Chapter VI process of settlement. In the case of New South Wales there was a delegation of the right to the Governor. Although this seems im [see p.93.] express contradiction with one of the principles laid down in Exercise of Calvin's case, the fact remains that there is still an Act in force in prerogative by Governor New South Wales [the Naturalization and Denization Act of 1898, South based on 9 Geo. IV, No. 6] passed by the Colonial Legislature, conferring the right to make denizens in the Colony on the Governor. The subject belongs properly to the chapter dealing with [see Chapter the whole question of nationality in its colonial aspect: but the XV.] principle involved must be mentioned here. of New Wales. Power of Soverign to delegate his right formerly denied. The Act is not only passed by the Colonial Legislature, but it has not the express sanction of any Act of the British Parliament. It is described in s. 14 of the same Act as the exercise by the Governor of the prerogative right of the Crown. The delegation must therefore have been made by the King, and it may perhaps be inferred from the royal assent having been given to the Act. Chapter VII Naturaliza cial statute. Chapter VII. Of Naturalization. The acquisition of British nationality by statute prior to 1844, when the first general Act was passed-7 & 8 Vict. c. 66— tion by spe- meant naturalization by statute specially applicable to the person naturalized. The power of Parliament to pass such statutes still of course exists, and it would appear is still resorted to, probably in cases of necessity, when the conditions of residence cannot be complied with. It seems indeed a more appropriate course to adopt than denization in the case mentioned by Mr. Hall, where nationality is necessary for holding office under the Crown abroad, for the reasons already indicated. Moreover Parliament is not in any way fettered as is the Crown in the exercise of its prerogative, and may, if it choose, grant the most complete rights of citizenship. It would appear however, from the Report of the Inter-departmental Committee, that "instances have occurred in which such Acts have been so imperfectly drafted as to give rise to questions of great difficulty, and to cause much disappointment, especially by the absence of provisions for the naturalization of the children of the naturalized person". Before considering the Act of 1870, it will be interesting to Chapter VII note briefly the changes in the law introduced by the Act of 1844, which was styled " an Act to amend the law relating to Aliens". Analysis of So much of certain recited Acts, among which was the Act of Settlement, as was inconsistent with the provisions of this Act was repealed (s. 1). So much of 1 Geo. I, c. 4, as required a special clause in all Naturalization Acts to the effect that the person naturalized should not be a Privy Councillor, or a member of either House of Parliament, or should not be capable of holding any office of trust under the Crown, or any lands by grant from the Crown (the limitations of the Act of Settlement), was repealed (s. 2). Persons born out of the United Kingdom of mothers who were natural-born subjects, were declared capable of taking any estate, real or personal (s. 3). Alien friends were allowed to take and hold every species of personal property, except chattels real, as if they were natural-born subjects (s. 4). Alien friends. were also allowed, if residing in the United Kingdom, to hold lands and houses for their residence or occupation, or for business, for a term not exceeding 21 years, with all consequent rights, except the right to vote at the elections of members of Parliament, as if they were natural-born subjects. (s. 5). The Secretary of State had power to grant certificates of naturalization to aliens who should come to reside in the kingdom" with intent to settle therein ". The effect of the certificate was to enable the alien to Effect of certificate enjoy all the rights and capacities which a natural-born subject under Act of of the United Kingdom can enjoy or transmit ", except being of 1844. the Privy Council, or a member of either House of Parliament. The Secretary of State further had power to except such rights and capacities as he thought fit (ss. 6 and 8). The oath of allegiance was to be taken within 60 days after the grant of the certificate (s. 10). A woman married to a natural-born subject or a person naturalized, was to be deemed and taken to be herself naturalized, and to have all the rights and privileges of a naturalborn subject (s. 16). A further statute was passed in 1847, dealing specially with Act of 1847. see Chapter colonial legislation on the subject, and declaring that the Act of XV.] 1844 did not extend to the Colonies. The existing law was passed in 1870, but although it is called the Naturalization Act, the subject of naturalization is not dealt Chapter VII with till the 7th. section, the earlier sections being concerned with the status of aliens, and with expatriation. Grant of the cartificate We have to consider first the two paragraphs of s. 7 which under the provide for the application and grant of the certificate of natuAct of 1870. ralization. Analysis of first part of s. 7. Conditions imposed on 33 & 34 Vict. c 14, s. 7: [1st. & 2nd. paras.*] Certificate An alien who, within such limited time before making of naturali- the application herein-after mentioned as may be allowed zation. by one of Her Majesty's Principal Secretaries of State, either by general order or on any special occasion, has resided in the United Kingdom for a term of not less than five years, or has been in the service of the Crown for a term of not less than five years, and intends, when naturalized, either to reside in the United Kingdom, or to serve under the Crown, may apply to one of Her Majesty's Principal Secretaries of State for a certificate of naturalization. The applicant shall produce in support of his application such evidence of his residence or service, and intention to reside or serve, as such Secretary of State may require. The said Secretary of State, if satisfied with the evidence adduced, shall take the case of the applicant into consideration, and may, with or without assigning any reason, give or withhold a certificate as he thinks most conducive to the public good, and no appeal shall lie from his decision, but such certificate shall not take effect until the applicant has taken the oath of allegiance. These paragraphs analysed may be resolved into the following elements. A.