Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 508.
Report of a commission appointed by the Queen of Great Britain for inquiring into the laws of naturalization and allegiance, with a memorandum by Mr. Abbott, (Lord Tenterden,) the secretary of that commission. Also extracts from an appendix accompanying that report, showing the condition of the laws of various countries on these subjects, with additions, corrections, and amendments thereto, made under the directions of the Secretary of State, in order to make them conform to existing laws.

[May 21, 1868.]

[N. B.—By royal commission dated May 21, 1868, the Earl of Clarendon, Mr. Car dwell, Sir Robert J. Phillimore, Baron Bramwell, Sir John Karslake, Sir Travers Twiss, Sir Roundell Palmer, Mr. Forster, Mr. Vernon Harcourt, and Mr. Mountague Bernard were named commissioners to inquire into the legal condition of British subjects residing in foreign countries, and to report how and in what manner it might be expedient to alter and amend the laws of the realm relating to such subjects, their wives, children, descendants or relatives; also to inquire into and consider the legal condition of aliens residing within the realm and becoming naturalized, and to report how far it was expedient to alter or amend the laws relating to them or to persons claiming rights or privileges through them. Mr. Abbott (now Lord Tenterden) was the secretary of this commission. The commission made a report to the Queen on the 20th of February, 1869, with a voluminous appendix, a copy of all which was duly transmitted to the Department of State by the minister of the United States in London. The Secretary of State transmits herewith this report, with such extracts from the appendix thereto as appear to explain the laws of foreign countries on the subject of the report. Several changes are made in the matter contained in the appendix, in order to make it conform to what are understood to be existing laws. All such changes are noted. Some American correspondence is also added, which has taken place or been made public since the report was made.]

report.

To the Queen’s most excellent Majesty:

We, your Majesty’s commissioners appointed to inquire into the laws of naturalization and allegiance, have to state that, in compliance with the terms of your Majesty’s commission, we have inquired into the legal condition of natural-born British subjects who may depart from and reside beyond the realm in foreign countries, and have considered how and in what manner, having regard to the laws and practice of other states, it may be expedient to alter and amend the laws relating to such natural-born subjects, their wives, children, descendants, or relatives. We have also inquired into the legal condition of persons, being aliens, entering into or residing within the realm and becoming naturalized as subjects of the Crown, and have considered how far and in what manner it may be expedient, having regard to the laws and practice of this country, of foreign states, or otherwise, to alter or amend the laws relating to such persons, or persons claiming rights or privileges through or under them.

We have found it necessary, in order to deal satisfactorily with the matters referred to us, to enter into some others bearing closely on them but not embraced within the express terms of your Majesty’s commission; and on these latter, as well as on the former, we have thought it right to submit to your Majesty the conclusions to which we have been led.

We now humbly lay before your Majesty the following report:

I.

There are two classes of persons who by our law are deemed to be natural-born British subjects:

1. Those who are such from the fact of their having been born within the dominion of the British Crown.

2. Those who, though born out of the dominion of the British Crown, are by various general acts of Parliament declared to be natural-born British subjects.

The allegiance of a natural-born British subject is regarded by the common law as indelible.

We are of opinion that this doctrine of the common law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest conflicts with that freedom of action which is now recognized as most conducive to the general good as weir as to individual happiness and prosperity; and it is especially inconsistent with the practice of a state which allows to its subjects absolute freedom of emigration. It is inexpedient that British law should maintain in theory, or should by foreign nations be supposed to maintain in practice, any obligations which it cannot enforce and ought not to enforce if it could; and it is unlit that a country should remain subject to claims for protection on the part of persons who, so far as in them lies, have severed their connection with it.

We accordingly submit to your Majesty the following recommendations for an amendment of the law in this respect.

1. Any British subject who, being resident in a foreign country, shall be naturalized therein and shall undertake, according to its laws, the duty of allegiance to the foreign state as a subject or citizen thereof, should upon such naturalization cease to be a British subject.

2. The principle of this rule should be applied to a woman who, being a British subject, shall become by marriage with an alien the subject or citizen of a foreign state.

3. The wife of a British subject who shall become naturalized abroad, and Ms children, if under the age of 21 years at the date of his naturalization, should likewise cease to be British subjects from that date; but this rule should not include a wife or child who has not emigrated to the country of naturalization, nor should it operate unless, according to the local law, the naturalization of the husband or father has naturalized also the wife or child.

4. Naturalization in a foreign country, though operating from the time of its, completion as an extinguishment of the original citizen ship, should not carry with it discharge from responsibility for acts done before the new allegiance was acquired.

Provision should be made for applying the same principles to the case of British subjects who have become so by naturalization.

We have considered the question whether the acquisition of a foreign domicile, or a certain length of residence abroad, should divest a person of British nationality. We have not been able to satisfy ourselves that either continued residence or domicile could be practically adopted as a rule to determine the allegiance of the subject, having regard to the difficulties which attend the definition of domicile and proof of the fact, and also to the great diversity of circumstances under which men reside in foreign countries.

