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HE last number of this REVIEW (L. Q. R., vol. v., p. 438)

contains an argument by Mr. Dicey in support of the contention that the son of a naturalized British subject is, when born abroad, at birth an alien. The fourth of the series of propositions

, ' of which the argument consists is as follows:

No statute, unless it be the Naturalization Act, 1870, extends the status of British nationality to the child of a naturalized British subject. If Eritish nationality be claimed on behalf of such child, it must be claimed under that Act, as indeed it was claimed in In re Bourgoise, 41 Ch. Div. 310.

Here no distinction is made between the case, where the father has obtained a certificate of naturalization under the Act of 1870, and that, where he is naturalized by some other statute. I submit that, as regards the latter case, Mr. Dicey's statement of the law errs in giving too limited an effect to 4 Geo. II. c. 21, and, by consequence, to 13 Geo. III. c. 21.

In order that a child may get the benefit of either of these Acts it is of course necessary that the father from whom the descent commences should be a natural-born subject by some title independent of their provisions. If any doubt could arise on this point under the earlier Act, it would be removed by the later. But it does not follow that the title must needs be one derived from the Common Law. Numerous statutes, general and special, have been passed, which declare, with more or less amplitude of language, that those to whom they apply shall be deemed adjudged and taken to be natural-born subjects to all intents, constructions, and purposes, as if they had been born within this kingdom. Where a father has been naturalized in these or the like terms, his children and grandchildren are within the letter, and, it is here contended, within the spirit, of the enactments in question. No inference adverse to their claims can be drawn from sec. 10, sub-sec. 5 of the Act of 1870 ; for that clause deals only with the children of parents who obtain certificates under the same Act. Moreover there is a positive indication in 4 Geo. II. c. 21 of an intention to include the children of naturalized subjects. That Act naturalizes with certain exceptions children born abroad 'whose fathers were or shall be natural-born subjects .... at the time of the birth of such chililren respectively. The words in italics point to

' the contingency of a change in the status of the father, either from

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natural-born subject to alien, or rice versa. There is nothing corresponding to them in 13 Geo. III. c. 21, which naturalizes children whose fathers were or shall be entitled to the benefits of 4 Geo. II. c. 21, without making it a condition that the fathers should be so entitled at the time of the children's birth. How is this difference to be accounted for? The explanation, I suggest, is, that the fathers referred to in the later Act ex hypothesi acquired their status as natural-born subjects at birth, and that the legislature did not contemplate, what was not then a practical possibility, a naturalborn subject ceasing to be such, and becoming an alien. If this view be correct, the words above italicized can only have been inserted in the Act of George the Second to meet the case of the father having been born an alien, and being afterwards naturalized; and their effect is to provide that children born after his naturalization, but not those born before, shall enjoy the benefit of the Act.

It is a different question, whether a certificate of naturalization granted to a father under the Act of 1870 brings his after-born children within 4 Geo. II. C. 21. The Act of 1870 does not declare the holder of a certificate to be a natural-born subject, nor does it anywhere so describe him. What it does is to enact that he “shall, in the United Kingdom, be entitled to all political and other rights, powers and privileges, and be subject to all obligations to which a natural-born British subject is entitled or subject in the United Kingdom'—with a qualification in certain cases. Now does 4 Geo. II. c. 21 confer any right, power, or privilege on naturalborn subjects? If so, the benefit thereof in the United Kingdom seems to be extended to the holder of a certificate of naturalization, except, it may be, in respect of his children born in the circumstances held by Mr. Justice Kay to have existed in In re Bourgoise, i.e. while the certificate, being a qualified one, is for the time in abeyance. But I venture to think the answer should be in the negative. It is not, properly speaking, a right power or privilege of a naturalborn subject, that his child should be invested with the same status as himself; that is the privilege of the child, not of the father. There is nothing in the Act of 1870 specifically extending the privilege to the children of certificate holders, and sec. 10, subsec. 5, above referred to, certainly supports the view that no such extension was designed.





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SOME OME remarks appear under this heading in the July number of this REVIEW, bearing the signature H. W.E.,' which is

' expanded on the title-page into the name of a bighly esteemed friend. They seem to afford a peculiarly apt occasion for making a few further remarks upon the subject. During the last seven years I have been on the look-out for the public appearance of the passage which he cites from Litt. sect. 132. If its existence had not been a widely spread secret in the learned world, it would certainly have appeared sooner; and I was unwilling to refer to it myself, because it seemed more likely to prove a cause of stumbling than of edification.

