Part VI.—Correspondence between Great Britain and Other Countries.

It would be manifestly impossible to give an abstract in this memorandum of all the correspondence which has taken place between Great Britain and other countries, as as the preliminary search through the official registers and manuscript volumes, even if the inquiry were restricted to the last thirty years, would probably occupy several weeks, if not months.

There are, however, certain standard cases which are frequently referred to as precedents, and which are consequently more readily accessible.

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An effort will be made to give a résumé of these, as well as to examine cursorily the correspondence of the last few years.

The principal subject of correspondence has been the claim to British protection of the sons and grandsons of British subjects born in foreign countries.

By the act 4 Geo. II, cap. 21, (explaining 7 Anne, cap. 5,) all children of natural-born British subjects, born out of the ligeance of the Crown of England, are “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.” (Statutes at Large, vol. v, p. 113.)

The act 13 George III, cap. 21, extended the provisions of this statute to the grandchildren of native British subjects. (Vide ante, “Laws of Great Britain.”)

On the other hand, as previously explained, the common law of England considers all persons born within British territory to be British subjects, without regard to their parentage.

A conflict, hence, arises between the principle of the British doctrine of native allegiance and the statutory enactments extending that allegiance to the sons and grandsons of British subjects born within the ligeance of other countries.

Such persons, finding that they are declared by statute to be subjects of the British sovereign, naturally look to that sovereign for protection in return.

The manner in which this claim is practically dealt with is shown by the following instructions to Consul Dale, of the 20th December, 1842, based upon an opinion delivered by Her Majesty’s advocate-general, and which forms the model on which all subsequent instructions to Her Majesty’s representatives or consuls abroad, upon this subject have been framed:

By the statute law of this country, all children born out of the allegiance of the King, whose fathers, or grandfathers by the father’s side, were natural-born subjects, are themselves deemed to be natural-born subjects, and are, therefore, entitled to enjoy British rights and privileges while they are within British territory; but the effect of British statute law cannot extend so far as to take away from the government of the country in which those persons may have been born the right to claim them as natural-born subjects, at least so long as they remain in that country.

By the common law of England, all persons born within the King’s allegiance, whether the children of British subjects or of foreigners, are deemed to be natural-born subjects of the Crown of England, and if the law of any foreign state be the same, by equally admitting to its rights as subjects persons born within its own territory, that country has the right to exact the service of a subject from such person, even if he be the child of a foreigner, at least while such child remains in the country of his birth.

Therefore the children or grandchildren, by the father’s side, of natural-born British subjects born in any other country than Montevideo are entitled to be protected in that country as natural-born subjects of the Crown of Great Britain. But as regards the children of British fathers born in Montevideo, such children cannot be protected against the operations of the laws affecting the subjects of that country, unless the laws, of that country do not admit the child of a foreigner to the rights of a subject.