II.

It is expedient that the foregoing recommendations should be applied to British subjects already naturalized in foreign countries, as well as to those who may hereafter become so. A certain period, however, not less than two years, should be allowed, within which any person already so naturalized (that is, before the proposed alteration of the law is made) might declare his desire to remain a British subject. The mode in which this should be done might be settled reciprocally by treaty or otherwise with such foreign governments as are willing to permit it to operate as an extinguishment of the acquired allegiance. In the absence of such an agreement, the naturalized person might make a formal declaration of such his desire, if resident abroad, before a British minister or consul, or, if within your Majesty’s dominions, before a justice of the peace, such declaration to be registered or recorded in such manner as might be judged expedient, in the United Kingdom by the secretary of state for the home department, in a colony by the governor or other chief officer of the government. Any person thus electing within the prescribed period to remain a British subject should be deemed to retain his British nationality, and the benefit of this election should extend to his wife, and to his children if under age at the time; but the election should not (unless permitted by the state of his naturalization to extinguish his acquired allegiance) entitle him or them to claim any British privileges when within the territories of that state.

These provisions should be deemed to apply to women already naturalized abroad by marriage with an alien or by the foreign naturalization of their husbands, and to children already naturalized abroad by the foreign naturalization of their fathers. Such women, becoming or having become widows, and such children, attaining or having attained the age of 21 years, should be enabled to retain their British nationality by exercising a like option at any time before the expiration of the period to be limited as aforesaid.

Persons already naturalized abroad who might not exercise this option within the prescribed period would be able at any time afterwards to regain British nationality in the mode pointed out in a subsequent part of this report.

III.

The above recommendations, if carried into effect, would impose the condition of aliens upon many persons who have hitherto enjoyed the legal rights proper to British subjects. It was necessary, therefore, to consider what effect the deprivation of such rights would have upon those affected by the change. And here it was impossible to overlook the serious question raised by the existence of those disabilities which (subject to certain limitations) attach by law to aliens in respect to the holding and inheritance of real estate in the United Kingdom.

Those disabilities have hitherto only affected persons who had never been regarded by the law as natural-born British subjects, such persons alone coming within the legal definition of aliens. But when it is proposed to bring within the same category a new class of persons who, having been originally British subjects, are for the future to lose that character, different considerations arise. To deprive persons already naturalized abroad, who now enjoy the right of holding and inheriting lands, of that right, might be thought harsh if not unjust. In the case of those who may become so naturalized hereafter, the same objection would not arise; but even here the penalty of exclusion from possible rights of inheritance appears to be an impolitic restriction on the liberty of emigration.

We have to choose, then, between two courses: one is to maintain the existing disabilities, making special provision for the new class of cases to which our recommendations would give rise; the other, to abrogate the disabilities altogether in respect of all classes of aliens.

The first course, viz, that of making special provision for expatriated British subjects who will now become aliens, while it would break in upon the general principle, might, in practice, be productive of embarrassment and litigation. We have accordingly considered the other course. The question whether aliens ought any longer to be prohibited by our law from holding landed property within the realm has not, indeed, been expressly referred to us by the terms of Your Majesty’s commission; but we have found it impossible to deal with the position of those who, under the terms of our previous recommendations, will cease to be British subjects, without forming an opinion as to the position of aliens generally in this respect.

We think it right to point out that not only can aliens hold real estate in France and many other European countries, but they are also enabled by colonial enactments to hold real estate in the Dominion of Canada, (except New Brunswick,) British Columbia, Cape of Good Hope, “Natal, Queensland, Victoria, South Australia, St. Kitts, and Hong-Kong, while the regulations prohibiting aliens from possessing real estate have recently been repealed in Bengal, and are now under revision in Madras and Bombay.

By the act of 1844, (7 and 8 Vict., c. 66,) “every alien now residing in, or who shall hereafter come to reside in, any part of the United Kingdom, and being the subject of a friendly state, may, by grant, lease, demise, assignment, bequest, representation, or otherwise, take and hold any lands, houses, or other tenements, for the purpose of residence or of occupation by him or her, or his or her servants, or for the purpose of any business, trade, or manufacture, for any term of years not exceeding twenty-one years, as fully and effectually, to all. intents and purposes, and with the same rights, remedies, exemptions, and privileges, except the right to vote at elections for members of Parliament, as if he were a natural-born subject of the United Kingdom.”

This term of twenty-one years may, of course, be renewed.

We have arrived at the conclusion that the grounds formerly assigned for the rule are either untenable in themselves or have ceased to be applicable; and we are prepared, therefore, instead of making any distinction between the two classes of aliens, to recommend that the present disabilities of alienage in respect of the holding and inheritance of land should be abolished altogether.

