Chapter IV said realm summoned to the Parliament, hath ordained and established the things underwritten, videlicet

Statute of 7 Anne.

Because that some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put in the Parliament late holden at Westminster, the seventeenth year of the reign of our Lord the King that now is, and was not at the same time wholly assented: our Lord the King, willing that all doubts and ambiguities should be put away, and the law in this case declared and put in certainty, hath charged the said prelates, earls, barons, and other wise men of his Council, assembled in this Parliament, to deliberate upon this point: all of which of one assent have said, that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors: which law our said Lord the King, the said prelates, earls, barons, and other great men, and all the commons assembled in this Parliament, do approve and affirm for ever.

And in the right of other children born out of the ligeance of England in the time of our Lord the King, they be of one mind accorded, that Henry son of John de Beaumond, Elizabeth daughter of Guy de Bryan, and Giles son of Ralph Dawbeny, and other which the King will name, which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance.

And that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages, to have and bear the inheritance within the same ligeance, as the other inheritors aforesaid in time to come so always, that the mothers of such children do pass the sea by the licence and wills of their husbands. And if it be alleged against any such born beyond the sea, that he is a bastard, in case where the Bishop ought to have cognisance of bastardy, in shall be commanded to the Bishop of the place were the demand is, to certify the King's Court where the plea thereof hangeth, as of old times hath been used in the case of bastardy alleged against them which were born in England.

In 1708 was passed the statute 7 Anne, c. 5, the avowed object of which was the naturalization of all foreign protestants within the realm. Section 3, which alone survives, the remainder having been repealed by 10 Anne, c. 5, deals generally with the nationality of children of natural-born subjects born out of England: it runs as follows:

7 Anne, c. 5, s. 3

The children of all natural born subjects born out of the ligeance of Her Majesty Her Heirs and Successors shall be deemed and adjudged to be natural born subjects of this Kingdom to all intents, constructions, and purposes whatsoever.

It will be well to consider if this provision leaves any of the

Statute of

Act of Edward III effective. It referred to "children inheri- Chapter IV tors", and provided that they were to enjoy the same benefits and advantages, to have the inheritance, as children inheritors born Edw. III. no longer effecwithin the ligeance. This may be paraphrased, as was done in tive: the preamble of 16 George III, c. 52,* as follows: "children *[rep, by the Act of 1870.] born abroad are inheritable to the estates of their ancestors in the same way as those born within the realm ". So far as inheritance is concerned, birth without the dominions was not in future to make any difference, so long as the mothers had passed the sea by the license and wills of their husbands. The statute of Edward III removed the chief hardship which being born abroad, though of English parents, created. It did not declare having only however that they should no more be considered aliens, but doubts as to limited itself to resolving the doubts which had been raised whe- inheritance. ther "sons abroad without the realm could inherit ". The "children inheritors" were not declared to be British subjects, nor can this be inferred from it, unless we adopt the circular argument that as British subjects only could inherit, a law which declared certain people, not in fact British subjects, capable of inheriting, must at the same time be held to have made them British subjects.

resolved

Anne decla

But by the statute of Anne the operativeness of the earlier Statute of statute has ceased: for it laid down positively and in unmistake- tory of nationality. able language the limitation of the old common law doctrine, by incorporating with the jus soli part of the jus sanguinis. Children of natural-born subjects, that is, children of persons born within the realm, are henceforth to be natural-born subjects "to all intents, constructions, and purposes whatsoever ", including, of course, inheritance.

of the statute

After the statute of Anne comes 4 George II, c. 21. Its title Statute of George II, declares that it is "an Act to explain a clause in an Act 7 Anne explains s. 3 (for naturalizing foreign protestants) which relates to the children of the natural-born subjects of the Crown of England of Anne. or of Great Britain.

The preamble recites that doubts had arisen upon the construction of the clause and that it was passed "to prevent any disputes touching the true intent and meaning thereof".

4 George II, c. 21, s. 1.

All children born out of the ligeance of the Crown of England or of Great Britain, or which shall hereafter be born out of such ligeance,

Chapter IV whose fathers were or shall be natural born subjects of the Crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may, by virtue of the said 7 Anne c. 5, s. 3, and of this present Act, be adjudged and taken to be, and all such children are hereby declared to be natural born subjects of the Crown of Great Britain to all intents, constructions, and purposes whatsoever.

Fathers to be "naturalborn sub

jects."

Children of persons made

subjects by

4 Geo. II,

c. 21, to be themselves subjects.

The two enactments mean the same thing, but the second is more precise: "children of all natural-born subjects" has become children whose fathers are natural-born subjects at the time of the birth of the children." And the words "born out of the ligeance" are placed immediately after the word "children" to which they relate.

--

In this statute the term "natural-born subjects" has the definite meaning which the words imply people born within the kingdom. There were no other subjects at the time but those who were subjects by the jus soli. Their children born abroad are now declared to be natural-born subjects: this term therefore has received its first extension.

Forty-two years later, by the Act 13 George III, c. 21, a second incorporation of the jus sanguinis was effected. The provisions of 4 George II, c. 21, "which relate to the natural-born subjects of the Crown of England or of Great Britain" are extended to the children of such children.

