ent classes into one, but by keeping them distinct; the reference Chapter IV to the grand-parent should be omitted, in order to preserve the Suggested idea of the derivative nationality involved in the phrase in the taht definistatute of George III-that "not only the children of such natural- tion should born subjects, but their children also, should continue under the cal. allegiance of His Majesty."

Natural-born British subjects are

(a) Children born within the dominions :

(b) Children born abroad of a father who falls within

category (a) (7 Anne, c. 5, and 4 George II, c. 21)

(c) Children born abroad of a father who falls within. category (b).--(13 George III, c. 21).

be categori

meaning of

born sub

According to the statutes, the persons included in these three Normal classes are "natural-born British subjects". In its normal signi- " naturalfication this term naturally relates to persons actually born jects" and within the realm-"British-born" as they are sometimes called: but when it is used, as it often is, in subsequent legislation, it includes these three categories of persons.

The two terms " British subject " and " natural-born British subject " at one time had a definite meaning, the first including all subjects whatsoever, the second being limited to the persons indicated in the last paragraph. This was pointed out by Abbott C. J. in Thomas v. Acklam

statutory

meaning.

[2 B. & C.

779

Ca. II,

"We think the sense of these words is very plain natural-born Rul. subjects are mentioned [in 4 Geo. II, c. 21] as distinguished from sub- p. 632.] jects by donation, or any other mode. A child born out of the allegiance of the Crown of England is not entitled to be deemed a natural-born subject, unless the father be, at the time of the birth of the child, not a subject only, but a subject by birth. The two characters of subject and subject by birth must unite in the father".

Use of both

The two terms of course still retain their several meanings, and in spite of what appears at first sight to be a somewhat indiscriminate use of them in the Naturalization Act, it will be terms in Act found that the distinction is in reality preserved. There may of 1870. be still some rare occasions when it will be necessary to bear the distinction in mind, but so far as any enactment which deals with the rights and obligations of natural-born subjects is concerned, the distinction no longer holds good, unless specially mentioned; as in the case of owning British ships, for the Act of 1870 granted to persons naturalized the rights and obliga

"

Chapter IV tions of natural-born subjects-limited, it may be, to the United Kingdom, as we shall presently see. In some old statutes the two classes are referred to specially ; but the reference to naturalized subjects is now unnecessary.* For all practical purposes the term "British subject " may be used, and is so used, as including both classes of persons. Perhaps "natural-born British subject would be more strictly accurate, so as to make a special reference, as in some old statutes, to denizens necessary : for,though made a subject, it by no means follows that a denizen comes within the term "British subject " wherever it may be used-in the Naturalization Act for example.

Son of a Bri tish subject

The dictum of Abbott C. J. given above, has no application in the present day. The question whether the children of naturalized subjects, and also the children of such children, born abroad come within the scope of the statutes now depends on quite a different question; it is only uncertain on account of the uncertainty which attaches to the words "in the United Kingdom" as used in s. 7 of the Act of 1870. This, however, more properly belongs to a later chapter.

In order to complete this survey of the subject it is important not necessa. to explain, though the fact is now obvious, why it is inaccurate rily a British to say either that the son of a British subject is himself a British subject. subject, or that the son of a natural-born British subject is himself a natural-born British subject. Nationality is by English law personal to the child, and he is only a British subject or natural-born British subject, if, by his birth, he falls within one of the above categories. The children of persons in category (c) are not British subjects, but aliens.

So as to grandchild.

ren.

Father to be subject at time of

A fortiori, it is inaccurate to say that the grandchildren of British subjects are themselves British subjects.

The condition of the statute of George II, is that the father must be a natural-born subject at the time of the birth of the child's birth child abroad, in order that the child may be a natural-born subject. It follows, therefore, that if at the time of the child's birth abroad, the father had by English law lost his status of natural

abroad.

* An example of this in colonial legislation occurs in the New South Wales Constitution Act of 1854, printed as the schedule to the confirming Act of the British Parliament, 18 & 19 Vict. c. 54. The qualifications of electors are given in s. 11, which begins-"The qualifications for electors of the Legislative Assembly shall be as follows-Every man of the age of 21 years, being a natural-born or naturalized subject of Her Majesty, or legally made a denizen of New South Wales..."

born British subject, either by naturalization, or declaration of Chapter IV alienage, the child would not be a natural-born British subject. This is important in connection with aliens who have become naturalized, and who come under the influence of the modification given to the effect of the certificate by s. 6 of the Act of 1870. The result would be that if by the law of the father's former State he had not ceased to be a subject, then a child born while he was in that State would not be a British subject.

of children of

become

The nationality of children of fathers, British subjects, who Nationality become aliens is provided for in s. 10 (3) of the Naturalization fathers who Act: certain conditions have by them to be fulfilled before they aliens. cease to be British subjects. This applies to children who are British by statute, so long of course as they remain British. But the condition that the father must be a British subject at the time of the child's birth evidently restricts the effect of s. 10 (3) to children already born at the time the father becomes an alien.

tion of same

III. c. 21.

The provision as to the nationality of the father at the time Examinaof the birth of the child is not repeated in the statute of George question unIII: and the question arises whether its omission is of importance. der 13 Geo. Suppose the following case: A is a natural-born British subject under category (b): his son B is also born out of dominions: he is a natural-born British subject under category (c): A becomes naturalized in France: B will not become an alien unless the conditions of s. 10 (3) are fulfilled by B. Then a second son C. is born in France: is C a natural-born British subject? We have here the simple case of a child born abroad of an alien father, and the British law does not claim him as a subject; which shows that this interpretation of s. 10 (3) is the right one, apart from any provision in the statute of George II, and therefore that the omission of the words in the statute of George III is of no importance.