It has been suggested that, in time of war, danger might occasionally arise from the possession of land by aliens. We think it sufficient to say that this is a danger against which, should it be deemed serious enough to demand special legislation, it would not be difficult to guard

IV.

In considering whether the character of a natural-born British subject should be regarded as indelible, and, if not, how it should be lost, we have found it necessary to consider also whether any changes should be made in the laws which determine what classes of persons should be deemed to possess that character.

There are two classes with respect to whom this question may be raised. They are—

1. Persons of foreign parentage born within the dominions of the Crown;

2. Persons of British parentage born abroad.

All persons, of whatever parentage, born within the dominions and allegiance of the Crown, are, by the common law, natural-born British subjects. All persons, on the other hand, of whatever parentage, born beyond its dominions and out of its allegiance, were, by the common law, regarded as aliens.

By various statutes it has been enacted as follows:

25 Edw, 3, stat. 2: “All children inheritors which henceforth shall be born out of the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefit and advantage, to have and bear inheritance within the same ligeance as the other inheritors aforesaid, in time to come; so always that the mothers of such children passed the sea by the license and will of their husbands.”

7 Anne, c. 5: “The children of all natural-born subjects born out of the ligeance of Her Majesty, her heirs and successors, shall be deemed, adjudged, and taken to be natural-born subjects of this kingdom, to all intents, constructions, and purposes whatsoever.”

4 Geo. 2, c. 21: “And whereas some doubts have arisen upon the construction of the said recited clause in the said act of the seventh year of her late Majesty’s reign, now, for the explaining the said recited clause in the said act, relating to children of natural-born subjects, and to prevent any disputes touching the true intent and meaning thereof, be it enacted that all children born out of the ligeance of the Crown of England or of Great Britain, or which shall hereafter be born out of such ligeance, whose fathers were or shall be natural-born subjects of the Crown of England or of Great Britain, at the time of the birth of such children respectively, shall and may be adjuged and taken to be natural-born subjects of the Crown of Great Britain, to all intents, constructions, and purposes whatsoever.”

13 Geo. 3, cap. 21: “All persons born, or who hereafter shall be born, out of the ligeance of the Crown of England or of Great Britain, whose fathers were or shall be, by virtue of a statute made in the fourth year of King George the Second, to explain a clause in an act made in the seventh year of the reign of Her Majesty Queen Anne, for naturalizing foreign Protestants, which relates to the natural-born subjects of the” Crown of England or of Great Britain, entitled to all the rights and privileges of natural-born subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born subjects of the Crown of Great Britain, to all intents, constructions, and purposes whatsoever, as if he and they had been and were born in this kingdom.”

Without entering into any discussion on the construction of these statutes, we think it right to state that, so far as we are aware, no attempt has ever been made on the part of the British government (unless in eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad as against the country of their birth while they were resident therein, and when by its laws they were invested with its nationality.

A rule corresponding to that of the English common law has been retained by the United States. Every person born within the limits and jurisdiction of the United States is an American citizen by American law. But it is also provided by an act of Congress passed in 1855, that “Persons heretofore born, or hereafter to be born, out of the limits of the jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.”

By the Code Napoléon, (art. 10,) “Tout Francais né d’un Francais en pays étranger est Francais.” As to children born in France, they were under the code French if their fathers were French, aliens if their fathers were aliens, but with a right in the latter case to claim French citizenship on making a declaration and fixing their domicile in France. An exception has been introduced, however, by a, law passed in 1851, by which, if the alien father were also born in France, the child is deemed French, but is at liberty to claim the status of an alien on attaining twenty-one years of age.

The Prussian law of 1842 declares that “every legitimate child of a Prussian subject is, by birth, a Prussian subject, even though born in a foreign country.”

Of these two tests of nationality—the place of birth and the nationality of the father—neither is at present adopted without qualification by British, French, or American law. The laws of these countries exhibit, in fact, different combinations of the two, Great Britain and the United States laying chief stress on the place of birth, while in France the father’s nationality determines, though not absolutely and in all cases, that of the child; and this latter theory has found acceptance among other European nations.

The rule which impresses on persons born within your Majesty’s dominions the character of British subjects is open to some theoretical and some practical objections, of the force of which we are aware. But it has, on the other hand, solid advantages. It selects as the test a fact readily provable; and this, in questions of nationality and allegiance, is a point of material consequence. It prevents troublesome questions in cases (numerous in some parts of the British Empire) where the father’s nationality is uncertain; and it has the effect of obliterating speedily and effectually disabilities of race, the existence of which within any community is generally an evil, though to some extent a necessary evil. Lastly, we believe that of the children of foreign parents, born within the dominions of the Crown, a large majority would, if they were called upon to choose, elect British nationality. The balance of convenience, therefore, is in favor of treating them as British subjects unless they disclaim that character, rather than of treating them as aliens unless they claim it. The former course is, of the two, the less likely to inflict needless trouble and disappoint natural expectations.