-Conditions imposed by the statute. As to the past-The applicant must either have resided in on applicant, the United Kingdom for not less than 5 years, or have been in the service of the Crown for not less than 5 years, within a time prior to the making of the application which is to be limited by the Secretary of State. By the Instructions issued by the Home Secretary in 1870, this period was fixed generally at 8 years: but it may be specially fixed at a shorter period in individual Powers of cases. As to the future-The applicant must intend either to side in the United Kingdom, or to serve under the Crown. B.-Discretionary powers of the Secretary of State.(a) He may declare the period prior to the application within which the 5 years residence in the United Kingdom, or the 5 years service under the Crown, may have occurred: he may do this by general or special order. *The remaining paragraphs of the section are considered in the following Chapters : 3rd. para. in Chap. VIII,-Consequences of Naturalization ; 4th. para. in Chap. XIII,—Doubtful Nationality ; 5th. para.--Naturalizations prior to the Act--at the end of this Chapter. (b) He may prescribe the evidence of residence or service by Chapter VII which the application is to be supported: there is nothing which requires this to be by general order. dix to this evidence re State. The general drift of the evidence required by the Secretary see Appenof State in ordinary cases is indicated in the Instructions. Certain Volume.] facts have to be stated from which the applicant's relations so- Nature of cially and commercially to the community may be gathered; quired by from these facts it would seem that the essential inference to be Secretary of drawn is that these relations are not likely to be voluntarily or speedily disturbed. The facts are the applicant's residence, age, and occupation: whether he is married or single, and whether he has any children under age residing with him. Further, his respectability and loyalty must be vouched for by four householders who are themselves British born subjects, each of them being required to state the period during which he has personally known the applicant. (c) He is given an absolute discretion as to granting or witholding the certificate, and need assign no reason for his decision. tion as to intention to So far as these conditions relate to the past they do not call Examinafor any remark: but the intention to reside in the United King- effect of dom in the future which is insisted on, would appear, on the face condition of of it, to be considered of some importance. But it is more than resile: doubtful whether it is so regarded, for nowhere is any answer to be found to the questions-How long is it necessary for this residence to continue? Does the grant of nationality lapse with the termination of the residence, or more precisely, of the intention to reside? Yet the condition is inserted in the certificate itself. serve under The same questions arise also with regard to the intention and of into serve under the Crown, except that they are simplified by the tention to fact that service under the Crown cannot be terminated without the Crown. permission from the Sovereign. Yet even in this case there is nothing to show that the grant lapses when the service terminates. Negative evidence that the grant does not lapse may be de- [L. R. 41, rived from the case of re Bourgeoise, to be presently considered Ch. D.310.] in connection with another branch of the subject. The facts, so far as the present question is concerned, were shortly these: M. Bourgeoise, having fulfilled the five years condition of previous residence, became naturalised in due course of commerce he Chapter VII made a considerable fortune, and retired to France where he spent the rest of his days. A more simple case of abandonment of the intention to reside could not be found, but the question was not mentioned either by counsel or the Courts. Consequen ces of fraud under second Act of 1870. tions to which the section applies. The amending Act which was passed in the same year, known as the Naturalization Oaths Act, 1870, also furnishes evidence of a negative character, as s. 2 deals with the case of fraud which had been omitted from the principal Act. 33 & 34 Vict. c. 102, s. 2. Any person wilfully and corruptly making or subscribing any declaration under the Naturalization Act 1870, knowing the same to be untrue in any material particular, shall be guilty of a misdemeanor, and be liable to imprisonment with or without hard labour for any term not exceeding twelve months. The declarations referred to in the principal Act are, of The declara- alienage, under ss. 3 and 4: and of British nationality, under s.6: and these do not seem likely to give rise to false statements. But the information required by the Instructions in support of the application, is to be given by declaration made before a Magistrate or other person authorised to receive statutory declarations in pursuance of the Act 5 & 6 Will. IV, c. 62. The making of this rule falls within the powers of the Secretary of State under s. 7 (2nd. para.), and therefore the above section applies to false statements made in such declarations. The consequence is imprisonment but no power is taken to cancel the certificate, and this taken to can- furnishes a strong argument that no cancellation was concertificate. templated. Yet not a conclusive argument: nor one which the Courts could accept without further question. No power cel the The possibility of such a question arising in connection with ownership of shares of British ships occurs at once, and it is not difficult to imagine a case of fraudulent declaration by an alien to obtain naturalization, and so to enable him to hold such shares. It is interesting to note however that this case has been foreseen and specially provided for, for the first section of the Merchant Shipping Act, 1894, insists on continued residence in the case of naturalized owners. This section has already been set out in so far as it deals with denizen owners, it must now be set out in so far as it deals with naturalized owners. |