It seems to me that three separate questions are involved, where my friend has perhaps shown some signs of a tendency to find only one. (1) Are terms of years tenements? (2) Is the phrase, 'leasehold tenure,' a proper one to be used with respect to terms of years? (3) Can the phrase, “land of any tenure,' in a modern Act of Parliament, be taken to include a term of years? It would be quite possible to answer the third question in the affirmative, while answering the first two in the negative; and it would be quite possible to meet the first with a firm and uncompromising denial, while extending a qualified recognition to the practice contemplated by the second. Something like this is in fact my own case. In my humble opinion it cannot be, or at least ought not to be, seriously maintained that terms of years are tenements. I also think that the phrase, “leasehold tenure,' as applied to terms of years, is both useless and misleading ; but if people like to use it, they can do so without being either absurd or unintelligible. As to the question, whether in a modern Act of Parliament, the words ' land of any tenure,' can include terms of years, I should prefer, considering what sort of things modern Acts of Parliament usually are, to leave that to the decision of their lordships the judges.

On the first point I rely upon a very short argument. In England the legal definition of a tenement has for centuries been by universal consent, 'whatever is intailable under the statute De Donis.' I leave it to my friend to say whether this applies to terms of years.

It applies, as has often been remarked, to two distinct classes of things :-(1) Things which are strictly the subject of common law tenure; and (2) things, like rent-charges, which, though not strictly the subject of common law tenure, are so closely connected with


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of years.


things that are, that they are admitted to the privileges of the statute. The word 'tenement' affords a highly convenient expression for compendiously referring to both these classes of things in a single word. What is the use of increasing the confusion of Babel by dragging in something else, which has confessedly nothing to do with the statute, and which can never for any practical purpose require to be classed along with the things that have to do with it ?

As to the question about leasehold tenure,' the case is different. The phrase is not, in my opinion, a judicious one ; but it can be understood, and its introduction does not tend directly to the confusion of speech. Littleton no doubt lends some countenance to the practice; but, after perusing the following remarks, I will beg my friend to say how much. I take the matter to stand as follows.

. I By the time of Littleton, terms of years had acquired great practical importance, and, under the Statute of Gloucester, they conferred for most purposes a secure title. The custom had long obtained in practice, of admitting termors for years to do fealty. Nothing can be more evident than that Littleton was intensely puzzled when he wrote the part of sect. 132 which refers to terms

He knew that a term of years was no estate at all, but a mere contract, at the common law; yet he found termors allowed to do fealty. In very cautious language, redolent of doubt and bewilderment, he permits himself, as I view the matter, to infer from the fact of the fealty, that there must be some sort of tenure or another; and he backs this up by referring to the language of the writ of waste. Compare his style on this occasion, which reminds one of a blind man feeling his way, with his usual clear and unhesitating statement of facts; and the difference between the two will be apparent.

In my humble opinion, the illustrious author was not clearly justified in his conclusion. As a term of years is a mere contract at the common law, there could not possibly be any tenure of it. The Statute of Gloucester did not make it an estate, but only prevented the reversioner from destroying his contract under pretence of suffering a recovery. The common practice of admitting termors to do fealty could not do what had not been done by the common law or the statute. I humbly conceive that the practice was a mere voluntary proceeding on the part of reversioners, and could not create a tenure which the law had not created; and that the language of the writ of waste admits of the same answer; and that Littleton's conclusion would have been more closely in accordance with the theory of the law, if he had concluded against the existence of any kind of tenure.

However, it is too late now, in the face of Littleton and Lord


Coke, to adduce these arguments; and those who like to talk about 'leasehold tenure' must be permitted to do so without very urgent remonstrance from their friends. But the case is quite different if they propose also to call terms of years tenements.

It must be remembered that the words tenant, tenere, teneri, tenure, and tenement, are not strictly correlative: the classes to which they refer are not conterminous. This sufficiently appears from the remarks of Lord Coke at the beginning of his commentary, and his 'five significations. It is true that he says that they all 'doe properly belong to our tenant in fee simple.' But this is only his playful way; and even if true, it would not be inconsistent with the overlapping of the different classes ; and I leave it to my friend to say whether Lord Coke's own remarks do not prove that the terms are not strictly correlative.

In sect. 132 Littleton does not say that a term of years is a tenement: in the phrase cited from the writ of waste, the lessee holds his tenements’ [tient les tenements] 'from the lessour for terme of yeares,' the word 'tenements' is synonymous with lands;' and the statement is quite true, though its language perhaps admits of improvement. Fitzherbert uses the word "lands' (de terris) in a similar writ. (Fitzh. N. B. 57 B.)

As to that Boé vyua épnucoews, Lord Brougham's Act, I would fain hope that some day, when the Irish are pacificated like the tailors', it may cease to adorn the statute-book 2

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1 The tailors are now entirely pacificated.'— Sartor Resartus.

? These remarks were written before the publication of 52 & 53 Vict. c. 63, by which Lord Brougham's Act has been repealed and substantially re-enacted, without any of the improvements for which there was room.

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