We do not therefore recommend the abandonment of this rule of the common law, but we are clearly of opinion that it ought not to be, as it now is, absolute and unbending. In the case of children of foreign parentage, it should operate only where a foreign nationality has not been chosen. Where such a choice has been made it should give way.

As to the second class—persons of British parentage born abroad—we think it expedient that the statutes now in force should be repealed, in order to introduce some limitations and place the law on a clearer and more satisfactory basis. Birth abroad is often merely accidental, while of those British subjects who go to reside in foreign countries a great number certainly prize British nationality for themselves, and wish that it should be enjoyed by their children. The law, as it stands, concedes this benefit to their children born abroad, and we do not recommend that it should be withdrawn; but we think that the transmission of British nationality in families settled abroad should be limited to the first generation.

The following recommendations embody the conclusions we have formed on this branch of the subject:

As to persons born within the dominions of the Crown:

(a.) All persons born within the dominions of the Crown should be regarded by British law as British subjects by birth, except children born of alien fathers and registered as aliens.

(b.) Provision should be made for enabling children, born within the dominions of the Crown, of alien fathers, to be registered as aliens; and children so registered should be thenceforth regarded as aliens. The child, if not so registered on his birth or during his minority by his father or guardian, should be permitted to register himself as an alien at any time before he has exercised or claimed any right or privilege as a British subject.

(c.) If the father, being an alien when the child was born, becomes during the child’s minority naturalized as a British subject, the child, though registered as an alien, should follow the condition of the father.

2. As to persons born out of the dominions of the Crown:

(a.) Every child born out of the dominions of the Crown, whose father at the time of the birth was a British subject, should be regarded by British law as by birth a British subject, provided the father was born within the dominions of the Crown, but not otherwise.

(b.) Provided, that any such person as aforesaid who, according to the law of a foreign country, is a subject or citizen of that country, and who has never exercised or claimed any right or privilege as a British subject, should, in the administration of British criminal law, be treated as a subject of the country in which he was born.

(c.) And if any such person, charged with a criminal offense for which an alien would not be liable to be tried, should successfully defend himself on the ground that he was not, in respect of the act alleged, amenable as a British subject to the criminal law of this country, he should be thenceforth, to all intents and purposes, an alien.

(d.) If, before the child’s birth, the father had become naturalized in the foreign country, he would, under our previous recommendations, have ceased to be a British subject. If he should become so naturalized during the child’s minority, the child born abroad should follow the condition of the father.

(e.) By the statute 12 and 13 Vict., c. 68, provision is now made for the registration at British consulates abroad of marriages of British subjects celebrated abroad; and official copies of such registers are made evidence in the courts of this country. We think that a similar system of registry, with the like legal effect, should be adopted for the purpose of procuring evidence (as far as practicable) of births and deaths of British subjects abroad, due provision being made for securing the accuracy of such registration; and we further recommend that such registries should be established in all British legations as well as consulates.

The above recommendations, in so far as they may be inconsistent with the present law or practice of this country, are not intended to apply to children born of British fathers within the dominions of the Ottoman Porte, China, Japan, or other countries with which Great Britain may have special treaties for exclusive jurisdiction, nor any part of Asia or Africa not the possession of some civilized state. As to such children we contemplate no alteration in the existing law.

V.

We have considered the present practice of naturalization under the act 7 and 8 Vict., c. 66. In dealing with this question we have desired to give effect to our opinion, that to be a British subject is a valuable privilege, to be considerately imparted to those who desire its advantages and are willing to undertake its duties. If aliens are, as we recommend, made capable of holding real estate, the considerations applicable to the question will be simplified; the inducement which now most commonly leads foreigners to apply for naturalization will be removed; the rights conferred by it will be political rights; and we think, on the one hand, that these rights should in no case be granted without the security which previous residence affords, and, on the other, that when granted they should be full and complete. We recommend, therefore, that the act should be amended so as to make a certain length of residence in the United Kingdom, or of service under the British Crown, to be proved to the satisfaction of the secretary of state, a necessary condition of obtaining the privilege of naturalization; that, subject to this condition, the privilege should continue to be granted at the discretion of the secretary of state; and that a person so naturalized should be thereupon entitled to all the rights and privileges of a natural-born British subject within the United Kingdom.

This alteration of the law, if made, will be incompatible with the continuance of the practice of issuing certificates of naturalization revocable or determinable if the naturalized person resides abroad for six months without the permission of the secretary of state, a practice which, in other respects, appears to us to be open to serious objections.

VI.

We have previously stated our opinion that British-born subjects, who have already been naturalized in foreign countries, should be allowed a period of not less than two years within which to resume their original nationality.

