVII Variance between of s. 7. Reciprocal provision. (Article I.) Citizens of the United States who have become and are [still] naturalized according to law within the British dominions, shall, subject to the provisions of article II, be held by the United States " to be in all respects and for all purposes British subjects, and shall be treated as such by the United States ". This provision of the convention seems to be at variance article and with the terms of the 5th. paragraph of s. 7 of the Act, which pro5th. para. vided the method by which aliens naturalized prior to the passing of the Act could obtain certificates under the Act. They were compelled to apply for the new certificate under the Act, and the Secretary of State in granting it had no discretion as to terms and conditions, which were to be the same as in the case of other aliens applying to be naturalized. Conse quence of article on The effect of the article was to give increased privileges to the holders of the old certificates without any formality, or even existing na- without any application for that purpose. So far therefore as the of U. S. citi- United States were concerned, the continuance side by side of the old and the new certificates was avoided. turalizations zens in U.K. Mutual recognition Article I [provision as to the future]. British subjects who shall become and are [i. e. continue to be] naturalized according to law within the United States, shall be held by Great Britain "to be in all respects and for all purposes citizens of the United States, and shall be treated as such by Great Britain ". This part of the article depends on the general provisions of of future s. 6, which deal with the capacity of a British subject to renounce naturaliza- his allegiance: "according to law" in this case, therefore, probably means that the conditions of s. 6 must be complied with: that is to say, the person must have been within the United States at the time of his naturalization, was not under any disability, and was naturalized voluntarily. The qualification as to his former State drops out, as there is "a treaty to the effect" that he shall cease to be a subject of the United States. tions. The sentence "subject to the provisions of article II" finds no application to the provisions for the future. Reciprocal provision. (Article I.) Citizens of the United States who shall become and are [i. e. continue to be] naturalized according to law Chapter XVII within the British dominions, shall be held by the United States" to be in all respects and for all purposes British subjects, and shall be treated as such by the United This article in the first place puts into treaty form the provisions of s. 7 of the Act, which provides generally for the naturalization of aliens into the United Kingdom. The naturalization must be according to the law of England: the requirements of the section must therefore be fulfilled. The qualification as to the effect of the certificate in the person's former State again drops out, as this convention is to the effect that he shall cease to be a citizen of the United States: it therefore ensures their recognition a British subjects by their former State. between struction of There can be no question that this part of the article is in Variance conflict with the narrow construction put upon the effect of the article and certificate granted in the United Kingdom. It may perhaps be narrow contaken as throwing some light on the intention of these who draft- s.6. ed the Act, and be used as an argument in favour of the operation of this certificate at least throughout the dominions. Article II [provision as to the past.] Such British subjects as aforesaid who have become and are [still: i. e. on 12th May 1872] naturalized within the United States may renounce their naturalization, and resume their British nationality, within two years after 12th May 1870. tion of exist within two This article carries into effect with regard to the United RenunciaStates the first proviso of s. 6, which enabled British subjects ge- ing naturalinerally who had been naturalized before the Act, to resume their zation British nationality within two years after the passing of the Act. years. The qualification that the person would not be deemed a British subject in the naturalizing State, unless there were a treaty to the effect that he should cease to be a subject of that State, therefore disappears. The provision that these British subjects "shall be treated as such by the United States", which is inserted in article I, is omitted but it is implied. The words " as aforesaid " relate to the naturalization" according to law" in the previous article. There is an important variation between the article and the Variance between article and s. 6. Chapter XVII section. The full effect of re-patriation under the circumstances to which s. 6 applied, was that the person was deemed to have been continually a British subject: he "remained" a British proviso to subject. But under this article it was only stipulated that he should resume" his British nationality. Over thirty years have passed since the time for making these declarations elapsed, and no case of difficulty would appear to have arisen. The divergence between the convention and the Act may therefore be noted as of historical interest: possibly the Act required more than the United States were disposed to give. For the States it meant undoing the consequences of a naturalization which they deemed valid, in spite of the British rule which held the person still a a British subject. It is, however unnecessary to go deeply into the possible consequences. Reciprocal provision. (Article II.) Such citizens of the United States as aforesaid who have become and are [still: i.e. on 10th August 1872] naturalized within the British dominions, may renounce their naturalization, and resume their nationality as citizens of the United States within two years after the exchange of the ratifications of the convention. This part of the article depends on s. 3 of the Act, deals and with existing naturalizations of citizens of the States in Great Britain. The section requires a limit of time to be provided in the Variation of convention: and the same period of two years was adopted as in mencement the case of British subjects naturalized in the United States: but date of com the date of the exchange of the ratifications was taken for citizens of the United States; whilst that of the passing of the Act was, as the Act itself required, taken for British subjects. The probable explanation of this is that in England the signing of the convention immediately followed the passing of the Act ; whereas in the States the necessary legislation immediately followed the exchange of ratifications.* The provisions of s. 3 and the proviso of s 6 do not, however, correspond. The latter dealt only with existing naturalizations of British subjects abroad: whereas s. 3 does not specially contemplate existing naturalizations of foreigners in Great Britain. But * I have depended on my memory for this statement, which I have therefore put in the form of a suggestion, as I have no means at hand for verifying its accuracy, |