Nationality and naturalization

foreigners, the accident of whose birth in the Empire endows them with rights for which they give no allegiance in exchange. I doubt whether the extent of those rights, more especially in the matter of ownership of British ships, is fully realized. But though the change would be radical, the spirit of the present law would be maintained, for citizenship by right of blood would still be based upon the right of birth; the nationality of every natural-born British subject would be derivative from the birth of some ancestor on British soil.

It may be that with this the national sentiment would be satisfied. And, after all, the change would not amount to more than this-that in the fulness of time Great Britain would do what all other States must have done at some stage of their existence. For jus sanguinis cannot of itself stand upright as a basis of nationality. It presupposes a first ancestor, the father of the family which has subsequently developed into a nation. At some period or other a State must have depended on birth within its borders for its citizens, until, at the time of the writing of its laws, it stamped its nationality upon them and their descendants for ever.

The change would involve a scheme for dealing with existing cases of double nationality; difficulties would arise in connexion with details, but they could not be insurmountable.

As for the Naturalization Act, few people have ever had a good word to say for it. The mere fact that it starts with a subject entirely remote from naturalization is in itself confusing, and the sequence of the subsequent sections does not at first sight appear to be based on any very intelligible. scheme. It is essentially, as its predecessors of 1844 and 1847 were, an "Aliens Act," dealing with two main questionsHow an alien can become a British subject: and, How a British subject can become an alien. Curiously enough, it takes the second point first in order. An attentive study of this statute, however, reveals a thread of logical thought which holds the sections together in consecutive sequence. But there are many omissions, and the meaning of its most important provision is shrouded in doubt.

In connexion with the Colonies the subject of naturalization gives rise to many curious and difficult problems, the

solution of which I have endeavoured to find. Not the least important of them appears to me to spring from the somewhat vague language of the Act of 1847--the second Aliens Act; some of them, however, are of much more recent date. Here, again, it was impossible not to point out the inconveniences which may result from the continuance of the existing system. In order that the difficulties of the subject should be fully understood, I have devoted one chapter to a critical analysis of the Canadian Naturalization Act of 1881, in the interpretation of which nearly all of them arise. It seemed necessary to analyze in a similar manner the provisions of the Naturalization Convention with the United States, which also gives rise to some interesting questions.

In the Introduction to the First Part, I have considered the position of British nationality in law. As a ground for diplomatic action or assistance it is, of course, the important element; it may be of great importance when questions arise under foreign systems of law; but so far as British law is concerned, apart from the fact that it brings people within the jurisdiction of the Consuls in certain Eastern countries, the consequences of nationality are practically limited in their effect to the operation of certain special statutes, and of the extra-territorial law which applies on the high seas or generally beyond the realm. In devoting the Second Part of a work on Nationality to an examination of the abstruse questions connected with extra-territorial law, I may at first sight appear to have blended two distinct subjects into one work. But, apart from the fact that they have several points of contact, it seemed to me that a volume treating of the consequences of nationality was in legitimate sequence to one treating of nationality itself.

I believe the collection of extra-territorial laws to be complete; I feel certain that none have been omitted which involve any principle which has not been discussed.

This subject does not lend itself to concise treatment, for we have not even a starting-point on which all are agreed. I have therefore adopted the method of working out the argument at all points before the reader's eyes. Many of the questions involved lie on the fringe of the law, and it is only with great diffidence that solutions have been suggested.

The chapters which deal with the "Realm and its Waters" [Part I, Chapter II], and with the broad principles of Extra-territorial Law [Part II, Chapter I], introduce many matters which formed the subject of study in the preparation of the British argument in the Behring Sea Arbitration. The recollection of those days of arduous work has induced me to dedicate these pages to the memory of the great lawyer who moulded that argument into its final shape, then AttorneyGeneral, afterwards Lord Chief Justice of England.

The last chapter of the book deals with sea-fishery legislation, an intricate subject, which, from, its essentially practical nature, puts all theories to the test; for it is certain that unless that legislation can be supported, both in the letter and the spirit of the statutes, all that has been said and written on the question of jurisdiction is worthless. It is curious that, without deliberate intention, I have found in bringing the argument of the book to its close, a judgment of Lord Russell of Killowen which furnishes what I believe to be the key to the solution of the difficult problem which underlies the question of extra-territorial legislation.

I must crave the reader's indulgence in respect of two matters. The volumes were printed while I was in Mauritius ; and, in spite of the utmost care in correcting the proofs, there are many blunders, which I have endeavoured to detect and correct in a Table of Corrigenda in each volume.

Some months have elapsed between printing and publishing. Re-reading the printed pages, I became painfully conscious that some points had not been made sufficiently clear, and that others might be amplified with advantage. I have endeavoured to supplement these two deficiencies by adding to each Part a series of Additional Notes, which, though they must somewhat try the reader's patience, will, I believe, be found useful in elucidating a very complex subject.

I have to thank my friend Mr. Justice Wood Renton, of the Ceylon Bench, for many valuable suggestions, and for much patient assistance in revision of manuscript and proofs.

January 24, 1907.

F. T. P.