We further recommend that provision should be made to enable British-born subjects, who may at anytime have lost their British nationality, to be re-admitted to the privileges of British subjects by a system similar to that by which aliens are naturalized in this country, and on the same condition of a previous term of residence. Such persons should only be re-admitted to British nationality at the discretion of one of Her Majesty’s principal secretaries of state, on addressing a memorial to the secretary of state setting forth the grounds on which they seek re-admission, and their intention thenceforth to reside and settle within the British dominions. The secretary of state might then, if he saw fit, and on being satisfied that the prescribed conditions were complied with, grant certificates re-admitting the applicants to the rights and capacities of natural-born British subjects, on their taking an oath of allegiance; but such certificates should not entitle the holders to British privileges within the country of their foreign naturalization, should they return thereto, unless according to its law they had ceased to be subjects or citizens of that country.

The wives, or children under 21 years of age, of persons so re-admitted to British nationality, should also, if resident within the British dominions, be considered and taken to be British subjects from the date of that re-admission, subject to the above reservation.

The same rule as to re-admission should apply to women of British birth whose British nationality had been lost by marriage with an alien, on their becoming widows; but the children of such women, born of an alien father, should not by the re-admission of the mother become naturalized as British subjects.

The foregoing provision will apply to the case of persons who shall desire to be re-admitted within the United Kingdom to the privileges of British subjects.

It seems also desirable to make provision for the case of persons who, having lost their British character, may desire to be re-admitted within the colonial dominions of the Crown to the advantages of British nationalty.

In the case of an alien-born, naturalization in the United Kingdom under the act of 1844 does not confer any rights of nationality within the colonies, (10 and 11 Vict., c. 83.) On the other hand, colonial naturalization confers no rights of nationalty beyond the limits of the colony granting naturalization.

The case of persons, however, who have lost their British nationality by force of such enactments as those which we recommend, will stand upon a different footing. When they are re-admitted to British nationality within the United Kingdom they will also recover it in the colonies, since no colonial law has deprived them of their nationality.

We think it advisable that the governors or chief officers in the colonies should have a similar power to re-admit such persons to British nationality upon the same conditions as to residence and otherwise as those prescribed for re-admission in the United Kingdom. Persons so re-admitted will thereupon revert to their former rights, as in the case of re-admission within the United Kingdom.

VII.

In the foregoing recommendations we have endeavored to diminish the number of cases in which, one who by British law is a British subject is regarded by foreign law as a foreign subject or citizen, and to obviate, as far as possible, the difficulties and inconveniences arising from such a double allegiance. But this, we are aware, cannot be done, otherwise than imperfectly, by British legislation alone; it requires the co-operation of foreign governments and legislatures.

If Great Britain renounces the doctrine of indelible allegiance, and acknowledges that British subjects can divest themselves of their nationality by foreign naturalization, it may be hoped that the same principles will be recognized by other countries with respect to aliens naturalized within the British dominions; and we accordingly recommend that efforts should be made to procure that reciprocity, as well as to secure to the children of British subjects born abroad, the same power of choosing their nationality which it is proposed to confer on the children born of alien parents within British territory.

This might be effected by agreements or conventions concluded with different states separately; or better, perhaps, by means of a general understanding arrived at, in conference or otherwise, by the powers most interested in the subject.

VIII.

Among other matters which have been brought under our notice, we have had occasion to remark the unsatisfactory results of the operation of the law enabling aliens to claim a jury de medietate linguæ.

The mixed jury was instituted by Edward III as an encouragement to foreign woolen merchants to resort to the English market, (27. Edw. III, stat. 2, c. 3, and 28 Edw. III, c. 13.)

The clauses of the statutes enacting it were confirmed by the act 8, Hen. VI, c. 29, and by the last act for consolidating and amending the laws relating to jurors and juries, (6 Geo. IV, c. 50.)

It is settled law that those members of a mixed jury who are foreigners need not be of the same nationality as the alien; they need not even speak the same language, but may each of them belong to a different nation and speak a different tongue.

We see no advantage in the maintenance of such a system, while the inconveniences which may arise from it are obvious; and we accordingly recommend that the statutes authorizing trials by mixed juries should be repealed.

We have not thought it necessary, in making these recommendations, to enter into any general review of the subjects referred to us; as a full account of British and foreign laws, and of the diplomatic correspondence which has passed between Your Majesty’s government, the Government of the United States, and other governments is contained in the memorandum by our secretary, Mr. Abbott, and other papers annexed to our report.

CLARENDON. [l. s.]

EDWARD CARDWELL. [l. s.]

ROBERT PHILLIMORE. [l. s.]

W. E. FORSTER. [l. s.]

*G. BRAMWELL. [l. s.]

TRAVERS TWISS. [l. s.]

J. B. KARSLAKE. [l. s.]

ROUNDELL PALMER. [l. s.]

†W. VERNON HARCOURT. [l. s.]

*M. BERNARD. [l. s.]

Charles S. A. Abbott, Secretary.

February 20, 1869.

*We concur, except on one point, with the recommendations of the report. As that point is important, we think it right to express our dissent, and to state, very briefly, the reasons on which it is founded.