D. 243.

The subject of nationality by statute was very fully gone into [L. R. 22 Ch. by Kay J. in De Geer v. Stone, and although the point actually decided has already been discussed, it will not be out of place to follow the judgment of the learned Judge, as the case is a good practical illustration of the working of the statutes.

Geer v.
Stone.

Eneas Mackay the great-grandfather of the testator was a Facts in De natural-born subject of Great Britain. While abroad he married a Dutch lady, and had a son born in Holland - Daniel Mackay (A) the grandfather. He also married a Dutch lady, and had a

Chapter IV son born in Holland -- Daniel Mackay (B) the father. He also married a Dutch lady, and had a son born in Holland, and the question arose in connection with this son's will whether he was an alien, and whether, after his death in 1840, his real estate belonged to the Crown.

Finding.

Argument that poste

are British

subjects disposed of.

Kay J. found that Daniel (4) being the son of Eneas, a natural-born subject, though by a mother who was a Dutch ladya point to be presently considered-was capable of inheriting, and must be held to be, by force of the statute 7 Anne c. 5, a natural-born subject. Also that Daniel (B) being the son of a father, Daniel (A), who was made a subject by the statute of Anne, was also a natural-born subject under the statute of George III.

Beyond this the law does not go, and the son of Daniel (B), rity of Bri- born abroad, as his father had been before him, was inevitably tish subjects an alien. The law is clear, yet, as late as 1882, it seems to have been necessary for the Court to deal with the argument "that the posterity of a natural-born British subject, though born abroad, are by the common law to be treated as British subjects for ever" Kay J., following Sir A. Cockburn, answered it briefly: if that were the common law, the legislation would have been unnecessary, "and as a declaration of the law would have been insufficient and inaccurate.”

The learned Judge continued—

"I must take the law to be that the grandchild born abroad, whose father was also born abroad, being respectively grandchild and child of a man who was by the common law a natural-born Brirish subject, would be himself a natural-born British subject, but that his children, if born abroad, would be aliens, By this law Daniel (B) the grandson of Eneas, would be a natural-born British subject, but the testator, who was the son of Daniel (B) would be an alien,"

"Alien" is a convenient term: and in its negative sense, as signifying" not English", it is accurately used in this connection. But in its positive sense, as signifying" the subject of another State", it is not accurate; for it does not follow because the English law will not make a person in the position of the son of Daniel (B) subject to the King, that therefore the law of some other State will claim his allegiance. The conflict between the jus soli and the jus sanguinis produces not only "double nationality", but also "no nationality ".

(I)-MARRIED WOMEN.

Chapter IV Marriage

By the common law marriage had no effect on the nationality of a woman, either to make a foreign woman English, or an did not affect English woman foreign.

nationality

at common

law.

348.]

Baron Parke in the Countess of Conway's case, said"A French woman becomes in no way a British subject by marry-2 Knapp 368.1 ing an Englishman: she continues an alien and is not entitled to dower." And again, Lord Campbell in the Countess de Wall's case- 12 Jurist "The 7 & 8 Vict. c 66, s 16, is not a declaratory Act,and we consider it to be quite clear that at common law, not only was an alien woman married to an Englishman incapable of taking dower, but while she remained abroad she was not within the allegiance of the Crown of England." The Act referred to is the Aliens Act, 1844, the section being as follows

7 & 8 Vict. c. 66, s. 16.

Any woman married, or who shall be married to a natural-born subject or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural-born subject.

This is now repealed and replaced by sec. 10 (1) of the Act of 1870, which lays down the broad principle that the nationality of married women follows that of their husbands.

33 & 34 Vict. c. 14, s. 10 (1)

A married woman shall be deemed to be a subject of the State of which her husband is for the time being a subject.

647.1

In spite of this clear provision, the old doctrine was revived [34 L. T. by Hall V.-C. in Bacon v. Turner, where he held that an English woman married to a German and residing abroad with him "could not be considered as a foreigner": a decision which is, with respect, directly contrary to the sub-section of the Naturalization Act just cited.

between the

1870.

It will be noticed that the form of the provisions of the Ali- Difference ens Act and the Naturalization Act differ essentially: the first, enactments presumably, deals only with foreign women married to British of 1844 and subjects the later legislation leaves the question of naturalization with which it is dealing, in order to lay down what appears to be, now, the law of England as to nationality of married women. It is therefore important to determine its exact extent.

There is first the case of a foreign woman marrying a Bri- Extent of application of tish husband: and secondly, the converse case of a British woman s. 10 (1) of marrying a foreigner. Both these cases fall within the rule of the Natulaw, by which we claim a subject in the first case and disclaim Act.

ralization