13 George III, c. 21.

Whereas divers natural born subjects of Great Britain who profess and exercise the protestant religion, through various lawful causes, especially for the better carrying on of commerce, have been, and are, obliged to reside in several trading cities and other foreign places, where they have contracted marriages and brought up families and whereas it is equally just and expedient that the Kingdom should not be deprived of such subjects, nor lose the benefit of the wealth that they have acquired and therefore that not only the children of such natural born subjects, but their children also, should continue under the allegiance of His Majesty, and be entitled to come into this Kingdom, and to bring hither and realize or otherwise employ their capital: but no provision hath hitherto been made than to extend farther than to the children born out of the ligeance of His Majesty, whose fathers were natural born subjects of the Crown of England or of Great Britain :

Be it enacted—

That all persons born, or who shall hereafter be born, out of the ligeance of the Crown of England or of Great Britain, whose fathers were or shall be, by virtue of the Act 4 George II c., 21, ... intitled to all the rights and privileges of natural born subjects of the Crown of England, or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural born subjects of the Crown of Great Britain, to all intents, constructions, and purposes whatsoever, as if he and they had been and were born in this Kingdom,

anything in 12 & 13 William III, c. 2† to the contrary in any wise not- Chapter IV withstanding.

framing a

The new class of persons who are made natural-born sub- Difficulty in jects by statute are the children born abroad of those who had definition. themselves been made natural-born subjects by statute: this term has thus received its second and last extension.

In the common law and in these two statutes lies the law of England on the subject of nationality, and from these sources it should be possible to frame a definition of " British subject ". It is extraordinary that the framing of such a definition. which should carry its meaning to the mind at once should be attended with any difficulty.

based on

s. 4 of Act of

inaccurate.

Section 4 of the Act of 1870 appears at first sight to A definition contain a definition, although it only deals with "how a British-born subject may cease to be such ". The first part 1870 indeed contains a statement of the common law, for it runs "any person who by reason of his having been born within the dominions of His Majesty is a natural-born subject-". But the second part, though it evidently deals with statutory subjects, contains no such express statement, but merely refers to "any person who is born out of His Majesty's dominions of a father being a British subject". As a definition this is either incomplete, by omitting the persons made subjects by the Act of George III: or it goes too far, for children born out of the dominions of a person who is a subject by the Act of George III are not subjects, yet they are " born of a father being a British subject ".

The difficulty arises from not fully realising what the class of persons is to whom the statute of George III applies. There is an almost inevitable tendency to describe this class as the grandchildren, born without the ligeance, of natural-born sub

jects.

Mr de Hart gives this definition :

Hart's definition.

"The children and the grandchildren on the son's side of every man Mr. de who by the common law is a natural-born subject are themselves natural-born subjects, wherever they may have been born ".

"On the son's side", the two Acts refer only to the nationality of the father, although under 4 George II, c. 21, the daughters born abroad of a natural-born father would be naturalborn subjects.

+ The Act of Settlement.

* In a paper published in the Journal of the Society of Comparative Legisla tion for 1900, p. II.

74637

Chapter IV

Inter-De

"By the common law is a natural-born subject

is to say, the definition is not to apply to the children or grandchildren of persons who are natural-born subjects by statute.

But this is unsatisfactory as a definition, because the reference to the grandchildren omits the national status of the person who may be called for convenience the "intermediate parent". A person may be a grandchild born abroad "of a man who by the common law is a natural-born subject ", and be a British subject because his father was born in the dominions : a definition which admits the possibility of two derivitive titles for the same person is, I venture to think, unscientific.

In the report of an Inter-departmental Committee on the Naturalization Laws, published in 1901, the standpoint of the parent is taken and not that of the child, and a twofold definition is given.

Definition of "A person whose father or paternal grandfather was born within partmental Her Majesty's dominions is deemed a natural-born British subject, alCommittee. though he himself was born abroad......The effect of the statutes, of

Official definition.

which the above rule is the result, is that either the father or the paternal grandfather must have been actually born within Her Majesty's dominions. "*

The different standpoint makes the definition easier of statement, and the definition is certainly accurate. But the alternative "either, or " does not make it strictly scientific, for although the phrase or the paternal grandfather" deals with the case where the" intermediate parent " was not born within the dominions, which is the case dealt with by the Act of George III, yet it does not exclude the possibility of a person deriving his British nationality from two sources, his grandfather's as well as his father's nationality. "Born within the dominions" is of course the equivalent of "natural-born subject by common law" of the previous definition, which is got rid of as unnecessary, and "paternal grandfather" is introduced for the same reason as grandfather on the son's side ".

It is suggested that a clearer statement of who are a British subjects may be obtained by not attempting to merge the differ

*This closely resembles what may be called the official definition : The Instructions to applicants for certificates of re-admission to British nationality give the following among the statements which the memorial must contain (3) That the applicant was a natural-born British subject by reason of having been born in British territory, or by reason of his or her father or grandfather, by the father's side, having been a British subject." The last sentence is however altered.