The report recommends, (Section IV, recommendations. 1, a b,) that the child born within the dominions of the British Crown of an alien father should be regarded by British law as a British subject. This is the subsisting rule of the common law. A majority of the commissioners think that it should be retained, but that provisions should be engrafted on it, which would enable such persons, during minority or at any time afterward, to assume, by simple registration, the condition of aliens. We think otherwise, for the following reasons.: Such a law tends to produce, and must produce, in many cases, that double allegiance which we all hold it desirable, as far as possible, to extinguish. (Report, Section VII.) It is inconsistent in principle with the recommendation that the child born abroad of a British father should be regarded by British law as a British subject. It is at variance with the law and practice of other European states. It agrees, indeed, with those of the United States of America; but this very agreement, if examined, will be found to be such as to make a conflict of claims between the two countries more probable. None of the duties of a British subject could practically be enforced against a person who, though born here, had always resided in the foreign country to which his father belonged. He could not, if he happened to be here, be justly made amenable to any duties other than such as the law imposes on all commorant foreigners; but he would, nevertheless, possess the rights of a subject, without having any real title to them. He might renounce, indeed, if he pleased, his British allegiance. But why should he renounce that which might be a benefit to him and could not be a burden? If, on the other hand, he were regarded as an alien by birth, he could (provided he were resident here) obtain the advantages of nationality by undertaking its obligations.

We do not dispute that the common-law rule, which impresses British nationality at the moment of birth on all persons born on British soil, has arguments of some weight in its favor, nor that the substitution of a different rule would be attended by some inconveniences. But these inconveniences, which would rapidly diminish as the new rule became known and understood, do not, in our judgment, constitute a sufficient reason why, in deliberately revising Our law on a matter which concerns foreigners as well as Englishmen, we should forego the great advantage of legislating on a consistent and generally accepted principle, and that principle one which is intrinsically reasonable and sound.

The qualification that, where the father, though an alien, was born here, the child, likewise born here, should be deemed a British subject, appears to us to limit conveniently the application of the principle without substantially breaking in upon it. An analogous provision has been adopted in French law.

GEORGE W. W. BRAMWELL.

MOUNTAGUE BEBNARD.

†Concurring, as I do, in the fundamental recommendation of the report contained in its first section, I have thought it right to sign the report.

I feel compelled, however, after the best consideration I have been able to give to the subject, to dissent from the scheme contained in Section IV of the report for determining the nationality of children of foreign parents born within the realm.

Most persons will probably agree that the true rule for determining nationality, if it were practicable, would be found in the principle of domicile, i. e., that the home of a man’s choice should also be the country of his allegiance; and, indeed, the report asserts the soundness of this principle. The difficulty, however, of ascertaining the true domicile of a person resident in a foreign country, in the legal acceptation of that term, is a bar to its adoption in a case where it is requisite that the rule should be simple and obvious. Of all questions of law those which concern domicile are the most complicated and obscure, because they ultimately depend upon intention, which is necessarily of all things the most difficult to determine. We are driven, therefore, to adopt some less accurate but more practical rule, which shall approximate to though it may not reach the same result.

In the case of persons born within British, territory, of Britith parents, the presumption of British nationality and British domicile is, of course, conclusive. In the case of persons of British origin who have formally accepted a foreign naturalization, the presumption of change of domicile, and, therefore, of nationality, is sufficiently evidenced by the overt act of naturalization; and to such a condition of things the provisions of Section I of the report apply themselves. Here the nationality follows distinctly the domicile which is clearly ascertained.

But there exist further two classes of cases with which Section IV of the report deals, viz, (1) that of the children born of British parents abroad, and (2) that of children of foreigners born in the dominions of the Crown. In these cases the real domicile may be said to be indeterminate, or at least ambiguous; for the British subject resident abroad or the foreigner resident in England may, in either case, desire to adhere to the domicile of his origin.

Hitherto, as is well known, by the common law of England, inherited rather than adopted by the United States, the nationality of such children has been determined solely by the locality of their birth. The inconveniences of this principle, where rigorously applied, have been universally recognized. The statute law of England and America has made provision to remedy its operation in the case of the children of their own subjects born abroad. Indeed, the rule is wholly indefensible in principle. By the law of all modern nations the condition of the child primarily depends on that of the father. But the doctrine of deriving nationality from the locality of birth makes it depend on the accidental situation of the mother; and by this rule a child may become a subject of a country in which his father not only never made his home but which he never even entered.

The rule of determining nationality by locality of birth was of purely feudal origin, and accordingly in the legislation of modern Europe since the French Revolution it has been discarded as the governing principle among continental nations. The Code Napoleon has adopted another principle, viz, that the nationality of the child should follow the nationality of the father, in the absence of any proof of an election on the part of the child to adopt the nationality of the country of his birth. This doctrine seems sound in principle. In the absence of naturalization by the father in the country of the birth of the child, there is no ostensible evidence of the desire of the father to change his domicile or his country. The nationality of the child ought not, therefore, to be altered while that of the father remains unchanged, except by some deliberate act of the child. That this principle is also convenient in its operation is proved by the fact that almost all continental states have in practice adopted the doctrine of the Code Napoléon; and, as has been mentioned above, it has been incorporated into the statute law of England and America in the case of their own subjects born abroad. That the commissioners do not dissent from this rule is shown by the fact that in Section IV (§ 2) as to persons born of British fathers out of the dominions of the Crown, they recommend that the nationality of the child shall, in the first instance, be determined by that of the father.

But in the same section, (Section IV, § 1,) in the case of children of foreign parents born within the realm, the report proposes that the old rule of the locality of birth should prima facie prevail.

From this latter recommendation I dissent, and that for several reasons:

(1.) If it is desirable to recast the doctrine of nationality by such extensive changes as those proposed in the report, it seems expedient to found the whole system on some intelligible and self-consistent principle. It would be difficult to suggest any reason for adopting the rule by which the nationality of the father determines that of the child in the case of the children born of British fathers abroad, which does not equally apply to the case of the children born of foreign fathers in England; and to lay down an opposite rule in the two cases seems not only indefensible in principle, but to be a course which, in respect of policy, is very likely to be misunderstood by foreign governments. If, while we assert that the child born of an Englishman abroad is a British subject, we also claim that the child born of a foreigner in England is likewise a British subject, it will be thought that acting for our own advantage on inconsistent principles we are grasping at the combined chances of a double event.

(2.) It seems very desirable, as is stated in Section VII of the report, to lay down some rule in which all or most states are likely to agree.

Now, the rule of determining the nationality of the child prima facie by that of the father is adopted by all states as regards the children born of their own subjects abroad. As regards the children of foreigners born in the realm, it is adopted by all states except England and America. It is obvious, therefore, that this is the rule by the adoption of which will be most readily obtained that consent of nations which on such a subject is of capital importance. It is stated in Section VII of the report that “we have endeavored to diminish the number of cases in which one who by British law is a British subject is regarded by foreign law as a foreign subject, and to obviate as far as possible the difficulties and inconveniences arising from a double allegiance.” In that object I entirely concur; but it seems to me that it is not accomplished but rather defeated by laying down the rule that the child born of a foreigner in England is prima facie British subject. In the view of every state (including the United States, so far as regards the children of born Americans in England) such person is a subject of the state of his father’s origin; and therefore the proposed rule necessarily creates all the difficulties and inconveniences of a double allegiance. Assume, on the other hand, the rule adopted by the report in the case of the children born of British parents abroad, to be applied consistently to the case of the children born of foreign parents in England, it will be seen that the desired object will be completely accomplished. If the child B, of a foreigner A, is born in England, he would then be regarded by the English law as a foreigner; and so he would be regarded by all the world; and thus there would be no conflict of allegiance. Suppose A, the father, to become naturalized in England, then B, the child, would be by English law a British subject, and cease to be the subject of the country of his father’s origin—and so he would be regarded by all the world—assuming the United States to adopt (as we have reason to believe they would adopt) the principle laid down in Section I of the report, viz, that foreign naturalization extinguishes the native allegiance. The same thing would occur if B were himself naturalized. And thus, by the adoption of a simple and consistent rule, we should lay the foundation of a general harmony in the dcctrine and practice of nations which is not only of theoretical value but of great practical consequence; for nothing would more solidly conduce to the peace of the world than that the same allegiance should be predicated of the same person by all governments.

(3.) I am by no means insensible of the practical conveniences which may result in some cases from the adoption of the rule of the locality of birth, which are set forth in Section IV of the report, but there appear to be grave disadvantages attendant on the rule which more than counteract them. Such a rule, as has been shown above, will have the effect of imposing the quality of British subjects on a number of persons who neither seek nor desire it. It is true that the report makes provision in the case of such persons for a machinery by which they may divest themselves of that character. Upon this it may be observed that a foreigner in transitu may, through ignorance or carelessness, omit to take measures which shall have the intended effect. But it is not necessary to urge this point, because in fact it would be as impossible in the future as it has proved in the past, to insist against the will of the individual on his British character thus imposed by the mere accident of birth. The real evil to this country is of an exactly opposite character, viz, that by this rule persons are clothed with the character of British subjects, and become entitled to all its benefits, who have no real connection with the community, and who ought to have no claims upon it. It is not probable that any foreigner accidentally resident in this country would disclaim the citizenship for his child which the law would confer, for the simple reason that the child would be enabled to take all the benefits but could in no case be really made to fulfill the obligations of a British subject. Under this rule the child of a foreigner born here might return to his own country in his infancy, and he would thereafter possess whenever he chose to claim them, not only for himself, but (since he is a natural-born British subject) for his children also, all the benefits of the character of a British subject, while it is, abundantly clear that neither he nor his children could ever be called upon to perform any of its duties. This is the practical mischief of the present rule, and to re-enact it would be to give fresh authority to a principle the inconvenience of which is sufficiently apparent. Nothing can be more politically inexpedient than that this country should be exposed to the claims of a class of persons who have no interest in its welfare, and who, neither by origin, nor domicile, have any community with its affairs.

On the other hand, in the case of foreigners and their children who really desire to incorporate themselves and their interests in the common stock of this country, and to embark their fortunes with ours, there seems neither hardship nor inconvenience in requiring that they should evidence their intention to change their nationality and adopt a new domicile by some formal act which, while it would establish their British nationality, would at the same time terminate their foreign allegiance. They would then no longer be able to blow hot and cold, and adopt in turn such nationality as happened for the moment to suit their interests. If the alien father is domiciled in England, and intends to cast in his lot and that of his family with this country, why should he object to naturalize himself or his child? But if he is unwilling by such an act to sever his connection or that of his family with the country of his origin, why should we embarrass our relations with foreign states by conferring our nationality on such a person—to his advantage, it may be, but certainly not in any respect to our own?

If the father and the child are really domiciled in this country, the process of naturalization would be simple and easy, and having regard to the recommendation in Section V of the report it will be seen that a person so naturalized will enjoy all the advantages which belong to a natural-born subject; if they are not so domiciled I venture to think the child ought not to acquire the privilege of British nationality by the simple accident of birth. The great importance of insisting on naturalization in such cases is, that it is by this means alone that the double allegiance can be avoided. For this purpose it is essential that the act which confers the nationality should in itself openly and unambiguously terminate the old allegiance. This the rule which requires naturalization of a foreigner born in England as a condition of British nationality would do; while the rule conferring nationality by the mere fact of birth would give the new nationality without dissolving the old allegiance.

I should therefore propose that in the case of the children of foreigners born within the realm, the following rule should be adopted:

“Children born within the realm of alien fathers who have been themselves born abroad shall be deemed aliens. But such children shall become British subjects (1) upon the naturalization of their fathers, or (2) upon their being themselves naturalized either by their fathers during their minority Or by themselves at full age.”

This rule would make the child born in this country, of an alien father also born in this country, a British subject by birth, and in this respect it accords with the French law. Though apparently somewhat in conflict with the general principle, it is in fact in strict conformity with the principle which makes domicile the governing rule of nationality; for though the presumption of domicile is very small from the mere fact of the place of birth of a single individual in one generation, it becomes very strong when the birth both of the father and the child takes place in the same country. Such a condition of things may be safely taken as a sufficient proof of permanent change of domicile and of the election of a new nationality, which could not be inferred from a solitary and isolated instance.

There is another point affecting the latter part of Section IV of the report, on which I feel great difficulty. Though I concur in the principle laid down in Section IV (§ 2 a) of the report, by which it is declared that the children born of British fathers abroad “should be regarded by British law as British subjects,” I greatly doubt the expediency of the declaration in the same section (§ 2 b) that “in the administration of British criminal law” such children are under certain conditions not to be treated as British subjects. The word “subject,” in my understanding of the term, involves of necessity subjection to the laws of the state of which such person is a subject, and above all subjection to its criminal law. If it is necessary (though I think that is more than doubtful) to create a class of persons who shall be capable of all the privileges while they are liable to none of the obligations of citizens, it would be desirable to discover for such a class some more appropriate title than that of “subjects.” What is no doubt intended is that such persons should have the capacity of becoming at their election British subjects, and that till they have exercised the option to enjoy the benefits, they shall not be called upon to bear the burdens of that character, but that after they have claimed the advantages they shall not be able to decline the obligations of subjects. But surely if this be the view which it is intended to present it should be distinctly asserted that while the person is pot amenable to the law of England he is not yet a British subject, and that as soon as he becomes a British subject he is at once amenable to that law. I cannot, therefore, assent to a definition which speaks of a person as “regarded by British law as by birth a British subject,” (Section IV, § 2 a) and of the same person, at the same time, under certain conditions, as a person “who in the administration of British criminal law should be treated as a subject of the country in which he was born,” (Section IV, § 2 b.) The question of whether a particular individual who is thus declared a British subject is or is not amenable to our criminal law is made to turn upon the point of whether he has or not “ever exercised or claimed any right or privilege as a British subject.” I confess that in terms so general and vague there seems to me to lurk a dangerous ambiguity very intractable in the administration of criminal law. What are these “rights and privileges;” what is to be the extent of the “exercise” or the nature of the “claim” which by their absence or their presence are to sustain or to defeat the juris diction of the Crown over persons who are nominally British subjects! This distinction seems to constitute the same person a British subject by birth in the view of the English civil law, and to leave him an alien in the eye of the English criminal law. There may be persons against whom it is inexpedient that the rights of the Crown should be actually enforced in particular cases. But this is a very different thing from a formal declaration that there exist persons legally called “British subjects” who are not justiciable in the courts of the Queen.

W. VERNON HARCOURT.